WSR 04-05-069

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed February 17, 2004, 11:25 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-24-087.

Title of Rule: Rules to control spread of Denman Island shellfish disease and the spread of oyster drills.

Purpose: To protect the shellfish grower industry and wild and cultured stock of bivalve resources.

Statutory Authority for Adoption: RCW 77.60.060.

Statute Being Implemented: RCW 77.60.060.

Summary: Newly found areas for the presence of Denman Island disease as well as newly found locations of oyster drills requires an updating of current WAC language to make the rules contemporary with the new information.

Reasons Supporting Proposal: New locations of infected oysters and oyster drills have been discovered and these areas need to be regulated to reduce the spread of the disease and the pests.

Name of Agency Personnel Responsible for Drafting: Morris Barker, 1111 Washington Street, Olympia, WA, (360) 902-2826; Implementation: Lew Atkins, 1111 Washington Street, Olympia, WA, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, (360) 902-2373.

Name of Proponent: Department of Fish and Wildlife, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Rules broaden currently identified geographic areas of restriction to encompass new areas where disease and pests have been identified for the purpose of preventing the spread of these diseases and pests to other new areas. The anticipated effects are to protect the shellfish grower industry and cultured and wild populations of bivalve shellfish.

Proposal Changes the Following Existing Rules: Broadens geographical areas under current restriction to provide additional protection for newly discovered locations of disease and pests.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: No reporting, recordkeeping, or compliance is required. The allowed activity (shellfish transfers) is optional.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: None required - optional choice.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: None required - optional choice.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Yes, potentially.

5. Cost of Compliance for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rules Using One or More of the Following as a Basis for Comparing Costs:

a. Cost per employee;

b. Cost per hour of labor; or

c. Cost per one hundred dollars of sales.

If Denman Island disease is found in a seed producing area, transfers from that area would be prohibited, causing seed sales to cease. Transfers from the Denman Island Disease surveillance area may require a disease free certification from a department approved shellfish pathologist. These certifications can cost as much as $1400, however, most, if not all, shellfish growers who transfer shellfish on a regular basis within the state already obtain these certifications for export out of the state. If Japanese oyster drills are found in an oyster bed, transfers from that area may be limited. If a transfer is made from a drill area to a drill free area, oysters must be soaked in freshwater for forty-eight hours. This can be done at a minor cost to shellfish growers.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The department worked with an advisory group (academics, private researchers and shellfish industry representatives), shellfish pathologist, and the public (through a public workshop) on the subject to reach consensus on the proposed rules. The proposed rules were not perceived to be onerous or costly by the user groups contacted.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department will hold a public hearing of the proposed rules at the WDFW commission meeting on April 2-3, 2004, where small business and the public can provide their additional comments on the rules.

8. A List of Industries That Will Be Required to Comply with the Rule: None, as rule is optional.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155.

RCW 34.05.328 does not apply to this rule adoption. Not hydraulics rules.

Hearing Location: Red Lion Hotel "At the Park," 303 West North River Drive, Spokane, WA, on April 2-3, 2004, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Susan Yeager by March 20, 2004, TDD (360) 902-2207 or (360) 902-2267.

Submit Written Comments to: Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by March 26, 2004.

Date of Intended Adoption: April 2, 2004.

February 17, 2004

Evan Jacoby

Rules Coordinator

OTS-6990.1


AMENDATORY SECTION(Amending Order 03-86, filed 4/30/03, effective 5/31/03)

WAC 220-72-011   Oyster drill restricted shellfish areas -- Puget Sound.   All waters, tidelands, shellfish handling facilities and equipment (including aquaculture vehicles and vessels) operated in conjunction with said waters and tidelands of Puget Sound within the following areas are designated as oyster drill restricted shellfish areas:

(1) Dungeness Bay -- inside and bounded westerly of a line projected from the most easterly tip of Dungeness Spit true-south to the mainland.

(2) Drayton Harbor -- inside and southerly of a line projected from the north most tip of Semiahmoo Spit to where the International Boundary line intersects the mainland.

(3) Lummi Bay -- inside the Lummi Dike and inside and bounded by a line projected from:

Point No. 1 at 4846'32" N. Lat.

12240'00" W. Long. thence to
Point No. 2 at 4845'55" N. Lat.

