No. 43723 (Amendment): Rule R657-44. Big Game Depredation

(Amendment)

DAR File No.: 43723
Filed: 05/20/2019 06:32:12 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 annually for taking public input and reviewing the Division of Wildlife Resources' (DWR) rule pursuant to depredation and mitigation permits.

Summary of the rule or change:

The proposed revisions to the above listed rule: 1) expand the "damage incident period" definition from a set 90 days to include any period of time between July 1 and June 30 that is identified in the mitigation plan; 2) expand the "Mitigation Permit" definition to include immediate family member or employee of the landowner or lessee: 3) define "Depredation Mitigation Plan"; 4) add definitions for "immediate family member", "Landowner", and "Lessee"; 5) better define the process for issuing a stop-kill order, as well as the appeal process; 6) add the option of two-doe pronghorn permits; 7) remove the buck and doe pronghorn permit restriction; 8) and make technical corrections.

Statutory or constitutional authorization for this rule:

• Section 13-16-3.1
• Section 23-16-2
• Section 23-16-3
• Section 23-16-4
• Section 23-16-3.2

Anticipated cost or savings to:

the state budget:

The amendments to this rule are for the purpose of clarifying for both landowners participating in the depredation program and DWR, the implementation of the depredation program. DWR has determined that these amendments do not create a cost or savings impact to the state budget or DWR's budget, since these changes will not increase workload and can be carried out with existing budget.

local governments:

None--This filing does not create any direct cost or savings 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:

The amendments to this rule are for the purpose of clarifying for both landowners participating in the depredation program and DWR, the implementation and running of the depredation program. DWR has determined that these amendments do not create a cost or savings impact to small businesses.

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

The amendments to this rule are for the purpose of clarifying for both landowners participating in the depredation program and DWR, the implementation and running of the depredation program. DWR has determined that these amendments do not create a cost or savings impact to other persons.

Compliance costs for affected persons:

DWR has determined that these amendments will not create additional costs for landowners participating in the depredation program.

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, Executive 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 [e-mail]

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:

07/15/2019

This rule may become effective on:

07/22/2019

Authorized by:

Mike Fowlks, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2020

FY 2021

FY 2022

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 in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

These proposed rule changes are not expected to have any fiscal impacts on non-small businesses' revenues or expenditures, because the amendments to this rule are for the purpose of clarifying for both landowners participating in the depredation program and DWR, the implementation and running of the depredation program. DWR has determined that these amendments do not create a cost or savings impact to non-small businesses' revenues or expenditures.

 

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

 

 

R657. Natural Resources, Wildlife Resources.

R657-44. Big Game Depredation.

R657-44-1. Purpose and Authority.

Under authority of Section 23-16-2, 23-16-3, 23-16-3.1, 23-16-3.2 and 23-16-4, this rule provides:

(1) the procedures, standards, requirements, and limits for assessing big game depredation; and

(2) mitigation procedures for big game depredation.

R657-44-2. Definitions.

(1) Terms used in this rule are defined in Sections 23-13-2 and 23-16-1.1.

(2) In addition:

(a) "Alternate drawing list" means a list of persons who have not already drawn a permit and would have been the next person in line to draw a permit.

(b) "Cleared and planted land" means private land or privately leased state or federal land used to produce a cultivated crop for commercial gain and the cultivated crop is routinely irrigated or routinely mechanically or manually harvested, or is crop residue that has forage value for livestock.

(c) "Commercial gain" means intent to profit from cultivated crops through an enterprise in support of the crop owner's livelihood.

(d) "Damage incident period" means [90 days, or some longer period as approved in writing by the division, during which the division shall]the period of time between July 1 and June 30 of the following year that the division identifies in a depredation mitigation plan to take action to prevent and mitigate further big game depredation and during which compensation for damage [will]may be calculated.

(e) "Depredation mitigation plan" means a document prepared by the division pursuant to Section 23-16-3(2)(b) and R657-44-3(4) outlining the actions it will take to prevent and mitigate big game damage to livestock forage, cultivated crops, irrigation equipment, and fences on private land.

