Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-14-163.

     Title of Rule and Other Identifying Information: WAC 232-12-275 Wildlife rehabilitation permits, subsection (24) of this rule addresses facility requirements associated with oiled-bird rehabilitation activities. These requirements were adopted in 2004 and represented our understanding at the time of the best available practices for oiled-bird care. Now we have greater knowledge of and technologic improvements for caring for birds contaminated with oil. We need to amend this rule to reflect our knowledge and technology.

     Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on November 7-8, 2008, at 8:30 a.m.

     Date of Intended Adoption: December 12-13, 2008.

     Submit Written Comments to: Brian Edie, Washington Department of Fish and Wildlife, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail ediebge@dfw.wa.gov, fax (360) 902-8126, by October 27, 2008.

     Assistance for Persons with Disabilities: Contact Susan Yeager by October 27, 2008, TTY (360) 902-2207 or (360) 902-2267.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 232-12-275 establishes the process by which an applicant may apply for and receive a permit to rehabilitate wildlife within the state of Washington. Among the various aspects of rehabilitation that are addressed in this rule are facility standards that must be met in order to participate in oiled-bird rehabilitation (subsection (24)). This proposal amends several of the specialized facility needs for oiled-bird care.

     Reasons Supporting Proposal: The agency wants to provide wildlife rehabilitators with the current standards of care related to oiled-bird rehabilitation and to ensure that these standards are implemented.

     Statutory Authority for Adoption: RCW 90.56.110 and 77.12.047.

     Statute Being Implemented: RCW 90.56.110 and 77.12.047.

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

     Name of Proponent: Washington department of fish and wildlife, governmental.

     Name of Agency Personnel Responsible for Drafting: Brian Edie, Habitat Program, Natural Resources Building, 1111 Capitol Way North, Olympia, WA 98502, (360) 902-8123; Implementation: Dave Brittel, Wildlife Program, Natural Resources Building, 1111 Capitol Way North, Olympia, WA 98502, (360) 902-2504; and Enforcement: Bruce Bjork, Enforcement Program, Natural Resources Building, 1111 Capitol Way North, Olympia, WA 98502, (360) 902-2373.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not affect small businesses.

     A cost-benefit analysis is not required under RCW 34.05.328. This rule does not involve hydraulics.

September 30, 2008

Loreva M. Preuss

Rules Coordinator

OTS-1951.1

AMENDATORY SECTION(Amending Order 06-67, filed 4/11/06, effective 5/12/06)

WAC 232-12-275   Wildlife rehabilitation permits.   (1) For the purposes of this rule, the following definitions apply:

     (a) "Bird" means any wild animal of the class Aves.

     (b) "Dedicated workspace" means the minimum amount of floor space necessary to maintain access to oiled bird rehabilitation pens.

     (c) "Drying resources" mean the floor space and pen requirements associated with the removal of water from the skin and feathers of a bird.

     (d) "Imping" means a method of repairing broken feathers.

     (e) "Indoor area" means the space within an oiled bird rehabilitation facility in which the air temperature and exchange of air can be controlled and maintained. Indoor areas may consist of space for: Intake, prewash holding, wash/rinse, drying, oiled bird rehabilitation pools, morgue/necropsy, bird food preparation, storage, freezers, isolation/intensive care unit, medical laboratory, laundry, electrical, and mechanical areas.

     (f) "Intake space" means the minimum amount of floor space necessary to admit live or dead birds into an oiled bird rehabilitation facility.

     (g) "Mesh size" means the measured distance between the centers of the two opposing vertices in the same mesh of a piece of netting when pulled taut.

     (h) "Oil" means oil of any kind and any form, such as petroleum and nonpetroleum oils including, but not limited to, crude oil and refined petroleum products, animal fats and vegetable oil, other oils of animal or vegetable origin, and other nonpetroleum oils.

     (i) "Oiled bird" means a bird that has come in contact with oil.

     (j) "Oiled bird rehabilitation pen" means an enclosure used to hold birds during oiled bird rehabilitation.

     (k) "Oiled bird rehabilitation pool" means a container filled with unheated fresh water used during the rehabilitation of oiled birds.

     (l) "Oiled bird rehabilitation" is a specialized form of wildlife rehabilitation and means the process of caring for oiled birds during intake, prewash holding, washing and rinsing, drying; while in pools; by providing semi-static and static areas; and by maintaining air temperature and air exchange while the birds are in an oiled bird rehabilitation facility.

     (m) "Oiled bird rehabilitation facility" is a type or portion of a wildlife rehabilitation facility and means the contiguous indoor and outdoor areas used for the rehabilitation of oiled birds.

