AN ACT Relating to endangered species; amending RCW 77.08.010; and adding a new chapter to Title 77 RCW.

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

Sec. 1. Section 77.08.010, chapter 36, Laws of 1955 as amended by section 9, chapter 78, Laws of 1980 and RCW 77.08.010 are each amended to read as follows:

As used in this title or rules of the commission, unless the context clearly requires otherwise:

(1) "Director" means the director of game.

(2) "Department" means the department of game.

(3) "Commission" means the state game commission.

(4) "Person" means and includes an individual, a corporation, or a group of two or more individuals acting with a common purpose whether acting in an individual, representative, or official capacity.

(5) "Wildlife agent" means a person appointed and commissioned by the director, with authority to enforce laws of this title, rules of the commission, and other statutes as prescribed by the legislature.

(6) "Ex officio wildlife agent" means a commissioned officer of a municipal, county, state, or federal agency having as its primary function the enforcement of criminal laws in general, while the officer is in the appropriate jurisdiction. The term "ex officio wildlife agent" includes fisheries patrol officers, special agents of the national marine fisheries commission, state parks commissioned officers, United States fish and wildlife special agents, department of natural resources enforcement officers, and United States forest service officers, while the agents and officers are within their respective jurisdictions.

(7) "To hunt" and its derivatives means an effort to kill, injure, capture, or harass a wild animal or wild bird.

(8) "To trap" and its derivatives means a method of hunting using devices to capture wild animals or wild birds.

(9) "To fish" and its derivatives means an effort to kill, injure, harass, or catch a game fish.

(10) "Open season" means those times, manners of taking, and areas or waters established by rule of the commission for the lawful hunting, fishing, or possession of game animals, game birds, or game fish. "Open season" includes the first and last days of the established time.

(11) "Closed season" means all times, manners of taking, and areas or waters other than those established as an open season.

(12) "Closed area" means a place where the commission has prohibited by rule the hunting of some species of wild animals or wild birds.

(13) "Closed waters" means all or part of a lake, river, stream, or other body of water, where the commission has prohibited by rule fishing for game fish.

(14) "Game reserve" means a closed area where the commission has prohibited by rule hunting for all wild animals and wild birds.

(15) "Bag limit" means the maximum number of game animals, game birds, or game fish which may be taken, caught, killed, or possessed by a person, as specified by rule of the commission for a particular period of time, or as to size, sex, or species.

(16) "Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state. This includes but is not limited to mammals, birds, reptiles, amphibians, fish, and invertebrates. The term "wildlife" does not include feral domestic mammals, the family Muridae of the order Rodentia (old world rats and mice), or those fish, shellfish, and marine invertebrates classified by the director of fisheries. The term "wildlife" includes all stages of development and the bodily parts of wildlife members.

(17) "Wild animals" means those species of the class Mammalia whose members exist in Washington in a wild state and the species Rana catesbeiana (bullfrog). The term "wild animal" does not include feral domestic mammals or the family Muridae of the order Rodentia (old world rats and mice).

(18) "Wild birds" means those species of the class Aves whose members exist in Washington in a wild state.

(19) "Protected wildlife" means wildlife designated by rule of the commission that shall not be hunted or fished.

(20) "Endangered species" means ((~~wildlife designated by rule of the commission as seriously threatened with extinction~~)) any animal species, native to the state of Washington, that is in danger of extinction or extirpation throughout all or a significant portion of its range within the state, and any species determined to be an "endangered species" under the federal endangered species act.

(21) "Game animals" means wild animals that shall not be hunted except as authorized by rule of the commission.

(22) "Fur-bearing animals" means game animals that shall not be trapped except as authorized by rule of the commission.

(23) "Game birds" means wild birds that shall not be hunted except as authorized by rule of the commission.

(24) "Predatory birds" means wild birds that may be hunted throughout the year as authorized by rule of the commission.

(25) "Deleterious exotic wildlife" means species of the animal kingdom not native to Washington and designated by rule of the commission as dangerous to the environment or wildlife of the state.

(26) "Game farm" means property on which wildlife is held or raised for commercial purposes, trade, or gift. The term "game farm" does not include publicly owned facilities.

(27) "Threatened species" means any animal species, native to the state of Washington, likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range within the state, and, except for species determined by the commission to be endangered species, any species determined to be a "threatened species" under the federal endangered species act.

NEW SECTION. Sec. 2. (1) In addition to those species determined to be endangered or threatened under the federal endangered species act, the commission shall by rule, in accordance with the administrative procedure act, chapter 34.04 RCW, determine whether any species within the state is an endangered or threatened species as a result of any one of the following factors:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overuse for commercial, recreational, scientific, educational, or private purposes;

(d) The inadequacy of existing regulatory mechanisms affecting its continued existence within the state; or

(e) Other natural or manmade factors affecting its continued existence within the state.

