68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
Enrolled
Senate Bill 160
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of State Board of Forestry)
CHAPTER ................
AN ACT
Relating to the Oregon Forest Practices Act; creating new
provisions; amending ORS 527.620, 527.630, 527.670, 527.687,
527.736, 527.740, 527.745, 527.750, 527.755, 527.990 and
527.992 and section 5, chapter 919, Oregon Laws 1991; and
repealing section 5a, chapter 919, Oregon Laws 1991.
Be It Enacted by the People of the State of Oregon:
+ }
**************************** SECTION 1. ORS 527.620 is amended
to read:
527.620. As used in ORS 527.610 to 527.770, 527.990 and
527.992:
(1) 'Board' means the State Board of Forestry.
{ - (2) 'Clear-cut' means any harvest unit in western Oregon
that leaves fewer than 50 trees per acre that are
well-distributed over the unit and that measure at least 11
inches at DBH or that measure less than 40 square feet of basal
area per acre. 'Clear-cut' means any harvest unit in eastern
Oregon that leaves fewer than 15 trees per acre that are
well-distributed over the unit and that measure at least 10
inches at DBH. For purposes of this subsection, no tree shall be
counted unless the top one-third of the bole of the tree supports
a green, live crown. For purposes of computing basal area, trees
larger than 20 inches shall be considered 20-inch trees. - }
{ + (2) 'Harvest type 1' means an operation that requires
reforestation but does not require wildlife leave trees. A
harvest type 1 is an operation that leaves a combined stocking
level of free to grow seedlings, saplings, poles and larger trees
that is less than the stocking level established by rule of the
board which represents adequate utilization of the productivity
of the site.
(3) 'Harvest type 2' means an operation that requires wildlife
leave trees but does not require reforestation. A harvest type 2
does not require reforestation because it has an adequate
combined stocking of free to grow seedlings, saplings, poles and
larger trees, but which leaves:
(a) On Cubic Foot Site Class I, II or III, fewer than 50
11-inch DBH trees or less than an equivalent basal area in larger
trees, per acre;
(b) On Cubic Foot Site Class IV or V, fewer than 30 11-inch DBH
trees or less than an equivalent basal area in larger trees, per
acre; or
(c) On Cubic Foot Site Class VI, fewer than 15 11-inch DBH
trees or less than an equivalent basal area in larger trees, per
acre.
(4) 'Harvest type 3' means an operation that requires
reforestation and requires wildlife leave trees. This represents
a level of stocking below which the size of operations is limited
per ORS 527.740 and 527.750. + }
{ - (3) - } { + (5) + } 'Cumulative effects' means the
impact on the environment which results from the incremental
impact of the forest practice when added to other past, present
and reasonably foreseeable future forest practices regardless of
what governmental agency or person undertakes such other actions.
{ - (4) - } { + (6) + } 'DBH' means the diameter at breast
height which is measured as the width of a standing tree at four
and one-half feet above the ground, on the uphill side.
{ + (7) 'Edge of the roadway' means:
(a) For interstate highways, the fence.
(b) For all other state highways, the outermost edge of
pavement, or if unpaved, the edge of the shoulder. + }
{ - (5) - } { + (8) + } 'Forestland' means land which is
used for the growing and harvesting of forest tree species,
regardless of how the land is zoned or taxed or how any state or
local statutes, ordinances, rules or regulations are applied.
{ - (6) - } { + (9) + } 'Forest practice' means any
operation conducted on or pertaining to forestland, including but
not limited to:
(a) Reforestation of forestland;
(b) Road construction and maintenance;
(c) Harvesting of forest tree species;
(d) Application of chemicals; and
(e) Disposal of slash.
{ - (7) - } { + (10) + } 'Forest tree species' does not
include:
(a) Christmas trees on land used solely for the production of
cultured Christmas trees as defined in ORS 215.203 (3).
(b) Hardwood timber, including but not limited to hybrid
cottonwood, which is:
(A) Grown or growing on land which has been prepared by
intensive cultivation methods and which is cleared of competing
vegetation for at least three years after tree planting;
(B) Of a species marketable as fiber for inclusion in the '
furnish' for manufacturing paper products;
(C) Harvested on a rotation cycle within { - 10 - } { +
12 + } years after planting; and
(D) Subject to intensive agricultural practices such as
fertilization, insect and disease control, cultivation and
irrigation.
{ - (8) - } { + (11) + } 'Landowner' means any individual,
combination of individuals, partnership, corporation or
association of whatever nature that holds an ownership interest
in forestland, including the state and any political subdivision
thereof.
{ - (9) - } { + (12) + } 'Operation' means any commercial
activity relating to the growing or harvesting of forest tree
species.
{ - (10) - } { + (13) + } 'Operator' means any person,
including a landowner or timber owner, who conducts an operation.
