EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: September 29, 2007, 12:01 a.m.
Purpose: The purpose of this rule making is to allow fishing opportunity in the Columbia River while protecting salmon listed as threatened or endangered under the Endangered Species Act. This rule making implements federal court orders governing Washington's relationship with treaty Indian tribes, federal law governing Washington's relationship with Oregon, and Washington fish and wildlife commission policy guidance for Columbia River fisheries.
Citation of Existing Rules Affected by this Order: Repealing WAC 232-28-61900B and 232-28-61900D; and amending WAC 232-28-619.
Statutory Authority for Adoption: RCW 77.04.130, 77.12.045, and 77.12.047.
Other Authority: United States v. Oregon, Civil No. 68-513-KI (D. Or.), Order Adopting 2005-2007 Interim Management Agreement For Upriver Chinook, Sockeye, Steelhead, Coho & White Sturgeon (May 11, 2005) (Doc. No. 2407); Northwest Gillnetters Ass'n v. Sandison, 95 Wn.2d 638, 628 P.2d 800 (1981); Washington fish and wildlife commission policies concerning Columbia River fisheries; 40 Stat. 515 (Columbia River compact).
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: The upriver bright fall chinook run size has been upgraded to 118,500 fish. This upgrade in run size allows for chinook retention throughout the Columbia River downstream of the Highway 395 Bridge in Pasco. Lower river fall chinook have generally moved out of the mainstem Columbia River at this time and will not be vulnerable to mainstem fisheries. The tributaries below Bonneville Dam including Camas Slough remain closed for chinook retention. Increased coho bag limit will provide additional harvest of hatchery coho and help reduce surplus to lower Columbia River hatcheries. There is insufficient time to promulgate permanent regulations.
Washington and Oregon jointly regulate Columbia River fisheries under the congressionally ratified Columbia River compact. Four Indian tribes have treaty fishing rights in the Columbia River. The treaties preempt state regulations that fail to allow the tribes an opportunity to take a fair share of the available fish, and the states must manage other fisheries accordingly. Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969). A federal court order sets the current parameters for sharing between treaty Indians and others. United States v. Oregon, Civil No. 68-513-KI (D. Or.), Order Adopting 2005-2007 Interim Management Agreement For Upriver Chinook, Sockeye, Steelhead, Coho & White Sturgeon (May 11, 2005) (Doc. No. 2407).
Some Columbia River Basin salmon and steelhead stocks are listed as threatened or endangered under the federal Endangered Species Act. The National Marine Fisheries Service has issued biological opinions under 16 U.S.C. § 1536 that allow for some incidental take of these species in treaty and nontreaty Columbia River fisheries. The Washington and Oregon fish and wildlife commissions have developed policies to guide the implementation of these biological opinions in the states' regulation of nontreaty fisheries.
Columbia River nontreaty fisheries are monitored very closely to ensure compliance with federal court orders, the Endangered Species Act, and commission guidelines. Because conditions change rapidly, the fisheries are managed almost exclusively by emergency rule. Representatives from the Washington (WDFW) and Oregon (ODFW) departments of fish and wildlife convene public hearings and take public testimony when considering proposals for new emergency rules. WDFW and ODFW then adopt regulations reflecting agreements reached.
Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 0, Repealed 0; Federal Rules or Standards: New 1, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 2.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: September 27, 2007.
Phil Anderson
for Jeff Koenings
Director
Columbia River:
1) From Buoy 10 upstream to Bonneville Dam (except for those waters closed under permanent regulations): Effective 12:01 a.m. September 29 through December 31, Chinook retention allowed. Daily limit 6 fish of which no more than 4 may be adult salmon of which only 1 may be an adult Chinook.
2) Camas Slough: Waters of the Columbia River downstream from the mouth of the Washougal River, north of Lady Island, and downstream of the Highway 14 Bridge at the upstream end of Lady Island: Effective: Effective 12:01 a.m. September 29 until further notice, release all Chinook.
3) From Bonneville Dam upstream to the Hood River Bridge (except for those waters closed under permanent regulations): Effective: 12:01 a.m. September 29 through December 31, Chinook retention allowed. Daily limit 6 fish of which no more than 2 may be adult salmon.
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The following sections of the Washington Administrative Code are repealed effective 12:01 a.m. September 29, 2007:
| WAC 232-28-61900B | Exceptions to statewide rules -- Columbia River. (07-230) |
| WAC 232-28-61900D | Exceptions to statewide rules -- Columbia River. (07-131) |