CCLME.ORG - DEPARTMENT OF FISH AND WILDLIFE PRIVATE SALMON HATCHERIES DIVISION 100 WILDLIFE DIVERSITY PLAN
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Oregon Regulations
CHAP 635 DEPARTMENT OF FISH AND WILDLIFE PRIVATE SALMON HATCHERIES DIVISION 100 WILDLIFE DIVERSITY PLAN





The Oregon Administrative Rules contain OARs filed through July 14, 2006

DEPARTMENT OF FISH AND WILDLIFE

WILDLIFE MANAGEMENT PLANS

DIVISION 100

WILDLIFE DIVERSITY PLAN



635-100-0001

Definition of Terms

As used in the Wildlife Diversity Plan:1

(1) "Self-sustaining" means wildlife species that are naturally reproducing throughout their ranges with no dependency on artificial propagation to sustain natural production over time.

(2) "Endangered" means an animal threatened with extinction within all or a significant portion of its range.

(3) "Threatened" means an animal that could become endangered within the foreseeable future within all or a portion of its range.

(4) "Sensitive" refers to wildlife species, subspecies, or populations that are subject to a decline in number of sufficient magnitude to qualify their listing as Threatened due to loss in quantity or quality of habitat or other factors.

(5) "Wildlife" refers to both fish and wildlife species, subspecies, and populations.

1The Nongame Wildlife Management Plan was reviewed and updated as the Wildlife Diversity Plan and adopted by the commission on November 17, 1993. The Wildlife Diversity Plan was reviewed, updated, and adopted by the commission on January 22, 1999. As noted below in OAR 635-100-0005, only the policy portions of the Wildlife Diversity Plan are incorporated here as an administrative rule. Copies of the Wildlife Diversity Plan are available through the agency.

[Publications: The publication referred to or incorporated by reference in this rule is available from the agency.]

Stat. Auth.: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Hist.: FWC 11-1986, f. & ef. 4-4-86; FWC 75-1993, f. & cert. ef. 11-24-93; DFW 22-1998, f. & cert. ef. 3-13-98; DFW 4-1999, f. & cert. ef. 2-8-99

635-100-0005

Wildlife Diversity Plan Content and Purpose

(1) The Wildlife Diversity Plan provides the program goal, objectives and strategies to identify and coordinate nongame wildlife management, research and status survey needs, and education and recreation needs related to Oregon's wildlife. The document provides direction to the Oregon Department of Fish and Wildlife in carrying out its mandated responsibilities. The plan is also intended as an informational document to be used in wildlife programs by public agencies and others concerned with the conservation of nongame and other fish and wildlife species. Only the policy portions of the Wildlife Diversity Plan are incorporated here by administrative rule, namely the Goal and Objectives.

(2) The remaining portions of the Plan -- (Introduction, Strategies, Sub-strategies, Technical Information, Operational Schedule, and Priorities) are technical or related to agency management decisions. Accordingly, those parts may be updated by the commission outside the administrative rule process as new information is developed.

[Publications: The publication referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Hist.: FWC 11-1986, f. & ef. 4-4-86; FWC 75-1993, f. & cert. ef. 11-24-93; DFW 4-1999, f. & cert. ef. 2-8-99

635-100-0010

Wildlife Diversity Program Goal

It is the goal of the Wildlife Diversity Program to maintain Oregon's wildlife diversity by protecting and enhancing populations and habitats of native wildlife at self-sustaining levels throughout natural geographic ranges.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 496.012, ORS 496.138, ORS 496.146, ORS 496.162 & ORS 496.375
Stats. Implemented: ORS 496.012, ORS 496.138, ORS 496.146, ORS 496.162 & ORS 496.375
Hist.: FWC 11-1986, f. & ef. 4-4-86; FWC 75-1993, f. & cert. ef. 11-24-93

635-100-0015

Wildlife Diversity Program Objectives

The objectives of the Wildlife Diversity Program are to:

(1) Assess, conserve, and enhance wildlife habitats.

(2) Assess, conserve, and enhance populations of native species at self-sustaining levels throughout their natural geographic ranges.

(3) Provide recreational, educational, aesthetic, scientific, economic and cultural benefits derived from Oregon's diversity of wildlife.

(4) Minimize adverse biological, social and economic impacts resulting from interactions between people and wildlife.

(5) Provide financial and human resources for program planning, administration, implementation, and evaluation.

[Publications: The publication referred to or incorporated by reference in this rule are available from the agency.

Stat. Auth.: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Hist.: FWC 11-1986, f. & ef. 4-4-86; FWC 75-1993, f. & cert. ef. 11-24-93; DFW 4-1999, f. & cert. ef. 2-8-99

635-100-0030

Five-Year Review

The policy portions of the Wildlife Diversity Plan, namely the Goal and Objectives, will be updated and reviewed by the Oregon Fish and Wildlife Commission every five years beginning in 1993.

