WSR 13-18-013 EMERGENCY RULES DEPARTMENT OF FISH AND WILDLIFE [Order 13-207—Filed August 23, 2013, 1:52 p.m., effective August 25, 2013, 9:00 p.m.] Effective Date of Rule: August 25, 2013, 9:00 p.m.
Purpose: The purpose of this rule making is to allow nontreaty commercial fishing opportunities 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 220-33-01000E; and amending WAC 220-33-010.
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: Sets additional fishing periods for the 2013 fall season for non-Indian commercial fisheries in the mainstem Columbia River. The seasons are consistent with the 2008-2017 interim management agreement. Salmon and sturgeon are available for harvest during fall season fisheries. The regulation is consistent with compact action of July 25, 2013, and August 22, 2013. 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 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.
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: August 23, 2013.
Philip Anderson
Director
NEW SECTION
WAC 220-33-01000F Columbia River season below Bonneville.
Notwithstanding the provisions of WAC 220-33-010 and WAC 220-33-020, it is unlawful for a person to take or possess salmon or sturgeon for commercial purposes from Columbia River Salmon Management and Catch Reporting Areas (SMCRA) 1A, 1B, 1C, 1D, and 1E, except as provided in the following subsections. 1. Mainstem Columbia River a. SEASON: 9 PM Sunday, August 25, to 6 AM Monday, August 26. b. AREA: SMCRA 1D, 1E. The deadline at the lower end of SMCRA 1D is defined as a straight line projected from the Warrior Rock Lighthouse on the Oregon shore easterly through the green navigation buoy #1 and continuing to the Washington shore. c. GEAR: Drift gillnets only. 9-inch minimum mesh size. d. SANCTUARIES: Washougal and Sandy Rivers. e. ALLOWABLE POSSESSION: Salmon and white sturgeon. A maximum of four white sturgeon may be possessed or sold by each participating vessel during each calendar week (Sunday through Saturday). The sturgeon landing limit is specific to the mainstem only. f. Effective August 1-31, 2013: Sturgeon possession is prohibited while fishing gear is deployed in the portion of Commercial Zone 5 (SMCRA 1E) that is upstream of Skamania Island (Navigation Marker 82 on the Oregon shore, westerly to the boundary marker on the Washington shore upstream of Fir Point). Only vessels in transit through the area may have sturgeon onboard. 2. Blind Slough/Knappa Slough Select Area. a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights from August 26 through October 31, 2013. Open hours are 7 PM to 7 AM through September 13, and 6 PM to 8 AM thereafter. b. AREA: Blind Slough and Knappa Slough. An area closure of an approximately 100-foot radius at the mouth of Big Creek is in effect. Concurrent jurisdiction waters include all areas in Knappa Slough and downstream of the Railroad Bridge in Blind Slough. c. GEAR: Gillnet. Monofilament gear is allowed. 9 3/4-inch maximum mesh size. Maximum net length of 100 fathoms. No weight restriction on lead line. Use of additional weights and/or anchors attached directly to the lead line is allowed. 3. Tongue Point/South Channel Select Area. a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights from August 26 through October 31, 2013. Open 7 PM to 7 AM through September 13, and 4 PM to 10 AM thereafter. b. AREA: Tongue Point and South Channel. All waters in this fishing area are concurrent-jurisdiction waters. c. GEAR: Gillnet. 6-inch maximum mesh. Maximum length of 250 fathoms. Tongue Point fishing area: Weight not to exceed two pounds on any one fathom. Fishers participating in the Tongue Point fishery may have onboard un-stored gillnets legal for the South Channel fishing area. South Channel area: No weight restriction on lead line. Use of additional weights and/or anchors attached directly to the lead line is allowed. 4. Deep River Select Area. a. SEASON: Monday and Thursday nights, August 26 and August 29, 2013. Monday, Tuesday, Wednesday and Thursday nights from September 2-13. Sunday, Monday, Tuesday, Wednesday and Thursday nights from September 15-27. Monday, Tuesday, Wednesday and Thursday nights from September 30- October 11. Monday and Thursday nights, October 14 and October 17, 2013. Open hours are 7 PM to 7 AM. b. AREA: The Deep River Select Area. Concurrent-jurisdiction waters extend downstream of the Highway 4 Bridge. c. GEAR: Gillnet. Monofilament gear is allowed. 9 3/4-inch maximum mesh size through September 13, and 6-inch maximum mesh thereafter. Net length, 100 fathoms maximum. 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. It is unlawful to operate in any river, stream or channel any gillnet gear longer than three-fourths the width of the river, stream, or channel. "River, stream, or channel width" is defined as bank-to-bank, where the water meets the banks, regardless of the time of tide or the water level. This emergency provision shall supersede the permanent regulation and all other regulations that conflict with it. All other provisions of the permanent regulation remain in effect (WAC 220-20-015(1)). 5. Additional regulations for all Select Area commercial fisheries: a. Nets not specifically authorized for use may be onboard the vessel if properly stored, consistent with WAC 220-33-001, unless otherwise provided in this rule. b. ALLOWABLE POSSESSION: Salmon and white sturgeon. A maximum of two white sturgeon may be possessed or sold by each participating vessel during each calendar week (Sunday through Saturday). Sturgeon landing limit specific to Select Areas only. 6. Quick Reporting: 24-hour quick-reporting required for Washington wholesale dealers, pursuant to WAC 220-69-240. When quick-reporting is required, Columbia River reports must be submitted within 24 hours of the closure of each fishing period. This quick-reporting requirement applies to all seasons described above (Columbia River and Select Areas). 7. Miscellaneous: Nets fished any time between official sunset and official sunrise must have lighted buoys on both ends of the net. If the net is attached to the boat, then one lighted buoy on the end of the net opposite the boat is required.
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. REPEALER
The following section of the Washington Administrative Code is repealed 9:00 p.m. August 25, 2013:
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