Chapter 708 Oregon Laws 2001

AN ACT

HB 3564

Relating to conservation; creating new provisions; amending ORS 215.800, 215.802, 215.806, 215.808, 271.715, 541.370 and 541.380; and appropriating money.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 and 3 of this 2001 Act are added to and made a part of ORS chapter 308A.

SECTION 2. (1) The Legislative Assembly finds that it is in the interests of the people of this state that certain private lands be managed in a sustainable manner for the purpose of maintaining the long-term ecological, economic and social values that these lands provide.

(2) The Legislative Assembly declares that it is the policy of this state to encourage landowners to manage private lands in a sustainable manner through tax policy, land use planning, education and technical and financial incentives.

(3) The Legislative Assembly further declares that it is the policy of this state not to impose additional taxes on property, commodities or income if a landowner voluntarily foregoes, limits or postpones economic uses of private land for conservation purposes.

(4) As used in this section, “conservation” means the management of land, water and natural resources for the purpose of meeting human and ecological needs in a sustainable manner.

SECTION 3. (1) Land that is specially assessed under ORS 215.800 to 215.808, 308A.050 to 308A.128, 308A.300 to 308A.330, 321.257 to 321.390, 321.705 to 321.765 or 321.805 to 321.825, or land that is exempt from property tax under ORS 308A.350 to 308A.383, may not be disqualified from the special assessment or exemption, and may not be subject to additional taxes under ORS 308A.700 to 308A.733, if the property owner has:

(a) Entered into a wildlife habitat conservation and management plan, as described in ORS 215.800 to 215.808, approved by the State Department of Fish and Wildlife; or

(b) Executed a conservation easement, as defined in ORS 271.715, or a deed restriction and the land:

(A) Is managed in compliance with the conservation easement or deed restriction; and

(B) Continues to meet the requirements for special assessment or exemption. The existence of the conservation easement or deed restriction may not cause the disqualification of the land from special assessment or exemption or preclude the disqualification of the land from special assessment or exemption for some other reason.

(2) A property owner who executes a conservation easement may convey the easement to a land trust or other qualified entity without a loss of benefits under this section.

(3) In order for land to be subject to this section:

(a) The conservation easement, deed restriction or wildlife habitat conservation and management plan must be recorded in the records of the clerk of the county in which the land is located; and

(b) A copy of the conservation easement, deed restriction or wildlife habitat conservation and management plan, along with the property tax account number for the land, must be sent to the county assessor.

NOTE: Section 4 of this 2001 Act was deleted by amendment. Subsequent sections were not renumbered.

SECTION 5. Sections 2 and 3 of this 2001 Act apply to tax years beginning on or after July 1, 2002.

SECTION 6. Section 7 of this 2001 Act is added to and made a part of ORS 215.800 to 215.808.

SECTION 7. As used in ORS 215.800 to 215.808:

(1) “Cooperating agency” means the State Department of Fish and Wildlife, the United States Fish and Wildlife Service, the United States Natural Resources Conservation Service, the Oregon State University Extension Service or other persons with wildlife habitat conservation and management training considered appropriate for the preparation of a conservation and management plan, as established by rules of the State Department of Fish and Wildlife.

(2) “Department” means the State Department of Fish and Wildlife.

(3) “Forestland” means forestland as defined in ORS 321.257, 321.705 or 321.805.

(4) “Lot” has the meaning given that term in ORS 92.010.

(5) “Parcel” has the meaning given that term in ORS 215.010 (1).

(6) “Wildlife habitat conservation and management plan” or “plan” means a plan developed by a cooperating agency and landowner that specifies the conservation and management practices, including farm and forest uses consistent with the overall intent of the plan, that will be conducted to preserve, enhance and improve wildlife habitat on an affected lot or parcel.

SECTION 8. ORS 215.800 is amended to read:

215.800. (1) The Legislative Assembly declares that the protection and preservation of the wildlife resources of this state ought to be encouraged by recognizing wildlife habitat conservation and enhancement as an allowed land use in areas:

(a) Zoned for exclusive farm use, [and] mixed farm and forest use or highest and best use forestland; or

(b) Assessed as designated forestland or under the Western Oregon Small Tract Optional Tax.

(2) The Legislative Assembly further declares that ORS 215.800 to 215.808 are intended to allow for the conservation and enhancement of wildlife habitat.

(3) The Legislative Assembly further recognizes that the integration of wildlife habitat conservation and management plans with generally accepted agricultural and forestry practices in farm and forest zones is an important element in exercising good stewardship over these lands.

