72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
HA to HB 2468
LC 1385/HB 2468-4
HOUSE AMENDMENTS TO
HOUSE BILL 2468
By COMMITTEE ON ENVIRONMENT AND LAND USE
May 5
On page 1 of the printed bill, line 2, after the semicolon
delete the rest of the line and insert 'creating new provisions;
and amending ORS 496.171, 496.172, 496.176, 496.182 and
498.026.'.
Delete lines 4 through 31 and delete pages 2 through 5 and
insert:
' { + SECTION 1. + } { + Section 2 of this 2003 Act is added
to and made a part of ORS 496.171 to 496.182. + }
' { + SECTION 2. + } { + (1) If consistent with the recovery
of a threatened species or endangered species, the State Fish and
Wildlife Commission may waive the prohibitions of ORS 498.026 to
allow the taking of wildlife for the purpose of:
' (a) Scientific research;
' (b) Prevention of damage as provided in ORS 498.012;
' (c) Protection of human life;
' (d) Incidental take under an incidental take permit or
incidental take statement issued by a federal agency or allowed
under a federal rule promulgated under section 4(d) of the
federal Endangered Species Act of 1973 (P.L. 93-205), as amended;
or
' (e) Necessary management of the species.
' (2) In order to be consistent with the recovery of a
threatened species or endangered species, a waiver of the
prohibitions of ORS 498.026 under this section must be based on a
determination by the commission that the waiver is consistent
with the interim protection measures or a recovery plan adopted
under ORS 496.182. + }
' { + SECTION 3. + } ORS 496.171 is amended to read:
' 496.171. Notwithstanding ORS 496.004, with respect to state
agency actions taken under ORS 496.171 to 496.182 after July 17,
1995, as used in ORS 496.171 to 496.182:
' { - (1) '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, propagation and
transplantation. - }
' { - (2) - } { + (1) + } 'Native' means indigenous to
Oregon, not introduced.
' { + (2) 'Recovery' means that a proportion of the
constituent populations of naturally produced wildlife that have
been listed for protection under ORS 496.171 to 496.182 are
sufficiently abundant, productive and diverse in life histories
and distribution such that the listed unit as a whole is likely
to be self-sustaining into the foreseeable future. + }
' (3) 'Species' means any group or population of wildlife that
interbreeds and is substantially reproductively isolated.
' (4) '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.
' { + SECTION 4. + } ORS 496.172 is amended to read:
' 496.172. { - In carrying out the provisions of the wildlife
laws with regard to the management of wildlife that is a
threatened species or an endangered species, - } { + The
purpose of listing a species as a threatened or endangered
species is to facilitate the recovery of the species in the state
by identifying species in need of recovery and by directing state
resources to advancing recovery. To achieve recovery, + } the
State Fish and Wildlife Commission:
' (1) Shall { - conduct investigations of - }
{ + investigate + } wildlife species native to this state and
shall determine whether any such species { - is - }
{ + qualifies as + } a threatened species or an endangered
species.
' (2) By rule, shall establish and publish, and from time to
time may revise, a list of wildlife species that are threatened
species or endangered species. { + State agencies shall work to
recover + } listed threatened species or endangered species
{ - shall be protected - } as provided in ORS 496.182.
' (3) Shall work cooperatively with state agencies that have
land management authority or regulatory authority to determine
their roles within their statutory obligations in the
{ - conservation - } { + recovery + } of endangered species,
as described in ORS 496.182 { - (8) - } .
' { - (4) By rule, shall establish a system of permits for
scientific taking of threatened species and endangered species
and shall establish a system of state permits for incidental
taking of state-designated threatened species and endangered
species not listed by the federal government under such terms and
conditions as the commission determines will minimize the impact
on the species taken. An incidental taking permit or statement
issued by a federal agency for a species listed under the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended, shall be recognized by the state as a waiver of any
state protection measures or requirements otherwise applicable to
the actions allowed under the federal permit. - }
' { - (5) - } { + (4) + } Shall cooperate with the State
Department of Agriculture in carrying out the provisions of ORS
564.105.
' { - (6) - } { + (5) + } Shall adopt administrative rules
to carry out the provisions of ORS 496.171 to 496.182 and
498.026.