{ + (14) 'Single ownership' means ownership by an individual,
partnership, corporation, limited liability company, trust,
holding company or other business entity, including the state or
Enrolled Senate Bill 160 Page 2
any political subdivision thereof. Single ownership includes
ownership held under different names or titles where the same
individual or individuals, or their heirs or assigns, are
shareholders (other than those of public corporations whose stock
is traded on the open market), partners, business trustees or
officers, or otherwise have an interest in or are associated with
each property. + }
{ - (11) - } { + (15) + } 'State Forester' means the State
Forester or the duly authorized representative of the State
Forester.
{ - (12) - } { + (16) + } 'Suitable hardwood seedlings'
means any hardwood seedling that will eventually yield logs or
fiber, or both, sufficient in size and quality for the production
of lumber, plywood, pulp or other forest products.
{ - (13) - } { + (17) + } 'Timber owner' means any
individual, combination of individuals, partnership, corporation
or association of whatever nature, other than a landowner, that
holds an ownership interest in any forest tree species on
forestland.
{ - (14) - } { + (18) + } 'Visually sensitive corridor'
means forestland
{ - located within the area - } extending { + outward + } 150
feet { + , + } measured on the slope { + , + } from the outermost
{ - right of way boundary - } { + edge of the roadway + } of a
scenic highway referred to in ORS 527.755 { + , along both sides
for the full length of the highway + }.
{ + (19) 'Wildlife leave trees' means trees or snags required
to be retained as described in section 5 (1), chapter 919, Oregon
Laws 1991. + }
{ - (15) - } { + (20) + } 'Written plan' means a plan
submitted by an operator, for written approval by the State
Forester, which describes how the operation will be conducted,
including the means to protect resource sites described in ORS
527.710 (3)(a) and information required by ORS 527.745 and
527.750, if applicable.
**************************** SECTION 2. ORS 527.670 is amended
to read:
527.670. (1) The { + State + } Board { + of Forestry + }
shall designate the types of operations for which notice shall be
required under this section.
(2) The board shall determine by rule what types of operations
require a written plan to be approved by the State Forester.
(3)(a) The board's determination under subsection (2) of this
section shall require a written plan for operations:
(A) Within one hundred feet of a { - Class 1 - } 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 { - there is no reasonable
likelihood that such operations would damage a resource described
in ORS 527.710 (2), within the riparian management area - }
{ + the proposed operation will be conducted according to a
general vegetation retention prescription described in
administrative rule + };
(B) Within three hundred feet of a resource site inventoried
pursuant to ORS 527.710 (3)(a); { + or + }
{ - (C) On lands determined by the State Forester to be
within high risk sites, unless the board, by rule, provides that
a written plan is not required because there is no reasonable
likelihood that such operations would damage a resource described
in ORS 527.710 (2); or - }
Enrolled Senate Bill 160 Page 3
{ - (D) - } { + (C) + } { - On lands to be clear-cut - }
{ + That will result in harvest type 3 + } in excess of 120
acres pursuant to ORS 527.750.
(b) Plans submitted under paragraph (a)(C) { - and (D) - }
of this subsection are not subject to appeal under ORS 527.700
(3).
{ - (c) The board shall adopt rules and standards for which a
written plan may be required for final clear-cut harvest
operations of any stand of an average age less than 40 years. The
written plan for such an operation must address the environmental
consequences of the harvest and the economic costs and
benefits. - }
(4) The distances set forth in subsection (3)(a)(A) and (B) of
this section are solely for the purpose of defining an area
within which a hearing may be requested under ORS 527.700 and not
the area to be protected by the board's rules adopted pursuant to
ORS 527.710 (3)(c).
(5) For the purpose of determining the distances set forth in
subsection (3)(a)(A) and (B) of this section 'site' means the
specific resource site and not any additional buffer area.
(6) An operator, timber owner or landowner, before commencing
an operation, shall notify the State Forester. The notification
shall be on forms provided by the State Forester and shall
include the name and address of the operator, timber owner and
landowner, the legal description of the operating area, and any
other information considered by the State Forester to be
necessary for the administration of the rules promulgated by the
board pursuant to ORS 527.710. Promptly upon receipt of such
notice, the State Forester shall send a copy of the notice to
whichever of the operator, timber owner or landowner did not
submit the notification. The State Forester shall send a copy of
notices involving chemical applications to persons within 10
miles of the chemical application who hold downstream surface
water rights pursuant to ORS chapter 537, if such a person has
requested that notification in writing. The board shall adopt
rules specifying the information to be contained in the notice.
All information filed with the State Forester pertaining to
chemical applications shall be public record. { - The State
Forester shall also send to the operator, the timber owner and
the landowner a copy of the rules applicable to the proposed
operation. - }
(7) An operator, timber owner or landowner, whichever filed the
original notification, shall notify the State Forester of any
subsequent change in the information contained in the
notification.
(8) Within three working days of receipt of a notice or a
written plan filed under subsection (6) or (7) of this section,
the State Forester shall send a copy of the notice or written
plan to any person who requested of the State Forester in writing
that the person be sent copies of notice and written plan and who
has paid any applicable fee established by the State Forester for
such service. The State Forester may establish a fee for sending
copies of notices and written plans under this subsection not to
exceed the actual and reasonable costs. In addition, the State
Forester shall send a copy of the notification to the Department
of Revenue and the county assessor for the county in which the
operation is located, at times and in a manner determined through
written cooperative agreement by the parties involved.
