OAR 603-073-0090: Protection and Conservation Programs

(1) The department shall develop guidelines for the establishment, by rule, of conservation and protection programs for listed species on state-managed lands. These programs may stipulate or recommend activities associated with research, census, law enforcement, habitat acquisition and maintenance, propagation, and any other method deemed appropriate. While developing these guidelines the department shall consult with affected state and federal agencies. The department may also consult with other interested persons, as necessary. (2) Priority in the development and implementation of conservation guidelines will be given to species listed as threatened or endangered under these rules, per ORS 564.105(7). By written agreement, such programs may also be developed, in consultation with affected agencies, for candidate species and other species recognized by state or federal agencies in Oregon as deserving of protection, depending on the availability and applicability of funds and the immediacy and seriousness of the threats involved. The design and scope of conservation programs may vary, according to species, and need not follow pre-determined formats. Conservation programs for listed species may be entered into by private landowners without permission or involvement of the department, as long as all activities occur solely on the owner’s property. (3) To administer the provisions of these rules, the department may enter into agreements with federal agencies, other states, agencies or political subdivisions of this state, or any other persons for the development and management of any program established for the protection of listed, candidate, or other plant species. (4) The department is authorized to receive properties, and receive and expend funds, donations, grants, or other monies to accomplish the purposes of these rules. (5) All state agencies, in consultation with the department, shall further the purposes of these rules by carrying out any existing departmentally established conservation programs, per ORS 564.105(3) and these rules, for the protection of endangered or threatened plant species, and by taking steps necessary to ensure that any action authorized, funded, or carried out by said agencies on state-managed land will not jeopardize the continued existence of listed species. When existing data indicate the presence of a listed species on properties adjoining state-managed lands, whether federal or private, state agencies will make a reasonable effort to ensure that their actions will not result in population loss or decline of the listed species on these sites. However, under the provisions of these rules, state agencies are not responsible for inventories, protection, study, or any other conservation management activities pertaining to populations of listed species on such adjacent lands. In furtherance of this section, state agencies shall: (a) Ascertain by their own field survey, consultation with the department, or from the Oregon Natural Heritage Program (see ORS 273.566 and 273.576) if listed species occur or are likely to occur on lands targeted for state action, and, if so; (b) Determine, prior to the initiation of the land action, if the proposed action on statemanaged lands is consistent with a conservation program for the listed species established by the department, pursuant to section (1) of this rule and ORS 564.105(3); or (c) If there is no program developed by the department for the listed species in question, determine, prior to the action, whether the proposed action has the potential to appreciably reduce the likelihood of the survival or recovery of any population of the listed species. If the agency determines that the proposed action will not reduce the likelihood of survival or recovery, it shall notify the department in writing within 30 days of its findings. Within 45 days of receipt of such notification, the department will inform the state agency if it accepts the findings or if additional information is required. If the department accepts the state agency findings then the action proposed by the state agency may proceed. Otherwise, a written evaluation in the format specified in subsection (5)(d) of this rule shall be required; (d) If a state agency ascertains, pursuant to subsections (5)(a), (b), and (c) of this rule, that a proposed action on state-managed land has the potential to appreciably reduce the likelihood of survival or recovery of any population of any plant species that is listed as threatened or endangered, it shall notify the department in writing within 30 days of its findings. Within 45 days of such notification the department will inform the state agency if a written evaluation of the land action in relation to the population(s) of threatened or endangered species is required. Such written evaluations presented to the department by the state agency shall include: (A) Scientific name, authority, and common name (if any) of the listed species involved; (B) The historical and presently known distributions of the listed species, with an estimation of how much of the known range of the species is likely to be affected by the current or proposed land action; (C) A description of the habitat of the listed species as it occurs at the site(s) of the proposed land action, including, but not limited to, general information on relative abundances of other plant species occurring at the site, soil characteristics, elevation, a history of land