     (n) "Outdoor area" means an area within an oiled bird rehabilitation facility that does not fit the definition of an indoor area.

     (o) "Orphan-imprinting" means to use wildlife for the purpose of feeding, socializing, and teaching appropriate behavior to young wildlife.

     (p) "Prewash holding resources" mean the floor space and oiled bird rehabilitation pen requirements within an oiled bird rehabilitation facility necessary to hold birds after intake and prior to washing.

     (q) "Principal veterinarian" means a licensed veterinarian who provides in writing their willingness to assist the rehabilitator in conducting wildlife rehabilitation activities.

     (r) "Public display" means to place or locate wildlife so that they may be viewed by the public.

     (s) "Semi-static areas" mean dedicated indoor spaces within an oiled bird rehabilitation facility where the required size of the space will vary relative to the number of birds to be rehabilitated. These include areas for bird food preparation, morgue/necropsy, storage, and freezers.

     (t) "Static areas" mean dedicated indoor spaces within an oiled bird rehabilitation facility where the required size of the space does not vary regardless of the number of birds to be rehabilitated. These include areas for the isolation/intensive care unit, medical laboratory, laundry, electrical, and mechanical spaces.

     (u) "Wash/rinse resources" mean the water, cleaning agent, and space requirements necessary to remove oil from the skin and feathers of a bird.

     (v) "Wildlife rehabilitation" means the care and treatment of injured, diseased, oiled, or abandoned wildlife, including, but not limited to, capture, transporting, veterinary treatment, feeding, housing, exercise therapy, and any other treatment or training necessary for release back to the wild.

     (w) "Wildlife rehabilitation facility" means the authorized sites as shown on the wildlife rehabilitation permit where the treatment and rehabilitation takes place.

     (x) "Wildlife rehabilitator" means a person who conducts wildlife rehabilitation or someone who conducts wildlife rehabilitation under the supervision of a valid wildlife rehabilitation permit holder.

     (y) "Wildlife rehabilitation permit" means a permit issued by the director, or director's designee, that authorizes a person, or someone under the supervision of a valid wildlife rehabilitation permit holder, to conduct wildlife rehabilitation.

     (2) It shall be unlawful for any person to possess wildlife for the purpose of rehabilitation unless:

     (a) They have a valid wildlife rehabilitation permit; or

     (b) They are working under the supervision of a person who has a valid wildlife rehabilitation permit.

     (3) A wildlife rehabilitation permit may be issued to a person to conduct or oversee wildlife rehabilitation and is valid so long as the information in the permit remains current, the permit holder continues to meet the conditions and requirements of the permit, and provisions of this rule are followed. Any change to the information on the permit must be reported in writing within ten working days or the permit may be invalidated.

     (4) The director, or director's designee, may issue and condition a wildlife rehabilitation permit if the applicant complies with the following:

     (a) The applicant is either a licensed veterinarian or can demonstrate six months of experience in wildlife rehabilitation, which must include three months during the spring or summer and has a principal veterinarian as a sponsor. The director, or director's designee, may consider education in wildlife rehabilitation as a substitute for experience.

     (b) The applicant must successfully complete a wildlife rehabilitator's examination(s) as prescribed by the director, or director's designee.

     (c) The wildlife rehabilitation facility is inspected by the department and meets the wildlife rehabilitation care and facility standards for wildlife in the Washington State Wildlife Rehabilitation Facility and Care Standards pamphlet. In order for the wildlife rehabilitation permit to allow for the rehabilitation of oiled birds, the facility also needs to meet the requirements in subsection (24) of this section. When facility requirements in subsection (24) of this section conflict with requirements in the Wildlife Rehabilitation Facility and Care Standards pamphlet, subsection (24) of this section shall take precedence.

     (5) The wildlife rehabilitation permit holder must maintain and upon request make available to the department, a wildlife rehabilitation daily ledger. The ledger must include the date the wildlife is received, the species and nature of the illness, the location where the wildlife was found, the date and disposition of the wildlife, the release location, and if any, tags and/or band numbers. It is unlawful for a wildlife rehabilitation permit holder to fail to enter required information in the wildlife rehabilitation ledger within twenty-four hours of the day wildlife is received and on the day of all subsequent activities as required in the ledger.

     (6) The wildlife rehabilitation permit holder must submit to the department no later than January 31 of each year an annual report providing information as required by the director, or director's designee, and a copy of the daily ledger. Violation of this subsection is an infraction, punishable under RCW 77.15.160.

     (7) All permits and records held pursuant to statutes and rules dealing with wildlife rehabilitation will be kept on file at the wildlife rehabilitation facility. The records will be retained for a period of five years.