(9) Persons may submit written comments pertaining to the
operation to the State Forester within 14 calendar days of the
Enrolled Senate Bill 160 Page 4
date the notice or written plan was filed with the State Forester
under subsection (2), (6) or (7) of this section. Notwithstanding
the provisions of this subsection, the State Forester may waive
any waiting period for operations not requiring a written plan
under subsection (3) of this section, except those operations
involving aerial application of chemicals.
(10) Whenever an operator, timber owner or landowner is
required to submit a written plan of operations to the State
Forester under subsection (3)(a)(A) or (B) of this section, the
State Forester shall not approve any such written plan until 14
calendar days following the date the written plan was filed with
the State Forester. An operation may commence upon approval of
the written plan.
(11)(a) The State Forester shall issue a decision on a written
plan within five working days after the end of the 14-day period
described in subsection (10) of this section.
(b) If the State Forester fails to issue a decision within five
working days after the end of the 14-day period described in
subsection (10) of this section, the written plan shall be deemed
approved and the operation may be commenced.
(12) When the operation is required to have a written plan
under subsection (3)(a)(A) or (B) of this section and comments
have been timely filed under subsection (9) of this section
pertaining to the operation requiring a written plan, the State
Forester shall:
(a) Send a copy of the approved written plan to persons who
submitted timely written comments under subsection (9) of this
section pertaining to the operation; and
(b) Send to the operator, timber owner and landowner a copy of
the approved written plan and copies of all timely comments
submitted under subsection (9) of this section.
**************************** SECTION 3. ORS 527.740 is amended
to read:
527.740. (1) No { - clear-cut - } { + harvest type 3 + }
unit within a single ownership shall exceed 120 acres in size,
except as provided in ORS 527.750.
(2) No { - clear-cut - } { + harvest type 3 + } unit shall
be allowed within 300 feet of the perimeter of a prior
{ - clear-cut - } { + harvest type 3 + } unit { + within a
single ownership + } if the combined acreage of the
{ - clear-cut - } { + harvest type 3 + } areas subject to
regulation under the Oregon Forest Practices Act would exceed 120
acres in size, unless the prior { - clear-cut - } { + harvest
type 3 + } unit has been reforested as required by all applicable
regulations and:
(a) At least { - 200 healthy conifer or suitable hardwood
seedlings are - } { + the minimum tree stocking required by
rule is + } established per acre; and either
(b) The resultant { - reproduction - } { + stand of
trees + } has attained an average height of at least four feet;
or
(c) At least 48 months have elapsed since the { - seedlings
were planted and the reproduction - } { + 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
{ - clear-cut - } { + harvest type 3 + } unit.
Enrolled Senate Bill 160 Page 5
(4) The provisions of this section shall not apply when the
land is being converted to { + managed + } conifers or managed
hardwoods from brush or { - understocked hardwoods, - }
{ + hardwood stands that contain less than 80 square feet of
basal area per acre of trees 11 inches DBH or greater + } or when
the { - clear-cut - } harvest { + type 3 + } results from
disasters such as fire, insect infestation, disease, windstorm or
other occurrence that the State Forester 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 shall be
required for such conversion or { - clear-cut - } { + 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
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 4. ORS 527.745 is amended
to read:
527.745. (1) The { + State + } Board { + of Forestry + }
shall adopt standards for the reforestation of { - clear-cut
harvests - } { + harvest type 1 and harvest type 3 + }. Unless
the board makes the findings for alternate standards under
subsection (2) of this section, { - and except to the extent
that more stringent reforestation requirements apply under ORS
527.740 (2), - } the standards for the reforestation of
{ - clear-cuts - } { + harvest type 1 and harvest type 3 + }
shall include the following:
(a) Reforestation, including site preparation, { - of
clear-cut units - } 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
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 { - clear-cuts - } { + 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
Enrolled Senate Bill 160 Page 6
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) The requirements of this section apply only to
clear-cuts as defined in ORS 527.620 (2). Nothing in this section
is intended to affect the administration and enforcement of
regulations pertaining to the maintenance of minimum stocking
levels or the reforestation of sites required as a result of
operations other than such clear-cuts. - }
{ - (6) - } { + (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 may suspend
the reforestation requirements for
{ - final clear-cut harvests - } { + 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 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 - } { + 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 5. ORS 527.750 is amended
to read:
527.750. (1) Notwithstanding the requirements of ORS 527.740, a
{ - clear-cut - } { + harvest type 3 + } unit within a single
ownership that exceeds 120 acres but does not exceed 240 acres
may be approved by the State Forester if all the requirements of
Enrolled Senate Bill 160 Page 7
this section and any additional requirements established by the
{ + State + } Board { + of Forestry + } are met. Proposed
{ - clear-cut - } { + harvest type 3 + } units that are within
300 feet of the perimeter of a prior { - clear-cut - }
{ + harvest type 3 + } unit, and that would result in a total
combined { - clear-cut - } { + harvest type 3 + } area under a
single ownership exceeding 120 acres but not exceeding 240 acres,
may be approved by the State Forester if the additional
requirements are met for the combined
{ - clear-cut - } area. No { - clear-cut - } { + harvest
type 3 + } unit within a single ownership shall exceed 240
contiguous acres. No { - clear-cut - } { + harvest type 3 + }
unit shall be allowed within 300 feet of the perimeter of a prior
{ - clear-cut - } { + harvest type 3 + } unit { + within a
single ownership + } if the combined acreage of the
{ - clear-cut - } areas subject to regulation under the Oregon
Forest Practices Act would exceed 240 acres, unless the prior
{ - clear-cut - } { + harvest type 3 + } unit has been
reforested by all applicable regulations and:
(a) At least { - 200 healthy conifer or suitable hardwood
seedlings are - } { + the minimum tree stocking required by
rule is + } established per acre; and either
(b) The resultant { - reproduction - } { + stand of
trees + } has attained an average height of at least four feet;
or
(c) At least 48 months have elapsed since the { - seedlings
were planted and the reproduction - } { + stand was created and
it + } is 'free to grow' as defined by the board.
