BILL REQ. #:  H-0199.1 

Prefiled 12/10/10. Read first time 01/10/11.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to the authority of state agencies to enter into agreements with the federal government under the endangered species act; adding a new section to chapter 77.12 RCW; adding a new section to chapter 43.30 RCW; adding a new section to chapter 43.21A RCW; adding a new section to chapter 79A.05 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that the federal endangered species act provides legal options for nonfederal parties to engage in acts that would cause otherwise prohibited harm to a threatened or endangered species. A commonly used option offered by the federal government is the formulation of a habitat conservation plan. These voluntary long-term agreements between the federal government and a nonfederal party allow defined actions to occur, despite potential harm to a threatened or endangered species, according to agreed upon processes and limitations.
     (2) The legislature further finds that habitat conservation plans have been successfully entered into by private parties in Washington and by the Washington state government itself. These agreements have been instrumental in sustaining the working status of natural resource lands and providing a degree of regulatory certainty to the nonfederal signatories to the various habitat conservation plans.
     (3) The legislature further finds that state agency participation in habitat conservation plans is a potentially beneficial option for state land managers and state regulatory programs. However, participation in a habitat conservation plan often requires the state to commit to taking certain actions, refrain from certain actions, or be required to seek federal approval for actions that would otherwise be within the state's inherent authority. The result of a state agency entering into a habitat conservation plan could be to limit decision-making options for future legislatures, governors, and executive branch agency directors for an extended period of time.
     (4) The legislature further finds that, given the potential long-lasting ramifications on future legislative and executive branch options, the decision to commit the state to the potential long-term limitations of a habitat conservation plan should not be unilaterally made by a state agency. Conversely, the role of the state agencies is to identify the utility of a habitat conservation plan, but allow the legislature and the governor to decide if the benefits of the habitat conservation plan outweigh the potential sacrifice of future governing options. This model was utilized when the legislature directed the department of natural resources to negotiate a habitat conservation plan in what is known as the forests and fish law (chapter 4, Laws of 1999), and it is a model that should be relied upon whenever a state agency, or other party, decides that a habitat conservation plan is in the best interest of the state.

NEW SECTION.  Sec. 2   A new section is added to chapter 77.12 RCW to read as follows:
     (1) The department may not, after the effective date of this section, officially enter into a habitat conservation plan, or other multiyear agreement with the federal government under the endangered species act, 16 U.S.C. Sec. 1531 et seq., that commits the state to future action or constrains future state options without prior express direction from the legislature.
     (2) Nothing in this section prohibits the department from seeking funding for the development of a habitat conservation plan, negotiating the provisions of a habitat conservation plan with the federal government, or taking other steps towards finalizing the provisions of a habitat conservation plan short of committing the state to the provisions of the negotiated habitat conservation plan.
     (3) For the purposes of this section, express direction from the legislature is limited to the passage of a bill that is either signed by the governor or allowed to take effect absent a gubernatorial signature that includes express direction to the department to enter into a specific habitat conservation plan or enter into a habitat conservation plan for a specific departmental function or landholding.

NEW SECTION.  Sec. 3   A new section is added to chapter 43.30 RCW under the subchapter heading "PART 5" to read as follows:
     (1) The department may not, after the effective date of this section, officially enter into a habitat conservation plan, or other multiyear agreement with the federal government under the endangered species act, 16 U.S.C. Sec. 1531 et seq., that commits the state to future action or constrains future state options without prior express direction from the legislature.
     (2) Nothing in this section prohibits the department from seeking funding for the development of a habitat conservation plan, negotiating the provisions of a habitat conservation plan with the federal government, or taking other steps towards finalizing the provisions of a habitat conservation plan short of committing the state to the provisions of the negotiated habitat conservation plan.
     (3) For the purposes of this section, express direction from the legislature is limited to the passage of a bill that is either signed by the governor or allowed to take effect absent a gubernatorial signature that includes express direction to the department to enter into a specific habitat conservation plan or enter into a habitat conservation plan for a specific departmental function or landholding.

NEW SECTION.  Sec. 4   A new section is added to chapter 43.21A RCW to read as follows:
     (1) The department may not, after the effective date of this section, officially enter into a habitat conservation plan, or other multiyear agreement with the federal government under the endangered species act, 16 U.S.C. Sec. 1531 et seq., that commits the state to future action or constrains future state options without prior express direction from the legislature.
     (2) Nothing in this section prohibits the department from seeking funding for the development of a habitat conservation plan, negotiating the provisions of a habitat conservation plan with the federal government, or taking other steps towards finalizing the provisions of a habitat conservation plan short of committing the state to the provisions of the negotiated habitat conservation plan.
     (3) For the purposes of this section, express direction from the legislature is limited to the passage of a bill that is either signed by the governor or allowed to take effect absent a gubernatorial signature that includes express direction to the department to enter into a specific habitat conservation plan or enter into a habitat conservation plan for a specific departmental function or landholding.

NEW SECTION.  Sec. 5   A new section is added to chapter 79A.05 RCW to read as follows:
     (1) The commission may not, after the effective date of this section, officially enter into a habitat conservation plan, or other multiyear agreement with the federal government under the endangered species act, 16 U.S.C. Sec. 1531 et seq., that commits the state to future action or constrains future state options without prior express direction from the legislature.
     (2) Nothing in this section prohibits the commission from seeking funding for the development of a habitat conservation plan, negotiating the provisions of a habitat conservation plan with the federal government, or taking other steps towards finalizing the provisions of a habitat conservation plan short of committing the state to the provisions of the negotiated habitat conservation plan.
     (3) For the purposes of this section, express direction from the legislature is limited to the passage of a bill that is either signed by the governor or allowed to take effect absent a gubernatorial signature that includes express direction to the commission to enter into a specific habitat conservation plan or enter into a habitat conservation plan for a specific commission function or landholding.