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(continued)
(2) In carrying out the provisions of subsection (1) of this section, the power of the commission includes, but is not limited to:
(a) Prescribing the amount of each wildlife species that may be taken and possessed in terms of sex, size and other physical characteristics.
(b) Prescribing such regular and special time periods and areas closed to the angling, taking, hunting and trapping of any wildlife species when the commission determines such action is necessary to protect the supply of such wildlife.
(c) Prescribing regular and special time periods and areas open to the angling, taking, hunting and trapping of any wildlife species, and establishing procedures for regulating the number of persons eligible to participate in such angling, taking, hunting or trapping, when the commission determines such action is necessary to maintain properly the supply of wildlife, alleviate damage to other resources, or to provide a safe and orderly recreational opportunity.
(3) Notwithstanding subsections (1) and (2) of this section, except as provided in ORS 498.146 or during those times and at those places prescribed by the commission for the hunting of elk, the commission shall not prescribe limitations on the times, places or amounts for the taking of predatory animals. As used in this subsection, “predatory animal” has the meaning for that term provided in ORS 610.002.
(4) In carrying out the provisions of this section, before prescribing the numbers of deer and elk to be taken, the commission shall consider:
(a) The supply and condition of deer and elk herds;
(b) The availability of forage for deer, elk and domestic livestock on public and private range and forest lands;
(c) The recreational opportunities derived from deer and elk populations; and
(d) The effects of deer and elk herds on public and private range and forest lands. [1973 c.723 §14; 1975 c.791 §1; 1981 c.218 §1; 2003 c.656 §3]
496.164 Cooperation with public and private agencies for fish and wildlife management; technical information and policy recommendations; use of recommendations by state agencies. The State Fish and Wildlife Commission and the State Department of Fish and Wildlife may advise, consult and cooperate with other agencies of this state and political subdivisions, other states or the federal government and private landowners with respect to fish and wildlife management. The commission and the department shall provide such information, recommendations or advice in writing if requested by another state or federal agency to do so. Technical advice and information shall be based on the best available scientific information. Policy or implementation recommendations provided in administrative rulemaking proceedings shall be based on consideration of all the goals of wildlife management in ORS 496.012, in addition to applicable scientific information. State agencies, boards or commissions receiving policy or implementation recommendations shall consider such recommendations in the context of their respective statutory responsibilities, and shall take into account the extent to which such recommendations are substantiated with the best available scientific information and based on consideration of all of the goals of wildlife management in ORS 496.012. [1993 c.659 §11]
496.165 [Repealed by 1973 c.723 §130]
496.166 Citizen involvement for wildlife management on private lands. The Legislative Assembly finds, in the interest of all Oregonians, a necessity to improve Oregon’s resource access and wildlife habitat through the further involvement of its citizens, through voluntary partnership between the State Department of Fish and Wildlife and landowners to manage wildlife on private lands and through support by additional financial revenues. [1993 c.659 §13]
496.170 [Amended by 1971 c.658 §3; repealed by 1973 c.723 §130]
THREATENED OR ENDANGERED WILDLIFE SPECIES
496.171 Definitions for ORS 496.171 to 496.182; applicability date. Notwithstanding ORS 496.004, with respect to state agency actions taken under ORS 496.171 to 496.182 after July 17, 1995, as used in ORS 496.171 to 496.182:
(1) “Conservation” means the use of methods and procedures necessary to bring a species to the point at which the measures provided under ORS 496.171 to 496.182 are no longer necessary. Such methods and procedures include, but are not limited to, activities associated with scientific resource management such as research, census taking, law enforcement, habitat acquisition and maintenance, propagation and transplantation.
(2) “Native” means indigenous to Oregon, not introduced.
(3) “Species” means any group or population of wildlife that interbreeds and is substantially reproductively isolated.
(4) “Verifiable” means scientific information reviewed by a scientific peer review panel of outside experts who do not otherwise have a vested interest in the process. [1995 c.590 §2]
496.172 Commission management authority for threatened or endangered species; rules. In carrying out the provisions of the wildlife laws with regard to the management of wildlife that is a threatened species or an endangered species, the State Fish and Wildlife Commission:
(1) Shall conduct investigations of wildlife species native to this state and shall determine whether any such species is a threatened species or an endangered species.
(2) By rule, shall establish and publish, and from time to time may revise, a list of wildlife species that are threatened species or endangered species. Listed threatened species or endangered species shall be protected as provided in ORS 496.182.
(3) Shall work cooperatively with state agencies that have land management authority or regulatory authority to determine their roles within their statutory obligations in the conservation of endangered species, as described in ORS 496.182 (8).
