PLANTS: WILDFLOWERS AND ENDANGERED, THREATENED, AND CANDIDATE SPECIES
Purpose and Scope
These rules, authorized by ORS 564.040 and 564.105(6), are intended to provide for: protection of certain plants, wildflowers, and shrubs; guidelines on the listing, reclassification, and delisting of plant species as threatened or endangered; development of conservation programs intended to assist state agencies in the protection of threatened or endangered species; development of a permit system for commercial transactions and scientific taking of threatened and endangered species; and development of transplant and reintroduction protocols for endangered and threatened species.
Definitions of Terms
As used in these rules:
(1) "Action" or "Land Action" means any activity resulting, or potentially resulting, in the taking of a threatened or endangered species, including all ground disturbing, vegetation disturbing, plant growth suppressing, or reproduction inhibiting activities within the known or suspected habitats of such species, or release of biocontrol agents directed at noxious weeds or other pest plant species, as well as any exchange, transfer, or sale of state-owned land that would result in any population of a listed species being removed from state jurisdiction (i.e., the land is no longer state-managed, as defined in these rules).
(2) "Candidate Species" means any plant species designated for study by the director whose numbers are believed low or declining, or whose habitat is sufficiently threatened and declining in quantity and quality, so as to potentially qualify for listing as a threatened or endangered species in the foreseeable future.
(3) "Department" means the Oregon State Department of Agriculture.
(4) "Director" means the Director of the Oregon State Department of Agriculture, or his or her designated representative.
(5) "Endangered Species" means:
(a) Any native plant species determined by the director to be in danger of extinction throughout all or any significant portion of its range; or
(b) Any plant species listed as an endangered species pursuant to the federal Endangered Species Act of 1973 (PL 93-205, 16 USC § 1531), as amended .
(6) "Federal List" means the list of native plant species designated as endangered or threatened under the federal Endangered Species Act of 1973 (PL 93-205, 16 U.S.C. § 1531), as amended.
(7) "Land Action" -- See "Action".
(8) "Listed Species" means any or all species listed as endangered or threatened under the procedures set forth in ORS 564.040 - 564.135 and these rules.
(9) "Native" means any indigenous or resident species currently or historically found in this state.
(10) "Ongoing Action" means any current continuous or intermittent action initiated prior to the enactment of these rules.
(11) "Person" means any person, individual, corporation, institution, company, society, association, firm, partnership, cooperative, or governmental or political subdivision or agency thereof.
(12) "Plant" means any member of the Bryophyta or any vascular plant, including the spores, seeds, fruits, roots, or any other parts thereof.
(13) "Population" means a specific set of individuals of a species within a defined geographical area.
(14) "Reproductive Potential" means the capability of a species or population to successfully reproduce and recruit individuals at a rate necessary to perpetuate the species or population.
(15) "Species" means any species, subspecies, or variety of plant.
(16) "State Agency" means any publicly funded governmental subdivision of the State of Oregon including, but not limited to, state, county, and municipal agencies, public utility districts, state institutions of higher learning, public school districts, port authorities, public irrigation districts, and publicly owned airports.
(17) "State-Leased" land(s) mean any state-owned land(s) leased by a state agency to another agency or person, or, any land(s) not owned by the state but leased by the state from another person.
(18) "State-Managed" land(s) mean any state-owned or -leased land(s), or land(s) for which the state holds a recorded easement.
(19) "State List" means the official list of plant species designated by the director as endangered or threatened under the procedures set forth in ORS 564.040 - 564.135 and these rules.
(20) "Take" means to collect, cut, damage, destroy, dig, kill, pick, remove, transplant, transport, or otherwise disturb, including the collection or disruption of pollinators, or other organisms shown by research to be required by the listed species to effectively grow or reproduce.
(21) "Threatened Species" means:
(a) Any native plant species the director determines is likely to become endangered within the foreseeable future throughout all or any significant portion of its range; or
(b) Any plant species listed as a threatened species pursuant to the federal Endangered Species Act of 1973 (PL 93-205, 16 U.S.C. § 1531), as amended.
[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]
(1) Willful or negligent cutting, digging, trimming, picking, removing, mutilating, or in any manner injuring, or subsequently selling, transporting, or offering for sale any plant, flower, shrub, bush, fruit, or other vegetation growing on the right of way of any public highway within this state, within 500 feet of the center of any public highway, upon any public lands, or upon any privately owned lands is prohibited without the written permission of the owner or authorized agent of the owner.
