by Samantha White
The Oregon Department of Fish and Wildlife (ODFW) and Oregon Land Conservation and Development Commission (LCDC) adopted amended administrative rules that will require mitigation actions to offset impacts of large-scale and other developments on sage grouse habitat.
Public hearings were held in Harney County prior to the adoption of the rules, and numerous community members and stakeholders offered extensive public testimony. Many of those who commented during the hearings urged ODFW and LCDC not to adopt the rules.
After receiving multiple petitions to list sage grouse under the federal endangered species act (ESA), the U.S. Fish and Wildlife Service (USFWS) determined in April 2010 that protecting the species was warranted, but decided to focus on species that were facing greater risk of extinction first. However, the decision will soon be revisited, as USFWS is expected to determine whether sage grouse should be proposed for an ESA listing or removed from the candidate list in September 2015.
SageCon Coordinator Jamie Damon said the USFWS basically has three choices: not to list the species, list the species without exceptions, or list the species with exceptions in states that have developed their own plans.
The administrative rules of ODFW and LCDC, which work together to address the lack of regulatory certainty in protecting sage grouse habitat (one of the identified threats to the species), are part of a larger state action plan that will be presented to the USFWS in an effort to avoid the listing in Oregon. Other threats will be addressed in the state action plan, as well.
Part of the Oregon Administrative Rules, the Greater Sage-Grouse Conservation Strategy for Oregon establishes ODFW’s policy for the protection and enhancement of sage grouse in Oregon and declares that sage grouse must be managed statewide to maintain or enhance their abundance and distribution at the 2003 spring breeding population level (approximately 30,000 birds during the next 50 years.)
The rules also outline ODFW’s habitat management goals, which include avoiding or limiting the extent, location, and negative impacts of development actions over time within sage grouse core, low-density, and general habitats.
“Development actions” are defined as any human-caused activities subject to regulation by local, state, or federal agencies that could result in the loss of significant sage grouse habitat.
“Core areas” are mapped sagebrush types or other habitats that meet all life history needs necessary to conserve 90 percent of Oregon’s sage grouse population. They contain very high, high, and moderate lek density. A lek is an area where male sage grouse display during the breeding season to attract females. In Oregon, core areas are also called Priority Areas for Conservation (PACs).
“Low-density” areas contain low lek density, but provide breeding, summer and migratory habitat. “General habitat” is occupied (seasonal or year-round) habitat outside of core and low-density habitats.
Core area approach
In core areas, the goal is to limit direct impacts from human-caused disturbance to no more than 3 percent of any PAC and at a rate of less than 1 percent during a 10-year period.
Thus, a PAC/core area that’s comprised of 100,000 acres would only be eligible for 1,000 acres of large-scale development in a 10-year period and 3,000 acres overall. The percentages will be counted across the PACs/core areas regardless of land ownership.
ODFW will develop and maintain maps that identify core and low-density habitats using aerial imagery, local knowledge of sage grouse and sage grouse habitat, best available science, and county governing bodies (or their designees) to provide input regarding changes to local land use.
The rules also state that developers must mitigate adverse impacts (both direct and indirect) to sage grouse and their habitats in core, low-density, and general habitat. “Direct impacts” are adverse effects upon significant sage grouse habitat that are close to the development action in time and place, while “indirect impacts” occur later in time or are removed in distance.
Mitigation is comprised, in hierarchal order, of avoidance, minimization, and compensatory mitigation.
Avoidance is the first step in the mitigation hierarchy, and it’s accomplished by not taking a certain development action or parts of that action. Avoidance tests are used to determine whether the proposed development can occur in another location. Avoidance requirements are strictest for core habitat and least strict for general habitat.
If the permitting entity determines that a proposed development action can’t be moved, the next step will be to minimize the direct and indirect impacts. Minimization is accomplished by limiting the degree or magnitude of a development action and its implementation.
If avoidance and minimization efforts have been exhausted, compensatory mitigation will be used to replace the lost functionality of the impacted habitat to a level capable of supporting an even greater number of sage grouse.
The mitigation hierarchy is required for both direct and indirect impacts when the proposed development action requires a county permit, meets the LCDC definition of large-scale development, and would impact core and low-density habitat (or general habitat that’s within 3.1 miles of a lek in a manner that would reduce functional sage grouse habitat or sage grouse use of that habitat).
