OAR 635-100-0137: Survival Guidelines for Marbled Murrelet

(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).