(4) By rule, shall establish a system of permits for scientific taking of threatened species and endangered species and shall establish a system of state permits for incidental taking of state-designated threatened species and endangered species not listed by the federal government under such terms and conditions as the commission determines will minimize the impact on the species taken. An incidental taking permit or statement issued by a federal agency for a species listed under the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as amended, shall be recognized by the state as a waiver of any state protection measures or requirements otherwise applicable to the actions allowed under the federal permit.
(5) Shall cooperate with the State Department of Agriculture in carrying out the provisions of ORS 564.105.
(6) Shall adopt administrative rules to carry out the provisions of ORS 496.171 to 496.182 and 498.026. [1987 c.686 §3; 1995 c.590 §3]
496.175 [Amended by 1971 c.658 §4; repealed by 1973 c.723 §130]
496.176 Listing species; procedure; matters to be considered; periodic review. (1) The lists of threatened species or endangered species established pursuant to ORS 496.172 (2) shall include:
(a) Those species of wildlife listed as of May 15, 1987, as a threatened species or an endangered species pursuant to the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as amended; and
(b) Those species determined as of May 15, 1987, by the State Fish and Wildlife Commission to be threatened species or endangered species.
(2) The commission, by rule, may add or remove any wildlife species from either list, or change the status of any species on the lists, upon a determination that the species is or is not a threatened species or an endangered species.
(3) A determination that a species is a threatened species or an endangered species shall be based on documented and verifiable scientific information about the species’ biological status. To list a species as a threatened species or an endangered species under ORS 496.004 and 496.171 to 496.182, the commission shall determine that the natural reproductive potential of the species is in danger of failure due to limited population numbers, disease, predation or other natural or human actions affecting its continued existence and, to the extent possible, assess the relative impact of human actions. In addition, the commission shall determine that one or more of the following factors exists:
(a) That most populations are undergoing imminent or active deterioration of their range or primary habitat;
(b) That overutilization for commercial, recreational, scientific or educational purposes is occurring or is likely to occur; or
(c) That existing state or federal programs or regulations are inadequate to protect the species or its habitat.
(4) Determinations required by subsection (3) of this section shall be made by the commission on the basis of verifiable scientific and other data after consultation with federal agencies, other interested state agencies, the Natural Heritage Advisory Council, other states having a common interest in the species and interested persons and organizations.
(5) Any person may petition the commission to, by rule, add, remove or change the status of a species on the list:
(a) A petition shall clearly indicate the action sought and shall include documented scientific information about the species’ biological status to justify the requested action.
(b) Within 90 days of receipt of a petition, the commission shall respond in writing to the petitioner indicating whether the petition presents substantial scientific information to warrant the action requested.
(c) If the petition is found to present such information, the commission shall commence rulemaking.
(d) A final determination by the commission concerning the action requested in a petition shall be provided within one year from the date of receipt of the petition, with the option for an additional 12-month extension of time to complete the listing if the commission determines that limited information or other appropriate considerations require the extension.
(e) If the petition is denied, the petitioner may seek judicial review as provided in ORS 183.484.
(6) The commission may determine not to list a species as a threatened species or an endangered species in any of the following cases:
(a) If the species has been listed pursuant to the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as amended.
(b) If the species is currently on the list as a sensitive species, or is a candidate species or has been petitioned for listing pursuant to the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as amended.
(c) If the species has been determined, pursuant to the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as amended, to not qualify as a threatened species or an endangered species.
(7) Notwithstanding subsections (1) to (5) of this section, the commission shall take emergency action to add a species to the list of threatened species or endangered species if it determines there is a significant threat to the continued existence of the species within the state:
(a) The commission shall publish notice of such addition in the Secretary of State’s bulletin and shall mail notice to affected or interested persons whose names are included on the commission’s mailing list for such purposes.
(b) Such emergency addition shall take effect immediately upon publication in the Secretary of State’s bulletin and shall remain valid for a period no longer than one year, unless during the period the commission completes rulemaking procedures as provided in subsection (5) of this section.
(8) The commission shall periodically review the status of all threatened species and endangered species listed under ORS 496.171 to 496.192. Each species shall be reviewed at least once every five years to determine whether verifiable scientific information exists to justify its reclassification or removal from the list, according to the criteria listed under subsections (3) and (4) of this section. If a determination is made to reclassify a species or remove it from the list, the commission, within 90 days, shall commence rulemaking to change the status of the species.
(9) Notwithstanding the provisions of this section, the commission may decide not to list a species that otherwise qualifies as a threatened or endangered species within this state if the commission determines that the species is secure outside this state or the species is not of cultural, scientific or commercial significance to the people of this state. [1987 c.686 §4; 1995 c.590 §4]
496.180 [Amended by 1971 c.658 §5; repealed by 1973 c.723 §130]
496.182 Protection and conservation programs; compliance by state agencies. (1) The burden of protecting and recovering threatened species or endangered species can be a significant cost to the citizens of this state and it is therefore the policy of this state to minimize duplication and overlap between state and federal laws dealing with threatened species or endangered species. To this end, nothing in this section is intended to prevent the adoption of cooperative state or federal programs when such programs provide protection for listed species without significant impact on the primary uses of state lands.
