WSR 04-05-110

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed February 18, 2004, 10:13 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-01-187.

Title of Rule: WAC 232-12-014 Wildlife classified as endangered species.

Purpose: To amend WAC 232-12-014 Wildlife classified as endangered species.

Statutory Authority for Adoption: RCW 77.12.020.

Statute Being Implemented: RCW 77.12.020.

Summary: Adds the killer whale to the list of endangered species in Washington.

Reasons Supporting Proposal: Killer whales are distributed throughout the marine waters of Washington. Four genetically distinct populations are recognized and are referred to as southern residents, northern residents, transients, and offshores. These populations rarely interact and do not interbreed despite having largely sympatric year-round geographic ranges that extend into British Columbia and other areas along the west coast of North America. Southern resident and transient killer whales are the only populations that regularly enter the state's coastal waters, whereas offshore whales mainly inhabit open ocean off the outer coast. Northern residents are rare visitors to the state.

The southern resident population is comprised of three pods (identified as J, K, and L pods) and is most familiar to the general public. It occurs primarily in the Georgia Basin and Puget Sound from late spring to fall, when it typically comprises the majority of killer whales found in Washington. Southern resident population trends are unknown before 1960, when roughly eighty whales were present, but is quite likely that numbers were at a depleted level due to indiscriminate shooting by fishermen. The population is believed to have recovered somewhat during the early and mid-1960s, but live-captures for aquaria removed or killed at least forty-seven of the whales during the 1960s and 1970s. The population has been closely monitored since 1974, with exact numbers of animals and other demographic details learned through annual photo-identification surveys. Numbers increased from seventy to ninety-eight whales between 1974 and 1995, but this was followed by a rapid net loss of eighteen animals, or 18% of the population, from 1996 to 2001. J and K pods have generally maintained their numbers during the decline, with both equaling or exceeding their largest recorded sizes as of September 2003. However, L pod, which comprises about half of the southern resident population, has been in sharp decline since 1994 and shows no strong sign of reversing this trend. This pod's decline is especially worrisome because it involves both increased mortality of members and a reduction in birth rates.

Factors that may be threats to the population include prey abundance, contaminants, and disturbance. First the southern residents have experienced large historic declines in their main prey, salmon. Overall salmon abundance has remained relatively stable or been increasing in Puget Sound and the Georgia Basin during the past several decades and therefore may not be responsible for the decline in L pod since 1996. However, a lack of concise information on the status of all salmon runs in the range of the southern residents makes the threat of reduced prey availability difficult to dismiss. Second, recent studies have revealed the transient and southern resident whales are heavily contaminated with organochlorine pollutants, primarily PCBs and DDT residues. Both populations are now considered as among the most highly contaminated marine mammals in the world. Lastly, increasing public interest in killer whales has fueled tremendous growth in whale watching in and around the San Juan Islands during the past two decades. As a result, southern resident whales are now followed by significant numbers of commercial and private vessels during much or all of the day when residing in this portion of their range.

While it is unknown which of these threats are most significant to the whales, it may well be that a combination of threats are working to harm the animals, especially L pod. Because of the low population numbers, steep declines in L pod, and combination of threats to the population, the species is in danger of extirpation in Washington and it is recommended that they be added to the state's list of endangered species. The southern resident killer whales are listed as endangered in Canada and as a depleted stock by NOAA fisheries under the federal Marine Mammal Protection Act. They are also under a second review to be listed under the federal Endangered Species Act. The species will require special management considerations and development of a recovery plan in order to restore it to viable population levels.

Name of Agency Personnel Responsible for Drafting and Implementation: Dave Brittell, Assistant Director, Natural Resources Building, Olympia, (360) 902-2504; and Enforcement: Bruce Bjork, Assistant Director, Natural Resources Building, Olympia, (360) 902-2932.

Name of Proponent: Washington Fish and Wildlife Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 232-12-014 identifies species of wild animals to be managed by the Department of Fish and Wildlife as endangered species. This amendment adds the killer whale as a state endangered species. Endangered species are in need of special management consideration to recover populations to healthy levels and to keep them from being extirpated from Washington. Land managing agencies and local, state, and federal governments may use these lists to consider the needs of species of special concern in land management decisions.

Proposal Changes the Following Existing Rules: Adds the killer whale to the list of endangered species in Washington.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not affect small business.

RCW 34.05.328 does not apply to this rule adoption. Not hydraulics rules.

Hearing Location: Red Lion Hotel "At the Park," 303 West North River Drive, Spokane, WA 99201, phone (509) 326-8000, on April 2-3, 2004, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Susan Yeager by March 29, 2004, TDD (360) 902-2207 or (360) 902-2267.

Submit Written Comments to: Washington Department of Fish and Wildlife, Attn: Wildlife Program April Meeting Public Comments, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2162, by March 12, 2004.

Date of Intended Adoption: April 2, 2004.

February 18, 2004

Evan Jacoby

Rules Coordinator


AMENDATORY SECTION(Amending Order 02-98, filed 5/10/02, effective 6/10/02)

WAC 232-12-014   Wildlife classified as endangered species.   Endangered species include:


Common Name Scientific Name
pygmy rabbit Brachylagus idahoensis
fisher Martes pennanti
gray wolf Canis lupus
grizzly bear Ursus arctos
sea otter Enhydra lutris
killer whale Orcinus orca
sei whale Balaenoptera borealis
fin whale Balaenoptera physalus
blue whale Balaenoptera musculus
humpback whale Megaptera novaeangliae
black right whale Balaena glacialis
sperm whale Physeter macrocephalus
Columbian white-tailed

deer

Odocoileus virginianus leucurus
woodland caribou Rangifer tarandus caribou
American white pelican Pelecanus erythrorhynchos
brown pelican Pelecanus occidentalis
sandhill crane Grus canadensis
snowy plover charadrius alexandrinus
upland sandpiper Bartramia longicauda
spotted owl Strix occidentalis
western pond turtle Clemmys marmorata
leatherback sea turtle Dermochelys coriacea
mardon skipper Polites mardon
Oregon silverspot

butterfly

Speyeria zerene hippolyta
Oregon spotted frog Rana pretiosa
northern leopard frog Rana pipiens

[Statutory Authority: RCW 77.12.047, 77.12.655, 77.12.020. 02-11-069 (Order 02-98), 232-12-014, filed 5/10/02, effective 6/10/02. Statutory Authority: RCW 77.12.040, 77.12.010, 77.12.020, 77.12.770, 77.12.780. 00-04-017 (Order 00-05), 232-12-014, filed 1/24/00, effective 2/24/00. Statutory Authority: RCW 77.12.020. 98-23-013 (Order 98-232), 232-12-014, filed 11/6/98, effective 12/7/98; 97-18-019 (Order 97-167), 232-12-014, filed 8/25/97, effective 9/25/97; 93-21-026 (Order 616), 232-12-014, filed 10/14/93, effective 11/14/93. Statutory Authority: RCW 77.12.020(6). 88-05-032 (Order 305), 232-12-014, filed 2/12/88. Statutory Authority: RCW 77.12.040. 82-19-026 (Order 192), 232-12-014, filed 9/9/82; 81-22-002 (Order 174), 232-12-014, filed 10/22/81; 81-12-029 (Order 165), 232-12-014, filed 6/1/81.]

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