Bill Text: OR HB2756 | 2011 | Regular Session | Engrossed
Bill Title: Relating to forestry; appropriating money; declaring an emergency.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2756 Detail]
Download: Oregon-2011-HB2756-Engrossed.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 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 1144
A-Engrossed
House Bill 2756
Ordered by the House April 20
Including House Amendments dated April 20
Sponsored by Representative CLEM (Presession filed.)
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.
{ - Changes reference to reflect nature of forestry statute
allowing punishment of violations. - }
{ + Establishes Forest Practices Act Administration Division
within Oregon Forest Resources Institute. Specifies duties,
functions and powers of division. Transfers specified duties,
functions and powers from State Forester to division.
Requires moneys derived from tax on harvest of timber for
purpose of providing field administration of Oregon Forest
Practices Act to be deposited in Oregon Forest Resources
Institute Fund. Continuously appropriates deposited moneys to
division.
Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to forestry; creating new provisions; amending ORS
93.710, 321.152, 321.367, 321.550, 390.235, 477.001, 477.120,
477.580, 477.615, 477.625, 477.630, 477.635, 477.650, 477.660,
477.665, 477.670, 526.041, 526.060, 526.490, 526.770, 527.630,
527.670, 527.674, 527.676, 527.680, 527.683, 527.685, 527.690,
527.700, 527.710, 527.722, 527.736, 527.740, 527.745, 527.750,
527.755, 527.760 and 527.992; appropriating money; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The Forest Practices Act Administration
Division is established within the Oregon Forest Resources
Institute. The institute shall allocate for purposes of
administering the division not more than 15 percent of any moneys
appropriated or authorized to be expended to carry out the
powers, duties and functions of the division. The institute shall
allocate any other moneys appropriated or authorized to be
expended for purposes of the division to fund contracts described
in this section.
(2) The division shall, as directed by the institute, issue
requests for proposals and enter into contracts with qualified
private parties to provide services to the institute related to
the administration of the division's powers, duties and functions
under ORS 527.610 to 527.770, 527.990 and 527.992. The services
shall include, but need not be limited to, the following:
(a) Processing forest operation notices under ORS 527.670.
(b) Conducting preoperation and post-operation visits to sites
of forest operations that are subject to ORS 527.610 to 527.770,
527.990 and 527.992 as necessary and appropriate.
(c) Providing monitoring to ensure compliance with
reforestation requirements, requirements for free to grow stands
as defined by the State Board of Forestry and other requirements
imposed under ORS 527.610 to 527.770.
(d) Surveying areas with high levels of actual or potential
landslide hazards as necessary and appropriate under State Board
of Forestry rules described in ORS 527.630 and 527.710 (10) and
providing related advice to affected landowners.
(e) Working with landowners and operators to mitigate
unsatisfactory forestland conditions.
(f) Acting as agents of the division to issue citations on
behalf of the State Board of Forestry for violations of ORS
527.610 to 527.770, 527.990 and 527.992 or rules adopted under
ORS 527.610 to 527.770.
(g) Providing information to the Department of Revenue
regarding timber harvested as provided under ORS 527.610 to
527.770.
(h) Achieving efficiencies and reduced costs by working with
auditors and other persons designated by landowners for the
purposes of ensuring compliance with third-party certification
systems.
(i) Performing fire inspections during fire season on
industrial private forestlands. + }
SECTION 2. ORS 93.710 is amended to read:
93.710. (1) Any instrument creating a license, easement, profit
a prendre, or a leasehold interest or oil, gas or other mineral
interest or estate in real property or an interest in real
property created by a land sale contract, or memorandum of such
instrument or contract, which is executed by the person from whom
the interest is intended to pass, and acknowledged or proved in
the manner provided for the acknowledgment or proof of other
conveyances, may be indexed and recorded in the records of deeds
of real property in the county where such real property is
located. Any instrument creating a mortgage or trust deed, or a
memorandum thereof, or assignment for security purposes relating
to any of the interests or estates in real property referred to
in this subsection, which is executed by the person from whom the
mortgage, trust deed, or assignment for security purposes is
intended to be given, and acknowledged or proved in the manner
provided for the acknowledgment or proof of other conveyances,
may be indexed and recorded in the records of mortgages of real
property in the county where such real property is located. Such
recordation, whether the instrument be recorded prior to or
subsequent to May 29, 1963, constitutes notice to third persons
of the rights of the parties under the instrument irrespective of
whether the party granted such interest or estate is in
possession of the real property. Any such instrument when so
acknowledged or proved, or certified in the manner prescribed by
law by any of the authorized officers, may be read in evidence
without further proof thereof.
(2) Any notice under ORS 527.710 or order under ORS 527.680
{ - by the State Forester - } requiring the reforestation of
specific lands may be indexed and recorded in the records of
deeds of real property in the county where such real property is
located. Such recordation constitutes notice to third persons of
the rights and obligations of the parties to the notice or order.
Any such notice or order when properly prepared in the manner
prescribed by law by any of the authorized officers may be read
in evidence without further proof thereof.
(3)(a) As used in this section, 'memorandum' means an
instrument that:
(A) Contains the date of the instrument being memorialized;
(B) Contains the names and addresses of the parties;
(C) Contains a legal description of the real property involved
and the nature of the interest created which is signed by the
person from whom the interest is intended to pass; and
(D) Is acknowledged or proved in the manner provided for the
acknowledgment or proof of deeds.
(b) In addition to the requirements of paragraph (a) of this
subsection, a memorandum of a mortgage or trust deed shall
contain:
(A) The legend 'Memorandum of Mortgage' or 'Memorandum of Trust
Deed' either in capital letters or underscored above the body of
the memorandum;
(B) A description of any collateral encumbered by the mortgage
or trust deed, other than the real property, that can be
perfected by filing in the real property records of the county in
which the collateral is situated;
(C) A description in general terms of the obligation or
obligations secured and a statement of the term or maturity date,
if any, of the obligation or obligations;
(D) A statement by the mortgagee or beneficiary that a complete
copy of the mortgage or trust deed is available upon written
request to the mortgagee or beneficiary; and
(E) If the mortgage or trust deed constitutes a line of credit
instrument as defined in ORS 86.155, the information required to
appear on the front page of the instrument under ORS 86.155
(1)(b).
(c) In addition to the requirements of paragraph (a) of this
subsection, a memorandum of an instrument conveying or
contracting to convey fee title to any real estate shall state on
its face the true and actual consideration paid for such transfer
as provided in ORS 93.030.
SECTION 3. ORS 321.152 is amended to read:
321.152. (1) Subject to ORS 321.145 (2), moneys remaining in
the Department of Revenue's suspense account referred to in ORS
321.145 on February 10, May 10, August 10 and November 10 of each
year shall be transferred to the various appropriation accounts
described in subsections (2), (3) and (4) of this section.
(2) That part of the moneys derived from taxes levied by ORS
321.015 (1) shall be transferred to the Forest Research and
Experiment Account described in ORS 321.185.
(3) That part of the moneys derived from taxes levied by ORS
321.015 (3) { + (a) + } shall be transferred to the State
Forestry Department Account referred to in ORS 526.060.
Notwithstanding ORS 291.238, the moneys transferred to the State
Forestry Department Account under this section are appropriated
continuously for and shall be used by the State Forester, under
the supervision and direction of the State Board of Forestry, for
the purposes of
{ - administering - } the Oregon Forest Practices Act and the
forest practices monitoring program.
{ + (4) That part of the moneys derived from taxes levied by
ORS 321.015 (3)(b) shall be transferred to the Oregon Forest
Resources Institute Fund created under ORS 526.675. Moneys
transferred to the Oregon Forest Resources Institute Fund under
this subsection are continuously appropriated to the Forest
Practices Act Administration Division of the Oregon Forest
Resources Institute for carrying out the purposes described in
section 1 of this 2011 Act. + }
{ - (4) - } { + (5) + } That part of the moneys derived
from taxes levied by ORS 321.015 (2) shall be transferred to the
Oregon Forest Land Protection Fund described in ORS 477.750.
SECTION 4. ORS 321.367 is amended to read:
321.367. (1) The { - State Forester - } { + Forest
Practices Act Administration Division of the Oregon Forest
Resources Institute + } shall identify all of the forestlands
that fail to meet the minimum stocking required under ORS 527.610
to 527.770 and that are therefore underproductive as described
under ORS 526.455.
(2) { + If + } at any time the { + division or the + } State
Forester has reason to believe that forestland is not being
managed as forestland, the { - State Forester - } { +
division + } shall review the owner's management plan, if any,
and inspect the property. Subject to subsection (5) of this
section, the { - State Forester - } { + division + } shall
advise the owner as prescribed in subsection (3) of this section
if the { - State Forester - } { + division + } determines the
land is not being managed in accordance with a plan that provides
for:
(a) Regeneration of all suitable nonstocked land;
(b) Maintenance of a free-to-grow condition;
(c) Protection from fire, insects, disease, animal damage,
undesirable vegetative competition; and
(d) Final harvest.
(3)(a) The { - State Forester - } { + division + } shall
advise the owner that the land is not being managed in accordance
with a plan that meets the criteria set forth in subsection (2)
of this section and that a plan for the land that does meet the
criteria must be developed and activated within one year after
the date of the advisement.
(b) { + The division may assist the owner in developing and
implementing means for mitigating the unsatisfactory conditions
on the land. + } At the request of the owner, the State Forester
shall assign a forester or provide a listing of foresters to
assist the owner in developing and implementing an appropriate
management plan for the land.
(c) As soon as practicable after the time indicated in the
advisement has expired, the { - State Forester - } { +
division + } shall view the land to determine if the land is
being managed in accordance with a plan that meets the criteria
set forth in subsection (2) of this section. If, upon inspection,
the { - State Forester - } { + division + } finds that the
land is not being so managed, the { - State Forester - } { +
division + } shall notify the owner { + , the State Forester + }
and the county assessor.