LCDC defines “large-scale development” as uses that are either over 50 feet in height, have a direct impact in excess of five acres, generate more than 50 vehicle trips per day, or create noise levels of at least 70 decibels at zero meters for sustained periods of time.
If the use requires a county permit but doesn’t fit the LCDC definition of “large-scale development,” ODFW will determine whether to require mitigation for proposed development actions that are within 4 miles of a lek in core habitat or 3.1 miles of a lek in low-density or general habitat. If it’s required, the appropriate level of mitigation will be based on the nature of the impact and the risk to sage grouse.
A public hearing regarding the ODFW administrative rules was held Wednesday, July 22 at the Harney County Senior and Community Services Center in Burns. Damon and Alan “Chip” Dale, ODFW High Desert Region manager, provided an overview of the rules before accepting questions and comments from the audience.
Jerry Miller, a rancher from Crane, asked why the focus has been on preserving sage grouse habitat, instead of addressing their predators.
Dale replied that the people who petitioned for the sage grouse listing identified habitat impacts as one of the threats to the species.
He said, “We know that predators are an issue, but in order to deal with the criteria put forward for the listing, we had to deal with the habitat component of it first.”
Brett Brownscombe, ODFW acting deputy director for fish and wildlife programs, added that predation is addressed in the state action plan.
However, Harney County Judge Steve Grasty discouraged single-species management and making decisions under the threat of a listing.
Another audience member asked why the ODFW rules were necessary, considering that many landowners have voluntarily entered into Candidate Conservation Agreement with Assurances (CCAA) programs.
CCAAs are formal agreements between landowners and the USFWS to address the conservation needs of a proposed or candidate species before it’s listed. Landowners voluntarily commit to conservation actions that will help stabilize or restore the species in an effort to prevent the listing.
Brownscombe said the rules are not meant to detract from CCAAs, but to fill in regulatory gaps regarding large-scale development.
Grasty encouraged ODFW (and later LCDC) to boldly state that CCAA members will be exempt from these rules.
Marty Suter-Goold asked how lek attendance was being calculated and by whom.
Brownscombe and Dale explained that lek attendance was calculated by ODFW biologists.
Suter-Goold asked whether the rules apply to abandoned leks, and Dale replied that they apply to any mapped leks.
Another audience member questioned the integrity of the data that’s being used.
“We’re not claiming to have it perfect,” Brownscombe replied. “There may be areas within core areas that are not core.”
However, he added that ODFW has made a “clear commitment” to work with counties and planning commissions to revisit the data every five years.
Andrew Shields, wildlife biologist at Roaring Springs Ranch, said the 3 percent disturbance cap was based on data that isn’t applicable to Oregon, and he urged ODFW (and later LCDC) to analyze Oregon’s leks to gather more applicable data.
Grasty agreed, stating, “If we are going to do disturbance calculation, I want to now exactly what it is and how it’s done.”
Shields also asked whether the public was engaged in mapping areas of high population richness (mapped areas of breeding and nesting habitat within core habitat that support the 75th percentile of breeding bird densities). Brownscombe replied that the rules advisory committee (RAC) was involved in this process.
But Grasty said he saw the areas of high population richness map for the first time that day, and there’s no way to verify it or understand what it means.
“When you set a map or change a map, I want that going through the county,” Grasty said, explaining that county officials need this information in order to keep local landowners apprised of changes that could affect their properties.
Brent Beverly, operations manager of Harney Electric Cooperative Inc., said he didn’t see how ODFW intends to increase sage grouse numbers “other than tying up habitat.” He added that one way to increase the population would be to ban sage grouse hunting.
Grasty agreed with Beverly, asserting that ODFW should focus more on increasing sage grouse populations and less on preserving habitat. He added that the department lost its focus on core and is now talking about all sage grouse habitat, which consumes most of Harney County. He also expressed concern about how mitigation planning will be enforced, explaining that additional money, resource and staff will be needed.
Fred Flippence said he’s been trying to help bring development and jobs to Harney County for the last 15 years and asked whether ODFW had a map showing how much commercial development occurred when sage grouse populations declined. Flippence also asked why wildfires, which destroy sage grouse habitat, are not included on ODFW’s maps.
“We are not keepers of that data,” Dale replied.
Grasty said government agencies need to stop saying, “It’s not my job.” He added that protecting sage grouse habitat is not his job, but it’s occupied his time for the last several years.