(2) The provisions of section (1) of this rule do not apply to any federal or state government employee or contractor in Oregon engaged in work upon any public road or highway while performing such work under the supervision of any federal agency, or any agency that represents a political subdivision of the State of Oregon. This section likewise does not apply to private landowners while working on their own property.
(3) This rule does not apply to any person affecting a plant species which is declared by law to be a noxious weed.
List of Protected Wildflowers
In addition to the genera listed in ORS 564.020(3), it is unlawful for any person to export from this state, or to sell or offer for sale, or to transport plants of any of the following genera or species, subject to the exceptions described above under OAR 603-073-0003(2) and (3):
(1) With the exception of the department's authority to regulate the import, export, and commercial trafficking of threatened and endangered species, per ORS 564.120(1), nothing in OAR 603-073-0030 through 603-073-0110 shall be interpreted to require the protection of any population of any listed species occurring on private lands, or to require an owner of any private lands to take action to protect such a population or its habitat. Administrators of federal lands may cooperate and consult with the department, regarding these rules, and private landowners may request assistance in protecting threatened or endangered plant species on their property, at their discretion.
(2) The provisions herein do not apply to lands acquired through foreclosures of loans and contracts made pursuant to programs of the Oregon Department of Veterans' Affairs, per ORS 564.115 (7), and to any other transitional lands acquired in a similar manner by other state agencies.
Criteria for the Listing, Reclassification, and Removal of Plant Species from the State List
(1) The director, by rule, shall list a plant species as endangered or threatened, reclassify a listed plant species, or remove a listed plant species from the state list, in accordance with ORS 564.105 - 564.110 and these rules, upon a review of the best scientific and other data that meet the criteria described in sections (3), (4) and (6) of this rule. The scientific information shall consist of documented and verifiable information on the biological status of the species, and shall include relevant abiotic data.
(2) Native plant species appearing on the federal list of endangered or threatened species shall not be removed from the state list.
(3) To list a species as an endangered species, the director shall determine that:
(a) The name and description of the species have been validly published or accepted for publication;
(b) The species is native; and
(c) The species is in danger of extinction throughout all or any significant portion of its geographic range.
(4) To list a species as a threatened species, the director shall determine that:
(a) The name and description of the species have been validly published or accepted for publication;
(b) The species is native; and
(c) The species is likely to become an endangered species within the foreseeable future throughout all or any significant portion of its geographic range.
(5) In making a determination under subsection (3)(b) or (4)(b) and section (7) or (8) of this rule, involving the geographic range of the species, the director shall consider:
(a) The total geographic area known to be inhabited by the species, and the portion therein in which the species is in danger of becoming extinct within the foreseeable future; and
(b) The nature of the species' habitat, including any unique or distinctive characteristics that might promote, maintain, or reduce the probability of threats or endangerment.
(6) In addition to the criteria set forth in section (3) or (4) of this rule, in listing a plant species as endangered or threatened, the director shall determine, through appropriate and verifiable experimental or observational study, that the natural reproductive potential of the species is in danger of imminent or continual failure due to limited population numbers, disease, predation, or other natural or human-induced factors affecting its existence. In addition, the director shall determine that one or more of the following factors exists:
(a) That most populations of the species are undergoing imminent or active deterioration of geographic range or habitat;
(b) That over-utilization of the species or its habitat for commercial, recreational, scientific, educational, or other purposes is occurring or is likely to occur; or
(c) That existing state or federal programs or regulations are inadequate to protect the species or its habitat.
(7) Before removing a plant species from the state list as an endangered or threatened species, the director shall determine through appropriate verifiable research that none of the factors set forth in section (6) of this rule are true of the species for which removal is considered, and that the species is not in danger of becoming extinct throughout all or any significant portion of its geographic range.
(8) In reclassifying a plant species from a threatened species to an endangered species, the director shall determine through appropriate verifiable research, in addition to the factors set forth in section (6) of this rule, that the likelihood of survival of the species has diminished such that the species is in danger of extinction throughout all or any significant portion of its range. In reclassifying a plant species from an endangered species to a threatened species, the director shall determine through appropriate verifiable research that the likelihood of survival of the species has increased, such that the species is no longer in danger of extinction throughout all or any significant portion of its geographic range.
