70th OREGON LEGISLATIVE ASSEMBLY--1999 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3911

                        Senate Bill 1111

Sponsored by Senator WILDE; Senators ADAMS, FISHER, GEORGE,
  SHANNON, TARNO, Representative BEYER


                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Repeals state provisions for protection of threatened or
endangered wildlife or plant species.

                        A BILL FOR AN ACT
Relating to protection of species; creating new provisions;
  amending ORS 192.501, 196.810, 465.315, 466.992, 496.705,
  498.321, 517.956 and 527.710; and repealing ORS 496.171,
  496.172, 496.176, 496.182, 496.192, 498.026, 498.301, 564.100,
  564.105, 564.110, 564.115, 564.120, 564.125, 564.130, 564.135
  and 564.994.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + ORS 496.171, 496.172, 496.176, 496.182,
496.192, 498.026, 498.301, 564.100, 564.105, 564.110, 564.115,
564.120, 564.125, 564.130, 564.135 and 564.994 are repealed. + }
  SECTION 2. 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;
  (c) The conditions of release pursuant to ORS 135.230 to
135.290;
  (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 659.040 or 659.045, until such time as the complaint is
resolved under ORS 659.050, or a final administrative
determination is made under ORS 659.060;
  (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) - }  { +  (13) + } Writings prepared by or under the
direction of faculty of public educational institutions, in
connection with research, until publicly released, copyrighted or
patented;
    { - (15) - }  { +  (14) + } 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) - }  { +  (15) + } Data and information provided by
participants to mediation under section 5, chapter 967, Oregon
Laws 1989;
    { - (17) - }  { +  (16) + } 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) - }  { +  (17) + } Specific operational plans in
connection with an anticipated threat to individual or public
safety for deployment and use of personnel and equipment,
prepared and used by a law enforcement agency, if public
disclosure thereof would endanger the life or physical safety of
a citizen or law enforcement officer or jeopardize the law
enforcement activity involved;
    { - (19) - }  { +  (18) + }(a) Audits or audit reports of a
telecommunications utility. As used in this paragraph, 'audit or
audit report of a telecommunications utility' means any external
or internal audit or audit report pertaining to a
telecommunications utility, as defined in ORS 759.005, or
pertaining to a corporation having an affiliated interest, as
defined in ORS 759.010, with a telecommunications utility 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 utility or affiliate under
compulsion of state law. 'Audit or audit report of a
telecommunications utility' 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.
  (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 759.010, with a telecommunications utility, as
defined in ORS 759.005; and
    { - (20) - }  { +  (19) + } The residence address of an
elector if authorized under ORS 247.965 and subject to ORS
247.967.
  SECTION 3. ORS 192.501, as amended by section 13, chapter 967,
Oregon Laws 1989, section 2, chapter 636, Oregon Laws 1991,
section 2, chapter 678, Oregon Laws 1991, section 5, chapter 616,
Oregon Laws 1993, section 2, chapter 787, Oregon Laws 1993, and
section 3, chapter 604, Oregon Laws 1995, 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;
  (c) The conditions of release pursuant to ORS 135.230 to
135.290;
  (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 659.040 or 659.045, until such time as the complaint is
resolved under ORS 659.050, or a final administrative
determination is made under ORS 659.060;
  (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) - }  { +  (13) + } Writings prepared by or under the
direction of faculty of public educational institutions, in
connection with research, until publicly released, copyrighted or
patented;
    { - (15) - }  { +  (14) + } 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) - }  { +  (15) + } 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;
    { - (17) - }  { +  (16) + } Specific operational plans in
connection with an anticipated threat to individual or public
safety for deployment and use of personnel and equipment,
prepared and used by a law enforcement agency, if public
disclosure thereof would endanger the life or physical safety of
a citizen or law enforcement officer or jeopardize the law
enforcement activity involved;
    { - (18) - }  { +  (17) + }(a) Audits or audit reports of a
telecommunications utility. As used in this paragraph, 'audit or
audit report of a telecommunications utility' means any external
or internal audit or audit report pertaining to a
telecommunications utility, as defined in ORS 759.005, or
pertaining to a corporation having an affiliated interest, as
defined in ORS 759.010, with a telecommunications utility 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 utility or affiliate under
compulsion of state law. 'Audit or audit report of a
telecommunications utility' 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.
  (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 759.010, with a telecommunications utility, as
defined in ORS 759.005; and
    { - (19) - }  { +  (18) + } The residence address of an
elector if authorized under ORS 247.965 and subject to ORS
247.967.
