Note: This rule applies to all operations for which a notification is filed under ORS 527.670(6) on or after January 1, 2024 or a notification filed prior to January 1, 2024 if the operation is not completed on or before December 31, 2023. Rules that relate to fish streams apply to an operation, other than an operation on small forestland, for which a notification is filed on or after July 1, 2023.

1. (1) The amount of civil penalty per violation shall be the lesser of $10,000 or the amount determined by the formula $B (C x P) + ($B x D x R) where:

   1. (a) $B is a base fine established by type of violation in section (2) of this rule;
   2. (b) C is cooperation;
   3. (c) P is prior knowledge or prior violations;
   4. (d) D is damage to protected resources; and
   5. (e) R is the extent of damage that cannot be corrected, or prevented in the future, even though repairs are made.

2. (2) The base penalty value ($B) shall be established as follows:

   1. (a) A base penalty of $200 shall be applied to violations of a type where the operator fails to notify the State Forester of intent to operate or fails to submit a required written plan or obtain written approval of a plan for an alternate practice.

   2. (b) A base penalty of $500 shall be applied to:

      1. (A) Violations of any rule or statute which requires or sets standards for accomplishing reforestation.
      2. (B) Violations involving a failure to comply with the terms or conditions of any order of the State Forester issued in accordance with ORS 527.680.
      3. (C) Violations of a type where the operator fails to comply with any term or condition of an approved plan for an alternate practice.
      4. (D) Violations where the State Forester determines that an operator has intentionally failed to notify the State Forester of intent to operate, notwithstanding subsection (2)(a) of this rule.
      5. (E) All other violations of forest practice rules or statutes not specifically described in section (2) of this rule.
   3. (c) A base penalty of $2000 shall be applied to violations of any rule or statute which sets a maximum size for harvesting operations.

3. (3) The cooperation value (C) shall be determined by the State Forester after reviewing whether the operator is taking all feasible steps or procedures necessary or appropriate to correct the violation for which the penalty is being assessed. The value shall be assigned as follows:

   1. (a) A value of 0.5 shall be assigned when, in the judgment of the State Forester, the operator takes substantial initiative to correct the damage or problem that led to the violation. Substantial initiative may include, but is not limited to, reporting the violation before it is discovered, initiating effective repairs without having to be directed, or making substantive changes in operating procedures designed to identify and avoid potential recurrences.
   2. (b) A value of 1 shall be assigned when the operator cooperates in following the direction of the State Forester by immediately ceasing further violation and taking prompt action to repair damage or correct any unsatisfactory condition where deemed feasible by the State Forester.
   3. (c) A value of 2 shall be assigned when the State Forester determines that the operator does not immediately cease further violation, is evasive upon attempts to make necessary communications, or neglects to take necessary and timely action to repair damage or correct any unsatisfactory condition.

4. (4) The prior knowledge value (P) shall be determined by the State Forester after reviewing department records of citations, operation notification or operation inspections. A value from 0.5 through 10 shall be assigned as follows:

   1. (a) A value of 0.5 is appropriate when the operator has little or no prior knowledge of the Oregon Forest Practices Act but has cooperated in ceasing violation and correcting unsatisfactory conditions.
   2. (b) A value of 1 is appropriate when the operator has general knowledge of the Oregon Forest Practices Act and rules, but has not had significant past experience with the practice in question, or has significant past experience with the practice, but the violation is determined by the State Forester to be inadvertent or accidental.
   3. (c) A value of 2 is appropriate when the operator has had significant past experience with a practice or condition, or has had specific correspondence or conversation with department personnel about the required practices or actions involved in the violation, before the violation.
   4. (d) A value of 4 is appropriate when the State Forester has issued a written statement of unsatisfactory condition to the operator for the violation and timely corrective action was not taken.
   5. (e) A value from 3 through 5 is appropriate when the operator has received citations for any other forest practice rule or statute within the past three years.
   6. (f) A value from 5 to 10 shall be assigned when the operator has been cited within the past three years for a violation of the same forest practice rule, statute, or condition; or in a case of failure to comply with an order to cease further violation, or order to repair damage, or order to correct an unsatisfactory condition (ORS 527.680(2)).

5. (5) The damage value (D) shall be determined by the State Forester as a measure of extent or relative adverse effect of damage. The specific value applied shall be based on the pre-operation condition of the site, if known, the severity and extent of damage associated with the violation, and any potential economic gain to any involved operators. The damage value should be consistent with the policy of deterring future violations. A value from 0 through 20 shall be assigned. The following shall guide the State Forester's determination:

   1. (a) A value of zero shall be assigned when the violation has not resulted and will not result in resource damage.

   2. (b) A value of 1 shall be assigned when the adverse effects of the violation left uncorrected are minor and the affected resources will naturally self-restore within one year.

      Example: Siltation from exposed soil flows into the upper reaches of a stream, but the site will naturally revegetate within the next growing season, preventing further siltation.

   3. (c) A value from 2 to 5 shall be assigned when the damage from the violations left uncorrected is more serious than described in subsection (b) of this section, but the affected resources will self-restore naturally within five years.

      Examples: A small volume debris avalanche is caused by road construction material placed in an unstable location and the debris comes to rest in a fish-bearing or domestic use water; or logs are skidded across a stream without an adequate temporary crossing leaving ruts and disturbed soil areas that will flow muddy water directly into the stream.

   4. (d) A value from 5 through 10 shall be assigned when the damage from the violation left uncorrected is major in relative effect, with natural self-restoration taking up to 10 years. A consideration in selecting a value from 5 to 10 may include, but is not limited to the size of the area affected.

      Examples: Failure to reforest five acres may be assigned no less than a 5, while failure to reforest 50 acres may be assigned a 10. Removal of understory vegetation along 500 feet of a small stream may be assigned a 10.

   5. (e) A value from 5 through 20 shall be assigned when damage is the result of harvest or destruction of trees or snags required to be maintained; or when the damage from the violation left uncorrected is major in relative effect, with self-restoration taking more than 10 years.

      Example: Severe riparian management area soil disturbance, combined with the total harvest or destruction of what had been a fully stocked stand of trees required to be maintained, along more than 500 feet of a small stream may be assigned a factor of 20.

6. (6) The repair value (R) shall be assigned by the State Forester as a measure of the relative extent of the damage that is corrected or prevented through timely corrective action. The value shall be set by the State Forester between 0 and 1, inclusive and expressed as a decimal. The decimal indicates the degree of damage that already occurred and future damage that cannot be prevented, even after the repairs are completed as directed in the repair order.

   Example: A tractor crossed a stream with no temporary structure, breaking the stream banks down, leaving exposed skid trails which eroded, creating turbidity, and leaving visible sediment in the stream. With no repairs, the stream bank and skid trails would revegetate in 4 years. The landowner performed all repairs as ordered, including mulching, placing rip-rap, and building waterbars. In the State Forester's judgement, compliance with the repair order will prevent all but 20% of the potential damage expected over the next 4 years. Therefore R equals 0.20. If repairs are not feasible or are not completed, R equals 1.0.

Statutory/Other Authority

ORS 527.710, 526.016 & Section 2(1), Chapter 33, Oregon Laws 2022

Statutes/Other Implemented

ORS 527.674 & 527.685

History

DOF 5-2022, amend filed 11/09/2022, effective 07/01/2023
DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06
DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06
DOF 7-2002, f. & cert. ef. 7-1-02
DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98
FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0040
FB 5-1990, f. 7-27-90, cert. ef. 8-1-90
FB 5-1988, f. 7-27-88, cert. ef. 8-1-88