(2) At the time the State Fish and Wildlife Commission adds a species to the list of threatened species or endangered species under ORS 496.172, the commission shall establish by rule quantifiable and measurable guidelines that it considers necessary to ensure the survival of individual members of the species. These guidelines may include take avoidance and protecting resource sites such as spawning beds, nest sites, nesting colonies or other sites critical to the survival of individual members of the species.
(3) For threatened species listed under ORS 496.172 and in the absence of an approved endangered species management plan described in subsection (8) of this section for an endangered species, if a state agency determines that a proposed action on land it owns or leases, or for which it holds a recorded easement, has the potential to violate the guidelines established under subsection (2) of this section, it shall notify the State Department of Fish and Wildlife. Within 90 days of such notice, the department shall recommend reasonable and prudent alternatives, if any, to the proposed action which are consistent with the guidelines.
(4) If a state agency fails to adopt the recommendations made under subsection (3) of this section, it shall, after consultation with the department, demonstrate that:
(a) The potential public benefits of the proposed action outweigh the potential harm from failure to adopt the recommendations; and
(b) Reasonable mitigation and enhancement measures shall be taken, to the extent practicable, to minimize the adverse impact of the action on the affected species.
(5) When an action under this section is initiated by a person other than a state agency, the agency shall provide final approval or denial of the proposed action within 120 days of receipt of a written request for final determination.
(6) The provisions of this section do not apply to lands acquired through foreclosures of loans made pursuant to programs of the Department of Veterans’ Affairs.
(7) State land owning or managing agencies shall set priorities for establishing endangered species management plans required by subsection (8) of this section after consultation with the commission on the level of biological threat and, in consideration of available funds, the immediacy and seriousness of the threat to any listed species.
(8)(a)(A) Within four months of the listing of an endangered species, the commission, in consultation and cooperation with the state land owning or managing agency, shall determine if state land can play a role in the conservation of endangered species. The commission and the land owning or managing agency shall consider species biology and geography of the land base to determine if the species or its habitat is found on state land. If the species or its habitat is not found on state land, the commission shall determine that state land has no role to play in the conservation of the species.
(B) If the species or its habitat is found on state land, the land owning or managing agency, in consultation with the State Department of Fish and Wildlife, shall determine the role its state land shall serve in the conservation of the endangered species. This role may include, but is not limited to conservation, contribution toward conservation or take avoidance. To carry out its consulting role under this subsection, the department shall provide state agencies with an assessment of the conservation needs of the endangered species. In making this determination, the land owning or managing agency shall balance the statutory requirements, rules and policies applicable to the agency’s programs, the social and economic impacts that conservation would have on the state, the conservation needs of the species, the purpose of the land and the roles of other ownership categories. The agency shall balance these factors consistent with the commission’s rules related to the biological aspects of species management and the statutory obligations of the land owning or managing agency, including the statutory purpose of the land.
(C) After determining the role its state land shall serve in conservation of the species, the land owning or managing agency, in consultation with the State Department of Fish and Wildlife and consistent with the commission’s rules related to endangered species management plans, shall develop and approve an endangered species management plan within 18 months from the date the species is first listed as endangered. Endangered species management plans shall be based on the statutes, rules and policies applicable to the agency’s programs and shall take into account any social or economic impacts that the plan may have on the state. The land owning or managing agency shall submit the plan to the commission for review and approval as provided in subparagraph (D) of this paragraph.
(D) The commission shall review the endangered species management plan approved by the land owning or managing agency under subparagraph (C) of this paragraph to determine whether the plan achieves the role defined for the land under subparagraph (B) of this paragraph. Based on the biology of the endangered species the commission may modify the endangered species management plan if necessary to be consistent with the role the land owning or managing agency has defined for the land under subparagraph (B) of this paragraph and shall approve the plan as submitted or modified within 24 months from the date the species is listed as endangered.
(b) For state agencies other than land owning or managing agencies, the commission, in consultation and cooperation with the agency, shall determine whether the agency can serve a role in the conservation of endangered species. If the commission determines that the agency has a role to play in conservation of the endangered species, the agency shall determine what role it shall serve in conservation of the endangered species. The agency shall make this determination as provided in the commission’s rules related to the biological aspects of species management and in a manner consistent with the agency’s statutory obligations. [1987 c.686 §5; 1995 c.590 §5]
496.185 [Repealed by 1973 c.723 §130]
496.190 [Amended by 1963 c.154 §2; 1965 c.74 §2; repealed by 1973 c.723 §130]
496.192 Effect of law on commercial forestland or other private land; effect on other laws. (1) Nothing in ORS 496.004, 496.171 to 496.182 or 498.026 is intended, by itself, to require an owner of any commercial forestland or other private land to take action to protect a threatened species or endangered species, or to impose additional requirements or restrictions on the use of private land.