12240'00" W. Long. thence to
Point No. 3 at 4845'55" N. Lat.

12239'12" W. Long.
Then northerly along the beach to the point of origin.

(4) Samish Bay -- inside and easterly of a line starting at the most westerly tip of Governor's Point and projected in a southerly direction to the most westerly tip of William Point on Samish Island.

(5) Padilla Bay -- easterly (including the Swinomish channel) of a line starting at the most westerly tip of William Point on Samish Island and projected southerly to the most northerly tip of March Point on Fidalgo Island.

(6) Similk and Skagit Bays -- northerly of a line projected across Skagit Bay following latitude 4820' N. and easterly of the Deception Pass bridge.

(7) Liberty Bay -- inside and westerly of a line projected true south from the most southerly point at Tower Point.

(8) Dyes Inlet -- inside and northerly of a line projected true east from the most northerly tip of Rocky Point to the mainland.

(9) Carr Inlet --

(a) Burley Lagoon -- inside and northerly of the Purdy bridge.

(b) Minter Creek -- waters of Minter Creek, and waters of Puget Sound inside a line beginning on the east shore of the Key Peninsula at 12241'00" W. Long., thence projected south to the intersection with 4721'00" N. Lat., thence projected due west to shore.

(10) Case Inlet --

(a) Rocky Bay and North Bay -- northerly of a line projected across Case Inlet following latitude 4720'44" N.

(b) Vaughn Bay -- easterly of a line projected true north from the most northerly point of the southern spit at the mouth of Vaughn Bay to the mainland on the north shore.

(11) Hammersley Inlet and Oakland Bay -- inside, westerly and northerly of a line starting at the most southeasterly point of Munson Point and projected in a southeasterly direction to Eagle Point.

(12) Totten Inlet, Oyster Bay and Little Skookum Inlet -- inside and southerly of a line starting at the most southeasterly point on Windy Point and projected northeasterly to the most northerly tip of Sandy Point (i.e., the southern base of the Steamboat Island Bridge).

(13) Eld Inlet --

(a) Mud Bay -- inside and westerly of a line projected from the most easterly point of Flapjack Point and projected true south to the mainland.

(b) Sanderson Harbor -- lying inside and westerly of a line starting at the most northern point on Sanderson Spit and projected northeasterly to the mainland.

(14) Nisqually Flats -- inside and southerly of a line starting at the end of the DuPont Dock and projected true west to the mainland.

(15) Hood Canal --

(a) Quilcene Bay -- inside, northerly and easterly of a line starting at the Port of Port Townsend boat ramp north of Coast Seafoods company shellfish hatchery projected easterly to a point at 4848'10" N. Lat., 12251'30" W. Long. and then projected southeasterly to the most westerly tip of Fisherman's Point.

(b) Tarboo Bay -- inside, northerly and easterly of a line starting at the most northerly tip of Long Spit and then projected true west to the mainland.

(c) The Great Bend to Lynch Cove -- inside and bounded easterly by lines projected from:

Point No. 1 at 4723'02.7" N. Lat.

12306'42.8" Long. thence to
Point No. 2 at 4723'02.7" N. Lat.

12306'55" W. Long. thence to
Point No. 3 at 4721'00" N. Lat.

12306'55" W. Long., then projected true east to the mainland.
(d) Hamma Hamma Flats and Jorsted Creek -- inside and westerly of lines projected from:

Point No. 1 at 4733'15" N. Lat.

12301'42" W. Long. thence to
Point No. 2 at 4732'54" N. Lat.

12301'06" W. Long. thence to
Point No. 3 at 4732'54" N. Lat.

12301'48" W. Long. thence to
Point No. 4 at 4731'00" N. Lat.

12301'54" W. Long.
(e) Dosewallips Delta -- inside and westerly of lines projected from:

Point No. 1 at 4741'03" N. Lat.

12253'45" W. Long. thence to
Point No. 2 at 4741'03" N. Lat.

12252'24" W. Long. thence to
Point No. 3 at 4742'20.6" N. Lat.

12252'24" W. Long. thence to
Point No. 4 at 4742'20.6" N. Lat.

12252'39" W. Long.
(f) Point Whitney -- inside and westerly of lines projected from:

Point No. 1 at 4745'43.7" N. Lat.