[Publications: The publication referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.012, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192, ORS 496.380, ORS 496.385, ORS 497.298, ORS 497.308, ORS 497.318 & ORS 498.026
Hist.: FWC 11-1986, f. & ef. 4-4-86; FWC 75-1993, f. & cert. ef. 11-24-93; DFW 4-1999, f. & cert. ef. 2-8-99

635-100-0040

Sensitive Species List

(1) For the purpose of maintaining a watch list of species potentially eligible for listing as threatened or endangered species, the category of sensitive species is established in the Nongame Wildlife Management Plan. The sensitive species list shall be updated by the department biannually, distributed to state and federal resource agencies, and made available to any member of the public upon request.

(2) Any person may request that a species be included on or deleted from the sensitive species list. A wildlife species shall qualify for inclusion on the sensitive species list if:

(a) Its numbers are declining at a rate such that it may become eligible for listing as a threatened species; or

(b) Its habitat is threatened or declining in quantity or quality such that it may become eligible for listing as a threatened species. A wildlife species shall qualify for deletion from the sensitive species list if:

(A) Its numbers are not or are no longer declining at a rate such that it may become eligible for listing as a threatened species; and

(B) Its habitat is not or is no longer threatened or declining in quantity or quality such that it may become eligible for listing as a threatened species.

(3) Any request must be in writing, stating the reasons for the requested action and briefly outlining the status of the species and how its condition meets the criteria enumerated in this rule for inclusion or deletion. The department shall review any such request, determine if the species qualifies for the requested action, and shall notify the person making the request of its decision within 90 days of receipt of the request.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: FWC 96-1988, f. & cert. ef. 9-30-88; DFW 22-1998, f. & cert. ef. 3-13-98

Threatened and Endangered Species List; Criteria and Procedures for Listing, Reclassifying and Delisting Threatened and Endangered Species; State Agency Cooperation
635-100-0080

Policy Statement

The commission's long-term goal for species listed as threatened or endangered under the state Endangered Species Act is to manage the species and their habitats so that the status of the species improves to a point where listing is no longer necessary. The commission intends to accomplish this goal through voluntary incentives, encouraging appropriate species management, coordinated planning, habitat protection and restoration, and other means as appropriate, in a manner consistent with the provisions of ORS 496.182(1).

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0100

Definition of Terms

As used in OAR 635-100-0100 to 635-100-0130:

(1) "Commission" means the State Fish and Wildlife Commission.

(2) "Conservation means the use of methods and procedures necessary to bring a species to the point at which the measures provided under ORS 496.171 to 496.182 are no longer necessary. Such methods and procedures include, but are not limited to, activities associated with scientific resource management such as research, census taking, law enforcement, habitat acquisition and maintenance, habitat protection and restoration, propagation and transplantation.

(3) "Department" means the Oregon Department of Fish and Wildlife.

(4) "Director" means the Director of the Oregon Department of Fish and Wildlife.

(5) "Endangered Species" means:

(a) Any native wildlife species determined by the commission to be in danger of extinction throughout any significant portion of its range within the state; or

(b) Any native wildlife species listed as an endangered species pursuant to the federal ESA.

(6) "Federal ESA" means the federal Endangered Species Act of 1973 (Public Law 93-205, 16 USC 1531), as amended.

(7) "Federal list" means the list of native wildlife species that have been designated as endangered or threatened under the federal ESA.

(8) "Native" means a species indigenous to Oregon, not introduced. Indigenous species include species that occur naturally or were extirpated from the state.

(9) "Person" means natural person, individual, corporation, company, society, association, firm, partnership, cooperative, governmental or political subdivision or agency thereof.

(10) "Species" means any group or population of wildlife that interbreeds and is substantially reproductively isolated.

(11) "State List" means the official state list of wildlife species that have been designated as endangered or threatened under the procedures set forth in ORS 496.172 to 496.192 and OAR Chapter 635, Division 100.

(12) "Substantial scientific evidence" means that quantum of the best available documented information or evidence that a reasonable person would accept as adequate to support a conclusion. This includes information or evidence that may not have been reviewed by a scientific review panel, but that the department considers scientifically reliable.

(13) "Survival guidelines" means the quantifiable and measurable guidelines that the commission considers necessary to ensure the survival of individual members of the species.

(14) "Take" means to kill or obtain possession or control of any species on the state list.

(15) "Threatened species" means:

(a) Any native wildlife species the commission determines is likely to become an endangered species within the foreseeable future throughout any significant portion of its range within this state; or

(b) Any native wildlife species listed as a threatened species pursuant to the federal ESA.