He also commented both ODFW and LCDC’s fiscal impact statements, which are required by statute, are “to say the least, laughable.” He said, “Nothing in [these rules] talks about how we help the economy and help communities.”
Grasty concluded by urging ODFW (and later LCDC) to postpone adoption of the rules.
Brownscombe said he would take the testimony to the Fish and Wildlife Commission to be heard prior to the rules’ adoption.
The Fish and Wildlife Commission adopted amended administrative rules for sage grouse management in Oregon at its meeting in Salem Monday, July 27.
LCDC took on the task of adopting amendments to Oregon Administrative Rule 660-023-0115. LCDC’s proposed amendments were developed in coordination with the aforementioned ODFW amendments and use nearly all of the same definitions. The LCDC rule (which applies to portions of Harney, Baker, Crook, Deschutes, Lake, Malheur, and Union counties) establishes a procedure for considering development proposals on lands identified as significant sage grouse habitat.
Significant habitat consists of core areas, low density areas, and general habitat within 3.1 miles of an occupied or occupied-pending lek when those lands are planned and zoned for exclusive farm use. An “occupied lek” is a lek that has been regularly visited by ODFW and has had one or more male sage grouse counted in one or more of the last seven years. An “occupied-pending lek” is a lek that has not been counted regularly by ODFW in the last seven years, but sage grouse were present at ODFW’s last visit. The exact location of a sage grouse habitat may be refined during consideration of a specific project, but it must be done through consultation with ODFW.
Activities that do not require government approval, including farm use as defined in Oregon Revised Statute 215.203 (2), are exempt from the rule. State agency permits necessary to facilitate a farm use, including new water right permits, are also exempt from this rule. Jon Jinings, community services specialist with the Oregon Department of Land Conservation and Development, said farm dwellings will also be exempted from this rule.
Additionally, any energy facility that submitted a preliminary application for site certificate on or before the effective date of this rule is exempt from its provisions.
Uses identified in CCAA agreements are also relieved from the provisions of this rule. However, conflicting uses will be subject to the rule’s regulations in all instances, regardless of enrollment status.
“Conflicting uses” are large-scale developments (and other activities that require review by county decision makers) that are proposed within 4 miles of an occupied or occupied-pending lek in core area or 3.1 miles of an occupied or occupied-pending lek in low-density or general habitat.
The rule states that, prior to accepting an application for a conflicting use in significant sage grouse habitat, a county should convene a pre-application conference with the applicant, county planning staff, and local ODFW staff. A county may consider a large-scale development in a core area upon applying disturbance thresholds (no more than 3 percent of any total core area and less than 1 percent during a 10-year period) and following the mitigation hierarchy, as specified. A county may also approve a conflicting use in core habitat after receiving confirmation from ODFW that the proposed use doesn’t pose a threat to significant sage grouse habitat or sage grouse use of that habitat, or by conditioning approval based on ODFW recommendations.
A county may approve a large-scale development in low-density habitat upon applying the mitigation hierarchy, as specified. In general habitat, county approval is contingent upon a consultation between the development proponent and ODFW and compensatory mitigation.
The rule also allows a county to approve a large-scale development that doesn’t meet the avoidance test if the county determines that the overall public benefits outweigh the damage to significant sage grouse habitat. However, requirements for minimization and compensatory mitigation continue to apply, and areas of high population richness should be avoided whenever possible. The proposed development must also provide a number of permanent, full-time jobs (not including construction activities) that pay at least 150 percent of average county wages. Each effected county will only be able to exercise this provision once during a 10-year period.
Local governments will have the opportunity to develop their own sage grouse programs, but the LCDC must determine that they comply with, and equivalent to, the rule with regard to protecting sage grouse habitat.
A two-day public hearing was held July 23-24 at the Harney County Community Center in Burns. The LCDC began receiving public comment after Damon and Jinings explained the rule and provided some background information.
Grasty asserted that human development has not been the problem in Harney County.
“The reason this place is so open, looks so good, and we have so much habitat is because of the folks behind me,” he said, indicating the local community members who came to testify. “They live on it everyday and take care of it, and they are going to be punished everyday if we are not careful.”
William J. Mulder submitted a letter on behalf of Tree Top Ranches LP that expressed a similar sentiment.
The last paragraph of the letter reads, “With all due respect, the proposed rule is disingenuous and fails totally to meet any measure of meaningful sage grouse protection. It is the very essence of a lose-lose scenario. If the [LCDC] sincerely desires to accomplish something for the greater sage grouse, we politely suggest you get away from the alphabet agencies and special interest groups and come out and talk with our neighbors who live on and truly care about these lands.”
