PROPOSED RULES
FISH AND WILDLIFE
Original Notice.
Preproposal statement of inquiry was filed as WSR 10-24-088.
Title of Rule and Other Identifying Information: Amend WAC 232-12-292 Bald eagle protection rules.
Hearing Location(s): Spokane Convention Center, 334 West Spokane Falls Boulevard, Spokane, WA 99201, (509) 279-7000, on March 4-5, 2011, at 8:30 a.m.
Date of Intended Adoption: April 8-9, 2011.
Submit Written Comments to: Wildlife Program Commission Meeting Public Comments, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail Wildthing@dfw.wa.gov, fax (360) 902-2162, by Wednesday, February 9, 2011.
Assistance for Persons with Disabilities: Contact Susan Galloway by February 28, 2011, TTY (800) 833-6388 or (360) 902-2267.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This amendment would delete the requirement for a bald eagle management plan unless the bald eagle is listed as endangered or threatened in Washington state. Responsibility for bald eagle management would be shifted to the United States Fish and Wildlife Service (USFWS).
The bald eagle protection rule was established by the fish and wildlife commission in 1986 to ensure habitat protection for bald eagles. Currently this rule requires agencies (e.g. DNR, local governments) that issue permits for timber harvest, building or land development to review a database of bald eagle nest and communal roost locations before issuing a permit. If a nest or communal roost is determined to be on the property proposed for development, then a bald eagle management plan between Washington department of fish and wildlife (WDFW) and the landowner is developed to help ensure minimal impact on bald eagles. In 2007, the bald eagle was removed from the federal endangered species list. Following the federal delisting, the state status for bald eagle was downlisted from endangered to sensitive in Washington.
The proposed action would shift bald eagle management to the USFWS, which has continuing authority and obligation to manage this species under the Bald and Golden Eagle Protection Act. Landowners who currently have a bald eagle management plan would need to review their activities with USFWS to determine if a federal permit would be required; any landowners who need a new or revised permit would be referred directly to the USFWS.
Reasons Supporting Proposal: WDFW recognizes that bald eagle recovery has occurred and that for this reason emphasis on site-specific bald eagle habitat management should be reduced. The substantial reduction in bald eagle management efforts has been identified as an opportunity for wildlife and habitat programs to shift focus to more pressing issues.
Statutory Authority for Adoption: RCW 77.12.047.
Statute Being Implemented: RCW 77.12.047.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington fish and wildlife commission, governmental.
Name of Agency Personnel Responsible for Drafting and Implementation: Nate Pamplin, Natural Resources Building, Olympia, (360) 902-2693; and Enforcement: Bruce Bjork, Natural Resources Building, Olympia, (360) 902-2373.
No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules do not directly regulate small business.
A cost-benefit analysis is not required under RCW 34.05.328. Not hydraulics rules.
January 19, 2011
Lori Preuss
Rules Coordinator
OTS-3843.1
AMENDATORY SECTION(Amending Order 01-283, filed 12/28/01,
effective 1/28/02)
WAC 232-12-292
Bald eagle protection rules.
Purpose
1.1 The purpose of these rules is to protect the habitat and
thereby maintain the population of the bald eagle ((so
that the species is not)) when they are classified as
threatened((,)) or endangered ((or sensitive)) in
Washington state. This can best be accomplished by
promoting cooperative efforts to manage for eagle habitat
needs through a process which is sensitive to the
landowner goals as well. The following rules are
designed to promote such cooperative management when the
bald eagle is classified as threatened or endangered.
Authority
2.1 These rules are promulgated pursuant to RCW 77.12.655.
Definitions
3.1 "Communal roost site" means all of the physical features
surrounding trees used for night roosting that are
important to the suitability of the roost for eagle use. These features include flight corridors, sources of
disturbance, trees in which eagles spend the night, trees
used for perching during arrival or departure and other
trees or physical features, such as hills, ridges, or
cliffs that provide wind protection.
3.2 "Cultural activities" means activities conducted to
foster the growth of agricultural plants and animals.
3.3 "Department" means department of fish and wildlife.
3.4 "Endangered" means a species which is seriously
threatened with extirpation throughout all or a
significant portion of its range within Washington.
3.5 "Government entities" means all agencies of federal,
state and local governments.
