AN ACT Relating to endangered species; adding a new chapter to Title 79 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. The legislature finds and declares that:

(1) It is the policy of this state to protect species of plants for scientific purposes and to ensure their perpetuation as viable components of their ecosystems for the benefit of the people of Washington state;

(2) Species of plants within this state and the nation that are endangered, threatened, or otherwise reduced in number or may become so because of destruction, modification, or severe curtailment of their habitats, or because of exploitation for commercial, scientific, educational, or private use, should be accorded protection as is necessary to maintain and enhance their numbers; and

(3) This state shall assist in the protection of species of plants that are determined to be endangered or threatened by prohibiting the taking, transportation, processing, sale or offer for sale, barter or trade, exportation from this state, or shipment within this state of such species without required and valid federal and state permits.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Commercial" means all types of activities, uses, and purposes of an industrial or trade nature including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of such buying and selling and barter and exchange.

(2) "Commissioner" means the commissioner of public lands.

(3) "Conserve," "conserving," and "conservation" mean to use and the use of all methods and procedures that are necessary to bring any species to the point at which the measures provided under this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as habitat acquisition and maintenance, research, census, law enforcement, propagation, transplantation, and nursery inspections.

(4) "Department" means the department of natural resources.

(5) "Endangered species" means any species of plant that is in danger of extinction throughout all or a significant portion of its range within the state, or any species determined to be an endangered species under the endangered species act.

(6) "Endangered species act," means the federal endangered species act of 1973, Public Law 93-205 (87 Stat. 884), as amended.

(7) "Person" means an individual, corporation, company, association, society, firm, partnership, joint stock company, and any department or instrumentality of the federal government, of any state or political subdivision thereof, or of any foreign government.

(8) "Plant" means any member of the plant kingdom, including algae, fungi, bryophytes and vascular plants, as well as seeds, roots, and other parts thereof.

(9) "Species" includes any species, subspecies, or variety of plant.

(10) "Take" means to pick, collect, cut, transplant, uproot, dig, remove, damage, destroy, trample, kill or otherwise disturb, or to attempt to engage in any such conduct.

(11) "Threatened species" means any species of plant likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range within the state, or any species of plant determined to be a threatened species under the federal endangered species act.

NEW SECTION. Sec. 3. (1) In addition to those plant species determined to be endangered or threatened under the federal endangered species act, the department shall by rule, in accordance with the administrative procedure act, chapter 34.04 RCW, determine whether any species of plant 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 department 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 department 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. 4. (1) The department shall conduct, support, or encourage 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 department 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. 5. (1) The department shall within one year issue rules containing an initial list of all species within the state that it determines, in accordance with sections 3 and 4 of this act, to be endangered or threatened, 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.

(2) In accordance with sections 3 and 4 of this act, the department 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 or 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 department 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. 6. The department shall expeditiously determine whether any plant species should be added to or removed from the list of endangered or threatened species, except with respect to those species of plants determined to be endangered or threatened under the federal endangered species act, upon the presentation of substantial evidence in the petition of any interested party. The department shall issue regulations implementing this section.

NEW SECTION. Sec. 7. (1) Notwithstanding sections 3 through 6 of this act, the department shall adopt a rule that adds a species to the list of endangered or threatened species as an emergency rule if it determines that there is a significant threat to the continued existence of the species within the state.

(2) Adoption of an emergency rule shall follow the procedures prescribed in the administrative procedure act, chapter 34.04 RCW.

NEW SECTION. Sec. 8. The department may, by rule, treat any species as an endangered species or threatened species even though it is not listed under section 3 of this act if it finds that:

(1) The species so closely resembles in appearance a species that is listed that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;

(2) The effect of this substantial difficulty is an additional threat to an endangered species or threatened species; and

(3) Such treatment of an unlisted species will substantially facilitate the enforcement and further the intent and policy of this chapter.

NEW SECTION. Sec. 9. The department shall establish programs necessary for the conservation of endangered species and threatened species, and shall use all vested authority to carry out the provisions of this chapter. The department may issue rules necessary to carry out the provisions and purposes of this chapter.

NEW SECTION. Sec. 10. (1) All state departments and agencies, in consultation with and with the assistance of the commissioner, 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 department 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 department 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 department concludes that the proposed action would appreciably reduce the likelihood of the survival or recovery of the species, it shall specify 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) If there are no reasonable and prudent alternatives that can be implemented and will not appreciably reduce the likelihood of the survival or recovery of the affected species, the state agency may apply for an exemption for such action from the governor. 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.

(4) If, after consultation under subsection (2) of this section, the department 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 n the incidental taking of such species, the department shall provide the state agency with a written statement that:

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

(b) Identifies those reasonable and prudent measures and alternatives that can be implemented to minimize the impact of 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 (4)(b) of this section.

(5) 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. 11. (1) Except as provided in subsections (2) and (3) of this section and section 12 of this act, it is unlawful for any person to:

(a) Take any endangered or threatened plant species within the state;

(b) Sell or offer for sale, import, export, deliver, receive, carry, transport, or ship, in intrastate or interstate commerce, by any means whatsoever, any endangered or threatened species; or

(2) Nothing in this chapter, or any rules adopted under it, with respect to the importation or exportation of, or interstate or foreign commerce in, any endangered species or threatened species, may (a) prohibit what is authorized under an exemption or permit provided for by the federal endangered species act or in any rule implementing that act, or (b) permit what is prohibited by the federal endangered species act or by any rule that implements that act.

