WSR 02-17-118

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed August 21, 2002, 11:28 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 01-22-106.

     Purpose: To amend WAC 232-12-181.

     Statutory Authority for Adoption: RCW 77.12.210.

     Statute Being Implemented: RCW 77.12.210.

     Summary: WAC revisions incorporate new policy guidance from the Fish and Wildlife Commission designed to provide improved habitat protection on fish and wildlife-managed properties. WAC revision requires grazing permits to include grazing plans that includes a description of ecological impacts, fish and wildlife benefits, a monitoring plan and an evaluation schedule for lands that will be grazed by livestock, and a description of the desired ecological conditions. WAC revision corrects reference to a permit being issued by the department instead of a lease. WAC revision addresses statutory requirements of RCW 77.12.201 which became law in 1993. This led to the establishment of ecosystem standards for department owned and managed agricultural and grazing lands.

     Reasons Supporting Proposal: Existing WAC 232-12-181 has not been updated since 1988. Amendments to this WAC make it consistent with other statutes, specifically RCW 77.12.204 that created ecosystem standards for state-managed agricultural and grazing lands in 1994. Existing WAC does not reflect new policy guidance from the commission.

     Name of Agency Personnel Responsible for Drafting and Implementation: Dave Brittell, Assistant Director, Wildlife Program, Olympia, (360) 902-2504; Enforcement: Bruce Bjork, 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: The WAC establishes a process for the director to permit domestic livestock use on fish and wildlife-managed properties. The WAC establishes a review process involving the fish and wildlife commission and department, minimum proposal requirements, habitat standards and criteria to consider and a timeline for review of proposed domestic livestock grazing permits. The purpose of this process is to protect fish and wildlife habitats on Washington Department of Fish and Wildlife (WDFW) managed lands and use domestic livestock where appropriate or needed as a habitat management tool.

     Proposal Changes the Following Existing Rules: See Explanation of Rule above.

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

Small Business Economic Impact Statement

    
     1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: The reporting, record-keeping, and other compliance requirements of the proposed rule are consistent with normal small business record-keeping requirements and similar to what was required under the previous rule. Permittees using WDFW lands for domestic livestock use are still expected to keep accurate records of the number of animals they put onto WDFW lands, when they are turned out and when they are taken off. This has always been necessary for billing purposes by WDFW. Although the burden for monitoring livestock use falls primarily on WDFW personnel, the revised rule requires better monitoring and evaluation. This could be construed to further burden the owner or operator of the livestock operation. This may or may not occur depending on operator's proficiency managing livestock use and distribution on public rangelands.

     2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: None over and above what would have been required before. Knowledge and experience managing a domestic livestock operation including all the recordkeeping, livestock handling capability and personnel and equipment to physically transport or move livestock from one area to another would be required to comply with this rule. Additional professional services could be obtained through the Washington State Cattlemen's Association or Washington State University Cooperative Extension or by hiring a rider to herd animals and monitor use if needed.

     3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: Compliance with the new rule should not have any affect on costs. Some operators may feel that additional livestock monitoring is necessary and therefore feel obligated to hire additional personnel.

     4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No. Some operators may feel that the new rule reduces their opportunities to run livestock on WDFW managed properties. This may or may not occur. For operators that continue to use WDFW properties, their sales or revenues should not 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.

     Livestock operation economics (cattle) is based on the cost of adding weight (gain) to cattle. These costs are affected by the price of feed that in the case of WDFW grazing permits are a function of the condition and availability of range forage on areas allowed for grazing under the permit. WDFW authorizes use by livestock based on animal unit months. Once authorized for use under the permit, livestock utilization and gain should be similar to what was available before the rule change, therefore not creating additional costs for compliance.

     6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: Operators who demonstrate proficiency at managing their livestock operation, under conditions imposed by WDFW through the permit, will in most circumstances be able to renew their permits for another five years.

     7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: This rule will result from Fish and Wildlife Commission policy that is currently under development. The Washington's Cattlemen's Association is currently reviewing the proposed commission policy and will provide comments. In addition, a State Environmental Policy Act review is underway on the proposed development of a commission policy.

     8. A List of Industries That Will Be Required to Comply with the Rule: The rule is an agency WAC that controls the issuance of permits to livestock operators to use WDFW lands. This rule could affect any operator of domestic livestock who wishes to use WDFW lands and is issued a permit to do so.

