72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
SA to A-Eng. HB 3264 (A to RC)
LC 3217/HB 3264-A7
SENATE AMENDMENTS TO
A-ENGROSSED HOUSE BILL 3264
(INCLUDING AMENDMENTS TO RESOLVE CONFLICTS)
By COMMITTEE ON RULES
August 21
On page 1 of the printed A-engrossed bill, line 2, delete '
and' and after 'ORS' delete the rest of the line and line 3 and
insert '183.560, 195.260, 527.620, 527.630, 527.670, 527.700,
527.710, 527.714, 527.750 and 527.992; and declaring an
emergency.'.
Delete lines 4 through 21 and insert:
' Whereas the Oregon Forest Practices Act is not a permit-based
regulatory system but a system of statutes and rules that sets
standards for forest practices with the expectation that
operators and landowners will willingly comply, seek
clarification or technical advice if there is confusion, or face
enforcement penalties for noncompliance; and
' Whereas in many cases under the Oregon Forest Practices Act
an operator, landowner or timber owner merely notifies the State
Forester of an intent to begin operations and after a brief
waiting period may begin operations; and
' Whereas for some more sensitive forest practices, written
plans are used as a preventive mechanism to ensure an adequate
understanding of rule requirements and preplanning; and
' Whereas written plans merely describe how the operator
proposes to comply with existing state statutes and rules; and
' Whereas the State Forester reviews written plans as to
whether the operation, if conducted as described, is likely to
comply with applicable standards; and
' Whereas it is the intent of the Seventy-second Legislative
Assembly to provide that the State Forester ensure that the
standards for operations set by the Oregon Forest Practices Act
and rules adopted thereunder are achieved through a combination
of education and review prior to the commencement of an operation
and through enforcement actions where appropriate under state
law, rather than through a system of prior approvals; and
' Whereas it is the intent of the Seventy-second Legislative
Assembly to clarify that the State Forester and the State Board
of Forestry are not authorized to approve or reject a written
plan; now, therefore,'.
Delete lines 23 through 26 and delete pages 2 through 10 and
insert:
' { + SECTION 1. + } ORS 183.560 is amended to read:
' 183.560. (1) As used in this section and ORS 183.562, '
permit' means an individual and particularized license, permit,
certificate, approval, registration or similar form of permission
required by law to pursue any activity specified in this section,
for which an agency must weigh information, make specific
findings and make determinations on a case-by-case basis for each
applicant.
' (2) The requirements of this section and ORS 183.562 apply to
the following permits granted by:
' (a) The Department of Environmental Quality under ORS
448.415, 454.655, 454.695, 454.790, 454.800, 459.205, 465.315,
465.325, 466.140, 466.145, 466.706 to 466.882, 468A.040,
468A.310, 468B.035, 468B.040, 468B.045, 468B.050 and 468B.095.
' (b) The Division of State Lands under ORS 196.800 to 196.900
and 390.805 to 390.925.
' (c) The Water Resources Department under ORS chapters 537 and
540, except those permits issued under ORS 537.747 to 537.765.
' { - (d) The State Forestry Department for which written
plans are required under ORS chapter 527. - }
' { - (e) - } { + (d) + } The State Department of
Agriculture pursuant to ORS 468B.200 to 468B.230 and 622.250.
' { - (f) - } { + (e) + } The State Department of Fish and
Wildlife pursuant to ORS 497.142, 497.218, 497.228, 497.238,
497.248, 497.252, 497.298, 497.308, 498.019, 498.279, 508.106,
508.300, 508.760, 508.775, 508.801, 508.840, 508.880, 508.926 and
509.140.
' { - (g) - } { + (f) + } The Department of Transportation
pursuant to ORS 374.312.
' { + SECTION 2. + } ORS 527.620 is amended to read:
' 527.620. As used in ORS 527.610 to 527.770, 527.990 and
527.992:
' (1) 'Board' means the State Board of Forestry.
' (2) 'Cumulative effects' means the impact on the environment
which results from the incremental impact of the forest practice
when added to other past, present and reasonably foreseeable
future forest practices regardless of what governmental agency or
person undertakes such other actions.
' (3) 'DBH' means the diameter at breast height which is
measured as the width of a standing tree at four and one-half
feet above the ground, on the uphill side.
' (4) 'Edge of the roadway' means:
' (a) For interstate highways, the fence.
' (b) For all other state highways, the outermost edge of
pavement, or if unpaved, the edge of the shoulder.
' (5) 'Forest practice' means any operation conducted on or
pertaining to forestland, including but not limited to:
' (a) Reforestation of forestland;
' (b) Road construction and maintenance;
' (c) Harvesting of forest tree species;
' (d) Application of chemicals; and
' (e) Disposal of slash.
