WSR 18-06-003 EMERGENCY RULES DEPARTMENT OF FISH AND WILDLIFE [Order 18-25—Filed February 22, 2018, 10:30 a.m., effective March 1, 2018] Effective Date of Rule: March 1, 2018. 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 Rules Affected by this Order: Amending WAC 220-312-060. 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 the 2018 spring recreational salmon season in the Columbia River in the area from Buoy 10 upstream to the Oregon/Washington border, and hatchery raised steelhead from Buoy 10 to the 395 Bridge. The regulation allows for the retention of shad and hatchery steelhead during days and in areas that are open for hatchery Chinook. ESA impacts for wild fish are available to recreational fisheries in order to access hatchery fish. The fishery is consistent with the U.S. v Oregon Management Agreement (MA) and the associated biological opinion (BO). Conforms Washington state rules with Oregon state rules. Regulation is consistent with compact action of February 21, 2018.
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 MA (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 BO 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 MA. The 2008-2017 MA and BO have been extended through February 2018 while the MA and BO covering 2018-2027 are finalized. The Washington and Oregon fish and wildlife commissions have developed policies to guide the implementation of such BOs in the states' regulation of nontreaty fisheries.
Columbia River nontreaty fisheries are monitored very closely to ensure compliance with federal court orders, 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. There is insufficient time to promulgate 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 1, Amended 0, Repealed 0. Number of Sections Adopted at the 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 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: February 22, 2018. Joe Stohr Acting Director
NEW SECTION
WAC 220-312-06000Y Exceptions to statewide rules—Columbia River.
Notwithstanding the provisions of WAC 220-312-060, it is unlawful to violate the following provisions, provided that unless otherwise amended, all permanent rules remain in effect:
(1) Effective March 1 through April 7, 2018
(a) Open for boat and bank fishing for Chinook, coho, steelhead from a true north-south line through Buoy 10 to Beacon Rock, plus bank angling only from Beacon Rock upstream to the Bonneville Dam deadline.
(b) Legal upstream boat boundary defined as: A deadline marker on the Oregon bank (approximately four miles downstream from Bonneville Dam Powerhouse One) in a straight line through the western tip of Pierce Island to a deadline marker on the Washington bank at Beacon Rock.
(c) Daily limit is 2 adipose fin clipped salmonids, of which no more than 1 may be an adult Chinook.
(d) Release all wild (unclipped) Chinook and wild steelhead.
(e) Salmon minimum size is 12 inches.
(2) Effective March 16 through May 7, 2018:
(a) Open to fishing for Chinook, coho or steelhead from the Tower Island power lines in Bonneville Pool (located approximately 6 miles below The Dalles Dam) upstream to the Oregon and Washington border, plus the Washington bank between Bonneville Dam and the Tower Island power lines (except for those waters closed under permanent regulations).
(b) Daily limit is 2 adipose fin clipped salmonids (hatchery Chinook or hatchery coho or hatchery steelhead), of which no more than 1 may be an adult Chinook.
(c) Release all wild (unclipped) Chinook and wild steelhead.
(d) Salmon minimum size is 12 inches.
(3) Effective March 16 through May 15, 2018:
(a) On days and in areas open to fishing for hatchery (adipose clipped) spring Chinook, fishing for adipose fin clipped steelhead from Buoy 10 upstream to the Highway 395 bridge and shad from Buoy 10 to Bonneville Dam (except for those waters closed under permanent regulations) is allowed.
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