SECTION 9. ORS 215.802 is amended to read:

215.802. (1) Notwithstanding ORS 215.213, 215.283 and 215.284, but subject to ORS 215.804, a county [may] shall allow the establishment of wildlife habitat conservation and management plans in any area that is:

(a) Zoned for exclusive farm use or mixed farm and forest use; or

(b) Forestland.

[(2) As used in ORS 215.800 to 215.808:]

[(a) “Cooperating agency” means the State Department of Fish and Wildlife, the United States Fish and Wildlife Service, the United States Natural Resources Conservation Service, the Oregon State University Extension Service or other persons with wildlife conservation and management training considered appropriate for the preparation of a conservation and management plan, as established by rules of the State Department of Fish and Wildlife.]

[(b) “Department” means the State Department of Fish and Wildlife.]

[(c) “Lot” has the meaning given that term in ORS 92.010.]

[(d) “Parcel” has the meaning given that term in ORS 215.010 (1).]

[(e) “Wildlife habitat conservation and management plan” or “plan” means a plan developed by a cooperating agency and landowner that specifies the conservation and management practices, including farm and forest uses consistent with the overall intent of the plan, that will be conducted to preserve, enhance and improve wildlife habitat on an affected lot or parcel.]

(2) Notwithstanding the requirement in subsection (1) of this section that a county allow the establishment of wildlife habitat conservation and management plans, the governing body of a county may forbid the establishment of such plans if the governing body adopts, prior to January 1, 2003, a resolution or other decision that forbids the establishment of such plans.

(3) A county governing body may rescind its decision to forbid the establishment of wildlife habitat conservation and management plans. However, a county that allows the establishment of such plans after January 1, 2003, may not again, by ordinance, resolution or otherwise, forbid the establishment of such plans.

SECTION 10. ORS 215.806 is amended to read:

215.806. (1)(a) The State [Department of] Fish and Wildlife Commission shall adopt rules specifying the form and content of a wildlife habitat conservation and management plan.

(b) The rules adopted pursuant to this section shall:

(A) Specify the conservation and management practices that are appropriate to preserve, enhance and improve wildlife common to the diverse regions of this state.

(B) Specify that wildlife habitat conservation and management plans may include those efforts that improve water quality, protect and restore fish and wildlife habitats, recover threatened or endangered species, enhance stream flows and maintain or restore long-term ecological health, diversity and productivity on a broad geographic scale.

(c) Accepted farm and forest practices may be allowed as an integral part of the wildlife habitat conservation and management practices specified in an approved plan.

(d) The lease or sale of in-stream water rights shall be allowed as an integral part of the wildlife habitat conservation and management practices specified in an approved plan.

(2) The rules shall be reviewed annually by the [department] commission and revised when considered necessary or appropriate by the [department] commission.

SECTION 11. ORS 215.808 is amended to read:

215.808. (1) The State Department of Fish and Wildlife shall review and approve plans submitted under ORS 215.802 (1) for compliance with the standards set forth in the rules adopted under ORS 215.806.

(2) The State Fish and Wildlife Commission may establish by rule a limit on the number of plans that may be approved for each tax year. An application that is not approved because the maximum number of plans for a tax year have already been approved shall be held for consideration for approval for the next tax year.

[(2)] (3) When a plan is approved by the department and is implemented, the owner of the land subject to the plan may make application to the county assessor for open space use assessment under ORS 308A.300 to 308A.330 for that land, except that, if approved, the land shall be assessed:

(a) At its value for farm use under ORS 308A.050 to 308A.128 [and 308A.250 to 308A.259] if the land is in an exclusive farm use zone or a farm and forest zone and has historically been in farm use; or

(b) At its forestland value if, but for application under this section, the land is zoned as highest and best use forestland, assessed as designated forestland or assessed under the Western Oregon Small Tract Optional Tax.

(4) If the land that is the subject of the application includes a farm or forest homesite, upon approval the homesite shall be assessed as provided in ORS 308A.250 to 308A.259.

(5) Application shall be made as provided in ORS 308A.300 to 308A.330 except that:

(a) The granting authority shall be the State Department of Fish and Wildlife. The department shall approve the plan relating to the land of the applicant and determine compliance with the plan in accordance with rules adopted under ORS 215.806.