' (6) 'Forest tree species' means any tree species capable of
producing logs, fiber or other wood materials suitable for the
production of lumber, sheeting, pulp, firewood or other
commercial forest products except trees grown to be Christmas
trees as defined in ORS 571.505 on land used solely for the
production of Christmas trees.
' (7) 'Forestland' means land that is used for the growing and
harvesting of forest tree species, regardless of how the land is
zoned or taxed or how any state or local statutes, ordinances,
rules or regulations are applied.
' (8) 'Harvest type 1' means an operation that requires
reforestation but does not require wildlife leave trees. A
harvest type 1 is an operation that leaves a combined stocking
level of free to grow seedlings, saplings, poles and larger trees
that is less than the stocking level established by rule of the
board that represents adequate utilization of the productivity of
the site.
' (9) 'Harvest type 2' means an operation that requires
wildlife leave trees but does not require reforestation. A
harvest type 2 does not require reforestation because it has an
adequate combined stocking of free to grow seedlings, saplings,
poles and larger trees, but leaves:
' (a) On Cubic Foot Site Class I, II or III, fewer than 50
11-inch DBH trees or less than an equivalent basal area in larger
trees, per acre;
' (b) On Cubic Foot Site Class IV or V, fewer than 30 11-inch
DBH trees or less than an equivalent basal area in larger trees,
per acre; or
' (c) On Cubic Foot Site Class VI, fewer than 15 11-inch DBH
trees or less than an equivalent basal area in larger trees, per
acre.
' (10) 'Harvest type 3' means an operation that requires
reforestation and requires wildlife leave trees. This represents
a level of stocking below which the size of operations is limited
under ORS 527.740 and 527.750.
' (11) 'Landowner' means any individual, combination of
individuals, partnership, corporation or association of whatever
nature that holds an ownership interest in forestland, including
the state and any political subdivision thereof.
' (12) 'Operation' means any commercial activity relating to
the establishment, management or harvest of forest tree species
except as provided by the following:
' (a) The establishment, management or harvest of Christmas
trees, as defined in ORS 571.505, on land used solely for the
production of Christmas trees.
' (b) The establishment, management or harvest of hardwood
timber, including but not limited to hybrid cottonwood, that is:
' (A) Grown on land that has been prepared by intensive
cultivation methods and that is cleared of competing vegetation
for at least three years after tree planting;
' (B) Of a species marketable as fiber for inclusion in the
furnish for manufacturing paper products;
' (C) Harvested on a rotation cycle that is 12 or fewer years
after planting; and
' (D) Subject to intensive agricultural practices such as
fertilization, cultivation, irrigation, insect control and
disease control.
' (c) The establishment, management or harvest of trees
actively farmed or cultured for the production of agricultural
tree crops, including nuts, fruits, seeds and nursery stock.
' (d) The establishment, management or harvest of ornamental,
street or park trees within an urbanized area, as that term is
defined in ORS 221.010.
' (e) The management or harvest of juniper species conducted in
a unit of less than 120 contiguous acres within a single
ownership.
' (f) The establishment or management of trees intended to
mitigate the effects of agricultural practices on the environment
or fish and wildlife resources, such as trees that are
established or managed for windbreaks, riparian filters or shade
strips immediately adjacent to actively farmed lands.
' (g) The development of an approved land use change after
timber harvest activities have been completed and land use
conversion activities have commenced.
' (13) 'Operator' means any person, including a landowner or
timber owner, who conducts an operation.
' (14) 'Single ownership' means ownership by an individual,
partnership, corporation, limited liability company, trust,
holding company or other business entity, including the state or
any political subdivision thereof. Single ownership includes
ownership held under different names or titles where the same
individual or individuals, or their heirs or assigns, are
shareholders (other than those of public corporations whose stock
is traded on the open market), partners, business trustees or
officers, or otherwise have an interest in or are associated with
each property.
' (15) 'State Forester' means the State Forester or the duly
authorized representative of the State Forester.
' (16) 'Suitable hardwood seedlings' means any hardwood
seedling that will eventually yield logs or fiber, or both,
sufficient in size and quality for the production of lumber,
plywood, pulp or other forest products.
' (17) 'Timber owner' means any individual, combination of
individuals, partnership, corporation or association of whatever
nature, other than a landowner, that holds an ownership interest
in any forest tree species on forestland.
' (18) 'Visually sensitive corridor' means forestland extending
outward 150 feet, measured on the slope, from the outermost edge
of the roadway of a scenic highway referred to in ORS 527.755,
along both sides for the full length of the highway.
