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.