(f) "Immediate family member" means the landowner's or lessee's spouse, child, son-in-law, daughter-in-law, father, mother, father-in-law, mother-in-law, brother, sister, brother-in-law, sister-in-law, stepchild, grandchild, grandfather, and grandmother.

(g) "Irrigated" means the controlled application of water for agricultural purposes through man-made systems to supply water not satisfied by rainfall.

([f]h) "Landowner" means any person, partnership, or corporation who owns property in Utah and whose name appears on a deed as the owner of eligible property or whose name appears as the purchaser on a contract for sale of eligible property.

(i) "Lessee" means any person, partnership, or corporation whose name appears as the lessee on a written lease, for at least a one-year period, for eligible property used for farming or ranching purposes, and who is in actual physical control of the eligible property.

(j) "Livestock Forage" means any forage, excluding cultivated crops and crop residues, meant for consumption by livestock, not routinely irrigated or routinely mechanically or manually harvested.

([g]k) "Mitigation permit" means a nontransferable hunting permit issued directly to a landowner or lessee, [authorizing]an immediate family member of the landowner or lessee, or an employee of the landowner or lessee, authorizing the named individual to take specified big game animals for personal use within a designated area.

([h]l) "Mitigation permit voucher" means a document issued to a landowner or lessee, allowing the landowner or lessee to designate who may obtain a big game mitigation permit.

([i]m) "Nuisance" describes a situation where big game animals are found to have moved off formally approved management units onto adjacent units or other areas not approved for that species.

([j]n) "Once-in-a-lifetime species" for the purposes of this section, includes bull moose and bison, bighorn sheep, and mountain goat regardless of sex.

([k]o) "Private land" means land in private fee ownership and in agricultural use as provided in Section 59-2-502 and eligible for agricultural use valuation as provided in Section 59-2-503 and 59-2-504. Private land does not include tribal trust lands.

R657-44-3. Damage to Cultivated Crops, Fences, or Irrigation Equipment by Big Game Animals.

(1) If big game animals are damaging cultivated crops on cleared and planted land, or fences or irrigation equipment on private land, the landowner or lessee shall immediately, upon discovery of big game damage, request that the division take action by notifying a division representative in the appropriate regional office pursuant to Section 23-16-3(1).

(2) Notification may be made:

(a) orally to expedite a field investigation; or

(b) in writing to a division representative in the appropriate division regional office.

(3)(a) The regional supervisor or division representative shall contact the landowner or lessee within 72 hours after receiving notification to determine the nature of the damage and take appropriate action for the extent of the damage experienced or expected during the damage incident period.

(b) The division shall consider the big game population management objectives as established in the wildlife unit management plan approved by the Wildlife Board.

(c) Division action shall include:

(i) removing the big game animals causing depredation; or

(ii) implementing a depredation mitigation plan pursuant to Sections 23-16-3(2)(b) through 23-16-3(2)(f) and approved in writing by the landowner or lessee.

(4)(a) The division mitigation plan may incorporate any of the following measures:

(i) sending a division representative onto the premises to control or remove the big game animals, including:

(A) herding;

(B) capture and relocation;

(C) temporary or permanent fencing; or

(D) removal, as authorized by the division director or the division director's designee;

(ii) recommending to the Wildlife Board an antlerless big game hunt in the next big game season framework;

(iii) scheduling a depredation hunter pool hunt in accordance with Sections R657-44-7, R657-44-8, or R657-44-9;

(iv) issuing mitigation permits to the landowner or lessee for the harvest of big game animals causing depredation during a general or special season hunt authorized by the Wildlife Board, of which:

(A) the hunting area for big game animals may include a buffer zone established by the division that surrounds, or is adjacent to, the lands where depredation is occurring;

(B) the landowner or lessee may [retain]designate an immediate family member or employee to receive mitigation permits;

(C) a person may receive no more than five antlerless deer permits, five doe pronghorn permits, and two antlerless elk permits per mitigation plan;

([C]D) each qualified recipient of a mitigation permit will receive from the division a Mitigation Permit Hunting License that satisfies the hunting license requirements in R657-44-11(c) to obtain the mitigation permit.

