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

(1) ORS 496.182 (Protection and conservation programs)(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 are advisory for actions proposed 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 advisory 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) While the survival guidelines described in ORS 496.182 (Protection and conservation programs)(2) apply to individual members of the species and resource site protection, the Commission finds that:
(a) State agencies can contribute to Marbled Murrelet recovery by increasing suitable habitat on state lands.
(b) Marbled Murrelets require sufficient prey resources in the marine environment for survival and successful reproduction. Protections for the murrelet prey base of small schooling fish and invertebrates have been strengthened through adoption of Oregon’s Forage Fish Management Plan in state waters and similar actions by the Pacific Fishery Management Council and National Marine Fisheries Service in federal waters. Additionally, the Department established a series of Marine Reserves and Marine Protected Areas which provide for conservation and scientific benefits including restrictions on the removal of marine life and prohibition on ocean development.
(c) Predation, particularly by corvids (jays, crows, and ravens), is a common cause of Marbled Murrelet nest failure. State agencies can help to reduce nest predation risk by limiting wildlife access to human-supplied food sources in and around murrelet nesting areas which may otherwise lead to greater predator numbers.
(d) Large oil spills remain a serious threat and could kill hundreds of Marbled Murrelets in Oregon. State agencies with such responsibility should emphasize strategies that prevent spills of oil and other hazardous materials and commit adequate resources to planning, training, coordination with other government agencies and industry, and effective response in the event of a spill.
(4) Consistent with ORS 496.182 (Protection and conservation programs)(1), these advisory 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 (Commission management authority for threatened or endangered species)(4), these advisory survival guidelines would 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 advisory survival guidelines would be preempted by any more protective measures required by the federal ESA.
(c) In cases of emergency, such as wildfire and search and rescue situations, nothing in these advisory survival guidelines is intended to delay the necessary response to secure human life and property.
(d) State agencies should document and retain information and other data related to survey results, protection of Marbled Murrelet occupied sites, and associated decision-making.
(5) Prior to implementing a project that removes trees and has the potential to take Marbled Murrelets, approved surveys of the project area should be conducted for a minimum of two consecutive years to determine if it is occupied by murrelets. “Take” is defined in section (11)(m) of this rule.
(6) State agencies should 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 should be designated as an occupied site.
(b) If during consultation, the USFWS agrees that a different extent or configuration adequately delineates the designated occupied site and buffer, section (6)(a) of this rule would not apply.
(c) Projects that remove trees should be prohibited in occupied sites and buffers to the extent that habitat function is changed for Marbled Murrelets. Exceptions to this rule may be allowed after prior review and approval by the USFWS.
(d) Forest management activities, such as manual release operations and pre-commercial thinning to maintain the growth and survival of conifer reforestation in buffers, should 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 depending on consultation with the USFWS.
(e) Removal of downed or standing trees that present imminent safety hazards to persons or property, or that obstruct existing roads, trails, utility corridors, and rights-of-way may be allowed through consultation with the USFWS.
(7) The following projects and activities that have the potential to take Marbled Murrelets in occupied sites should be prohibited (“Take” is defined in section (11)(m) of this rule):
(a) Use of chainsaws and heavy equipment within the buffer of an occupied site from April 1 - August 5. These activities would be 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, trails, campgrounds, picnic/day use areas, and buildings would not be subject to section (7)(a) and (7)(b) of this rule.
(8) State agencies should 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 should 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 should 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 advisory survival guidelines with potential to take Marbled Murrelets, state agencies should notify and consult with the USFWS to determine conservation measures appropriate to the situation. “Take” is defined in section (11)(m) of this rule.
(11) For the purposes of implementing these advisory survival guidelines, the following definitions apply:
(a) “Approved survey” refers to a method accepted by the USFWS for surveying Marbled Murrelets in forests.
(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 (Endangered Species Management Plans for State Land Owning or Managing Agencies)(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).

Source: Rule 635-100-0137 — Advisory Survival Guidelines for Marbled Murrelet, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=635-100-0137.

635‑100‑0001
Wildlife Diversity Plan Definition of Terms 635‑100‑0005
Wildlife Diversity Plan Content and Purpose 635‑100‑0010
Wildlife Diversity Program Goal 635‑100‑0015
Wildlife Diversity Program Objectives 635‑100‑0030
Wildlife Diversity Plan Five-Year Review 635‑100‑0040
Sensitive Species List 635‑100‑0080
Threatened and Endangered Species List Policy Statement 635‑100‑0100
Threatened and Endangered Species Definition of Terms 635‑100‑0105
Criteria for Listing Threatened and Endangered Species 635‑100‑0110
Procedure for Listing Threatened and Endangered Species 635‑100‑0111
Reclassifying Threatened and Endangered Species 635‑100‑0112
Removing Threatened and Endangered Species from the State List 635‑100‑0113
Threatened and Endangered Species Technical Committees 635‑100‑0115
Threatened and Endangered Species Temporary Listing 635‑100‑0120
Threatened and Endangered Species Periodic Review of List 635‑100‑0125
State List of Threatened and Endangered Species 635‑100‑0130
Requirement for Survival Guidelines 635‑100‑0135
Survival Guidelines for Species Listed as Threatened or Endangered 635‑100‑0136
Survival Guidelines for Washington Ground Squirrel 635‑100‑0137
Advisory Survival Guidelines for Marbled Murrelet 635‑100‑0140
Endangered Species Management Plans for State Land Owning or Managing Agencies 635‑100‑0150
Endangered Species Requirements for Agencies Other than State Land Owning or Managing Agencies 635‑100‑0160
Classification of Agencies 635‑100‑0170
Threatened and Endangered Species Incidental Take Permits 635‑100‑0180
Western Snowy Plover 635‑100‑0190
Lower Columbia River Coho Fishery Management 635‑100‑0191
Lower Columbia River Coho Hatchery Programs 635‑100‑0192
Lower Columbia River Coho Land Management 635‑100‑0193
Lower Columbia River Coho Monitoring 635‑100‑0194
Lower Columbia River Coho De-listing Criteria
Last Updated

Jun. 8, 2021

Rule 635-100-0137’s source at or​.us