WSR 13-13-012 EMERGENCY RULES
DEPARTMENT OF
FISH AND WILDLIFE
[Order 13-119—Filed June 7, 2013, 4:31 p.m., effective June 8, 2013]
Effective Date of Rule: June 8, 2013.
Purpose: The purpose of this rule making is to allow nontreaty recreational fishing opportunity in the Columbia River while protecting fish listed as threatened or endangered under the Endangered Species Act (ESA). 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 232-28-61900I; and amending WAC 232-28-619.
Other Authority: United States v. Oregon, Civil No. 68-513-KI (D. Or.), Order Adopting 2008-2017 United States v. Oregon Management Agreement (Aug. 12, 2008) (Doc. No. 2546); 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: Reopens the 2013 spring recreational salmon season in the Columbia River in the area from Bonneville Dam upstream to the Oregon/Washington border and removes the boat fishing restriction above Beacon Rock. Based on the in season run size projection, upriver spring chinook remain available for harvest. Maintains the adjustment to the hatchery adult bag limit in Deep River so that it is consistent with the adjacent Columbia River when both areas are open. Prohibits full removal of nonlegal fish from the water. Regulation is consistent with guidance from Washington fish and wildlife commission and director, and compact/joint state action of January 30 and May 20, 2013. The fishery is consistent with the U.S. v. Oregon Management Agreement and the associated biological opinion. Conforms Washington state rules with Oregon state rules. There is insufficient time to adopt permanent rules.
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 2008-2017 United States v. Oregon Management Agreement (Aug. 12, 2008) (Doc. No. 2546).
Some Columbia River Basin salmon and steelhead stocks are listed as threatened or endangered under the federal ESA. On May 5, 2008, the National Marine Fisheries Service issued a biological opinion under 16 U.S.C. § 1536 that allows for some incidental take of these species in treaty and nontreaty Columbia River fisheries governed by the 2008-2017 U.S. v. Oregon Management Agreement. The Washington and Oregon fish and wildlife commissions have developed policies to guide the implementation of such 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 ESA, 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. Carson National Fish Hatchery is expected to meet its escapement goal of 1,500 fish. Surplus hatchery origin fish are available for harvest in the Wind River.
Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 0, Repealed 1; Federal Rules or Standards: New 1, Amended 0, Repealed 1; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 1, Amended 0, Repealed 1.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
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: June 7, 2013.
Philip Anderson
Director
NEW SECTION
WAC 232-28-61900J Freshwater exceptions to statewide rules. Notwithstanding the provisions of WAC 232-28-619, effective immediately, it is unlawful to violate the following provisions, provided that unless otherwise amended, all permanent rules remain in effect:
Columbia River from the Megler-Astoria Bridge to a projected line from Rocky Point on the Washington bank through Red Buoy 44 to the navigation light at Tongue Point on the Oregon bank: (a) Effective July 1 through July 31, release adult Chinook and sockeye. Columbia River from a line projected line from Rocky Point on the Washington bank through Red Buoy 44 to the navigation light at Tongue Point on the Oregon bank (Rocky Point/Tongue Point line) to the Oregon/Washington border: (a) Effective immediately through June 15, open for fishing for salmonids from the Tongue Point/Rocky Point line upstream to 600 feet downstream of the fish ladder at the new Bonneville Dam powerhouse (#2). (i) Daily salmonid limit is 6 fish (hatchery Chinook or hatchery steelhead), of which no more than 2 may be adults and no more than 1 may be an adult Chinook. Release all sockeye, wild Chinook and wild steelhead. Salmon minimum size is 12 inches. (b) From the Rocky Point/Tongue Point line upstream to Bonneville Dam: Effective July 1 through July 31, release adult Chinook and sockeye. (c) Effective June 8 through June 15, open for fishing salmonids from Tower Island power lines (approximately 6 miles below The Dalles Dam) upstream to Oregon/Washington border, and the Oregon and Washington banks between Bonneville Dam and the Tower Island power lines. Daily salmonid limit is 6 fish (hatchery Chinook or hatchery steelhead), of which no more than 2 may be adults and no more than 1 may be an adult Chinook. Release all sockeye, wild Chinook and wild steelhead. Salmon minimum size is 12 inches. Columbia River from the Rocky Point/Tongue Point line upstream to the Oregon/Washington border: Effective immediately through June 15, when open for salmon and steelhead, when fishing from vessels which are less than 30 feet in length, substantiated by Coast Guard documentation or Marine Board registration, it is unlawful to totally remove from the water any salmon or steelhead required to be released. Deep River (Wahkiakum Co.): Effective immediately through June 15, 2013: the hatchery adult Chinook daily limit is the same as the adjacent mainstem Columbia River during those days when the mainstem Columbia River is open for adult Chinook retention. When the adjacent mainstem Columbia River is closed for adult Chinook retention, the salmon daily limit reverts to permanent rules for Deep River. Kalama River from boundary markers at the mouth to 1,000 feet below the fishway at upper salmon hatchery: (a) Effective immediately through July 31, release all Chinook. (b) Until further notice, the stationary gear restriction is rescinded. Lewis River (Clark/Cowlitz County) from mouth to mouth of East Fork: (a) Effective June 7 through July 31, the salmon daily limit is 6 hatchery Chinook of which no more than 2 may be adults. Release all salmon other than hatchery Chinook. Minimum size is 12 inches. Lewis River, North Fork (Clark/Cowlitz County) from mouth of East Fork to overhead powerlines below Merwin Dam: (a) Effective June 7 through July 31, the salmon daily limit is 6 hatchery Chinook of which no more than 2 may be adults. Release all salmon other than hatchery Chinook. Minimum size is 12 inches. Washougal River (Clark County) from mouth to Salmon Falls: Until further notice, stationary gear restriction is rescinded. Wind River from the mouth (boundary line/markers) upstream, including all tributaries. (a) Effective immediately until further notice, the two-pole endorsement is rescinded.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040. REPEALER
The following section of the Washington Administrative Code is repealed effective June 8, 2013:
| ||||