EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: March 24, 2008, 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 220-56-27000A and 220-56-27000B; and amending WAC 220-56-270.
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: Modifies the ongoing smelt fishery in the Columbia River. Closes the fishery on Tuesdays during the spring chinook season.
A Level 1 fishery was adopted in accordance with the joint states eulachon management plan. Abundance and productivity indicators project a weak return of smelt for 2008. Rule is consistent with joint state actions of Washington (WDFW) and Oregon (ODFW) departments of fish and wildlife on January 13 and February 15, 2008. There is insufficient time to promulgate permanent regulations. The season is consistent with Washington fish and wildlife commission guidance for 2008 and the 2005-2007 U.S. v. Oregon interim management agreement.
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 WDFW and ODFW 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: February 22, 2008.
J. P. Koenings
Director
1) Area: Mainstem Columbia River below Bonneville Dam
Open Dates: 7 days/week, EXCEPT from March 24 through March 31, 2008 from one hour after official sunset on Mondays through one hour prior to official sunrise on Wednesdays (essentially Tuesdays), the area is closed to angling (including catch and release and retention) for all species in those waters of the Columbia River from the Hayden Island Powerlines (west towers) upstream to Bonneville Dam
Hours: 24 hours per day
Daily limit: 25 pounds; possession limit, 25 pounds
Gear: Dipnets
2) Area: Cowlitz River
Open Dates: Saturdays
Hours: 6:00 a.m. to 10:00 p.m. daily
Daily limit: 10 pounds; possession limit, 10 pounds
Gear: Dipnets
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The following section of the Washington Administrative Code is repealed, effective 12:01 a.m. March 24, 2008:
| WAC 220-56-27000A | Smelt -- Areas and seasons. (07-296) |
The following section of the Washington Administrative Code is repealed, effective 12:01 a.m. April 1, 2008:
| WAC 220-56-27000B | Smelt -- Areas and seasons. |