WSR 97-24-083

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

(Wildlife)

[Filed December 2, 1997, 4:27 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-19-027.

Title of Rule: To amend WAC 232-12-297 Endangered, threatened, and sensitive wildlife species classification.

Purpose: To amend WAC 232-12-297 by changing the requirement that the department hold a public meeting on listing proposals in every administrative region during the public comment period for species status reports.

Statutory Authority for Adoption: RCW 77.12.040.

Statute Being Implemented: RCW 77.32.340.

Summary: Changes the requirement to hold a meeting in each of the department's administrative regions. Specifies that the department will hold at least one eastern Washington and one western Washington public meeting during the public comment period for draft listing proposals.

Reasons Supporting Proposal: Current listing procedures require the department, during the ninety-day public review period for draft status reports, to hold a public meeting in each administrative region. This has been done for two cycles of listing proposals in 1993 and 1997. For each of these, the department held six meetings over a two-week period. The department expended tremendous resources to hold public meetings in each of the administrative regions and the turnout for these meetings ranged from zero to seventeen people attending each meeting. Olympia headquarters and regional staff attended each of the meetings and many times outnumbered the public attending. Eleven of the twelve meetings had fewer than ten people attending; ten meetings had six or fewer people attending. At the same time, the department was unable to have more than one meeting in a region because of limited staff and financial resources.

The proposed change would ensure that public meetings are held and would give the department the discretion to determine where and how many should be held. In this way, the areas with the most interest could be targeted for public meetings, rather than holding them at each of the regional office locations. This would do a great deal to ensure efficient expenditure of state resources and would allow the public access to public meetings on species of interest.

Name of Agency Personnel Responsible for Drafting and Implementation: Dave Brittell, Assistant Director, Wildlife Management, Olympia, (360) 902-2504; and Enforcement: Ron Swatfigure, Assistant Director, Enforcement, Olympia, (360) 902-2932.

Name of Proponent: Washington Fish and Wildlife Commission, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 232-12-297 identifies the process the agency uses to list and delist endangered, threatened and sensitive species. This amendment removes the requirement to hold a public meeting in each administrative region. The change requires the department to hold at least an eastern Washington and a western Washington public meeting and allows the department to determine the number and location of additional meetings.

Proposal does not change existing rules. See above.

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

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Maple Hall, 108 Commercial Street, La Conner, WA 98257, phone (360) 466-3901, on January 23-24, 1998, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by January 10, 1998, TDD (360) 902-2207, or (360) 902-2267.

Submit Written Comments to: Washington Department of Fish and Wildlife, Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, FAX (360) 902-2940, by January 10, 1998.

Date of Intended Adoption: January 24, 1998.

December 2, 1997

Evan Jacoby

Rules Coordinator

AMENDATORY SECTION [(Amending Order 442, filed 5/15/90, effective 6/15/90)]

WAC 232-12-297 Endangered, threatened, and sensitive wildlife species classification.

Purpose

1.1 The purpose of this rule is to identify and classify native wildlife species that have need of protection and/or management to ensure their survival as free-ranging populations in Washington and to define the process by which listing, management, recovery, and delisting of a species can be achieved. These rules are established to ensure that consistent procedures and criteria are followed when classifying wildlife as endangered, or the protected wildlife subcategories threatened or sensitive.

Definitions

For purposes of this rule, the following definitions apply:

2.1 "Classify" and all derivatives means to list or delist wildlife species to or from endangered, or to or from the protected wildlife subcategories threatened or sensitive.

2.2 "List" and all derivatives means to change the classification status of a wildlife species to endangered, threatened, or sensitive.

2.3 "Delist" and its derivatives means to change the classification of endangered, threatened, or sensitive species to a classification other than endangered, threatened, or sensitive.

2.4 "Endangered" means any wildlife species native to the state of Washington that is seriously threatened with extinction throughout all or a significant portion of its range within the state.

2.5 "Threatened" means any wildlife species native to the state of Washington that is likely to become an endangered species within the foreseeable future throughout a significant portion of its range within the state without cooperative management or removal of threats.

2.6 "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.

2.7 "Species" means any group of animals classified as a species or subspecies as commonly accepted by the scientific community.

2.8 "Native" means any wildlife species naturally occurring in Washington for purposes of breeding, resting, or foraging, excluding introduced species not found historically in this state.

2.9 "Significant portion of its range" means that portion of a species' range likely to be essential to the long term survival of the population in Washington.