' (19) 'Wildlife leave trees' means trees or snags required to
be retained as described in ORS 527.676 (1).
' (20) 'Written plan' means a { - plan submitted - }
{ + document prepared + } by an operator, { - for written
approval by the State Forester, which - } { + timber owner or
landowner that + } describes how the operation { - will - }
{ + is planned to + } be conducted { - , including the means to
protect resource sites described in ORS 527.710 (3)(a) and
information required by ORS 527.745 and 527.750, if
applicable - } .
' { + SECTION 3. + } ORS 527.670 is amended to read:
' 527.670. (1) The State Board of Forestry shall designate the
types of operations for which notice shall be required under this
section.
' (2) The board shall determine by rule what types of
operations require a written plan { - to be approved by the
State Forester - } .
' (3)(a) The board's determination under subsection (2) of this
section shall require a written plan for operations:
' (A) Within one hundred feet of a stream determined by the
State Forester to be used by fish or for domestic use, unless the
board, by rule, provides that a written plan is not required
because the proposed operation will be conducted according to a
general vegetation retention prescription described in
administrative rule; { + or + }
' (B) Within three hundred feet of a resource site inventoried
pursuant to ORS 527.710 (3)(a) { - ; or - }
' { - (C) That will result in harvest type 3 in excess of 120
acres pursuant to ORS 527.750. - }
' { - (b) Plans submitted under paragraph (a)(C) of this
subsection are not subject to appeal under ORS 527.700 (3) - } .
' { - (c) - } { + (b) + } Notwithstanding paragraph (a) of
this subsection, written plans shall not be required for
operations conducted in accordance with a stewardship agreement
as described in ORS 527.662.
' (4) The distances set forth in subsection (3)(a)(A) and (B)
of this section are solely for the purpose of defining an area
within which a hearing may be requested under ORS 527.700 and not
the area to be protected by the board's rules adopted pursuant to
ORS 527.710 (3)(c).
' (5) For the purpose of determining the distances set forth in
subsection (3)(a)(A) and (B) of this section 'site' means the
specific resource site and not any additional buffer area.
' (6) An operator, timber owner or landowner, before commencing
an operation, shall notify the State Forester. The notification
shall be on forms provided by the State Forester and shall
include the name and address of the operator, timber owner and
landowner, the legal description of the operating area, and any
other information considered by the State Forester to be
necessary for the administration of the rules promulgated by the
board pursuant to ORS 527.710. Promptly upon receipt of such
notice, the State Forester shall send a copy of the notice to
whichever of the operator, timber owner or landowner did not
submit the notification. The State Forester shall send a copy of
notices involving chemical applications to persons within 10
miles of the chemical application who hold downstream surface
water rights pursuant to ORS chapter 537, if such a person has
requested that notification in writing. The board shall adopt
rules specifying the information to be contained in the notice.
All information filed with the State Forester pertaining to
chemical applications shall be public record.
' (7) An operator, timber owner or landowner, whichever filed
the original notification, shall notify the State Forester of any
subsequent change in the information contained in the
notification.
' (8) Within three working days of receipt of a notice or a
written plan filed under subsection (6) or (7) of this section,
the State Forester shall send a copy of the notice or written
plan to any person who requested of the State Forester in writing
that the person be sent copies of notice and written plan and who
has paid any applicable fee established by the State Forester for
such service. The State Forester may establish a fee for sending
copies of notices and written plans under this subsection not to
exceed the actual and reasonable costs. In addition, the State
Forester shall send a copy of the notification to the Department
of Revenue and the county assessor for the county in which the
operation is located, at times and in a manner determined through
written cooperative agreement by the parties involved.
' (9) Persons may submit written comments pertaining to the
operation to the State Forester within 14 calendar days of the
date the notice or written plan was filed with the State Forester
under subsection (2), (6) or (7) of this section. Notwithstanding
the provisions of this subsection, the State Forester may waive
any waiting period for operations not requiring a written plan
under subsection (3) of this section, except those operations
involving aerial application of chemicals.
