Chapter 608 Oregon Laws 2007

AN ACT

HB 2114

Relating to stewardship agreements; creating new provisions; amending ORS 192.501, 527.670, 541.381 and 541.423; and appropriating money.

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

STEWARDSHIP AGREEMENT GRANT FUND

SECTION 1. (1) The Stewardship Agreement Grant Fund is established separate and distinct from the General Fund. The Stewardship Agreement Grant Fund shall consist of all moneys placed in the fund as provided by law. All moneys in the Stewardship Agreement Grant Fund are continuously appropriated to the State Board of Forestry to provide grants to carry out the purposes of stewardship agreements described in ORS 541.423. Interest accruing to the Stewardship Agreement Grant Fund shall be credited to the fund. Funds appropriated and not expended by the completion of a biennium shall remain in the Stewardship Agreement Grant Fund.

(2) The State Board of Forestry shall administer the Stewardship Agreement Grant Fund and provide grants from the fund to landowners who have entered into stewardship agreements for the purposes described in ORS 541.423.

(3) In addition to the funds made available for the purposes of ORS 541.423, the board also may accept gifts and grants from any public or private source for the purpose of providing the grants described in subsection (2) of this section.

SECTION 2. The State Board of Forestry may award funds from the Stewardship Agreement Grant Fund only for the purposes described in section 1 of this 2007 Act. Any projects that the board approves for funding must comply with the following criteria:

(1) There must be matching contribution from other program funds, in-kind services or other investment in the project; and

(2) The project must provide a public benefit through improved water quality or improved fish or wildlife habitat.

FLEXIBLE INCENTIVES ACCOUNT

SECTION 3. ORS 541.381 is amended to read:

541.381. (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 Flexible Incentives 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. The account may also be used to fund activities to achieve the purposes of stewardship agreements entered into under ORS 541.423 between a landowner, or a representative of the landowner, and the State Department of Agriculture or the State Board of Forestry.

(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.

STEWARDSHIP AGREEMENTS

SECTION 4. ORS 541.423 is amended to read:

541.423. (1) As used in this section, “stewardship agreement” means an agreement voluntarily entered into and signed by a landowner, or representative of the landowner, and the State Department of Agriculture or the State Board of Forestry that sets forth the terms under which the landowner will self-regulate to meet and exceed applicable regulatory requirements and achieve conservation, restoration and improvement of fish and wildlife habitat or water quality.

(2) The State Department of Agriculture and the State Board of Forestry may, individually or jointly, enter into stewardship agreements with landowners.

(3) The purposes of a stewardship agreement are to provide:

(a) An incentive for landowners to provide for conservation, restoration and improvement of fish and wildlife habitat or water quality;

(b) A mechanism to coordinate, facilitate and memorialize a landowner’s compliance with the requirements of state and federal regulatory schemes; and

(A) Improve the delivery of financial and technical assistance to landowners engaged in conservation activities;

(B) Reduce redundancy among programs;

(D) Leverage the investment of federal funds;

(E) Make more efficient use of technical assistance funds;

(F) Provide greater incentives for landowners;

(G) Foster partnerships and improve cooperation with nongovernmental organizations;

(H) Provide greater environmental benefits;

(I) Tailor and more effectively target conservation programs administered by federal, state and local governments to the unique conservation needs of, and opportunities presented by, individual parcels of eligible land; and

(J) Give landowners an increased level of regulatory certainty.

(4) The State Board of Forestry and the State Department of Agriculture, in consultation with the State Department of Fish and Wildlife, shall adopt by rule procedures and criteria for stewardship agreements. The procedures and criteria shall include, but need not be limited to:

(a) The certification of a land management plan which shall, at a minimum, include:

(A) A comprehensive description and inventory of the subject property, its features and uses; and

(B) A prescription for the protection of resources that exceeds land management practices, standards and activities otherwise required by law and that is designed to achieve conservation, restoration and improvement of fish and wildlife habitat or water quality.

(b) A requirement that each landowner subject to a stewardship agreement demonstrate a clear capability to carry out the provisions of the land management plan and have a past record of good compliance with applicable laws and regulations regarding land use and management.

(5) Each government agency that is a party to a stewardship agreement shall conduct periodic audits on lands subject to the stewardship agreement to determine whether the land management plan is being implemented and whether the agreement should be continued, revised or discontinued.

(6) Stewardship agreements may provide benefits to landowners that include, but are not limited to:

(a) Expedited permit processing;

(b) Regulatory certainty;

(d) Government certification that certain land management practices have been implemented.

