WSR 14-19-011 EMERGENCY RULES DEPARTMENT OF FISH AND WILDLIFE [Order 14-236—Filed September 4, 2014, 1:42 p.m., effective September 4, 2014, 1:42 p.m.] Effective Date of Rule: Immediately upon filing.
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 220-310-20000U; and amending WAC 220-310-200.
Statutory Authority for Adoption: RCW 77.04.012, 77.04.020, 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: Allows the retention of all chinook (hatchery and wild) for one additional day beyond what was previously scheduled. The change pertains only to the mainstem Columbia River from the Tongue Point/Rocky Point line upstream to the Warrior Rock line. Mark-selective regulations for chinook remain in place for this area during September 8-14, 2014. This change in regulations meets the policy (C-3620) objective for the season structure in this area by having nonmark selective regulations in effect for chinook through September 7. Catch to date has been less than expected, allowing for an extension with minimal risk of exceeding ESA impacts allocated to this specific fishery. Harvest estimates for the seasons are well within ESA limits. The seasons are consistent with the U.S. v. Oregon 2008-2017 Interim Management Agreement and the fall chinook allocation agreement developed through the North of Falcon process. The rule is consistent with compact action of September 3, 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 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 1, Amended 0, Repealed 1.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
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: September 4, 2014.
Philip Anderson
Director
NEW SECTION
WAC 220-310-20000U Columbia River—Freshwater exceptions to statewide rules.
Notwithstanding the provisions of WAC 220-310-200, effective immediately through September 7, 2014, it is permissible to retain wild Chinook as part of the daily limit in those waters of the Columbia River from the Tongue Point/Rocky Point line upstream to the Warrior Rock line.
REPEALER
The following section of the Washington Administrative code is repealed effective September 8, 2014:
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