' { - (10) Whenever an operator, timber owner or landowner is
required to submit a written plan of operations to the State
Forester under subsection (3)(a)(A) or (B) of this section, the
State Forester shall not approve any such written plan until 14
calendar days following the date the written plan was filed with
the State Forester. An operation may commence upon approval of
the written plan. - }
' { - (11)(a) The State Forester shall issue a decision on a
written plan within five working days after the end of the 14-day
period described in subsection (10) of this section. - }
' { - (b) If the State Forester fails to issue a decision
within five working days after the end of the 14-day period
described in subsection (10) of this section, the written plan
shall be deemed approved and the operation may be commenced. - }
{ +
' (10) If an operator, timber owner or landowner is required to
submit a written plan of operations to the State Forester under
subsection (3)(a) of this section:
' (a) The State Forester shall review a written plan and may
provide comments to the person who submitted the written plan;
' (b) The State Forester may not provide any comments
concerning the written plan earlier than 14 calendar days
following the date that the written plan was filed with the State
Forester nor later than 21 calendar days following the date that
the written plan was filed; and
' (c) Provided that notice has been provided as required by
subsection (6) of this section, the operation may commence on the
date that the State Forester provides comments or, if no comments
are provided within the time period established in paragraph (b)
of this subsection, at any time after 21 calendar days following
the date that the written plan was filed.
' (11)(a) Comments provided by the State Forester, or by the
board under ORS 527.700 (6), to the person who submitted the
written plan are for the sole purpose of providing advice to the
operator, timber owner or landowner regarding whether the
operation described in the written plan is likely to comply with
ORS 527.610 to 527.770 and rules adopted thereunder. Comments
provided by the State Forester or the board do not constitute an
approval of the written plan or operation.
' (b) If the State Forester or the board does not comment on a
written plan, the failure to comment does not mean that an
operation carried out in conformance with the written plan
complies with ORS 527.610 to 527.770 or rules adopted thereunder
nor does the failure to comment constitute a rejection of the
written plan or operation.
' (c) In the event that the State Forester or board determines
that an enforcement action may be appropriate concerning the
compliance of a particular operation with ORS 527.610 to 527.770
or rules adopted thereunder, the State Forester or board shall
consider, but are not bound by, comments that the State Forester
provided under this section or comments that the board provided
under ORS 527.700. + }
' (12) When the operation is required to have a written plan
under subsection { - (3)(a)(A) or (B) - } { + (3) + } of this
section and comments have been timely filed under subsection (9)
of this section pertaining to the operation requiring a written
plan, the State Forester shall:
' (a) Send a copy of the { - approved written plan - }
{ + State Forester's review and comments, if any, + } to persons
who submitted timely written comments under subsection (9) of
this section pertaining to the operation; and
' (b) Send to the operator, timber owner and landowner a copy
of { - the approved written plan and copies of - } all timely
comments submitted under subsection (9) of this section.
' { + SECTION 4. + } ORS 527.700 is amended to read:
' 527.700. (1) Any operator, timber owner or landowner affected
by any finding or order of the State Forester issued under ORS
527.610 to 527.770 and 527.992 may request a hearing within 30
days after issuance of the order. The hearing shall be commenced
within 14 days after receipt of the request for hearing and a
final order shall be issued within 28 days of the request for the
hearing unless all parties agree to an extension of the time
limit.
' (2) The State Board of Forestry may delegate to the hearing
officer the authority to issue final orders on matters under this
section. Hearings provided under this section shall be conducted
as contested case hearings under ORS 183.413 to 183.470. The
board may establish such rules as it deems appropriate to carry
out the provisions of this section. Appeals from final hearing
orders under this section shall be provided in ORS 183.482 { + ,
except that the comments of the board or the State Forester
concerning a written plan are not reviewable orders under ORS
183.480 + }.
' (3) Any person adversely affected or aggrieved by an
operation described in subsection (4) of this section may file a
written request to the board for a hearing if the person
submitted written comments pertaining to the operation within the
time limits established under ORS 527.670 (9).
' (4) A request for hearing may be filed under subsection (3)
of this section only if a written plan was required pursuant to
ORS 527.670 (3).
' (5) A request for hearing filed under subsection (3) of this
section shall be filed within 14 calendar days of the date the
{ - written plan was approved - } { + State Forester completed
review of the written plan and issued any comments + }. Copies of
the complete request shall be served, within the 14-day period,
on the operator, timber owner and landowner. The request shall
include:
' (a) A copy of the written plan on which the person is
requesting a hearing;
' (b) A copy of the comments pertaining to the operation that
were filed by the person requesting the hearing;
' (c) A statement that shows the person is adversely affected
or aggrieved by the operation and has an interest which is
addressed by the Oregon Forest Practices Act or rules adopted
thereunder; and
' (d) A statement of facts that establishes that the operation
is of the type described in ORS 527.670 (3).