Listing criteria

3.1 The commission shall list a wildlife species as endangered, threatened, or sensitive solely on the basis of the biological status of the species being considered, based on the preponderance of scientific data available, except as noted in section 3.4.

3.2 If a species is listed as endangered or threatened under the federal Endangered Species Act, the agency will recommend to the commission that it be listed as endangered or threatened as specified in section 9.1. If listed, the agency will proceed with development of a recovery plan pursuant to section 11.1.

3.3 Species may be listed as endangered, threatened, or sensitive only when populations are in danger of failing, declining, or are vulnerable, due to factors including but not restricted to limited numbers, disease, predation, exploitation, or habitat loss or change, pursuant to section 7.1.

3.4 Where a species of the class Insecta, based on substantial evidence, is determined to present an unreasonable risk to public health, the commission may make the determination that the species need not be listed as endangered, threatened, or sensitive.

Delisting criteria

4.1 The commission shall delist a wildlife species from endangered, threatened, or sensitive solely on the basis of the biological status of the species being considered, based on the preponderance of scientific data available.

4.2 A species may be delisted from endangered, threatened, or sensitive only when populations are no longer in danger of failing, declining, are no longer vulnerable, pursuant to section 3.3, or meet recovery plan goals, and when it no longer meets the definitions in sections 2.4, 2.5, or 2.6.

Initiation of listing process

5.1 Any one of the following events may initiate the listing process.

5.1.1 The agency determines that a species population may be in danger of failing, declining, or vulnerable, pursuant to section 3.3.

5.1.2 A petition is received at the agency from an interested person. The petition should be addressed to the director. It should set forth specific evidence and scientific data which shows that the species may be failing, declining, or vulnerable, pursuant to section 3.3. Within 60 days, the agency shall either deny the petition, stating the reasons, or initiate the classification process.

5.1.3 An emergency, as defined by the Administrative Procedure Act, chapter 34.05 RCW. The listing of any species previously classified under emergency rule shall be governed by the provisions of this section.

5.1.4 The commission requests the agency review a species of concern.

5.2 Upon initiation of the listing process the agency shall publish a public notice in the Washington Register, and notify those parties who have expressed their interest to the department, announcing the initiation of the classification process and calling for scientific information relevant to the species status report under consideration pursuant to section 7.1.

Initiation of delisting process

6.1 Any one of the following events may initiate the delisting process:

6.1.1 The agency determines that a species population may no longer be in danger of failing, declining, or vulnerable, pursuant to section 3.3.

6.1.2 The agency receives a petition from an interested person. The petition should be addressed to the director. It should set forth specific evidence and scientific data which shows that the species may no longer be failing, declining, or vulnerable, pursuant to section 3.3. Within 60 days, the agency shall either deny the petition, stating the reasons, or initiate the delisting process.

6.1.3 The commission requests the agency review a species of concern.

6.2 Upon initiation of the delisting process the agency shall publish a public notice in the Washington Register, and notify those parties who have expressed their interest to the department, announcing the initiation of the delisting process and calling for scientific information relevant to the species status report under consideration pursuant to section 7.1.

Species status review and agency recommendations

7.1 Except in an emergency under 5.1.3 above, prior to making a classification recommendation to the commission, the agency shall prepare a preliminary species status report. The report will include a review of information relevant to the species' status in Washington and address factors affecting its status, including those given under section 3.3. The status report shall be reviewed by the public and scientific community. The status report will include, but not be limited to an analysis of:

7.1.1 Historic, current, and future species population trends.

7.1.2 Natural history, including ecological relationships (e.g. food habits, home range, habitat selection patterns).

7.1.3 Historic and current habitat trends.

7.1.4 Population demographics (e.g. survival and mortality rates, reproductive success) and their relationship to long term sustainability.

7.1.5 Historic and current species management activities.

7.2 Except in an emergency under 5.1.3 above, the agency shall prepare recommendations for species classification, based upon scientific data contained in the status report. Documents shall be prepared to determine the environmental consequences of adopting the recommendations pursuant to requirements of the State Environmental Policy Act (SEPA).

7.3 For the purpose of delisting, the status report will include a review of recovery plan goals.

Public review

8.1 Except in an emergency under 5.1.3 above, prior to making a recommendation to the commission, the agency shall provide an opportunity for interested parties to submit new scientific data relevant to the status report, classification recommendation, and any SEPA findings.

8.1.1 The agency shall allow at least 90 days for public comment.

8.1.2 The agency will hold at least one eastern Washington and one western Washington ((at least one)) public meeting ((in each of its administrative regions)) during the public review period.

