HB2264 - 492R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 17, Arizona Revised Statutes, is amended by adding chapter 7, to read:

CHAPTER 7

ENDANGERED and threatened SPECIES

ARTICLE 1. GENERAL PROVISIONS

START_STATUTE17-801. Definitions

In this chapter, unless the context otherwise requires:

1. "Endangered species":

(a) Means any species of wildlife whose prospects of survival or recruitment in this state are in jeopardy due to any of the following factors:

(i) The present or threatened destruction, modification or curtailment of its habitat.

(ii) Its overuse for scientific, commercial or sporting purposes.

(iii) The effect of disease or predation.

(iv) Other natural or man-made factors affecting its prospects of survival or recruitment in this state.

(v) Any combination of these factors.

(b) Includes native species of wildlife included by the commission pursuant to section 17-827 by reference to the United States list of endangered native and foreign fish and wildlife pursuant to section 4 of the endangered species act of 1973 (16 United States Code section 1533).

(i) Any species covered by 16 United States Code sections 1331 through 1340.

(ii) Any species of the class insecta determined by the director to constitute a pest whose protection under this chapter would present an overwhelming and overriding risk to humans.

2. "Investigation" means a process undertaken pursuant to section 17‑822 to determine whether a species is threatened or endangered.

3. "Land or aquatic habitat interests" means interests in real property or water rights consisting of fee simple title, easements in perpetuity, time certain easements, long-term leases and short-term leases.

4. "Management" means the collection and application of biological information for the purposes of establishing and maintaining a congruous relationship between individuals within species and populations of wildlife and the carrying capacity of their habitat. Management includes the entire range of activities that constitutes a full scientific resource program of research, census, law enforcement, propagation, acquisition or maintenance of land or aquatic habitat interests appropriate for recovery of the species, improvement and maintenance, education and related activities or protection and regulated taking.

5. "Recovery plan" means a designated program or methodology reasonably expected to lead to restoration and self maintenance of a species and its habitat.

6. "Species" means any species or subspecies.

7. "Substantial public interest" means a nonfrivolous claim indicated by a broad-based expression of public concern.

8. "Take" or "taking" means to harass, hunt, capture, prevent reproduction or kill wildlife or attempt to harass, hunt, capture or kill wildlife.

9. "Threatened species" means any species that is likely to become an endangered species in the foreseeable future throughout all or a significant part of its range in this state. Threatened species include native species of wildlife included by the commission pursuant to section 17-827 by reference to the United States list of endangered native and foreign fish and wildlife pursuant to section 4 of the endangered species act of 1973 (16 United States Code section 1533).

10. "Wildlife" means any living or dead nondomestic mammal, bird, reptile, amphibian, fish, mollusk or crustacean or any part, egg or offspring of a nondomestic mammal, bird, reptile, amphibian, fish, mollusk or crustacean. END_STATUTE

START_STATUTE17-802. Statement of policy

It is the policy of this state that:

1. Species of wildlife that are native to this state and that are found to be threatened or endangered shall be managed to maintain and, to the extent possible, enhance their numbers within the carrying capacity of the habitat, including aiding in the protection of the habitat.

2. The department shall assist in the management of species of wildlife that are considered to be endangered elsewhere by prohibiting the taking, possession, transportation, exportation, processing, sale or offering for sale or shipment in this state of species of wildlife listed on the United States lists of endangered fish and wildlife, unless those actions will assist in preserving or propagating the species.

3. The legislature shall annually appropriate adequate funding to the department from the state general fund, or from other sources separate from any fund established by chapter 2 of this title, for the management of threatened or endangered species.

4. Because the management and recovery of threatened and endangered species are the responsibility of and a benefit to all of society:

(a) The cost of management and recovery is the responsibility of all sectors of society.

(b) Those costs shall be minimized to the extent practicable.

(c) Those costs shall be borne by federal, state and local governments with contributions from the private sector. END_STATUTE

ARTICLE 2. Listing Endangered and Threatened Species

START_STATUTE17-821. Endangered and threatened species; list; unlawful activities; exception

A. On the basis of investigations concerning wildlife and other available scientific and commercial data, and after consultation with wildlife agencies in other states, appropriate federal agencies, local and tribal governments and other interested persons and organizations, the commission shall develop a list of species of wildlife native to this state that are determined to be threatened or endangered in this state, giving their common and scientific names by species and subspecies.