([D]E) the Mitigation Permit Hunting License does not authorize the holder to hunt small game; nor does it qualify the holder to apply for or obtain a cougar, bear, turkey, or other big game permit.

(v) issuing big game mitigation permit vouchers for use on the landowner's or lessee's private land during a general or special hunt authorized by the Wildlife Board of which:

(A) mitigation permit vouchers for antlerless deer may authorize the take of one or two deer as determined by the division;

(B) mitigation permit vouchers for pronghorn may authorize the take of one or two doe pronghorn as determined by the division;

(C) the division may not issue mitigation permit vouchers for moose, bison, bighorn sheep, or mountain goat; and

([C]D) the hunting area for big game animals may include a buffer zone established by the division that surrounds, or is adjacent to, the landowner's or lessee's private lands where depredation is occurring.

(b) The mitigation plan may describe how the division will assess and compensate for damage pursuant to Section 23-16-4.

(c) The landowner or lessee and the division may agree upon a combination of mitigation measures to be used pursuant to Subsections (4)(a)(i) through (4)(a)(v), [and]including a damage payment [of damage pursuant to Section 23-16-4.]or a description of how the division will assess and compensate the landowner or lessee under Section 23-16-4 for damage to cultivated crops, fences, or irrigation equipment.

(d) The agreement pursuant to Subsection (4)(c) must be made before a claim for damage is filed and the mitigation measures are taken.

(5) Vouchers may be issued in accordance with Subsection (4)(a)(v) to:

(a) the landowner or lessee; or

(b) a landowner association that:

(i) applies in writing to the division;

(ii) provides a map of the association lands;

(iii) provides signatures of the landowners in the association; and

(iv) designates an association representative to act as liaison with the division.

(6) In determining appropriate mitigation, the division shall consider the landowner's or lessee's revenue pursuant to Subsections 23-16-3(2)(f) and 23-16-4(3)(b).

(7) Mitigation permits or vouchers may be withheld from persons who have violated this rule, any other wildlife rule, the Wildlife Resources Code, or are otherwise ineligible to receive a permit.

(8)(a) The options provided in Subsections (4)(a)(i) through (4)(a)(v) are for antlerless animals only.

(b) Deer and pronghorn hunts may be August 1 through December 31, and elk hunts may be August 1 through January 31.

(9)(a) The division director may approve mitigation permits or mitigation permit vouchers issued for antlered animals.

(b) A mitigation permit may be issued to the landowner or lessee or a qualifying individual designated by the landowner or lessee to take big game for personal use, provided the division and the landowner or lessee desires the animals to be permanently removed.

(c) A mitigation permit voucher may be issued to the landowner or lessee, provided:

(i)(A) the division determines that the big game animals in the geographic area significantly contribute to the wildlife management units;

(B) the landowner or lessee agrees to perpetuate the animals on their land; and

(C) the damage, or expected damage, to the landowner's or lessee's cleared and planted land equals or exceeds the expected value of the mitigation permit voucher on that private land within the wildlife unit; or

(ii)(A) the big game damage occurs on the landowner's or lessee's cleared and planted land;

(B) the division and the affected landowner or lessee desire the animals to be permanently removed; and

(C) the damage, or expected damage, to the cleared and planted land equals or exceeds the expected value of the mitigation permit voucher on that private land within the wildlife unit.

(d) The hunting area for a mitigation permit or permit voucher issued under this subsection includes the landowner's or lessee's cleared and planted land where the depredation occurs and may include a buffer zone established by the division that surrounds, or is adjacent to, that land.

(10)(a) If the landowner or lessee and the division are unable to agree on the assessed damage, they shall designate a third party pursuant to Subsection 23-16-4(3)(d).

(b) Additional compensation may be paid above the value of any mitigation permits or vouchers granted to the landowner or lessee if the damage exceeds the value of the mitigation permits or vouchers.

(11)(a) The landowner or lessee may revoke approval of the mitigation plan agreed to pursuant to Subsection (4)(c).