(9) In making the determinations required under sections (3), (4), (6), (7), and (8) of this rule, the director shall consult with:
(a) A Technical Advisory Committee selected by the director, comprised of at least one department botanist and no fewer than four additional scientists;
(b) The Natural Heritage Advisory Council to the State Land Board;
(c) Representatives of other states having a common interest in the species;
(d) Affected federally-recognized Indian tribes;
(e) Affected federal, state, or local government agencies and may consult with:
(f) Other interested agencies; and
(g) Interested persons with pertinent knowledge whose names are included on the director's mailing list for such purposes.
Procedures for Petitioning the Listing, Reclassification, or Removal of Plant Species from the State List
(1) Any person may petition the director to list, reclassify, or delist plant species on the state list, as provided in ORS 564.110(5). The department shall provide a format that will allow petitioners to request that a species be added or removed from the state list, or be reclassified from threatened to endangered, or vice versa. All petitions shall be in writing and shall include the following information:
(a) Scientific name and authority of the species, and common name, if any;
(b) The procedure requested (i.e., removal, addition, or reclassification); and
(c) Documented scientific evidence to support the requested procedure, as required by ORS 564.110(3).
(2) Petitions requesting the listing, delisting, or reclassification of plant species as threatened or endangered shall include the following documented scientific evidence, per subsection (1)(c) of this rule:
(a) An opinion pertaining to outstanding taxonomic problems or questions, if applicable, rendered by a professional plant taxonomist;
(b) A detailed discussion of the existence, or lack thereof, of current or anticipated destruction, modification, or curtailment of the species' habitat or geographical distribution, describing and documenting:
(A) The species' historical and presently known distributions;
(B) Threats, or lack thereof, to the species' habitat and distribution;
(C) Any changes in habitat or distribution and reasons for such changes, such as overutilization for commercial, recreational, scientific, educational, or other purposes, if known;
(D) Any land conservation practices or actions adversely or positively affecting the species' habitat; and
(E) Measures that have been or could be taken to alleviate a reduction in the distribution or habitat of the species;
(c) An analysis of the existence, or lack thereof, of present or threatened failure of the natural reproductive potential of the species, including:
(A) The estimated number of populations, and the estimated number of individuals present in each known population, with documentation of all field inventories completed in support of the petition;
(B) Any land actions adversely or positively affecting the species;
(C) Any documented or suspected changes in population size, and the reasons for such changes, such as disease, predation, seasonal fluctuation or overutilization of the species, if any, for commercial, recreational, scientific, educational, or other purposes, if known;
(D) A discussion of any additional natural or human-induced factors (with supportive data) affecting the continued existence of the species, including:
(i) Climatic, successional, distributional, reproductive, genetic, and other factors such as competition or predation, or lack thereof, with or by any other plant or animal that affects the existence of the species; and
(ii) The effects of environmental pollution, fire suppression, and other human-related factors on the continued existence of the species; and
(E) Measures that have been or could be taken to alleviate a reduction in populations of the species.
(3) Any petition submitted under section (1) above shall be acknowledged by the director, in writing, within 30 days of receipt.
(4) In determining whether the petition presents sufficient scientific evidence to justify proceeding with the request, the director may consult with any or all of the following:
(a) The Technical Advisory Committee defined in OAR 603-073-0030(9)(a);
(b) Affected federal, state, or local government agencies;
(c) Other interested agencies;
(d) The Natural Heritage Advisory Council to the State Land Board;
(e) Affected federally-recognized Indian tribes;
(f) Representatives of other states having a common interest in the species; or
(g) Any other interested persons with expertise on the plant species named in the petition.
(5) Within 90 days of receipt of the petition, the director shall advise the petitioner, in writing, whether the petition presents sufficient scientific evidence to justify proceeding. If the petition is found to present insufficient scientific evidence to justify the request, the director may postpone or cancel the proceedings and require the petitioner to gather additional supporting data.
(6) If the petition is found to present sufficient scientific evidence to justify the request, the director shall commence the process of listing, reclassification, or delisting using the criteria set forth in ORS 564.110 and OAR 603-073-0030.
(7) If, during the course of rulemaking to list, reclassify or delist a species, the director subsequently determines that the data provided are inadequate, or would invalidate the petition, the director may disqualify the petition without further hearing or consideration.
(8) If the director denies a petition during the course of rulemaking, the petitioner may seek judicial review of the director's written decision as provided in ORS 183.484.