(4) The county assessor, upon receipt of the notice from the
{ - State Forester - } { + division + }, shall cease to treat
that land as forestland under ORS 321.257 to 321.390 and shall
value the land as prescribed under ORS 308.146 and 308.232.
(5) If at the time that the { - State Forester - } { +
division + } views the land under subsection (3)(c) of this
section, it is determined that a change in ownership has
occurred, the { - State Forester - } { + division + } shall
notify the new owner as required under subsection (3) of this
section in the manner of the original notification.
(6) When the owner of land disqualified from forestland
assessment provides satisfactory information to the { - State
Forester - } { + division + } of subsequent action taken to
correct the deficiency resulting in the disqualification of land,
or provides an acceptable management plan to correct such
deficiency, the
{ - State Forester - } { + division + } shall so indicate to
the county assessor. The assessor shall then assess the land
under ORS 321.257 to 321.390, if the land is otherwise qualified
for such assessment.
(7) The State Forester shall adopt rules necessary to carry out
the purposes of this section.
SECTION 5. ORS 321.550 is amended to read:
321.550. { - (1) No person shall harvest or cause to be
harvested any timber from land in Oregon without first having
notified the State Forester in writing with a copy to the
Department of Revenue on forms prepared by the State Forester and
the department of intent to harvest pursuant to ORS 321.005 to
321.185, 321.560 to 321.600 and 321.700 to 321.754. - }
{ + (1) A person may not harvest or cause to be harvested any
timber from land in Oregon without first having given written
notice to the following entities, in a form prescribed by the
State Forester and the Department of Revenue, of intent to
harvest pursuant to ORS 321.005 to 321.185, 321.560 to 321.600
and 321.700 to 321.754:
(a)(A) Except as provided in subparagraph (B) of this
paragraph, the State Forester; or
(B) If the harvest operation is subject to ORS 527.610 to
527.770, the Forest Practices Act Administration Division of the
Oregon Forest Resources Institute.
(b) The department.
(c) The State Board of Forestry. + }
(2) The notification shall specify where and when the harvest
will take place and the nature of the harvest and shall include
maps and other data as required by { - the - } State Forester
{ + rules + } and { + by + } the department. The department
shall establish by rule procedures to assure the receipt of the
tax returns sent out or a report of nonharvest from the person.
The department shall conduct field and office audits to ascertain
the correctness of any timber tax return.
(3)(a) If a person fails to file a written notice as required
in subsection (1) of this section with respect to any harvest
over 5,000 board feet, the department shall notify the person.
If, after the person has been notified, the person fails to file
a written notice as required in subsection (1) of this section
with respect to any subsequent harvest over 5,000 board feet,
there shall be added to the amount of the timber tax required to
be shown on the return as a result of the subsequent harvest a
delinquency penalty of $250 for each violation occurring within a
calendar year. The department shall collect the penalty in the
same manner as taxes are collected.
(b) No penalty shall be imposed under this subsection if a
penalty for failure to file the notice { - with the State
Forester - } has been imposed under ORS 527.992.
(c) The delinquency penalty shall first be added to the small
tract forestland timber severance tax imposed under ORS 321.700
to 321.754, if applicable to the harvest. If the small tract
forestland timber severance tax is not applicable, the
delinquency penalty shall be added to the forest products harvest
tax imposed under ORS 321.005 to 321.185.
SECTION 6. ORS 390.235 is amended to read:
390.235. (1)(a) A person may not excavate or alter an
archaeological site on public lands, make an exploratory
excavation on public lands to determine the presence of an
archaeological site or remove from public lands any material of
an archaeological, historical, prehistorical or anthropological
nature without first obtaining a permit issued by the State Parks
and Recreation Department.
(b) If a person who obtains a permit under this section intends
to curate or arrange for alternate curation of an archaeological
object that is uncovered during an archaeological investigation,
the person must submit evidence to the State Historic
Preservation Officer that the Oregon State Museum of Anthropology
and the appropriate Indian tribe have approved the applicant's
curatorial facilities.
(c) No permit shall be effective without the approval of the
state agency or local governing body charged with management of
the public land on which the excavation is to be made, and
without the approval of the appropriate Indian tribe.
(d) The State Parks and Recreation Director, with the advice of
the Oregon Indian tribes and Executive Officer of the Commission
on Indian Services, shall adopt rules governing the issuance of
permits.
(e) Disputes under paragraphs (b) and (c) of this subsection
shall be resolved in accordance with ORS 390.240.
(f) Before issuing a permit, the State Parks and Recreation
Director shall consult with:
(A) The landowning or land managing agency; and
(B) If the archaeological site in question is associated with a
prehistoric or historic native Indian culture:
(i) The Commission on Indian Services; and
(ii) The most appropriate Indian tribe.
(2) The State Parks and Recreation Department may issue a
permit under subsection (1) of this section under the following
circumstances:
(a) To a person conducting an excavation, examination or
gathering of such material for the benefit of a recognized
scientific or educational institution with a view to promoting
the knowledge of archaeology or anthropology;
(b) To a qualified archaeologist to salvage such material from
unavoidable destruction; or
(c) To a qualified archaeologist sponsored by a recognized
institution of higher learning, private firm or an Indian tribe
as defined in ORS 97.740.
(3) Any archaeological materials, with the exception of Indian
human remains, funerary objects, sacred objects and objects of
cultural patrimony, recovered by a person granted a permit under
subsection (2) of this section shall be under the stewardship of
the State of Oregon to be curated by the Oregon State Museum of
Anthropology unless:
(a) The Oregon State Museum of Anthropology with the approval
from the appropriate Indian tribe approves the alternate
curatorial facilities selected by the permittee;
(b) The materials are made available for nondestructive
research by scholars; and
(c)(A) The material is retained by a recognized scientific,
educational or Indian tribal institution for whose benefit a
permit was issued under subsection (2)(a) of this section;
(B) The State Board of Higher Education with the concurrence of
the appropriate Indian tribe grants approval for material to be
curated by an educational facility other than the institution
that collected the material pursuant to a permit issued under
subsection (2)(a) of this section; or
(C) The sponsoring institution or firm under subsection (2)(c)
of this section furnishes the Oregon State Museum of Anthropology
with a complete catalog of the material within six months after
the material is collected.
(4) The Oregon State Museum of Anthropology shall have the
authority to transfer permanent possessory rights in subject
material to an appropriate Indian tribe.
(5) Except for sites containing human remains, funerary objects
and objects of cultural patrimony as defined in ORS 358.905, or
objects associated with a prehistoric Indian tribal culture, the
permit required by subsection (1) of this section or by ORS
358.920 shall not be required for forestry operations on private
lands for which notice has been filed with the { - State
Forester - } { + Forest Practices Act Administration Division
of the Oregon Forest Resources Institute + } under ORS 527.670.
(6) As used in this section:
(a) 'Private firm' means any legal entity that:
(A) Has as a member of its staff a qualified archaeologist; or
(B) Contracts with a qualified archaeologist who acts as a
consultant to the entity and provides the entity with
archaeological expertise.
(b) 'Qualified archaeologist' means a person who has the
following qualifications:
(A) A post-graduate degree in archaeology, anthropology,
history, classics or other germane discipline with a
specialization in archaeology, or a documented equivalency of
such a degree;
(B) Twelve weeks of supervised experience in basic
archaeological field research, including both survey and
excavation and four weeks of laboratory analysis or curating; and
(C) Has designed and executed an archaeological study, as
evidenced by a Master of Arts or Master of Science thesis, or
report equivalent in scope and quality, dealing with
archaeological field research.
(7) Violation of the provisions of subsection (1)(a) of this
section is a Class B misdemeanor.
SECTION 7. ORS 477.001 is amended to read:
477.001. As used in this chapter, unless the context otherwise
requires:
(1) 'Additional fire hazard' means a hazard that has been
determined to exist by the { - forester - } { + Forest
Practices Act Administration Division of the Oregon Forest
Resources Institute + } pursuant to ORS 477.580.
(2) 'Board' means the State Board of Forestry.
(3) 'Campfire' means any open fire used for cooking, personal
warmth, lighting, ceremonial or aesthetic purposes that is hand
built and that is not associated with any debris disposal
activities.
(4) 'Department' means the State Forestry Department.
(5) 'District' means a forest protection district organized
under ORS 477.225.
(6) 'Every reasonable effort' means the use of the reasonably
available personnel and equipment under the supervision and
control of an owner or operator, which are needed and effective
to fight the fire in the judgment of the forester and which can
be brought to bear on the fire in a timely fashion.
(7) 'Fire season' means a period designated pursuant to ORS
477.505.
(8) 'Fiscal year' means the period beginning on July 1 of any
year and ending on June 30 of the next year.
(9) 'Forestland' means any woodland, brushland, timberland,
grazing land or clearing that, during any time of the year,
contains enough forest growth, slashing or vegetation to
constitute, in the judgment of the forester, a fire hazard,
regardless of how the land is zoned or taxed. As used in this
subsection, 'clearing' means any grassland, improved area, lake,
meadow, mechanically or manually cleared area, road, rocky area,
stream or other similar forestland opening that is surrounded by
or contiguous to forestland and that has been included in areas
classified as forestland under ORS 526.305 to 526.370.
(10) 'Forest patrol assessment' means the costs levied and
assessed under ORS 477.270.
(11) 'Forest protective association' or 'association ' means an
association, group or agency composed of owners of forestlands,
organized for the purpose of protecting such forestlands from
fire.
(12) 'Forest resource' means the various types of vegetation
normally growing on Oregon's forestland, the associated harvested
products and the associated residue, including but not limited to
brush, grass, logs, saplings, seedlings, trees and slashing.