B. The director shall review the state list of threatened and endangered species and recommend appropriate action by the commission as provided by this article. The commission shall adopt by rule procedures for commission actions on the director's recommendations.

C. Except as otherwise provided in this chapter, it is unlawful for any person to take, possess, transport, ship, export, process, sell or offer for sale any species of wildlife appearing on the list of wildlife native to this state and determined pursuant to this article to be endangered in this state.

D. Subsection C does not apply to:

1. Wildlife transported into this state from another state, or from a point outside the territorial limits of the United States, and destined for a point beyond this state, if the wildlife is transported across this state in compliance with the terms of a federal permit or permit issued under the laws or regulations of another state or is otherwise in compliance with the laws of another state.

2. A taking of wildlife by a native American for religious purposes, unless it materially and negatively affects an endangered species or threatened species.

E. The Arizona bald eagle (Haliaeetus leucocephalus) shall remain listed as an endangered species in this state through December 31, 2017. In 2017 the director shall conduct an investigation pursuant to this article to determine whether to continue to list the Sonoran bald eagle or recommend delisting. END_STATUTE

START_STATUTE17-822. Investigations and review of species

A. Beginning in 2011 the director shall conduct a review once every two years of all species of wildlife listed as endangered or threatened in this state.

B. The director may conduct investigations at any time of other native species of wildlife that are suspected of being threatened or endangered in order to develop:

1. Information relating to population, distribution, habitat needs, limiting factors and other biological and ecological data to support recommendations for listing or not listing a species.

2. Management measures and requirements necessary for the species' survival.

C. Within a reasonable time the director shall conduct an investigation to support listing or delisting a species based on new evidence or, with the consent of the commission, based on substantial public interest.

D. On completing any investigation, the director shall make written recommendations to the commission to list or not list any unlisted species or to delist any listed species investigated. In conducting any investigation for a new listing or delisting, the director shall comply with the procedures prescribed pursuant to this article. END_STATUTE

START_STATUTE17-823. Investigations and research; procedures

A. The commission shall:

1. Establish by rule a process to conduct investigations for the purposes of section 17-822.

2. At the request of the director, appoint an appropriate odd-numbered peer review panel of scientists consisting of at least three but not more than seven members. Each member must possess expertise relevant to the proposed investigation. At least one member must be a wildlife biologist. The peer review panel shall:

(a) Review and comment on any proposed research design, including:

(i) The scientific methodology for collecting and analyzing data based on commonly accepted scientific peer review standards.

(ii) Additional field research necessary as part of the investigation.

(b) Submit its comments according to a schedule determined by the director.

B. The director shall:

1. Establish a public repository file in which copies of all written data, comments and information filed with the director pertaining to the investigation or potential recovery plan, including peer review comments, shall be maintained and used pursuant to section 17-824.

2. Mail notice of the initiation of the investigation to:

(a) Federal and state agencies and local and tribal governments that are or may be affected by the results of the investigation.

(b) Individuals and organizations that have requested notification of department actions regarding threatened or endangered species.

3. Notify the general public of the initiation of the investigation by information releases to news media in the affected area of this state.

4. Indicate, in all notices and information releases, where and until what date information may be submitted for inclusion in the public repository file.

5. Accept data, comments and information on:

(a) The biological or ecological status of the species for use in the investigation and in developing the potential recovery plan.

(b) The potential economic or social impacts or opportunities of a change in the legal status of the species for inclusion in the recovery plan. END_STATUTE

START_STATUTE17-824. Public repository file

A. The director shall file all written data, comments and information furnished pursuant to section 17-823 in a public repository file and shall preserve the file for use in connection with the listing process and development of any recovery plan.

B. The director shall include in the public repository file all records indicating contact by the director, researchers, employees and contractors with landowners and public and private resource managers affected by the potential action.

C. Information from the public repository file relating to social and economic impacts:

1. Shall be considered only in the development of any recovery plan for the species.

2. Shall not be considered by the director in making any recommendation, or by the commission in making its decision, whether to list, delist, not list, continue to list, upgrade or downgrade a species. END_STATUTE

START_STATUTE17-825. Recommendation, hearing and decision on listing endangered or threatened species; criteria

A. On receiving all final reports of reviews or investigations, the director shall make recommendations to the commission to list, not list or delist the species based on criteria listed in subsection D of this section.

