DAR File No. 43328

Natural Resources, Wildlife Resources

Rule R657-48

Wildlife Species of Concern and Habitat Designation Advisory Committee

Notice of Proposed Rule

(Amendment)

DAR File No.: 43328
Filed: 10/29/2018 09:56:18 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended pursuant to Regional Advisory Council and Wildlife Board meetings conducted for taking public input and reviewing the Division of Wildlife Resources' (Division) sensitive species program.

Summary of the rule or change:

These rule amendments: 1) simplify the current rule language; 2) remove the requirement to automatically add Endangered Species Act (ESA) species and conservation agreements; and 3) remove wildlife habitat designations.

Statutory or constitutional authorization for this rule:

• Section 23-14-19
• Section 63-34-5

Anticipated cost or savings to:

the state budget:

These rule amendments clarify and simplify this rule language relating to the procedures for the designation of sensitive species within the state and the designation of wildlife habitat and management recommendations relating to significant land use development projects.

local governments:

This filing does not create any direct cost or saving impact to local governments because they are not directly affected by this rule. Nor are local governments indirectly impacted because this rule does not create a situation requiring services from local governments.

small businesses:

These rule amendments do not directly create a cost or saving impact to small businesses.

persons other than small businesses, businesses, or local governmental entities:

These rule amendments do not directly create a cost or saving impact to other persons.

Compliance costs for affected persons:

These rule amendments clarify and simplify language already in rule and do not add additional requirements, therefore, the Division has determined that there is no additional compliance costs associated with these amendments.

Comments by the department head on the fiscal impact the rule may have on businesses:

After conducting a thorough analysis, it was determined that these proposed rule amendments will not result in a fiscal impact to businesses.

Michael R. Styler, DNR Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Natural Resources
Wildlife Resources
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Staci Coons at the above address, by phone at 801-538-4718, by FAX at 801-538-4709, or by Internet E-mail at stacicoons@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/17/2018

This rule may become effective on:

12/24/2018

Authorized by:

Mike Fowlks, Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2019	FY 2020	FY 2021
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

These proposed rule changes to R657-48 Wildlife Sensitive Species are not expected to have any fiscal impact on non-small businesses revenues or expenditures, because there are no services required from them in order to implement the rule changes.

 

The head of department of Natural Resources, Michael Styler, has reviewed and approved this fiscal analysis.

 

 

R657. Natural Resources, Wildlife Resources.

R657-48. Wildlife Sensitive Species[ of Concern and Habitat Designation Advisory Committee ].

R657-48-1. Authority and Purpose.

(1) Pursuant to [Sections]Section 23-14-19[ and 63-34-5(2)(a)] of the Utah Code, this rule:

(a) establishes the [Wildlife Species of Concern and Habitat Designation Advisory Committee;]process for designating wildlife sensitive species as part of an effort to prevent further imperilment of wildlife species native to Utah and preclude additional listings under the ESA;

(b) defines [its purpose and relationship to local, state and federal governments, the public, business, and industry functions of the state;

(c) defines ]the Utah Sensitive Species List; and

([d]c) defines the [procedure for:]manner in which the Sensitive Species List is intended to be used.

[(i) the designation of wildlife species of concern as part of a process to preclude listing under the ESA; and

(ii) review, identification and analysis of wildlife habitat designation and management recommendations relating to significant land use development projects.]

 

R657-48-2. Definitions.

(1) The terms used in this rule are defined in Section 23-13-2.

(2) In addition:

(a) "Committee" means the Wildlife Sensitive Species[of Concern and Habitat Designation] Advisory Committee.

(b[) "Conservation species" means wildlife species or subspecies that are currently receiving special management under a conservation agreement developed or implemented by the state to preclude the need for listing under the ESA.

(c]) "Department" means the Department of Natural Resources.

([d]c) "Division" means the Division of Wildlife Resources within the Department.

([e]d) "ESA" means the federal Endangered Species Act.

([f]e) "Executive Director" means Executive Director of the Department.

([g) "Habitat identification material" means maps, data, or documents prepared by the Division in the process of specifying wildlife habitat.

(h) "Management recommendations" means determinations of, amount of, level of intensity, timing of, any restrictions, conditions, mitigation, or allowances for activities proposed for a project area pursuant to this rule.

