BILL REQ. #:  H-3352.1 

Read first time 01/11/12.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to the authority of the department of fish and wildlife to finalize administrative processes for programs related to agreements with the federal government under the endangered species act; amending RCW 77.12.047; adding a new section to chapter 77.55 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that the federal endangered species act provides legal options for nonfederal parties to engage in acts that would cause otherwise prohibited harm to a threatened or endangered species. A commonly used option offered by the federal government is the formulation of a habitat conservation plan. These voluntary long-term agreements between the federal government and a nonfederal party allow defined actions to occur, despite potential harm to a threatened or endangered species, according to agreed upon processes and limitations.
     (2) The legislature further finds that habitat conservation plans have been successfully entered into by private parties in Washington and by the Washington state government itself. These agreements have been instrumental in sustaining the working status of natural resource lands and providing a degree of regulatory certainty to the nonfederal signatories to the various habitat conservation plans.
     (3) The legislature further finds that state agency participation in habitat conservation plans is a potentially beneficial option for state land managers and state regulatory programs. However, participation in a habitat conservation plan often requires the state to commit to taking certain actions, refrain from certain actions, or be required to seek federal approval for actions that would otherwise be within the state's inherent authority. The result of a state agency entering into a habitat conservation plan could be to limit decision-making options for future legislatures, governors, and executive branch agency directors for an extended period of time.
     (4) The legislature further finds that, given the potential long-lasting ramifications on future legislative and executive branch options, the decision to commit the state to the potential long-term limitations of a habitat conservation plan should not be unilaterally made by a state agency. Conversely, the role of the state agencies is to identify the utility of a habitat conservation plan, but allow the legislature and the governor to decide if the benefits of the habitat conservation plan outweigh the potential sacrifice of future governing options. This model was utilized when the legislature directed the department of natural resources to negotiate a habitat conservation plan in what is known as the forests and fish law (chapter 4, Laws of 1999), and it is a model that should be relied upon whenever a state agency, or other party, decides that a habitat conservation plan is in the best interest of the state.

NEW SECTION.  Sec. 2   A new section is added to chapter 77.55 RCW to read as follows:
     (1) The department may not, after the effective date of this section, do either of the following without prior express direction from the legislature:
     (a) Officially enter into a habitat conservation plan, or other multiyear agreement with the federal government under the endangered species act, 16 U.S.C. Sec. 1531 et seq., for the hydraulics project approval program created under this chapter that commits the state to future action or constrains future state options without prior express direction from the legislature; or
     (b) Finalize any rule-making processes related to the hydraulic project approval program that is or was funded in part or whole by a grant from any branch of the federal government.
     (2) Nothing in this section prohibits the department from seeking funding for the development of a habitat conservation plan or underlying rules, negotiating the provisions of a habitat conservation plan with the federal government, or taking other steps towards finalizing the provisions of a habitat conservation plan short of committing the state to the provisions of the negotiated habitat conservation plan or finalizing any rules related to the hydraulic project approval program that is or was funded in part or whole by a grant from any branch of the federal government.
     (3) For the purposes of this section, express direction from the legislature is limited to the passage of a bill that is either signed by the governor or allowed to take effect absent a gubernatorial signature that includes express direction to the department to enter into a specific habitat conservation plan or finalize any rule-making processes related to the hydraulic project approval program that is or was funded in part or whole by a grant from any branch of the federal government.

Sec. 3   RCW 77.12.047 and 2001 c 253 s 14 are each amended to read as follows:
     (1) Except as provided in section 2 of this act, the commission may adopt, amend, or repeal rules as follows:
     (a) Specifying the times when the taking of wildlife, fish, or shellfish is lawful or unlawful.
     (b) Specifying the areas and waters in which the taking and possession of wildlife, fish, or shellfish is lawful or unlawful.
     (c) Specifying and defining the gear, appliances, or other equipment and methods that may be used to take wildlife, fish, or shellfish, and specifying the times, places, and manner in which the equipment may be used or possessed.
     (d) Regulating the importation, transportation, possession, disposal, landing, and sale of wildlife, fish, shellfish, or seaweed within the state, whether acquired within or without the state.
     (e) Regulating the prevention and suppression of diseases and pests affecting wildlife, fish, or shellfish.
     (f) Regulating the size, sex, species, and quantities of wildlife, fish, or shellfish that may be taken, possessed, sold, or disposed of.
     (g) Specifying the statistical and biological reports required from fishers, dealers, boathouses, or processors of wildlife, fish, or shellfish.
     (h) Classifying species of marine and freshwater life as food fish or shellfish.
     (i) Classifying the species of wildlife, fish, and shellfish that may be used for purposes other than human consumption.
     (j) Regulating the taking, sale, possession, and distribution of wildlife, fish, shellfish, or deleterious exotic wildlife.
     (k) Establishing game reserves and closed areas where hunting for wild animals or wild birds may be prohibited.
     (l) Regulating the harvesting of fish, shellfish, and wildlife in the federal exclusive economic zone by vessels or individuals registered or licensed under the laws of this state.
     (m) Authorizing issuance of permits to release, plant, or place fish or shellfish in state waters.
     (n) Governing the possession of fish, shellfish, or wildlife so that the size, species, or sex can be determined visually in the field or while being transported.
     (o) Other rules necessary to carry out this title and the purposes and duties of the department.
     (2) Subsections (1)(a), (b), (c), (d), and (f) of this section do not apply to private tideland owners and lessees and the immediate family members of the owners or lessees of state tidelands, when they take or possess oysters, clams, cockles, borers, or mussels, excluding razor clams, produced on their own private tidelands or their leased state tidelands for personal use.
     "Immediate family member" for the purposes of this section means a spouse, brother, sister, grandparent, parent, child, or grandchild.
     (3) Except for subsection (1)(g) of this section, this section does not apply to private sector cultured aquatic products as defined in RCW 15.85.020. Subsection (1)(g) of this section does apply to such products.