(13) 'Forester' means the State Forester or authorized
representative.
(14) 'Governing body' of a county means the county court or
board of county commissioners.
(15) 'Grazing land' is defined by ORS 477.205.
(16) 'Open fire' means any outdoor fire that occurs in such a
manner that combustion air is not effectively controlled and
combustion products are not effectively vented through a stack or
chimney.
(17) 'Operation' means any industrial activity, any development
or any improvement on forestland inside or within one-eighth of
one mile of a forest protection district, including but not
limited to the harvesting of forest tree species, the clearing of
land, the use of power-driven machinery and the use of fire,
excluding, however, the culture and harvesting of agricultural
crops.
(18) 'Operation area' means the area on which an operation is
being conducted and the area on which operation activity may have
resulted in the ignition of a fire.
(19) 'Operation in progress' means that time when workers are
on an operation area for the purpose of an operation, including
the period of time when fire watches are required to be on the
operation area pursuant to ORS 477.665.
(20) 'Operator' means any person who, either personally or
through employees, agents, representatives or contractors, is
carrying on or has carried on any operation.
(21) 'Owner' means an individual, a combination of individuals,
a partnership, a corporation, the State of Oregon or a political
subdivision thereof, or an association of any nature that holds
an ownership interest in land.
(22) 'Political subdivision' includes, but is not limited to,
counties, cities and special districts.
(23) 'Rangeland' is defined by ORS 477.315.
(24) 'Routine road maintenance' is defined by ORS 477.625.
(25) 'Side' means any single unit of a logging operation
employing power-driven machinery.
(26) 'Slashing' means the forest debris or refuse on any
forestland resulting from the cutting, killing, pruning, severing
or removal of brush, trees or other forest growth.
(27) 'State Forester' means the person appointed State Forester
pursuant to ORS 526.031 or the person serving in the position on
an interim or delegated basis.
(28) 'Summit of the Cascade Mountains' is considered to be a
line beginning at the intersection of the northern boundary of
the State of Oregon and the western boundary of Wasco County;
thence southerly along the western boundaries of Wasco,
Jefferson, Deschutes and Klamath Counties to the southern
boundary of the State of Oregon.
(29) 'Timberland' is defined by ORS 477.205.
(30) 'Warden' means a fire warden appointed under ORS 477.355.
SECTION 8. ORS 477.120 is amended to read:
477.120. (1) Except as provided in subsections (2) and (3) of
this section, the owner or operator of forestland is not subject
to the obligations or penalties of ORS 164.335 and 477.740 or
477.064, 477.066 and 477.068 if:
(a) Forest patrol assessments are regularly paid for the
forestland;
(b) Such forestland is protected pursuant to membership in a
forest protective association in accordance with ORS 477.210,
which association has undertaken the control and suppression of
fires on such land as provided in the contract; or
(c) Such forestland is protected pursuant to cooperative
agreement or contract under ORS 477.406.
(2) The provisions of subsection (1) of this section do not
apply to such owner or operator if the owner or operator:
(a) Is willful, malicious or negligent in the origin or
subsequent spread of a fire on such forestland;
(b) Has caused or permitted an operation to exist on such
forestland and a fire originates thereon as a result of the
operation;
(c) Has failed to give notice to the { - forester - } { +
Forest Practices Act Administration Division of the Oregon Forest
Resources Institute + } pursuant to ORS 527.670 (6), has failed
to obtain a permit for the use of fire in any form or
power-driven machinery pursuant to ORS 477.625 or has failed
within the time prescribed in any order or notice issued by the
{ + State + } Forester { + or the division + } to reduce,
abate, or offset any hazard determined { + by the State
Forester + } to exist pursuant to ORS 477.062 or { + determined
by the division to exist pursuant to + } 477.580 and a fire
originates on or spreads to the area on which such hazard exists
and for which no release has been granted pursuant to ORS 477.580
(3) or (4); or
(d) Has caused or allowed any burning, including burning
regulated by ORS 477.013 or 477.515, whether or not a permit has
been obtained and a fire results from or is caused by such
burning.
(3) Unless subsection (2)(a) or (c) of this section applies,
the owner or operator shall not be obligated to pay that portion
of the actual costs provided in ORS 477.068 which are the
ordinary costs of the regular personnel and equipment of the
forest protection district wherein the forestland is located.
(4) If subsection (2)(b) or (d) of this section applies and
subsection (2)(a) and (c) of this section do not apply, the owner
or operator shall not be liable to the { + State + } Forester
for fire suppression costs in excess of $300,000.
(5) The provisions of subsections (3) and (4) of this section
do not apply to the owner or operator if the owner or operator
fails to make every reasonable effort.
(6) For the purpose of subsection (2)(b) of this section, if a
fire originates while an operation is in progress, there is a
presumption, under ORS 40.120, that the fire originated as a
result of the operation.
SECTION 9. ORS 477.580 is amended to read:
477.580. (1) Following the issuance of a permit { + by the
Forest Practices Act Administration Division of the Oregon Forest
Resources Institute + } pursuant to ORS 477.625, and after
slashing has been created in an operation area inside or within
one-eighth of one mile of a forest protection district, the
{ - forester - } { + division + }may make a determination if
such slashing and debris exists on the operation area in
sufficient quantity and arrangement as to constitute an
additional fire hazard that endangers life, forest resources or
property, and if such area is in need of additional work or
protection to reduce, abate or offset the additional fire hazard.
Whenever practical, the
{ - forester - } { + division + } shall make the
determination referred to in this subsection during the
administration and enforcement of the Oregon Forest Practices
Act.
(2) If the { - forester - } { + division + } determines
that an additional fire hazard exists on the operation area
sufficient to endanger life, forest resources or property, and
that such area is in need of additional work or protection to
reduce, abate or offset the additional fire hazard, the
{ - forester - } { + division + } shall so notify the
{ + State Forester and the + } landowner and operator or their
representatives in writing of such determination. Pursuant to
rules promulgated by the State Forester, the notice to the
landowner or operator shall contain provisions for offsetting the
additional fire hazard by burning, improvements, extra protection
or other means. The notice shall also specify a reasonable time
for completion of the provisions contained therein.
(3) When the { - forester - } { + division + } finds that
the provisions set forth in subsection (2) of this section have
been complied with or that the additional hazard has been, in the
opinion of the
{ - forester - } { + division + }, sufficiently reduced by
other means to offset the hazard, the { + division shall notify
the State + } Forester { + . Upon receiving notice from the
division, the State Forester + } shall immediately issue to the
operator or landowner a release from all obligations imposed by
ORS 477.120 (2)(c) { + due to the hazard determined under this
section + }.
(4) If the { - forester determines - } { + division
determines under this section + } that an additional fire hazard
exists, the { + State + } Forester shall, at the request of the
owner or operator, with the approval of the owner, grant a
release upon payment by the owner or operator of such sum of
money as the { + State + } Forester finds necessary to provide
additional protection or means necessary to reduce or offset the
additional hazard created by such slashing and other debris. In
no event may this sum exceed the lesser of:
(a) $6 for each 1,000 board feet of timber harvested in an
operation;
(b) The { + State + } Forester's estimated cost of reducing or
providing other means to offset the additional hazard; or
(c) $10 for each acre in a stand improvement operation where no
timber is harvested.
(5) Moneys received under subsection (4) of this section shall
be placed in the State Treasury, credited to the State Forestry
Department Account and used exclusively for the purposes of
forest protection within the district.
(6) Any owner of forestland may make written request to the
{ - forester - } { + division for the owner + } to assume all
obligations for the disposal or reduction of any additional fire
hazard determined
{ - to exist thereon - } { + under this section to exist on
the forestland + }. If the { - forester then - } { +
division + } determines that the owner can comply with such
obligation, the { + division shall notify the State Forester.
Upon receiving the notice from the division, the State + }
Forester shall immediately issue to all other persons involved a
written release of such obligations.
(7) Any order or determination made by the { - forester - }
{ + division + } pursuant to this section is final unless
modified or vacated in an appeal to the State Board of Forestry
taken within 30 days after issuance of the order.
SECTION 10. ORS 477.615 is amended to read:
477.615. (1) During a fire season inside or within one-eighth
of one mile of a forest protection district, when, in the
judgment of the { - forester - } { + Forest Practices Act
Administration Division of the Oregon Forest Resources
Institute + }, an operation is of sufficient size or so planned
and operated as to justify additional protection from fire, the
owner or operator, when so directed by the { - forester - }
{ + division + } in writing, shall provide, within such time as
is specified in the writing, additional water supply and
equipment for use in fire suppression that is in conformity with
rules promulgated by the State Forester.
(2) All such equipment shall be kept in constant readiness for
instant use in fighting forest fires. However, nothing in this
section prohibits the use of the equipment by the operator for
sprinkling roads or other uses within the operation area.
(3) Rules promulgated under this section shall prescribe such
water supply and equipment as reasonably are necessary to provide
immediate and effective suppression of fires on forestland and
may provide for the use of alternate methods and equipment.
SECTION 11. ORS 477.625 is amended to read:
477.625. (1) Every person conducting an operation inside or
within one-eighth of one mile of a forest protection district
that uses fire in any form or power-driven machinery shall first
obtain from the { - forester - } { + Forest Practices Act
Administration Division of the Oregon Forest Resources
Institute + } a written permit { + . + } { - , which shall
require - } { + The permit must include requirements + }that
the holder of the permit:
(a) Take reasonable precautions that in the judgment of the
{ - forester - } { + division + } are necessary in the use of
fire and power-driven machinery to prevent the spread of fire on
or from an operation area.
(b) Designate a representative authorized to act on all matters
having to do with fire control { + . + } { - , which
representatives shall - } { + The representative must + } be
available at all times by direct means of communication with the
{ + State + }Forester.