(9) A final determination on the request in the petition shall be made by the director within a period not to exceed two years from the date of receipt of the petition. Such determinations shall include the reasons for the director's decision.
(1) Notwithstanding any other provisions of ORS 564.100 - 564.135 and these rules, the director shall adopt a temporary rule to add a plant species to the state list if there is a significant and immediate threat to the continued existence of the species, as determined by a review of existing evidence by the department. Such a ruling shall be considered an emergency provision, where evidence available to the department indicates that listing of the species is necessary to prevent imminent loss of populations or habitat.
(2) Upon the determination required under section (1) of this rule, the director shall publish notice of the addition to the state list in the Oregon Administrative Rules Bulletin, and shall mail notice to affected or interested agencies or persons whose names are included on the director's mailing list for such purposes.
(3) The temporary rule shall take effect immediately upon publication in the Oregon Administrative Rules Bulletin and shall remain in effect for not more than one 180 days, during which time the director shall undertake the rulemaking procedures provided for under ORS 564.110 and these rules.
Periodic Review of State List
(1) The director shall review each listed species at least once every five years to determine if documented evidence exists to justify reclassification from threatened to endangered or vice versa, removal from the state list, or a recommendation to the federal government for reclassification or removal if the species is also on the federal list. Such evidence may include, but is not limited to, increase in population size or numbers, reduction or removal of threats or taxonomic re-evaluation of a listed species.
(2) The review under section (1) of this rule shall be conducted according to the criteria set forth in ORS 564.110 and these rules.
(3) In the course of reviewing listed species, the director shall consult with any agencies or persons known to have direct knowledge of the species under consideration. Specifically, in the case of taxonomic questions involving a listed species, the director shall request that the Technical Advisory Committee (see OAR 603-073-0030) submit a written statement defining its opinion of the taxonomy of the species and indicating, if necessary, an appropriate expert for additional consultation.
(4) If the director determines that sufficient documented evidence exists to justify reclassification or removal from the state list, the director shall, within 90 days of the determination, commence rulemaking to change the status of the species. The director shall mail notice of any resulting status change to affected or interested agencies or persons whose names are included on the director' s mailing list for such purposes.
State List of Endangered and Threatened Species
The state list of endangered and threatened species is as follows:
(1) Plant Species Listed as Endangered:
(A) Abronia umbellata Lam. var. breviflora (Standl.) L. A. Galloway — Pink sand-verbena;
(B) Artemisia campestris L. var. wormskioldii (Besser ex Hook) Cronquist – Northern wormwood;
(C) Astragalus applegatei Peck — Applegate's milk-vetch;
(D) Astragalus mulfordiae M.E. Jones — Mulford's milk-vetch;
(E ) Calochortus coxii Godfrey & Callahan — Crinite mariposa-lily;
(F) Calochortus indecorus Ownbey & Peck — Sexton Mountain mariposa-lily;
(G) Calochortus umpquaensis Fredricks — Umpqua mariposa-lily;
(H) Castilleja levisecta Greenm. — Golden paintbrush;
(I) Cordylanthus maritimus Nutt. ex Benth. subsp. palustris (Behr.) Chuang & Heckard — Saltmarsh bird's-beak;
(J) Delphinium leucophaeum Greene — White rock larkspur;
(K) Delphinium pavonaceum Ewan — Peacock larkspur;
(L) Erigeron decumbens Nutt. — Willamette daisy;
(M) Fritillaria gentneri Gilkey — Gentner's fritillary;
(N) Ivesia rhypara Ertter & Reveal var. rhypara — Grimy ivesia;
(O) Lilium occidentale Purdy — Western lily;
(P) Limnanthes floccosa How. subsp. grandiflora Arroyo — Big-flowered wooly meadowfoam;
(Q) Lomatium bradshawii (Rose) Math. & Const. — Bradshaw's desert parsley;
(R) Lomatium cookii Kagan — Cook's desert parsley;
(S) Lomatium erythrocarpum Meinke & Const. — Red-fruited lomatium;
(T) Lupinus cusickii Wats. — Cusick's lupine;
(U) Lupinus lepidus Douglas ex Lindl. var. cusickii (S. Watson) C.L. Hitchc. — Cusick’s lupine;
(V) Mentzelia mollis Peck — Smooth mentzelia;
(W) Mirabilis macfarlanei Const. & Roll. — MacFarlane's four-o'clock;
(X) Plagiobothrys hirtus (Greene) Johnst. — Rough popcornflower;
(Y) Plagiobothrys lamprocarpus (Piper) Johnst. — Shiny-fruited allocarya;
(Z) Pyrrocoma radiata Nutt. — Snake River goldenweed;
(AA) Silene spaldingii Wats. — Spalding's campion;
(BB) Stephanomeria malheurensis Gottl. — Malheur wire-lettuce;
(CC) Thelypodium howellii Wats. subsp. spectabilis (Peck) Al-Shehbaz — Howell's thelypody;
(DD) Trifolium owyheense Gilkey — Owyhee clover.