(2) Notwithstanding subsection (1) of this section, other statutes may authorize administrative rules or programs to protect wildlife species, including threatened species or endangered species, and nothing in ORS 496.004, 496.171 to 496.182 or 498.026 shall diminish the force or effect of such rules or programs. [1987 c.686 §6a]
496.195 [Amended by 1959 c.371 §2; 1961 c.343 §2; 1965 c.74 §3; 1967 c.594 §3; repealed by 1973 c.723 §130]
496.200 [Repealed by 1973 c.723 §130]
SALMON FOR INDIAN CEREMONIES
496.201 Department to furnish salmon for ceremonies; amount; source. (1) The State of Oregon shall, through the State Department of Fish and Wildlife, provide surplus salmon:
(a) To the Confederated Coos, Lower Umpqua and Siuslaw Indian tribes for their historical, traditional and cultural salmon ceremonies that take place each year.
(b) To the Cow Creek Band of the Umpqua Indians for their historical, traditional and cultural salmon ceremonies that take place each year.
(c) To the Coquille Tribe for their historical, traditional and cultural salmon ceremonies that take place each year.
(d) To the Burns Paiute Tribe for their historical, traditional and cultural salmon ceremonies that take place each year.
(2) The salmon provided by the state shall meet the expressed needs of the Confederated Coos, Lower Umpqua and Siuslaw tribes, up to 1,000 pounds total, the Coquille Tribe, up to 1,000 pounds total, the Cow Creek Band of the Umpqua Indians, up to 1,000 pounds total, and the Burns Paiute Tribe, up to 500 pounds total.
(3) The salmon provided by the state may be either surplus whole fish or carcasses.
(4) Salmon may be taken from hatcheries under either the complete or joint control of the state. [1981 c.575 §2; 1987 c.99 §1; 1993 c.460 §1; 1995 c.137 §1; 2001 c.611 §2; 2001 c.651 §1]
496.205 [Amended by 1961 c.343 §3; repealed by 1973 c.723 §130]
496.206 Written request for salmon; contents; time for providing salmon. (1) The Indian tribes referred to in ORS 496.201 (1) are required to set forth, in writing, their request for salmon. This request shall be submitted by the duly elected tribal governing body no later than 40 days prior to the ceremony and shall include:
(a) The poundage of salmon required;
(b) The date of the ceremony; and
(c) A contact person that the state may refer questions to.
(2) Prior to any state action, the written request must be received by:
(a) The State Department of Fish and Wildlife;
(b) The Attorney General; and
(c) The United States Department of Interior.
(3) The salmon shall be provided to the Indian tribes referred to in ORS 496.201 (1) no later than 30 days after receiving a proper written request therefor. [1981 c.575 §3; 1987 c.99 §2]
496.210 [Repealed by 1973 c.723 §130]
496.211 Limitation on amount and use. (1) The State of Oregon shall be limited to a once a year provision of salmon pursuant to ORS 496.201.
(2) If the Indian tribes referred to in ORS 496.201 (1) use salmon provided by the state for this purpose in any manner other than that described in ORS 496.201, they shall pay to the State Department of Fish and Wildlife the prevailing wholesale rate per pound of the entire amount of salmon supplied to that tribe or tribes for that year. [1981 c.575 §4; 1987 c.99 §3]
496.215 [Repealed by 1973 c.723 §130]
496.216 Disposition of salmon remaining after ceremony. Any salmon remaining after the ceremony may be distributed to tribal members without charge for their subsistence consumption only and not for sale, barter or gift to others, or may be donated to a nonprofit institution or agency. [1981 c.575 §5]
496.220 [Repealed by 1973 c.723 §130]
496.221 ORS 496.201 to 496.221 not intended to extend Indian legal or political rights. Nothing in ORS 496.201 to 496.221 is intended to extend legal or political recognition to any Indians described in ORS 496.201 (1) for any purpose other than provided in ORS 496.201 to 496.216. [1981 c.575 §6; 1987 c.99 §4]
496.225 [Repealed by 1973 c.723 §130]
ACCESS AND HABITAT BOARD
496.228 Access and Habitat Board; qualification of members; expenses; term; meetings. (1) There is established within the State Department of Fish and Wildlife the Access and Habitat Board, consisting of seven members appointed by the State Fish and Wildlife Commission.
