Current through Register Vol. 63, No. 3, March 1, 2024
(1) ORS
496.182(2)
states that the Commission shall, at the time a species is added to the list of
threatened or endangered species, adopt by rule quantifiable and measurable
guidelines that the Commission considers necessary to ensure the survival of
individual members of the species. These survival guidelines shall only apply
to actions proposed and carried out on lands owned or leased by a state agency,
or where a state agency holds an easement, except road access easements across
private lands.
(2) These survival
guidelines focus on measures to minimize potential for unauthorized take of
Marbled Murrelets. "Take" is defined in section (11)(m) of this rule.
(3) Pursuant to OAR 635-100-0140, a
Commission-approved endangered species management plan for the Marbled Murrelet
developed by an affected state agency shall supersede these survival
guidelines.
(4) Consistent with ORS
496.182(1),
these survival guidelines seek to minimize duplication and overlap of state and
federal laws and regulations pertaining to listed species:
(a) Pursuant to ORS
496.172(4),
these survival guidelines do not apply if the state agency is operating in
compliance with, and has on file with the Department, an Incidental Take Permit
for the Marbled Murrelet issued by the U.S. Fish and Wildlife Service (USFWS)
under the federal ESA.
(b) State
agencies that propose to implement projects that have the potential to take
Marbled Murrelets should consult with the USFWS. These survival guidelines are
preempted by any more protective measures required by the federal
ESA.
(c) The Department may
approve, in writing, actions not consistent with protection requirements in
these survival guidelines for reasons of forest health or public safety, or
when the approval is consistent with USFWS advice.
(d) In cases of emergency, such as wildfire
and search and rescue situations, nothing in these survival guidelines is
intended to delay the necessary response to secure human life and
property.
(e) State agencies shall
document and retain information and other data related to survey results,
protection of Marbled Murrelet occupied sites, and associated
decision-making.
(f) The Department
may schedule periodic meetings with other state agencies. State agencies will
review projects and activities that occurred under these survival guidelines
and may recommend changes to the survival guidelines.
(5) Prior to implementing a project that
removes trees and has the potential to take Marbled Murrelets, approved surveys
of the project area shall be conducted for a minimum of two consecutive years
to determine if it is occupied by murrelets.
(6) State agencies shall designate and
protect occupied sites and associated buffers on state-owned, managed, and
leased lands. Occupied sites and buffers exclude adjacent private and non-state
public lands.
(a) If subcanopy behaviors are
detected or if a nest site is found, then all continuous suitable habitat in a
project area shall be designated as an occupied site.
(b) If during consultation, the USFWS and
Department agree that a different extent or configuration adequately delineates
the designated occupied site and buffer, section (6)(a) of this rule shall not
apply.
(c) Projects that remove
trees are prohibited in occupied sites and buffers if the Department determines
that the impacts from the project will change the habitat function for Marbled
Murrelets. The Department may allow exceptions to this rule after prior review
and approval by the USFWS and the Department.
(d) Forest management activities, such as
manual release operations and pre-commercial thinning to maintain the growth
and survival of conifer reforestation in buffers, shall only be allowed
September 16 "" March 31, or with daily timing restrictions (between two hours
after sunrise and two hours before sunset) from August 6 - September
15.
(e) Removal of downed or
standing trees that present imminent safety hazards to persons or property, or
that obstruct existing roads, utility corridors, and rights-of-way is
allowed.
(7) The
following projects and activities that have the potential to take Marbled
Murrelets in occupied sites are prohibited:
(a) Use of chainsaws and heavy equipment
within the buffer of an occupied site from April 1 - August 5. These activities
are allowed from August 6 - September 15, between two hours after sunrise and
two hours before sunset.
(b)
Burning within 0.25 mile (0.40 kilometer) of an occupied site from April 1 -
September 15.
(c) Use of explosives
within 1.0 mile (1.6 kilometers) of an occupied site from April 1 - September
15.