     (8) A copy of the valid wildlife rehabilitation permit must be in possession of any person possessing or transporting wildlife for the wildlife rehabilitation facility.

     (9) The wildlife rehabilitation permit holder will notify the department within twenty-four hours of receiving a state or federal endangered or threatened species or an oiled bird; within seventy-two hours of receiving a state sensitive species or marked, tagged, or banded wildlife; and prior to release of threatened or endangered species or oiled birds. The release notification information relative to oiled birds shall include the number of birds being released, the species of birds being released, the proposed location of the release, and the proposed date/time of release.

     (10) The wildlife rehabilitation permit holder will notify the department within twenty-four hours after the death of an oiled bird or a state or federal endangered or threatened species; or as soon as an endangered or threatened species is determined to be nonreleasable to the wild. Oiled birds or endangered or threatened species will not be disposed of or euthanized without prior department approval.

     (11) Rehabilitated wildlife may be banded or otherwise identified by the department.

     (12) The wildlife rehabilitation permit holder will notify the department, within five working days from the date of death, of any wildlife known to have died of the following diseases: Avian cholera, avian pox, duck viral enteritis, environmental contaminants, ornithosis, Newcastle's disease, rabies, canine distemper or tuberculosis (in species other than birds).

     (13) Rehabilitated wildlife will be released as soon as possible into its proper habitat in the same area as recovered, except as provided by written authorization from the director or director's designee. Rehabilitated oiled birds shall only be released in the same area as recovered when the threat of becoming reoiled no longer exists. If the area that they were recovered in is not clean enough to allow for their release at that location, department approval is required prior to releasing rehabilitated oiled birds in another location.

     (14) It is unlawful to hold wildlife for longer than one hundred eighty days, except as provided by written authorization from the director, or director's designee.

     (15) Dead wildlife, excluding oiled birds, will be disposed of through deposit at an approved Washington state university or college, a permitted research project or through burial, incineration, or a licensed rendering facility. The wildlife rehabilitation permit holder shall notify the department when in possession of dead oiled birds. Dead oiled birds shall not be disposed of without prior department approval.

     (16) It is unlawful to publicly display wildlife while it is undergoing rehabilitation.

     (17) It is unlawful to retain wildlife for the purpose of orphan imprinting or to retain feathers of protected or endangered wildlife for the purpose of "imping," except as provided by written authorization from the director, or director's designee.

     (18) It is unlawful for wildlife being held for rehabilitation to be used for propagation.

     (19) Wildlife being held for the purposes of rehabilitation must be kept separate from wildlife held under other licenses and domestic animals, except as provided by written authorization from the director, or director's designee.

     (20) The wildlife rehabilitation permit holder may receive from the department and possess at the wildlife rehabilitation facility, dead wildlife for the purpose of feeding wildlife being rehabilitated.

     (21) Fish and wildlife enforcement officers may inspect at reasonable times and in a reasonable manner the wildlife, permits, records, and wildlife rehabilitation facility of any wildlife rehabilitator.

     (22) Any wildlife rehabilitation permit holder who fails to comply with any condition within the holder's permit or any provision of this rule is in violation of the permit and the permit may be revoked. Any wildlife rehabilitation permit holder found in violation of the permit conditions, with the exception of oiled bird facility requirements, may provide to the department a plan for corrective action, within ten days, to return to compliance. Any wildlife rehabilitation permit holder with an acceptable plan for corrective action to violations other than oiled bird facility requirements will be given a minimum of thirty days to correct a permit violation prior to revocation. Wildlife rehabilitation permit holders found in violation of oiled bird rehabilitation facility requirements shall correct these violations within twenty-four hours to avoid revocation of their authorization to rehabilitate oiled birds.

     (23) All wildlife held by a wildlife rehabilitation permit holder remains the property of the state, is subject to control by the state and will not be offered for sale or sold.

     (24) Oiled bird rehabilitation facility requirements((:)). The facility requirements listed in this subsection address oiled bird health and safety. The department of labor and industries and other government agencies may have additional requirements relating to human health and safety.

     (a) Air temperature and air exchange requirements: This section refers to the air temperature and air exchange requirements within indoor areas.

     (i) Air temperature: All indoor areas shall have the means to control air temperature and shall be adjustable and maintainable at any given air temperature between 65°F - 85°F. When the number of birds in an oiled bird rehabilitation facility at a given time exceeds fifty, the following shall also apply:

     (A) Intake and prewash holding areas shall be air temperature controlled independently of other oiled bird rehabilitation facility areas but may be controlled together;

     (B) Wash/rinse and drying areas shall be air temperature controlled independently of other oiled bird rehabilitation facility areas but may be controlled together; and

     (C) The isolation/intensive care unit shall be air temperature controlled independently of other oiled bird rehabilitation facility areas.