(3) Nothing in this chapter or any rules adopted under it may prohibit entry into, or transportation through, this state of any endangered species or threatened species in accordance with the terms of any permit issued under the laws of another state.

NEW SECTION. Sec. 12. (1) The department may permit, under such terms and conditions as it shall prescribe, any act otherwise prohibited by section 11 of this act for scientific purposes that will enhance the propagation or survival of the affected species.

(2) The department may permit, under such terms and conditions as it shall prescribe, any taking otherwise prohibited by section 11 of this act if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. No permit may be issued by the department authorizing any incidental taking unless the applicant submits to the department a conservation plan that specifies:

(a) The impact that will likely result from such taking;

(b) What steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;

(c) What alternative actions to such taking the applicant considered and the reasons why such alternatives are not being considered; and

(d) Such other measures that the department may require as being necessary or appropriate for the purposes of the plan.

(3) The department may issue such permit only if it finds that reasonable and prudent measures and alternatives will be implemented so that the proposed action will not appreciably reduce the likelihood of the recovery of the species in the state and if the applicant has obtained written consent from the owner of the land upon which the species occurs and from any person having a bona fide property interest therein. The department shall:

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

(b) Specify reasonable and prudent measures and alternatives that can be implemented so that the proposed action will not appreciably reduce the likelihood of the recovery of the species in the state; and

(c) Set forth the terms and conditions, including but not limited to reporting requirements, with which the applicant must comply to implement the measures and alternatives specified under (b) of this subsection.

(4) The applicant shall implement such reasonable and prudent measures and alternatives through an adequately funded conservation plan, and the department shall revoke any permit issued under this subsection if it finds that the permittee is not complying with the terms and conditions of the permit.

NEW SECTION. Sec. 13. (1) Any person may commence a civil suit on his or her own behalf:

(a) To enjoin any person, including the United States and any other government instrumentality or agency, to the extent permitted by applicable law, who is alleged to be in violation of any provision of this chapter or any rule adopted under it;

(b) To compel the department to apply the prohibitions set forth in or authorized in section 11(1) of this act with respect to the taking of any endangered species or threatened species within this state; or

(c) Against the department where there is alleged a failure of the department to perform any act or duty that is not discretionary with the department.

(2) No action may be commenced under this section before ten days after the department has received written notice of any alleged violation or alleged failure to enforce the provisions of this chapter or any rule adopted under it.

NEW SECTION. Sec. 14. (1) Any person who violates the provisions of this chapter or the rules promulgated thereunder, or fails to procure any permit required by section __ of this act, or who violates the terms of any such permit is guilty of a gross misdemeanor and shall be punished by a fine of not less than two hundred fifty dollars and not more than one thousand dollars or by imprisonment in the county jail for not less than thirty days and not more than one year or by both the fine and imprisonment. Each subsequent violation within a five-year period shall be prosecuted and punished as a class C felony as defined in RCW 9A.20.020. In connection with each such felony prosecution, the department shall provide the court with an inventory of all articles or devices seized under this title in connection with the violation.

(2) The commission of a prohibited act with respect to each plant shall, pursuant to this section, constitute a separate violation.

NEW SECTION. Sec. 15. (1) Any wildlife agent, any law enforcement officer, each sheriff in that sheriff's respective county, any police officer of any country or municipality, and each member of the state police shall have the authority to enforce this chapter and may:

(a) Conduct searches as provided by law, and execute a warrant to search for and seize any equipment, business records, merchandise, plants taken, possessed, transported, sold, offered for sale, bartered, shipped, or otherwise used in connection with any violation of this chapter;

(b) Arrest any person, without a warrant, whom the officer has probable cause to believe is violating this chapter, any rule promulgated pursuant thereto, or any permit issued pursuant thereto; and

(c) At the time of arrest of any person in connection with any violation, search the person, premises, or business records and seize any plants, records, or property taken, or used in connection with any violation.

(2) Any warrant for the arrest of a person shall be issued upon sworn complaint, the same as in other criminal cases, and any search warrant shall issue upon a written showing of probable cause, supported by oath or affirmation, describing the places to be searched or the person or things to be seized.

(3) Equipment, merchandise, plants, or records seized under subsection (1) of this section shall be held by any law enforcement officer pending disposition of court proceedings, and thereafter shall be forfeited to the state for disposition as the department may deem appropriate. The department may direct the transfer of plants so seized to a qualified biological, botanical, educational, or scientific institution for identification, safekeeping, and preservation for court proceedings. Upon conviction of the person or persons from whom the seizure was made, the court shall assess the costs of transfer and safekeeping to the defendant and declare all plant materials seized forfeited to this state. Such items shall be deposited in a herbarium approved by the department or, if alive, used for scientific, propagative, or educational purposes or returned to their wild habitat.

NEW SECTION. Sec. 16. This chapter shall be known and may be cited as the plant protection act of 1986.

NEW SECTION. Sec. 17. Sections 1 through 16 of this act shall constitute a new chapter in Title 79 RCW.