H. B. 2614
(By Mr. Speaker (Mr. Chambers) and Delegates
Love, Compton and Vest)
[Introduced March 17, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-d, relating to
threatened and endangered species; conservation; restoration
and propagation.
Be it enacted by the Legislature of West Virginia:
That chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended, by
adding thereto a new article, designated article two-d, to read
as follows:
ARTICLE 2D. THREATENED AND ENDANGERED SPECIES CONSERVATION ACT.
§20-2D-1. Definitions.
As used in this article, unless the context otherwise
requires.
(a) "Conserve" means to bring any endangered or threatened
species to the point at which the measures provided for these
species pursuant to this article are no longer necessary. Methods and procedures used may include all activities associated
with scientific resource management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation,
live trapping, transplantions and protection of species or
populations as well as regulated taking.
(b) "Director" means director of the West Virginia Division
of Natural Resources.
(c) "Division" means West Virginia Division of Natural
Resources.
(d) "Ecosystem" means a system of living organisms and their
environment, each influencing the existence of the other and both
necessary for the maintenance of life.
(e) "Endangered Species" means any species of wildlife or
plant which is in danger of extinction throughout all or a
significant portion of its range in the state due to any of the
following factors:
(1) The destruction, drastic modification, or severe
curtailment of its habitat; or
(2) Its overuse by scientific, commercial, or sporting
purposes; or
(3) The effect of disease, pollution, or predation; or
(4) Other natural or man-made factors affecting its
prospects.
(f) "Endangered Species Act" means the Endangered Species
Act of 1973, 87 Stat. 884.
(g) "Harass" in the definition of "take" means anintentional or negligent act or omission which creates the
likelihood of injury to wildlife by annoying it to such an extent
as to significantly disrupt normal behavior patterns which
include, but are not limited to, breeding, feeding or sheltering.
(h) "Harm" in the definition of "take" means an act which
actually kills or injures wildlife or plants. This act may
include significant habitat modification or degradation that
kills or injures any designated species by significantly
impairing essential life processes or, for wildlife, behavior
patterns including breeding, feeding or sheltering.
(i) "Person" means an individual, corporation, partnership,
trust, association, or any other private entity, or any officer,
agent, department or instrumentality of the federal government,
of any state or political subdivision thereof, or of any foreign
government.
(j) "Plant" means any organism not considered to be an
animal and shall include such organisms as bryophytes and ferns,
as well as flowering plants and conifers and any parts or
products thereof including leaves, seeds, roots and spores.
(k) "Species" includes any subspecies of wildlife or plant
and any other group of the same species or smaller taxa in common
spatial arrangement that interbreed when mature.
(l) "Take" means, in reference to threatened or endangered
species, to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture or collect, or to attempt to engage in any such conduct.
(m) "Threatened Species" means any species of wildlife orplant which appears likely, within the foreseeable future, to
become endangered.
(n) "Transport" means to ship, convey or carry by any means
whatever and deliver or receive for such shipment, conveyance,
carriage or transportation.
(o) "Wildlife" means, in this article, any member of the
animal kingdom, vertebrate or invertebrate and includes any part,
product, egg or dead body or parts thereof, excluding any animal
normally domesticated for agricultural purposes.
§20-2D-2. Findings and declarations.
The Legislature finds and declares the following:
(a) That it is the policy of this state to manage native
wildlife and plants for human enjoyment, for scientific, economic
and recreational purposes and to insure their perpetuation as
members of the ecosystem;
(b) That species of wildlife or plants indigeneous to this
state which may be found to be threatened or endangered should be
afforded those acts necessary for the conservation, protection,
restoration and propagation of these species in order to maintain
and, to the extent possible, enhance their numbers;
(c) That the state may assist in the protection of species
of wildlife or plants which are deemed to be threatened or
endangered elsewhere by regulating the transportation,
exportation, processing, sale or offer for sale of shipment
within the state of species of wildlife or plants as set forth
herein.