' (6) If the board finds that the person making the request
meets the requirement of subsection (5)(c) of this section, the
board shall set the matter for hearing within { - 14 - }
{ + 21 + } calendar days after receipt of the request for
hearing. The operator, timber owner and landowner shall be
allowable parties to the hearing. The person requesting the
hearing may raise, in the hearing, only those issues that the
person raised in written comments filed under ORS 527.670 (9)
relating to conformity with the rules of the board. { - A final
order shall be issued rescinding, affirming or modifying - }
{ + The board shall issue its own comments, which may affirm,
modify or rescind comments of the State Forester, if any, on + }
the written plan within { - 28 - } { + 45 + } days after the
request for hearing was filed, unless all parties agree to an
extension of the time limit. { + The comments of the board or of
the State Forester concerning a written plan are not reviewable
orders under ORS 183.480. + }
' (7) The board may award reasonable attorney fees and expenses
to each of the prevailing parties against any other party who the
board finds presented a position without probable cause to
believe the position was well-founded, or made a request
primarily for a purpose other than to secure appropriate action
by the board.
' (8)(a) Upon the written request of a person requesting a
hearing under subsection (3) of this section, a stay of the
operation subject to the hearing may be granted upon a showing
that:
' (A) Commencement or continuation of the operation will
constitute a violation of the rules of the board;
' (B) The person requesting the stay will suffer irreparable
injury if the stay is not granted; and
' (C) The requirements of subsections (3), (4) and (5) of this
section are met.
' (b) If the board grants the stay, it shall require the person
requesting the stay to give an undertaking which may be in the
amount of the damages potentially resulting from the stay, but in
any event shall not be less than $15,000. The board may impose
other reasonable requirements pertaining to the grant of the
stay. The board shall limit the effect of the stay to the
specific geographic area or elements of the operation for which
the person requesting the stay has demonstrated a violation of
the rules and irreparable injury under paragraph (a) of this
subsection.
' (c) If the board { - affirms - } { + determines in its
comments that + } the written plan pertaining to the operation
for which the stay was granted { + is likely to result in
compliance with ORS 527.610 to 527.770 or the rules of the
board + }, the board { - shall - } { + may + } award
reasonable attorney fees and actual damages in favor of each of
the prevailing parties, to the extent incurred by each, against
the person requesting the stay.
' (9) If the board { - disapproves or changes - }
{ + rescinds or modifies the comments on + }the written plan as
submitted { - and approved - } by the State Forester
pertaining to any operation, the board { - shall - }
{ + may + } award reasonable attorney fees and costs against the
state in favor of each of the prevailing parties.
' (10) As used in this section, 'person' means any individual,
partnership, corporation, association, governmental subdivision
or public or private organization of any character.
' { + SECTION 5. + } ORS 527.750 is amended to read:
' 527.750. (1) Notwithstanding the requirements of ORS 527.740,
a harvest type 3 unit within a single ownership that exceeds 120
acres but does not exceed 240 acres may be approved by the State
Forester if all the requirements of this section and any
additional requirements established by the State Board of
Forestry are met. Proposed harvest type 3 units that are within
300 feet of the perimeter of a prior harvest type 3 unit, and
that would result in a total combined harvest type 3 area under a
single ownership exceeding 120 acres but not exceeding 240 acres,
may be approved by the State Forester if the additional
requirements are met for the combined area. No harvest type 3
unit within a single ownership shall exceed 240 contiguous acres.
No harvest type 3 unit shall be allowed within 300 feet of the
perimeter of a prior harvest type 3 unit within a single
ownership if the combined acreage of the areas subject to
regulation under the Oregon Forest Practices Act would exceed 240
acres, unless the prior harvest type 3 unit has been reforested
by all applicable regulations and:
' (a) At least the minimum tree stocking required by rule is
established per acre; and either
' (b) The resultant stand of trees has attained an average
height of at least four feet; or
' (c) At least 48 months have elapsed since the stand was
created and it is 'free to grow' as defined by the board.
' (2) The requirements of this section are in addition to all
other requirements of the Oregon Forest Practices Act and the
rules adopted thereunder. The requirements of this section shall
be applied in lieu of such other requirements only to the extent
the requirements of this section are more stringent. Nothing in
this section shall apply to operations conducted under ORS
527.740 (4) or (5).
' (3) The board shall require that a { - written - } plan
{ + for an alternate practice + } be submitted prior to approval
of a harvest type 3 operation under this section. The board may
establish by rule any additional standards applying to operations
under this section.
' (4) The State Forester shall approve the harvest type 3
operation if the proposed operation would provide better overall
results in meeting the requirements and objectives of the Oregon
Forest Practices Act.
' (5) The board shall specify by rule the information to be
submitted for approval of harvest type 3 operations under this
section, including evidence of past satisfactory compliance with
the Oregon Forest Practices Act.
' { + SECTION 6. + } ORS 527.992 is amended to read:
' 527.992. (1) In addition to any other penalty provided by
law, any person who fails to comply with any of the following may
incur a civil penalty in the amount adopted under ORS 527.685:
' (a) The requirements of ORS 527.670, 527.676, 527.740,
527.750 or 527.755.