(i) "NEPA" means the National Environmental Policy Act as defined in 42 U.S.C. Section 4321-4347.

(j]f) "Interested Person" means an individual, firm, association, corporation, limited liability company, partnership, commercial or trade entity, any agency of the United States Government, the State of Utah, its departments, agencies and political subdivisions.

([k) "Project area" means the geographical area covered by a significant land use development.]g) "Wildlife sensitive species" means a native wildlife species or subspecies within the state that is undergoing or is likely to undergo substantial declines in population size or distribution, throughout significant portions of its range within the state, without cooperative management intervention or mitigation of threats.

([l) "Proposed wildlife habitat designation" means identified habitat in a project area undergoing review]h) "Wildlife Sensitive species designation" means the decision to bestow or remove wildlife sensitive species status on a wildlife species or subspecies pursuant to this rule.

[(m) "Significant land use development" means any project or development identified as such by the Executive Director, or as approved through petition as described in Section R657-48-5.

(n) "Wildlife habitat designation document" means the written decision of the Executive Director after following the provisions of this rule for wildlife habitat designation and management recommendations for a project area.

(o) "State sensitive species" means:

(i) wildlife species or subspecies listed under the ESA, and now or previously present in Utah;

(ii) wildlife species or subspecies de-listed under the ESA during the past six months that are now or were previously present in Utah;

(iii) wildlife species or subspecies now or previously present in Utah that are currently proposed by the U.S. Fish and Wildlife Service for listing under ESA;

(iv) candidate wildlife species or subspecies under the ESA now or previously present in Utah;

(v) wildlife species or subspecies removed from the ESA candidate list during the past six months that are now or were previously present in Utah;

(vi) conservation species; or

(vii) wildlife species of concern.

(p) "Wildlife habitat designation" means the wildlife habitat identification within a project area issued pursuant to this rule.

(q) "Wildlife habitat identification" means the description, classification and assignment by the Division of any area of land or bodies of water as the habitat, range or area of use, seasonally, historically, currently, or prospectively of or by any species of game or non-game wildlife in the State of Utah.

(r) "Wildlife species of concern" means a wildlife species or subspecies within the state of Utah for which there is credible scientific evidence to substantiate a threat to continued population viability.

(s) "Wildlife species of concern designation" means the decision to bestow wildlife species of concern status on a wildlife species or subspecies, or remove wildlife species of concern status from a wildlife species or subspecies, pursuant to this rule.]

([t]i) "Utah Sensitive Species List" means the list of all current state sensitive species.

 

R657-48-3. Department Responsibilities.

(1) There is established a Wildlife Sensitive Species[ of Concern and Habitat Designation] Advisory Committee within the Department of Natural Resources.

(2) The Department shall provide staff support, arrange meetings, keep minutes, and prepare and distribute final recommendations.

 

R657-48-4. Committee Membership and Procedure.

(1) Committee membership shall consist of:

(a) the Executive Director of the Department;

(b) the Director of the Utah Public Lands Policy Coordinating Office or a designee;

(c) the Director of the Division or a designee;

(d) the Director of the Division of Oil, Gas and Mining or a designee;

(e) the Director of the Division of Water Resources or a designee; and

(f) any other Department Division heads or designees as determined by the Executive Director of the Department.

(2) The Executive Director shall serve as chair.

(3) Three members, consisting of the Executive Director, the Division Director and the Director of the Division of Oil, Gas and Mining, shall constitute a quorum for meetings of the Committee.

(4) The Committee shall meet as specified by the Executive Director.

(5) The [following procedure shall be used for submitting review items]Division Director shall submit all proposed wildlife sensitive species designations to the Executive Director for [inclusion on the ]Committee [agenda]review:

[(a) the Division Director shall submit for committee review all proposed wildlife species of concern designations; and

(b) the Division Director shall submit for committee review any proposed or existing wildlife habitat designations and corresponding management recommendations within a project area.]