(b) The owner, in lieu of designating the paragraph of ORS 308A.300 (1) under which the open space use falls, shall designate the open space use as wildlife habitat conservation and management under ORS 215.800 to 215.808.

(c) Applications for open space use assessment under this section shall be made to the county assessor not later than April 1 immediately preceding the first tax year for which such assessment is requested.

(d) The application shall include a certified copy of the department's declaration that the land described in the application is subject to a wildlife habitat conservation and management plan approved by the department and that the plan is being implemented.

(e) When the application for open space use assessment includes a certified copy of the declaration described in paragraph (d) of this subsection, the county assessor [shall] may not refer the application to the planning commission or to the county governing body under ORS 308A.309 (1), but shall assess the land described in the application at its assessed value [for farm use under the provisions of ORS 308A.107] under the appropriate special assessment program listed under subsection (3) or (4) of this section. In each year in which the land is assessed under the provisions of this section, the county assessor shall also enter on the assessment roll, as a notation, the assessed value of the land were it not so assessed.

[(3)] (6) An approved wildlife habitat conservation and management plan shall be reviewed by the department [at least once in each two-year period to determine continued compliance] periodically to ensure that the land is managed in accordance with the plan. If the plan is not being implemented as approved, the department shall notify the owner and require compliance measures to be taken within six months. If the plan is still not being implemented as required by the department at the end of the six-month period, the department shall notify the county assessor of the county in which the affected land is situated. The county assessor shall withdraw the land from open space use classification as provided in ORS 308A.321 (1), except that notice of the withdrawal shall be given to the governing body of the county in which the land is situated.

[(4)] (7) Notwithstanding ORS 215.236 and 308A.700 to 308A.733, land that is assessed [under ORS 308A.050 to 308A.128 and 308A.250 to 308A.259 shall] as provided in this section may not be subject to any additional taxes when the land is changed to open space use assessment based on wildlife habitat conservation and management as provided in ORS 215.800 to 215.808 and shall be allowed to return unrestricted to assessment under [ORS 308A.050 to 308A.128 and 308A.250 to 308A.259] the appropriate special assessment program listed in subsection (3) or (4) of this section, if otherwise qualified, without payment of any additional taxes. However, the land [shall] may be subject to additional taxes [when such land becomes disqualified or declassified from special assessment under ORS 308A.050 to 308A.128 and 308A.250 to 308A.259 or open space use assessment based on wildlife habitat in conservation and management as provided in ORS 215.800 to 215.808 and does not become qualified in the next assessment year for assessment under ORS 308A.050 to 308A.128 and 308A.250 to 308A.259 or open space use under ORS 308A.300 to 308A.330. The additional taxes shall be determined and collected] as provided in ORS 308A.700 to 308A.733. [No other additional tax shall be imposed on such land at the time of disqualification or declassification.]

SECTION 12. ORS 271.715 is amended to read:

271.715. As used in ORS 271.715 to 271.795, unless the context otherwise requires:

(1) “Conservation easement” means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open space values of real property, [assuring] ensuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.

(2) “Highway scenic preservation easement” means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic or open space values of property.

(3) “Holder” means:

(a) The state or any county, tribal government, metropolitan service district, city or park and recreation district acting alone or in cooperation with any federal or state agency, public corporation or political subdivision; or

(b) A charitable corporation, charitable association, charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open space values of real property, assuring the availability of real property for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.

(4) “Third-party right of enforcement” means a right provided in a conservation easement or highway scenic preservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder.

SECTION 13. (1) There is created a Flexible Incentives Account in the State Treasury, separate and distinct from the General Fund. Interest earned by the account shall be credited to the account. The moneys in the account are continuously appropriated to the Oregon Watershed Enhancement Board for the purposes specified in this section.

(2) The Oregon Watershed Enhancement Board shall use the account to assist landowners in the implementation of strategies intended to protect and restore native species of fish, wildlife and plants and to maintain long-term ecological health, diversity and productivity in a manner consistent with statewide, regional or local conservation plans. The board shall seek to fund those strategies that offer the greatest public benefit at the lowest cost.

(3) The account shall consist of moneys appropriated to it by the Legislative Assembly and moneys provided to the board by federal, state, regional or local governments for the purposes specified in this section. The board may accept private moneys in the form of gifts, grants and bequests for deposit into the account.

SECTION 14. Section 13 of this 2001 Act is added to and made a part of ORS 541.351 to 541.415.

