PROPOSED RULES
FISH AND WILDLIFE
Original Notice.
Preproposal statement of inquiry was filed as WSR 01-18-074.
Purpose: To amend WAC 232-12-011 Wildlife classified as protected shall not be hunted or fished, 232-12-297 Endangered, threatened, and sensitive wildlife species classification, and 232-12-292 Bald eagle protection rules.
Statutory Authority for Adoption: RCW 77.12.047, 77.12.655, 77.12.020.
Statute Being Implemented: RCW 77.12.047, 77.12.655, 77.12.020.
Summary: WAC 232-12-292, makes updates and modifications to the bald eagle protection rules for developing landowner bald eagle management plans where development is proposed, that includes or is adjacent to bald eagle nests or communal roosts. Adds sensitive status to the rule, adds provision for streamlined plans administered by counties, removes the bald eagle oversight committee, and adds an informal and formal appeal process.
WAC 232-12-297, deletes the requirement for two public meetings (one eastside, one westside) during the public review process for status reports.
WAC 232-12-011, changes the bald eagle from a state threatened species to a state sensitive species.
Reasons Supporting Proposal: Two thirds of bald eagle nests in Washington are on private lands. The state bald eagle protection rule (232-12-292) requires a management plan for development, forest practices, or potentially disturbing activities on state and private lands near eagle nests and roosts. The bald eagle protection rules are in need of updating since first passed in 1986. At that time, sensitive status did not exist in the protected wildlife WAC 232-12-011. It needs to be added to the bald eagle rule to address the bald eagle if it were listed as a sensitive species, which still requires management to prevent population declines. The bald eagle oversight committee was disbanded several years ago by their request and that section needs to be deleted from the rule; a new informal and formal process are added to the rule to conform to the Administrative Procedure Act; and methods for developing bald eagle management plans through the counties that have been used in recent years are added to the rule in order to streamline the process, where possible.
WAC 232-12-297 currently includes a requirement that the department conduct at least two public meetings during the ninety day public review process. These meetings have either not been attended at all or have been attended by fewer than three - five people. This is an inefficient and wasteful use of state resources. The department will still hold public meetings if they are needed, but will not be required to when there is no public interest in attending.
The bald eagle is currently listed as a state threatened species (WAC 232-12-011). Historically there may have been more than 6,000 eagles in Washington, but persecution, the cutting of forests, commercial exploitation of salmon runs, and finally the use of DDT reduced the state's population to only one hundred five known breeding pairs by 1980. Loss of wetlands, contamination of estuaries, and declines in water quality also probably have reduced the carrying capacity for eagles. The population has recovered dramatically with the ban on DDT use after 1972 and increased protection for eagles and eagle habitat. In the past twenty years, the population of nesting bald eagles grew about 10% per year as eagles reoccupied habitat. In 1998, there were six hundred sixty-four occupied nests.
Although the breeding population of bald eagles in Washington has increased dramatically in the past twenty years, two thirds of nests are on private lands. Only about 10% of eagle nests are on lands where their habitat values could be considered secure in the absence of habitat protection rules. Land near shores is highly desirable for residential development and the human population of Washington is expected to increase by two million to 7.7 million in the next twenty years, and double to eleven million by 2050. Forest near shores is rapidly being cleared, and the needs of eagles and desires of humans are increasingly in conflict. Without protections of nesting and roosting habitat, the bald eagle could again decline dramatically and require relisting as threatened or endangered in the state. For these reasons the department recommends that the bald eagle be downlisted to sensitive, but not delisted, in the state of Washington, and that the bald eagle protection rule (WAC 232-12-292) be amended to apply to a sensitive species.
Name of Agency Personnel Responsible for Drafting and Implementation: Dave Brittell, Assistant Director, Wildlife Program, Olympia, (360) 902-2504; and Enforcement: Bruce Bjork, Assistant Director, Enforcement, Olympia, (360) 902-2932.