(i) The Division shall support its proposals for wildlife sensitive species [of concern ]designations[, wildlife habitat designations and management recommendations] with:

(A) studies, investigations and research supporting the need for the designations[and the potential impacts of each proposal];

(B) field survey and observation data; and/or

(C) federal, state, local and academic information on habitat, historical and current species distribution, [and]threats to the species, population trends, and/or other data or information collected in accordance with generally accepted scientific techniques and practices , including findings expressed in the Utah Wildlife Action Plan.

(6) The Department will provide an [analysis]assessment of potential impacts of the proposed designations and the existing social and economic needs of the affected communities and interests.

 

R657-48-5. Public Participation and Setting of Meeting Agenda.

(1)[An interested person may petition the Executive Director for a hearing before the Committee to designate a project as a significant land use development for purposes of this rule.](a) All meetings of the Wildlife Sensitive Species Advisory Committee shall comply with the Utah Open and Public Meetings Act, Utah Code Ann. 52-4-101 et seq.

([2) The Executive Director shall act to approve or disapprove a petition or extension request within 14 calendar days.

(3)(a) The]b) The meeting agenda shall consist of items determined by the Executive Director, and copies shall be sent to Committee members[and other interested persons as requested].

([b]c) The agenda shall be posted on the Division website and distributed to the Committee members at least 28 calendar days prior to the meeting.

([c) Requests to receive notices and agendas must be submitted in writing to the Executive Director's Office as provided in Subsection R657-48-9(1).

(4]2) Any interested person may:

(a) submit comments on proposed wildlife [species of concern and wildlife habitat]sensitive designations;

(i) comments must be submitted in writing to the Executive Director for review and must be submitted at least seven calendar days prior to the meeting; or

(b[) request an extension of up to 30 calendar days to review a proposed Committee action; or

(c]) request to make an oral presentation before the Committee.

(i) An interested person seeking to make a presentation before the Committee concerning any matter under review, must submit a written request and supporting documentation to the Executive Director at least [14]seven calendar days prior to the meeting.

 

R657-48-6. Committee Review Actions.

(1) In conducting a review of issues, the Committee may:

(a) require additional information from the Division, the Department or interested persons;

(b) require the Division or interested persons to make presentations before the Committee or provide additional documentation in support or opposition of the recommendation;

(c) schedule additional meetings where public interest or agency concern merits additional discussion;

(d) undertake additional review functions as needed; or

(e) consider the need for involvement of other persons or agencies, or whether other action may be needed.

(2) Following the Committee's review and recommendation, the Executive Director shall[:

(a) ] make a final determination and, if warranted, recommend the approval of any or all proposed wildlife sensitive species[of concern] designations to the Wildlife Board[; or].

[(b) in the case of proposed wildlife habitat designations, make a final determination.]

(3) The Executive Director's decision will be announced at that meeting, or the next formal meeting, on the proposed wildlife sensitive species[of concern] designations or habitat designations, unless an alternative time is required by federal or state law, or rule.

 

R657-48-7. Wildlife Sensitive Species[ of Concern ] Designation Process.

(1) A wildlife sensitive species[of concern] designation shall be made only after the Executive Director, following consideration of the Committee's recommendations, has made a formal written recommendation to the Wildlife Board, and after that Board has considered:

(a) the Executive Director's recommendation, and all comments on such recommendation; and

(b) all data, testimony and other documentation presented to the Committee and the Wildlife Board pertaining to such proposed designation.

(2) All wildlife sensitive species[ of concern] designations shall be made[:

(a) ] pursuant to the procedures specified in this rule[; and

(b) as an independent public rulemaking pursuant to the Administrative Rulemaking Act, Title 63G, Chapter 4 of the Utah Code.]

(3[) With each proposed wildlife species of concern designation, the accompanying analysis shall include either a species status or habitat assessment statement, a statement of the habitat needs and threats for the species, the anticipated costs and savings to land owners, businesses, and affected counties, and the inclusion of the rationale for the proposed designation.

(4]) The Wildlife Board may approve, deny or remand the proposed wildlife sensitive species [of concern ]designation recommendation to the Executive Director.

([5]4) Until a proposed wildlife sensitive species [of concern ]designation is finalized, the proposed designation may not be used or relied upon by any governmental agency, interested person, or entity as an official or unofficial statement of the state of Utah.