(2) Plant Species Listed as Threatened:
(A) Amsinckia carinata Nels. & Macbr. — Malheur Valley fiddleneck;
(B) Astragalus collinus Dougl. ex Hook. var. laurentii (Rydb.) Barn. — Lawrence milk-vetch;
(C) Astragalus cusickii A. Gray var. sterilis (Barneby) Barneby — Barren milk-vetch;
(D) Astragalus diaphanus Dougl. var. diurnus (Wats.) Barn. — South Fork John Day milk-vetch;
(E) Astragalus peckii Piper — Peck's milk-vetch;
(F) Astragalus tyghensis Peck — Tygh Valley milk-vetch;
(G) Botrychium pumicola Cov. in Underw. — Pumice grape-fern;
(H) Calochortus howellii Wats. — Howell's mariposa-lily;
(I) Eriogonum chrysops Rydb. — Golden buckwheat;
(J) Eriogonum crosbyae Reveal — Crosby's buckwheat;
(K) Erythronium elegans Hammond & Chamb. — Coast Range fawn lily;
(L) Eucephalus vialis Bradshaw — Wayside aster [synonym: Aster vialis (Brads.) Blake;
(M) Gratiola heterosepala Mason & Bacig. — Boggs Lake hedge-hyssop;
(N) Hackelia cronquistii J.L. Gentry — Cronquist's stickseed;
(O) Hastingsia bracteosa Watson var. bracteosa – Large-flowered rush lily;
(P) Lepidium davisii Roll. — Davis' peppergrass;
(Q) Limnanthes floccosa How. subsp. pumila (How.) Arroyo — Dwarf meadowfoam;
(R) Lomatium greenmanii Mathias — Greenman's desert parsley;
(S) Lupinus oreganus A. Heller — Oregon -or- Kincaid’s lupine [synonym: Lupinus sulphureus Douglas ex Hook. subsp. kincaidii (Smith) Phillips];
(T) Mentzelia packardiae Glad — Packard's mentzelia;
(U) Microseris howellii Gray — Howell's microseris;
(V) Oenothera wolfii (Munz) Raven, Dietrich & Stubbe — Wolf's evening-primrose;
(W) Phacelia argentea Nels. & Macbr. — Silvery phacelia;
(X) Pleuropogon oregonus Chase — Oregon semaphore grass;
(Y) Sericocarpus rigidus Lindl. — White-topped aster (synonym: Aster curtus Cronquist);
(Z) Sidalcea nelsoniana Piper — Nelson's checker-mallow;
(AA) Silene douglasii Hook var. oraria (Peck) C.L. Hitchc.& Maguire — Cascade Head catchfly;
(BB) Thelypodium eucosmum Robins. — Arrow-leaf thelypody.
Stats. Implemented: ORS 564.110
Hist.: AD 16-1989, f. & cert. ef. 10-27-89; AD 13-1995, f. & cert. ef. 7-12-95; DOA 18-2001, f. & cert. ef. 9-6-01; DOA 19-2003, f. & cert. ef. 6-11-03; DOA 20-2011, f. & cert. ef. 10-13-11
(1) The director shall maintain a list of candidate species that includes those native species that have potential of qualifying as threatened or endangered after additional study and evaluation, and based on the opinions of the department, the Technical Advisory Committee (see OAR 603-073-0030), and other consulted persons with relevant knowledge. The candidate species list may be acquired by writing the director.
(2) The purpose of the candidate species list is to provide state agencies, and other interested persons, a means of assessing those species most likely to be listed by the director as threatened or endangered in the future. The presence of a species on the candidate list is not necessarily an indication that the species will be listed as threatened or endangered, nor does it require any protection for the species under ORS 564.105 - 564.135, these rules, or any other regulations.