(d) That any funding made available to the division to
implement this article be from sources separate and apart from
the "License Fund - Wildlife Resources."
§20-2D-3. Duties of director.
(a) The director shall conduct investigations on wildlife
and native plant species in order to develop information relating
to population, distribution, habitat needs, limiting factors and
other biological and ecological data to determine management
measures necessary for their continued ability to sustain
themselves successfully.
(b) The director shall determine, pursuant to provisions of
this article, the species of wildlife or plant that are
endangered species under the provisions of this article, and any
species of wildlife or plant determined to be a threatened
species under the provisions of this article.
(c) The director, by regulation, shall determine whether any
species of wildlife or plant naturally occurring within the state
is a threatened or endangered species on the basis of
investigations conducted pursuant to subsection (a) of this
section and other available scientific and commercial data, which
may include consultation with scientists and others who may have
specialized knowledge, learning or experience and after
consultation with other appropriate state and federal agencies.
(d) The director shall, not later than one year after the
effective date of this article, propose by rule pursuant to
subdivision thirty, section seven, article one of this chapter,a list of those species of wildlife and plants indigenous to the
state which are determined to be threatened or endangered giving
the scientific name and common name, if any, by species.
(e) The director shall conduct a review of the state list of
threatened and endangered wildlife and plants within not more
than two years from its effective date, and every two years
thereafter and may amend the list by rule at any time by such
additions and deletions as are deemed appropriate.
(f) Except with respect to species of wildlife or plants
determined to be threatened or endangered species pursuant to the
federal endangered species act, the director may not add a
species nor remove a species from the published lists unless he
first:
(1) Publishes a public notice of the proposed action
pursuant to the rules of this article; and
(2) Furnishes notice of the proposed action to the governor
of any state sharing a common border with this state and in which
the subject species is known to exist; and
(3) Allows at least thirty days following publication for
comment from the public and other interested parties.
(g) Notwithstanding the provisions of subsection (f) of this
section, if the director determines that an emergency situation
exists involving the continued existence of the species as a
viable component of the state's flora and fauna, he or she may
add the species to the list:
Provided,
That he or she publishes
a public notice pursuant to the rules of this article that anemergency situation exists together with a summary of facts which
support this determination and within six months shall determine
by rule, if the species is threatened or endangered.
§20-2D-4. Prohibitions and exceptions.
(a) Except as otherwise provided in this article, a person
may not take, possess, transport, import, export or process,
attempt to take, possess, transport, export or process, sell or
offer for sale, buy, barter or trade, or offer to buy, barter or
trade, nor may a common or contract carrier transport or receive
for shipment, any species of plants or wildlife appearing on the
list of wildlife and plants indigenous to the state determined to
be endangered or threatened within the state pursuant to section
three of this article.
(b) A species of wildlife or plant appearing on the list
delineated in section three of this article which enters the
state from another state or from a point outside the territorial
limits of the United States may enter, be transported, possessed
and sold in accordance with the terms of a federal permit issued
pursuant to section ten of the federal endangered species act or
an applicable permit issued under the laws of another state.
(c) The division may, by rule, treat any species as an
endangered species or threatened species even though it is not
listed pursuant to section three of this article if it finds all
of the following:
(1) The species so closely resembles in appearance, at the
point in question, a species which is listed pursuant to sectionthree of this article that enforcement personnel would have
substantial difficulty in attempting to differentiate between the
listed and unlisted species.
(2) The effect of the substantial difficulty in
differentiating between a listed and an unlisted species is an
additional threat to an endangered or threatened species.
(3) The treatment of an unlisted species will substantially
facilitate the enforcement and further the intent of this
article.
(d)The director may permit the taking, possession, purchase,
sale, transportation, exportation or shipment of species of
plants or wildlife which appear on the state list of endangered
or threatened species compiled pursuant to section three of this
article for scientific, zoological, or educational purposes, for
propagation in captivity of the plants or wildlife to insure
their survival.