Name of Proponent: Washington 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: WAC 232-12-292 identifies procedures for developing bald eagle management plans where actions on state and private land are proposed that include or are adjacent to bald eagle nest or communal roost sites. RCW 77.12.655 requires the department to protect bald eagles. The purpose of the rule is to increase and maintain the population of the bald eagle in Washington by protecting nesting and roosting habitat in the state. Anticipated effects are to maintain habitat protection for bald eagles if they are downlisted to sensitive, to streamline the process for developing bald eagle management plans, and to have an informal and formal appeal process for resolving conflicts with bald eagle management plans.
WAC 232-12-297 identifies procedures for listing species in Washington as endangered, threatened or sensitive. This change makes public meeting requirements discretionary. The ability for the public to review and comment on draft and final status reports and listing recommendations will still be provided through ninety day and thirty day public review periods.
WAC 232-12-011 identifies species of wild animals to be managed by the Department of Fish and Wildlife as protected wildlife, subcategory threatened or sensitive species. This amendment changes the bald eagle from a state threatened species to a state sensitive species. Sensitive species are in need of special management consideration to maintain healthy population levels and prevent them from becoming threatened or endangered. Land managing agencies and local, state and federal governments may use these lists to consider the needs of species of special concern in land management decisions.
Proposal Changes the Following 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. This rule is not related to the hydraulics code.
Hearing Location: Best Inn and Suites, 221 N.E. Chkalov Drive, Vancouver, WA 98684, on December 7-8, 2001, at 8:00 a.m.
Assistance for Persons with Disabilities: Contact Debbie Nelson by November 30, 2001, TDD (360) 902-2207, or (360) 902-2267.
Submit Written Comments to: Washington Department of Fish and Wildlife, Dave Brittell, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2162, by November 20, 2001.
Date of Intended Adoption: December 7, 2001.
October 23, 2001
Evan Jacoby
Rules Coordinator
OTS-5211.1
AMENDATORY SECTION(Amending Order 00-149, filed 8/16/00,
effective 9/16/00)
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 |
| Aleutian Canada goose | Branta Canadensis leucopareia |
| Haliaeetus leucocephalus)) | |
| 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 |
(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 |
| Larch Mountain salamander |
Plethodon larselli |
| Pygmy whitefish | Prosopium coulteri |
| Margined sculpin | Cottus marginatus |
| Olympic mudminnow | Novumbra hubbsi |
| Bald eagle | Haliaeetus leucocephalus |
(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; all wildlife within Titlow Beach Marine Preserve, the Sund Rock Marine Preserve, the Colvos Passage Marine Preserve, and the conservation areas defined in chapter 220-16 WAC; 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. 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.]
OTS-5212.1
AMENDATORY SECTION(Amending Order 98-17, filed 2/11/98,
effective 3/14/98)
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. |
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. |
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. |
7.3 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. |
| (( |
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. |
10.3 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. |
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. |
| 11.2.1 | 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. |
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. |
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 77.12.040. 98-05-041 (Order 98-17), 232-12-297, filed 2/11/98, effective 3/14/98. Statutory Authority: RCW 77.12.020. 90-11-066 (Order 442), 232-12-297, filed 5/15/90, effective 6/15/90.]
OTS-5267.1
AMENDATORY SECTION(Amending Order 283, filed 10/3/86)
WAC 232-12-292
Bald eagle protection rules.
Purpose
1.1 The purpose of these rules is to protect the habitat and
thereby ((increase and)) maintain the population of the bald
eagle so that the species ((no longer)) is not classified as
threatened ((or)), endangered or sensitive in Washington
state. ((The "delisting" of the bald eagle for Washington
state is a realistic goal which)) This can best be
accomplished by promoting cooperative efforts to manage for
((site-specific)) eagle habitat needs through a process
which is sensitive to the ((site-specific)) landowner goals
as well. The following rules are designed to promote such
cooperative management.
Authority
2.1 These rules are promulgated pursuant to RCW 77.12.655.
Definitions
3.1 "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 "Cultural activities" means activities conducted to foster
the growth of agricultural plants and animals.
((3.3 "Delist" means to remove a species from the state
special species list by action of the game commission or
from the federal endangered species list by action of the
secretary of the interior.
3.4)) 3.3 "Department" means department of ((game)) fish and
wildlife.
((3.5)) 3.4 "Endangered" means a species which is seriously
threatened with extirpation throughout all or a significant
portion of its range within Washington.