actions at the site, a summary of current land uses and practices, and ownership patterns of adjoining properties; (D) A qualitative and quantitative assessment of the population(s) of the listed species occurring at the site of the proposed land action, including, but not limited to, information on numbers of individuals comprising the population(s), the estimated age or stage structure (if applicable) of the population(s), any obvious signs of disease or predation, pollinators, seed production or any other readily observable life history traits, and suspected negative or positive impacts of past or present land actions; and (E) An evaluation of the predicted effects of the proposed land action on the population(s) of any listed species present, including initial recommendations by the state agency outlining reasonable measures to be taken to minimize any potential adverse impacts of the action on the affected listed species. (e) The department shall review and comment on state agency evaluations, per subsection (5)(d) of this rule, within 90 days of receipt and shall recommend alternatives to the proposed action, if necessary, which are consistent with conserving and protecting the affected listed species; (f) State agencies shall further comply with these rules by documenting the occurrence and evaluating population trends (including threats) of listed species on state-managed lands where ongoing actions (including, but not limited to, domestic grazing, mining, herbicide application, release of biocontrol agents, and forestry practices) may be in conflict with the provisions set forth in ORS 564.105–564.120 and these rules. All distributional and demographic information acquired by state agencies will be provided to the department to be considered in the development of the conservation programs specified in sections (1) and (2) of this rule. If necessary, the department shall recommend modifications or alternatives to the ongoing actions which are consistent with conserving and protecting the affected listed species, and may require a written evaluation of the action by the state agency, in the manner specified under subsection (5)(d) of this rule; (g) State agencies shall identify those listed species occurring, or suspected to occur, on lands owned or managed by them that are subject to ongoing actions and, in consultation with the department, develop a reasonable timetable for the provision of the information specified in subsection (5)(f) of this rule. State agencies shall reassess the number and locations of listed species on their lands in an annual written report to the department, including all species listed after the initial enactment of these rules. State agency annual reports will be due on or before December 31 of each year; (h) If a state agency elects not to adopt the alternatives presented pursuant to subsection (5)(e) or (f) of this rule, it shall consult with and submit written findings to the department at least 60 days prior to the initiation of any proposed action demonstrating that: (A) The potential public benefits of the proposed or ongoing action outweigh the potential harm from failure to adopt the alternatives; and (B) Mitigation and enhancement measures shall be taken to minimize the adverse effect of the proposed or ongoing action on the listed species, either on or adjacent to the site of the action, or at a suitable alternative location, in consultation with the department. (i) In complying with subsections (5)(a) through (h) of this rule, state agencies and the department shall utilize employees with expertise in field botany, plant taxonomy, and biological conservation, recognizing the high level of technical competence required to correctly identify and assess the habitat and biological status of listed species. If such expertise is not available within a state agency the agency shall contract, as funds allow, with the department, the Oregon Natural Heritage Program (see ORS 273.566 and 273.576), or other persons having the appropriate qualifications to accomplish the necessary work; (j) The department is under no obligation to provide field expertise or any other assistance outside the normal consultation procedures described under subsections (5)(a)–(5)(h) of this rule. State agencies may reimburse the department for technical services through cooperative agreements or other means, per section (4) of this rule, providing the department has staffing available for assistance. (6) When a state agency determines that an emergency circumstance makes it necessary to initiate an action without observing the provisions of these rules, the state agency taking the action shall consult with the department about alternative arrangements. The state agency and the department will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Such emergencies may include, but are not limited to, landslides, wildfires, floods, and other natural disasters. (7) Where any persons other than state agencies, including federal, agencies, engage in actions (including ongoing actions) on state-managed land, it shall be the responsibility of the state agency owning or managing the affected land to ensure compliance with ORS 564.100–564.135 and these rules, following the appropriate steps in section (5) of this rule. (8) To further the protection and conservation of listed species the department may provide data from its files to other agencies or persons, providing that unlawful taking of listed species is not likely to occur as a result.