(2) Three members shall be appointed to represent the broad spectrum of hunters. In making appointments pursuant to this subsection, the commission shall consider recommendations from the State Fish and Wildlife Director.
(3) Three members of the board shall be appointed to represent the broad spectrum of agriculture and timber landowners. In making appointments pursuant to this subsection, the commission shall consider recommendations from the State Fish and Wildlife Director from a list of at least 15 persons submitted by the State Forester and the Director of Agriculture.
(4) One member of the board shall be appointed to represent the public and shall serve as the board chairperson.
(5) A member of the board shall receive no compensation for services as a member. However, subject to any applicable law regulating travel and other expenses of state officers and employees, a member shall be reimbursed for actual and necessary travel and other expenses incurred in the performance of official duties from such moneys as are made available by section 19, chapter 659, Oregon Laws 1993.
(6) The term of office of a member of the board is four years. A member of the board is eligible for reappointment.
(7) An official action of the board may be taken only upon the affirmative vote of at least four members.
(8) The board shall select such officers for such terms and with such duties and powers as the board considers necessary for the performance of those offices.
(9) The board shall meet at such times and at such places as may be determined by the chair or by the majority of the members of the board. [1993 c.659 §15]
496.230 [1957 c.119 §2; repealed by 1973 c.723 §130]
496.232 Board to make program recommendations; commission approval; report; fund expenditure qualifications; gifts and grants. (1) The Access and Habitat Board shall meet, adopt and recommend to the State Fish and Wildlife Commission, within 120 days after November 4, 1993, and at not more than 120-day intervals thereafter, access and habitat programs.
(2) The commission shall review such programs and may approve or disapprove the program recommendation by the board. Funds may be expended from the subaccount referred to in ORS 496.242 for projects that have been approved by the commission.
(3) The State Department of Fish and Wildlife and the board jointly shall submit to each biennial session of the Legislative Assembly a report on expenditure of funds for the access and habitat programs and on the status of various projects. On or about July 1, 1995, the board and the department shall make another such report to the Legislative Assembly or to the Emergency Board if the Legislative Assembly is not then in session.
(4) In recommending access and habitat programs, the board shall:
(a) Recommend a mix of projects that provides a balance between access and habitat benefits.
(b) Recommend projects that are to be implemented by volunteers under volunteer coordinators and nonprofit organizations engaged in approved access and habitat activities.
(c) Recommend programs that recognize and encourage the contributions of landowners to wildlife and programs that minimize the economic loss to those landowners.
(d) Encourage agreements with landowners who request damage control hunts to insure public access to those hunts.
(e) Encourage projects that result in obtaining matching funds from other sources.
(5) All moneys made available for the access and habitat programs from surcharges received under section 19, chapter 659, Oregon Laws 1993, and from gifts and grants made to carry out the access and habitat programs may be expended only if the board so recommends and the commission so approves. Such amounts may be expended:
(a) On programs that benefit wildlife by improving habitat. These programs shall be in coordination with the Wildlife Division and shall be in addition to programs provided by federal funds. These programs may:
(A) Be on private lands.
(B) Provide seed and fertilizer to offset forage consumed by wildlife and for other programs that enhance forage.
(C) Be adjacent to agricultural and forest land to attract animals from those crops.
(b) On programs that promote access to public and private lands through contracting for various levels of management of these lands. These management programs may include:
(A) Creating hunting lease programs that provide access at present levels or stimulate new access.
(B) Controlling access.
(C) Opening vehicle access.
(D) Promoting land exchanges.
(E) Promoting proper hunting behavior.
(c) On programs that would provide for wildlife feeding to alleviate damage, to intercept wildlife before they become involved in a damage situation and for practical food replacement in severe winters.
(d) On programs to coordinate volunteers to improve habitat, repair damage to fences or roads by wildlife or recreationists, monitor orderly hunter utilization of public and private lands and assist the Oregon State Police in law enforcement activities.
(e) On programs that provide for auction or raffle of tags to provide incentives for habitat or access.
(6) The board may accept, from whatever source, gifts or grants for the purposes of access and habitat. All moneys so accepted shall be deposited in the subaccount referred to in ORS 496.242. Unless otherwise required by the terms of a gift or grant, gifts or grants shall be expended as provided in subsection (5) of this section. [1993 c.659 §16]
496.235 [Repealed by 1973 c.723 §130]
496.236 Advisory councils to board; duties; no compensation or expenses for members. (1) Individuals who reside in the various regions established for administration of the wildlife resources may form advisory councils, with membership in the same proportion as described for the board, to discuss and consider access and habitat programs and projects and to make recommendations thereon to the Access and Habitat Board. When the board considers proposals affecting a region, the board shall consult with the advisory council for that region if one exists.