' (b) The terms or conditions of any order of the State
Forester issued in accordance with ORS 527.680.
' (c) Any rule or standard of the State Board of Forestry
adopted or issued pursuant to ORS 527.710.
' (d) Any term or condition of a written waiver, or prior
approval granted by { - , or of a written plan of operation
accepted by - } the State Forester pursuant to the rules adopted
under ORS 527.710.
' (2) Imposition or payment of a civil penalty under this
section shall not be a bar to actions alleging trespass under ORS
105.810, nor to actions under ORS 161.635 or 161.655 seeking to
recover an amount based on the gain resulting from individual or
corporate criminal violations.
' { + 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
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 358.480 to 358.545, 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 and 541.700 to 541.990;
' (g) Federal Safe Drinking Water Act programs administered by
the Department of Human Services 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;
' (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
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) - } { + (10) + } 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.
' { + SECTION 8. + } ORS 195.260 is amended to read:
' 195.260. (1) In order to reduce the risk of serious bodily
injury or death resulting from rapidly moving landslides, a local
government:
' (a) Shall exercise all available authority to protect the
public during emergencies, consistent with ORS 401.015.
' (b) May require a geotechnical report and, if a report is
required, shall provide for a coordinated review of the
geotechnical report by the State Department of Geology and
Mineral Industries or the State Forestry Department, as
appropriate, before issuing a building permit for a site in a
further review area.
' (c) Except those structures exempt from building codes under
ORS 455.310 and 455.315, shall regulate through mitigation
measures and site development standards the siting of dwellings
and other structures designed for human occupancy, including
those being restored under ORS 215.130 (6), in further review
areas where there is evidence of substantial risk for rapidly
moving landslides. All final decisions under this paragraph and
paragraph (b) of this subsection are the responsibility of the
local government with jurisdiction over the site. A local
government may not delegate such final decisions to any state
agency.
' (d) Shall maintain a record, available to the public, of
properties for which a geotechnical report has been prepared
within the jurisdiction of the local government.
' (2) A landowner allowed a building permit under subsection
(1)(c) of this section shall sign a statement that shall:
' (a) Be recorded with the county clerk of the county in which
the property is located, in which the landowner acknowledges that
the landowner may not in the future bring any action against an
adjacent landowner about the effects of rapidly moving landslides
on or adjacent to the landowner's property; and
' (b) Record in the deed records for the county where the lot
or parcel is located a nonrevocable deed restriction that the
landowner signs and acknowledges, that contains a legal
description complying with ORS 93.600 and that prohibits any
present or future owner of the property from bringing any action
against an adjacent landowner about the effects of rapidly moving
landslides on or adjacent to the property.
' (3) Forest practice rules adopted under ORS 527.710
{ - (11) - } { + (10) + } shall not apply to risk situations
arising solely from the construction of a building permitted
under subsection (1)(c) of this section after October 23, 1999.
' (4) The following state agencies shall implement the
following specific responsibilities to reduce the risk of serious
bodily injury or death resulting from rapidly moving landslides:
' (a) The State Department of Geology and Mineral Industries
shall:
' (A) Identify and map further review areas selected in
cooperation with local governments and in coordination with the
State Forestry Department, and provide technical assistance to
local governments to facilitate the use and application of this
information pursuant to subsection (1)(b) of this section; and
' (B) Provide public education regarding landslide hazards.
' (b) The State Forestry Department shall regulate forest
operations to reduce the risk of serious bodily injury or death
from rapidly moving landslides directly related to forest
operations, and assist local governments in the siting review of
permanent dwellings on and adjacent to forestlands in further
review areas pursuant to subsection (1)(b) of this section.
' (c) The Land Conservation and Development Commission may take
steps under its existing authority to assist local governments to
appropriately apply the requirements of subsection (1)(c) of this
section.
' (d) The Department of Transportation shall provide warnings
to motorists during periods determined to be of highest risk of
rapidly moving landslides along areas on state highways with a
history of being most vulnerable to rapidly moving landslides.
' (e) The Office of Emergency Management of the Department of
State Police shall coordinate state resources for rapid and
effective response to landslide-related emergencies.
' (5) Notwithstanding any other provision of law, any state or
local agency adopting rules related to the risk of serious bodily
injury or death from rapidly moving landslides shall do so only
in conformance with the policies and provisions of ORS 195.250 to
195.270.