3.6 "Landowner" means any individual, private, partnership,
nonprofit, municipal, corporate, city, county, or state
agency or entity which exercises control over a bald
eagle habitat whether such control is based on legal or
equitable title, or which manages or holds in trust land
in Washington state.
3.7 "Nest tree" means any tree that contains a bald eagle
nest or has contained a nest.
3.8 "Nest site" means all of the physical features
surrounding bald eagle nests that are important to normal
breeding behavior. These features include alternate and
potential nest trees, perch trees, vegetative screening,
foraging area, frequently used flight paths, and sources
of disturbance. This site is also referred to as the
territory defended by a breeding pair of eagles.
3.9 "Perch tree" means a tree that is consistently used by
eagles. It is often close to a nest or feeding site and
is used for resting, hunting, consumption of prey, mating
display and as a sentry post to defend the nest.
3.10 "Predacides" means chemicals used to kill or control
problem wildlife.
3.11 "Region" means an ecological/geographic area that
forms a unit with respect to eagles, e.g., Hood Canal,
lower Columbia River, outer coast and south Puget Sound.
3.12 "Sensitive" means any wildlife species native to the
state of Washington that is vulnerable or declining and
is likely to become endangered or threatened in a
significant portion of its range within the state without
cooperative management or removal of threats.
3.13 "Site management plan" means a legal agreement
between the department and the landowner for management
of a bald eagle nest or roost site. This plan may be a
list of conditions on a permit or a more detailed,
site-specific plan.
3.14 "Threatened" means a species that could become
endangered within Washington without active management or
removal of threats.
Applicability and operation
4.1 The department shall make available to other governmental
entities, interest groups, landowners and individuals
information regarding the location and use pattern of
eagle nests and communal roosts.
4.2 The department shall itself and through cooperative
efforts (such as memoranda of understandings pursuant to
chapter 39.34 RCW) work with other government agencies
and organizations to improve the data base for nest and
communal roost site activity and productivity and to
protect eagle habitats through site management plans.
4.3 The department's goal shall be to identify, catalog and
prioritize eagle nest or communal roost sites. The
department shall notify permitting agencies of nesting or
roost site locations.
4.4 When a landowner applies for a permit for a land-use
activity that involves land containing or adjacent to an
eagle nest or communal roost site, the permitting agency
shall notify the department.
If the department determines that the proposed activity
would adversely impact eagle habitat, a site management
plan shall be required. The department, a permitting
agency, or wildlife biologist may work with the landowner
to develop a plan. The department has final approval
authority on all plans.
4.5 It is recognized that normal on-going agricultural
activities of land preparation, cultivating, planting,
harvesting, other cultural activities, grazing and
animal-rearing activities in existing facilities do not
have significant adverse consequences for eagles and
therefore do not require a site management plan. New
building construction, conversion of lands from
agriculture to other uses, application of predacides and
aerial pesticide spraying, may, following a conference
with the department, be subject to the site management
planning process described in these rules.
4.6 Emergency situations, such as insect infestation of
crops, requires immediate action on the site management
plan or special permission to address the impending
crisis by the department.
Site management plan for bald eagle habitat protection
5.1 The purpose of the site management plan is to provide for
the protection of specific bald eagle habitat in such a
way as to recognize the special characteristics of the
site and the landowner's property rights, goals and
pertinent options. To this end, every land owner shall
have fair access to the process including available
incentives and benefits. Any relevant factor may be
considered, including, but not limited to, the following:
5.1.1 The status of the eagle population in the
region.
5.1.2 The useful life of the nest or communal roost
trees and condition of the surrounding forest;
the topography; accessibility and visibility;
and existing and alternative flight paths, perch
trees, snags and potential alternative nest and
communal roost trees.
5.1.3 Eagle behavior and historical use patterns,
available food sources, and vulnerability to
disturbance.
5.1.4 The surrounding land-use conditions, including
degree of development and human use.
5.1.5 Land ownership, landowner ability to manage, and
flexibility of available landowner options.
5.1.6 Appropriate and acceptable incentive mechanisms
such as conservation easements, transfer or
purchase of development rights, leases, mutual
covenants, or land trade or purchase.
