Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-18-036.

     Title of Rule: Invasive aquatic species rules.

     Purpose: Amend prohibited species list and infested aquatic lakes list.

     Statutory Authority for Adoption: RCW 77.12.047.

     Statute Being Implemented: RCW 77.12.047.

     Summary: Adds potentially invasive species and provides notification of infested lakes.

     Reasons Supporting Proposal: Protect Washington aquatic wildlife from invasive species and noxious weeds.

     Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, 902-2373.

     Name of Proponent: Department of Fish and Wildlife, governmental.

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

     Explanation of Rule, its Purpose, and Anticipated Effects: These rules are needed to protect Washington wildlife. The list includes species whose home range has climatic conditions that could allow for natural reproduction in Washington, and would pose a threat. The infested lakes list is expanded based on information from the Department of Ecology.

     Proposal Changes the Following Existing Rules: Amend species and lakes lists.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

     2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: It may be necessary to consult a professional to determine if a species is on the prohibited list.

     3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: There is no cost.

     4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? There is a potential loss of revenue if the pet industry intended to import species on the list and sell them in the pet trade. Extensive communications with the pet industry has been done, and only one species, the Australian crawfish, would be affected.

     5. Cost of Compliance for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rules Using One or More of the Following as a Basis for Comparing Costs:

     a. Cost per employee;

     b. Cost per hour of labor; or

     c. Cost per one hundred dollars of sales.

     There are no compliance costs.

     6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: There are costs.

     7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department has consulted with the pet industry. A large number of candidate species were removed, and consensus reached on the remaining, with the Australian crawfish as the lone species of disagreement.

     8. A List of Industries That Will Be Required to Comply with the Rule: The pet trade.

     A copy of the statement may be obtained by writing to [Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091], phone (360) 902-2930, fax (360) 902-2155.

     RCW 34.05.328 does not apply to this rule adoption. Not hydraulics rules.

     Hearing Location: Fort Worden State Park Conference Center, Port Townsend, Washington, on December 5-6, 2003, begins 8:00 a.m. on December 5, 2003.

     Assistance for Persons with Disabilities: Contact Susan Yeager by November 24, 2003, TDD (360) 902-2207 or (360) 902-2267.

     Submit Written Comments to: Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by November 28, 2003.

     Date of Intended Adoption: December 5, 2003.

October 22, 2003

Evan Jacoby

Rules Coordinator

OTS-6017.5

AMENDATORY SECTION(Amending Order 02-223, filed 9/5/02, effective 10/6/02)

WAC 232-12-016   Nonnative aquatic species.   The following provisions apply to nonnative aquatic species except nonnative species in ballast water, which are provided for in chapter 220-77 WAC. The definitions of invasive species, prohibited aquatic animal species, regulated aquatic animal species, unregulated aquatic animal species, unlisted aquatic animal species and aquatic plant species as used in this section are the same as in RCW 77.08.010.

     (1) Request for designation of unlisted aquatic animal species prior to release. Unlisted nonnative aquatic animal species must be reviewed and designated for classification by the commission as either regulated aquatic animal species or unregulated aquatic animal species prior to approval for release into state waters. A request for classification of an unlisted nonnative aquatic animal species shall be treated as a petition to amend WAC 220-12-090, and made on the OFM-01 form. Upon receipt of a petition, the department shall initially classify the species as a prohibited species until the review is complete. In addition to the OFM-01 form, a person requesting classification must provide the following information in order to present a complete request for designation for classification:

     (a) Common and scientific name, reason for release, source of the animals proposed for release, and number of animals proposed for release.

     (b) Native range of the species, assessment of potential positive and negative impacts of the release, citation of available scientific literature on release of the species in other nonnative locales, known potential for displacement of native species, hybridization with or predation upon native species, and disease or parasite transmission.

     (c) Estimate of technical and economic feasibility of eradicating or controlling spread of the species once it is introduced into state waters.

     (2) Provisions applying to prohibited aquatic animal species.

     (a) Zebra mussels: It is unlawful to import live aquatic organisms, including plants, for release into state waters from any state or Canadian province east of the Continental Divide without each importation being accompanied by a zebra mussel-free certificate issued by the department and signed by the supplier of the aquatic organisms. The original receiver in the state of Washington of the shipment of aquatic organisms is required to retain the zebra mussel-free certificate for two years. Secondary receivers, while in possession of live aquatic organisms, are required to retain invoices or other records showing who was the original receiver.