(e) Upon good cause shown and where necessary to alleviate
damage to property or to protect human health, endangered or
threatened species found on the state list compiled pursuant to
section three of this article may be removed, captured or
destroyed, but only pursuant to a permit issued by the director.
Carnivorous animals found on the state list may be removed,
captured or destroyed by any person in emergency situations
involving an immediate threat to human life, but the removal,
capture or destruction shall be reported to the director within
twenty-four hours of the act, and the remains shall be turnedover to the director.
(f) This section does not prohibit:
(1) The importation of a trophy under a permit issued
pursuant to section ten of the federal endangered species act
which is not for resale and which was lawfully taken in a manner
permitted by the laws of the state, territory or country where
the trophy was caught, taken or killed.
(2) The taking of a threatened species when the director has
determined that the abundance of the species in the state
justifies a controlled harvest not in violation of federal law.
(3) The taking, possession and legitimate sale of a species
or parts thereof listed as endangered or threatened in another
state based on that species status in that state.
§20-2D-5. Management programs.
(a) The director may establish programs, including
acquisition of land or aquatic habitat, as are deemed necessary
for management of threatened and endangered wildlife or plants.
The director shall utilize the authority vested in the division
to carry out the purpose of this article.
(b) In carrying out programs authorized by this article, the
director may enter into agreements with federal agencies, other
states, political subdivisions of the state or with private
persons and organizations for administration and management of
any area established under this section or utilized for
management of threatened or endangered wildlife or plants.
(c) The governor shall review other programs administered byhim or her and utilize these programs in furtherance of the
purpose of this article. To the extent practicable, the governor
shall also encourage other state and federal agencies to utilize
their authority in furtherance of the purposes of this article.
§20-2D-6. Rules.
The director shall issue rules as he deems necessary to
carry out the purposes of this article. All rules issued under
this article shall be in accordance with the provisions of
chapter twenty-nine-a of this code.
§20-2D-7. Enforcement.
(a) Any person who violates the provisions of section four
or any regulations issued under section four of this article or
whoever fails to procure or violates the terms of any permit
issued thereunder is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than three hundred dollars nor
more than five thousand dollars or be imprisoned not less than
ten days nor more than one year, or both fined and imprisoned.
(b) Any officer employed and authorized by the director or
any police officer of the state or of any municipality or court
within the state may execute a warrant to search for and seize
any equipment, business records, merchandise or wildlife or
plants taken, used or possessed in connection with a violation of
any section of this article.
(c) Wildlife, plants, equipment, merchandise, vehicles or
other means of transportation, or records seized under the
provisions of subsection (b) of this section shall be held by anofficer or agent of the division pending disposition of court
proceeding, and thereafter, where final disposition of the case
has been made either by payment of a fine or judgment of the
court in favor of the state, shall be forfeited to the state for
destruction or disposition as the director may deem appropriate:
Provided,
That prior to forfeiture, the director may direct the
transfer of wildlife or plants so seized to a qualified
zoological, botanical, educational or scientific institution for
safekeeping, costs thereof to be assessable to the defendant.
§20-2D-8. Miscellaneous provisions.
(a) None of the provisions of this article apply
retroactively or prohibit importation into the state of wildlife
or plants which may be lawfully taken or removed from another
state or to prohibit entry into the state or possession,
transportation, exportation, processing, sale or offer for sale
or shipment of any wildlife or plant whose species or subspecies
is deemed to be threatened with statewide extinction in this
state but not in the state where originally taken if the person
engaging therein demonstrates that such wildlife or plants were
lawfully taken or removed from the state.
(b) This article shall become effective on the first day of
January, nineteen-hundred ninety-four.
NOTE: The purpose of this bill is to afford animal and
plant species whose existence is in jeopardy a management program
for conservation, restoration and propogation.
This article is new; therefore, strike-throughs and
underscoring have been omitted.