' (6) No state or local agency may adopt or enact any rule or
ordinance for the purpose of reducing risk of serious bodily
injury or death from rapidly moving landslides that limits the
use of land that is in addition to land identified as a further
review area by the State Department of Geology and Mineral
Industries or the State Forestry Department pursuant to
subsection (4) of this section.
' (7) Except as provided in ORS 527.710 or in Oregon's ocean
and coastal land use planning goals, no state agency may adopt
criteria regulating activities for the purpose of reducing risk
of serious bodily injury or death from rapidly moving landslides
on lands subject to the provisions of ORS 195.250 to 195.270 that
are more restrictive than the criteria adopted by a local
government pursuant to subsection (1)(c) of this section.
' { + SECTION 9. + } ORS 527.630 is amended to read:
' 527.630. (1) Forests make a vital contribution to Oregon by
providing jobs, products, tax base and other social and economic
benefits, by helping to maintain forest tree species, soil, air
and water resources and by providing a habitat for wildlife and
aquatic life. Therefore, it is declared to be the public policy
of the State of Oregon to encourage economically efficient forest
practices that ensure the continuous growing and harvesting of
forest tree species and the maintenance of forestland for such
purposes as the leading use on privately owned land, consistent
with sound management of soil, air, water, fish and wildlife
resources and scenic resources within visually sensitive
corridors as provided in ORS 527.755 and to ensure the continuous
benefits of those resources for future generations of Oregonians.
' (2) It is recognized that operations on forestland are
already subject to other laws and to regulations of other
agencies which deal primarily with consequences of such
operations rather than the manner in which operations are
conducted. It is further recognized that it is essential to avoid
uncertainty and confusion in enforcement and implementation of
such laws and regulations and in planning and carrying out
operations on forestlands.
' (3) To encourage forest practices implementing the policy of
ORS 527.610 to 527.770 and 527.990 and 527.992, it is declared to
be in the public interest to vest in the State Board of Forestry
exclusive authority to develop and enforce statewide and regional
rules pursuant to ORS 527.710 and to coordinate with other state
agencies and local governments which are concerned with the
forest environment.
' (4) The board may adopt and enforce rules addressing scenic
considerations only in accordance with ORS 527.755.
' (5) The board shall adopt and enforce forest practice rules
to reduce the risk of serious bodily injury or death from a
rapidly moving landslide only in accordance with ORS 527.710
{ - (11) - } { + (10) + }. As used in this subsection,
'rapidly moving landslide' has the meaning given in ORS 195.250.
' (6) The State of Oregon should provide a stable regulatory
environment to encourage investment in private forestlands.
' { + SECTION 10. + } ORS 527.714 is amended to read:
' 527.714. (1) The rulemaking authority of the State Board of
Forestry under ORS 527.610 to 527.770 consists generally of the
following three types of rules:
' (a) Rules adopted to implement administration, procedures or
enforcement of ORS 527.610 to 527.770 that support but do not
directly regulate standards of forest practices.
' (b) Rules adopted to provide definitions or procedures for
forest practices where the standards are set in statute.
' (c) Rules adopted to implement the provisions of ORS 527.710
(2), (3), (6), (8), (9) { - , (10) and (11) - } { + and
(10) + } that grant broad discretion to the board and that set
standards for forest practices not specifically addressed in
statute.
' (2) When considering the adoption of a rule, and prior to the
notice required pursuant to ORS 183.335, the board shall
determine which type of rule described in subsection (1) of this
section is being considered.
' (3) If the board determines that a proposed rule is of the
type described in subsection (1)(a) or (b) of this section, or if
the proposed rule is designed only to clarify the meaning of
rules already adopted or to make minor adjustments to rules
already adopted that are of the type described in subsection
(1)(c) of this section, rulemaking may proceed in accordance with
ORS 183.325 to 183.410 and is not subject to the provisions of
this section.
' (4) If the board determines that a proposed rule is of the
type described in subsection (1)(c) of this section, and the
proposed rule would change the standards for forest practices,
the board shall describe in its rule the purpose of the rule and
the level of protection that is desired.