' { + (6) Shall prioritize the recovery efforts for listed
species based on the immediacy and severity of the threat to the
listed species and on the extent to which the species or its
habitat is found on state lands. + }
' { + SECTION 5. + } ORS 496.176 is amended to read:
' 496.176. (1) The lists of threatened species or endangered
species established pursuant to ORS 496.172 { - (2) - } shall
include:
' (a) Those species of wildlife { + federally + } listed
{ - as of - } { + on + } May 15, 1987, as a threatened species
or an endangered species pursuant to the federal Endangered
Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended { + , unless the species is later removed from the
federal list and the State Fish and Wildlife Commission
determines that the species is not a threatened species or an
endangered species within the state consistent with subsection
(9) of this section + }; and
' (b) Those species determined as of May 15, 1987, by the State
Fish and Wildlife Commission to be threatened species or
endangered species.
' (2) The commission, by rule, may add or remove any wildlife
species from either list, or change the status of any species on
the lists, upon a determination that the species is or is not a
threatened species or an endangered species.
' (3) A determination that a species is a threatened species or
an endangered species shall be based on documented and verifiable
scientific information about the species' biological status. To
list a species as a threatened species or an endangered species
under ORS { - 496.004 and - } 496.171 to 496.182, 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 exists:
' (a) That most populations are undergoing imminent or active
deterioration of their range or primary habitat;
' (b) That overutilization 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 or its habitat.
' (4) Determinations required by subsection (3) of this section
shall be made by the commission on the basis of verifiable
scientific and other data after consultation with federal
agencies, other interested state agencies, the Natural Heritage
Advisory Council, other states having a common interest in the
species and interested persons and organizations.
' (5) Any person may petition the commission to, by rule, add,
remove or change the status of a species on the list:
' (a) A petition shall clearly indicate the action sought and
shall include documented scientific information about the
species' biological status to justify the requested action.
' (b) Within 90 days of receipt of a petition, the commission
shall respond in writing to the petitioner indicating whether the
petition presents substantial scientific information to warrant
the action requested.
' (c) If the petition is found to present such information, the
commission shall commence rulemaking.
' (d) A final determination by the commission concerning the
action requested in a petition shall be provided within one year
from the date of receipt of the petition, with the option for an
additional 12-month extension of time to complete the listing if
the commission determines that limited information or other
appropriate considerations require the extension.
' (e) If the petition is denied, the petitioner may seek
judicial review as provided in ORS 183.484.
' (6) The commission may determine not to list a species as a
threatened species or an endangered species in any of the
following cases:
' (a) If the species has been listed pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended.
' (b) If the species is currently on the list as a sensitive
species, or is a candidate species or has been petitioned for
listing pursuant to the federal Endangered Species Act of 1973
(P.L. 93-205, 16 U.S.C. 1531), as amended.
' (c) If the species has been determined, pursuant to the
federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C.
1531), as amended, to not qualify as a threatened species or an
endangered species.
' (7) Notwithstanding subsections (1) to (5) of this section,
the commission shall take emergency action to add a species to
the list of threatened species or endangered species if it
determines there is a significant threat to the continued
existence of the species within the state:
' (a) The commission shall publish notice of such addition 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.
' (b) Such emergency addition shall take effect immediately
upon { - publication in - } { + filing of the rule with + }
the Secretary of
{ - State's bulletin - } { + State + } and shall remain valid
for a period no longer than one year, unless during the period
the commission completes rulemaking procedures as provided in
subsection (5) of this section.
' (8) The commission shall periodically review the status of
all threatened species and endangered species { - listed under
ORS 496.171 to 496.192 - } { + on the list established pursuant
to ORS 496.172 + }. Each species shall be reviewed at least once
every five years to determine whether verifiable scientific
information exists to justify its reclassification or removal
from the list, according to the criteria listed under subsections
(3) and (4) of this section. If a determination is made to
reclassify a species or remove it from the list, the commission,
within 90 days, shall commence rulemaking to change the status of
the species.