(2) Employees of the State Department of Fish and Wildlife or other professional biologists who are residents of the various regions may act in an advisory capacity to the various councils.
(3) An individual who serves as a member of an advisory council shall receive no compensation or expenses for service as a member. [1993 c.659 §17]
496.240 [Amended by 1959 c.371 §3; 1963 c.154 §3; 1965 c.74 §4; repealed by 1973 c.723 §130]
496.242 Access and habitat program funds. (1) Notwithstanding ORS 496.300, all moneys received by the State Fish and Wildlife Commission pursuant to section 19, chapter 659, Oregon Laws 1993, shall be deposited in the Access and Habitat Board Subaccount established in the Fish and Wildlife Account. Moneys in the subaccount may be expended only for the access and habitat programs recommended by the Access and Habitat Board for the benefit of the wildlife resources of this state.
(2) The State Department of Fish and Wildlife shall credit the subaccount with a sum equal to 15 percent of the other fund budget for the green forage and Deer Enhancement and Restoration programs in each biennium.
(3) The department shall not assess its personnel costs in the administration of ORS 496.166 and 496.228 to 496.242 against the subaccount referred to in this section without the prior approval of the Access and Habitat Board. [1993 c.659 §14; 2001 c.822 §1]
496.245 [Repealed by 1973 c.723 §130]
496.250 [Repealed by 1971 c.418 §23]
FISH HABITAT IMPROVEMENT
496.260 Project applications; contents; notice of reasons for rejection; approval conditions; limitation on tax credit. (1) Any person may apply to the State Department of Fish and Wildlife for preliminary certification of a fish habitat improvement project. The department shall develop rules and procedures for administering its responsibilities under this section and ORS 315.134 and 496.265. Such rules shall clarify the criteria used to evaluate fish improvement projects. Applications for preliminary certification shall be made in writing on a form provided by the department and shall contain:
(a) A detailed description of the proposed project including a statement of expected benefits;
(b) Blueprints or drawings of the proposed project providing such detail as the department may require;
(c) A detailed estimate of project costs; and
(d) Such other information as the department may require.
(2) The department shall act on all applications for preliminary certification before the 120th day after the receipt of such application. At any time during that period the department may request clarification, additional detail or modification of the plans.
(3) If the department rejects an application for preliminary certification, the department shall cause written notice of the action, together with a statement of findings and the reasons therefor to the applicant.
(4) Preliminary certification of a fish habitat improvement project by the department shall not:
(a) Qualify the applicant for the tax credit provided under ORS 315.134.
(b) Exempt the project from any state or federal law, or local ordinance.
(5) Upon completion of construction or installation of a fish habitat improvement project preliminarily certified by the department under this section, a person may apply to the department for final certification of the project. The application for final certification shall be made in writing on forms provided by the department and shall include:
(a) A detailed statement of project costs; and
(b) Whatever other information the department may require.
(6) Upon receipt of an application for final project certification, the department shall cause the project to be inspected to determine that the project will result in the improvement of riparian or in-stream habitat. If the department determines that the project conforms to the plans approved during the preliminary certification, the department shall provide the applicant with written notice of final certification of the project. The action of the department shall include certification of the actual cost of the project for purposes of the income tax credit relief allowed under ORS 315.134. However, in no event shall the department certify an amount for tax credit purposes that is more than 10 percent in excess of the amount approved in the preliminary certificate issued for the project under subsection (2) of this section. [1981 c.720 §22]
496.265 Limitation on amount eligible for tax credit. Notwithstanding any provisions of ORS 315.134 and 496.260 to the contrary, the State Department of Fish and Wildlife shall not preliminarily certify under ORS 496.260 (2), in any one calendar year, as eligible for tax credit under ORS 315.134, fish habitat improvement project costs in excess of $100,000. The department shall not grant preliminary certification for a fish habitat improvement project unless application under ORS 496.260 (1) is filed with the department on or before January 1, 1998. [1981 c.720 §23; 1989 c.924 §8]
496.270 Immunity from liability for damages resulting from habitat or water quality improvement project; exceptions. (1) The Legislative Assembly declares that it is the policy of the State of Oregon to encourage operators, timber owners and landowners to voluntarily improve fish and wildlife habitat. In order to carry out this policy, the Legislative Assembly encourages cooperation among operators, timber owners and landowners and other volunteers.
(2) Consistent with the limitations of ORS 105.672 to 105.696, a landowner is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land by:
(a) A volunteer conducting a fish and wildlife habitat improvement project; or
(b) A participant of a state-funded or federally funded watershed or stream restoration or enhancement program.