((3.6)) 3.5 "Government entities" means all agencies of
federal, state and local governments.
((3.7)) 3.6 "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.
((3.8)) 3.7 "Nest tree" means any tree that contains a bald
eagle nest or has contained a nest.
((3.9)) 3.8 "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.
((3.10)) 3.9 "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.
((3.11)) 3.10 "Predacides" means chemicals used to kill or
control problem wildlife.
((3.12)) 3.11 "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.
((3.13)) 3.12 "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)) 3.13 "Threatened" means a species that could become
endangered within Washington without active management or
removal of threats.
Applicability and operation
4.1 The department ((of game)) 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 The department ((of game)) 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. ((The
department regularly shall confer with other governmental
entities to improve the preliminary nest site management
information and its accessibility and useability.))
4.3 The department's goal shall be to identify, catalog and
prioritize eagle ((nesting)) nest or communal roost sites. The department shall ((facilitate landowner notification
that nesting or roost sites exist on their property and work
with landowners to develop a)) notify permitting agencies of
nesting or roost site ((description)) locations.
4.4 When a ((proposed)) 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 ((immediately)) notify the department ((of game
of the permit application)).
((4.5 When)) If the department determines that ((a)) the
proposed activity would adversely impact eagle habitat, a
((department representative shall meet on-site with the
landowner and, where applicable, a representative of the
permitting agency to discuss management options for the
protection of eagle habitat. The purpose of these
discussions shall be to reach agreement on a site management
plan for bald eagle habitat protection)) 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.
((4.6)) 4.5 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
((of game)), be subject to the site management planning
process described in these rules.
((4.7)) 4.6 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 ((of game)).
Site management plan for bald eagle habitat protection
5.1 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 ((shall)) may be considered,
including, but not limited to, the following:
5.1.1 The status of the eagle population in the region.
5.1.2 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 Eagle behavior and historical use patterns,
available food sources, and vulnerability to
disturbance.
5.1.4 The surrounding land-use conditions, including
degree of development and human use.
5.1.5 Land ownership, landowner ability to manage, and
flexibility of available landowner options.
5.1.6 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 Published recommendations for eagle habitat
protection of other government entities such as
the U.S. Fish and Wildlife Service.
5.2 The site management plan ((shall)) may provide for
5.2.1 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 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 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 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 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 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 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 The department((,)) and the landowner ((and the permitting
agency)) shall ((work)) attempt to develop a mutually
agreeable site management plan within 30 days of the
original notice to the department ((of game. This plan
shall become a part of the application for a permit)).
7.2 Should agreement not be reached, the landowner may ((refer
the site management plan to the bald eagle oversight
committee (paragraph 8). The committee shall have 30 days
from the date contacted to bring about agreement among the
department, the landowner, and the permitting agency. The
committee may use conciliation, mediation and factfinding,
or any other method they deem appropriate to bring about a
mutually acceptable resolution of the issues)) request an
informal settlement conference with the department.
7.3 If the landowner chooses not to use the ((services of the
bald eagle oversight committee)) informal settlement
conference process or if resolution is not reached, the
department ((of game)) shall within 15 days provide a site
management plan to the landowner ((and permitting agency)).
7.4 Upon issuance of a final site management plan, the landowner
may initiate a formal appeal of the ((department of game's))
department's decision. ((Formal appeal procedures appear in
WAC 232-12-197.)) 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. |
((Bald eagle oversight committee
8.1 The director of the department of game shall appoint a
five-member bald eagle oversight committee with two members
representing landowner interests, two members representing
wildlife interests and one nonvoting member from the
department of game. Members are appointed for three year
terms, with the initial terms for one, two or three years so
that committee appointments will be staggered over time. The committee shall meet at least quarterly, and as needed,
to accomplish the following:
Automatic review processes
9.1 The bald eagle oversight committee will report to the
department of game annually regarding its activities under
paragraph 8.1. The department of game will conduct an
initial review of the bald eagle regulatory process after 3
years which will include a public hearing, and then every
five years thereafter.))
Penalties
((10.1)) 8.1 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 ((77.21.010))
77.15.130.
[Statutory Authority: RCW 77.12.655. 86-21-010 (Order 283), 232-12-292, filed 10/3/86.]