(c) If operating west of the summit of the Cascade Mountains,
close down any part or all of the operation during any period of
time when notified that, in the judgment of the { + State + }
Forester, conditions exist as described in ORS 477.670.
(2) Routine road maintenance is excepted from the requirement
to obtain a permit to operate power-driven machinery under this
section. As used in this subsection 'routine road maintenance '
means grading, cleaning ditches, culvert cleaning, spot rocking
or mechanical brushing along the roadside to maintain visibility.
(3)(a) The { - forester - } { + division + } may waive the
requirement to obtain a written permit under this section when in
the judgment of the { - forester - } { + division + } the
operation will not constitute a fire hazard sufficient to justify
the requirement.
(b) Waiver of the requirement to obtain a written permit under
this section does not relieve the owner and operator of the
responsibility for complying with other applicable duties,
requirements or penalties of this chapter.
SECTION 12. ORS 477.630 is amended to read:
477.630. (1) Each permit issued under ORS 477.625 shall
include:
(a) The legal description of the area upon which any operation
is to be conducted, or an alternate description of the area
permitted by the { - forester - } { + Forest Practices Act
Administration Division of the Oregon Forest Resources
Institute + };
(b) The name and address of the operator and owner; and
(c) Any other information considered by the { - forester - }
{ + division + } to be necessary for the administration of the
rules promulgated { + by the State Forester + } under this
chapter.
(2) The information required in subsection (1) of this section
shall be provided by the operator or owner, prior to issuance of
the permit by the { - forester - } { + division + }.
SECTION 13. ORS 477.635 is amended to read:
477.635. The { - forester - } { + Forest Practices Act
Administration Division of the Oregon Forest Resources
Institute + } may issue the permits required in ORS 477.625 and
suspend or revoke such permits because of violation of the
{ + permit + } terms { - thereof - } or noncompliance with
this chapter. The { - forester - } { + division + } shall
refuse to issue a permit to any person for the conduct of an
operation when, in the judgment of the { - forester - } { +
division + }, an excessive amount of forest debris in and around
the operation area results in an extreme fire hazard that
endangers life, forest resources or property.
SECTION 14. ORS 477.650 is amended to read:
477.650. (1) During a fire season every person operating a
stationary internal combustion engine inside or within one-eighth
of one mile of a forest protection district shall provide at each
engine on an operation area a water supply, and equipment for its
use in fire suppression, in conformity with rules promulgated by
the State Forester. These rules shall prescribe such water supply
and equipment as reasonably are necessary to prevent the spread
of fire and may provide for the use of alternate methods and
equipment.
(2) When a person has equipped one engine as required by
subsection (1) of this section, any additional engines operated
by the person within 150 feet of the equipped engine shall be
exempt from the requirements of subsection (1) of this section.
(3) For the purposes of this section, an internal combustion
engine shall be considered stationary if it is operated for a
period of more than two days exclusively at one location in an
operation area.
(4) The { - forester in writing may waive - } { + Forest
Practices Act Administration Division of the Oregon Forest
Resources Institute, after consultation with the State Forester,
may issue a written waiver of + } any requirement of this section
{ - when - } { + if + }an operation will not constitute a
fire hazard sufficient to justify the requirement.
SECTION 15. ORS 477.660 is amended to read:
477.660. During a fire season when in the judgment of the
{ - forester - } { + Forest Practices Act Administration
Division of the Oregon Forest Resources Institute + } any
operation inside or within one-eighth of one mile of a forest
protection district has a fire hazard requiring additional
protection, the operator shall provide such other facilities or
services as the { - forester - } { + division + } by written
notice may direct.
SECTION 16. ORS 477.665 is amended to read:
477.665. (1) During a fire season inside or within one-eighth
of one mile of a forest protection district, every operator using
power-driven machinery in an operation area shall provide fire
watch service on the operation area. The fire watch service shall
consist of not less than one competent person, who shall be
constantly on duty at times prescribed by rules promulgated by
the State Forester. These rules shall require fire watch service
at such times and at such places as the spread of fire on or from
the operation area to forestland reasonably may be expected.
(2) The { - forester may modify or waive, in writing, - }
{ + Forest Practices Act Administration Division of the Oregon
Forest Resources Institute, after consultation with the State
Forester, may issue a written modification or waiver of + } any
requirement of this section { - as to any operation
whenever - } { + for an operation if + } the fire hazard is not
sufficient to justify the requirement.
SECTION 17. ORS 477.670 is amended to read:
477.670. During a fire season inside or within one-eighth of
one mile of a forest protection district situated west of the
summit of the Cascade Mountains, if the forestland in such
district, or any part thereof, is susceptible in the judgment of
the { + State + } Forester to damage by fire, the { + State + }
Forester shall issue notice to that effect. Thereafter the use of
fire in any form by any person in any operation area or the use
of power-driven machinery for any operation, is unlawful unless
approved by { + the Forest Practices Act Administration Division
of the Oregon Forest Resources Institute after consultation with
+ }the { + State + } Forester. Approval shall be granted
{ + by the division + } only when in the judgment of the
{ + State + } Forester the activity will not constitute a fire
hazard sufficient to justify the requirement.
SECTION 18. ORS 526.041 is amended to read:
526.041. The { + State + } Forester, under the general
supervision of the State Board of Forestry, shall:
(1) In compliance with ORS chapter 183, promulgate rules
consistent with law for the enforcement of the state forest laws
relating directly to the protection of forestland and the
conservation of forest resources.
(2) Appoint and instruct fire wardens as provided in ORS
chapter 477.
(3) Direct the improvement and protection of forestland owned
by the State of Oregon.
(4) Collect data relative to forest conditions.
(5) Take action authorized by law to prevent and extinguish
forest, brush and grass fires.
(6) Enforce all laws pertaining to forestland and prosecute
violations of such laws.
(7) Cooperate with { + the Forest Practices Act Administration
Division of the Oregon Forest Resources Institute,
+ }landowners, political subdivisions, private associations and
agencies and others in forest protection.
(8) { - Advise and - } Encourage reforestation.
(9) Publish such information on forestry as the { + State + }
Forester determines to be in the public interest.
(10) Enter into contracts and cooperative agreements pertaining
to experiments and research in forestry.
(11) Sell, exchange or otherwise dispose of any real property
heretofore or hereafter acquired by the board for administrative
purposes and no longer needed.
(12) Coordinate any activities of the State Forestry Department
related to a watershed enhancement project approved by the Oregon
Watershed Enhancement Board under ORS 541.375 with activities of
other cooperating state and federal agencies participating in the
project.
(13) Prescribe uniform state standards for certification of
wildland fire training courses and educational programs.
SECTION 19. ORS 526.060 is amended to read:
526.060. (1) Except as provided in ORS 526.121, 530.147 and
530.280, all assessments, federal apportionments or
contributions, and other moneys received by the { + State + }
Forester or State Board of Forestry, shall be paid into the State
Treasury and credited to the State Forestry Department Account,
which is established separate and distinct from the General Fund.
All moneys in the State Forestry Department Account are
continuously appropriated, and shall be used by the
{ + State + } Forester, under the supervision and direction of
the board, for the purposes authorized by law.
(2) The forester shall keep a record of all moneys deposited in
the State Forestry Department Account. The record shall indicate
by separate cumulative accounts the source from which the moneys
are derived and the individual activity or program against which
each withdrawal is charged. { - All moneys in the account
received pursuant to ORS 527.610 to 527.770 and 527.992 shall be
used only for carrying out the duties, functions and powers of
the State Forestry Department in administering ORS 527.610 to
527.770 and 527.992. - }
(3) The Urban and Community Forestry Subaccount is established
as a subaccount of the State Forestry Department Account. Moneys
in the Urban and Community Forestry Subaccount are continuously
appropriated to the State Forestry Department to be used for
urban and community forest activities described in ORS 469.634
and 469.652.
(4) The State Forest Enhancement Donation Subaccount is
established as a subaccount to the State Forestry Department
Account. Moneys in the State Forest Enhancement Donation
Subaccount are continuously appropriated to the State Forestry
Department to be used for the purposes described in ORS 526.065.
(5) The State Forest Nursery Subaccount is established as a
subaccount to the State Forestry Department Account. Moneys in
the State Forest Nursery Subaccount are continuously appropriated
to the State Forestry Department to be used for the purposes
described in ORS 526.235.
(6) The State Forest Tree Seed Bank Subaccount is established
as a subaccount to the State Forestry Department Account. Moneys
in the State Forest Tree Seed Bank Subaccount are continuously
appropriated to the State Forestry Department to be used for the
purposes described in ORS 526.470.
(7) The State Forest Tree Seed Orchard Subaccount is
established as a subaccount to the State Forestry Department
Account. Moneys in the State Forest Tree Seed Orchard Subaccount
are continuously appropriated to the State Forestry Department to
be used for the purposes described in ORS 526.472.
(8) Notwithstanding ORS 291.238, the moneys credited to the
subaccounts established under subsections (5), (6) and (7) of
this section shall be continuously available on a revolving
basis.
SECTION 20. ORS 526.490 is amended to read:
526.490. (1) It is the policy of the State of Oregon to
encourage the afforestation of idle land for the purpose of
establishing commercial forests if such afforestation is
consistent with landowner objectives. The purpose of this section
is to provide an incentive for afforestation by providing
assurance that the State of Oregon will not prohibit the
harvesting of trees planted on such lands within the first crop
rotation.
(2) As used in this section:
(a) 'Free to grow' means a stand of well-distributed trees that
has a high probability of remaining or becoming vigorous, healthy
and dominant over undesired competing vegetation.
(b) 'Parcel' has the meaning given that term in ORS 92.010.