Final recommendations and commission action

9.1 After the close of the public comment period, the agency shall complete a final status report and classification recommendation. SEPA documents will be prepared, as necessary, for the final agency recommendation for classification. The classification recommendation will be presented to the commission for action. The final species status report, agency classification recommendation, and SEPA documents will be made available to the public at least 30 days prior to the commission meeting.

9.2 Notice of the proposed commission action will be published at least 30 days prior to the commission meeting.

Periodic species status review

10.1 The agency shall conduct a review of each endangered, threatened, or sensitive wildlife species at least every five years after the date of its listing. This review shall include an update of the species status report to determine whether the status of the species warrants its current listing status or deserves reclassification.

10.1.1 The agency shall notify any parties who have expressed their interest to the department of the periodic status review. This notice shall occur at least one year prior to end of the five year period required by section 10.1.

10.2 The status of all delisted species shall be reviewed at least once, five years following the date of delisting.

10.3 The department shall evaluate the necessity of changing the classification of the species being reviewed. The agency shall report its findings to the commission at a commission meeting. The agency shall notify the public of its findings at least 30 days prior to presenting the findings to the commission.

10.3.1 If the agency determines that new information suggests that classification of a species should be changed from its present state, the agency shall initiate classification procedures provided for in these rules starting with section 5.1.

10.3.2 If the agency determines that conditions have not changed significantly and that the classification of the species should remain unchanged, the agency shall recommend to the commission that the species being reviewed shall retain its present classification status.

10.4 Nothing in these rules shall be construed to automatically delist a species without formal commission action.

Recovery and management of listed species

11.1 The agency shall write a recovery plan for species listed as endangered or threatened. The agency will write a management plan for species listed as sensitive. Recovery and management plans shall address the listing criteria described in sections 3.1 and 3.3, and shall include, but are not limited to:

11.1.1 Target population objectives.

11.1.2 Criteria for reclassification.

11.1.3 An implementation plan for reaching population objectives which will promote cooperative management and be sensitive to landowner needs and property rights. The plan will specify resources needed from and impacts to the department, other agencies (including federal, state, and local), tribes, landowners, and other interest groups. The plan shall consider various approaches to meeting recovery objectives including, but not limited to regulation, mitigation, acquisition, incentive, and compensation mechanisms.

11.1.4 Public education needs.

11.1.5 A species monitoring plan, which requires periodic review to allow the incorporation of new information into the status report.

11.2 Preparation of recovery and management plans will be initiated by the agency within one year after the date of listing.

11.2.1 Recovery and management plans for species listed prior to 1990 or during the five years following the adoption of these rules shall be completed within 5 years after the date of listing or adoption of these rules, whichever comes later. Development of recovery plans for endangered species will receive higher priority than threatened or sensitive species.

11.2.2 Recovery and management plans for species listed after five years following the adoption of these rules shall be completed within three years after the date of listing.

11.2.3 The agency will publish a notice in the Washington Register and notify any parties who have expressed interest to the department interested parties of the initiation of recovery plan development.

11.2.4 If the deadlines defined in sections 11.2.1 and 11.2.2 are not met the department shall notify the public and report the reasons for missing the deadline and the strategy for completing the plan at a commission meeting. The intent of this section is to recognize current department personnel resources are limiting and that development of recovery plans for some of the species may require significant involvement by interests outside of the department, and therefore take longer to complete.

11.3 The agency shall provide an opportunity for interested public to comment on the recovery plan and any SEPA documents.

Classification procedures review

12.1 The agency and an ad hoc public group with members representing a broad spectrum of interests, shall meet as needed to accomplish the following:

12.1.1 Monitor the progress of the development of recovery and management plans and status reviews, highlight problems, and make recommendations to the department and other interested parties to improve the effectiveness of these processes.

12.1.2 Review these classification procedures six years after the adoption of these rules and report its findings to the commission.

Authority

13.1 The commission has the authority to classify wildlife as endangered under RCW 77.12.020. Species classified as endangered are listed under WAC 232-12-014, as amended.

13.2 Threatened and sensitive species shall be classified as subcategories of protected wildlife. The commission has the authority to classify wildlife as protected under RCW 77.12.020. Species classified as protected are listed under WAC 232-12-011, as amended.

[Statutory Authority: RCW 77.12.020. 90-11-066 (Order 442), 232-12-297, filed 5/15/90, effective 6/15/90.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.