(2) The commission shall make determinations required by this section solely on the basis of the best scientific information available and after consultation, as appropriate, with federal agencies, other interested state agencies having a common interest in the species, and interested persons and organizations. In determining whether any species is endangered or threatened, the commission shall take into consideration any actions being carried out or about to be carried out by the federal government, other state agencies, or political subdivisions of this state, or by any other person that may affect the species under consideration.

NEW SECTION. Sec. 3. (1) The commission shall conduct investigations of all species indigenous to this state wherever they occur in order to develop information relating to population, distribution, habitat needs, limiting factors, and other biological and ecological data, and to determine conservation measures and requirements necessary for their survival.

(2) The commission may, at its discretion, withhold from any person information about the distribution, location, and biology of a species if it determines that disclosures of such information would threaten the survival of that or another species in any way.

NEW SECTION. Sec. 4. (1) The commission shall within one year issue rules containing an initial list of all species within the state that it determines, in accordance with sections 2 and 3 of this act, to be endangered species and threatened species and shall periodically revise and amend the list. The list shall refer to the species contained therein by scientific and common name or names, if any. In cases where a conflict exists between common and scientific names, the scientific name shall prevail, and all valid scientific synonyms will be construed to refer to the listed animal.

(2) In accordance with sections 2 and 3 of this act, the commission shall review every five years those species listed as endangered or threatened to determine whether any such species should:

(a) Be removed from the list of endangered species and threatened species;

(b) Be changed in status from an endangered species to a threatened species; or

(3) Review of species that are listed by both the commission under this chapter and the United States department of the interior pursuant to the federal endangered species act shall, to the maximum extent practicable, be conducted in conjunction with the five-year review process of the United States department of the interior.

NEW SECTION. Sec. 5. (1) All state departments and agencies, in consultation with and with the assistance of the commission, shall use their authorities to further the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species, and by taking actions necessary to ensure that any action authorized, funded, or carried out by them will not appreciably reduce the likelihood of the survival or recovery of any endangered species or threatened species within the state.

(2) Consultation under this section shall be conducted whenever the commission determines that a state agency's proposed action may affect an endangered species or threatened species. On the basis of such consultation and the best scientific and commercial data available, the commission shall issue a written finding that indicates whether the proposed action would appreciably reduce the likelihood of the survival or recovery of the species in the state. If the commission concludes that the proposed action would appreciably reduce the likelihood of the survival or recovery of the species, it shall develop, in consultation with the affected state agency, reasonable and prudent alternatives to the proposed project that can be implemented and are consistent with conserving the species, and the state agency shall adopt such reasonable and prudent alternatives.

(3) A state agency may apply for an exemption for such action from the governor if:

(a) Agreement cannot be reached on reasonable and prudent alternatives that can be implemented; and

(b) The action will not appreciably reduce the likelihood of the survival or recovery of the affected species.

(4) The governor shall approve an application for an exemption only if the governor finds that:

(a) The state agency did not make an irreversible or irretrievable commitment of resources after initiation of consultation that has the effect of foreclosing the opportunity for formulating and implementing reasonable and prudent alternatives that will not appreciably reduce the likelihood of the survival or recovery of the species in the state;

(b) The benefits of the action clearly outweigh the benefits of alternative courses of action that will not appreciably reduce the likelihood of the survival or recovery of the species; and

(c) The state agency will require reasonable mitigation and enhancement measures as are necessary and appropriate to minimize the adverse impacts of the action upon the species, including but not limited to, habitat acquisition, restoration, propagation, transplantation, and improvement.

(5) If, after consultation under subsection (2) of this section, the commission concludes that the state agency's proposed action would not appreciably reduce the likelihood of the survival or recovery of an endangered species or threatened species but would result in the incidental taking of such species, the commission shall provide the state agency with a written statement that:

(a) Identifies the impact of such incidental taking on the species;

(b) Identifies those reasonable and prudent measures and alternatives that can be implemented to minimize the impact of the incidental taking on the species; and

(c) Sets forth the terms and conditions, including but not limited to reporting requirements, that must be complied with by the state agency to implement the measures specified under subsection (5)(b) of this section.

(6) The state agency shall implement such reasonable and prudent measures and alternatives, and any taking that is in compliance with the alternatives and measures specified under this subsection shall not be prohibited by this chapter.

NEW SECTION. Sec. 6. This chapter shall be known and may be cited as the "endangered wildlife conservation act."

NEW SECTION. Sec. 7. Sections 2 through 6 of this act shall constitute a new chapter in Title 77 RCW.