PERMANENT RULES
FISH AND WILDLIFE
Effective Date of Rule: Thirty-one days after filing.
Purpose: This amendment deletes the requirement for a bald eagle management plan unless the bald eagle is listed as endangered or threatened in Washington state.
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. department of natural resources, 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 United States Fish and Wildlife Service (USFWS) 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 will need to review their activities with USFWS to determine if a federal permit is required; any landowners who need a new or revised permit will 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.
Citation of Existing Rules Affected by this Order: Amending WAC 232-12-292.
Statutory Authority for Adoption: RCW 77.12.047.
Adopted under notice filed as WSR 11-03-088 on January 19, 2011.
Changes Other than Editing from Proposed to Adopted Version: Changes from the text of the proposed rule and reasons for difference:
| • | Section 1.1 was changed to provide the rule's applicability: |
| Rule Applicability | |
| 1.1 The following rules are only applicable and enforceable when the bald eagle is listed under state law as threatened or endangered. | |
| • | The changes in the version of the rule filed with the CR-102 were dropped so that the original language remained in place. |
| • | Sections were renumbered accordingly. |
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: April 8, 2011.
Miranda Wecker, Chair
Fish and Wildlife Commission
OTS-3843.3
AMENDATORY SECTION(Amending Order 01-283, filed 12/28/01,
effective 1/28/02)
WAC 232-12-292
Bald eagle protection rules.
Rule applicability
1.1 The following rules are only applicable and enforceable
when the bald eagle is listed under state law as
threatened or endangered.
Purpose
((1.1)) 2.1 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 classified as
threatened, 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.
Authority
((2.1)) 3.1 These rules are promulgated pursuant to RCW 77.12.655.
Definitions
((3.1)) 4.1 "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)) 4.2 "Cultural activities" means activities conducted
to foster the growth of agricultural plants and animals.
((3.3)) 4.3 "Department" means department of fish and
wildlife.
((3.4)) 4.4 "Endangered" means a species which is seriously
threatened with extirpation throughout all or a
significant portion of its range within Washington.
((3.5)) 4.5 "Government entities" means all agencies of
federal, state and local governments.
((3.6)) 4.6 "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)) 4.7 "Nest tree" means any tree that contains a bald
eagle nest or has contained a nest.
((3.8)) 4.8 "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)) 4.9 "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)) 4.10 "Predacides" means chemicals used to kill or
control problem wildlife.
((3.11)) 4.11 "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)) 4.12 "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)) 4.13 "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)) 4.14 "Threatened" means a species that could become
endangered within Washington without active management or
removal of threats.
Applicability and operation
((4.1)) 5.1 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)) 5.2 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)) 5.3 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)) 5.4 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)) 5.5 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)) 5.6 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)) 6.1 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)) 6.1.1 The status of the eagle population in
the region.
((5.1.2)) 6.1.2 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)) 6.1.3 Eagle behavior and historical use
patterns, available food sources, and
vulnerability to disturbance.
((5.1.4)) 6.1.4 The surrounding land-use conditions,
including degree of development and
human use.
((5.1.5)) 6.1.5 Land ownership, landowner ability to
manage, and flexibility of available
landowner options.
((5.1.6)) 6.1.6 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)) 6.1.7 Published recommendations for eagle
habitat protection of other government
entities such as the U.S. Fish and
Wildlife Service.
((5.2)) 6.2 The site management plan may provide for
((5.2.1)) 6.2.1 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)) 6.2.2 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)) 6.3 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)) 7.1 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)) 7.2 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)) 7.2.1 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)) 7.2.2 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)) 8.1 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)) 8.2 Should agreement not be reached, the landowner
may request an informal settlement conference with the
department.
((7.3)) 8.3 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)) 8.4 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)) 9.1 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.]