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.
Permits and Transactions in Threatened or Endangered Species
(1) No person shall take, or attempt to take, or knowingly transport for the purpose of introduction, any listed plant species without first having obtained permission from the person who owns or leases the land from which the species is to be taken or is to be introduced, per ORS 564.120(1) and (2). When land is state-managed, permission to introduce, take, or attempt to take a listed species is only allowed if the person is eligible for and obtains a written permit, or qualifies for a permit exception as described under sections (4) - (14) of this rule.
(2) It shall be unlawful for any person to import, export, transport for commercial purpose, purchase, or sell, or attempt to import, export, transport for commercial purpose, purchase, or sell any threatened or endangered plant species, or part thereof, from any location in Oregon unless a written permit is obtained, or the person qualifies for a permit exception as described under sections (4) - (14) of this rule.
(3) It shall be unlawful for any person to collect, store, preserve, possess, cultivate, clone, micropropagate, or in any other way propagate, or attempt to collect, store preserve, possess, cultivate, clone, or in any way propagate, any threatened or endan-gered species or any parts thereof for any commercial, scientific, or other purpose without obtaining a written permit from the director.
(4) Commercial Permits: Only departmentally licensed nurseries and dealers of native plants may possess, propagate, or transfer ownership of a listed species for commercial purposes, provided that a commercial permit for trade in the species has been obtained from the director, and the plants originated from propagules or vegetative stock collected in the wild prior to the date the species was listed as threatened or endangered:
(a) In order to obtain a commercial permit, wholesale or retail dealers must provide the department, in writing, the scientific names of any listed species they currently possess, affirming that the plants (or original stock) were obtained prior to the species being listed, indicating how many whole plants, seeds, or other parts are currently in possession, and describing, to the best of their knowledge, when and where the plants or original nursery stock for the species (seed or vegetative) was collected. Forms may be requested from the department for this purpose. Commercial permits shall extend for a maximum of two years and may be applied for at any time, with renewal applications due on or before January 15. Renewal applications must include the number of specimens of the listed species sold during the period of time covered by the previous permit;
(b) Both wholesale and retail dealers must have a commercial permit to engage in propagation and sale of listed plant species. Retail dealers must have a permit prior to purchasing listed species from a wholesale outlet. Wholesale dealers are no longer responsible for any listed plants sold to retail firms once the transaction is complete and recorded in a log (including the name of the retail dealer, the species and amount of material purchased, and the date of purchase). This information should be retained for as long as the seller is in the business of commercially dealing in listed species. These records shall be made available to the department if it becomes necessary to establish legal ownership or place of origin of a particular plant;
(c) A seller's permit to possess a listed species extends to the retail buyer if sales records of listed species are maintained in a log by commercial nurseries and dealers, as described in subsection (4)(b) of this rule;
(d) Plants of any listed species sold commercially (wholesale or retail) must be accompanied by a preprinted plastic pot tag indicating that the buyer is in possession of a listed species, and, in the case of retail sales, cautioning against the propagation or other distribution of the species outside the buyer's private property without permission of the department;
(e) Possession of any listed species collected or gathered for commercial purposes after the date the species was listed is a violation of these rules, unless a special exception permit is first obtained from the department. Licensed dealers obtaining a special exception permit shall adhere to all requirements described in subsections (4)(a) - (g) of this rule;
(f) A licensed, commercial plant grower shall be provided with a permit to collect and propagate a listed species if the grower is contracted by the department to provide cultivated materials for use in department sponsored conservation programs;
(g) Any permit holder deciding to no longer engage in commercial transactions involving listed species shall inform the department in writing prior to the permit renewal date.