Carol Dunten, chair of the Harney County Soil and Water Conservation District, said she owns a ranch in Drewsey that’s in a PAC/core area. Her property is also considered an area of high population richness.
“They say we have 90 percent of the birds in our PACs,” she said. “Maybe we are doing something right if we have 90 percent of the birds, but it seems like we have more regulations from all of the agencies.” She added, “These rules impact my livelihood and legacy. This is my 401(k). All we have is our ranch.”
Grasty stated the rule would take development rights away from Harney County, which is one of the most economically-disadvantaged counties in the state. He added that locking up 97 percent of the land is “not a good solution,” and it sends a message that, “Oregon is not open for business.” He also asked how the LCDC rule would be better than the regulations of an ESA listing, stating that, “Many have said this is worse.”
Rep. Cliff Bentz said, “ We need to hear why these rules are so much better than the listing. These rules sadly go a long way toward freezing this part of the world in place. Don’t take one third of Oregon off the economic table. Don’t do it. Our state is not rich enough to throw away assets.”
Grasty said some PACs/core areas span county lines and questioned how the 3 percent disturbance cap would be distributed.
He asked, “Are you going to let ODFW define an area and then put two or more counties into debate about who’s gong to to use the little bit of development that’s left?”
Bentz said it’s “super important” to get the mitigation piece right because it’s the only path for allowing development in significant sage grouse habitat.
Grasty added, “I think it’s time to say, ‘No!’ I think you [should] back up and do this right.”
However, representatives from The Nature Conservancy, Oregon Habitat Joint Venture, and Oregon Natural Desert Association encouraged LCDC to adopt the rule, asserting that the regulations will benefit sage grouse, while continuing to allow development.
But Bob Sallinger, conservation director of the Audubon Society of Portland, wrote a letter to the LCDC stating that the rules are “insufficient to ensure adequate protection for sage grouse and to provide the regulatory certainty required to avoid listing under the Endangered Species Act.” He argued that, instead of having the option of developing their own sage grouse programs, counties should be required to adopt the rule verbatim and without modification. He also stated that the Audubon Society doesn’t support exclusions for farm and ranch uses, and this development should be counted toward the established thresholds. Sallinger also asked that small-scale development be counted toward the thresholds and that LCDC nix the provision that allows for one especially unique local economic activity every decade. He also called for removal of the exclusion for energy facilities that have submitted applications for site certifications.
To the contrary, Todd Adams, engineering project leader for Idaho Power, wrote a letter in support of the energy facility exclusion. He explained that Idaho Power has an application pending for construction and maintenance of the Boardman to Hemingway transmission line project (B2H Project), which crosses about 298 miles of Eastern Oregon, including sage grouse habitat in Baker and Malheur counties. He added that Idaho Power began the B2H Project permitting process about eight years ago, and nearly 1,000 stakeholders have been consulted and 50 different routes in 11 different counties considered. The company has also invested tens of millions of dollars and many years in developing a project location and design that will avoid impacts to sage grouse habitat and minimize unavoidable impacts.
The CCAA exemption was also discussed during the hearing. Jinings said it’s an “expression of support” for the voluntary effort. However, Baker County Commissioner Mark Bennett asserted that it’s “kind of a feel good thing,” adding that it won’t make a difference in the final analysis.
Shields encouraged the LCDC to remove the section stating that conflicting uses will be subject to the rule in all instances regardless of CCAA enrollment status. He explained that people enrolled in CCAAs are subject to a “no net loss mitigation plan,” and the CCAA will become void if habitat fragmentation occurs.
Regarding Shields’ proposal, LCDC Commissioner Sherman Lamb said, “I think it would be risky for us to base our rule on agreements that we haven’t even seen.” He added that he’d heard “pretty good testimony” about CCAAs, but thought the rule’s language concerning CCAAs should remain unchanged. The other members of the commission agreed.
After extensive discussion and serval hours of public testimony, the LCDC unanimously agreed to adopt the rule on Friday, July 24, and it became directly applicable to local decisions on its effective date. The LCDC will review the rule no later than June 30, 2020. Also, should the sage grouse become listed, the commission must consider whether the rule is necessary. The necessity of the rule will also be considered if sage grouse become delisted.