WSR 13-20-074 EMERGENCY RULES DEPARTMENT OF FISH AND WILDLIFE [Order 13-259—Filed September 27, 2013, 2:57 p.m., effective September 29, 2013, 8:00 p.m.]
Effective Date of Rule: September 29, 2013, 8:00 p.m.
Purpose: The purpose of this rule making is to allow nontreaty commercial fishing opportunities 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 220-33-01000J; and amending WAC 220-33-010.
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: Sets two series of fishing periods for the 2013 fall season for non-Indian commercial fisheries in the mainstem Columbia River. A series of fishing periods in Zones 4-5 provide opportunity to harvest surplus chinook destined for areas upstream of Bonneville Dam. A series of fishing periods in Zones 1-3 provide opportunity to harvest surplus hatchery coho, by implementing mark-selective regulations for coho. In an effort to minimize impacts to ESA-listed coho, regulations are in place that requires limited soak times, recovery boxes and use of tangle net gear. Salmon remain available for harvest based on current forecasts. The 2013 fall chinook return to the Columbia River is forecasted to reach nearly 1.2 million fish. The seasons are expected to remain within the ESA limits for non-Indian fisheries. The seasons are consistent with the 2008-2017 interim management agreement and are expected to remain within ESA limits. The regulation is consistent with compact action of July 25, 2013, and September 26, 2013. There is insufficient time to promulgate 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.
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 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 1.
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, 2013.
Philip Anderson
Director
NEW SECTION
WAC 220-33-01000K Columbia River season below Bonneville.
Notwithstanding the provisions of WAC 220-33-010 and WAC 220-33-020, it is unlawful for a person to take or possess salmon or sturgeon for commercial purposes from Columbia River Salmon Management and Catch Reporting Areas (SMCRA) 1A, 1B, 1C, 1D, and 1E, except as provided below: 1. Mainstem Columbia River a. SEASON: 8:00 PM September 29 to 6:00 AM September 30, 2013 b. AREA: SMCRA 1A. 1B, 1C, 1D, 1E (Zones 1-5). c. GEAR: Drift gillnets only. 8-inch minimum mesh size. Nets not specifically authorized for use may be onboard the vessel if properly stored, consistent with WAC 220-33-001. d. SANCTUARIES: Elokomin-B, Cowlitz River, Kalama-B, Lewis-B, Washougal River and Sandy River. e. ALLOWABLE POSSESSION: Salmon and white sturgeon. A maximum of two white sturgeon may be possessed or sold by each participating vessel during each calendar week (Sunday through Saturday). The Sturgeon landing limit is specific to the mainstem only. 2. Mainstem Columbia River a. SEASON: Tuesday, Thursday and Sunday nights during October 1-16, 2013. Open hours are 8 PM to 6 AM. b. AREA: SMCRA 1D, 1E (Zones 4-5) Lower deadline defined as a straight line projected from the Warrior Rock Lighthouse on the Oregon shore easterly through the green navigation Buoy #1 and continuing to the Washington shore. c. GEAR: Drift gillnets only. 8-inch minimum mesh size. Nets not specifically authorized for use may be onboard the vessel if properly stored, consistent with WAC 220-33-001. d. SANCTUARIES: Washougal River and Sandy River. e. ALLOWABLE POSSESSION: Chinook, coho and pink salmon. White sturgeon and chum salmon may not be possessed or sold. 3. Mainstem Columbia River a. SEASON: Daily Monday through Thursday during October 2-15, 2013. Open hours are 6 AM to 6 PM b. AREA: SMCRA 1A. 1B, 1C (Zones 1-3) Upper deadline defined as a straight line projected from the Warrior Rock Lighthouse on the Oregon shore easterly through the green navigation Buoy #1 and continuing to the Washington shore. c. SANCTUARIES: Elokomin-A, Cowlitz River, Kalama-A, Lewis-A d. ALLOWABLE POSSESSION: Adipose-fin clipped coho; Chinook and pink salmon. White sturgeon and chum salmon may not be possessed or sold. e. GEAR: Drift gillnets only. 3 3/4-inch maximum mesh size. Net length not to exceed 150 fathoms. Unslackened, single-wall, multi-filament floater nets only. Monofilament nets are not allowed. There are no restrictions on the hang ratio. The hang ratio is used to horizontally add slack to the net. The hang ratio is determined by the length of the web per length of the corkline. The use of slackers or stringers to slacken the net vertically is prohibited. Rip lines are allowed providing they do not vertically slacken the net f. Mesh size is determined by placing three consecutive meshes under hand tension and the measurement is taken from the inside of one knot to the outside of the opposite knot of the center mesh. Hand tension means sufficient linear tension to draw opposing knots of meshes into contact g. Nets not specifically authorized for use may be onboard the vessel if properly stored, consistent with WAC 220-33-001. h. ADDITIONAL REGULATIONS: Soak times: defined as the time elapsed from when the first of the gillnet web is deployed into the water until the gillnet web is fully retrieved from the water, must not exceed 30 minutes. Recovery Box: Each boat is required to have two operable recovery boxes or one box with two chambers, on board. Each chamber of the recovery box(es) must include an operating water pumping system capable of delivering a minimum flow of 16 gallons per minute, not to exceed 20 gallons per minute of freshwater per chamber. Each chamber of the recovery box must meet the following dimensions as measured from within the box: the inside length measurement must be at or within 39 1/2 inches to 48 inches; the inside width measurements must be