(2) The requirements of this section are in addition to all
other requirements of the Oregon Forest Practices Act and the
rules adopted thereunder. The requirements of this section shall
be applied in lieu of such other requirements only to the extent
the requirements of this section are more stringent. Nothing in
this section shall apply to operations conducted under ORS
527.740 (4) or (5).
(3) The board shall require that a written plan be submitted
prior to approval of a { - clear-cut - } { + harvest type
3 + } operation under this section. The board may establish by
rule any additional standards applying to operations under this
section.
(4) The State Forester shall approve the { - clear-cut - }
{ + harvest type 3 + } operation if the proposed
{ - clear-cut - } { + 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 { - clear-cut - } { + harvest type
3 + } operations under this section, including evidence of past
satisfactory compliance with the Oregon Forest Practices Act.
**************************** SECTION 6. 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
Enrolled Senate Bill 160 Page 8
forestland, consistent with ORS 527.630, safety and other
practical considerations. + }
{ - (2) - } { + (3) The State Board of Forestry, + } in
consultation with the Department of Transportation, { - the
board - } shall establish procedures and regulations as
necessary to implement the requirements of { - subsection
(3) - } { + subsections (4), (5) and (6) + } of this section,
consistent with { - the safety of the motoring public - }
{ + subsection (2) of this section + }, including provisions for
alternate plans { - providing equivalent or better results
within visually sensitive corridors extending 150 feet from the
outermost right of way boundary along both sides and for the full
length of the scenic highways designated in subsection (1) of
this section - } . { + 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,
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. + }
{ - (3) - } { + (4) + }(a) For harvest operations within a
visually sensitive corridor, at least 50 healthy trees of at
least 11 inches { - at - } DBH, or that measure at least 40
square feet in basal area, shall be temporarily left on each
acre. { - Harvest areas 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. - }
(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 { - 250 - } { + 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 { - corridor - } { + outermost edge of
the roadway + } to 300 feet from the { - corridor - }
{ + outermost edge of the roadway + }, has attained an average
height of at least 10 feet and has at least
{ - 200 - } { + 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.
{ - Harvest areas within the 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
Enrolled Senate Bill 160 Page 9
active harvesting activity on the site, regardless of whether the
harvest operation is complete. Reforestation shall be completed
by the end of the first planting season after the completion of
harvest. A minimum of 400 trees per acre shall be planted. By the
end of the fifth growing season after the completion of planting,
at least 250 healthy conifer seedlings shall be established per
acre, well-distributed over the area, which are 'free to grow' as
defined by the board. - } When harvests within the visually
sensitive corridor are carried out under this paragraph the
adjacent stand, extending from 150 feet from the
{ - corridor - } { + outermost edge of the roadway + } to 300
feet from the
{ - corridor - } { + outermost edge of the roadway + }, shall
not be { - clear-cut - } { + 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 { - this paragraph - } { + subsection (6) of
this section + } and the stand has attained an average height of
at least 10 feet and has at least { - 250 - } { + 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. + }
{ - (4) - } { + (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) Harvest on single ownerships less than five acres in
size are exempt from this section. + }
**************************** SECTION 7. { + Section 5, chapter
919, Oregon Laws 1991, as amended by section 8 of this Act, is
added to and made a part of ORS 527.610 to 527.770. + }
**************************** SECTION 8. Section 5, chapter 919,
Oregon Laws 1991, is amended to read:
{ + Sec. 5. + } (1) In a { - clear-cut - } harvest
{ + type 2 or harvest type 3 + } unit exceeding { - 10 - }
{ + 25 + } acres, { + in order to contribute to the overall
maintenance of wildlife, nutrient cycling, moisture retention and
any other resource benefits of retained wood, + } 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 { - at - } 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 { - are at least 12 inches in diameter
at the widest point and at least 16 feet long, or equivalent
volume if trees of this size are not available on the site - }
{ + each comprise at least 10 cubic feet gross volume and are
Enrolled Senate Bill 160 Page 10
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 subsection (1) of this
section, the required snags, trees and logs may be left in one or
more clusters rather than distributed throughout the unit. The
location and distribution of the material shall be in the sole
discretion of the landowner or operator, consistent with safety
and fire hazard regulations. The requirements of subsection (1)
of this section are in addition to all other requirements
pertaining to forest operations and may { - not - } be met by
counting snags, trees or logs otherwise required to be left in
riparian { + management + } areas or resource sites listed in
ORS 527.710 (3) { + only as specifically permitted by the State
Board of Forestry, by rule + }.