' (5) If the board determines that a proposed rule is of the
type described in subsection (1)(c) of this section, including a
proposed amendment to an existing rule not qualifying under
subsection (3) of this section, and the proposed rule would
provide new or increased standards for forest practices, the
board may adopt such a rule only after determining that the
following facts exist and standards are met:
' (a) If forest practices continue to be conducted under
existing regulations, there is monitoring or research evidence
that documents that degradation of resources maintained under ORS
527.710 (2) or (3) is likely, or in the case of rules proposed
under ORS 527.710 { - (11) - } { + (10) + }, that there is a
substantial risk of serious bodily injury or death;
' (b) If the resource to be protected is a wildlife species,
the scientific or biological status of a species or resource site
to be protected by the proposed rule has been documented using
best available information;
' (c) The proposed rule reflects available scientific
information, the results of relevant monitoring and, as
appropriate, adequate field evaluation at representative
locations in Oregon;
' (d) The objectives of the proposed rule are clearly defined,
and the restrictions placed on forest practices as a result of
adoption of the proposed rule:
' (A) Are to prevent harm or provide benefits to the resource
or resource site for which protection is sought, or in the case
of rules proposed under ORS 527.710 { - (11) - } { +
(10) + }, to reduce risk of serious bodily injury or death; and
' (B) Are directly related to the objective of the proposed
rule and substantially advance its purpose;
' (e) The availability, effectiveness and feasibility of
alternatives to the proposed rule, including nonregulatory
alternatives, were considered, and the alternative chosen is the
least burdensome to landowners and timber owners, in the
aggregate, while still achieving the desired level of protection;
and
' (f) The benefits to the resource, or in the case of rules
proposed under ORS 527.710 { - (11) - } { + (10) + }, the
benefits in reduction of risk of serious bodily injury or death,
that would be achieved by adopting the rule are in proportion to
the degree that existing practices of the landowners and timber
owners, in the aggregate, are contributing to the overall
resource concern that the proposed rule is intended to address.
' (6) Nothing in subsection (5) of this section:
' (a) Requires the board to call witnesses;
' (b) Requires the board to allow cross-examination of
witnesses;
' (c) Restricts ex parte communications with the board or
requires the board to place statements of such communications on
the record;
' (d) Requires verbatim transcripts of records of proceedings;
or
' (e) Requires depositions, discovery or subpoenas.
' (7) If the board determines that a proposed rule is of the
type described in subsection (1)(c) of this section, and the
proposed rule would require new or increased standards for forest
practices, as part of or in addition to the economic and fiscal
impact statement required by ORS 183.335 (2)(b)(E), the board
shall, prior to the close of the public comment period, prepare
and make available to the public a comprehensive analysis of the
economic impact of the proposed rule. The analysis shall include,
but is not limited to:
' (a) An estimate of the potential change in timber harvest as
a result of the rule;
' (b) An estimate of the overall statewide economic impact,
including a change in output, employment and income;
' (c) An estimate of the total economic impact on the forest
products industry and common school and county forest trust land
revenues, both regionally and statewide; and
' (d) Information derived from consultation with potentially
affected landowners and timber owners and an assessment of the
economic impact of the proposed rule under a wide variety of
circumstances, including varying ownership sizes and the
geographic location and terrain of a diverse subset of
potentially affected forestland parcels.
' (8) The provisions of this section do not apply to temporary
rules adopted by the board.
' { + SECTION 11. + } { + The amendments to ORS 183.560,
195.260, 527.620, 527.630, 527.670, 527.700, 527.710, 527.714,
527.750 and 527.992 by sections 1 to 10 of this 2003 Act apply to
plans submitted to the State Forester on or after the effective
date of this 2003 Act. + }
' { + SECTION 12. + } { + Section 13 of this 2003 Act is
added to and made a part of ORS 527.610 to 527.770. + }
' { + SECTION 13. + } { + The State Board of Forestry may
not adopt or enforce a rule under ORS 527.610 to 527.770 that
requires that the board or the State Forester approve written
plans as a required precedent to conducting a forest practice or
operation. + }
' { + SECTION 14. + } { + (1) If a rule adopted by the State
Board of Forestry prior to the effective date of this 2003 Act
requires prior approval of a written plan, the requirement for
prior approval is void. Written plans submitted under such a
requirement shall be reviewed under ORS 183.560, 195.260,
527.620, 527.630, 527.670, 527.700, 527.710, 527.714, 527.750 and
527.992 as amended by sections 1 to 10 of this 2003 Act.
' (2) Notwithstanding subsection (1) of this section, any
substantive standard contained within a rule described in
subsection (1) of this section that governs the conduct of forest
practices remains enforceable under ORS 527.680, 527.683,
527.685, 527.687, 527.690, 527.990 and 527.992. + }
' { + SECTION 15. + } { + Notwithstanding the requirements
of ORS 527.714, the State Board of Forestry shall adopt rules to
implement sections 13 and 14 of this 2003 Act and the amendments
to ORS 195.260, 527.620, 527.630, 527.670, 527.700, 527.710,
527.714, 527.750 and 527.992 by sections 2 to 10 of this 2003
Act. Rules adopted pursuant to this section shall be adopted no
later than July 1, 2005. + }
' { + SECTION 16. + } { + This 2003 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2003 Act
takes effect on its passage. + } ' .
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