(3) Notwithstanding ORS 527.676, 527.710 or 527.755 or any
rules promulgated thereunder, and except as provided in
subsection (4) of this section, a person who, after September 9,
1995, plants or causes to be planted a stand of timber that is
intended to become a merchantable stand of timber as defined in
ORS 321.005 on a parcel owned by the person, or a portion of such
parcel not less than five contiguous acres, shall not be
prohibited from harvesting the planted timber provided that:
(a) Prior to the time of planting, the parcel or portion
thereof has not been subject to any forest practice as defined in
ORS 527.620 since July 1, 1972; and
(b) Prior to the time of planting, the stocking of forest tree
species on the subject parcel or portion thereof is less than 25
square feet of basal area per acre.
(4) The provisions of subsection (3) of this section shall not
apply to any land or timber located within 20 feet of any large
or medium stream, or any small stream that is a fish-bearing or
domestic use stream, as defined by the State Board of Forestry.
(5)(a) If, within two to five years of planting under
subsection (3) of this section, the person notifies the
{ - State Forester - } { + Forest Practices Act Administration
Division of the Oregon Forest Resources Institute + }, the
{ - State Forester - } { + division + } shall inspect the
timber and shall issue a certificate to the owner indicating that
a free to grow stand of timber has been established under
subsection (3) of this section and identifying the location of
the timber. Upon request of the owner and payment of any
applicable fee, the county clerk in the county wherein the parcel
is located shall record the certificate as specified under ORS
205.130.
(b) A person who notifies the { - State Forester - } { +
division + } and requests certification shall provide an accurate
plat of the parcel or portion planted under subsection (3) of
this section to the { - State Forester - } { + division + }
as well as photographs that accurately depict the condition of
the land prior to planting.
(c) The State Forester may, by rule, establish a fee or
schedule of fees adequate to cover such necessary expenses
incurred by the { - State Forester - } { + division + } in
conducting inspection and certification activities. Fees may be
charged to the person requesting certification.
(6)(a) Except as provided in subsection (3) of this section,
all forest practices conducted on the planted parcel or portion
thereof shall be subject to the provisions of ORS 527.610 to
527.770, 527.990 (1) and 527.992.
(b) No parcel or portion of such parcel shall be subject to the
provisions of subsections (3) and (5) of this section more than
once.
SECTION 21. ORS 526.770 is amended to read:
526.770. (1) No harvest or removal of forest products on
forestland covered by a contract between the forest landowner and
the Forest Resource Trust shall occur without the landowner or
the timber owner first notifying the State Forester in writing,
on forms prepared by the State Forester, of intent to harvest or
remove forest products. { - Notice shall be made in the same
manner as notice provided under ORS 527.670 (6). - } { + The
State Forester shall adopt rules establishing a procedure for
giving notice under this section. To the extent practicable, the
State Forester shall pattern the notice procedure on the notice
procedure described in ORS 527.670 (6). + }
(2) The notification shall specify where and when the harvest
or removal of forest products will take place, the nature of the
harvest or removal of forest products and where and to whom the
forest products will be sold or delivered and shall include maps
or other information as required by the State Forester. Upon
receipt of notification pursuant to subsection (1) of this
section, the State Forester shall notify the landowner, and any
person to whom the forest products will be sold or delivered, of
the repayment obligation specified in any contract between the
forest landowner and the State Forester. The landowner shall make
payment to the State Forester. Such payment shall be deposited in
the Forest Resource Trust Fund. If payment is not made within 60
days of harvest or removal of forest products, the lien shall be
delinquent and may be foreclosed in the manner described in ORS
526.755.
SECTION 22. 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. { + It is further declared to be in
the public interest to vest the enforcement of those rules with
regard to forest practices described under ORS 527.610 to 527.770
in the Forest Practices Act Administration Division of the Oregon
Forest Resources Institute. + }
(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 (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 23. 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 - } { +
Forest Practices Act Administration Division of the Oregon Forest
Resources Institute + }. The notification shall be on forms
{ - provided - } { + prescribed + } by the State Forester
{ + and provided by the division + } 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 - } { + division + } shall send a copy of
the notice to whichever of the operator, timber owner or
landowner did not submit the notification. The { - State
Forester - } { + division + } 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 - } { + division + }
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 - }
{ + division + } 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 - } { + division + } shall send a copy
of the notice or written plan to any person who requested of the
{ - State Forester - } { + division + } 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 - } { + Oregon
Forest Resources Institute + } may establish a fee for
{ - sending - } { + the division to send + } copies of notices
and written plans under this subsection not to exceed the actual
and reasonable costs. In addition, the { - State Forester - }
{ + division + } 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 - } { + division + }
within 14 calendar days of the date the notice or written plan
was filed with the { - State Forester - } { + division + }
under subsection (2), (6) or (7) of this section. Notwithstanding
the provisions of this subsection, the
{ - State Forester - } { + division + } 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 - } { + division under determinations described in
+ }subsection (3) of this section:
(a) The { - State Forester - } { + division + } shall
review a written plan and may provide comments to the person who
submitted the written plan;
(b) The { - State Forester - } { + division + } 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 - } { + division + } 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 - } { + division + }
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), - } { + division + }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 - } { + division + } do not constitute an approval of the
written plan or operation.
(b) If the { - State Forester or the board - } { +
division + } 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 - }
{ + If the division + } 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 - } { +
division + } shall consider, but { - are - } { + is + } not
bound by, comments that the { - State Forester - } { +
division + } 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 - } { + division + } shall:
(a) Send a copy of the { - State Forester's - } { +
division'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.
SECTION 24. ORS 527.674 is amended to read:
527.674. 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 - } { + makes the approval of written plans by the
Forest Practices Act Administration Division of the Oregon Forest
Resources Institute a prerequisite + }to conducting a forest
practice or operation.
SECTION 25. ORS 527.676 is amended to read:
527.676. (1) In order to contribute to the overall maintenance
of wildlife, nutrient cycling, moisture retention and other
resource benefits of retained wood, when a harvest type 2 unit
exceeding 25 acres or harvest type 3 unit exceeding 25 acres
occurs the operator shall leave on average, per acre harvested,
at least:
(a) Two snags or two green trees at least 30 feet in height and
11 inches DBH or larger, at least 50 percent of which are
conifers; and
(b) Two downed logs or downed trees, at least 50 percent of
which are conifers, that each comprise at least 10 cubic feet
gross volume and are no less than six feet long. One downed
conifer or suitable hardwood log of at least 20 cubic feet gross
volume and no less than six feet long may count as two logs.
(2) In meeting the requirements of this section, the operator
has the sole discretion to determine the location and
distribution of wildlife leave trees, including the ability to
leave snags, trees and logs in one or more clusters rather than
distributed throughout the unit and, if specifically permitted
{ - by the - } { + under + } State Board of Forestry { - by
rule - } { + rules + }, to meet the wildlife leave tree
requirements by counting snags, trees or logs otherwise required
to be left in riparian management areas or resource sites listed
in ORS 527.710, subject to:
(a) Safety and fire hazard regulations;
(b) Rules or other requirements relating to wildlife leave
trees established by the State Board of Forestry or the State
Forester; and
(c) All other requirements pertaining to forest operations.
(3) { + To assist an operator + }in meeting the requirements
of this section, the { - State Forester - } { + Forest
Practices Act Administration Division of the Oregon Forest
Resources Institute + }:
(a) Shall consult with the operator concerning the selection of
wildlife leave trees when the { - State Forester - } { +
division + } believes that retaining certain trees or groups of
trees would provide increased benefits to wildlife.
(b) May approve alternate plans submitted by the operator to
meet the provisions of this section, including but not limited to
waiving:
(A) The requirement that at least 50 percent of wildlife leave
trees be conifers, upon a showing that a site is being
intensively managed for hardwood production; and
(B) In whole or in part, the requirements of this section for
one operation if an alternate plan provides for an equal or
greater number of wildlife leave trees in another harvest type 2
or harvest type 3 operation, that the { - State Forester - }
{ + division + } determines would achieve better overall
benefits for wildlife.
(c) May require, for operations adjacent to a fish-bearing or
domestic use stream, in addition to trees otherwise required to
be left in riparian management areas, up to 25 percent of the
green trees required to be retained under this section to be left
in or adjacent to the riparian management area of the stream.
{ - (d) - } { + (4) The State Board of Forestry + }may
require by rule,
{ - for - } { + that + } operations adjacent to a small,
nonfish-bearing stream subject to rapidly moving landslides as
defined in ORS 195.250,
{ - that - } { + leave + } available green trees and snags
{ - be left - } in or adjacent to the stream. { + If an
operation is subject to a rule described in this subsection, + }
the operator must leave available green trees and snags
{ - under this paragraph - } within an area that is 50 feet on
each side of the stream and no more than 500 feet upstream from a
riparian management area of a fish-bearing stream.
{ - (4) - } { + (5) + } When a harvest type 2 or harvest
type 3 unit occurs adjacent to a prior harvest type 2 or harvest
type 3 unit, resulting in a combined total contiguous acreage of
harvest type 2 or harvest type 3 under single ownership exceeding
25 acres, the wildlife leave tree and downed log requirements of
subsection (1) of this section apply to the combined total
contiguous acreage.
SECTION 26. ORS 527.680 is amended to read:
527.680. (1) { - Whenever the State Forester - } { + If the
Forest Practices Act Administration Division of the Oregon Forest
Resources Institute + } determines that an operator has committed
a violation { + that is punishable + } under ORS 527.990 (1),
the { - State Forester may - } { + division may act on behalf
of the State Board of Forestry to + } issue and serve a citation
upon the operator or authorized representative. The { - State
Forester - } { + division + } shall cause a copy of the
citation to be mailed or delivered to the timber owner and
landowner. { - Whenever the State Forester - } { + If the
division + } determines that the landowner has failed to comply
with the reforestation rules under ORS 527.710, the { - State
Forester may - } { + division may act on behalf of the board to
+ }issue and serve a citation upon the landowner or authorized
representative. Each citation issued under this section shall
specify the nature of the violation charged and any damage or
unsatisfactory condition that has occurred as the result of such
violation.