  SECTION 4.  { + Nothing in the amendments to ORS 192.501 by
section 2 or 3 of this 1999 Act affects the operative date
provisions of section 17, chapter 967, Oregon Laws 1989, as
amended by section 1, chapter 277, Oregon Laws 1995. + }
  SECTION 5. ORS 465.315 is amended to read:
  465.315. (1)(a) Any removal or remedial action performed under
the provisions of ORS 465.200 to 465.510 and 465.900 shall attain
a degree of cleanup of the hazardous substance and control of
further release of the hazardous substance that assures
protection of present and future public health, safety and
welfare and of the environment.
  (b) The Director of the Department of Environmental Quality
shall select or approve remedial actions that are protective of
human health and the environment. The protectiveness of a
remedial action shall be determined based on application of both
of the following:
  (A) The acceptable risk level for exposures. For protection of
humans, the acceptable risk level for exposure to individual
carcinogens shall be a lifetime excess cancer risk of one per one
million people exposed, and the acceptable risk level for
exposure to noncarcinogens shall be the exposure that results in
a Hazard Index number equal to or less than one. 'Hazard Index
number ' means a number equal to the sum of the noncarcinogenic
risks (hazard quotient) attributable to systemic toxicants with
similar toxic endpoints. For protection of ecological receptors,
if a release of hazardous substances causes or is reasonably
likely to cause significant adverse impacts to the health or
viability of a species listed as threatened or endangered
pursuant to 16 U.S.C.  1531 et seq.   { - or ORS 496.172 - } , or
a population of plants or animals in the locality of the
facility, the acceptable risk level shall be the point before
such significant adverse impacts occur.
  (B) A risk assessment undertaken in accordance with the risk
protocol established by the Environmental Quality Commission in
accordance with subsection (2)(a) of this section.
  (c) A remedial action may achieve protection of human health
and the environment through:
  (A) Treatment that eliminates or reduces the toxicity, mobility
or volume of hazardous substances;
  (B) Excavation and off-site disposal;
  (C) Containment or other engineering controls;
  (D) Institutional controls;
  (E) Any other method of protection; or
  (F) A combination of the above.
  (d) The method of remediation appropriate for a specific
facility shall be determined through an evaluation of remedial
alternatives and a selection process to be established pursuant
to rules adopted by the commission. The director shall select or

approve a protective alternative that balances the following
factors:
  (A) The effectiveness of the remedy in achieving protection;
  (B) The technical and practical implementability of the remedy;
  (C) The long term reliability of the remedy;
  (D) Any short term risk from implementing the remedy posed to
the community, to those engaged in the implementation of the
remedy and to the environment; and
  (E) The reasonableness of the cost of the remedy. The cost of a
remedial action shall not be considered reasonable if the costs
are disproportionate to the benefits created through risk
reduction or risk management. Subject to the preference for
treatment of hot spots, where two or more remedial action
alternatives are protective as provided in paragraph (b) of this
subsection, the least expensive remedial action shall be
preferred unless the additional cost of a more expensive
alternative is justified by proportionately greater benefits
within one or more of the factors set forth in subparagraphs (A)
to (D) of this paragraph. The director shall use a higher
threshold for evaluating the reasonableness of the costs for
treating hot spots than for remediation of areas other than hot
spots.
  (e) For contamination constituting a hot spot as defined by the
commission pursuant to subsection (2)(b) of this section, the
director shall select or approve a remedial action requiring
treatment of the hot spot contamination unless treatment is not
feasible considering the factors set forth in paragraph (d) of
this subsection.
  (f) The Department of Environmental Quality shall develop or
identify generic remedies for common categories of facilities
considering the balancing factors set forth in paragraph (d) of
this subsection. The department's development of generic remedies
shall take into consideration demonstrated remedial actions and
technologies and scientific and engineering evaluation of
performance data. Where a generic remedy would be protective and
satisfy the balancing factors under paragraph (d) of this
subsection at a specific facility, the director may select or
approve the generic remedy for that site on a streamlined basis
with a limited evaluation of other remedial alternatives.
  (g) Subject to paragraphs (b) and (d) of this subsection, in
selecting or approving a remedial action, the director shall
consider current and reasonably anticipated future land uses at
the facility and surrounding properties, taking into account
current land use zoning, other land use designations, land use
plans as established in local comprehensive plans and land use
implementing regulations of any governmental body having land use
jurisdiction, and concerns of the facility owner, neighboring
owners and the community.