(5) Research Permits: Research permits for the study, propagation, import, export, transport, scientific specimen exchange (including seeds), or other non-commercial possession or taking of listed species may be issued by the director only for the purpose of conducting investigations that enhance the biological understanding, known distribution, or conditions required for the survival or recovery of listed species, or, for non-commercial propagation or transplantation activities that enhance the survival or recovery of such species. Botanical gardens, universities and colleges, and other persons engaging in scientific research are eligible to receive, possess, propagate, transplant, or take a listed species, provided that a research permit has been obtained from the director. Botanical gardens, herbaria, or other comparable, non-commercial repositories of native plant materials must include a list of all accessions of listed plant materials in their possession when applying for initial permits, and subsequently indicate any accessions of listed species added to or removed from their collections during the year preceding each renewal application. All persons applying for a permit shall provide the following information to the director, in writing, at the time of application:
(a) A resume of the principal investigator with a description of any external funding sources, participating agency or institution (including a list of current staff members or other affiliated individuals to be covered by the permit);
(b) The scientific name and authority of the listed species, along with a detailed project summary (or description of facilities, in the case of botanical gardens, herbaria or other repositories) and a clear statement of objectives;
(c) Justification of the project, including a statement indicating what benefit it will provide in the conservation of the listed species;
(d) Location(s) where the work will be conducted, and the number and specific parts of plants, or plant pollinators or other organism beneficial to the listed species, proposed to be taken (if any) from each site;
(e) Anticipated duration of the proposed work;
(f) Assurance that at least one voucher collection from each site where collecting is permitted will be deposited in an herbarium located at a state-supported college or university in Oregon that holds a valid permit for possessing collected specimens of listed species;
(g) In the case of specific field projects, written evidence that the state agency or other landowner or manager administering the land upon which the activity involving listed species is proposed has been contacted, and that the agency, landowner, or manager has provided permission for the proposed research;
(h) In the case of botanical gardens, herbaria, or other repositories of native plant materials, assurance that collectors contributing listed species to their holdings without a research permit will be informed of the need to contact the department regarding the requirements of these rules; and
(i) Assurance that a final report (if project duration is less than one year) or annual written research summary will be provided to the director, and any other affected public agency specified in the permit, no later than the first day of May of each year following the calendar year during which the study or program commenced.
(6) At the discretion of the director, either a research or commercial permit application (including special exception permits) may be denied, granted, or conditionally granted contin-gent on modification of the original application, based on the nature of the request and qualifica-tions of the applicant. A final decision on the granting or denial of a permit shall be made within 120 days of receipt of the final application. Notification of denial shall be in writing, and shall include the reason(s) for not granting the permit.
(7) Any permit granted for the purposes listed in this rule will be issued free of charge.
(8) Commercial and research permits must be provided for inspection upon request by any law enforcement officer, affected public land manager, or staff member of the department when the permittee is engaged in activities authorized by the permit.
(9) No commercial or research permit granted by the director shall allow or promote any activity prohibited by the federal Endangered Species Act of 1973 (PL 93-205, 16 U.S.C. § 1531) as amended, nor prohibit any activity that is authorized pursuant to exemptions or permits provided for under the federal Endangered Species Act, or any regulation issued thereunder.
(10) Commercial and research permits issued by the director do not extend to the bearer the authority to study, collect, propagate, transport, import, export, purchase, sell, or otherwise take, or transplant or introduce species also listed as threatened or endangered by the federal government without written approval of the U.S. Fish and Wildlife Service and other appropriate federal agencies.
(11) A permit issued by the director does not extend to the bearer the right to trespass or study, collect, propagate, transport, import, export, purchase, sell, possess, or otherwise take, or transplant or introduce listed species on lands not under state management without concurrent permission of the appropriate land owner or manager.
(12) State agencies are exempt from the permit requirements described in section (5) of this rule, for management actions that are addressed under the consultation process described in OAR 603-073-0090(5). Furthermore federal agencies or their agents are not required to obtain state permits for activities described in this rule when such activities occur exclusively on federally-owned properties, or when such activities require the transport of listed plants to federal or state facilities via state or private roadways.
(13) Any commercial permit issued for the purposes listed in this rule shall be valid for a period not to exceed two years, and may be renewed upon reapplication, or revoked at the discretion of the director.
(14) Upon receipt of the annual research summary (see subsection (5)(i) of this rule), research permits may automatically be renewed without additional departmental paperwork when requested by the permittee, at the discretion of the director. Research permits may be cancelled if there is evidence that the original research is no longer in progress or is violating provisions of the permit.
(15) Any person engaged in the study, propagation, or scientific taking of a listed species under a personal services contract with the department shall not be required to obtain a department permit for the activities specified in the contract. This exception is applicable only when provided in writing in the contract, and will not extend beyond the contract termination date.
(16) For the purposes of this rule, a commercial or research permit authorized by the director may be signed by the director or assistant director of the department, or by the program leader of the subdivision of the department that administers these rules.
