EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: October 15, 2008, 6:00 p.m.
Purpose: The purpose of this rule making is to allow nontreaty commercial fishing opportunity in the Columbia River while protecting fish 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 220-33-01000U; and amending WAC 220-33-010.
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 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; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: Sets additional late fall commercial fishing seasons in the mainstem Columbia River to maximize harvest of healthy hatchery salmon, and reduce handle of ESA - listed salmon and steelhead. The upriver bright chinook run size has been upgraded to 224,400 at the mouth of the Columbia River, which allows non-Indian fisheries to harvest up to 11% of the run. In addition, Columbia River coho returns are greater than expected, with inseason estimates totaling 450,000 coho compared to the preseason estimate of less than 200,000 coho. The seasons are consistent with the 2008-2017 management agreement and the 2008 non-Indian salmon allocation agreement and pose minimal risk at exceeding ESA constraints. Harvestable salmon and sturgeon remain available. The regulation is consistent with compact action of July 22 and October 14, 2008. 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 2005-2007 Interim Management Agreement For Upriver Chinook, Sockeye, Steelhead, Coho and 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 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: October 15, 2008.
Jeff Koenings
Director
1. Mainstem Columbia River
a. SEASON: 6:00 p.m. October 15 to 6:00 a.m. October 16, 2008
8:00 p.m. October 16 to 8:00 a.m. October 17, 2008
b. AREA: SMCRA 1D, 1E (Zones 4-5)
c. GEAR: 8-inch minimum mesh size. Drift gillnets only. Monofilament gear is allowed. Nets not specifically authorized for use in this fishery may be onboard the vessel if properly stored. A properly stored net is defined as a net on a drum that is fully covered by a tarp (canvas or plastic) and bound with a minimum of ten revolutions of rope with a diameter of 3/8 (0.375) inches or greater.
d. SANCTUARIES: Lewis-B, Washougal and Sandy Rivers
e. ALLOWABLE SALES: Salmon and white sturgeon. A maximum of three (3) white sturgeon may be possessed or sold by each participating vessel during each calendar week (Sunday through Saturday) that the fishery is open. The sturgeon possession/sales limit applies only to mainstem fisheries. It is unlawful to fail to return immediately to the water any sturgeon taken in excess of any commercial catch or possession limits prescribed by department rule.
f. OTHER: 24-hour quick reporting required for Washington wholesale dealers, pursuant to WAC 220-69-240. When the quick reporting rule is required, Columbia River reports must be submitted within 24 hours of closure of each fishing period.
2. Mainstem Columbia River
a. SEASON: 7:00 a.m. through 7:00 p.m. Thursday October 16, 2008
b. AREA: SMCRA 1A, 1B, 1C (upstream to the Longview Bridge) and SMCRA 1D, 1E (Zones 4-5)
c. GEAR: No minimum mesh size restriction. Drift gillnets only. Monofilament gear is allowed. Nets not specifically authorized for use in this fishery may be onboard the vessel if properly stored. A properly stored net is defined as a net on a drum that is fully covered by a tarp (canvas or plastic) and bound with a minimum of ten revolutions of rope with a diameter of 3/8 (0.375) inches or greater.
d. SANCTUARIES: Grays, Elochoman-A, Lewis-B, Washougal and Sandy Rivers
e. ALLOWABLE SALES: Salmon and white sturgeon. A maximum of three (3) white sturgeon may be possessed or sold by each participating vessel during each calendar week (Sunday through Saturday) that the fishery is open. The sturgeon possession/sales limit applies only to mainstem fisheries. It is unlawful to fail to return immediately to the water any sturgeon taken in excess of any commercial catch or possession limits prescribed by department rule.
f. OTHER: 24-hour quick reporting required for Washington wholesale dealers, pursuant to WAC 220-69-240. When the quick reporting rule is required, Columbia River reports must be submitted within 24 hours of closure of each fishing period.
3. Blind Slough/Knappa Slough Select Area.
a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights, immediately through October 31, 2008. Open hours are 6:00 p.m. to 8:00 a.m.
b. AREA: Blind Slough and Knappa Slough. The Blind Slough fishing area includes all waters from markers at the mouth of Gnat Creek, located approximately 0.5 mile upstream of the county road bridge, downstream to markers at the mouth of Blind Slough. Concurrent waters extend downstream of the railroad bridge in Blind Slough. The Knappa Slough fishing area includes all waters bounded by a line from the north marker at the mouth of Blind Slough, westerly to a marker on Karlson Island, downstream to boundary lines defined by markers on the west end of Minaker Island, to markers on Karlson Island and the Oregon shore. An area closure of an approximately 100-foot radius at the mouth of Big Creek is defined by markers. All waters in Knappa Slough are under concurrent jurisdiction.
c. GEAR: 6-inch maximum mesh size. Gillnet. Monofilament gear is allowed. Maximum net length of 100 fathoms. No weight restriction on lead line. Use of additional weights or anchors attached directly to the lead line is allowed.
4. Tongue Point/South Channel Select Area.
a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights, immediately through October 26, 2008. Open hours are 7:00 p.m. 4:00 p.m. to 8:00 a.m.
b. AREA: Tongue Point and South Channel. The Tongue Point fishing area includes all waters bounded by a line from a marker midway between the red USCG navigation light #2 at the tip of Tongue Point and the downstream (northern most) pier (#8) at the Tongue Point Job Corps facility, to the flashing green USCG navigation light #3 on the rock jetty at the west end of Mott Island; a line from a marker at the southeast end of Mott Island; northeasterly to a marker on the northwest tip of Lois Island; and a line from a marker on the southwest end of Lois Island, westerly to a marker on the Oregon shore. All waters are under concurrent jurisdiction. The South Channel area includes all waters bounded by a line from a marker on John Day Point through the green USCG buoy #7, to a marker on the southwest end of Lois Island, upstream to an upper boundary line from a marker on Settler Point, northwesterly to the flashing red USCG marker #10, and northwesterly to a marker on Burnside Island defining the upstream terminus of South Channel. All waters are under concurrent jurisdiction.
GEAR: 6-inch maximum mesh. Gillnet. Monofilament gear is allowed. In the Tongue Point area: Net length maximum of 250 fathoms, and weight not to exceed two pounds on any one fathom on the lead line. Participants in the Tongue Point fishery may have stored onboard their boats gill nets of legal mesh size but with leadline in excess of two pounds per any one fathom. In the South Channel area: Net length maximum of 100 fathoms, and no weight restriction on lead line. Use of additional weights or anchors attached directly to the lead line is allowed.
5. Deep River Select Area.
a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights, immediately through October 31, 2008. Open hours are 4:00 p.m. to 8:00 a.m.
b. AREA: Deep River. The Deep River fishing area includes all waters downstream of the town of Deep River to the mouth, defined by a line from USCG navigation marker #16, southwest to a marker on the Washington shore. Concurrent waters extend downstream of the Highway 4 bridge.
c. GEAR: 6-inch maximum mesh. Gill net. Monofilament gear is allowed. Net length maximum of 100 fathoms, and 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. Nets may not fully cross the navigation channel.
6. ALLOWABLE SALES: Applies to all seasons stated in items 3-5 (Select Areas): Salmon only. Sturgeon may not be sold.
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The following section of the Washington Administrative Code is repealed effective 6:00 p.m. October 15, 2008:
| WAC 220-33-01000U | Columbia River below Bonneville. (08-262) |