(3) Notwithstanding subsection (2) of this section:
(a) The State Forester shall consult with operators on the
selection of green trees and snags required to be left pursuant
to this section whenever the State Forester believes that
retaining certain trees or groups of trees would provide
increased benefits to wildlife;
(b) Operators may submit, and the State Forester may approve,
alternate plans to meet the { - requirements - }
{ + provisions + } of this section { + , including, but not
limited to waiver of the requirement for wildlife leave trees to
be at least 50 percent conifers upon a showing that a site is
being intensively managed for hardwood production + }. The State
Forester may { + also + } approve alternate plans to waive, in
whole or in part, the requirements of this section for one
{ - clear-cut - } harvest { + type 2 or harvest type 3 + }
operation if the plan provides for an equal or greater number of
trees { + or snags + } to be left in another { - clear-cut - }
harvest { + type 2 or harvest type 3 + } operation which, in the
opinion of the State Forester, would, in the aggregate, achieve
better overall benefits for wildlife; and
(c) For { - clear-cut - } harvest { + type 2 or harvest
type 3 + } operations adjacent to { - Class 1 - }
{ + fish-bearing or domestic use + } streams, the State Forester
may require up to 25 percent of the green trees required to be
left pursuant to this section to be left in or adjacent to the
riparian management area of the { - Class 1 - }
{ + fish-bearing or domestic use + } stream if such requirement
would provide increased benefits to wildlife. Such trees shall be
in addition to trees otherwise required by rule to be left in
riparian management areas. The operator shall have sole
discretion to determine which trees to leave, either in or
adjacent to a riparian management area, pursuant to this
paragraph.
{ + (4) 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 on a single ownership exceeding 25 acres, the
snag or tree and downed log retention requirements of subsection
(1) of this section shall apply. + }
**************************** SECTION 9. ORS 527.990 is amended
to read:
527.990. (1) Violation of ORS 527.670 { + , 527.740, 527.750 or
527.755 or section 5, chapter 919, Oregon Laws 1991, as amended
by section 8 of this 1995 Act, + } or any rule promulgated under
ORS 527.710 is punishable, upon conviction, as a misdemeanor.
Enrolled Senate Bill 160 Page 11
Each day of operation in violation of an order issued under ORS
527.680 (3) shall be deemed to be a separate offense.
(2) Violation of ORS 527.260 (1) is a misdemeanor. Violation of
ORS 527.260 is punishable, upon conviction, by a fine of not more
than $250 or by imprisonment in the county jail for not more than
60 days, or both.
**************************** SECTION 10. 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 { + , 527.740, 527.750 or
527.755 or section 5, chapter 919, Oregon Laws 1991, as amended
by section 8 of this 1995 Act + }.
(b) The terms or conditions of any order of the State Forester
issued in accordance with ORS 527.680.
(c) Any rule or standard of the { + State + } Board { + of
Forestry + } adopted or issued pursuant to ORS 527.710.
(d) Any term or condition of a written waiver, or prior
approval granted by, or of a written plan of operation accepted
by the State Forester pursuant to the rules adopted under ORS
527.710.
(2) Imposition or payment of a civil penalty under this section
shall not be a bar to actions alleging trespass under ORS
105.810, nor to actions under ORS 161.635 or 161.655 seeking to
recover an amount based on the gain resulting from individual or
corporate criminal violations.
**************************** SECTION 11. { + Section 5a,
chapter 919, Oregon Laws 1991, is repealed. + }
**************************** SECTION 12. { + If this Act does
not become effective until after July 1, 1995, the repeal of
section 5a, chapter 919, Oregon Laws 1991, by section 11 of this
Act revives section 5, chapter 919, Oregon Laws 1991. If this Act
does not become effective until after July 1, 1995, this Act
shall be operative retroactively to that date, and the operation
and effect of section 5, chapter 919, Oregon Laws 1991, shall
continue unaffected from July 1, 1995, to the effective date of
this Act and thereafter. Any otherwise lawful action taken or
otherwise lawful obligation incurred under the authority of
section 5, chapter 919, Oregon Laws 1991, after July 1, 1995, and
before the effective date of this Act, is ratified and
approved. + }
**************************** SECTION 13. { + ORS 527.683,
527.685 and 527.687 are added to and made a part of ORS 527.610
to 527.770. + }
**************************** SECTION 14. ORS 527.687 is amended
to read:
527.687. (1) Subject to the notice provisions of ORS 527.683,
any civil penalty under ORS 527.992 shall be imposed in the
manner provided in ORS 183.090.