(2) { - Whenever - } { + If + } a citation is served
pursuant to subsection (1) of this section, the { - State
Forester - } { + division, on behalf of the board + }:
(a) Shall issue and serve upon the landowner or operator or
authorized representative an order directing that the landowner
or operator cease further violation. If the order is served upon
an operator, the { - State Forester - } { + division + }
shall cause a copy of such order to be mailed or delivered to the
timber owner and landowner; and
(b) May issue and serve an order upon the landowner or operator
and shall cause a copy of such order to be mailed or delivered to
the timber owner and landowner, directing the landowner or
operator, where practical and economically feasible, to make
reasonable efforts to repair the damage or correct the
unsatisfactory condition specified in the citation within a
period specified by the { - State Forester - } { +
division + }.
(3) { - In the event - } { + If + } the order issued under
subsection (2)(a) of this section has not been complied with, and
the violation specified in such order is resulting in continuing
damage, the { - State Forester - } { + division + } by
temporary order, may direct the landowner or operator to cease
any further activity in that portion of the operation that is
resulting in such damage. Such temporary order shall be in
effect until the date of the expiration of the period as
prescribed in subsection (4) of this section or until the date
that the violation ceases, whichever date occurs first.
(4) A temporary order issued under subsection (3) of this
section shall be served upon the landowner or operator or
authorized representative, and the { - State Forester - } { +
division + } shall cause a copy of such temporary order to be
mailed or delivered to the operator, timber owner and landowner.
If requested by the operator, timber owner or landowner, the
{ - State - } board { - of Forestry - } , following the
appeal procedures of ORS 527.700, must hold a hearing on the
temporary order within five working days after the receipt by the
board of the request. A temporary order issued and served
pursuant to subsection (3) of this section shall remain in effect
not more than five working days after such hearing unless the
order is sooner affirmed, modified or revoked by the board.
(5) If a landowner or operator fails to comply with a final
order issued under subsection (2)(b) of this section within the
time specified in the order, or if the landowner or operator
fails to comply with a { + board + } final order imposing civil
penalties for violation of any provision of the Oregon Forest
Practices Act, the
{ - State Forester - } { + division + } may issue an order
that prohibits the affected landowner or operator from conducting
any new operations on any forestland in this state until the
landowner or operator has complied with the order to correct an
unsatisfactory condition, make repair or pay the civil penalty,
as the case may be, to the satisfaction of the { - State
Forester. - } { + division.
(6) The division shall provide a copy of any citation or order
issued under this section to the State Forester. + }
SECTION 27. ORS 527.683 is amended to read:
527.683. (1) No civil penalty prescribed in ORS 527.992 shall
be imposed until the person incurring the penalty has received
notice in writing from the { - State Forester - } { + Forest
Practices Act Administration Division of the Oregon Forest
Resources Institute + } specifying the violation. Such notice is
in addition to the notice required in ORS 183.745.
(2) The citation issued pursuant to ORS 527.680 (1) and the
order issued pursuant to ORS 527.680 (2)(b) shall each constitute
the notice required by subsection (1) of this section.
SECTION 28. ORS 527.685 is amended to read:
527.685. (1) The State Board of Forestry shall by rule
establish the amount of civil penalty that { - may be
imposed - } { + the Forest Practices Act Administration
Division of the Oregon Forest Resources Institute, acting on
behalf of the board, may impose + }for a particular { + type
of + } violation. Except as provided in subsection (5) of this
section, no civil penalty shall exceed $5,000 per violation.
(2) In imposing a penalty authorized by this section, the
{ - State Forester - } { + division + } may consider the
following factors:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules, orders and permits
pertaining to the Oregon Forest Practices Act.
(c) The gravity and magnitude of the violation.
(d) Whether the violation was repeated or continuous.
(e) Whether the cause of the violation was an unavoidable
accident, negligence or an intentional act.
(f) The size and type of ownership of the operation.
(g) Any relevant rule of the board.
(h) The violator's cooperativeness and efforts to correct the
violation.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the board determines
to be proper and consistent with the public benefit. Upon the
request of the person incurring the penalty, the board shall
consider evidence of the economic and financial condition of the
person in determining whether a penalty shall be remitted or
mitigated.
(4) The board, by rule, may delegate to the { - State
Forester - } { + division + } upon such conditions as
{ - deemed - } { + the board deems + } necessary, all or part
of the authority of the board provided in subsection (3) of this
section to { - assess, - } remit or mitigate civil penalties.
(5) For a violation of ORS 527.745, or rules for reforestation
adopted pursuant to ORS 527.745, the { - State Forester - }
{ + division + } may impose a civil penalty in an amount equal
to the estimated cost of reforesting lands pursuant to ORS
527.690.
SECTION 29. ORS 527.690 is amended to read:
527.690. (1) { - In the event - } { + If + } an order
issued pursuant to ORS 527.680 (2)(b) directs the repair of
damage or correction of an unsatisfactory condition, including
compliance with reforestation requirements, and if the operator
or landowner does not comply with the order within the period
specified in such order and the order has not been appealed to
the State Board of Forestry within 30 days, the { - State
Forester - } { + Forest Practices Act Administration Division
of the Oregon Forest Resources Institute + } based upon a
determination by the { - forester - } { + division, after
consultation with the State Forester, + }of what action will
best carry out the purposes of ORS 527.630 shall:
(a) Maintain an action { + , in the name of the Oregon Forest
Resources Institute, + } in the Circuit Court for Marion County
or the circuit court for the county in which the violation
occurred for an order requiring the landowner or operator to
comply with the terms of the { - forester's - } { +
division's + } order or to restrain violations { - thereof - }
{ + of the order + }; or
(b) Estimate the cost to repair the damage or the
unsatisfactory condition as directed by the order and shall
notify the operator, timber owner and landowner in writing of the
amount of the estimate. Upon agreement of the operator, timber
owner or the landowner to pay the cost, the State Forester may
proceed to repair the damage or the unsatisfactory condition.
{ - In the event - } { + If + } approval of the expenditure is
not obtained within 30 days after notification to the operator,
timber owner and landowner under this section, the { - State
Forester - } { + division + } shall present to the { + State
Forester and the + } board the alleged violation, the estimate of
the expenditure to repair the damage or unsatisfactory condition
and the justification for the expenditure.
(2) The board shall review the matter presented to it pursuant
to subsection (1) of this section and shall determine whether to
authorize the State Forester to proceed to repair the damage or
correct the unsatisfactory condition and the amount authorized
for expenditure. The board shall afford the operator, timber
owner or landowner the opportunity to appear before the board for
the purpose of presenting facts pertaining to the alleged
violation and the proposed expenditure.
(3) If the board authorizes the State Forester to repair the
damage or correct the unsatisfactory condition, the State
Forester shall proceed, either with forces of the State Forester
or by contract, to repair the damage or correct the
unsatisfactory condition. The State Forester shall keep a
complete account of direct expenditures incurred, and upon
completion of the work, shall prepare an itemized statement
{ - thereof and - } { + of the expenditures. The division + }
shall deliver a copy to the operator, timber owner and landowner.
{ - In no event shall - } The expenditures { + may not + }
exceed the amount authorized by subsection (2) of this section.
An itemized statement of the direct expenditures incurred by the
State Forester, certified by the State Forester, shall be
accepted as prima facie evidence of such expenditures in any
proceeding authorized by this section. If the State Forester's
action to repair the damage or correct the unsatisfactory
condition arose from an operation for which a bond, cash deposit
or other security was required under ORS 527.760, the State
Forester shall retain any applicable portion of a cash deposit
and the surety on the bond or holder of the other security
deposit shall pay the amount of the bond or other security
deposit to the State Forester upon demand. If the amount
specified in the demand is not paid within 30 days following the
demand, the Attorney General, upon request by the State Forester,
shall institute proceedings to recover the amount specified in
the demand.
(4) The expenditures in cases covered by this section,
including cases where the amount collected on a bond, deposit or
other security was not sufficient to cover authorized
expenditures, shall constitute a general lien upon the real and
personal property of the operator, timber owner and landowner
within the county in which the damage occurred. A written notice
of the lien, containing a statement of the demand, the
description of the property upon which the expenditures were made
and the name of the parties against whom the lien attaches, shall
be certified under oath by the State Forester and filed in the
office of the county clerk of the county or counties in which the
expenditures were made within six months after the date of
delivery of the itemized statement referred to in subsection (3)
of this section, and may be foreclosed in the manner provided in
ORS chapter 88.
(5) All moneys recovered under this section shall be paid into
the State Forestry Department Account.
SECTION 30. 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 - } { +
Forest Practices Act Administration Division of the Oregon Forest
Resources Institute + } 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
administrative law judge 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 - } { + division + } 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
{ - State Forester - } { + division + } 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 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. The board shall issue its own comments, which may
affirm, modify or rescind comments of the { - State
Forester - } { + division + }, if any, on the written plan
within 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 - } { +
division + } 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 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 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 rescinds or modifies the comments on the
written plan as submitted by the { - State Forester - } { +
division + } pertaining to any operation, the board 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 31. 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
chapter 183, rules to be administered by the { - State
Forester - } { + Forest Practices Act Administration Division of
the Oregon Forest Resources Institute + } 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, conservation and conservation tax
incentive programs administered by the State Land Board and the
Department of State Lands under ORS 196.800 to 196.900 and
273.553 to 273.591;
(g) Federal Safe Drinking Water Act programs administered by
the Oregon Health Authority under ORS 448.273 to 448.990;
(h) Conservation and conservation tax incentive 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 - } { + give effect to + } 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.
