§19.3 - State Treatment of Endangered Species
Jurisdiction | Washington |
§19.3 State Treatment of Endangered Species
States may enact laws and regulations regarding the taking of an endangered or threatened species that are more restrictive than the federal statute. 16 U.S.C. §1535(f). A state law is void, however, to the extent that it may effectively (1) permit what is prohibited by [the ESA] or by any regulation which implements [the ESA], or (2) prohibit what is authorized pursuant to an exemption or permit provided for in [the ESA] or in any regulation which implements [the ESA]. Id.
The services are authorized to enter into cooperative agreements with states to develop and maintain conservation programs for endangered and threatened species of wildlife and plants. 16 U.S.C. §1535(c). Any state that has entered into such a cooperative agreement is eligible for federal funding to assist in the implementation of its conservation programs and in monitoring of candidate and recovered species. 16 U.S.C. §1535(d)(1). Funding allocations are based on consideration of several factors, including the number of listed species within the state and the potential to restore those species. Id. Washington has entered into a cooperative agreement with the USFWS and receives federal funding for implementation of conservation projects, development of HCPs, and acquisition of land for conservation purposes.The Washington Department of Fish and Wildlife web page identifies state projects funded through the traditional and nontraditional Section 6 program in four categories: research and recovery for species, HCP land acquisition, HCP planning assistance, and recovery land acquisition. See Wash. Dep't of Fish & Wildlife, About WDFW, Grants & Incentives, Cooperative Endangered Species Conservation Fund "Section 6["], https://wdfw.wa.gov/grants/section6/ (last visited Mar. 29, 2018).
Washington does not have an endangered species act. However, Chapter 77.12 RCW authorizes the Washington Fish and Wildlife Commission to list endangered species, RCW 77.12.020(6). Chapter 77.15 RCW establishes penalties for the unlawful taking of endangered or otherwise protected species of wildlife. The Washington Department of Natural Resources (DNR) also implements the Washington Natural Heritage Program, providing lists of rare plants and animals in the state. See Dept of Natural Res., Washington Natural Heritage Program, http://www.dnr.wa.gov/ResearchScience/Topics/NaturalHeritage/Pages/amp_nh.aspx (last visited Nov. 1, 2012).
State agencies and local governments implementing the State Environmental Policy Act (SEPA), Chapter 43.21C RCW, and Growth Management Act (GMA), Chapter 36.70A RCW, also may require consideration and mitigation of impacts on federally listed endangered and threatened species as well as state and locally listed species. See, e.g., WAC 197-11-330(3)(e)(iii); WAC 365-190-080.In doing so, such entities often use information on species compiled by the Washington Department of Fish and Wildlife (DFW) and DNR to restrict land use activities with the potential to impact any such listed species.
(1) State species classification
The DFW maintains lists of species of concern in Washington, including endangered, threatened, sensitive, and candidate species of wildlife, as well as those species occurring in Washington that are listed or proposed for listing under the ESA. The Washington Fish and Wildlife Commission considers proposals from the DFW or any interested party to list species native to Washington that are threatened with extinction or likely to become endangered or threatened in a range essential to the long term survival of the population in Washington. RCW 77.12.020; WAC 232-12-297(Definition 2.9). Threatened and sensitive species lists can be found in WAC 232-12-011.The state endangered species list is found in WAC 232-12-014.A comprehensive list of all state species of concern is available electronically. See Dept of Fish & Wildlife, Washington State Species of Concern Lists: Species of Concern in Washington State, http://wdfw.wa.gov/conservation/endangered/All/ (last visited Nov. 1, 2012). The DFW also manages a list of state monitor species that includes species that require monitoring because of a recent delisting or rare habitat requirement. See Dept of Fish & Wildlife, Washington State Monitor List, http://wdfw.wa.gov/conservation/endangered/status/SM/ (last visited Nov. 1, 2012).
As part of the listing process, the DFW provides a preliminary species status report with each classification recommendation. WAC 232-12-297(Periodic species status review 10.1). The classification recommendation is subject to a minimum 90-day public comment period. WAC 232-12-297(Public review 8.1). Following the close of the public comment period, DFW prepares a final status report and listing recommendation. WAC 232-12-297(Final recommendations and commission action 9.1). The status report and listing recommendation are made publicly available at least 30 days prior to the commission meeting at which the proposed listing is considered. WAC 232-12-297(Final recommendations and commission action 9.1-9.2). After a species is listed, the DFW must update the status report at...
To continue reading
Request your trial