SECTION 15. ORS 541.370 is amended to read:

541.370. (1) In carrying out the watershed enhancement program, the Oregon Watershed Enhancement Board shall:

(a) Coordinate the board's funding of enhancement projects with the activities of the Natural Resources Division staff and other agencies, especially those agencies working together through a system of coordinated resource management planning.

(b) Use the expertise of the appropriate state agency according to the type of enhancement project.

(c) Provide educational and informational materials to promote public awareness and involvement in the watershed enhancement program.

(d) Coordinate and provide for or arrange for assistance in the activities of persons, agencies or political subdivisions developing local watershed enhancement projects funded by the board.

(e) Grant funds for the support of watershed councils in assessing watershed conditions, developing action plans, implementing projects and monitoring results and for the implementation of watershed enhancement projects from such moneys as may be available to the board therefor.

(f) Develop and maintain a centralized repository for information about the effects of watershed enhancement and education projects.

(g) Give priority to proposed watershed enhancement projects receiving funding or assistance from other sources.

(h) Identify gaps in research or available information about watershed health and enhancement.

(i) Cooperate with appropriate federal entities to identify the needs and interests of the State of Oregon so that federal plans and project schedules relating to watershed enhancement incorporate the state's intent to the fullest extent practicable.

(j) Encourage the use of nonstructural methods to enhance the riparian areas and associated uplands of Oregon's watersheds.

(k) Determine criteria for utilizing the private sector, both not-for-profit and for-profit organizations, to provide landowners with technical assistance to help develop and implement conservation easements and resource improvement projects.

(2) In accordance with ORS 541.351 to 541.415, the Oregon Watershed Enhancement Board shall administer a watershed improvement grant program using funds from the Watershed Improvement Grant Fund established under ORS 541.397, [and] from the Restoration and Protection Subaccount established under ORS 541.377 and from the Flexible Incentives Account established under section 13 of this 2001 Act.

(3) To aid and advise the board in the performance of the functions of the board, the board may establish such advisory and technical committees as the board considers necessary. These committees may be continuing or temporary. The board shall determine the representation, membership, terms and organization of the committees and shall appoint their members. The chairperson is ex officio a member of each committee.

SECTION 16. ORS 541.380 is amended to read:

541.380. (1) In accordance with the applicable provisions of ORS 183.310 to 183.550, the Oregon Watershed Enhancement Board shall adopt rules and standards to carry out the watershed enhancement program.

(2) The rules and standards adopted by the board under subsection (1) of this section shall include, but need not be limited to:

(a) Grant application requirements and review and selection criteria for projects to receive assistance or funding from the board, including funding from the Flexible Incentives Account established under section 13 of this 2001 Act.

(b) Criteria for distributing to those entities specified in ORS 541.375 those funds appropriated to the board for funding projects. The criteria shall include a process for periodic review of the distribution by the joint legislative committee created pursuant to ORS 171.551.

(A) Provisions satisfactory to the board for inspection and evaluation of the implementation of a project including all necessary agreements to allow the board and employees of any cooperating agency providing staff services for the board access to the project area;

(B) Provisions satisfactory to the board for controlling the expenditure of and accounting for any funds granted by the board for implementation of the project;

(C) An agreement that those initiating the project will submit all pertinent information and research gained from the project to the board for inclusion in the centralized repository established by the board; and

(D) Provisions for the continued maintenance of the portion of the riparian area or associated uplands enhanced by the project.

SECTION 17. (1) The State Forestry Department and the State Department of Agriculture shall, in consultation with relevant state agencies and other public or private organizations, review state statutes, rules, policies and programs that affect landowner decisions to implement conservation strategies.

(2) The review conducted under subsection (1) of this section shall include:

(a) Establishing a statewide strategy for the implementation and coordination of incentives, regulatory disincentives, expedited permit processes and related taxes.

(b) The development of a stewardship agreement program for rural lands that establishes a baseline management standard for landowners and a voluntary higher standard that provides natural resource benefits and regulatory certainty for landowners.

SECTION 18. (1) The State Forestry Department and the State Department of Agriculture shall report to the Seventy-second Legislative Assembly on recommendations for improvements of incentives and existing regulatory schemes that will encourage landowners and businesses to voluntarily invest in the improvement of natural resources.

(2) The report created pursuant to this section shall include, but not be limited to, recommendations on statutory changes, regulatory relief, expedited permit processes and tax incentives.

Approved by the Governor July 2, 2001

Filed in the office of Secretary of State July 2, 2001

Effective date January 1, 2002

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