B. The commission shall:

1. Set a time and place for one or more public hearings on the recommended action. All hearings on the recommended action must be held within six months after the date of the director's recommendation. Hearings must be held at a location within any quadrant of this state affected by the recommended actions if the director determines that there is substantial public interest indicated in holding a hearing in that quadrant.

2. Provide public notice of the hearings as follows:

(a) In the same manner and to the same persons as prescribed by section 17-823, subsection B.

(b) At least ninety days before the date of the hearing:

(i) Post notice of the hearing on the department's official website.

(ii) Publish legal notice in a newspaper of general circulation in the affected area.

C. The public notice shall:

1. Include the date, time and location of all hearings on the matter.

2. Include a statement of the recommended action.

3. Include the location and availability of the public repository file.

4. Indicate the place and deadline for filing written comments and testimony to be included in the hearing record.

5. Indicate that views, data and comments pertaining to the final report may be presented orally or in writing at the hearing.

6. Specify that notice of intent to present technical and scientific testimony and a written copy of the testimony to be presented must be submitted to the commission at least thirty days before the initial hearing.

7. Specify that the public record will remain open for comments for thirty days after the date of the final hearing.

D. The commission shall make its decisions and take action based on relevant and reliable evidence to list, not list or delist a species at its next regularly scheduled meeting within thirty days after the close of the hearing record. The commission shall:

1. List or maintain a species as endangered and shall not delist a species if it finds that the species' prospects for survival or recruitment in this state are in jeopardy based on the biological and ecological evidence in the public repository file and based on biological and ecological evidence received in the public hearings.

2. List or maintain a species as threatened and shall not delist a species if it finds that the species' prospects for survival or recruitment in this state are likely within the foreseeable future to be in jeopardy based on the biological and ecological evidence in the public repository file and based on biological and ecological evidence received in the public hearings. END_STATUTE

START_STATUTE17-826. Temporary emergency listing of endangered species

A. If the director finds that there is an emergency posing a significant risk to the well-being of any species and that risk is likely to jeopardize the continued survival or recruitment of the species in this state, the director shall recommend to the commission that the species be listed as endangered.

B. The commission shall act immediately on the director's recommendation and shall either list or not list the species based on the evidence supporting the recommendation if it finds that the continued survival of the species is in jeopardy.

C. If the commission lists the species as endangered, it shall waive the requirements of sections 17-822, 17-823, 17-824 and 17-825.

D. If the commission lists a species as endangered pursuant to this section, it shall:

1. Provide notice of the action in the same manner and to the same persons as prescribed by section 17-823, subsection B.

2. Post notice on the department's official website.

3. Publish legal notice in a newspaper of general circulation in the affected area.

E. The emergency listing terminates three years after the date of the finding unless, during the three year period, the commission completes the procedures for listing pursuant to sections 17-822, 17-823, 17-824 and 17-825 or continuing to list pursuant to commission rules for the biennial review. END_STATUTE

START_STATUTE17-827. Listing endangered and threatened wildlife by reference

A. The director shall include by reference in the list of endangered or threatened wildlife native species appearing on the United States lists of endangered and threatened native and foreign fish and wildlife pursuant to section 4 of the endangered species act of 1973 (16 United States Code section 1533), if the commission adopts all or part of those federal lists.

B. Species listed as threatened or endangered on the state list through adoption of the United States list pursuant to this section are not subject at the time of adoption to the listing procedures established in sections 17-822, 17-823, 17-824 and 17-825. END_STATUTE

ARTICLE 3. Recovery and management

START_STATUTE17-851. Recovery plans

A. To the extent practicable, the director shall develop a recovery plan pursuant to this section for any species listed as threatened or endangered. If indicated, the director shall conduct a social and economic analysis and, if adverse impacts are found, develop a social or economic mitigation plan.

B. To the extent practicable, the director shall develop recovery plans that include several threatened or endangered species that use similar habitats or share a common threat, or both. A multiple-species recovery plan shall be designed to accomplish the recovery of the shared habitat or reduce a common threat, or both.

