71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 3981
Sponsored by Representatives JENSON, KROPF
CHAPTER ................
AN ACT
Relating to protected species; creating new provisions; and
amending ORS 469.501, 496.172, 496.192 and 527.710.
Whereas a recent federal appeals court decision acknowledged
that federal agencies must consider the economic effects of the
designation of critical habitat in regard to threatened and
endangered species and the economic effects of the listing of
threatened and endangered species itself; and
Whereas it is the intent of the Legislative Assembly that state
agencies involved in the listing of a species as threatened or
endangered also consider the economic and social impacts of the
listing on the affected communities and this state; and
Whereas it is the intent of the Legislative Assembly that
economic and social impacts are considered concurrently when
making the decision to list a species as a threatened or
endangered species; now, therefore,
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2001 Act is added to and made
a part of ORS 496.171 to 496.182. + }
SECTION 2. { + (1) The State Fish and Wildlife Commission
shall, for each species listed as a threatened or endangered
species under ORS 496.171 to 496.182, consider information,
including but not limited to all existing economic and
sociological information, that will demonstrate the economic and
social impacts that will result from listing the species under
ORS 496.171 to 496.182 and create a report that demonstrates the
economic and social impacts that the resulting species recovery
efforts will impose on communities in this state. The scope of
each report shall be species specific, shall be as geographically
broad as practicable and shall take into account the attitudes
and local customs of residents within the geographic region
affected by the species recovery efforts. The report shall
include, at a minimum, consideration of the following economic
and sociological factors:
(a) The increase or decrease in employment opportunities
resulting from the species recovery efforts and the subsequent
economic and social impacts on the affected communities and this
state;
(b) The types of employment opportunities that will be gained
or lost in the affected communities and this state because of the
species recovery efforts and the subsequent impact on specific
markets or industries, business owners and wage earners and the
quality of life in the affected communities;
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(c) The impact on natural resources used by businesses in the
affected communities and this state, including but not limited to
wildlife, timber, minerals, land and water, and the subsequent
impact on the number of employment opportunities, types of
employment opportunities, road and building infrastructure and
other quality of life issues;
(d) The impact on recreational opportunities;
(e) The impact on individual landowners;
(f) The impact on individuals in the affected communities in
terms of quality of life issues, including but not limited to the
number and types of employment opportunities available, changes
in school size, school funding and quality of schools,
availability of medical treatment, road and building
infrastructure, availability of housing and land use regulation;
(g) The impact on local governments;
(h) Additional expenses for state agencies that have land
management or regulatory authority, or that provide social
services;
(i) The impact on Indian tribes, the state or federal
relationship with the tribes, memoranda of agreement or treaties
with the tribes and the contributions of tribal practices toward
assisting in the recovery of the species; and
(j) The infrastructure that must be developed to recover the
species, the costs of the development of that infrastructure and
the moneys available to complete the development.
(2) After the creation of each report under this section, the
commission shall:
(a) Deliver a copy of the report to the Speaker of the House of
Representatives, the President of the Senate and the appropriate
legislative committees.
(b) Make the report available to the public in printed form and
in electronic form through the World Wide Web.
(c) Utilize the findings of the report to guide commission
action during deliberations or public hearings on species
recovery efforts.
(3) If the commission determines that the species recovery
efforts for a species listed under ORS 496.171 to 496.182 will
result in negative economic or social impacts for a community,
the state shall, when practicable, assist the affected community
with planning, development and funding to mitigate the negative
economic and social impacts.
(4) The commission shall use the services of permanent
legislative staff and permanent state agency employees to the
greatest extent possible. However, the commission shall contract
for services from private, professional sociologists and
economists to complete the report required by this section.
(5) Except for a species added to the list by emergency action
under ORS 496.176 (7), the commission shall begin the process of
assembling the report required by this section at the time a
species is considered for addition to the list. The commission
shall prioritize the completion of the report to ensure that the
report is available for review before the commission holds the
initial public hearing for making a determination on the addition
of the species to the list. + }
SECTION 3. ORS 496.172 is amended to read:
496.172. In carrying out the provisions of the wildlife laws
with regard to the management of wildlife that is a threatened
species or an endangered species, the State Fish and Wildlife
Commission:
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(1) Shall conduct investigations of wildlife species native to
this state and shall determine whether any such species is a
threatened species or an endangered species.
