WSR 12-14-115

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed July 5, 2012, 11:19 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-10-084.

Title of Rule and Other Identifying Information: WAC 232-12-011 Wildlife classified as protected shall not be hunted or fished, this proposal removes Steller sea lions from the state endangered species list.

Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on November 2-3, 2012, at 8:30 a.m.

Date of Intended Adoption: December 14, 2012.

Submit Written Comments to: Bill Tweit, Washington Department of Fish and Wildlife (WDFW), 600 Capitol Way North, Olympia, WA 98501-1091, e-mail William.Tweit@dfw.wa.gov, fax (360) 902-2158, by October 15, 2012.

Assistance for Persons with Disabilities: Contact Tami Lininger by October 15, 2012, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The National Marine Fisheries Service (NMFS) published a proposed rule on April 18, 2012, to remove the eastern distinct population segment (DPS) of Steller sea lions (SSLs) from the list of threatened species under the federal Endangered Species Act (ESA). The eastern DPS includes all SSLs in Washington state. In response to petitions from Washington, Oregon, and Alaska, NMFS reviewed the current status of the eastern DPS and determined that the species has recovered and no longer meets the definition of a threatened species under the federal ESA. The draft NMFS status review is available at http://www.fakr.noaa.gov/protectedresources/stellers/edps/status.htm.

Pursuant to WAC 232-12-297 (6.1.1) and (6.2), the department intends to adopt the April 2012 NMFS draft status review as the preliminary species status report required in subsection (7.1) of the rule. In its review, NMFS considered all information relevant to the SSLs' status in Washington, as well as the rest of the species range on the Pacific coast, and addressed factors affecting its status. NMFS's draft status review has been evaluated by members of the public and the scientific community, including WDFW scientists, through a public comment period extending from April 18 to June 18, 2012. The draft review provides an analysis of the factors cited in WAC 232-12-297 (7.1.1) through (7.1.5). Interested parties are invited to submit new scientific data relevant to the draft review, classification recommendation, and SEPA findings to the department by October 15, 2012.

Reasons Supporting Proposal: SSLs were listed as threatened under the state ESA in 1993, following a federal listing in 1990. The federal recovery plan was published in 2008; a separate state recovery plan has not been developed. The department bases its proposed SSL delisting on scientific information contained in the department's petition to the NMFS, submitted on August 30, 2010, and in NMFS's April 2012 draft status review. The petition and the status review provide evidence that SSLs in Washington are no longer in danger of failing or declining and are no longer vulnerable. Both the petition and the status review provide evidence that the recovery objectives in the 2008 federal recovery plan have been achieved.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Rule is necessary because of federal law, 77 F.R. 23209.

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

Name of Agency Personnel Responsible for Drafting and Implementation: Bill Tweit, WDFW Directors Office, Olympia, (360) 902-2723; and Enforcement: Chief Bruce Bjork, WDFW Enforcement, Olympia, (360) 902-2373.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Delisting Steller sea lions will have no economic impact or impose any costs on small businesses or school districts.

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

July 5, 2012

Lori Preuss

Rules Coordinator

OTS-4875.1


AMENDATORY SECTION(Amending Order 08-09, filed 1/14/08, effective 2/14/08)

WAC 232-12-011   Wildlife classified as protected shall not be hunted or fished.   Protected wildlife are designated into three subcategories: Threatened, sensitive, and other.

(1) Threatened species are any wildlife species native to the state of Washington that are likely to become endangered within the foreseeable future throughout a significant portion of their range within the state without cooperative management or removal of threats. Protected wildlife designated as threatened include:


Common Name Scientific Name
western gray squirrel Sciurus griseus
((Steller (northern)

sea lion

Eumetopias jubatus))
North American lynx Lynx canadensis
ferruginous hawk Buteo regalis
marbled murrelet Brachyramphus marmoratus
green sea turtle Chelonia mydas
loggerhead sea turtle Caretta caretta
sage grouse Centrocercus urophasianus
sharp-tailed grouse Phasianus columbianus
Mazama pocket gopher Thomomys mazama

(2) Sensitive species are any wildlife species native to the state of Washington that are vulnerable or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. Protected wildlife designated as sensitive include:

Common Name Scientific Name
Gray whale Eschrichtius gibbosus
Common Loon Gavia immer
bald eagle Haliaeetus leucocephalus
Peregrine Falcon Falco peregrinus
Larch Mountain

salamander

Plethodon larselli
Pygmy whitefish Prosopium coulteri
Margined sculpin Cottus marginatus
Olympic mudminnow Novumbra hubbsi

(3) Other protected wildlife include:


Common Name Scientific Name
cony or pika Ochotona princeps
least chipmunk Tamius minimus
yellow-pine chipmunk Tamius amoenus
Townsend's chipmunk Tamius townsendii
red-tailed chipmunk Tamius ruficaudus
hoary marmot Marmota caligata
Olympic marmot Marmota olympus
Cascade

golden-mantled

ground squirrel

Spermophilus saturatus
golden-mantled

ground squirrel

Spermophilus lateralis
Washington ground

squirrel

Spermophilus washingtoni
red squirrel Tamiasciurus hudsonicus
Douglas squirrel Tamiasciurus douglasii
northern flying squirrel Glaucomys sabrinus
wolverine Gulo gulo
painted turtle Chrysemys picta
California mountain

kingsnake

Lampropeltis zonata;

All birds not classified as game birds, predatory birds or endangered species, or designated as threatened species or sensitive species; all bats, except when found in or immediately adjacent to a dwelling or other occupied building; mammals of the order Cetacea, including whales, porpoises, and mammals of the order Pinnipedia not otherwise classified as endangered species, or designated as threatened species or sensitive species. This section shall not apply to hair seals and sea lions which are threatening to damage or are damaging commercial fishing gear being utilized in a lawful manner or when said mammals are damaging or threatening to damage commercial fish being lawfully taken with commercial gear.

[Statutory Authority: RCW 77.12.047, 77.12.020. 08-03-068 (Order 08-09), 232-12-011, filed 1/14/08, effective 2/14/08; 06-04-066 (Order 06-09), 232-12-011, filed 1/30/06, effective 3/2/06. Statutory Authority: RCW 77.12.047, 77.12.655, 77.12.020. 02-11-069 (Order 02-98), 232-12-011, filed 5/10/02, effective 6/10/02. Statutory Authority: RCW 77.12.047. 02-08-048 (Order 02-53), 232-12-011, filed 3/29/02, effective 5/1/02; 00-17-106 (Order 00-149), 232-12-011, filed 8/16/00, effective 9/16/00. Statutory Authority: RCW 77.12.040, 77.12.010, 77.12.020, 77.12.770. 00-10-001 (Order 00-47), 232-12-011, filed 4/19/00, effective 5/20/00. Statutory Authority: RCW 77.12.040, 77.12.010, 77.12.020, 77.12.770, 77.12.780. 00-04-017 (Order 00-05), 232-12-011, filed 1/24/00, effective 2/24/00. Statutory Authority: RCW 77.12.020. 98-23-013 (Order 98-232), 232-12-011, filed 11/6/98, effective 12/7/98. Statutory Authority: RCW 77.12.040. 98-10-021 (Order 98-71), 232-12-011, filed 4/22/98, effective 5/23/98. Statutory Authority: RCW 77.12.040 and 75.08.080. 98-06-031, 232-12-011, filed 2/26/98, effective 5/1/98. Statutory Authority: RCW 77.12.020. 97-18-019 (Order 97-167), 232-12-011, filed 8/25/97, effective 9/25/97. Statutory Authority: RCW 77.12.040, 77.12.020, 77.12.030 and 77.32.220. 97-12-048, 232-12-011, filed 6/2/97, effective 7/3/97. Statutory Authority: RCW 77.12.020. 93-21-027 (Order 615), 232-12-011, filed 10/14/93, effective 11/14/93; 90-11-065 (Order 441), 232-12-011, filed 5/15/90, effective 6/15/90. Statutory Authority: RCW 77.12.040. 89-11-061 (Order 392), 232-12-011, filed 5/18/89; 82-19-026 (Order 192), 232-12-011, filed 9/9/82; 81-22-002 (Order 174), 232-12-011, filed 10/22/81; 81-12-029 (Order 165), 232-12-011, filed 6/1/81.]

Washington State Code Reviser's Office