(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 study completed pursuant to section 15
(2)(f), chapter 919, Oregon Laws 1991, 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 - } { + by the
State Forester under + } paragraph (a) of this subsection, the
{ - State Forester - } { + division + } 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) 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 32. ORS 527.722 is amended to read:
527.722. (1) Notwithstanding any provisions of ORS chapters
195, 196, 197, 215 and 227, and except as provided in subsections
(2), (3) and (4) of this section, no unit of local government
shall adopt any rules, regulations or ordinances or take any
other actions that prohibit, limit, regulate, subject to approval
or in any other way affect forest practices on forestlands
located outside of an acknowledged urban growth boundary.
(2) Nothing in subsection (1) of this section prohibits local
governments from adopting and applying a comprehensive plan or
land use regulation to forestland to allow, prohibit or regulate:
(a) Forest practices on lands located within an acknowledged
urban growth boundary;
(b) Forest practices on lands located outside of an
acknowledged urban growth boundary, and within the city limits as
they exist on July 1, 1991, of a city with a population of
100,000 or more, for which an acknowledged exception to an
agriculture or forestland goal has been taken;
(c) The establishment or alteration of structures other than
temporary on-site structures which are auxiliary to and used
during the term of a particular forest operation;
(d) The siting or alteration of dwellings;
(e) Physical alterations of the land, including but not limited
to those made for purposes of exploration, mining, commercial
gravel extraction and processing, landfills, dams, reservoirs,
road construction or recreational facilities, when such uses are
not auxiliary to forest practices; or
(f) Partitions and subdivisions of the land.
(3) Nothing in subsection (2) of this section shall prohibit a
local government from enforcing the provisions of ORS 455.310 to
455.715 and the rules adopted thereunder.
(4) Counties may prohibit, but in no other manner regulate,
forest practices on forestlands:
(a) Located outside an acknowledged urban growth boundary; and
(b) For which an acknowledged exception to an agricultural or
forest land goal has been taken.
(5) To ensure that all forest operations in this state are
regulated to achieve protection of soil, air, water, fish and
wildlife resources, in addition to all other forestlands, the
Oregon Forest Practices Act applies to forest operations inside
any urban growth boundary except in areas where a local
government has adopted land use regulations for forest practices.
For purposes of this subsection, 'land use regulations for forest
practices' means local government regulations that are adopted
for the specific purpose of directing how forest operations and
practices may be conducted. These local regulations shall:
(a) Protect soil, air, water, fish and wildlife resources;
(b) Be acknowledged as in compliance with land use planning
goals;
(c) Be developed through a public process;
(d) Be developed for the specific purpose of regulating forest
practices; and
(e) Be developed in coordination with the State Forestry
Department and with notice to the Department of Land Conservation
and Development.
(6) To coordinate with local governments in the protection of
soil, air, water, fish and wildlife resources, the { - State
Forester - } { + Forest Practices Act Administration Division
of the Oregon Forest Resources Institute + } shall provide local
governments with a copy of the notice or written plan for a
forest operation within any urban growth boundary. Local
governments may review and comment on an individual forest
operation and inform the landowner or operator of all other
regulations that apply but that do not pertain to activities
regulated under the Oregon Forest Practices Act.
(7) The existence or adoption by local governments of a
comprehensive plan policy or land use regulation regulating
forest practices consistent with subsections (1) to (5) of this
section shall relieve the { - State Forester - } { +
division + } of responsibility to administer the Oregon Forest
Practices Act within the affected area.
(8) The Director of the Department of Land Conservation and
Development shall provide the { - State Forester - } { +
division + } copies of notices submitted pursuant to ORS 197.615,
whenever such notices concern the adoption, amendment or repeal
of a comprehensive land use regulation allowing, prohibiting or
regulating forest practices.
SECTION 33. ORS 527.736 is amended to read:
527.736. (1) The standards established in ORS 527.740 to
527.750 shall be administered by the { - State Forester - }
{ + Forest Practices Act Administration Division of the Oregon
Forest Resources Institute + } as standards applying to all
operations in the state, including those on forestland owned by
the state or any political subdivision thereof. Pursuant to ORS
527.710 the State Board of Forestry shall adopt, repeal or amend
forest practice rules as necessary to be consistent with and to
implement the standards established in ORS 527.740 to 527.750.
Except as provided in ORS 527.714, nothing in ORS 468B.100 to
468B.110, 477.562, 527.620, 527.670, 527.690, 527.710, 527.715,
527.722, 527.724 and 527.736 to 527.770 shall affect the powers
and duties of the board to adopt, or { + of + } the State
Forester { + or the division as applicable + } to administer,
all other regulations pertaining to forest practices under
{ - applicable - } state law.
(2) Nothing in ORS 527.740 to 527.750 is intended to apply to
cutting of trees that is for growth enhancement treatments, as
defined by the State Forester, such as thinning or precommercial
thinning { + approved by the division + }.
(3) The State Board of Forestry may modify or waive the
limitations and requirements of ORS 527.676, 527.740, 527.750 and
527.755 for the purposes of a bona fide research project
conducted by:
(a) A federal agency;
(b) Agencies of the executive department, as defined in ORS
174.112;
(c) An educational institution; or
(d) A private landowner.
(4) The State Board of Forestry may agree as a term of a
stewardship agreement entered into under ORS 541.423 to modify or
waive the limitations and requirements of ORS 527.676, 527.740,
527.750 and 527.755.
(5) The State Board of Forestry may modify or waive the
limitations and requirements of ORS 527.676, 527.740, 527.750 and
527.755 for the purpose of an operation for the planting,
growing, managing or harvesting of hardwood timber, including but
not limited to hybrid cottonwood, if:
(a) The timber is grown on land that has been prepared by
intensive cultivation methods and is cleared of competing
vegetation for at least three years after planting;
(b) The timber is harvested on a rotation cycle of more than 12
years and less than 20 years after planting; and
(c) The timber is subject to intensive agricultural practices,
including but not limited to fertilization, cultivation,
irrigation, insect control and disease control.
SECTION 34. ORS 527.740 is amended to read:
527.740. (1) No harvest type 3 unit within a single ownership
shall exceed 120 acres in size, except as provided in ORS
527.750.
(2) 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 harvest type 3 areas
subject to regulation under the Oregon Forest Practices Act would
exceed 120 acres in size, unless the prior harvest type 3 unit
has been reforested as required 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 State Board of
Forestry.
(3) Any acreage attributable to riparian areas or to resource
sites listed in ORS 527.710 (3) that is located within a harvest
unit shall not be counted in calculating the size of a harvest
type 3 unit.
(4) The provisions of this section shall not apply when the
land is being converted to managed conifers or managed hardwoods
from brush or hardwood stands that contain less than 80 square
feet of basal area per acre of trees 11 inches DBH or greater or
when the harvest type 3 results from disasters such as fire,
insect infestation, disease, windstorm or other occurrence that
the { - State Forester - } { + Forest Practices Act
Administration Division of the Oregon Forest Resources
Institute + } determines was beyond the landowner's control and
has substantially impaired productivity or safety on the unit or
jeopardizes nearby forestland. The prior approval of the
{ - State Forester - } { + division + } shall be required for
such conversion or harvest type 3 operations that exceed 120
acres in size.
(5) The provisions of this section do not apply to any
operation where the operator demonstrates to the { - State
Forester - } { + division + } that:
(a) The trees are subject to a cutting right created by written
contract prior to October 1, 1990, which provides that the trees
must be paid for regardless of whether the trees are cut, or
subject to a cutting right created by reservation in a deed prior
to October 1, 1990; and
(b) If the provisions of this section were applied, the cutting
right would expire before all the trees subject to the cutting
right could reasonably be harvested.
SECTION 35. ORS 527.745 is amended to read:
527.745. (1) The State Board of Forestry shall adopt standards
for the reforestation of harvest type 1 and harvest type 3.
Unless the board makes the findings for alternate standards under
subsection (2) of this section, the standards for the
reforestation of harvest type 1 and harvest type 3 shall include
the following:
(a) Reforestation, including site preparation, shall commence
within 12 months after the completion of harvest and shall be
completed by the end of the second planting season after the
completion of harvest. By the end of the fifth growing season
after planting or seeding, at least 200 healthy conifer or
suitable hardwood seedlings or lesser number as permitted by the
board by rule, shall be established per acre, well-distributed
over the area, which are 'free to grow' as defined by the board.
(b) Landowners may submit plans for alternate practices that do
not conform to the standards established under paragraph (a) of
this subsection or the alternate standards adopted under
subsection (2) of this section, including but not limited to
variances in the time in which reforestation is to be commenced
or completed or plans to reforest sites by natural reforestation.
Such alternate plans may be approved if the { - State
Forester - } { + Forest Practices Act Administration Division of
the Oregon Forest Resources Institute + }determines that the
plan will achieve equivalent or better regeneration results for
the particular conditions of the site, or the plan carries out an
authorized research project conducted by a public agency or
educational institution.
(2) The board, by rule, may establish alternate standards for
the reforestation of harvest type 1 and harvest type 3, in lieu
of the standards established in subsection (1) of this section,
but in no case can the board require the establishment of more
than 200 healthy conifer or suitable hardwood seedlings per acre.
Such alternate standards may be adopted upon finding that the
alternate standards will better assure the continuous growing and
harvesting of forest tree species and the maintenance of
forestland for such purposes, consistent with sound management of
soil, air, water, fish and wildlife resources based on one or
more of the following findings:
(a) Alternate standards are warranted based on scientific data
concerning biologically effective regeneration;
(b) Different standards are warranted for particular geographic
areas of the state due to variations in climate, elevation,
geology or other physical factors; or
(c) Different standards are warranted for different tree
species, including hardwoods, and for different growing site
conditions.