(2) In no case shall a hearing requested under ORS 183.090 be
held less than 45 days from the date of service of the notice of
penalty to allow the party to prepare testimony. The hearing
shall be held not more than { - 90 - } { + 180 + } days
following issuance of the notice unless all parties agree on an
extension.
(3) The { + State + } Board { + of Forestry + }, by rule, may
delegate to a hearings officer appointed by the State Forester,
upon such conditions as deemed necessary, all or part of the
Enrolled Senate Bill 160 Page 12
authority to conduct hearings required by subsection (2) of this
section.
(4) All civil penalties recovered under ORS 527.610 to 527.770,
527.990 and 527.992 shall be paid to the General Fund.
**************************** SECTION 15. 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 assure 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 that assures the continuous
benefits of those resources for future generations of Oregonians.
(2) It is recognized that operations on forestland are already
subject to other laws and to regulations of other agencies which
deal primarily with consequences of such operations rather than
the manner in which operations are conducted. It is further
recognized that it is essential to avoid uncertainty and
confusion in enforcement and implementation of such laws and
regulations and in planning and carrying out operations on
forestlands.
(3) To encourage forest practices implementing the policy of
ORS 527.610 to 527.770 and 527.990 and 527.992, it is declared to
be in the public interest to vest in the { + State + } Board
{ + of Forestry + } exclusive authority to develop and enforce
statewide and regional rules pursuant to ORS 527.710 and to
coordinate with other state agencies and local governments which
are concerned with the forest environment.
(4) The board may adopt and enforce rules addressing scenic
considerations only in accordance with ORS 527.755.
{ + (5) The State of Oregon should provide a stable
regulatory environment to encourage investment in private
forestlands. + }
**************************** SECTION 16. { + Sections 17 to 19
of this Act are added to and made a part of ORS 527.610 to
527.770. + }
**************************** SECTION 17. { + (1) The
rulemaking authority of the State Board of Forestry under ORS
527.610 to 527.770 consists generally of the following three
types of rules:
(a) Rules adopted to implement administration, procedures or
enforcement of ORS 527.610 to 527.770 that support but do not
directly regulate standards of forest practices.
(b) Rules adopted to provide definitions or procedures for
forest practices where the standards are set in statute.
(c) Rules adopted to implement the provisions of ORS 527.710
(2), (3), (6), (8), (9) and (10) that grant broad discretion to
the board and that set standards for forest practices not
specifically addressed in statute.
(2) When considering the adoption of a rule, and prior to the
notice required pursuant to ORS 183.335, the board shall
determine which type of rule described in subsection (1) of this
section is being considered.
Enrolled Senate Bill 160 Page 13
(3) If the board determines that a proposed rule is of the type
described in subsection (1)(a) or (b) of this section, or if the
proposed rule is designed only to clarify the meaning of rules
already adopted or to make minor adjustments to rules already
adopted that are of the type described in subsection (1)(c) of
this section, rulemaking may proceed in accordance with ORS
183.325 to 183.410 and is not subject to the provisions of this
section. + }
{ + (4) If the board determines that a proposed rule is of
the type described in subsection (1)(c) of this section, and the
proposed rule would change the standards for forest practices,
the board shall describe in its rule the purpose of the rule and
the level of protection that is desired.
(5) If the board determines that a proposed rule is of the type
described in subsection (1)(c) of this section, including a
proposed amendment to an existing rule not qualifying under
subsection (3) of this section, and the proposed rule would
provide new or increased standards for forest practices, the
board may adopt such a rule only after determining that the
following facts exist and standards are met:
(a) If forest practices continue to be conducted under existing
regulations, there is monitoring or research evidence that has
been subject to peer review that documents that substantial
degradation of resources maintained under ORS 527.710 (2) or (3)
is likely;
(b) If the resource to be protected is a wildlife species, the
scientific or biological status of a species or resource site to
be protected by the proposed rule has been documented;
(c) The proposed rule reflects available scientific
information, the results of relevant monitoring and, as
appropriate, adequate field evaluation at representative
locations in Oregon;
(d) The objectives of the proposed rule are clearly defined,
and the restrictions placed on forest practices as a result of
adoption of the proposed rule:
(A) Are to prevent direct harm or provide direct benefits to
the resource or resource site for which protection is sought; and
(B) Are directly related to the objective of the proposed rule
and substantially advance its purpose;
(e) The availability, effectiveness and feasibility of
alternatives to the proposed rule, including nonregulatory
alternatives, were considered, and the alternative chosen is the
least burdensome to landowners and timber owners, in the
aggregate, while still achieving the desired level of protection;
and
(f) The benefits to the resource that would be achieved by
adopting the rule are in proportion to the degree that existing
practices of the landowners and timber owners, in the aggregate,
are contributing to the overall resource concern that the
proposed rule is intended to address.
(6) Nothing in subsection (5) of this section:
(a) Requires the board to call witnesses;
(b) Requires the board to allow cross-examination of witnesses;
(c) Restricts ex parte communications with the board or
requires the board to place statements of such communications on
the record;
(d) Requires verbatim transcripts of records of proceedings; or
(e) Requires depositions, discovery or subpoenas.
(7) If the board determines that a proposed rule is of the type
described in subsection (1)(c) of this section, and the proposed
Enrolled Senate Bill 160 Page 14
rule would require new or increased standards for forest
practices, as part of or in addition to the economic and fiscal
impact statement required by ORS 183.335 (2)(b)(E), the board
shall, prior to the close of the public comment period, prepare
and make available to the public a comprehensive analysis of the
economic impact of the proposed rule. The analysis shall include,
but is not limited to:
(a) An estimate of the potential change in timber harvest as a
result of the rule;
(b) An estimate of the overall statewide economic impact,
including a change in output, employment and income;
(c) An estimate of the total economic impact on the forest
products industry and common school and county forest trust land
revenues, both regionally and statewide; and
(d) Information derived from consultation with potentially
affected landowners and timber owners and an assessment of the
economic impact of the proposed rule under a wide variety of
circumstances, including varying ownership sizes and the
geographic location and terrain of a diverse subset of
potentially affected forestland parcels.
(8) The provisions of this section do not apply to temporary
rules adopted by the board. + }
**************************** SECTION 18. { + (1) The
provisions of this section apply to rules that are of the type
described in section 17 (1)(c) of this 1995 Act that:
(a) Are adopted or proposed for adoption after the effective
date of this 1995 Act; and
(b) Restrict the harvest of forest tree species, including, but
not limited to, restrictions on:
(A) The timing or scheduling of harvest;
(B) The silvicultural prescription; or
(C) Which trees can be harvested.
(2)(a) A landowner or timber owner who can prove that
application of a rule or rules of the type described in
subsection (1) of this section to a parcel proposed for a timber
harvest operation will result in more than a 10 percent reduction
in the volume or value of merchantable forest tree species
available for harvest may apply to the State Forestry Department
for approval of an alternate plan that will provide the greatest
level of protection possible for the resources protected under
ORS 527.710 (2) and (3), while reducing the impact on the volume
or value of forest tree species below the 10 percent threshold.
(b) To qualify for approval of an alternate plan in connection
with the application of a rule or rules described in subsection
(1) of this section, a landowner or timber owner shall first make
written application to the State Forester describing how the
proposed operation is eligible for an alternate plan as described
in paragraph (a) of this subsection.
(c) If the State Forester denies an application of the type
described in paragraph (a) of this subsection, the landowner or
timber owner seeking approval of an alternate plan may request a
hearing pursuant to ORS 527.700. However, notwithstanding the
time limits for conducting a hearing and issuing a final order
under ORS 527.700 (1), a hearing conducted pursuant to this
paragraph shall be commenced within 45 days after receipt of
request for the hearing and a final order shall be issued within
90 days of the request for the hearing unless all parties agree
to an extension of the time limit.
(d) In a proceeding under paragraph (c) of this subsection
before the State Forester or the State Board of Forestry, the
Enrolled Senate Bill 160 Page 15
landowner or timber owner shall have the burden of proving a
reduction of more than 10 percent in the volume or value of
merchantable forest tree species available for harvest on the
parcel of affected forestland.
(e) If the State Forester approves an application of the type
described in paragraph (a) of this subsection, the department and
the applicant shall develop and agree upon an alternate plan
involving a combination of regulatory and voluntary compliance
and, to the extent available, nonregulatory incentives that will
provide the greatest level of protection possible for the
resources protected under ORS 527.710 (2) and (3), while reducing
the impact on the volume or value of forest tree species below
the 10 percent threshold.
(f) If the department and the applicant fail to reach agreement
on an alternate plan pursuant to paragraph (e) of this
subsection, the department shall propose an alternate plan that
achieves the objectives of paragraph (e) of this subsection. If
the applicant disagrees with the alternate plan proposed by the
department, the applicant may request a hearing + } { +
pursuant to ORS 527.700. However, notwithstanding the time limits
for conducting a hearing and issuing a final order under ORS
527.700 (1), a hearing conducted pursuant to this paragraph shall
be commenced within 45 days after receipt of request for the
hearing and a final order shall be issued within 90 days of the
request for the hearing unless all parties agree to an extension
of the time limit.
(3) A landowner or timber owner shall not qualify for an
alternate plan under subsection (2)(a) of this section if the
State Forester determines that the configuration of an
operational unit was designed for the primary purpose of
otherwise qualifying for such an alternate plan. + }
**************************** SECTION 19. { + (1)
Notwithstanding ORS 183.400, only a landowner or timber owner
subject to regulation by a rule adopted after the effective date
of this 1995 Act of the type described in section 17 (1)(c) of
this 1995 Act, who participated in the rulemaking process before
the State Board of Forestry, may, within 180 days of adoption of
the rule, seek review under ORS 183.400 of either of the
following determinations of the board:
(a) The determinations made under section 17 (5) of this 1995
Act.