(16) "Verifiable" means scientific information reviewed by a scientific peer review panel of outside experts who do not otherwise have a vested interest in the process. For purposes of this definition, "vested interest in the process" means that the person reviewing the scientific information does not have a personal economic interest in the commission's decision to list a species. Information that would be considered "verifiable" includes, but is not limited to:

(a) Articles and information published in peer-reviewed scientific journals, such as the Journal of Wildlife Management and Transactions of the American Fisheries Society;

(b) Information developed by the department, which has been peer reviewed by outside experts (e.g., agency management plans, Nongame Wildlife Program Technical Reports);

(c) Information developed by federal agencies, which has been peer reviewed (e.g., peer-reviewed agency management plans, final environmental impact statements, adopted recovery plans, interagency technical reports);

(d) Peer-reviewed data gathered by the department or others using standard methodologies or protocols.

(e) Information developed by the Pacific Northwest Electric Power and Conservation Planning Council or other organizations, which has been peer reviewed.

(17) "Wildlife" means fish, wild birds, amphibians, reptiles and wild mammals.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: FWC 50-1988, f. & cert. ef. 6-24-88; DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0105

Criteria for Listing

(1) The Commission by rule shall list a wildlife species as endangered or threatened on the state list upon a review of documented and verifiable scientific information, if the species meets the criteria in sections (3), (4) and (6) of this rule. The documented and verifiable scientific information shall be related to the species' biological status.

(2) The state list shall include:

(a) All native wildlife species listed as of May 15, 1987, on the federal list of endangered or threatened species. Any native wildlife species appearing on the federal list as a threatened species may be considered for inclusion on the state list as an endangered species or as a threatened species; and

(b) Any native species determined by the commission to be threatened or endangered, in accordance with these rules.

(3) To list a species as endangered, the commission shall determine that:

(a) The species is native; and

(b) Is in danger of extinction throughout any significant portion of its range within this state.

(4) To list a species as a threatened species, the commission shall determine that:

(a) The species is native; and

(b) Is likely to become an endangered species within the foreseeable future throughout any significant portion of its range within this state.

(5) In making a determination under subsection (3)(b) or (4)(b) of this rule, and OAR 635-100-0111 (Reclassifying Species) and OAR 635-100-0112 (Removing Species from the State List), regarding the range of the species, the commission shall consider:

(a) The total geographic area in this state used by the species for breeding, resting or foraging and the portion thereof in which the species is or is likely within the foreseeable future to become in danger of extinction;

(b) The nature of the species' habitat, including any unique or distinctive characteristics of the habitat the species uses for breeding, resting or foraging; and

(c) The extent to which the species habitually uses the geographic area.

(6) In addition to the criteria set forth in sections (3) and (4) of this rule, in listing a wildlife species as endangered or threatened, the commission shall determine that the natural reproductive potential of the species is in danger of failure due to limited population numbers, disease, predation or other natural or human actions affecting its continued existence and, to the extent possible, assess the relative impact of human actions. In addition, the commission shall determine that one or more of the following factors exist:

(a) That most populations of the species are undergoing imminent or active deterioration of their range or primary habitat;

(b) That overutilization of the species or its habitat for commercial, recreational, scientific or educational purposes is occurring or is likely to occur; or

(c) That existing state or federal programs or regulations are inadequate to protect the species and its habitat.

(7) Notwithstanding any other provision of OAR 635-100-0100 to 635-100-0130, the commission may decide not to list a wildlife species as threatened or endangered that would otherwise qualify for listing if the commission determines that:

(a) The future of the species is secure outside this state;

(b) The wildlife species is not of cultural, scientific or commercial significance to the people of this state;

(c) The species has been listed as threatened or endangered pursuant to the federal ESA;

(d) The species is a candidate species under the federal ESA;

(e) The species has been petitioned for listing under the federal ESA;

(f) The responsible federal agency has determined that the species does not warrant listing as a threatened or endangered species under the federal ESA; or

(g) The species is currently on the department's sensitive species list.

(8) Before making a determination not to list a species pursuant to section (7) of this rule, the commission shall analyze the status of the species under the criteria set forth in sections (3), (4) and (6) of this rule. In addition, before making a determination not to list pursuant to subsections (7)(c) through (7)(f), the commission shall evaluate whether the federal listing, categorization or other action regarding the species adequately protects that species in Oregon. Before making a determination not to list pursuant to subsection (7)(g), the commission shall evaluate whether classification on the state sensitive list adequately protects that species in Oregon.

(9) If the commission determines that a species should be listed as threatened or endangered, the commission shall establish by rule survival guidelines at the time of listing. In establishing the guidelines, the commission shall consider its determinations made pursuant to OAR 635-100-0105, the species' life history requirements (e.g., food, shelter, water, breeding, movement and dispersal), and, to the extent possible, the necessary location, quality and quantity of each of those life history requirements.