' (9) Notwithstanding the provisions of this section, the
commission may decide { + to remove or may decide + } not to
{ - list - } { + add + }a species { + from the list
established pursuant to ORS 496.172 + } that otherwise qualifies
as a threatened { + species + } or endangered species within
this state if the commission determines that the species is { + :
' (a) + } Secure outside this state { + ; + } { - or - }
' { + (b) + } { - the species is - } Not of cultural,
scientific or commercial significance to the people of this
state { + ; or
' (c) Not likely to be recovered by any actions that could be
undertaken in the State of Oregon + }.
' { + (10) Within 90 days after the removal of a species from
the federal list of threatened species or endangered species
pursuant to the federal Endangered Species Act of 1973 (P.L.
93-205, 16 U.S.C. 1531), as amended, the commission shall
consider the status of the species on the list established
pursuant to ORS 496.172 by initiating rulemaking according to the
process and criteria established in subsections (3) and (4) of
this section. If the commission decides to remove a species from
the list established pursuant to ORS 496.172, the commission
shall determine whether the species requires other protected
status. + }
' { + SECTION 6. + } ORS 496.182 is amended to read:
' 496.182. (1) The burden of protecting and recovering
threatened species or endangered species can be a significant
cost to the citizens of this state and it is therefore the policy
of this state to minimize duplication and overlap between state
and federal laws dealing with threatened species or endangered
species. To this end, nothing in this section is intended to
prevent the adoption of cooperative state or federal programs
when such programs provide protection for listed species without
significant impact on the primary uses of state lands.
' (2) At the time the State Fish and Wildlife Commission adds a
species to the list of threatened species or endangered species
under ORS 496.172, the commission shall establish by rule
{ - quantifiable and measurable guidelines that it considers
necessary to ensure the survival of individual members of the
species. These guidelines may include take avoidance and
protecting resource sites such as spawning beds, nest sites,
nesting colonies or other sites critical to the survival of
individual members of the species. - } { + interim protection
measures necessary to conserve and protect the species and its
habitat pending the adoption of a recovery plan under subsection
(3) of this section. + }
' (3) For { - threatened - } { + a + } species listed under
ORS 496.172 and in the absence of an approved { - endangered
species management plan - } { + recovery plan + } described in
subsection (8) of this section for { - an endangered - }
{ + a + } species, if a state agency determines that a proposed
action on land it owns or leases, or for which it holds a
recorded easement, has the potential to violate the
{ - guidelines - } { + interim protection measures + }
established under subsection (2) of this section, it shall notify
the State Department of Fish and Wildlife. 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 - } { + interim protection
measures + }.
' (4) If a state agency fails to adopt the recommendations made
under subsection (3) of this section, it shall, after
consultation with the department, demonstrate 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.
' (5) When an action under this section is initiated by a
person other than a state agency, the agency shall provide final
approval or denial of the proposed action within 120 days of
receipt of a written request for final determination.
' (6) The provisions of this section do not apply to lands
acquired through foreclosures of loans made pursuant to programs
of the Department of Veterans' Affairs.
' (7) State land owning or managing agencies shall set
priorities for establishing { - endangered species
management - } { + recovery + } plans required by subsection (8)
of this section after consultation with the commission on the
level of biological threat and, in consideration of available
funds, the immediacy and seriousness of the threat to any listed
species.
' (8)(a)(A) Within four months of the listing of { - an
endangered - } { + a + } species, the commission, in
consultation and cooperation with the state land owning or
managing agency, shall determine if state land can play a role in
the { - conservation - } { + recovery + } of
{ - endangered - } { + the + } species. The commission and the
land owning or managing agency shall consider species biology and
geography of the land base to determine if the species or its
habitat is found on state land. If the species or its habitat is
not found on state land, the commission shall determine that
state land has no role to play in the { - conservation - }
{ + recovery + } of the species.
' (B) If the species or its habitat is found on state land, the
land owning or managing agency, in consultation with the State
Department of Fish and Wildlife, shall determine the role its
state land shall serve in the { - conservation - }
{ + recovery + } of the
{ - endangered - } species. This role may include, but is not
limited to
{ - conservation - } { + recovery + }, contribution toward
{ - conservation - } { + recovery + } or take avoidance. To
carry out its consulting role under this subsection, the
department shall provide state agencies with an assessment of the
{ - conservation - } { + recovery + } needs of the
{ - endangered - } species. In making this determination, the
land owning or managing agency shall balance the statutory
requirements, rules and policies applicable to the agency's
programs, the social and economic impacts that
{ - conservation - } { + recovery + } would have on the state,
the { - conservation - } { + recovery + } needs of the
species, the purpose of the land and the roles of other ownership
categories. The agency shall balance these factors consistent
with the commission's rules related to the biological aspects of
species management and the statutory obligations of the land
owning or managing agency, including the statutory purpose of the
land.
