OAR 629-670-0214: Civil Penalty Administrator Discretion

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) The civil penalty administrator shall have the discretion to combine violations for the sake of assessing reasonable penalties, under the following circumstances: (a) Multiple citations have been issued for violations resulting from the same practice; (b) Multiple citations have been issued for violations resulting in the same damage; or (c) Upon a finding of the State Forester that a combination of violations is in the public interest and consistent with the policy of the Oregon Forest Practices Act, ORS 527.630. (2) The civil penalty administrator shall have the discretion to find a penalty is not warranted for reforestation violation cases, when: (a) The party cited for the violation was not the landowner at the time the harvesting operation reduced stocking below the minimum standards; and (b) Planting is completed as directed in the repair order. (3) The civil penalty administrator shall have the discretion to find a penalty is not warranted for cases where all of the following conditions exist: (a) The violation arose inadvertently; (b) There was little or no potential for damage; (c) No damage resulted; and (d) The cooperation of the operator shows there is little or no chance that the violation will be repeated. (4) Penalties totaling less than $100 shall be suspended, pending no further violations within one year of issuance of the citation. (5) The civil penalty administrator shall have the discretion to reduce the amount of the civil penalty when the party assessed: (a) Agrees to the facts of the case; (b) Accepts responsibility for the violation; and (c) Agrees to perform mitigation on the operation unit, or within the watershed, that is equal or greater in value than the amount by which the penalty will be reduced. Examples may include, but are not limited to, any of the following restoration and enhancement activities: (A) Reconstructing, relocating, or vacating roads that, because of their location, present a higher risk to water quality than if they had been located and designed to current forest practice rule standards; (B) Restoring or enhancing upstream and downstream fish passage, including replacing crossing structures not designed to current forest practice rule standards; (C) Restoring or enhancing fish habitat by placing large woody debris or other structures in or adjacent to stream channels; (D) Retaining conifers adjacent to streams, to supplement current forest practice rule requirements, consistent with forest health considerations; (E) Restoring or enhancing habitat for threatened and endangered species or other wildlife habitat; (F) Restoring or enhancing the protection of salmonid production areas. Salmonid production areas include habitat identified through stream or other inventories as being important for spawning, rearing, or over-wintering; (G) Participating in a research or monitoring program sponsored or endorsed by the Department of Forestry or the Department of Fish and Wildlife; (H) Participating with Watershed Councils to conduct watershed assessments, develop action plans or implement restoration projects; (I) Controlling noxious weeds or exotic species; or (J) Implementing strategies to reduce the risk of catastrophic fire or insect or disease damage. (6) For the purpose of calculating civil penalties for a new violation, the civil penalty administrator shall consider a person’s or entities’ history of receiving temporary orders, orders of the state forester, citations, and violations. This may include consideration of: (a) As applies to individuals: business entities for which the individual was responsible for the actions of the business. (b) As applies to businesses: individuals who are responsible for the actions of the entity, and the history of the entity should it have changed its name, form, ownership, or structure.