(10) In making the determinations required under subsections (3), (4), (6), (7) and OAR 635-100-0112 (Removing Species from the State List), the commission shall consult with:

(a) Affected state and federal agencies;

(b) Affected cities and counties;

(c) Affected federally recognized Indian tribes;

(d) The Natural Heritage Advisory Council;

(e) Other states having a common interest in the species; and

(f) Interested persons who have asked to be consulted and whose names are included on the commission's mailing list for such purposes.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.12 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.12 & ORS 498.026
Hist.: FWC 50-1988, f. & cert. ef. 6-24-88; DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0110

Procedure for Listing Species

(1) Any person may petition the commission to list, reclassify or remove wildlife species on the state list. The petition shall be in writing and shall include the following information:

(a) The action sought; and

(b) Documented scientific evidence about the species' biological status to support the requested action.

(2) The documented scientific evidence under subsection (1)(b) of this rule shall include the following:

(a) Common and scientific names of the species and any taxonomic problems or questions;

(b) A discussion of the existence, or lack thereof, of past, present or threatened destruction, modification or curtailment of the species' habitat or geographical distribution, describing and documenting:

(A) Threats, or lack thereof, to the species' habitat and distribution;

(B) The species' historical and presently known distribution;

(C) Any changes in habitat and reasons for such changes, such as overutilization for commercial, recreational, scientific or educational purposes, if known;

(D) Any land use practices adversely or positively affecting the species' habitat; and

(E) Measures that have been or could be taken to alleviate a reduction in habitat of the species.

(c) A discussion of the existence, or lack thereof, of present or threatened danger or failure of the natural reproductive potential of the species including:

(A) The species' present population status;

(B) Any changes in population, and the reasons for such changes, such as disease, predation, or overutilization of the species or its habitat, if any, for commercial, recreational, scientific or educational purposes, if known;

(C) Any land use practices adversely or positively impacting or having impacted the species;

(D) Measures that have been or could be taken to alleviate a reduction in population of the species;

(E) A discussion of other natural or human-related factors affecting the continued existence of the species, including:

(i) Climatic, successional, reproductive, genetic or other factors such as competition with an introduced species affecting the species existence;

(ii) The effects of environmental pollution and other human-related factors on the continued existence of the species; and

(iii) The relative impact of human actions on the continued existence of the species, as compared to nonhuman impacts.

(3) Any petition submitted under subsection (1) of this rule shall be acknowledged by the department in writing within ten (10) working days of receipt.

(4) Within 90 days of receipt of the petition, the commission shall advise the petitioner, in writing, whether the petition presents substantial scientific evidence to justify proceeding with the requested action.

(5) In determining whether the petition presents substantial scientific information to justify proceeding with the requested action, the commission may consult with the following:

(a) Affected state and federal agencies;

(b) Affected cities or counties;

(c) Affected federally recognized Indian tribes;

(d) Other interested state agencies;

(e) The Natural Heritage Advisory Council;

(f) Other states having a common interest in the species; or

(g) Interested person with expertise on the wildlife species involved in the petition.

(6) If the petition is found to present substantial scientific information to justify proceeding with the requested action, the commission shall commence the process of rulemaking using the criteria set forth in OAR 635-100-0105 (Criteria for Listing), 635-100-0111 (Reclassifying Species), or 635-100-0112 (Removing Species from the State List), whichever is appropriate.

(7) If, during the rulemaking process, the commission subsequently determines that the proposed action does not meet the criteria set forth in the appropriate rule provision, the commission shall so advise the petitioner in writing within ten (10) working days of that denial, and shall provide the basis for the commission's decision.

(8) Unless the commission extends the time period as provided in this section, a final determination on the action requested in the petition shall be made by the commission within a period not to exceed one (1) year from the date of receipt of the petition. The commission may extend the time period within which to make a decision on a petition for up to 12 additional months, if the commission determines that the information available to the department and the commission is limited or other appropriate circumstances require the extension of time. If it extends the time period for decision making, the commission shall notify the petitioner in writing.

(9) If the petition is found not to present substantial scientific information to justify proceeding with the requested action, or if the commission, during the rulemaking process, denies the petition, the petitioner may seek judicial review of the commission's written decision as provided in ORS 183.484.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: FWC 50-1988, f. & cert. ef. 6-24-88; DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0111

Reclassifying Species

(1) The commission shall reclassify a wildlife species from a threatened status to an endangered status if it determines that the species meets any of the factors set out in OAR 635-100-0105(6). In addition, the commission shall also determine that the likelihood of survival of the species has diminished such that the species is in danger of extinction throughout any significant portion of its range within the state.