12251'02" W. Long. thence to
Point No. 2 at 4545'56" N. Lat.

12251'02" W. Long. thence to
Point No. 3 at 4545'56" N. Lat.

12251'12" W. Long. thence to
Point No. 4 at 4745'45" N. Lat.

12251'12" W. Long.
(g) Duckabush River Mouth -- inside and westerly of a line projected from:

Point No. 1 at 4738'46" N. Lat.

12254'08" W. Long. thence to
Point No. 2 at 4737'55" N. Lat.

12256'25" W. Long.
(16) Henderson Inlet -- South Bay -- inside and southerly of a line commencing at a point on the west shore of Henderson Inlet where the south line of Section 17, Twp 19 N R 1 WWM intersects the shoreline, thence projected true east across Henderson Inlet to the east shoreline.

[Statutory Authority: RCW 77.12.047. 03-10-041 (Order 03-86), 220-72-011, filed 4/30/03, effective 5/31/03. Statutory Authority: RCW 75.08.080. 97-08-078 (Order 97-56), 220-72-011, filed 4/2/97, effective 5/3/97.]

OTS-6992.2


AMENDATORY SECTION(Amending Order 03-86, filed 4/30/03, effective 5/31/03)

WAC 220-72-089   Denman Island Disease prohibited area.   An area where Mikrocytos mackini, the causative agent of Denman Island Disease, has been confirmed with department approved histological methods by a department approved shellfish pathologist or reported in peer-reviewed scientific journal and accepted by the department. All waters, tidelands, shellfish handling facilities and equipment (including aquaculture vehicles and vessels) operated in conjunction with said waters and tidelands within the following areas are designated as Denman Island Disease prohibited areas:

(1) Dungeness Bay -- inside and westerly of a line projected from the tip of Dungeness Spit due south to the mainland.

(2) Orcas Island --

(a) Deer Harbor -- inside and northerly of a line projected ((between)) from Pole Pass Point ((and)) to Steep Point.

(b) West Sound -- inside and northerly of a line projected from Caldwell Point to the most southerly point of land west of the community of Orcas.

(c) East Sound -- inside and northerly of a line projected from Diamond Point to the most south-westerly point on Orcas Island at Obstruction Pass.

(3) Westcott Bay -- inside and westerly of a line projected from the most southerly point of White Pass to the most northerly point of Delacombe Point.

(4) Bellingham and Samish Bays -- southerly and inside of a line projected from Lummi Point to Gooseberry Point and easterly and inside of a line projected from Carter Point to William Point.

(5) Minter Creek -- waters of Minter Creek, and waters of Puget Sound inside a line beginning on the east shore of the Key Peninsula at 12241'00" W. Long., thence projected south to the intersection with 4721'00" N. Lat., thence projected due west to shore.

(6) McMicken Island -- inside and westerly of a line projected from Dougall Point to Wilson Point.

(7) Oakland Bay -- north of 4714'30" N. Lat. and south of 4715'00" N. Lat.

[Statutory Authority: RCW 77.12.047. 03-10-041 (Order 03-86), 220-72-089, filed 4/30/03, effective 5/31/03.]

OTS-6991.1


AMENDATORY SECTION(Amending Order 03-86, filed 4/30/03, effective 5/31/03)

WAC 220-72-090   Denman Island Disease surveillance area.   All waters, tidelands, shellfish handling facilities and equipment (including aquaculture vehicles and vessels) operated in conjunction with said waters and tidelands within the following areas are designated as Denman Island Disease surveillance areas:

(1) North Puget Sound, Strait of Juan de Fuca and San Juan Islands - easterly of a line projected true north ((of)) from Cape Flattery to the international boundary line, northerly of a line ((between)) projected from the north most tip of Tala Point ((and)) to the ((west)) western most tip of Foulweather Bluff, and northerly of a line ((between)) projected from the east most point of Apple Cove Point ((and)) to the ((west)) western most point of Edwards Point.

(2) South Puget Sound - All contiguous water south and east of the Tacoma Narrows Bridge.

[Statutory Authority: RCW 77.12.047. 03-10-041 (Order 03-86), 220-72-090, filed 4/30/03, effective 5/31/03.]

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