EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: May 1, 2010.
Purpose: The purpose of this rule making is to allow nontreaty recreational fishing opportunity in the Columbia River while protecting fish listed as threatened or endangered under the Endangered Species Act (ESA). 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 232-28-61900W, 232-28-61900Y and 232-28-61900C; 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 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.
Reasons for this Finding: 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 2008-2017 United States v. Oregon Management Agreement (Aug. 12, 2008) (Doc. No. 2546).
Some Columbia River Basin salmon and steelhead stocks are listed as threatened or endangered under the federal ESA. On May 5, 2008, the National Marine Fisheries Service issued a biological opinion under 16 U.S.C. § 1536 that allows for some incidental take of these species in treaty and nontreaty Columbia River fisheries governed by the 2008-2017 U.S. v. Oregon Management Agreement. The Washington and Oregon fish and wildlife commissions have developed policies to guide the implementation of such 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 ESA, 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.
The fisheries below Bonneville Dam are close[d] to the preseason guidelines for spring Chinook prior to a run size update. Fisheries are being managed conservatively so as not to exceed the preseason guidelines. Regulation is consistent with guidance from Washington fish and wildlife commission and director, and compact/joint state action of April 20, 2010. The fishery is consistent with the U.S. v Oregon Management Agreement and the associated [no further information supplied by the agency].
Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 0, Repealed 3; Federal Rules or Standards: New 1, Amended 0, Repealed 3; 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 3.
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 30, 2010.
Philip Anderson
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 located approximately 6 miles below The Dalles Dam (except for those waters closed under permanent regulations): Effective immediately through May 31, 2010, daily salmonid limit 6 fish, (hatchery Chinook or hatchery steelhead), of which no more than 2 can be adult Chinook salmon or hatchery steelhead or one of each. Release all wild Chinook.
ii. Effective through June 15, 2010: For the mainstem Columbia River salmon and steelhead fishery from the Rocky Point/Tongue Point line upstream to McNary Dam, it is unlawful when fishing from vessels which are less than 30 feet in length, substantiated by Coast Guard documentation or Marine Board registration, to totally remove from the water any salmon or steelhead required to be released.
2. Deep River (Wahkiakum Co.): Effective immediately, through June 15, 2010: closed to fishing for salmon and steelhead.
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The following sections of the Washington Administrative
Code are repealed effective May 1, 2010:
| WAC 232-28-61900Y | Exceptions to statewide rules -- Columbia River. (10-42) |
| WAC 232-28-61900W | Exceptions to statewide rules -- Columbia River. (10-89) |
| WAC 232-28-61900C | Exceptions to statewide rules -- Columbia River. |