Reintroduction and Transplantation Protocols
(1) The department may artificially augment populations of listed species in appropriate habitat on state-managed lands, or on other lands with permission of the owner. Such activities may include adding new plants to an existing population of the species (enhancement); creating an entirely new population of the species at an historic site where the species is now considered extinct (reestablishment); or developing a new population at a site deemed environmentally appropriate, but where there is no evidence of previous occurrence (introduction).
(2) Other persons may also enhance, reestablish, or introduce populations of listed species, contingent upon acquisition of a research permit, per OAR 603-073-0100(5). This activity may take place only after the person provides evidence to the department, in a written proposal (as part of the research permit application), that the project will be consistent with the conservation and recovery of the species, and not inconsistent with agency land management goals. if the work is proposed for other than state-managed lands, written permission of the land owner is required. Moreover, the development of new populations may proceed only when the proposal also demonstrates that the activity does not constitute an interference with the practices and actions of local public and private landowners on their own property. Specifically, reestablishment or introduction of new populations of listed plant species may not take place if it is determined by the managing state agency that such action, even if solely on state-managed lands, would hinder the lawful use of pesticides on adjacent agricultural, forest, or other properties.
(3) The department reserves the right to approve or deny any proposal for enhancing, reestablishing, or introducing populations of listed species on state-managed lands. Such a proposal shall be submitted to the department at least 180 days prior to the anticipated start of field work. The department shall respond to the proposal within 60 days of receipt. Failure to provide a written proposal to the department within the above time frame, or to evaluate potential effects on adjacent landowners when selecting sites for new populations of listed species, may result in the population(s) not being protected under these rules.
(4) Enhancing, reestablishing, or introducing populations of listed species may be accomplished by the distribution of seeds or other propagules, the transplantation of plants cultivated from seeds or vegetative organs, or the transplantation of wild plants from one site to another. Any proposal to enhance, reestablish, or introduce populations of a listed species will be reviewed by the department to ensure that appropriate considerations are given to genetic factors, and that the activity is in the conservation interest of the species. In making any determination on the soundness of a proposal, the department may consult with the U.S. Fish and Wildlife Service or other appropriate federal agency, affected state agencies, any affected private parties, the department's Technical Advisory Committee (as described in these rules), or any recognized experts in horticulture, plant genetics, plant conservation biology, or related fields. Finally, any proposal involving the take of any listed species (as defined in these rules) must follow the permit requirements outlined in OAR 603-073-0100.
(5) Reestablished and introduced populations are considered experimental and, with respect to recovery evaluations, shall not initially be tallied among the total number of natural populations known for a species. To be recognized as formally established, there must be verifiable biological evidence that a population is self-perpetuating and likely to persist and remain viable, defined as follows:
(a) For annual or biennial species, reproducing individuals must reappear at the site for five or more successive years, with the population size during the fifth or any later year not less than 80% that of the original number of plants that survived to reproduce in the first year after population establishment (with these originating from vegetative transplants or sown seed);
(b) For herbaceous and woody perennial species, reproducing individuals must reappear at the reintroduction site for eight or more successive years, with the population size during the eighth or any later year not less than 80% that of the original number of plants that survived to reproduce in the second year (in the case of populations originating from vegetative plantings) or third year (for perennial species started from seed);
(c) To be considered formally established, the size of artificially created populations must equal, or exceed, 90% of the estimated mean size of extant natural populations for the species existing at the time of initial planting (to be determined in consultation with the department). Alternately, created populations may also be considered established if they attain 90% of the estimated mean size of existing natural populations by their fifth year (for annuals and biennials) or eighth year (for perennials), or during any subsequent year.
(6) Regardless of date of initial planting, all artificially created or reestablished populations of listed species are afforded protection under these rules equal to that of naturally existing populations, providing the requirements in sections (2) and (3) of this rule are followed.
(7) The department recognizes the importance of in situ conservation of listed plant species. Accordingly, enhancement, reestablishment, or introduction of populations of listed species may be used as modes of recovery in only the most critical cases, and shall not be employed as routine mitigation tools to offset species' takes.
(8) To assist the department in establishing conservation priorities, including the need for plant species to be reclassified from endangered to threatened, or vice versa, or removed from state listing, federal agencies and private landowners shall, to the best of their ability, inform the department of any projects on their properties pertaining to the enhancement, reestablishment, or introduction of state-listed plant populations.