1. Beyond Fish and the Federal ESA Chris Maguire Terrestrial Biology Program Coordinator Oregon Department of Transportation Local Government Environmental Training 2009 Corvallis, Oregon

2. Oregon State ESA Shortnose suckerWestern snowy plover California ground squirrelGentner’s fritillary

3. Oregon State ESA 2 Regulatory Agencies OR Dept of Fish & Wildlife (ODFW) - fish and wildlife OR Dept of Agriculture (ODA) - plants

4. Oregon State ESA ODFW – fish & wildlife Take: to kill or obtain possession or control of Federal ESA – fish & wildlife Take: to harm, harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect

5. Oregon State ESA ODA – plants Take: to collect, cut, damage, destroy, dig, kill, pick, remove, transplant, or otherwise disturb (or required pollinators) (Take Permit) Federal ESA – plants Unlawful: to possess, cut, damage, destroy, dig, or remove (No Incidental Take Permit)

6. Oregon State ESA State ESA – plants Compliance: An action initiated by a person other than a state agency that has met federal ESA requirements for a species meets state ESA requirements (ORS 564.115(6)) State ESA – fish & wildlife Compliance: A federal ESA permit serves as a waiver of state ESA requirements (ORS 496.172(4))

7. Oregon ESA – Fish & Wildlife Public agencies must consult with ODFW for actions on public land (owned or leased)…IF

8. Oregon ESA – Fish & Wildlife Public agencies must consult with ODFW for actions on public land (owned or leased)…IF An action has the potential to appreciably reduce the likelihood of the survival or recovery of a T&E animal

9. Oregon ESA – Fish & Wildlife Public agencies must consult with ODFW for actions on public land (owned or leased)…IF An action has the potential to appreciably reduce the likelihood of the survival or recovery of a T&E animal If ODFW determines that such take will not adversely impact the long- term conservation of the species or its habitat, ODFW may issue an incidental take permit Kit fox

10. Oregon ESA – Plants A public agency must determine whether listed plants occur or are likely to occur on public lands targeted for action

11. Oregon ESA – Plants A public agency must determine whether listed plants occur or are likely to occur on public lands targeted for action A public agency must 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 (on public land)

12. Oregon ESA – Plants A public agency must determine whether listed plants occur or are likely to occur on public lands targeted for action A public agency should 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 Results of the effects analysis should be provided to ODA for review, project approval, and a take permit

13. Oregon ESA – Plants All federal listed plants are also state listed (15 federal species) 59 state listed plant species Umpqua mariposa lily

14. MBTA (Migratory Bird Treaty Act) Cliff swallows

15. MBTA – Migratory Bird Treaty Act Illegal to: take or possess any migratory bird w/o an USFWS permit Tree sparrow X

16. MBTA – Migratory Bird Treaty Act Illegal to: take or possess any migratory bird w/o an USFWS permit Including: feathers, eggs, nests, or products xxx

17. MBTA – Migratory Bird Treaty Act Illegal to: take or possess any migratory bird w/o an USFWS permit Including: feathers, eggs, nests, or products Take means to: pursue, hunt, shoot, wound, kill, trap, capture, or collect (or attempt to do any of these) You can harass birds and remove empty nests

18. MBTA – Migratory Bird Treaty Act ‘Strict liability’ law: anyone can be convicted regardless of intent or guilty knowledge

19. MBTA – Migratory Bird Treaty Act ‘Strict liability’ law Oregon migratory birds: all except feral pigeon, house sparrow, starling, mute swan, and domesticated and raised birds (> 450 species)

20. MBTA – Migratory Bird Treaty Act ‘Strict liability’ law Oregon migratory birds Most vulnerable life stages: Eggs & young incapable of flight

21. MBTA – Migratory Bird Treaty Act ‘Strict liability’ law Oregon migratory birds Most vulnerable life stages Permits: No incidental take permits Incidental take is take that results from, but is not the purpose of, carrying out an otherwise lawful activity

22. MBTA – Migratory Bird Treaty Act Compliance Avoid –Prevent nesting

23. MBTA – Migratory Bird Treaty Act Compliance Avoid –Prevent nesting –Work around

24. MBTA – Migratory Bird Treaty Act Compliance Avoid –Prevent nesting –Work around –Alter project timing Hatched grouse

25. MBTA – Migratory Bird Treaty Act Compliance Avoid Use USDA APHIS Wildlife Services (ODOT IGA with APHIS)

26. MBTA – Migratory Bird Treaty Act Compliance Avoid Use USDA APHIS Wildlife Service Apply for MBTA Special Purpose Permit - Known conflicts with known species - Actively harass

27. MBTA – Migratory Bird Treaty Act Compliance Avoid Use USDA APHIS Wildlife Service Apply for MBTA Special Purpose Permit Have a written plan to minimize harm (Keep track of take)

28. BGEPA (Bald and Golden Eagle Protection Act) Mature bald eagle Immature bald eagle Mature golden eagle

29. BGEPA – Bald and Golden Eagle Protection Act Illegal to: take, possess, or transport any bald eagle, alive or dead, w/o an USFWS permit X XX

30. BGEPA – Bald and Golden Eagle Protection Act Illegal: to take, possess, or transport Including: feathers, eggs, nests X X X

31. BGEPA – Bald and Golden Eagle Protection Act Illegal: to take, possess, or transport Take means: to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest, or ‘disturb’ X No Incidental Take Permit

32. BGEPA – Bald and Golden Eagle Protection Act ‘Disturb’ means: to bother a bald or golden eagle to a degree that causes, or is likely to cause 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.

33. ‘Take’ Summary Fed ESA – harass, harm, pursue, hunt, shoot, wound, kill, trap, capture OR ESA (fish/wildlife) – kill or obtain possession or control of OR ESA (plants) – collect, cut, damage, destroy, dig, kill, pick, remove, transplant, transport, disturb MBTA – pursue, hunt, shoot, wound, kill, trap, capture, collect BGEPA – pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest, or ‘disturb’

34. Questions?