     (ii) Air exchange: All indoor areas shall have the means to exchange the air volume a minimum of ten times per hour with fresh air from outside.

     The fresh air exchange rate for any given indoor area may be reduced by the use of an air recirculation system that employs a high efficiency particulate air (HEPA) filter and an activated carbon filter. The volume of air filtered by the recirculation system may replace an equal volume of air in the fresh air exchange requirement. No more than ninety percent of the fresh air exchange requirement shall be met by recirculation. The filters in the recirculation system shall be maintained in accordance with the manufacturer's recommendations. When the number of birds in an oiled bird rehabilitation facility at a given time exceeds fifty, the following shall also apply:

     (A) Intake and prewash holding areas may be combined on the same air exchange system. Air exchange systems in the intake and prewash holding areas shall be independent of other oiled bird rehabilitation facility air exchange systems; and

     (B) Wash/rinse and drying areas may be combined on the same air exchange system. Air exchange systems in the wash/rinse and drying areas shall be independent of other oiled bird rehabilitation facility air exchange systems; and

     (C) The isolation/intensive care unit air exchange system shall be independent of other oiled bird rehabilitation facility areas; and

     (D) The morgue/necropsy air exchange system shall be independent of other oiled bird rehabilitation facility areas.

     (b) Intake space requirement: Intake shall occur in an indoor area. Forty square feet of contiguous floor space shall be provided for each group of sixty live or dead oiled birds, or portion of each group of sixty, that have been collected and are awaiting intake. The floor of the intake space shall be impermeable. Water shall not be allowed to accumulate on the floor.

     (c) Prewash holding resource requirements: Prewash holding shall occur in an indoor area. Oiled bird rehabilitation pen space and the associated dedicated workspace shall be provided in the prewash holding area.

     (i) Oiled bird rehabilitation pen requirements: Prewash oiled bird rehabilitation holding pens shall be no smaller than two feet in length by two feet in width; and a minimum of two feet high. Prewash oiled bird rehabilitation holding pens shall be constructed with knotless nylon net-bottoms with a stretched mesh size of one-half inch and shall provide 1.6 square feet of pen space per bird. Oiled bird rehabilitation holding pens shall be constructed in a manner such that no point within the pen is greater than two feet from a pen wall. Oiled bird rehabilitation holding pens shall be elevated a minimum of twelve inches above the floor surface.

     (ii) Space requirements: In addition to the space required for prewash oiled bird rehabilitation holding pens, an additional 3.2 square feet of dedicated workspace shall be provided in the prewash holding area for each bird held in the prewash holding area. The floor of the prewash holding area shall be impermeable. Water shall not be allowed to accumulate on the floor.

     (d) Wash/rinse resource requirements: Wash/rinse shall occur in an indoor area. A bird shall be provided wash/rinse space and associated resources within twenty-four hours after intake.

     (i) Water requirements: A minimum of three hundred gallons of fresh water with the following characteristics shall be made available within each wash/rinse space for each oiled bird being washed and rinsed:

     (A) The water temperature shall be ((maintained)) adjustable and maintainable at any given temperature between ((104)) 102°F - ((106)) 108°F;

     (B) The water hardness shall be maintained between ((30)) 34 mg - ((50)) 85 mg calcium carbonate/liter (2-((3)) 5 grain hardness);

     (C) The water pressure shall be maintained between 40-60 p.s.i. ((at a));

     (D) The water flow rate shall be not less than ((six)) two gallons per minute from the wash/rinse supply line measured with the wash/rinse nozzle in place.

     (E) All water requirements listed above shall remain within the specified ranges at all times.

     (ii) Cleaning agent requirements: Liquid dishwashing detergents are the only cleaning agents that shall be used to remove oil from birds. ((Other detergents, including, but not limited to, machine dishwasher soaps and detergents, hand soaps, powdered products, and antibacterial dishwashing detergents shall not be used.))

     (iii) Space requirements: One hundred square feet of contiguous floor space shall be provided for each group of sixteen live oiled birds, or portion of each group of sixteen, that are ready to be washed and rinsed. The floor of the wash/rinse area shall be impermeable. Water shall not be allowed to accumulate on the floor.

     (e) Drying resource requirements: Drying shall occur in an indoor area. Oiled bird rehabilitation pen space and the associated dedicated workspace shall be provided in the drying area. Drying shall be accomplished by warming the air in the drying pen ((to)). The drying temperature shall be adjustable and maintainable at any given temperature between 90°F - ((95)) 106°F.

