EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: May 18, 2010, 7:00 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 (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 220-33-01000C; 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.
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.
Prohibits the sales of sturgeon in select area commercial fisheries. Requires fishers to contact agency staff to have Deep River catch sampled. The fishery is consistent with the U.S. v. Oregon Management Agreement and the associated biological opinion. Rule is consistent with action of the Columbia River compact on May 17, 2010. Conforms Washington state rules with Oregon state rules. There is insufficient time to adopt permanent rules.
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 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: May 18, 2010.
Joe Stohr
for Philip Anderson
Director
1. Blind Slough/Knappa Slough Select Area
a) Area: The lower boundary of the Knappa Slough fishing area is extended downstream to boundary lines defined by markers on the west end of Minaker Island to markers on Karlson Island and the Oregon Shore (boundary used in fall season).
b) Dates: Monday and Thursday nights immediately through June 11, 2010. Open hours are 7 PM to 7 AM.
c) Gear: Nets are restricted to 100 fathoms in length, with no weight restriction on leadline. Use of additional weights or anchors attached directly to the leadline is allowed. 9 3/4-inch maximum mesh size.
d) Allowable sales: Salmon, shad.
e) 24-hour quick reporting in effect for Washington buyers.
2. Deep River Select Area
a) Area: From the markers at USCG navigation marker #16, upstream to the Highway 4 Bridge.
b) Dates: Sunday and Wednesday nights immediately through June 10, 2010. Open hours are 7 PM to 7 AM.
c) Gear: Nets are restricted to 100 fathoms in length, with no weight restriction on leadline. Use of additional weights or anchors attached directly to the leadline is allowed. Nets cannot be tied off to any stationary structures. Nets may not fully cross the navigation channel. 9 3/4-inch maximum mesh size.
d) Allowable sale: Salmon, shad.
e) Miscellaneous: Effective 7 PM Wednesday May 19, 2010, fishers are required to phone 360-795-0319 within one hour after the closing of a nightly fishing period to notify staff of any landed catch. Fishers will make arrangements to have the catch biologically sampled. After sampling, fishers will be issued a transportation permit by agency staff. A sampling station will be set up at the boat ramp off of Miller Point Road on the east bank of Deep River slough.
f) 24-hour quick reporting in effect for Washington buyers.
3. Tongue Point
a) Area: Tongue Point fishing area includes all waters bounded by a line extended from the upstream (southern most) pier (#1) at the Tongue Point Job Corps facility, through navigation marker #6 to Mott Island, (new spring lower deadline); 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. 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.
b) Dates: Monday and Thursday nights immediately through June 11, 2010. Open hours are 7 PM to 7 AM,
c) Gear: In the Tongue Point fishing area, gear restricted to 9 3/4-inch maximum mesh size, maximum net length of 250 fathoms, and weight not to exceed two pounds on any one fathom. In the South Channel fishing area, gear restricted to 9 3/4-inch maximum mesh size, maximum net length of 100 fathoms, no weight restriction on leadline, and use of additional weights or anchors attached directly to the leadline is allowed.
d) Allowable sale: Salmon, shad.
e) Miscellaneous: Fishers are required to call 503-428-0518 and leave a message including name, catch, and where and when the fish will be sold.
f) 24-hour quick reporting in effect for Washington buyers.
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Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER
The following section of the Washington Administrative
Code is repealed effective 7:00 p.m. May 18, 2010:
| WAC 220-33-01000C | Columbia River seasons below Bonneville. (10-112) |