(2) The commission shall reclassify a wildlife species from an endangered status to a threatened status if it determines that the likelihood of survival of the species has increased such that the species is not in danger of extinction at the present time throughout any significant portion of its range within the state.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0112

Removing Species from the State List

The commission by rule many remove a wildlife species from the state list upon a review of the best available scientific and other data which meets the criteria set forth below. The scientific information shall be documented and verifiable information related to the species' biological status. Before removing a wildlife species from the state list, the commission shall determine:

(1) The species is not, or is not likely to become within the foreseeable future, in danger of extinction throughout any significant portion of its range in this state, or is not at risk of becoming endangered throughout any significant portion of its range in this state.

(2) That the natural reproductive potential of the species is not in danger of failure due to limited population numbers, disease, predation or other natural or human-related factors affecting its continue existence; and

(3) The species no longer qualifies for listing under OAR 635-100-0105(6).

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0113

Technical Committees

The director may appoint a technical committee to evaluate the information contained in a petition or staff report to either list, reclassify or remove a species from the state list.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0115

Temporary Listing

(1) Notwithstanding any other provisions of OAR Chapter 635, Division 100, the commission shall adopt a temporary rule to add a wildlife species to the list of threatened or endangered species if it determines that there is a significant threat to the continued existence of the species within the state.

(2) Upon the determination required under section (1) of this rule, the commission shall publish notice of the addition to the list in the Secretary of State's bulletin and shall mail notice to affected or interested persons whose names are included on the commission's mailing list for such purposes.

(3) The temporary rule shall take effect immediately upon filing in the Secretary of State's bulletin and shall remain in effect not more than 180 days during which time the commission may undertake the rulemaking procedures provided for in OAR Chapter 635, Division 100.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: FWC 50-1988, f. & cert. ef. 6-24-88; DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0120

Periodic Review of List

(1) The commission shall review each listed species at least once every five years to determine if verifiable scientific information exists to justify reclassification or removal from the list.

(2) The review under section (1) of this rule shall be conducted according to the criteria and procedures set forth in OAR 635-100-0105, 635-100-0110, 635-100-0111 (Reclassifying Species) ,and 635-100-0112 (Removing Species from the State List).

(3) If the commission makes the required determination under subsection (1) of this rule, the commission shall, within 90 days of the determination, commence the process of rulemaking to change the status of the species.

(4) The department shall notify affected state agencies of the commission's review determinations and may recommend management alternatives to the agencies.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: FWC 50-1988, f. & cert. ef. 6-24-88; DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0125

State List of Threatened and Endangered Species

The state list of threatened and endangered species is as follows: [Table not included. See ED. NOTE.]

[ED. NOTE: Tables referenced are available from the agency.]

Stat. Auth.: ORS 496.004, 496.171, 496.172, 496.182, 496.192 & 498.026
Stats. Implemented: ORS 496.004, 496.171, 496.172, 496.182, 496.192, 498.026
Hist.: FWC 50-1988, f. & cert. ef. 6-24-88; FWC 108-1988, f. & cert. ef. 12-29-88; FWC 40-1989, f. 6-20-89, cert. ef. 7-1-89; FWC 46-1991, f. 5-1-91, cert. ef. 5-6-91; FWC 130-1991, f. & cert. ef. 11-4-91; FWC 132-1991, f. 11-19-91, cert. ef. 11-20-91; FWC 69-1993, f. & cert. ef. 11-1-93; FWC 44-1995, f. & cert. ef. 5-30-95; FWC 93-1995, f. & cert. ef. 12-8-95; Administrative Correction 3-10-98; DFW 18-1999(Temp), f. 3-12-99, cert. ef. 4-1-99 thru 9-27-99; DFW 24-1999(Temp), f. 4-14-99, cert. ef. 5-1-99 thru 10-27-99; DFW 33-1999(Temp), f. 5-7-99, cert. ef. 6-1-99 thru 11-27-99; DFW 44-1999(Temp), f. & cert. ef. 7-1-99 thru 12-27-99; DFW 49-1999(Temp), f. 7-13-99, cert. ef. 8-1-99 thru 1-27-00; DFW 51-1999, f. & cert. ef. 7-22-99; DFW 54-1999(Temp), f. 8-10-99, cert. ef. 9-1-99 thru 2-27-00; DFW 63-1999(Temp), f. 9-10-99, cert. ef. 10-1-99 thru 3-28-00; DFW 80-1999(Temp), f. 10-11-99, cert. ef. 11-1-99 thru 4-27-00; DFW 91-1999(Temp), f. 12-2-99, cert. ef. 1-1-00 thru 6-28-00; DFW 2-2000(Temp), f. & cert. ef. 2-1-00 thru 7-28-00; DFW 5-2000, f. 2-3-00, cert. ef. 2-4-00; DFW 66-2005(Temp), f. & cert. ef. 7-1-05 thru 12-12-05; DFW 93-2005, f. & cert. ef. 8-19-05