     (b) Scientific research or display: The director may authorize, by prior written permit, a person to possess prohibited aquatic animal species for scientific research or display, provided:

     (i) Specimens are confined to a secure facility, defined as an enclosure that will prevent the escape or release of prohibited aquatic animal species into a natural watercourse, and specimens are inaccessible to wildlife or other animals that could transport prohibited aquatic animal species.

     (ii) Specimens are not transferred to any other facility without written approval by the director or designee.

     (iii) All zebra mussels are incinerated or chemically preserved at the conclusion of the project, and the enclosure, holding waters and all equipment are disinfected. All other prohibited aquatic animal species must be killed at the conclusion of the project and either chemically preserved or disposed of in a landfill.

     (iv) The permittee provides an annual report to the department, no later than January 31 of the following year, on a form provided by the department, describing the number, size and location of prohibited aquatic animal species enclosures and general nature of the research.

     (c) Monitoring and control programs: The director may authorize persons working within the scope and supervision of a department-sponsored monitoring and control program to capture, possess and destroy prohibited aquatic animal species, provided:

     (i) The persons have completed a mandatory training program and are certified by the department;

     (ii) The persons have a permit authorized by the director or designee in possession;

     (iii) All prohibited aquatic animal species are disposed of in accordance with the monitoring and control program; and

     (iv) Participants submit a report to the department within thirty days of any monitoring or control activity in accordance with the specifications outlined in the monitoring and control program.

     (d) Capture of prohibited species in state waters. Prohibited aquatic animal species that are captured in state waters and not immediately returned to the water from which they were captured must be killed before removing the prohibited aquatic animal species from within the riparian perimeter of the body of water.

     (e) It is lawful to possess dead vertebrate prohibited aquatic animal species taken from state waters, and it is lawful to possess chemically preserved nonvertebrate prohibited aquatic animal species from any source. No permit is required for possession under this subsection.

     (f) Prohibited aquatic animals held in commercial and personal possession prior to classification. A person who possessed a prohibited aquatic animal species prior to the time the species was classified as prohibited may continue to hold the animal or animals for the life of the animals, provided:

     (i) The person must maintain proof of possession prior to the classification.

     (ii) The animals may not be transferred to another owner within the state.

     (iii) The person must comply with all provisions of this section.

     (iv) The animals must be prevented from reproducing, or if prevention is impracticable, the progeny must be destroyed.

     (3) Infested waters.

     (a) The following bodies of waters are infested with invasive aquatic plants or prohibited aquatic animal species. In these waters:

     (i) It is unlawful to use aquatic animals from these waters for bait in the infested waters or any other waters with the exception of marine and estuarine waters.

     (ii) All aquatic vegetation must be removed from lines, nets, motors, and all other equipment when the equipment is removed from the infested waters.

     (iii) It is unlawful to transport water from these bodies of water, and bait containers, live wells, and bilges must be emptied before leaving the riparian perimeter of the body of water, except:

     (A) Water may be transported in emergencies, such as a fire emergency.

     (B) Water may be withdrawn and used under a water appropriation or public waters work permit issued by the department of ecology.

     (b) List of infested waters:

     Adams County: Herman lake.

     Chelan County: Chelan, Cortez, Domke, Fish, Roses and Wapato lakes.

     Clallam County: Sutherland Lake.

     Clark County: Battleground, and Lacamas lakes, Caterpillar Slough, ((Lake)) Columbia River.

     Columbia, Franklin and Walla Walla counties: Herbert G. West Lake, Snake River.

     Cowlitz County: Kress and Silver lakes, Soho and Willow Grove sloughs.

     Ferry County: Twin Lake.

     Franklin County: Kahlotus and Sacajawea lakes, Scooteney Reservoir, Snake River.

     Grant County: Babcock Ridge, Banks, Billy Clapp, Burke, Caliche, Canal, Corral, Corral Southwest, Moses, Priest Rapids, Quincy, Stan Coffin ((and)), Warden, and Windmill lakes, unnamed potholes at Dodson Frenchman and Frenchman Hills Nos. 1 through 4, Evergreen and Potholes reservoirs, Rocky Ford Creek and Winchester Wasteway.

     Grays Harbor County: Duck and Failor lakes, Grays Harbor.

     Island County: Crockett and Lone lakes.

     Jefferson County: Crocker and Leland lakes.