at or within 8 to 10 inches; and the inside height measurement must be at or within 14 to 16 inches. Each chamber of the recovery box must include a water inlet hole between 3/4 inch and 1 inch in diameter, centered horizontally across the door or end wall of the chamber and 1 3/4 inches from the floor of the chamber. Each chamber of the recovery box must include a water outlet hole that is a least 1 1/2 inches in diameter located on either the same or opposite end as the inlet. The center of the outlet hole must be located a minimum of 12 inches above the floor of the box or chamber. Each box and chamber and associated pump shall be operating during any time that the net is being retrieved or picked All non-legal fish must be released immediately unharmed to the river or placed into an operating recovery box. All non-legal salmon and all steelhead that are bleeding, lethargic or appear lifeless must be placed in the recovery box prior to being released. All fish placed in recovery boxes must be released to the river prior to landing or docking. Live Capture workshop: Only licensed Columbia River commercial fishers that have completed the required state-sponsored workshop concerning live capture commercial fishing techniques may participate in this fishery. At least one fisher on each boat must have live capture certification Observer program: As a condition of fishing, owners or operators of commercial fishing vessels must cooperate with department observers or observers collecting data for the department, when notified by the observer of his or her intent to board the commercial vessel for observation and sampling during an open fishery. Red corks: A red cork must be placed on the corkline every 25 fathoms as measured from the first mesh of the net. Red corks must be in color-contrast to the corks used in the remainder of the net. 4. Blind Slough/Knappa Slough Select Area. a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights effective immediately through October 31. Open hours are 6 PM to 8 AM. b. AREA: Blind Slough and Knappa Slough. An area closure of an approximately 100-foot radius at the mouth of Big Creek is in effect. Concurrent jurisdiction waters include all areas in Knappa Slough and downstream of the Railroad Bridge in Blind Slough. c. GEAR: Gillnet. Monofilament gear is allowed. 9 3/4-inch maximum mesh size. Maximum net length of 100 fathoms. No weight restriction on lead line. Use of additional weights and/or anchors attached directly to the lead line is allowed. 5. Tongue Point/South Channel Select Area. a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights effective immediately through October 31, 2013. Open 4 PM to 10 AM. b. AREA: Tongue Point and South Channel. All waters are concurrent-jurisdiction waters. c. GEAR: Gillnet. 6-inch maximum mesh. Maximum length of 250 fathoms. (i) Tongue Point fishing area: Weight not to exceed two pounds on any one fathom. Fishers participating in the Tongue Point fishery may have onboard un-stored gillnets legal for the South Channel fishing area. (ii) South Channel area: No weight restriction on lead line. Use of additional weights and/or anchors attached directly to the lead line is allowed. 6. Deep River Select Area. a. SEASON: Open hours are 7 PM to 7 AM Monday, Tuesday, Wednesday and Thursday nights from September 30-October 11 plus Monday night October 14 and Thursday night October 17 b. AREA: The Deep River Select Area. Concurrent-jurisdiction waters extend downstream of the Highway 4 Bridge. c. GEAR: Gillnet. Monofilament gear is allowed. 6-inch maximum mesh size. Net length, 100 fathoms maximum. No weight restriction on the lead line. Use of additional weights or anchors attached directly to the lead line is allowed. Nets may not be tied off to stationary structures. (i) Nets may not fully cross the navigation channel. It is unlawful to operate in any river, stream or channel any gillnet gear longer than three-fourths the width of the river, stream, or channel. (ii) "River, stream, or channel width" is defined as bank-to-bank, where the water meets the banks, regardless of the time of tide or the water level. (iii) This emergency provision shall supersede the permanent regulation and all other regulations that conflict with it. All other provisions of the permanent regulation remain in effect (WAC 220-20-015(1)). 7. Additional regulations for all Select Area commercial fisheries: a. Nets not specifically authorized for use may be onboard the vessel if properly stored, consistent with WAC 220-33-001. b. ALLOWABLE POSSESSION: Salmon and white sturgeon. A maximum of two white sturgeon may be possessed or sold by each participating vessel during each calendar week (Sunday through Saturday). Sturgeon landing limit specific to Select Areas only. EXCEPT - Effective beginning September 30: chum salmon may not be possessed or sold 8. Quick Reporting: 24-hour quick-reporting required for Washington wholesale dealers, pursuant to WAC 220-69-240. When quick-reporting is required, Columbia River reports must be submitted within 24 hours of the closure of each fishing period. This quick-reporting requirement applies to all seasons described above (Columbia River and Select Areas). 9. Miscellaneous: Nets fished any time between official sunset and official sunrise must have lighted buoys on both ends of the net. If the net is attached to the boat, then one lighted buoy on the end of the net opposite the boat is required.
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040. Reviser's note: The unnecessary underscoring 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 8:00 p.m. September 29, 2013:
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