(7) Within a stewardship agreement and on a case-by-case basis, the State Department of Agriculture or the State Board of Forestry may provide a landowner with an increased level of regulatory certainty regarding state rules. The stewardship agreement may identify specific voluntary landowner actions that exceed regulatory requirements. In return, the State Department of Agriculture or the State Board of Forestry may agree to exempt the landowner from future changes to a specific rule.

(8) The State Department of Agriculture and the State Board of Forestry may, individually or jointly, make a binding determination that activities undertaken by a particular landowner, or a representative of the landowner, as part of a stewardship agreement are consistent with the purposes and policies of any relevant Safe Harbor Agreements or Candidate Conservation Agreements entered into between the State of Oregon and agencies of the United States Government, pursuant to the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et seq.) and federal regulations.

FOREST PRACTICES ACT - WRITTEN

PLAN REQUIREMENT

SECTION 5. 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.

(3) 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 unless the operation will be conducted pursuant to a stewardship agreement entered into under ORS 541.423; or

(b) Within three hundred feet of a resource site inventoried pursuant to ORS 527.710 (3)(a) unless the operation will be conducted pursuant to a stewardship agreement entered into under ORS 541.423 and is consistent with the purposes and policies of any relevant Safe Harbor Agreements or Candidate Conservation Agreements entered into between the State of Oregon and agencies of the United States Government, pursuant to the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et seq.) and federal regulations.

(4) The distances set forth in subsection (3)(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) 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) If an operator, timber owner or landowner is required to submit a written plan of operations to the State Forester under subsection (3) 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) 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 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 all timely comments submitted under subsection (9) of this section.

PUBLIC RECORDS EXEMPTION

SECTION 6. ORS 192.501 is amended to read:

192.501. The following public records are exempt from disclosure under ORS 192.410 to 192.505 unless the public interest requires disclosure in the particular instance:

(1) Records of a public body pertaining to litigation to which the public body is a party if the complaint has been filed, or if the complaint has not been filed, if the public body shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded, and nothing in this subsection shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation;

(2) Trade secrets. “Trade secrets,” as used in this section, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within an organization and which is used in a business it conducts, having actual or potential commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it;

(3) Investigatory information compiled for criminal law purposes. The record of an arrest or the report of a crime shall be disclosed unless and only for so long as there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim. Nothing in this subsection shall limit any right constitutionally guaranteed, or granted by statute, to disclosure or discovery in criminal cases. For purposes of this subsection, the record of an arrest or the report of a crime includes, but is not limited to:

(a) The arrested person’s name, age, residence, employment, marital status and similar biographical information;

(b) The offense with which the arrested person is charged;

(d) The identity of and biographical information concerning both complaining party and victim;

(e) The identity of the investigating and arresting agency and the length of the investigation;

(f) The circumstances of arrest, including time, place, resistance, pursuit and weapons used; and

(g) Such information as may be necessary to enlist public assistance in apprehending fugitives from justice;

(4) Test questions, scoring keys, and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given and if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure are included in this exemption, to the extent that disclosure would create a risk that the result might be affected;

(5) Information consisting of production records, sale or purchase records or catch records, or similar business records of a private concern or enterprise, required by law to be submitted to or inspected by a governmental body to allow it to determine fees or assessments payable or to establish production quotas, and the amounts of such fees or assessments payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. This exemption does not include records submitted by long term care facilities as defined in ORS 442.015 to the state for purposes of reimbursement of expenses or determining fees for patient care. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding;

(6) Information relating to the appraisal of real estate prior to its acquisition;

(7) The names and signatures of employees who sign authorization cards or petitions for the purpose of requesting representation or decertification elections;

(8) Investigatory information relating to any complaint filed under ORS 659A.820 or 659A.825, until such time as the complaint is resolved under ORS 659A.835, or a final order is issued under ORS 659A.850;

(9) Investigatory information relating to any complaint or charge filed under ORS 243.676 and 663.180;

(10) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services under ORS 697.732;

(11) Information concerning the location of archaeological sites or objects as those terms are defined in ORS 358.905, except if the governing body of an Indian tribe requests the information and the need for the information is related to that Indian tribe’s cultural or religious activities. This exemption does not include information relating to a site that is all or part of an existing, commonly known and publicized tourist facility or attraction;

(12) A personnel discipline action, or materials or documents supporting that action;

(13) Information developed pursuant to ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100, regarding the habitat, location or population of any threatened species or endangered species;

(14) Writings prepared by or under the direction of faculty of public educational institutions, in connection with research, until publicly released, copyrighted or patented;