     King County: Alice, Angle, Bass, Desire, Fenwick, Geneva, Green, Killarney, Meridian, Otter, Phantom, Pine, Pipe, Sammamish, Sawyer, Shady, Spring, Steel, ((and)) Twelve, Union, Washington, and Wilderness lakes.

     Kitsap County: Buck, Long, Mission, Square, and Wye lakes.

     Kittitas County: Lavendar and ((Matton)) Mat Toon lakes.

     Klickitat County: Celilo, Horsethief, and Spearfish lakes, Columbia River.

     Lewis County: Carlisle, Mayfield ((and)), Plummer, and Riffe lakes, Swofford Pond, Chehalis River.

     Mason County: Isabella, Island, Limerick, Mason, and Spencer lakes.

     ((Okanagon)) Okanogan County: Conconully, Green, Osooyoos, Palmer, Pearrygin, and Whitestone lakes, Okanogan River.

     Pacific County: Black ((and)), Island, Loomis, and O'Neil lakes, Willapa Bay.

     Pend Oreille County: Davis, Diamond, Fan, Mashall, ((and Sacheel)) Nile, Parker, Sacheen, Skookum, and Sullivan lakes, Little Spokane and Pend Oreille rivers.

     Pierce County: Bay, Clear, Harts, Hidden, Kapowsin, Ohop, Rapjohn, Spanaway, Tanwax, Tapps, and Whitman lakes.

     San Juan County: Sportsman Lake.

     Skagit County: Beaver, Big, Campbell, Clear, Erie, Heart, Mcmurray, and Sixteen lakes.

     Skamania County: Coldwater and Drano lakes, Columbia River.

     Snohomish County: Blackman, Goodwin, Martha, Nina, Riley, Roesiger ((and)), Shoecraft, Silver, and Swartz lakes.

     Spokane County: Eloika, Liberty, Long, Newman, and Silver lakes.

     Stevens County: Black, Deep, Gillette, Heritage, Loon, McDowell, Sherry, Thomas, and Waitts lakes, Long Lake Reservoir.

     Thurston County: Capitol, Hicks, Long, ((and)), Munn, Scott, Ski, Summitt, and Ward lakes, Black and Chehalis rivers.

     Wahkiakum County: Columbia River and Brooks Slough.

     Walla Walla County: Snake River.

     Whatcom County: Silver, Terrell ((and)), Whatcom, and Wiser lakes.

     Whitman County: Bryan and Lower Granite lakes, Snake River.

     Yakima County: ((Myron)) Byron, Dog, Griffin, Morgan, and Wenas lakes, unnamed ponds at 12N - 19E - 20, Yakima River.

     (4) Aquaculture provisions. It is unlawful to fail to comply with the following provisions regarding aquaculture and waters containing prohibited aquatic animal species or invasive aquatic plant species.

     (a) When a natural body of water is designated by rule as infested, ongoing aquaculture operations in that body of water are restricted from transferring product, equipment or associated materials until such time as the operator of the aquaculture operation submits to the department a plan to prevent the spread of invasive aquatic plants and prohibited aquatic animal species, and has received approval from the department of such plan.

     (b) Artificial water basins found to be infested with prohibited aquatic animal species are required to have the water sterilized before continuing aquaculture operations, and any private sector cultured products in such waters must be killed before sale or transfer.

     (c) By permit from the department, water from bodies of water infested with invasive aquatic plants may be used in artificial water basins for aquaculture, provided that the water is treated to eliminate invasive aquatic plants prior to use.

     (5) Violations of this section involving invasive aquatic animal species is punishable under RCW ((77.15.. . . (section 4, chapter 281, Laws of 2002))) 77.15.253.

     (6) Violations of this section involving invasive aquatic plants is punishable under RCW 77.15.290.

[Statutory Authority: RCW 77.12.047. 02-19-007 (Order 02-223), § 232-12-016, filed 9/5/02, effective 10/6/02.]

     Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

OTS-6023.3

AMENDATORY SECTION(Amending Order 02-223, filed 9/5/02, effective 10/6/02)

WAC 220-12-090   Classification -- Nonnative aquatic animal species.   (1) Prohibited aquatic animal species. The following species are classified as prohibited aquatic animal species:

     (a) Amphibians:

     (i) ((Family Pipidae: African clawed frog, Xenopus laevis.

     (ii) Family Ranidae: Bull frog, Rana catesbeiana.