635-100-0130

Requirement for Survival Guidelines

For threatened species listed in OAR 635-100-0125 after 1995 (enactment of ORS 496.182(2)) and, in the absence of an approved endangered species management plan as provided in OAR 635-100-0140, the following requirements apply:

(1) Before a state agency takes, authorizes, or provides direct financial assistance for any action on land owned or leased by the state, or for which the state holds a recorded easement, the state agency shall consult with the department to determine whether the action is consistent with the survival guidelines established by the commission pursuant to ORS 496.182(2) and OAR 635-100-0105(9) and listed in OAR 635-100-0135;

(2) The agency shall notify the department in the event it is determined the proposed action has the potential to violate the survival guidelines. Within 90 days of such notice, the department shall recommend reasonable and prudent alternatives, if any, to the proposed action which are consistent with the guidelines.

(3) If a state agency fails to adopt the recommendations made by the department under section (2) of this rule, it shall consult with the department and demonstrate in writing that:

(a) The potential public benefits of the proposed action outweigh the potential harm from failure to adopt the recommendations; and

(b) Reasonable mitigation and enhancement measures shall be taken, to the extent practicable, to minimize the adverse impact of the action on the affected species.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: FWC 50-1988, f. & cert. ef. 6-24-88; DFW 22-1998, f. & cert. ef. 3-13-98; DFW 51-1999, f. & cert. ef. 7-22-99

635-100-0135

Survival Guidelines for Species Listed as Threatened or Endangered

(1) As required by ORS 496.182 and OAR 635-100-0130, this rule describes survival guidelines for those species that were listed as threatened or endangered in OAR 635-100-0125 after enactment of ORS 496.182(2). Survival guidelines described in this rule apply to state agencies that own or manage land where threatened or endangered species are present (OAR 635-100-0130).

(2) Coho salmon with historic distribution in Columbia River tributaries downstream from Hood River qualify, by commission action, as an endangered species (OAR 635-100-0125) effective July 1999. These fish, known as lower Columbia River coho salmon, occur only in the Clackamas River and Sandy River watersheds at the time of listing. The survival guidelines are as follows:

(a) To prevent further degradation of water quality and water quantity, actions shall be avoided that:

(A) Cause a violation of water quality standards established by the Oregon Department of Environmental Quality; or

(B) Reduce stream flows below levels established in in-stream water rights by the Oregon Water Resources Department.

(b) To conserve stream gravel, actions shall be avoided that remove gravel from areas used by naturally spawning coho salmon;

(c) To protect riparian areas along those streams used by coho salmon for either spawning or juvenile rearing, actions shall be avoided that:

(A) Eliminate mature forests within 100 feet of streams;

(B) Prevent the natural re-establishment of mature forests within 100 feet of streams in areas where a mature forest previously existed; or

(C) Degrade vegetative cover within 100 feet of streams in areas where no forest has previously existed.

(d) To ensure survival of migrating coho juveniles and returning adults, activities shall be avoided that are inconsistent with:

(A) Fish passage statutes ORS 498.351 and ORS 509.605. These statutes require adequate upstream and downstream fish passage at dams or artificial obstructions; or

(B) Fish screening statutes ORS 409.301 through ORS 498.346 and ORS 509.615. These statutes regulate water diversions and the prevention of fish from entering water diversions.

(e) The total mortality impacts on ocean and in-river fisheries shall not exceed 15% of the total adult abundance of wild Lower Columbia coho salmon;

(f) The impacts of hatchery programs for coho salmon in the lower Columbia River on wild coho populations shall be consistent with the limits imposed by the Wild Fish Management Policy (OAR 635-007-0527).

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: DFW 51-1999, f. & cert. ef. 7-22-99

635-100-0136

Survival Guidelines for Washington Ground Squirrel

(1) ORS 496.182(2) states that the Commission shall, at the time of listing, 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 apply only to actions proposed on lands owned or leased by a state agency, or where a state agency holds an easement.