     A copy of the statement may be obtained by writing to Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2402, fax (360) 902-2162.

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

     Hearing Location: Marcus Whitman Hotel and Conference Center, Six West Rose, Walla Walla, WA, on September 27-28, 2002, at 8:00 a.m.

     Assistance for Persons with Disabilities: Contact Nancy Burkhart by September 20, 2002, 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 September 18, 2002.

     Date of Intended Adoption: September 27, 2002.

August 21, 2002

Evan Jacoby

Rules Coordinator


AMENDATORY SECTION(Amending Order 323, filed 11/22/88, effective 12/23/88)

WAC 232-12-181   Livestock grazing on department of fish and wildlife lands.   All persons wishing to apply for a grazing ((lease)) permit should contact the Washington Department of Fish and Wildlife, 600 North Capitol Way, Olympia, Washington 9850((4))(1).

     (1) The director is authorized to enter into grazing ((leases)) permits when the director determines that a grazing ((lease)) permit will be consistent with the desired ecological condition for those lands and the department's strategic plan ((benefit wildlife management programs and will be in the public interest)). Except for temporary permits, each grazing ((lease)) permit shall first be submitted to the commission, which may review the ((lease)) permit to determine whether it is consistent with the commission grazing policy ((will benefit wildlife or improve public hunting, fishing or recreation without adverse impact on wildlife)). If, within 30 days, the commission has not disapproved the ((lease)) permit, the director shall be deemed authorized to enter into that ((lease)) permit.

     (2) The director shall advertise and sell a ((license)) permit to use department lands for grazing at public auction to the highest bidder. The director is authorized to reject any and all bids if it is determined to be in the best interest of the department to do so. The director may negotiate a grazing ((lease)) permit without using the public auction process only when the director determines that benefits to wildlife would be equal to or greater than the cash or monetary payments foregone.

     (3) The term of each grazing ((lease)) permit shall be no greater than five years. When an existing ((lease)) permit expires or is about to expire, and the director wishes to continue to permit grazing on the subject parcel, then a modified public auction process shall be used. A minimum bid based on market value shall be established prior to the public auction. The last previous or the existing ((lessee)) permittee shall be provided the option of meeting the highest bid made at public auction. The director may grant a term longer than five years only with the prior approval of the commission. The director may permit exceptions to the public auction process only when the director determines that benefits to wildlife would be equal to or greater than the cash or monetary payment foregone.

     (4) A temporary permit may be granted by the director to satisfy an immediate, short-term need where benefits to wildlife management programs and the public interest can be demonstrated. The term of a temporary permit shall not exceed two weeks and no fee need be charged.

     (5) ((The director may approve a grazing lease where a grazing management plan which includes objectives and site characteristics, pasture rotation schedule, on-off dates, number of AUM's, and a monitoring plan has been developed by the agency)) Each grazing permit proposal shall be accompanied by a domestic livestock grazing management plan that includes a description of ecological impacts, fish and wildlife benefits, monitoring plan and an evaluation schedule for lands that will be grazed by livestock, and a description of the desired ecological conditions. The director shall inspect the site of a grazing ((lease)) permit no less than two times each year. The director shall retain the right to alter provisions of the plan to reduce acreage available or the number of animals using the area when such change is, in the judgment of the director, required to benefit fish or wildlife management, public hunting and fishing, or other recreational uses. With the exception of temporary permits, ((T)) the director may not enter into any grazing ((lease)) permit not accompanied by a grazing management plan unless the commission has approved it.

     (6) The director may cancel a ((lease)) permit (1) for noncompliance with the terms and conditions of the ((lease)) permit, or (2) if the area described in the ((lease)) permit is included in a land use plan determined by the agency to be a higher and better use, or (3) if the property is sold or conveyed, or (4) if damage to wildlife or wildlife habitat occurs.

     (7) All lands covered by any grazing permit agreement shall at all times be open to public hunting, fishing and other wildlife recreational uses unless such lands have been closed by action of the commission or emergency order of the director

[Statutory Authority: RCW 77.12.210. 88-23-109 (Order 323), § 232-12-181, filed 11/22/88. Statutory Authority: RCW 77.12.040. 82-04-034 (Order 177), § 232-12-181, filed 1/28/82; 81-12-029 (Order 165), § 232-12-181, filed 6/1/81. Formerly WAC 232-12-405.]

     Reviser's note: The typographical 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.

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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