  (2) Within 18 months after July 18, 1995, the commission shall
adopt rules:
  (a) Establishing a risk protocol for conducting risk
assessments. The risk protocol shall:
  (A) Require consideration of existing and reasonably likely
future human exposures and significant adverse effects to
ecological receptor health and viability, both in a baseline risk
assessment and in an assessment of residual risk after a remedial
action;
  (B) Require risk assessments to include reasonable estimates of
plausible upper-bound exposures that neither grossly
underestimate nor grossly overestimate risks;
  (C) Require risk assessments to consider, to the extent
practicable, the range of probabilities of risks actually
occurring, the range of size of the populations likely to be
exposed to the risk, current and reasonably likely future land
uses, and quantitative and qualitative descriptions of
uncertainties;
  (D) Identify appropriate sources of toxicity information;
  (E) Define the use of probabilistic modeling;
  (F) Identify criteria for the selection and application of fate
and transport models;
  (G) Define the use of high-end and central-tendency exposure
cases and assumptions;
  (H) Define the use of population risk estimates in addition to
individual risk estimates;
  (I) To the extent deemed appropriate and feasible by the
commission considering available scientific information, define
appropriate approaches for addressing cumulative risks posed by
multiple contaminants or multiple exposure pathways, including
how the acceptable risk levels set forth in subsection (1)(b)(A)
of this section shall be applied in relation to cumulative risks;
and
  (J) Establish appropriate sampling approaches and data quality
requirements.
  (b) Defining hot spots of contamination. The definition of hot
spots shall include:
  (A) Hazardous substances that are present in high
concentrations, are highly mobile or cannot be reliably
contained, and that would present a risk to human health or the
environment exceeding the acceptable risk level if exposure
occurs.
  (B) Concentrations of hazardous substances in ground water or
surface water that have a significant adverse effect on existing
or reasonably likely future beneficial uses of the water and for
which treatment is reasonably likely to restore or protect such
beneficial use within a reasonable time.
  (3) Except as provided in subsection (4) of this section, the
director may exempt the on-site portion of any removal or
remedial action conducted under ORS 465.200 to 465.510 and
465.900 from any requirement of ORS 466.005 to 466.385 and ORS
chapters 459, 468, 468A and 468B. Without affecting substantive
requirements, no state or local permit, license or other
authorization shall be required for, and no procedural
requirements shall apply to, the portion of any removal or
remedial action conducted on-site where such removal or remedial
action has been selected or approved by the director under this
section, unless the permit, license, authorization or procedural
requirement is necessary to preserve or obtain federal
authorization of a state program or the person performing a
removal or remedial action elects to obtain the permit, license
or authorization or comply with the procedural requirement. The
person performing a removal or remedial action shall notify the
appropriate state or local governmental body of the permits,
licenses, authorizations or procedural requirements waived under
this subsection and, at the request of the governmental body, pay
applicable fees. Any costs paid as a fee to a governmental body
under this subsection shall not also be recoverable by the
governmental body as remedial action costs.
  (4) Notwithstanding any provision of subsection (3) of this
section, any on-site treatment, storage or disposal of a
hazardous substance shall comply with the standard established
under subsection (1)(a) of this section and any activities
conducted in a public right of way under a removal or remedial
action pursuant to this section shall comply with the
requirements of the applicable jurisdiction.
  (5) Nothing in this section shall affect the authority of the
director to undertake, order or authorize an interim or emergency
removal action.
  (6) Nothing in this section or in rules adopted pursuant to
this section shall prohibit the application of rules in effect on
July 18, 1995, that use numeric soil cleanup standards to govern
remediation of motor fuel and heating oil releases from
underground storage tanks.
  SECTION 6. ORS 498.321 is amended to read:
  498.321. (1) In order to carry out the provisions of ORS
  { - 498.301 and - }  498.306 and section 5, chapter 858, Oregon
Laws 1991, the following minimum standards and criteria shall
apply to actions of the State Fish and Wildlife Commission and
the State Department of Fish and Wildlife with regard to fish
screening or by-pass devices:
  (a) Standards and criteria shall address the overall level of
protection necessary at a given water diversion and shall not
favor one technology or technique over another.
  (b) Standards and criteria shall take into account at least the
following factors relating to the fish populations present at a
water diversion:
  (A) The source of the population, whether native or introduced
and whether hatchery or wild.
  (B) The status of the population, whether endangered,
threatened or sensitive.
  (c) Standards and criteria may take into account the cumulative
effects of other water diversions on the fish populations being
protected.
  (d) Design and engineering recommendations shall consider
cost-effectiveness.
  (e) Alternative design and installation proposals must be
approved if they can be demonstrated to provide an equal level of
protection to fish populations as those recommended by the
department.
  (2) In order to maximize effectiveness and promote consistency
relating to the protection of fish at nonhydroelectric water
diversions, the department shall establish a single
organizational entity to administer all agency activities related
to fish screening and by-pass devices.