     (i) Oiled bird rehabilitation drying pen requirements: Oiled bird rehabilitation drying pens shall be no smaller than three feet in length by two feet in width; and a minimum of two feet high. Oiled bird rehabilitation drying pens shall be constructed with knotless nylon net-bottoms with a stretched mesh size of one-half inch and shall provide 2.7 square feet of pen space per bird. Each oiled bird rehabilitation pen shall be constructed in a manner such that no point within the pen is greater than two feet from a pen wall. Oiled bird rehabilitation drying pens shall be elevated a minimum of twelve inches above the floor surface. If prewash oiled bird rehabilitation holding pens meet the criteria for use as oiled bird rehabilitation drying pens and are used in the drying process, they must be cleaned of oil residue prior to use.

     (ii) Space requirements: In addition to the space required for oiled bird rehabilitation drying pens, an additional 3.2 square feet of dedicated workspace shall be provided in the drying area for each bird held in the drying area. The floor of the drying area shall be impermeable. Water shall not be allowed to accumulate on the floor.

     (f) Oiled bird rehabilitation pool resource requirements: Oiled bird rehabilitation pools shall be filled with unheated fresh water. Oiled bird rehabilitation pool space shall be provided immediately after a bird has been dried, and shall be provided until the bird is released.

     (i) Oiled bird rehabilitation pool requirements: ((Oiled bird rehabilitation pool water shall be a minimum of four feet deep.)) Each bird shall be afforded a minimum of 7.5 square feet of water surface space (e.g., a twelve-foot diameter oiled bird rehabilitation pool shall house not more than fifteen birds). Each oiled bird rehabilitation pool shall be of dimensions such that no point within the pool is greater than eight feet from a side of the pool. In addition, each oiled bird rehabilitation pool shall have a breathable cover to prevent birds from escaping. Each oiled bird rehabilitation pool shall be constantly supplied with water sufficient to maintain a depth of ((four)) three feet and an exchange rate of not less than four and one-quarter times per day. Water exiting the oiled bird rehabilitation pool shall come from the surface of the pool so that floating debris and oil are removed. Water from oiled bird rehabilitation pools may be reused within a facility if made oil free.

     (ii) Space requirements: Oiled bird rehabilitation pools shall be within the oiled bird rehabilitation facility. Oiled bird rehabilitation pools shall be no closer than four feet from another structure.

     (g) Semi-static areas:

     (((i))) Space requirements: Semi-static areas shall be indoor areas. The floors in semi-static areas shall be impermeable. Water shall not be allowed to accumulate on the floor. When the total number of birds in an oiled bird rehabilitation facility, on a given day, is less than fifty, there are no minimum space requirements for semi-static areas. When the total number of birds in an oiled bird rehabilitation facility, on a given day, is between fifty and one thousand, each semi-static area listed in Table 1 shall be allocated the associated space. When the total number of birds in an oiled bird rehabilitation facility, on a given day, is between one thousand one and two thousand, each semi-static area listed in Table 1 shall be allocated two times the associated space, and, when the total number of birds in the oiled bird rehabilitation facility, on a given day, is between two thousand one and three thousand, each semi-static area listed in Table 1 shall be allocated three times the associated space, etc. Space for the semi-static areas listed in Table 1 shall be accommodated within an oiled bird rehabilitation facility with the exception of the morgue/necropsy.

     (((i))) Space requirements: Static areas shall be indoor areas. The floors in static areas shall be impermeable. Water shall not be allowed to accumulate on the floor. When the total number of birds in an oiled bird rehabilitation facility, on a given day, is less than fifty, there are no minimum space requirements for static areas. When the number of birds in an oiled bird rehabilitation facility, on a given day, exceeds fifty, each static area listed in Table 2 shall be allocated the associated space. All of the space associated with the areas listed in Table 2 shall be accommodated within an oiled bird rehabilitation facility with the exception of the laundry.

[Statutory Authority: RCW 77.12.047. 06-09-021 (Order 06-67), § 232-12-275, filed 4/11/06, effective 5/12/06. Statutory Authority: RCW 77.12.047 and 90.56.110. 04-20-020 (Order 04-250), § 232-12-275, filed 9/27/04, effective 10/28/04. Statutory Authority: RCW 77.12.040. 98-01-210 (Order 97-251), § 232-12-275, filed 12/23/97, effective 1/23/98. Statutory Authority: RCW 77.12.040, 77.12.700 and 77.12.010. 96-12-045, § 232-12-275, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 77.12.030 and 77.12.040. 88-09-036 (Order 308), § 232-12-275, filed 4/15/88.]

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