(3) An operator, timber owner or landowner shall not be held liable for any damages resulting from:
(a) A fish and wildlife habitat improvement project done in cooperation and consultation with the State Department of Fish and Wildlife or the Oregon Watershed Enhancement Board, or conducted as part of a forest management practice in accordance with ORS 527.610 to 527.770, 527.990 and 527.992; or
(b) Leaving large woody debris within the waters of this state to protect, retain and recruit large woody debris for the purposes of fish habitat and water quality improvement.
(4) The limitations to liability provided by subsections (2) and (3) of this section do not apply if the damages, injury or death was caused by willful, wanton or intentional conduct on the part of the operator, timber owner or landowner or by the gross negligence of the operator, timber owner or landowner. As used in this subsection “gross negligence” means negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by indifference to or reckless disregard of the rights of others.
(5) The limitation on liability provided by subsection (3) of this section does not apply to claims for death or personal injuries. [1993 c.701 §2; 1997 c.207 §1; 1999 c.863 §3]
Note: 496.270 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 496 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
FISH RESOURCE PROTECTION, RESTORATION AND ENHANCEMENT
Note: Sections 1, 2 and 10 to 13, chapter 512, Oregon Laws 1989, provide:
Sec. 1. This Act shall be known and may be cited as the Oregon Fisheries Restoration and Enhancement Act of 1989. [1989 c.512 §1]
Sec. 2. The Legislative Assembly finds, in the interest of all Oregonians, a necessity to improve Oregon’s fishery resource through the further involvement of its citizens and through support by additional financial revenues. [1989 c.512 §2]
Sec. 10. (1) Notwithstanding ORS 506.306, all moneys received by the State Fish and Wildlife Commission pursuant to sections 4, 6 and 8, chapter 512, Oregon Laws 1989, shall be deposited in a separate subaccount in the State Wildlife Fund. Except as provided in subsection (2) of this section, moneys in the subaccount may be expended only for the department’s fish restoration and enhancement programs for the benefit of the fish resources of this state.
(2) Fees collected from salmon ranching permits authorized under ORS 508.700 to 508.745 will not be commingled with public fishery funds collected and deposited in the subaccount referred to in this section. Notwithstanding any other provision of law, these funds will be used to monitor the effect and impact of private salmon ranching on the fishery resources of Oregon.
(3) The department shall not divert present budgeted funds to other projects as user surcharge funds become available and shall not embark on new programs not vital to the restoration of Oregon fisheries as required by Oregon Revised Statutes and administrative rules. The department shall not assess its personnel costs in the administration of chapter 512, Oregon Laws 1989, against the subaccount referred to in this section without the prior approval of the Restoration and Enhancement Board. [1989 c.512 §10; 1991 c.184 §4]
Sec. 11. (1) There is established within the State Department of Fish and Wildlife the Restoration and Enhancement Board, consisting of seven members appointed by the State Fish and Wildlife Commission.
(2) Three members shall be appointed to represent the ocean and inland recreational fisheries. In making appointments pursuant to this subsection, the commission shall consider recommendations from the State Fish and Wildlife Director.
(3) Three members of the board shall be appointed to represent the commercial troll and gillnet fisheries and the fish processing industry. In making appointments pursuant to this subsection, the commission shall consider recommendations from the State Fish and Wildlife Director.
(4) One member of the board shall be appointed to represent the public.
(5) A member of the board shall receive no compensation for services as a member. However, subject to any applicable law regulating travel and other expenses of state officers and employees, a member shall be reimbursed for actual and necessary travel and other expenses incurred in the performance of official duties from such moneys made available by sections 4, 6 and 8 of this 1989 Act.
(6) The term of office of a member of the board is four years. A member of the board is eligible for reappointment.
(7) An official action of the board may be taken only upon the affirmative vote of four members.
(8) The board shall select such officers for such terms and with such duties and powers as the board considers necessary for the performance of those offices.
(9) The board shall meet at such times and at such places as may be determined by the chair or by the majority of the members of the board. [1989 c.512 §11]
Sec. 12. (1) The Restoration and Enhancement Board shall meet, adopt and recommend to the State Fish and Wildlife Commission, within 120 days after July 1, 1989, and at not more than 120-day intervals thereafter, fish restoration and enhancement programs.
(2) The commission shall review such programs and may approve or disapprove any or all program recommendations by the board. Funds may be expended from the subaccount referred to in section 10, chapter 512, Oregon Laws 1989, for projects that have been approved by the commission.
(3) The State Department of Fish and Wildlife and the board jointly shall submit to each biennial session of the Legislative Assembly a report on expenditure of funds for the fish restoration and enhancement program and on the status of various projects.
(4) In recommending fish restoration and enhancement programs, the board shall:
(a) Recommend a mix of projects that provide a balance between restoration and enhancement benefits.