(15) Computer programs developed or purchased by or for any public body for its own use. As used in this subsection, “computer program” means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from such computer system, and any associated documentation and source material that explain how to operate the computer program. “Computer program” does not include:

(a) The original data, including but not limited to numbers, text, voice, graphics and images;

(b) Analyses, compilations and other manipulated forms of the original data produced by use of the program; or

(c) The mathematical and statistical formulas which would be used if the manipulated forms of the original data were to be produced manually;

(16) Data and information provided by participants to mediation under ORS 36.256;

(17) Investigatory information relating to any complaint or charge filed under ORS chapter 654, until a final administrative determination is made or, if a citation is issued, until an employer receives notice of any citation;

(18) Specific operational plans in connection with an anticipated threat to individual or public safety for deployment and use of personnel and equipment, prepared or used by a public body, if public disclosure of the plans would endanger an individual’s life or physical safety or jeopardize a law enforcement activity;

(19)(a) Audits or audit reports required of a telecommunications carrier. As used in this paragraph, “audit or audit report” means any external or internal audit or audit report pertaining to a telecommunications carrier, as defined in ORS 133.721, or pertaining to a corporation having an affiliated interest, as defined in ORS 759.390, with a telecommunications carrier that is intended to make the operations of the entity more efficient, accurate or compliant with applicable rules, procedures or standards, that may include self-criticism and that has been filed by the telecommunications carrier or affiliate under compulsion of state law. “Audit or audit report” does not mean an audit of a cost study that would be discoverable in a contested case proceeding and that is not subject to a protective order; and

(b) Financial statements. As used in this paragraph, “financial statement” means a financial statement of a nonregulated corporation having an affiliated interest, as defined in ORS 759.390, with a telecommunications carrier, as defined in ORS 133.721;

(20) The residence address of an elector if authorized under ORS 247.965 and subject to ORS 247.967;

(21) The following records, communications and information submitted to a housing authority as defined in ORS 456.005, or to an urban renewal agency as defined in ORS 457.010, by applicants for and recipients of loans, grants and tax credits:

(a) Personal and corporate financial statements and information, including tax returns;

(b) Credit reports;

(d) Market studies and analyses;

(e) Articles of incorporation, partnership agreements and operating agreements;

(f) Commitment letters;

(g) Project pro forma statements;

(h) Project cost certifications and cost data;

(i) Audits;

(j) Project tenant correspondence requested to be confidential;

(k) Tenant files relating to certification; and

(L) Housing assistance payment requests;

(22) Records or information that, if disclosed, would allow a person to:

(a) Gain unauthorized access to buildings or other property;

(b) Identify those areas of structural or operational vulnerability that would permit unlawful disruption to, or interference with, services; or

(c) Disrupt, interfere with or gain unauthorized access to public funds or to information processing, communication or telecommunication systems, including the information contained in the systems, that are used or operated by a public body;

(23) Records or information that would reveal or otherwise identify security measures, or weaknesses or potential weaknesses in security measures, taken or recommended to be taken to protect:

(a) An individual;

(b) Buildings or other property;

(c) Information processing, communication or telecommunication systems, including the information contained in the systems; or

(d) Those operations of the Oregon State Lottery the security of which are subject to study and evaluation under ORS 461.180 (6);

(24) Personal information held by or under the direction of officials of the Oregon Health and Science University or the Oregon University System about a person who has or who is interested in donating money or property to the university, the system or a state institution of higher education, if the information is related to the family of the person, personal assets of the person or is incidental information not related to the donation;

(25) The home address, professional address and telephone number of a person who has or who is interested in donating money or property to the Oregon University System;

(26) Records of the name and address of a person who files a report with or pays an assessment to a commodity commission established under ORS 576.051 to 576.455, the Oregon Beef Council created under ORS 577.210 or the Oregon Wheat Commission created under ORS 578.030;

(27) Information provided to, obtained by or used by a public body to authorize, originate, receive or authenticate a transfer of funds, including but not limited to a credit card number, payment card expiration date, password, financial institution account number and financial institution routing number;

(28) Social Security numbers as provided in ORS 107.840;

(29) The electronic mail address of a student who attends a state institution of higher education listed in ORS 352.002 or Oregon Health and Science University; and

(30) The name, home address, professional address or location of a person that is engaged in, or that provides goods or services for, medical research at Oregon Health and Science University that is conducted using animals other than rodents. This subsection does not apply to Oregon Health and Science University press releases, websites or other publications circulated to the general public.

(31) Land management plans required for voluntary stewardship agreements entered into under ORS 541.423.

SECTION 7. ORS 192.501, as amended by section 3, chapter 455, Oregon Laws 2005, is amended to read: