WSR 10-05-023

EMERGENCY RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Order 10-22 -- Filed February 5, 2010, 12:51 p.m. , effective February 5, 2010, 12:51 p.m. ]


Effective Date of Rule: Immediately.

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 220-33-04000F and 220-33-04000G; and amending WAC 220-33-040.

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: Modifies the mainstem Columbia smelt fishery and closes those waters of SMCRA 1B that include parts of several Washington tributaries. The regulations are consistent with Level 1 fisheries in the "Washington and Oregon Eulachon Management Plan for the Columbia River." Abundance and productivity indicators project a weak return of smelt for 2010, and the minimal fishing plan adopted serves as a test fishery to monitor run strength and collect biological data. Rule is consistent with Columbia River compact action of February 4, 2010. There is insufficient time to adopt permanent rules.

Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 0, Repealed 2; Federal Rules or Standards: New 1, Amended 0, Repealed 2; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.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 5, 2010.

Lori Preuss

for Philip Anderson

Director


NEW SECTION
WAC 220-33-04000G   Smelt -- Areas and seasons.   Notwithstanding the provisions of WAC 220-33-040, effective immediately through March 31, 2010, the Columbia River and Washington tributaries are closed to fishing for smelt except under the following provisions:

1) Area: SMCRA 1A, 1B, 1C, 1D, and 1E, except the following waters are closed: Those waters of SMCRA 1B upstream of the markers at USCG navigation marker #16 in Deep River, those waters upstream of the outer most uplands at the mouth of the Grays River, and those waters upstream of the outer-most uplands at the mouth of the Elochoman River.

Dates: Mondays and Thursdays, 7:00 a.m. to 2:00 p.m.

Gear: Gillnets, dipnets, and trawl nets.

Allowable sales: Smelt.

Other: 24-hour quick-reporting required for Washington wholesale dealers, WAC 220-69-240.

2) Area: Cowlitz River downstream of Peterson's Eddy

Dates: Sundays, February 7, 14, 21, and 28; and Wednesdays, February 10, 17, and 24.

Hours: 7:00 p.m. to 10:00 p.m. each day.

Gear: Dipnets

Allowable sales: Smelt.

Other: 24-hour quick-reporting required for Washington wholesale dealers, WAC 220-69-240.

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REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 220-33-04000F Smelt -- Areas and seasons. (10-16)

The following section of the Washington Administrative Code is repealed effective April 1, 2010:


WAC 220-33-04000G Smelt -- Areas and seasons.

Washington State Code Reviser's Office