     (b))) In the family Hylidae: Cricket frog, in the genus Hyla species in the group Arborea including: Hyla annectans, Hyla arborea, Hyla chinensis, Hyla hallowellii, Hyla immaculata, Hyla japonica, Hyla meridionalis, Hyla sanchiangensis, Hyla simplex, Hyla suweonensis, Hyla tsinlingensis, Hyla ussuriensis, and Hyla zhaopingensis.

     (ii) In the family Pelobatidae, spadefoots, all species of the genus Pelobates including P. cultripes, P. fuscus, P. syriacus, and P. varaldii. All species of the genus Scaphiopus including: S. couchii, S. holbrookii, and S. hurterii. All species of the genus Spea including: S. hurterii, S. bombifrons, S. hammondii, and S. multiplicata with the exception of the native species: Spea intermontana the great basin spadefoot.

     (iii) In the family Pipidae: African clawed frog, all members of the genera Silurana, and Xenopus.

     (iv) In the family Ranidae:

     (A) Bull frog, Rana catesbeiana.

     (B) Holoarctic brown frogs and Palearctic green frogs of the genus Rana, including the following: Rana arvalis group (R. arvalis, R. chaochiaoensis, R. chevronta); Rana chensinensis group (R. altaica, R. chensinensis, R. dybowskii, R. kukunoris, R. kunyuensis, R. ornativentris, R. pirica); Rana graeca group (R. graeca, R. italica); Rana japonica group (R. amurensis, R. aragonensis, R. japonica, R. omeimontis, R. zhenhaiensis); the subgenus Rugosa (Rana rugosa, Rana emeljanovi, Rana tientaiensis); Rana tagoi group (R. sakuraii, R. tagoi); Rana temporaria group (R. asiatica, R. dalmatina, R. honnorate, R. huanrenensis, R. iberica, R. latastei, R. macrocnemis, R. okinavana, R. pyrenaica, R. tsushimensis, R. zhengi); and in the Rana Pelophylax section, the subgenus Pelophylax (R. bedriagae, R. bergeri, R. cerigensis, R. chosenica, R. cretensis, R. demarchii, R. epeirotica, R. fukienensis, R. grafti, R. hubeiensis, R. lateralis, R. lessonae, R. nigrolineata, R. nigromaculata, R. perezi, R. plancyi, R. porosa, R. ridibunda, R. saharica, R. shqiperica, R. shuchinae, R. terentievi, R. tenggerensis); and the Rana ridibunda-Rana lessonae hybridogenetic complex species R. esculenta and R. hispanica.

     (v) In the family Ambystomatidae: Mole salamanders. In the genus Ambystomata: A. californiense, A. laterale, A. opacum, A. rosaceum, A. tigrinum, except for the native species A. tigrinum mavortium Western tiger salamander, and A. tigrinum melanostictum Tiger salamander.

     (vi) In the family Amphiumidae one, two, and three toed salamanders or congo eels: All members of the genus Amphiuma.

     (vii) In the family Cryptobranchidae: Giant salamanders and hellbenders, all members of the genera Andrias and Cryptobranchus.

     (viii) In the family Dicamptodontidae, American giant salamanders, all members of the genus Dicamptodon, except for the native species: Dicamptodon tenebrosus, Pacific giant salamander, and Dicamptodon copei, Cope's giant salamander.

     (ix) In the family Hynobiidae: Mountain salamanders, all members of the genera Batrachuperus, Hynobius, Liua, Onychodactylus, Pachyhynobius, Pseudohynobius, Ranodon, and Salamandrella.

     (x) In the family Plethodontidae, subfamily Desmognathinae: All members of the genus Desmognathus, dusky salamander.

     (xi) In the family Plethodontidae, subfamily Plethodontinae: All members of the genera Aneides (climbing salamanders); Batrachoseps (slender salamanders); Eurycea (American brook salamanders); Gyrinophilus (cave salamanders); Hemidactylium (four-toed salamanders); Hydromantes (web-toed salamanders); Plethodon (woodland and slimy salamanders); Pseudotriton (mud or red salamanders), and Speleomantes (European salmanders).

     (xii) In the family Proteidae, mudpuppies, all members of the genus Necturus and Proteus.