  (3) The department shall emphasize cooperative effort and
mutual understanding with those responsible for water diversions
that need fish screening or by-pass devices.
  (4) The department shall aggressively investigate and encourage
the development of new technologies and techniques to provide
protection for fish populations at water diversions in order to
reduce initial costs, reduce operating costs and improve
cost-effectiveness.
  SECTION 7. ORS 517.956 is amended to read:
  517.956. Any chemical process mining operation in Oregon shall
comply with the following standards:
  (1) Chemical process mining including extraction, processing
and reclamation, shall be undertaken in a manner that minimizes
environmental damage through the use of the best available,
practicable and necessary technology to assure compliance with
environmental standards.
  (2) Protection measures for fish and wildlife shall be
consistent with policies of the State Department of Fish and
Wildlife, including:
  (a) Protective measures to maintain an objective of zero
wildlife mortality. All chemical processing solutions and
associated waste water shall be covered or contained to preclude
access by wildlife or maintained in a condition that is not
harmful to wildlife.
  (b) On-site and off-site mitigation insuring that there is no
overall net loss of habitat value.
  (c) No loss of existing critical habitat of any   { - state
or - } federally listed threatened or endangered species.
  (d) Fish and wildlife mortality shall be reported in accordance
with a monitoring and reporting plan approved by the State
Department of Fish and Wildlife.
  (e) The State Department of Fish and Wildlife shall establish
by rule standards for review of a proposed chemical process
mining operation for the purpose of developing conditions for
fish and wildlife habitat protection that satisfy the terms of
this section for inclusion in a consolidated permit by the
department.
  (3) Surface reclamation of a chemical process mine site shall:
  (a) Assure protection of human health and safety, as well as
that of livestock, fish and wildlife;
  (b) Assure environmental protection;
  (c) Require certification to the permittee, by the State
Department of Fish and Wildlife and the State Department of
Agriculture, that a self-sustaining ecosystem, comparable to
undamaged ecosystems in the area, has been established in
satisfaction of the permittee's habitat restoration obligations;
and
  (d) Include backfilling or partial backfilling as determined on
a case-by-case basis by the department when necessary to achieve
reclamation objectives that cannot be achieved through other
mitigation activities.
  SECTION 8. 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 assure 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, 501.005 to 501.540 and
ORS chapters 496, 498, 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 308.740 to 308.790;
  (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.
  SECTION 9. ORS 196.810 is amended to read:
  196.810. (1)(a) Except as otherwise specifically permitted
under ORS 196.600 to 196.905, no person or governmental body
shall remove any material from the beds or banks or fill any
waters of this state without a permit issued under authority of
the Director of the Division of State Lands, or in a manner
contrary to the conditions set out in the permit, or in a manner
contrary to the conditions set out in an order approving a
wetlands conservation plan.
  (b) Notwithstanding the permit requirements of this section and
notwithstanding the provisions of ORS 196.800 (5) and (12), if
any removal or fill activity is proposed in essential indigenous
anadromous salmonid habitat, except for those activities
customarily associated with agriculture, a permit is required.  '
Essential indigenous anadromous salmonid habitat' as defined
under this section shall be further defined and designated by
rule by the Division of State Lands in consultation with the
State Department of Fish and Wildlife and in consultation with
other affected parties.
  (c) No person shall be required to obtain a permit under
paragraph (b) of this subsection for prospecting resulting in the
removal from or fill of less than one cubic yard of material at
any one individual site and, cumulatively, not more than five
cubic yards of material within a designated essential indigenous
anadromous salmonid habitat segment in a single year. Prospecting
shall be conducted only within the bed or wet perimeter of the
waterway and shall not occur at any site where fish eggs are
present. Removal or filling activities customarily associated
with mining shall require a permit under paragraph (b) of this
subsection.
  (d) No permit shall be required under paragraph (b) of this
subsection for construction or maintenance of fish passage and
fish screening structures that are constructed, operated or
maintained under ORS 498.311, 498.316, 498.326, 498.351 or
509.600 to 509.645.
  (e) Nothing in this section shall limit or otherwise change the
exemptions under ORS 196.905.
  (f) As used in this section:
  (A) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
  (B) 'Essential indigenous anadromous salmonid habitat ' means
the habitat that is necessary to prevent the depletion of
indigenous anadromous salmonid species during their life history
stages of spawning and rearing.
  (C) 'Indigenous anadromous salmonid' means chum, sockeye,
Chinook and Coho salmon, and steelhead and cutthroat trout, that
are members of the family Salmonidae and are listed as sensitive,

threatened or endangered by a   { - state or - }  federal
authority.