(2) For areas of occupied habitat on the Space Age Industrial Park ("Boardman Boeing tract"): Activities detrimental to the survival of Washington ground squirrels shall not be permitted in areas of occupied habitat. Occupied habitat areas are those undisturbed and formerly cultivated but abandoned areas which are underlain with Warden soils (or other soils with similar characteristics, or those soil types which lie contiguous to occupied Warden soils (e.g. Sagehill Fine Sandy Loam)). Soils classifications as shown on 1:24,000, USDA, Natural Resource Conservation Service (NRCS) Soil Survey Geographic (SSURGO) database, for the Morrow County Soil Survey, and incorporated here by reference. Certified soil survey information is available to the public at the Department's headquarters office in Salem, the Department's field office in Heppner or though NRCS offices. "Activities detrimental to the survival of Washington ground squirrels" are:

(a) Soil disturbance (including, but not limited to, grading, leveling, plowing, disking, digging and tilling);

(b) Livestock grazing at a level that results in more than 50% of leaf volume removed from the current year's vegetative growth.

(c) Agricultural tree planting (e.g., hybrid poplar plantations);

(d) Agricultural and/or industrial activities that would alter existing vegetative communities (including, but not limited to, pesticide applications i.e. herbicides, fungicides, insecticides, rodenticides), irrigation, and mowing.

(e) Direct taking of Washington ground squirrels through poisoning, shooting, capture, or other means.

(3) For other areas within the Space Age Industrial Park: Outside the soil type areas identified in (2) above, but within the Boeing Lease property (as shown on 1:24,000, USDA, Natural Resource Conservation Service Soil Survey Geographic (SSURGO) database, for the Morrow County Soil Survey, and incorporated here by reference).

(a) The area shall be surveyed for the presence of Washington ground squirrels, using survey methods developed by the Department and incorporated here by reference ("Status and habitat use of the Washington Ground Squirrel Spermophilus washingtoni on State of Oregon Lands, South Boeing, Oregon in 1999." November 1999. This document is available to the public at the Department's headquarters office in Salem and field office in Heppner). Surveys shall be undertaken during the appropriate season immediately prior to any authorization being granted by an agency for activities detrimental to the survival of Washington ground squirrels (as defined in (2)(a)-(e)).

(b) If the survey locates Washington ground squirrel sites, or squirrel occurrence has been previously recorded, activities detrimental to the survival of Washington ground squirrels shall not be permitted within 150 meters of the squirrel use-area associated with any such site (squirrel use-areas are described in the "Status and habitat use of the Washington Ground Squirrel Spermophilus washingtoni on State of Oregon Lands, South Boeing, Oregon in 1999.", referenced in (3)(a) above). If more than one squirrel site is detected, any authorized activities near detected sites shall not result in loss of habitat or physical connectivity between those sites. In addition, authorized activities around squirrel sites shall not physically isolate the site(s) from other colonies or occupied habitat areas. Agencies shall consult with the Department in such situations to determine specific site-based connectivity requirements.

(4) Not withstanding (3) above, phase II of the Inland Land Company Farm Plan as described in IRZ Consulting map of 4-7-99 is exempt from these survival guidelines between January 21, 2000 and February 18, 2000, provided, all activities detrimental to the survival of Washington ground squirrels are conducted under the supervision of a biologist and in consultation with ODFW to avoid take of Washington ground squirrels.

(5) For any other state owned or leased land or easements elsewhere within the Columbia Basin Physiographic Province where suitable Washington ground squirrel habitat and soil types occur: State agencies shall consult with the Department before authorizing activities detrimental to Washington ground squirrels (as defined in (2)(a)-(e)).

(6) For other areas of state owned or leased land or easements which have been surveyed by methods acceptable to the Department: Where Washington ground squirrel surveys have been conducted according to the methods referred to in section (3)(a) above, areas with Washington ground squirrel sites shall be protected as indicated in (3)(b) above.

Stat. Auth.: 496.004, 496.171, 496.172, 496.182, 496.192, 498.026
Stats. Implemented: 496.004, 496.171, 496.172, 496.182, 496.192, 498.026
Hist.: DFW 5-2000, f. 2-3-00, cert. ef. 2-4-00; DFW 31-2004, f. 4-22-04, cert. ef. 5-1-04

635-100-0140

Endangered Species Management Plans for State Land Owning or Managing Agencies

(1) Within four months of its decision to list a species as endangered, the commission shall determine if state land can play a role in the conservation of the species. In making this determination, the commission shall consult and coordinate with the appropriate state land owning or managing agencies.

(2) The commission shall consider the species' biology and the geography of the land base (i.e., location, quality and quantity of the species' habitats) to determine if the species or its habitat is found on state land.

(a) If neither the species nor its habitat is found on state land, the commission shall determine that state land has no role to play in the conservation of the species. If the commission makes such a determination, then state land owning and managing agencies shall not be required to prepare an endangered species management plan.

(b) If the species or its habitat is found on state land, the commission shall consider the impact state agency actions may have on the species and its habitat in determining whether the state land can play a role in the conservation of the species. If the commission determines that state land can play a role, it shall notify the affected state land owning or managing agencies in writing.