     (xiii) In the family Salamandridae: Newts, all members of the genera Chioglossa; Eichinotriton (mountain newts); Euproctus (European mt. salamander); Neurergus (Kurdistan newts); Notophthalmus (red-spotted newts); Pachytriton (Chinese newts); Paramesotriton (warty newts); Salamandrina (speckled salamander); Taricha except for the native species Taricha granulosa granulosa the Northern rough-skinned newt, and Triturus (alpine newts).

     (xiv) In the family Sirenidae, sirens, all species of the genera Pseudobranchus and Siren.

     (b) Reptiles:

     (i) In the family Chelydridae, snapping turtles, all species.

     (ii) In the family Emydidae:

     (A) Chinese pond turtles, all members of the genus Chinemys.

     (B) Pond turtles, all members of the genus Clemmys.

     (C) European pond turtle, Emys orbicularis.

     (D) Asian pond turtle, all members of the genus Mauremys.

     (iii) In the family Trionychidae, soft shell turtles, all species.

     (c) Crustaceans:

     (i) Family Cercopagidae:

     (A) Fish hook water flea, Cercopagis pengoi.

     (B) Spiny water flea, Bythotrephes cederstroemi.

     (ii) Family Grapsidae: Mitten crabs: All members of the genus Erochier.

     (iii) Family Cambaridae: Crayfish: All genera.

     (((A) Red swamp crawfish, Procambarus clarkii.

     (B) Rusty crawfish, Orconectes rusticus.))

     (iv) Family Parastacidae: Crayfish: All genera.

     (v) Family Portunidae: European green crab, Carcinus maenas.

     (((c))) (vi) Family Spheromatidae: Burrowing isopod, Sphaeroma quoyanum.

     (d) Fish:

     (i) Family Amiidae: Bowfin, grinnel, or mudfish, Amia calva.

     (ii) Family Channidae: China fish, snakeheads: All members of the genus Channa.

     (iii) Family Characidae: Piranha or caribe: All members of the genera Pygocentrus, ((Rooseveltia)) Rooseveltiella, and Serrasalmus.

     (iv) Family Clariidae: Walking catfish: All members of the family.

     (v) Family Cyprinidae:

     (A) Fathead minnow, Pimephales promelas.

     (B) ((Grass)) Carp, Bighead, Hypopthalmichthys nobilis.

     (C) Carp, Black, Mylopharyngodon piceus.

     (D) Carp, Grass (in the diploid form), Ctenopharyngodon idella.

     (((C))) (E) Carp, Silver, Hypopthalmichthys molitrix.

     (F) Ide, silver orfe or golden orfe, Leuciscus idus.

     (((D))) (G) Rudd, Scardinius erythropthalmus.

     (vi) Family Gobiidae: Round goby, Neogobius melanostomus.

     (vii) Family Esocidae: Northern pike, Esox lucius.

     (viii) Family ((Lepiosteidae)) Lepisosteidae: Gar-pikes: All members of the family.

     (((d))) (e) Mammals:

     Family Myocastoridae: Nutria, Myocastor coypu.

     (((e))) (f) Molluscs:

     (i) Family Dreissenidae: Zebra mussels: All members of the genus Dreissena and all species known as quagga.

     (ii) Family Gastropoda: New Zealand mud snail, Potamopyrgus antipodarum.

     (2) Regulated aquatic animal species. The following species are classified as regulated aquatic animal species:

     (a) Crustaceans:

     All nonnative crustaceans classified as shellfish.

     (b) Fish:

     (i) All nonnative fish classified as food fish and game fish.

     (ii) Family Cichlidae: Tilapia: All members of the genera Tilapia, Oneochromis, and Sartheradon.

     (iii) Family Clupeidae: Alewife, Alosa pseudoharengus.

     (iv) Family Cyprinidae:

     (A) Common carp, koi, Cyprinus carpio.

     (B) Goldfish, Carassius auratus.

     (C) Tench, Tinca tinca.

     (D) Grass carp (in the triploid form), Ctenopharyngodon idella.

     (v) Family Poeciliidae: Mosquito fish, Gambusia affinis.

     (c) Molluscs:

     (i) All nonnative molluscs classified as shellfish.

     (ii) Family Psammobiidae: Mahogany clam or purple varnish clam, Nuttalia obscurata.

     (3) Unregulated aquatic animal species. The following species are classified as unregulated aquatic animal species: None.

[Statutory Authority: RCW 77.12.047. 02-19-007 (Order 02-223), § 220-12-090, filed 9/5/02, effective 10/6/02.]

     Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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