(d) Established public uses and
maintenance of existing infrastructure, including but not limited to, roads,
campgrounds, picnic/day use areas, and buildings are not subject to section
(7)(a) and (7)(b) of this rule.
(8) State agencies shall provide information
and outreach to the public to prevent the intentional and unintentional (e.g.,
unattended food, food trash) feeding of wildlife. Food-related trash shall be
secured in wildlife proof containers at established public recreation areas
such as parks, campgrounds, picnic/day use areas, trailheads, and associated
parking areas within or immediately adjacent to suitable habitat.
(9) State agencies shall consider protection
of Marbled Murrelet occupied sites in fire management, including wildfire
prevention, preparedness, and response. Fire management should identify
occupied sites as high-value natural resources.
(10) For all other projects and activities
not described in these survival guidelines with potential to take Marbled
Murrelets, state agencies shall notify and consult with the Department to
determine conservation measures appropriate to the situation.
(11) For the purposes of implementing these
survival guidelines, the following definitions apply:
(a) "Approved survey" refers to a method for
surveying Marbled Murrelets in forests that, after consultation with ODFW, ODFW
accepts in writing.
(b) "Buffer"
means, at a minimum, a 328-foot (100 meter) wide protected zone around the
perimeter of an occupied site. Buffers exclude adjacent private and non-state
public lands.
(c) "Continuous"
means no gaps in suitable habitat wider than 328 feet (100 meters).
(d) "Forest stand" means an aggregation of
trees that are sufficiently uniform in species composition, size, age, and
condition as to be distinguished from adjacent aggregations.
(e) "Nest site" means a location with an
active nest or evidence of a prior Marbled Murrelet nest, including eggs,
eggshell fragments, or a downy chick.
(f) "Occupied site" means a continuous area
of suitable habitat in a project area where Marbled Murrelets have been
observed exhibiting subcanopy behaviors or in which a nest site has been found.
Occupied sites exclude adjacent private and non-state public lands.
(g) "Platform" means a flat surface on a tree
limb, which is generally 4 inches (10 centimeters) in diameter, and capable of
hosting a Marbled Murrelet nest. Platforms can be created by a wide bare
branch, moss or lichen covering a branch, mistletoe, other deformities, or
structures such as squirrel nests.
(h) "Platform tree" means any tree having one
or more platforms that are generally 33 feet (10 meters) high in a live
coniferous tree.
(i) "Project area"
refers to the geographic extent that will be directly affected by the proposed
action, plus all continuous suitable habitat within 0.25 mile (0.40 kilometer)
of the proposed action boundaries. Project areas exclude private and non-state
public lands.
(j) "State
land-owning or managing agency" means an agency (or program within an agency)
identified in OAR 635-100-0140(1)(a)-(n).
(k) "Subcanopy behaviors" refers to Marbled
Murrelet behaviors occurring at or below the forest canopy, and that strongly
indicate the site has some importance for breeding. Subcanopy behaviors include
flying through the canopy, circling below the canopy, landing, and stationary
calling.
(l) "Suitable habitat" for
state lands generally means old-growth, mature, coniferous forest stands that
include multiple platform trees, and occur within 35 miles (56 kilometers) of
the Pacific Coast.
(m) "Take" means
"to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect
or attempt to engage in any such conduct", following the federal ESA
(16
U.S.C. 1532(19)). Through
federal regulations, "harm" is defined as "an act which actually kills or
injures wildlife. Such an act may include significant habitat modification or
degradation where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding, or
sheltering." "Harass" is defined as "an intentional or negligent act or
omission which creates the likelihood of injury to wildlife by annoying it to
such an extent as to significantly disrupt normal behavioral patterns which
include, but are not limited to, breeding, feeding, or sheltering"
(50
CFR 17.3).
Statutory/Other Authority: ORS
496.004, ORS
496.171,
ORS
496.172,
ORS
496.182,
ORS
496.192
& ORS
498.026
Statutes/Other Implemented:ORS
496.004, ORS
496.171,
ORS
496.172,
ORS
496.182,
ORS
496.192
& ORS
498.026