WSR 14-17-047 EMERGENCY RULES DEPARTMENT OF FISH AND WILDLIFE [Order 14-207—Filed August 14, 2014, 3:44 p.m., effective August 14, 2014, 3:44 p.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: Sets the season for the Columbia River seine emerging commercial fishery.
Citation of Existing Rules Affected by this Order: Repealing WAC 220-88-05000A, 220-88-06000A, 220-88-07000A, and 220-88-08000A.
Statutory Authority for Adoption: RCW 77.04.012, 77.04.020, 77.04.130, 77.12.045, and 77.12.047.
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: This rule establishes an emerging commercial fishery with limited participants using beach or purse seine gear in the Columbia River. This limited entry fishery is established consistent with RCW 77.70.160 and is implemented based on Policy C-3620 which includes guiding principles and a progressive series of actions to improve the management of salmon in the Columbia River Basin. The fisheries outlined here are part of a series of actions meant to be progressively implemented in 2013-2016 during the transitional period of the policy. This is a pilot fishery allowing seine gear in the Columbia River and is meant to inform fishery managers in how best to implement such fisheries. The seasons are consistent with the U.S. v. Oregon 2008-2017 interim management agreement, commission guidance and the fall chinook allocation agreement developed through the North of Falcon process. The regulation is consistent with compact action of August 12, 2014. There is insufficient time to adopt 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 Endangered Species Act (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 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, 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 4.
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 14, 2014.
Philip Anderson
Director
NEW SECTION
WAC 220-88-07000B Columbia River seine emerging commercial fishery—Season, area, and gear requirements.
It is unlawful to fish for salmon for commercial purposes with beach or purse seine gear except as provided in the following section:
(1) Designation of Columbia River seine fishery as an emerging commercial fishery.
(a) The director designates the Columbia River seine salmon fishery as an emerging commercial fishery for which use of a vessel is required. The director has determined a need to limit the number of participants in this fishery.
(b) It is unlawful to fish for, possess, or deliver salmon taken for commercial purposes using beach or purse seine unless the fisher possesses a valid emerging commercial fishery license and a salmon experimental fishery permit for either beach seine or purse seine gear.
(2) Terms of Experimental Fishery Permit
(a) A limited number of experimental fishery permits have been issued by the director for participation in the 2014 Columbia River seine emerging commercial fishery.
(b) It is unlawful to violate the conditions of these experimental fishery permits.
(c) Conditions of each permit include, but are not limited to:
(i) Specific gear type (beach or purse seine) allowed under the permit.
(ii) Specific area (SMCRA) in which seine fishing is allowed under the permit
(iii) Individual Fish Quotas (IFQs) specific for each permit based on gear type.
(3) Season: Time, area and gear
(a) Open hours are 6:00 a.m. to 7:30 p.m. through September 11; and 6:30 a.m. to 7:00 p.m. thereafter:
(b) Open days are:
(i) Tuesday August 19 and Thursday August 21, 2014
(ii) Tuesday August 26 and Thursday August 28, 2014
(iii) Tuesday, Wednesday, and Thursday, September 2, 3, 4, 2014
(iv) Monday, Tuesday, Wednesday, and Thursday, September 8, 9, 10, 11, 2014
(v) Monday September 15 and Wednesday September 17, 2014
(vi) Monday September 22 and Wednesday September 24, 2014
(vii) Monday September 29, 2014
(c) Open area: SMCRA 1A and 1B through August 28 and SMCRA 1A-1E thereafter
(d) Sanctuaries: Elochoman-A, Cowlitz, Kalama-A, Lewis A, Sandy, Washougal and Select Area commercial fishing sites.
(e) Gear type: Beach seines or purse seines only. Only one net per boat.
(i) Net length not to exceed 200 fathoms (including associated lead nets).
(ii) Net depth not to exceed 200 meshes (approximately 50 feet)
(iii) Mesh size restricted to a 3.5-inch maximum (inside of knot to outside of knot using hand tension stretched measure).
(iv) Net material to consist of 3-strand nylon; twine size ≥#12.
(v) Seines may include a bunt of 1.0-2.0 inch knotless mesh.
(vi) Seine and lead lines may not be connected. Lead nets must be retrieved daily.
(vii) No restrictions on corkline, leadline or use of stringers and slackers.
(viii) A chafing strip panel consisting of non-monofilament webbing (such as nylon seine web or polyethylene trawl web) is allowed on bottom of net; maximum panel depth is 5-feet. Chafing mesh not to exceed 3.5-inch stretched measure for beach and 5-inch stretched measure for purse. There are no restrictions associated with hangings used to connect the net to the chafing panel or the net or chafing panel to the leadline or corkline.
(ix) Red corks are required at 25-fathom intervals and red corks must be in contrast to the corks used in the remainder of the net.
(4) Allowable possession and handling of catch
(a) Allowable possession and sales: Adipose or left ventral fin-clipped Chinook, adipose-clipped coho, pink and sockeye salmon. Subject to IFQs as defined on individual permits and fishery regulations, all legally-caught salmon must be landed.
(b) Hand sorting or use of a knotless dip net for sorting is required. All fish must be sorted and/or released prior to removing entire seine from water. Dry sorting not permitted.
(c) Sort time not to exceed 75 minutes.
(i) Beach seine - defined as the elapsed time from when the outer towed end of the net first contacts the shore or block until the net is emptied of fish.
(ii) Purse Seine - defined as the elapsed time from when all rings are pursed and out of the water until the net is emptied of fish.
(5) Observer Program – Agency observers must be present during all fishing operations as described in each experimental permit issued.
(6) 24-hour quick-report required pursuant to WAC 220-69-240.
REPEALER
The following sections of the Washington Administrative Code are repealed:
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