(2) By rule, shall establish and publish, and from time to time
may revise, a list of wildlife species that are threatened
species or endangered species. Listed threatened species or
endangered species shall be protected as provided in ORS 496.182.
(3) Shall work cooperatively with state agencies that have land
management authority or regulatory authority to determine their
roles within their statutory obligations in the conservation of
endangered species, as described in ORS 496.182 (8).
(4) By rule, shall establish a system of permits for scientific
taking of threatened species and endangered species and shall
establish a system of state permits for incidental taking of
state-designated threatened species and endangered species not
listed by the federal government under such terms and conditions
as the commission determines will minimize the impact on the
species taken. An incidental taking permit or statement issued by
a federal agency for a species listed under the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended, shall be recognized by the state as a waiver of any
state protection measures or requirements otherwise applicable to
the actions allowed under the federal permit.
(5) Shall cooperate with the State Department of Agriculture in
carrying out the provisions of ORS 564.105.
(6) Shall adopt administrative rules to carry out the
provisions of ORS 496.171 to 496.182 and 498.026.
{ + (7) By rule, shall create a safe harbor program that,
notwithstanding ORS 496.171 to 496.182, permits an affected
lessee of state land to enter into an agreement with the
commission that outlines the lessee's responsibilities in the
protection of a species listed under subsection (2) of this
section that is located on the leased property. Nothing in this
subsection shall be construed to affect the lessee's
responsibilities under federal law.
(8) By rule, shall create a candidate conservation program
that, notwithstanding ORS 496.171 to 496.182, permits a person
that would be affected by the listing of a species as a
threatened species or an endangered species under subsection (2)
of this section to enter into an agreement with a state agency
that outlines a plan to reduce existing threats or endangerment
to a species to avoid the listing of the species as a threatened
species or an endangered species. + }
SECTION 4. { + Section 2 of this 2001 Act and the amendments
to ORS 496.172 by section 3 of this 2001 Act apply to species
listed as threatened or endangered species under ORS 496.171 to
496.182 on or after the effective date of this 2001 Act. + }
SECTION 5. ORS 469.501 is amended to read:
469.501. (1) The Energy Facility Siting Council shall adopt
standards for the siting, construction, operation and retirement
of facilities. The standards may address but need not be limited
to the following subjects:
(a) The organizational, managerial and technical expertise of
the applicant to construct and operate the proposed facility.
(b) Seismic hazards.
(c) Areas designated for protection by the state or federal
government, including but not limited to monuments, wilderness
areas, wildlife refuges, scenic waterways and similar areas.
(d) The financial ability and qualifications of the applicant.
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{ - (e) Effects of the facility, taking into account
mitigation, on fish and wildlife, including threatened and
endangered fish, wildlife or plant species. - }
{ - (f) - } { + (e) + } Impacts of the facility on
historic, cultural or archaeological resources listed on, or
determined by the State Historic Preservation Officer to be
eligible for listing on, the National Register of Historic Places
or the Oregon State Register of Historic Properties.
{ - (g) - } { + (f) + } Protection of public health and
safety, including necessary safety devices and procedures.
{ - (h) - } { + (g) + } The accumulation, storage, disposal
and transportation of nuclear waste.
{ - (i) - } { + (h) + } Impacts of the facility on
recreation, scenic and aesthetic values.
{ - (j) - } { + (i) + } Reduction of solid waste and
wastewater generation to the extent reasonably practicable.
{ - (k) - } { + (j) + } Ability of the communities in the
affected area to provide sewers and sewage treatment, water,
storm water drainage, solid waste management, housing, traffic
safety, police and fire protection, health care and schools.
{ - (L) - } { + (k) + } The need for proposed nongenerating
facilities as defined in ORS 469.503, consistent with the state
energy policy set forth in ORS 469.010 and 469.310. The council
may consider least-cost plans when adopting a need standard or in
determining whether an applicable need standard has been met. The
council shall not adopt a standard requiring a showing of need or
cost-effectiveness for generating facilities as defined in ORS
469.503.
{ - (m) - } { + (L) + } Compliance with the statewide
planning goals adopted by the Land Conservation and Development
Commission as specified by ORS 469.503.
{ - (n) - } { + (m) + } Soil protection.