(3) Once notified that state land can play a role in conservation of the species, each agency shall, in consultation with the department, determine the role the state land it owns or manages shall serve in the conservation of the species. This role may include, but is not limited to, conservation, contribution toward conservation or take avoidance. In making this determination, each agency shall balance the following:

(a) The statutory or constitutional requirements, rules and policies applicable to the agency's programs;

(b) The social and economic impacts that conservation would have on the state;

(c) The conservation needs of the species;

(d) The purpose of the state land; and

(e) The roles that land other than state land will play in the conservation of the species.

(4) The agencies shall balance the factors listed in section (3) of this rule consistent with the biological aspects of species management identified by the department and the statutory or constitutional obligations of the agencies (including the land's statutory purpose).

(5) To carry out its consultation role under this rule, the department shall provide the agencies with an assessment of the conservation needs of the species, as well as a list of the existing management rules, plans and other management guidelines and biological information related to management of the listed species. The assessment of the conservation needs of the species should be based on the information and factors the commission considered in listing the species. In order to expedite the development of endangered species management plans, the department shall provide this information in as timely a manner as possible.

(6) After determining the role its land shall play, each agency shall develop, and approve according to the agency's procedures, an endangered species management plan within 18 months of the commission's decision to list a species as endangered. The agency shall develop the plan in consultation with the department and consistent with this rule. The plan shall address, at a minimum:

(a) What state land is covered by the plan;

(b) What role that state land is to play in conservation of the species and how the agency defined that role (i.e., how the agency balanced the factors listed in sections (3) and (4) of this rule);

(c) How the agency will manage the state land to achieve its defined role;

(d) Whether the agency will monitor implementation of the plan, and if so, how and when;

(e) Whether the agency will reassess and review the plan and its implementation, and if so, how and when. For example, the agency may determine that new biological information, catastrophic events, changes in the species' listing status, changes in land use practices, or other factors will trigger the agency's reassessment and review of the plan;

(f) How the agency's plan relates to other state agency endangered species management plans, federal recovery plans and state and other recover efforts;

(g) What process the agency used in developing the plan, including the review and approval process, if any.

(h) The agency shall submit the plan to the commission for review and approval. The commission shall review the plan to determine whether it achieves the role defined for the affected land is consistent with the commission's rules for endangered species management plans. If the commission determines that, based on the biology of the endangered species, the plan does not achieve the define role, in consultation with the agency, it may modify the plan as necessary to be consistent with the role as defined under section (3) of this rule. The commission shall approve the plan as submitted or modified within 24 months from the date the species listed as endangered.

(8) Once the commission approves an agency's endangered species management plan, the agency's plan shall supersede the survival guidelines for the species for purposes of implementing ORS 496.182(3).

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0150

Endangered Species Requirements for Agencies Other than State Land Owning or Managing Agencies

(1) In consultation and cooperation with agencies other than state land owning or managing agencies, the commission shall determine whether those agencies can serve a role in the conservation of the endangered species. If the commission determines that an agency has a role, it shall notify the agency in writing. Once notified, the agency shall determine what role it shall serve. This role may include, but is not limited to, conservation of the species, contribution toward conservation or take avoidance. In making this determination, the agency shall:

(a) Consult with the department concerning the biological aspects of managing the species;

(b) Consider the impact its actions and programs may have on the conservation of the species and its habitat;

(c) Consider the commission's survival guidelines for the listed species; and

(d) Consider its statutory obligations.

(2) To carry out its consultation role under this rule, the department shall provide agencies with an assessment of the conservation need of the species, as well as a list of the existing management rules, plans and other management guidelines and biological information related to the management of the listed species.

(3) Once the agency determines what role it shall serve in the conservation of the species, the agency shall provide the commission a written description of its role, with an explanation of how it developed the role and how it intends to achieve the role. This explanatory statement shall address the following:

(a) What programs are covered by the statement;

(b) What role the agency will play in conservation of the species and how the agency defined the role;

(c) What actions the agency will take to achieve the defined role;

(d) Whether the agency will reassess and review its actions to achieve the role, and if so, how and when;

(e) Whether the agency will monitor its actions, and if so, how and when;

(f) How the agency's role and actions relate to state, federal and other recovery efforts.

Stat. Auth.: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Stats. Implemented: ORS 496.004, ORS 496.171, ORS 496.172, ORS 496.182, ORS 496.192 & ORS 498.026
Hist.: DFW 22-1998, f. & cert. ef. 3-13-98

635-100-0160

Classification of Agencies

(1) For purposes of OAR 635-100-0140 (Endangered Species Management Plans for State Land Owning or Managing Agencies), the following agencies (or programs within identified agencies) shall be considered a "state land owning or managing agency":

(a) Oregon Department of Fish and Wildlife; (continued)