5.1.7 Published recommendations for eagle habitat
protection of other government entities such as
the U.S. Fish and Wildlife Service.
5.2 The site management plan may provide for
5.2.1 Tailoring the timing, duration or physical
extent of activities to minimize disturbance to
the existing eagle habitat and, where
appropriate, identifying and taking steps to
encourage and create alternative eagle habitat;
and
5.2.2 Establishing a periodic review of the plan to
monitor whether:
a) The plan requires amendment in response to changing
eagle and landowner circumstances
b) The terms of the plan comply with applicable laws
and regulations,
c) The parties to the plan are complying with its
terms.
5.3 The site management plan may also provide for
implementing landowner incentive and compensation
mechanisms through which the existing eagle habitat can
be maintained or enhanced.
Guidelines for acquisition of bald eagle habitat
6.1 Real property interests may be acquired and agreements
entered into which could enhance protection of bald eagle
habitat. These include fee simple acquisition, land
trades, conservation easements, transfer or purchase of
development rights, leases, and mutual covenants. Acquisition shall be dependent upon having a willing
seller and a willing buyer. Whatever interest or method
of protection is preferable will depend on the particular
use and ownership characteristics of a site. In
discussing conservation objectives with private or public
landowners, the department shall explore with the
landowner the variety of protection methods which may be
appropriate and available.
6.2 The following criteria and priorities shall be considered
by the department when it is contemplating acquiring an
interest in a bald eagle habitat.
6.2.1 Site considerations:
a) Relative ecological quality, as compared to similar
habitats
b) Ecological viability -- the ability of the habitat and
eagle use to persist over time
c) Defensibility -- the existence of site conditions
adequate to protect the eagle habitat from unnatural
encroachments
d) Manageability -- the ability to manage the site to
maintain suitable eagle habitat
e) Proximity to food source
f) Proximity to other protected eagle habitat
g) Proximity to department land or other public land
h) Eagle population density and history of eagle use in
the area
i) The natural diversity of native species, plant
communities, aquatic types, and geologic features on
the site.
6.2.2 Other considerations
a) Ownership
b) Degree of threat
c) Availability of funding
d) Existence of willing donor or seller and prior
agency interest
e) Cost
In general, priority shall be given to the most threatened
high quality eagle habitats with associated natural values
which require the least management.
Resolution of site management plan disputes
7.1 The department and the landowner shall attempt to develop
a mutually agreeable site management plan within 30 days
of the original notice to the department.
7.2 Should agreement not be reached, the landowner may
request an informal settlement conference with the
department.
7.3 If the landowner chooses not to use the informal
settlement conference process or if resolution is not
reached, the department shall within 15 days provide a
site management plan to the landowner.
7.4 Upon issuance of a final site management plan, the
landowner may initiate a formal appeal of the
department's decision. The appeal shall be conducted
according to the Administrative Procedure Act, chapter 34.05 RCW and the model rules of procedure, chapter 10-08 WAC.
A request for an appeal shall be in writing and shall be
received by the department during office hours within
thirty days of the issuance of the final site management
plan. Requests for appeal shall be mailed to Department
of Fish and Wildlife, 600 Capitol Way N., Olympia,
Washington 98501-1091, or hand delivered to 1111
Washington Street S.E., Wildlife Program, Fifth floor. If there is no timely request for an appeal, the site
management plan shall be unappealable.
The written request for an appeal shall be plainly
labeled as "request for formal appeal" and shall contain
the following:
| (a) | The name, address, and phone number of the person requesting the appeal; |
| (b) | The specific site management plan that the person contests; |
| (c) | The date of the issuance of the site management plan; |
| (d) | Specific relief requested; and |
| (e) | The attorney's name, address, and phone number, if the person is represented by legal counsel. |
Penalties
8.1 Failure of a landowner to comply with the processes set
forth in these rules or with the provisions of a site
management plan approved by the department constitutes a
misdemeanor as set forth in RCW 77.15.130.
[Statutory Authority: RCW 77.12.047, 77.12.655, 77.12.020. 02-02-062 (Order 01-283), § 232-12-292, filed 12/28/01, effective 1/28/02. Statutory Authority: RCW 77.12.655. 86-21-010 (Order 283), § 232-12-292, filed 10/3/86.]