{ - (o) - } { + (n) + } For energy facilities that emit
carbon dioxide, the impacts of those emissions on climate change.
For fossil-fueled power plants, as defined in ORS 469.503, the
council shall apply a standard as provided for by ORS 469.503
(2).
(2) The council may adopt exemptions from any need standard
adopted under subsection { - (1)(L) - } { + (1)(k) + } of
this section if the exemption is consistent with the state's
energy policy set forth in ORS 469.010 and 469.310.
(3) The council may issue a site certificate for a facility
that does not meet one or more of the standards adopted under
subsection (1) of this section if the council determines that the
overall public benefits of the facility outweigh the damage to
the resources protected by the standards the facility does not
meet.
SECTION 6. ORS 496.192 is amended to read:
496.192. (1) { + ORS 496.171 to 496.182 apply only to
threatened or endangered species located on state-owned
lands. + } Nothing in ORS
{ - 496.004, - } 496.171 to 496.182 { - or 498.026 - } is
intended { - , by itself, - } to require an owner of any
commercial forestland or other private land to take action to
protect a threatened species or endangered species, or to impose
additional requirements or restrictions on the use of private
land.
(2) { - Notwithstanding subsection (1) of this section, Other
statutes may authorize administrative rules or programs to
protect wildlife species, including threatened species or
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endangered species, and - } Nothing in ORS { - 496.004, - }
496.171 to 496.182 { - or 498.026 - } shall diminish the force
or effect of { - such - } rules or programs { + adopted under
other statutes to protect wildlife species. However, such rules
or programs may not impose additional requirements or
restrictions on the use of private land to protect threatened or
endangered species listed under ORS 496.176 + }.
SECTION 7. ORS 527.710 is amended to read:
527.710. (1) In carrying out the purposes of ORS 527.610 to
527.770, 527.990 (1) and 527.992, the State Board of Forestry
shall adopt, in accordance with applicable provisions of ORS
183.310 to 183.550, rules to be administered by the State
Forester establishing standards for forest practices in each
region or subregion.
(2) The rules shall ensure the continuous growing and
harvesting of forest tree species. Consistent with ORS 527.630,
the rules shall provide for the overall maintenance of the
following resources:
(a) Air quality;
(b) Water resources, including but not limited to sources of
domestic drinking water;
(c) Soil productivity; and
(d) Fish and wildlife.
(3)(a) In addition to its rulemaking responsibilities under
subsection (2) of this section, the board shall collect and
analyze the best available information and establish inventories
of the following resource sites needing protection:
(A) Threatened and endangered fish and wildlife species
{ - identified on lists - } that are { - adopted, by rule,
by the State Fish and Wildlife Commission or are - } federally
listed under the Endangered Species Act of 1973 as amended;
(B) Sensitive bird nesting, roosting and watering sites;
(C) Biological sites that are ecologically and scientifically
significant; and
(D) Significant wetlands.
(b) The board shall determine whether forest practices would
conflict with resource sites in the inventories required by
paragraph (a) of this subsection. If the board determines that
one or more forest practices would conflict with resource sites
in the inventory, the board shall consider the consequences of
the conflicting uses and determine appropriate levels of
protection.
(c) Based upon the analysis required by paragraph (b) of this
subsection, and consistent with the policies of ORS 527.630, the
board shall adopt rules appropriate to protect resource sites in
the inventories required by paragraph (a) of this subsection.