' (C) After determining the role its state land shall serve in
{ - conservation - } { + the recovery + } of the species, the
land owning or managing agency, in consultation with the State
Department of Fish and Wildlife and consistent with the
commission's rules related to
{ - endangered species management - } { + recovery + } plans,
shall develop and approve { - an endangered species
management - } { + a recovery + } plan within 18 months from
the date the species is first listed as { + threatened or + }
endangered. { - Endangered species management - }
{ + Recovery + } plans shall be based on the statutes, rules and
policies applicable to the agency's programs and shall take into
account any social or economic impacts that the plan may have on
the state. The land owning or managing agency shall submit the
plan to the commission for review and approval as provided in
subparagraph (D) of this paragraph.
' (D) The commission shall review the { - endangered species
management - } { + recovery + } plan approved by the land
owning or managing agency under subparagraph (C) of this
paragraph to determine whether the plan achieves the role defined
for the land under subparagraph (B) of this paragraph. Based on
the biology of the { + threatened or + } endangered species the
commission may modify the
{ - endangered species management - } { + recovery + } plan
if necessary to be consistent with the role the land owning or
managing agency has defined for the land under subparagraph (B)
of this paragraph and shall approve the plan as submitted or
modified within 24 months from the date the species is listed as
{ + threatened or + } endangered.
' (b) For state agencies other than land owning or managing
agencies, the commission, in consultation and cooperation with
the agency, shall determine whether the agency can serve a role
in the
{ - conservation - } { + recovery + } of { - endangered - }
{ + the + } species. If the commission determines that the
agency has a role to play in
{ - conservation - } { + the recovery + } of the
{ - endangered - } species, the agency shall determine what
role it shall serve in { - conservation - } { + the
recovery + } of the { - endangered - } species. The agency
shall make this determination as provided in the commission's
rules related to the biological aspects of species management and
in a manner consistent with the agency's statutory obligations.
' { + SECTION 7. + } { + Section 8 of this 2003 Act is added
to and made a part of ORS 496.171 to 496.182. + }
' { + SECTION 8. + } { + (1) For threatened or endangered
species on the list established pursuant to ORS 496.172 on the
effective date of this 2003 Act, the State Fish and Wildlife
Commission shall:
' (a) Adopt the interim protection measures specified in ORS
496.182 by July 1, 2006; and
' (b) Prioritize recovery efforts required under ORS 496.172
and the recovery plans specified under ORS 496.182 as soon as
practicable, but no later than July 1, 2008.
' (2) The commission may extend a deadline specified in this
section for up to 12 months if the extension is necessary to
gather additional biological data or if limited budget or staff
prevents the adoption of interim protection measures or recovery
plans within the time specified. + }
' { + SECTION 9. + } ORS 498.026 is amended to read:
' 498.026. (1) Except as provided in subsection (2) of this
section, no person shall take, import, export, transport,
purchase or sell, or attempt to take, import, export, transport,
purchase or sell, any threatened species or endangered species,
or the skin, hides or other parts thereof, or any article made in
whole or in part from the skin, hide or other parts of any
threatened species or endangered species.
' (2) Nothing in { - subsection (1) of - } this section is
intended to prevent the taking, importation, transportation or
sale of any threatened species or endangered species in such
manner as may be authorized in ORS { - 496.172, - } 497.218 to
497.238, 497.298 or 497.308 { + or section 2 of this 2003
Act + }.
' (3) Nothing in this section applies to the resale of used
skins, hides or other parts of a threatened species or endangered
species or an article made in whole or part thereof if the seller
acquired the item sold prior to October 5, 1973.
' { + (4) Nothing in this section prevents a person from
taking a threatened species or endangered species based on a good
faith belief that the person was acting in an effort to protect
the person or others from bodily harm. + } ' .
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