WSR 14-22-013 EMERGENCY RULES DEPARTMENT OF FISH AND WILDLIFE [Order 14-311—Filed October 23, 2014, 2:32 p.m., effective October 24, 2014, 7:00 p.m.] Effective Date of Rule: October 24, 2014, 7:00 p.m.
Purpose: This emergency rule will 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 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 220-33-01000F; and amending WAC 220-33-010.
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: Sets additional mainstem commercial salmon seasons in SMCRA 1D and 1E for chinook directed fisheries and in SMCRA 1A-1C for coho-directed fisheries. Harvestable chinook and coho remain available based on the current runsizes and allocated ESA impacts. This rule also continues to extend the open hours of individual fishing periods in Blind Slough/Knappa Slough and keeps the Blind Slough/Knappa Slough and Tongue Point/South Channel select areas open for an additional day each week through October 31. Harvest estimates are well within ESA limits for non-Indian fisheries. The seasons are consistent with the U.S. v. Oregon 2008-2017 Interim Management Agreement and the fall chinook allocation agreement. The rule is consistent with compact action of July 29, September 18, and October 23, 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 notreaty 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: October 23, 2014.
Joe Stohr
for Philip Anderson
Director
NEW SECTION
WAC 220-33-01000G Columbia River season below Bonneville.
Notwithstanding the provisions of WAC 220-33-010, it is unlawful to take or possess salmon for commercial purposes from Columbia River Salmon Management and Catch Reporting Areas (SMCRA) 1A, 1B, 1C, 1D, and 1E, except as provided in this section.
(1) Mainstem Columbia River – Chinook directed
(a) SEASON: Sunday, Tuesday, and Thursday nights October 26 through October 31, 2014. Open hours are 7 PM to 7 AM.
(b) AREA: SMCRA 1D and 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) SANCTUARIES: Washougal and Sandy Rivers.
(d) GEAR: Drift gillnets only; 8-inch minimum mesh size.
(e) ALLOWABLE POSSESSION: Chinook, coho, pink and sockeye salmon and shad.
(2) Mainstem Columbia River – Coho-directed
(a) SEASON: Open Monday through Friday October 27, 28, 29, 30, and 31, 2014. Open hours are 7 AM to 7 PM.
(b) AREA: SMCRA 1A, 1B and 1C. The deadline at the upper end of SMCRA 1C 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) SANCTUARIES: Grays Bay, Elokomin-A, Cowlitz, Kalama-A and Lewis-A.
(d) GEAR: Drift gillnets only. 6-inch maximum mesh size restriction. Unslackened floater nets only. Nets legal for the coho tanglenet fishery are considered legal nets for the purposes of this subsection.
(e) ALLOWABLE POSSESSION: Salmon and shad, except it is unlawful to retain chum salmon.
(3) Tongue Point/South Channel Select Area.
(a) SEASON: Sunday, Monday, Tuesday, Wednesday, and Thursday nights immediately through October 31, 2014. Open hours are 4 PM to 10 AM.
(b) AREA: Tongue Point and South Channel. All waters in this fishing area are concurrent-jurisdiction waters.
(c) GEAR: Gillnet; 6-inch maximum mesh. Net length: 250 fathoms maximum.
(i) Tongue Point fishing area: Weight must not exceed two pounds on any one fathom. Fishers participating in the Tongue Point fishery may have onboard unstored gillnets legal for the South Channel fishing area.
(ii) South Channel area: No weight restriction on lead line. Use of additional weights and/or anchors attached directly to the lead line is permissible.
(4) Blind Slough/Knappa Slough Select Area.
(a) SEASON: Sunday, Monday, Tuesday, Wednesday, and Thursday nights immediately through October 31, 2014. Open hours are 6 PM to 10 AM.
(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 permissible. 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 permissible.
(5) Allowable possession for Select Areas specified in subsections (3) and (4) of this section: Salmon and shad, except it is unlawful to retain chum salmon.
(6) Additional requirements for all areas opened in this section:
(a) Nets that are not specifically authorized for use may be onboard the vessel if properly stored, consistent with WAC 220-33-001.
(b) 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
(c) 24-hour quick-reporting is required for Washington wholesale dealers, as provided in WAC 220-69-240. Columbia River reports must be submitted within 24 hours of the closure of each fishing period.
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 effective 7:00 p.m. October 24, 2014:
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