EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: April 21, 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 232-28-61900D and 232-28-61900Y; 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: Effective 12:01 a.m. Monday, April 21, 2008, closes spring recreational salmon angling below Bonneville Dam prior to the scheduled May 1 closure date. Permanent regulations will apply to the area below Bonneville Dam. Rule is consistent with joint state actions of Washington department of fish and wildlife (WDFW) and Oregon department of fish and wildlife (ODFW) on February 15, 2008, and April 16, 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.
The upriver spring chinook return in the Columbia River is projected to be 78,500 fish. With a projected run of this size, additional opportunity for sport fisheries in the Columbia River is available under the ESA impact guideline of 1.5% of the upriver run. The season is consistent with Washington fish and wildlife commission guidance for 2006-2007 and the 2005-2007 U.S. v. Oregon Interim Management Agreement. The extended season is expected to allow for harvest of hatchery chinook while minimizing impacts to ESA listed species. Rule is consistent with joint state actions of WDFW and ODFW on January 25, 2008. There is insufficient time to promulgate permanent regulations.
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: April 17, 2008.
Phil Anderson
for Jeff Koenings
Director
1. Columbia River:
i. From Tower Island power lines in Bonneville Pool upstream to McNary Dam, plus Washington bank between Bonneville Dam and the Tower Island power lines (except for those waters closed under permanent regulations): Salmon, steelhead and shad: Open immediately through May 10, 2008. Daily limit 6 salmon, of which no more than 2 may be adult salmon. Release all wild Chinook, wild coho (below Hood River Bridge), sockeye and chum. Minimum size 12 inches. Daily limit 2 trout; release wild steelhead. Minimum size 12 inches.
ii. For the mainstem Columbia River salmon and steelhead fishery upstream of the Rocky Point/Tongue Point line, effective through June 15, 2008, salmon and steelhead required to be released may not be totally removed from the water; except, anglers fishing from vessels thirty feet or longer as shown on their state registration or Coast Guard documentation are exempt from this subsection.
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The following section of the Washington Administrative Code is repealed effective 12:01 a.m. April 21, 2008:
| WAC 232-28-61900D | Exceptions to statewide rules -- Columbia River. (08-29) |
| WAC 232-28-61900Y | Exceptions to statewide rules -- Columbia River. |