  (D) 'Prospecting' means searching or exploring for samples of
gold, silver or other precious minerals, using nonmotorized
methods, from among small quantities of aggregate.
  (E) 'Wet perimeter' means the area of the stream that is under
water or is exposed as a nonvegetated dry gravel bar island
surrounded on all sides by actively moving water at the time the
activity occurs.
  (2) No governmental body shall issue a lease or permit contrary
or in opposition to the conditions set out in the permit issued
under ORS 196.600 to 196.905.
  (3) Subsection (1) of this section does not apply to removal of
material under a contract, permit or lease with any governmental
body entered into before September 13, 1967. However, no such
contract, permit or lease may be renewed or extended on or after
September 13, 1967, unless the person removing the material has
obtained a permit under ORS 196.600 to 196.905.
  (4) Notwithstanding subsection (1) of this section, the
Division of State Lands may issue, orally or in writing, an
emergency authorization for the removal of material from the beds
or banks or filling of any waters of this state in an emergency,
for the purpose of making repairs or for the purpose of
preventing irreparable harm, injury or damage to persons or
property. The emergency authorization issued under this
subsection:
  (a) Shall contain conditions of operation that the division
determines are necessary to minimize impacts to water resources
or adjoining properties.
  (b) Shall be based, whenever practicable, on the
recommendations contained in an on-site evaluation by an employee
or representative of the division.
  (c) If issued orally, shall be confirmed in writing by the
division within five days.
  SECTION 10. ORS 466.992 is amended to read:
  466.992. (1) Any person who has care, custody or control of a
hazardous waste or a substance which would be a hazardous waste
except for the fact that it is not discarded, useless or unwanted
shall incur a civil penalty according to the schedule set forth
in subsection (2) of this section for the destruction, due to
contamination of food or water supply by such waste or substance,
of any of the wildlife referred to in subsection (2) of this
section that are the property of the state.
  (2) The penalties referred to in subsection (1) of this section
shall be as follows:
  (a) Each game mammal other than mountain sheep, mountain goat,
elk or silver gray squirrel, $400.
  (b) Each mountain sheep or mountain goat, $3,500.
  (c) Each elk, $750.
  (d) Each silver gray squirrel, $10.
  (e) Each game bird other than wild turkey, $10.
  (f) Each wild turkey, $50.
  (g) Each game fish other than salmon or steelhead trout, $5.
  (h) Each salmon or steelhead trout, $125.
  (i) Each fur-bearing mammal other than bobcat or fisher, $50.
  (j) Each bobcat or fisher, $350.
  (k) Each specimen of any wildlife species whose survival is
specified by   { - the wildlife laws or - }  the laws of the
United States as threatened or endangered, $500.
  (L) Each specimen of any wildlife species otherwise protected
by the wildlife laws or the laws of the United States, but not
otherwise referred to in this subsection, $25.
  (3) The civil penalty imposed under this section shall be in
addition to other penalties prescribed by law.
  SECTION 11. ORS 496.705 is amended to read:

  496.705. (1) The commission may institute suit for the recovery
of damages for the unlawful taking or killing of any of the
wildlife referred to in subsection (2) of this section that are
the property of the state.
  (2) The damages referred to in subsection (1) of this section
shall be as follows:
  (a) Each game mammal other than mountain sheep, mountain goat,
elk or silver gray squirrel, $400.
  (b) Each mountain sheep or mountain goat, $3,500.
  (c) Each elk, $750.
  (d) Each silver gray squirrel, $10.
  (e) Each game bird other than wild turkey, $10.
  (f) Each wild turkey, $50.
  (g) Each game fish other than salmon or steelhead trout, $5.
  (h) Each salmon or steelhead trout, $125.
  (i) Each fur-bearing mammal other than bobcat or fisher, $50.
  (j) Each bobcat or fisher, $350.
  (k) Each specimen of any wildlife species whose survival is
specified by   { - the wildlife laws or - }  the laws of the
United States as threatened or endangered, $500.
  (L) Each specimen of any wildlife species otherwise protected
by the wildlife laws or the laws of the United States, but not
otherwise referred to in this subsection, $25.
  (3) In any such action, the court shall award to the prevailing
party, in addition to costs and disbursements, reasonable
attorney fees.
  (4) Such civil damages shall be in addition to other penalties
prescribed by the wildlife laws for the unlawful taking or
killing of wildlife.
  (5) Any circuit or justice court has jurisdiction to try any
case for the recovery of damages for the unlawful taking or
killing of any of the wildlife as provided by this section.
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