(3) Pursuant to ORS 527.710, the board may adopt definitions,
procedures and further regulations to implement the standards
established under subsection (1) of this section, without making
the findings required in subsection (2) of this section, if those
procedures or regulations are consistent with the standards
established in subsection (1) of this section.
(4) The board shall encourage planting of disease and insect
resistant species in sites infested with root pathogens or where
planting of susceptible species would significantly facilitate
the spread of a disease or insect pest and there are immune or
more tolerant commercial species available which are adapted to
the site.
(5) Notwithstanding subsections (1), (2) and (3) of this
section, in order to remove potential disincentives to the
conversion of underproducing stands, as defined by the board, or
the salvage of stands that have been severely damaged by
wildfire, insects, disease or other factors beyond the
landowner's control, the { - State Forester - } { +
division + } may suspend the reforestation requirements for
specific harvest type 1 or harvest type 3 units in order to take
advantage of the Forest Resource Trust provisions, or other
cost-share programs administered by the State Forester or where
the State Forester is the primary technical adviser. Such
suspension may occur only on an individual case basis, in
writing, based on a determination by the { - State Forester - }
{ + division + } that the cost of harvest preparation, harvest,
severance and applicable income taxes, logging, site preparation,
reforestation and any other measures necessary to establish a
free to grow forest stand will likely exceed the gross revenues
of the harvest. The board shall adopt rules implementing this
subsection establishing the criteria for and duration of the
suspension of the reforestation requirements.
SECTION 36. 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 - } { + Forest Practices Act Administration
Division of the Oregon Forest Resources Institute + } 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 - } { + division + } 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:
(a) The prior harvest type 3 unit has been reforested by all
applicable regulations;
(b) At least the minimum tree stocking required by rule is
established per acre; and
(c)(A) The resultant stand of trees has attained an average
height of at least four feet; or
(B) 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 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 - } { + division + } 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 37. ORS 527.755 is amended to read:
527.755. (1) The following highways are hereby designated as
scenic highways for purposes of the Oregon Forest Practices Act:
(a) Interstate Highways 5, 84, 205, 405; and
(b) State Highways 6, 7, 20, 18/22, 26, 27, 30, 31, 34, 35, 36,
38, 42, 58, 62, 66, 82, 97, 101, 126, 138, 140, 199, 230, 234 and
395.
(2) The purpose of designating scenic highways is to provide a
limited mechanism that maintains roadside trees for the enjoyment
of the motoring public while traveling through forestland,
consistent with ORS 527.630, safety and other practical
considerations.
(3) The State Board of Forestry, in consultation with the
Department of Transportation, shall establish procedures and
regulations as necessary to implement the requirements of
subsections (4), (5) and (6) of this section, consistent with
subsection (2) of this section, including provisions for
alternate plans. Alternate plans that modify or waive the
requirements of subsection (4), (5) or (6) of this section may be
approved when, in the judgment of the { - State Forester - }
{ + Forest Practices Act Administration Division of the Oregon
Forest Resources Institute + }, circumstances exist such as:
(a) Modification or waiver is necessary to maintain motorist
safety, protect improvements such as dwellings and bridges, or
protect forest health;
(b) Modification or waiver will provide additional scenic
benefits to the motoring public, such as exposure of distant
scenic vistas;
(c) Trees that are otherwise required to be retained will not
be visible to motorists;
(d) The operation involves a change of land use that is
inconsistent with maintaining a visually sensitive corridor; or
(e) The retention of timber in a visually sensitive corridor
will result in severe economic hardship for the owner because all
or nearly all of the owner's property is within the visually
sensitive corridor.
(4)(a) For harvest operations within a visually sensitive
corridor, at least 50 healthy trees of at least 11 inches DBH, or
that measure at least 40 square feet in basal area, shall be
temporarily left on each acre.
(b) Overstory trees initially required to be left under
paragraph (a) of this subsection may be removed when the
reproduction understory reaches an average height of at least 10
feet and has at least the minimum number of stems per acre of
free to grow seedlings or saplings required by the board for
reforestation, by rule.
(c) Alternatively, when the adjacent stand, extending from 150
feet from the outermost edge of the roadway to 300 feet from the
outermost edge of the roadway, has attained an average height of
at least 10 feet and has at least the minimum number of stems per
acre of free to grow seedlings or saplings required by the board
for reforestation, by rule, or at least 40 square feet of basal
area per acre, no trees are required to be left in the visually
sensitive corridor, or trees initially required to be left under
paragraph (a) of this subsection may be removed. When harvests
within the visually sensitive corridor are carried out under this
paragraph, the adjacent stand, extending from 150 feet from the
outermost edge of the roadway to 300 feet from the outermost edge
of the roadway, shall not be reduced below the minimum number of
stems per acre of free to grow seedlings or saplings at least 10
feet tall required by the board for reforestation, by rule, or
below 40 square feet of basal area per acre until the adjacent
visually sensitive corridor has been reforested as required under
subsection (6) of this section and the stand has attained an
average height of at least 10 feet and has at least the minimum
number of stems per acre.
(5) Harvest areas within a visually sensitive corridor shall be
cleared of major harvest debris within 30 days of the completion
of the harvest, or within 60 days of the cessation of active
harvesting activity on the site, regardless of whether the
harvest operation is complete.
(6) Notwithstanding the time limits established in ORS 527.745
(1)(a), when harvesting within a visually sensitive corridor
results in a harvest type 1 or harvest type 3, reforestation
shall be completed by the end of the first planting season after
the completion of the harvest. All other provisions of ORS
527.745 shall also apply to harvest type 1 or harvest type 3
within visually sensitive corridors.
(7) Landowners and operators shall not be liable for injury or
damage caused by trees left within the visually sensitive
corridor for purposes of fulfilling the requirements of this
section, when carried out in compliance with the provisions of
the Oregon Forest Practices Act.
(8) The following are exempt from this section:
(a) Harvest on single ownerships less than five acres in size;
(b) Harvest within an urban growth boundary, as defined in ORS
195.060; and
(c) Harvest within zones designated for rural residential
development pursuant to an exception adopted to the statewide
land use planning goals under ORS 197.732.
SECTION 38. ORS 527.760 is amended to read:
527.760. (1) The State Board of Forestry shall review its rules
governing changes in land use and adopt or amend rules as
necessary to assure that only bona fide, established and
continuously maintained changes from forest uses are provided an
exemption from reforestation requirements. The board shall set
specific time periods for the completion of land use conversions.
Among other factors, the board shall condition exemptions from
reforestation requirements upon:
(a) Demonstrating the intended change in land use is authorized
under local land use and zoning ordinances, including obtaining
and maintaining all necessary land use or construction permits
and approvals for the intended change in land use;
(b) Demonstrating progress toward the change in land use within
the time required for planting of trees, and substantial
completion and continuous maintenance of the change in land use
in a time certain;
(c) Allowing an exemption for only the smallest land area
necessary to carry out the change in land use, and requiring that
additional land area within the harvest unit remains subject to
all applicable reforestation requirements; and
(d) Allowing an exemption only to the extent that the proposed
land use is not compatible with the maintenance of forest cover.
(2) The board may require that, prior to commencing an
operation where a change in land use is proposed, a bond, cash
deposit, irrevocable letter of credit or other security be filed
with the State Forester in an amount determined by the
{ - State Forester - } { + Forest Practices Act Administration
Division of the Oregon Forest Resources Institute + } sufficient
to cover the cost of site preparation and reforestation for the
area subject to an exemption from reforestation due to a change
in land use, and shall require that provisions be made for the
administration and collection on such bond or security deposit in
the event that the change in land use is not established or
continuously maintained within a time certain.
(3) Nothing in this section is intended to exempt any change in
land use from, nor affect the applicability and administration
of, any planning, zoning or permitting requirements provided
under state or local laws or regulations.
SECTION 39. 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 - } { + Forest Practices Act Administration Division
of the Oregon Forest Resources Institute + }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 the { - State Forester - } { +
division + } 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 40. { + (1) The Forest Practices Act Administration
Division of the Oregon Forest Resources Institute shall enter
into contracts under section 1 of this 2011 Act for the provision
of services described in section 1 of this 2011 Act to commence
on July 1, 2012.
(2) The amendments to ORS 93.710, 321.152, 321.367, 321.550,
390.235, 477.001, 477.120, 477.580, 477.615, 477.625, 477.630,
477.635, 477.650, 477.660, 477.665, 477.670, 526.041, 526.060,
526.490, 526.770, 527.630, 527.670, 527.674, 527.676, 527.680,
527.683, 527.685, 527.690, 527.700, 527.710, 527.722, 527.736,
527.740, 527.745, 527.750, 527.755, 527.760 and 527.992 by
sections 2 to 39 of this 2011 Act become operative July 1, 2012.
(3) The amendments to ORS 93.710, 321.152, 321.367, 321.550,
390.235, 477.001, 477.120, 477.580, 477.615, 477.625, 477.630,
477.635, 477.650, 477.660, 477.665, 477.670, 526.041, 526.060,
526.490, 526.770, 527.630, 527.670, 527.674, 527.676, 527.680,
527.683, 527.685, 527.690, 527.700, 527.710, 527.722, 527.736,
527.740, 527.745, 527.750, 527.755, 527.760 and 527.992 by
sections 2 to 39 of this 2011 Act apply to forest operations
subject to ORS 527.610 to 527.770, 527.990 and 527.992 that
commence on or after July 1, 2012. Forest operations subject to
ORS 527.610 to 527.770, 527.990 and 527.992 that commence before
July 1, 2012, are subject to regulation by the State Forester and
State Board of Forestry as provided under the laws in effect at
the time the operation commenced. + }
SECTION 41. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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