([6]5) The Division shall maintain all data collected and other information relied upon in developing proposed wildlife sensitive species[of concern] designations as part of the administrative record and make such information available, subject to the Government Records Access and Management Act as defined in Section 62-2-101, for public review and copying upon request.

([7]6) The Division shall maintain the Utah Sensitive Species List and update the list as necessary to maintain [consistency with Subsection R657-48-2(2)(o) as the statuses of]up-to-date status information on sensitive species which change [due to one or more of the following]because of:

(a) wildlife species[ of concern or other wildlife species are listed under ESA;

(b) wildlife species are de-listed under ESA;

(c) wildlife species' names change]' name changes due to taxonomic revisions;

([d]b) new wildlife sensitive species[of concern] are designated pursuant to this rule; or

([e]c) wildlife sensitive species[of concern] status is removed from species pursuant to this rule[;].

[(f) conservation agreements are developed and implemented for species;

(g) conservation agreements become invalid;

(h) species become candidates for listing under ESA;

(i) species lose candidate status under ESA;

(j) species are formally proposed for listing under ESA by the U.S. Fish and Wildlife Service; or

(k) species lose proposed status under ESA.

(8) If a species designated as a wildlife species of concern is listed under ESA, is proposed for listing under ESA, becomes a candidate for listing under ESA, or becomes a conservation species, the changed species status will be reflected in the Utah Sensitive Species List. If the species subsequently loses its ESA status or the conservation agreement becomes invalid, the species will revert to wildlife species of concern status.]

 

R657-48-8. [Wildlife Habitat Designations and Management Recommendations]Availability and Intended Uses.

(1) [Wildlife habitat designations and management recommendations for project areas will be made pursuant to the procedures specified by this rule.]The Division shall make available by common electronic means on its website the wildlife sensitive species which are designated by this rule.

[(2) Any Department or Division map, identification of habitat, document or other material that is provided or released to, or used by any persons, including federal agencies, which includes wildlife habitat designations that have been adopted under this rule will so indicate.

(3) A proposed wildlife habitat designation and management recommendation shall be adopted by the Executive Director only after the Executive Director, following consideration of the Committee's recommendations, has considered all data, testimony and other documentation presented to the Committee pertaining to such proposed designation.

(4) Until a final determination on a proposed wildlife habitat and management recommendation has been made by the Executive Director, the proposed wildlife habitat or management recommendations may not be used or relied upon by any other governmental agency, interested person, or entity as an official or unofficial statement of the state of Utah.

(5) A Wildlife Habitat Designation document developed for the purpose of this rule, having been completed by the Executive Director, shall be attached to the wildlife habitat identification materials and made available for public review or copying upon request.

(6) The Division shall maintain all data collected and other information relied upon in developing proposed wildlife habitat designations and management recommendations as part of the administrative record, and make this information available in accordance with the Government Records Access and Management Act as defined in Section 62-2-101, for public review and copying upon request.

 

R657-48-9. Distribution.

(1) The Division shall send by mail or electronic means a copy of a proposed wildlife species of concern designation or wildlife habitat and management determination established under this rule to the following:

(a) any person who has requested in writing that the Division provide notice of any proposed wildlife species of concern designations or proposed wildlife habitat and management recommendations under this rule; and

(b) county commissions and tribal governments, which have jurisdiction over lands that are covered by a proposed wildlife habitat designation and management recommendation and of lands inhabited by a species proposed to be designated as a wildlife species of concern under this rule.]

(2) Wildlife sensitive species [of concern designations, wildlife habitat designations or management recommendations]designations are intended to inform natural resource management practices across the state by highlighting which wildlife species may warrant increased conservation attention through such means as habitat restoration, active species management, and avoidance, reduction, and mitigation of impacts, with ultimate goals of reducing the likelihood of future listings under the Endangered Species Act, and conserving the diversity of wildlife species native to Utah.

(3) Wildlife sensitive species designations may not be used by governmental entities as a basis to involuntarily restrict the private property rights of landowners and their lessees or permittees.

 

KEY: sensitive species[ of concern, habitat designation ]

Date of Enactment or Last Substantive Amendment: [August 8, 2006]2018

Notice of Continuation: May 2, 2016

Authorizing, and Implemented or Interpreted Law: 23-14-19; 63-34-5(2)(a)