C. As the initial action in developing a recovery plan, within one year after listing, the director shall schedule a public information meeting in each of the quadrants of the state determined by the director to be affected by the proposed recovery plan. These meetings shall be conducted to provide a reasonable opportunity for individuals and private and public entities to participate and comment about the development of a recovery plan for one or more species and any adverse social or economic impacts that may result from implementing the recovery plan. At these meetings the director shall present:

1. Background information about the basis of the listing.

2. An explanation of the process to develop a recovery plan.

3. The probable content in general terms, if known, of the recovery plan.

4. If needed, the process to develop a social and economic mitigation plan.

D. On completing the public information meeting or meetings under subsection C, the director shall:

1. Consult and cooperate with other states or countries if appropriate.

2. Solicit interest from representatives of affected local governments, tribal governments, landowners, state and federal agencies and other interested individuals and organizations to serve on an advisory committee.

3. Appoint to the advisory committee all of those who are willing to participate in developing the recovery plan. If necessary, the director may appoint from the membership of the advisory committee a working group reflecting the diversity of the advisory committee.

E. With the assistance of the advisory committee, the director shall develop a draft recovery plan to achieve the following objectives:

1. Restoration and maintenance of a viable population of the threatened or endangered species and its habitat reasonably expected to lead to the delisting, recovery and long-term survival of the species. For the purposes of this paragraph, "viable population" means an ecologically functioning and sustainable number of a species or subspecies.

2. Avoidance or mitigation of adverse social or economic impacts.

3. Identification of social or economic benefits and opportunities.

4. Use of volunteer resources and existing economic recovery and assistance programs and funding available from public and private sources to implement the plan.

F. The director shall mail the draft recovery plan to:

1. Federal and state agencies and local and tribal governments that are or may be affected by the recovery plan.

2. Individuals and organizations that have requested notification of department actions regarding threatened or endangered species.

G. After mailing the draft recovery plan pursuant to subsection F, the director shall take no further action for thirty calendar days to allow the submission of written comments on the draft plan to the director.

H. The final recovery plan shall be presented to the commission for its consideration within two years after the date the species was listed. If the commission determines that the proposed plan will achieve the objectives set forth in subsection E, it shall approve the recovery plan or approve with conditions. After approval of the plan, the director shall:

1. Seek cooperation from other states and countries, if appropriate, and landowners, state and federal agencies and local and tribal governments for implementation of the plan.

2. If appropriate, submit the plan to the United States secretary of the interior for approval pursuant to the endangered species act of 1973. END_STATUTE

START_STATUTE17-852. Endangered species management programs

A. The director shall establish programs as authorized and considered necessary by the commission for the management of endangered species, including programs for:

1. Research.

2. The designation of the boundaries critical habitat, if prudent after considering economic and other impacts.

3. The acquisition of land or aquatic habitat interests pursuant to section 17-853.

B. In carrying out programs pursuant to this section, the director may:

1. Enter into agreements with federal agencies, political subdivisions of this state or private individuals for the administration and management of any program established under this section or used to manage endangered species.

2. Authorize by permit the taking, possession, transportation, exportation or shipment of species or subspecies that the commission considers to be in need of management pursuant to this section for scientific, zoological or educational purposes, for propagation in captivity or to protect private property.

C. Endangered species may be removed, captured, held or destroyed if necessary to alleviate or prevent damage to property or to protect human health. Such removal, capture, possession or destruction may be carried out only by permit as authorized by the director, unless otherwise provided by law. Endangered species may be removed, captured, held or destroyed without permit by any person in emergencies involving an immediate threat to human life or private property. END_STATUTE

START_STATUTE17-853. Acquiring interests in land or water habitat

A. The director may acquire land or aquatic habitat interests to conserve, manage, restore, propagate and protect threatened or endangered species.

B. The director shall conduct studies to determine the status and requirements for survival of threatened or endangered species. END_STATUTE

START_STATUTE17-854. Violation; classification

A. A person who fails to acquire a permit required by section 17-852, subsection B or C, or who violates the terms of the permit, is guilty of a class 1 misdemeanor.

B. A person who violates section 17-821, subsection C, or any rules adopted pursuant to section 17-821, is guilty of a class 6 felony. END_STATUTE

START_STATUTE17-855. Enforcement

A. Game rangers, wildlife managers and other peace officers shall enforce this chapter and shall:

1. Seize any wildlife held in violation of this chapter.

2. Arrest any person who violates this chapter.

3. Open, enter and examine any camp, vehicle, shelter or container that may hold wildlife in violation of this chapter.

B. At the direction of the director, game rangers or wildlife managers may establish checking stations at points along any highway, as defined in section 28-101, as needed to enforce this chapter. END_STATUTE