(4) Before adopting rules under subsection (1) of this section,
the board shall consult with other agencies of this state or any
of its political subdivisions that have functions with respect to
the purposes specified in ORS 527.630 or programs affected by
forest operations. Agencies and programs subject to consultation
under this subsection include, but are not limited to:
(a) Air and water pollution programs administered by the
Department of Environmental Quality under ORS chapters 468A and
468B and ORS 477.013 and 477.515 to 477.532;
(b) Mining operation programs administered by the Department of
Geology and Mineral Industries under ORS 516.010 to 516.130 and
ORS chapter 517;
(c) Game fish and wildlife, commercial fishing, licensing,
wildlife and bird refuge and fish habitat improvement tax
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incentive programs administered by the State Department of Fish
and Wildlife under ORS 272.060, 315.134 and ORS chapters 496,
498, 501, 506 and 509;
(d) Park land, Willamette River Greenway, scenic waterway and
recreation trail programs administered by the State Parks and
Recreation Department under ORS 358.475 to 358.565, 390.310 to
390.368, 390.805 to 390.925, 390.950 to 390.989 and 390.121;
(e) The programs administered by the Columbia River Gorge
Commission under Public Law 99-663 and ORS 196.110 and 196.150;
(f) Removal and fill, natural heritage conservation and natural
heritage conservation tax incentive programs administered by the
State Land Board and the Division of State Lands under ORS
196.800 to 196.900, 273.553 to 273.591, 307.550, 307.560 and
541.700 to 541.990;
(g) Federal Safe Drinking Water Act programs administered by
the Health Division under ORS 448.273 to 448.990;
(h) Natural heritage conservation programs administered by the
Natural Heritage Advisory Council under ORS 273.553 to 273.591,
307.550 and 307.560;
(i) Open space land tax incentive programs administered by
cities and counties under ORS 308A.300 to 308A.330;
(j) Water resources programs administered by the Water
Resources Department under ORS 536.220 to 536.540; and
(k) Pesticide control programs administered by the State
Department of Agriculture under ORS chapter 634.
(5) In carrying out the provisions of subsection (4) of this
section, the board shall consider and accommodate the rules and
programs of other agencies to the extent deemed by the board to
be appropriate and consistent with the purposes of ORS 527.630.
(6) The board shall adopt rules to meet the purposes of another
agency's regulatory program where it is the intent of the board
to administer the other agency's program on forestland and where
the other agency concurs by rule. An operation performed in
compliance with the board's rules shall be deemed to comply with
the other agency's program.
(7)(a) The board may enter into cooperative agreements or
contracts necessary in carrying out the purposes specified in ORS
527.630, including but not limited to stewardship agreements as
described in ORS 527.662.
(b) The State Forestry Department shall enter into agreements
with appropriate state agencies for joint monitoring of the
effectiveness of forest practice rules in protecting forest
resources and water quality.
(8) If based upon the analysis required in section 15 (2)(f),
chapter 919, Oregon Laws 1991, and as the results become
available, the board determines that additional rules are
necessary to protect forest resources pursuant to ORS 527.630,
the board shall adopt forest practice rules that reduce to the
degree practicable the adverse impacts of cumulative effects of
forest practices on air and water quality, soil productivity,
fish and wildlife resources and watersheds. Such rules shall
include a process for determining areas where adverse impacts
from cumulative effects have occurred or are likely to occur, and
may require that a written plan be submitted for harvests in such
areas.
(9)(a) The State Forester, in cooperation with the State
Department of Fish and Wildlife, shall identify streams for which
restoration of habitat would be environmentally beneficial. The
State Forester shall select as a priority those streams where
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restoration efforts will provide the greatest benefits to fish
and wildlife, and to streambank and streambed stability.
(b) For those streams identified in paragraph (a) of this
subsection, the State Forester shall encourage landowners to
enter into cooperative agreements with appropriate state agencies
for conduct of restoration activities.
(c) The board, in consultation with appropriate state agencies,
shall study and identify methods for restoring or enhancing fish
and wildlife populations through restoration and rehabilitation
of sites beneficial to fish and wildlife.
(d) The board shall adopt rules to implement the findings of
this subsection.
(10) The board shall adopt rules that provide the State
Forester with authority to condition the approval of plans
required under ORS 527.670 (2) and (3) when the State Forester
makes a determination that there is evidence of a potential
threat to resources protected under this section by controlling
method, timing and extent of harvest when the forester determines
such limitations are necessary to achieve the objectives of ORS
527.630.
(11) In addition to its responsibilities under subsections (1)
to (3) of this section, the board shall adopt rules to reduce the
risk of serious bodily injury or death caused by a rapidly moving
landslide directly related to forest practices. The rules shall
consider the exposure of the public to these safety risks and
shall include appropriate practices designed to reduce the
occurrence, timing or effects of rapidly moving landslides. As
used in this subsection, 'rapidly moving landslide' has the
meaning given that term in ORS 195.250.
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Passed by House June 1, 2001
Repassed by House July 1, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 18, 2001
Repassed by Senate July 2, 2001
...........................................................
President of Senate
Enrolled House Bill 3981 (HB 3981-BCCA) Page 7
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 3981 (HB 3981-BCCA) Page 8