(b) If the landowner or lessee revokes the mitigation plan, the landowner or lessee must request that the division take action pursuant to Section 23-16-3(1)(a).

(c) Any subsequent request for action shall start a new 72-hour time limit as specified in Section 23-16-3(2)(a).

(12) The expiration of the damage incident period does not preclude the landowner or lessee from making future claims.

(13) The division may enter into a conservation lease with the landowner or lessee of private land pursuant to Section 23-16-3(5).

R657-44-4. Landowner or Lessee Authorized to Kill Big Game Animals.

(1) The landowner or lessee is authorized to kill big game animals damaging cultivated crops on cleared and planted land pursuant to Section 23-16-3.1.

(2) The division director may prohibit the killing of big game animals under Subsection (1) if, within 72 hours after a landowner or lessee has requested that the division take action to remove depredating animals, the division determines the criteria in Section 23-16-3.1(2)(a) are satisfied and the landowner or lessee is offered a depredation mitigation plan.

(3) A landowner or lessee who is offered a depredation mitigation plan may:

(a) accept the plan in writing; or

(b) refuse to accept the plan and appeal it, in writing, to the division director and mitigation review panel as provided in Sections 23-16-3.1(2)(b) and 23-16-3.2(3).

(4)(a) A depredation mitigation plan accepted by the landowner or lessee shall remain effective during the entire damage incident period, unless otherwise revoked by the landowner or lessee pursuant to Section 23-16-3(4) and R657-44-3(11).

(b) A depredation mitigation plan approved or modified by the mitigation review panel pursuant to Section 23-16-3.2(3)(b) shall remain effective during the entire damage incident period unless earlier modified by the mitigation review panel upon petition and showing by the landowner or lessee that a substantial change in the nature and extent of the big game damage or the method of calculating damages necessitates further review and modification to the plan.

(i) A petition to amend an existing depredation mitigation plan approved or modified by the mitigation review panel shall be directed to the director of the division.

(c) Nothing in this section shall be construed to prevent the division and the landowner or lessee from mutually agreeing to alter or amend an existing depredation mitigation plan in order to better address big game damage.

(i) If the parties cannot reach agreement on amending the plan, the landowner or lessee may petition the mitigation review panel for relief as provided in Subsection (4)(b).

(5) The division director's order under Subsection (2) prohibiting the killing of big game animals shall remain in full force and effect during the same time period that the original or amended depredation mitigation plan associated with the big game damage incident remains effective.

(6) The expiration of the damage incident period does not preclude the landowner or lessee from making future claims.

R657-44-8. Depredation and Nuisance Hunts for Antlerless Deer, Elk, Moose or Doe Pronghorn.

(1) When deer, elk, pronghorn or moose are causing damage to cultivated crops on cleared and planted land, or livestock forage, fences or irrigation equipment on private land, or are determined to be nuisance, antlerless or doe hunts not listed in the guidebook of the Wildlife Board for taking big game may be held. These hunts occur on short notice, involve small areas, and are limited to only a few hunters.

(2) Depredation or nuisance animal hunters shall be selected using:

(a) hunters possessing an antlerless deer, elk, moose or doe pronghorn permit for that unit;

(b) hunters from the alternate drawing list for that unit; or

(c) the depredation hunter pool pursuant to Section R657-44-9.

(3) The division may contact hunters to participate in a depredation or nuisance hunt prior to the general or limited entry hunt for a given species of big game. Hunters who do not possess an antlerless deer, elk, moose or doe pronghorn permit shall purchase an appropriate permit.

(4) Hunters with depredation or nuisance hunt permits for antlerless deer, elk, or moose[ or doe pronghorn] may not possess any other permit for those species, except as provided in the guidebook of the Wildlife Board for taking big game and Rule R657-5.

KEY: wildlife, big game, depredation

Date of Enactment or Last Substantive Amendment: [July 22, 2013]2019

Notice of Continuation: May 18, 2017

Authorizing, and Implemented or Interpreted Law: 23-16-2; 23-16-3; 23-16-3.5

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