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Friday, January 29, 2016

Mazama Pocket Gopher - the latest

Today, REALTORS heard from the litigation specialist, Heather Burgess of Phillips Burgess PLLC about the latest on the Mazama pocket gopher.  You may believe this creature on the Federal Endangered Species doesn't affect you but if you live in Thurston County, the likelihood is great.

[UPDATED] Changes to Thurston County Screening for Mazama Pocket Gophers for 2015; Current County HCP Timeline

On June 25, 2015, Thurston County published its gopher review process for permitting in 2015.  It follows USFWS’s recommended approach. 
A.            Gopher Screening Process for 2015
The County recommends that applicants submit their applications “right away.”  The County’s announcement suggests that some properties will have two visits while others will have up to three.  The process, as detailed, will consist of an in-office review, followed by up to five visits to some properties. 
During the in-office review, the County will check the application against existing maps.  The County will look for any prior gopher occupancy on the property, any gopher occupancy within 600 feet of the property regardless of ownership, whether gopher soils are on the property, whether gopher soils are within 300 feet of the property regardless of ownership, and whether the property has forest cover or woody shrubs exceeding 30%.  The County will exclude properties west of Black River, on Steamboat Island, properties submerged 30 days in a row since October 2014, properties “covered with” impervious surfaces, or properties that “consist of” steep slopes or landslide hazard areas.
The County will use a revised list of soils, adding approximately 50,370 acres to the soil types identified last year.  Neither the County nor USFWS has provided a public list identifying which soils are now considered to constitute gopher soils and the low, medium, or high classification maps or lists.
The second step is an on-property assessment.  During this stage, County and USFWS staff will visit the property and look for gophers, prairie plants, forest canopy, woody shrubs, mima mounds, and gopher soils.  If a property has heavy vegetation, the property owner may be asked to mow it prior to a second assessment before proceeding to the third step.
The third step is site visits.  Depending on the mapped soil type, there may be two to three site visits.  In some cases, the County and USFWS may consider the on-property assessment the first visit.  The County and USFWS biologists will visit the property between June and October, when gopher mound detection is most likely.  Unlike the beginning of last year, when landowners needed to hire an expert, this year the County and USFWS will provide the biologists for these visits, and will not charge the applicant for the visits.  The County and USFWS will continue to provide a biologist until a certification system is developed for private consultants.  However, applicants will now be dependent on the timing and workload of the County and USFWS staff.
The site visits will be on a first come first served basis, depending on when the permit application was submitted and the number of applications still pending from last year. 
A property that has “low” gopher quality soils and is more than 600 feet from the nearest mapped gopher site will receive two site visits, 30 days apart. The County and USFWS have not identified which soils are low quality, but USFWS staff said that the majority of the soils in Thurston County are low quality for gophers.  These properties must have their first site visit by Wednesday, September 30 to have their second site visit by October 30, 2015.
Every other property will receive three visits, 30 days apart.  At least one visit must occur in September or October.  These properties must have their first site visit by August 28, to have their third site visit by October 30, 2015.
Depending on the results of the site visits, 60-90 days after the first site visit (depending on whether two or three visits are needed), the permit applicant will either have the County continue the regular permitting process, or will be told that they need to work directly with USFWS or wait for Thurston County’s HCP.  The proposed timeline for the HCP is discussed below.
The survey window is June – October, and depending on workload, the County should provide public notice of the final cutoff date for applications sometime in July.
As proposed, the process does not permit an applicant to submit their own information from an expert biologist or consultant, provide information on the mapped soil types or distance to nearest occupied gopher, or explain how the distances will be mapped (property line to property line or proposed activity location to gopher mound).   The process will also require vested permits to be reviewed by USFWS.
We agree with the County’s recommendation that applicants submit their applications as soon as possible this season.  Because the survey process is first come first served, staff time is limited, and some sites could require five visits (assessment followed by mowing, followed by three visits 30 days apart), properties which receive their first assessment visit on the first day of the survey season (June 1) will not proceed to the County’s regular permitting process until mid-September, assuming that staff are available to visit their property on the 31st day of each stage and a second assessment visit (after mowing) isn’t required.  Because the County is also proposing to make the results good for only one year, or until October 31, 2016, this could limit construction options.
As discussed below, the current HCP timeline has been extended by six months since the May briefing.  Currently, if there are no further delays in the development of the HCP or EIS, the County expects the Incidental Take Permit to be issued in the spring of 2017.  This means that permit applications next year will also be subject to some review process because the HCP will not be in place before the 2016 survey season begins.  
Property owners from last year, this year, or next year who are told that they need to wait for the County HCP will now be required to wait until at least the spring of 2017.  Although USFWS also suggests that those owners can submit their own individual HCPs, currently, none of the approximately 15-17 under development have even been published in the Federal Register. Based on last year’s applications, USFWS anticipates about 10% of properties will continue to fall into this category.
B.            County HCP Timeline
On May 13, the County Commissioners received a staff briefing on the HCP timeline.  Staff recommended that the Commissioners hire Confluence and sign a Memorandum of Understanding at a future meeting.
The proposed HCP timeline has since been revised.  Currently, the County’s timeline is:
  • Unknown (previously summer 2015):  Complete draft of HCP
  • Unknown (previously November 2015):  Complete draft of joint NEPA/SEPA EIS
  • Fall 2016 (previously January 2016):  Begin public review of HCP
  • Unknown (previously July 2016):  NEPA/SEPA decision
  • Unknown (previously summer 2016):  County adoption
  • Spring 2017 (previously summer/fall 2016):  USFWS review and ITP issuance
In May, USFWS reported that 15-17 applicants are working on individual HCPs.  However, despite the extensive public discussion prior to the listing, no HCPs have yet been issued for prairie species anywhere in Thurston County and no notices of pending HCPs have been published in the Federal Register.
For questions on land use issues or the Endangered Species Act, please contact Heather Burgess or Martha Wehling.
Additional articles and information can be found here:

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