(b) That the provisions of section 17 (4) to (6) of this 1995
Act do not apply to the rule because the rule is of a type
described in section 17 (3) of this 1995 Act.
(2) In addition to the limitations on review under ORS 183.400
(4), in reviewing determinations made under section 17 of this
1995 Act as brought under subsection (1) of this section, the
court shall not declare a rule invalid or remand a rule to the
board unless it finds that the rulemaking record, viewed as a
whole, would not permit a reasonable person to make the same
determination made by the board pursuant to section 17 (3) or (5)
of this 1995 Act. The court shall not substitute its judgment for
that of the board as to any determinations made under section 17
of this 1995 Act.
(3) The rulemaking record for a rule of the type described in
section 17 (1)(c) of this 1995 Act is:
(a) The rule adopted by the board;
(b) The determinations made by the board pursuant to section 17
(3) or (5) of this 1995 Act;
Enrolled Senate Bill 160 Page 16
(c) The written minutes of any advisory committee appointed
under ORS 183.025 (2);
(d) The principal documents relied upon by the board in
preparing the rule;
(e) The statement of fiscal impact prepared under ORS 183.335
(2)(b)(E);
(f) Any written comments or materials submitted by the public;
(g) A recording or summary of oral submissions received at any
hearings;
(h) Written materials or reports submitted by the State
Forestry Department; and
(i) A recording or summary of oral discussions of the board
when the determinations required by section 17 of this 1995 Act
were made and the rule was adopted.
(4) In any judicial proceeding conducted pursuant to this
section, attorney fees and costs shall be awarded to the
prevailing party. + }
**************************** SECTION 20. 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 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
sections 17 to 19 of this 1995 Act, + } nothing in ORS 468B.100
to 468B.110, 477.562, 527.620, { - 527.630, - } 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 the State Forester 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.
**************************** SECTION 21. { + (1) Not later
than November 1, 1998, the Governor shall prepare and submit to
the President of the Senate and the Speaker of the House of
Representatives a preliminary report as provided in subsection
(2) of this section. The final report shall be delivered to the
President of the Senate and the Speaker of the House of
Representatives not later than November 1, 2002.
(2) The report shall be prepared by an independent and unbiased
review body. It shall include, but not be limited to:
(a) The number and type of rules considered or adopted by the
State Board of Forestry subject to sections 17 to 19 of this Act.
The report shall also include an enumeration and discussion of
any proposed rules considered but found by the board to be beyond
the authority of the board pursuant to section 18 of this Act.
(b) The number, character and disposition of petitions for
judicial review of rules under section 19 of this Act.
(c) An analysis of applications for an alternate plan pursuant
to section 18 of this Act, including:
(A) The number and disposition of applications;
(B) An evaluation of experience gained in that process,
including the degree to which hardships of small owners were
alleviated;
Enrolled Senate Bill 160 Page 17
(C) The number of alternate plans afforded large ownerships;
and
(D) Any degree to which environmental protection was maintained
or placed in jeopardy.
(d) An evaluation of the ability of the State Board of Forestry
to carry out the policy of ORS 527.610 to 527.770 and its
rulemaking authority as provided in ORS 527.630 and 527.710.
(e) Suggestions for clarification or improvement of sections 17
to 19 of this Act, including an evaluation and proposed
modification, if appropriate, of the volume or value reduction
percentages provided for in section 18 of this Act and an
evaluation of various types of rules restricting the harvest of
forest tree species together with a methodology for the
calculation of impact on fair market value resulting from such
rules. + }
**************************** SECTION 22. { + (1) The State
Board of Forestry shall appoint a task force to identify
nonregulatory means of achieving and maintaining a high level of
stewardship in forestry operations as alternatives to be
preferred over an increased regulatory burden.
(2) The task force shall:
(a) Review the current forest practices regulatory program;
(b) Examine existing forest stewardship incentive programs in
Oregon and other jurisdictions and evaluate these as well as new
and proposed incentives for their viability, recognizing
different land ownership sizes and conditions;
(c) Study existing and potential tax credits, as well as other
taxing options, evaluating their efficacy in encouraging
long-term stewardship; and
(d) Consider increases in the state's obligation to collect and
share information or provide other services to encourage and
facilitate good forest stewardship.
(3) The task force shall make a report to the State Board of
Forestry no later than February 1, 1996, so their initial
recommendations to the board may be reflected in the State
Forestry Department budget and legislation proposed for adoption
by the Sixty-ninth Legislative Assembly. + }
----------
Passed by Senate April 12, 1995
Repassed by Senate June 5, 1995
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 19, 1995
Repassed by House June 7, 1995
...........................................................
Speaker of House
Enrolled Senate Bill 160 Page 18
Received by Governor:
......M.,............., 1995
Approved:
......M.,............., 1995
...........................................................
Governor
Filed by Office of Secretary of State:
......M.,............., 1995
...........................................................
Secretary of State
Enrolled Senate Bill 160 Page 19