(b) Recommend projects that are to be implemented by the salmon and trout enhancement program and nonprofit organizations engaged in approved restoration and enhancement activities.
(c) Encourage projects that result in obtaining matching funds from other sources.
(5) All moneys made available for the fish restoration and enhancement program from surcharges received under sections 4, 6 and 8, chapter 512, Oregon Laws 1989, and from gifts and grants made to carry out the fish restoration and enhancement program may be expended only if recommended by the board and approved by the commission. Such amounts may be expended:
(a) On programs benefiting the commercial fishing industry in the same proportion as revenues received from surcharges under sections 6 and 8, chapter 512, Oregon Laws 1989, bear to the total amount of surcharge revenues.
(b) On programs benefiting recreational angling in the same proportion as revenues received from the surcharge under section 4, chapter 512, Oregon Laws 1989, bear to the total amount of surcharge revenues.
(6) The board may accept, from whatever source, gifts or grants for the purposes of fish restoration and enhancement. All moneys so accepted shall be deposited in the subaccount referred to in section 10, chapter 512, Oregon Laws 1989. Unless otherwise required by the terms of a gift or grant, gifts or grants shall be expended as provided in subsection (5) of this section.
(7) As used in this section:
(a) “Enhancement” includes, but is not limited to, the following activities:
(A) Angler access.
(B) New fishways and screens.
(C) Habitat.
(D) New hatchery equipment and technology.
(E) Public education.
(F) Aquatic inventories.
(b) “Restoration” includes, but is not limited to, the following activities:
(A) Modification of existing fishways and existing screens.
(B) Hatchery restoration.
(C) Liberation equipment. [1989 c.512 §12; 1997 c.8 §12]
Sec. 13. (1) Individuals who reside in the various regions established for administration of the salmon and trout enhancement program may form advisory councils to discuss and consider fish restoration and enhancement programs and projects and shall make recommendations thereon to the Restoration and Enhancement Board. When the board considers proposals affecting a region, the board shall consult with the advisory council for that region if one exists.
(2) Employees of the State Department of Fish and Wildlife who are residents of the various regions may act in an advisory capacity to the various councils.
(3) Individuals who serve as members of an advisory council shall receive no compensation or expenses for service as a member. [1989 c.512 §13]
496.275 Salmon resource protection and restoration; review of public and private production facilities; approval of production facilities by department. (1) The Legislative Assembly hereby declares the necessity to review all options and means for the protection and restoration of Oregon’s salmon resource that promote local economic development and enjoyment by all the citizens of Oregon. Options and means shall include operation of salmon production facilities, in cooperation with the State Department of Fish and Wildlife, by both public and private nonprofit agencies as well as by public local partnerships, to meet local production and harvest needs as well as to help restore and maintain natural salmon spawning populations. Such cooperative production projects shall be operated using scientifically sound hatchery practices and shall be consistent with objectives to protect and restore natural fish production.
(2) The State Department of Fish and Wildlife shall:
(a) Review and revise existing state administrative rules so that the different forms of hatchery production are recognized as a necessary and critical element in the state’s salmon production system in order to provide harvest opportunities for Oregon’s citizens. In so doing, the department shall identify low natural production areas and, using genetically compatible stocks approved by the department, encourage volunteer efforts such as the salmon and trout enhancement program to maintain and to enhance production.
(b) Identify existing private and public salmon production facilities that are currently either underutilized or subject to decommissioning and that may be appropriate for other forms of operation.
(c) Inventory other appropriate local sites, identify possible types of production facilities, recommend stock selection and release size, and assist in securing the acquisition of brood stock approved by the department that maximizes local production.
(d) Investigate and implement ways to improve hatchery smolt survival and reduce predation by such means as night releases, net pen acclimation, alternate release sites, volitional and other release strategies, transport and other means that may be effective and consistent with the conservation of native salmon and genetic resources.
(e) Make recommendations on methods by which operations of facilities referred to in subsections (2) to (4) of this section can generate revenue for sustainable production, including but not limited to state bonding, license surcharges, ad valorem taxes, local economic development funds, service districts, sale of excess eggs and salmon, and gifts, grants and donations.
(f) Identify needed monitoring and evaluation activities to ensure protection of natural spawning fish populations and to assess the contribution of such cooperative projects to public fisheries.
(g) Assist in developing, for department approval, plans of operation for such cooperative hatchery projects consistent with applicable rules and standards of sound, scientific fish management practice.
(3) The department shall encourage and assist in planning hatchery facilities that seek to implement innovative plans or programs designed to meet production for harvest needs consistent with conservation objectives.
(4) The department shall make a report on its activities under subsections(2) to (4) of this section to an appropriate interim committee of the Legislative Assembly by September 1, 1996. (continued)