WSR 00-06-083

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed March 1, 2000, 11:27 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-17-041.

Title of Rule: Conservation areas and marine preserves.

Purpose: To adopt and amend marine preserve and conservation area rules; change two marine preserves into conservation areas.

Statutory Authority for Adoption: RCW 75.08.080.

Statute Being Implemented: RCW 75.08.080.

Summary: Two marine preserves will become conservation areas and one existing area will be modified.

Reasons Supporting Proposal: Many fish species in the area east of Cape Flattery are depressed. Additional areas are needed as unfished reference areas to provide information on resources and ecological relationships absent fishing pressure. The rocky habitats in these areas will provide production areas for rocky reef species such as rockfish. Orchard Rocks Conservation Area is being modified to make it easier to understand and to improve the effectiveness of the closure.

Name of Agency Personnel Responsible for Drafting: Mary Lou Mills, 600 Capitol Way North, Olympia, WA 98501-1091, (360) 902-2834; Implementation: Lew Atkins, 600 Capitol Way North, Olympia, WA 98501-1091, (360) 902-2325; and Enforcement: Bruce Bjork, 600 Capitol Way North, Olympia, WA 98501-1091, (360) 902-2373.

Name of Proponent: Washington Department of Fish and Wildlife, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Marine preserves and conservation areas are needed to provide protection for depressed stocks of fish, shellfish and unclassified wildlife, to afford nonconsumptive use, and to serve as study sites. Additionally, rebuilding efforts will be enhanced by having nonharvest zones. These proposals change two marine preserves into conservation areas, change the boundary of one conservation area, and restrict harvest in two marine preserves.

Proposal Changes the Following Existing Rules: Salter's Point Beach and Waketickeh Creek to conservation area, Orchard Rocks area boundary adjusted, salmon, food fish, shellfish and wildlife closures at Colvos Passage and Titlow Beach.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: There are no reporting or record-keeping requirements in the proposed rule.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: None.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: None.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? The rule is not expected to produce a loss of revenue for any commercial fishing operation in the area. Saltar's Point Beach and the additional area at Orchard Rocks do not have significant commercial harvest for any species. Saltar's Point Beach is only the intertidal area. The area being closed at Orchard Rocks is mainly within the lease holding of the net pen operation. The new pen operation will be unaffected by the closure since they deal with private cultured product (the fish in the pens) which is not under WDFW authority.

The total allowable catch for all species will remain the same for the Puget Sound and Hood Canal area following establishment of these conservation areas and preserve. Total catch for the basins involved will not be affected by the establishment of the conservation areas or the marine preserves, although nontribal fishers will be displaced geographically. Specifically, the harvest that now occurs in the sites includes the following:

Sea urchins (predominantly green urchins) and sea cucumbers: The quotas for sea urchins and sea cucumbers are established by region. The tribes will be unaffected by this rule and are likely to continue to harvest these sites so total harvest for the regions involved are not likely to change. Nontribal fishers will be displaced to other areas in the respective regions but will have ample areas available to harvest.

Shrimp: Hood Canal has not been open for nontribal commercial shrimp harvest. Colvos Passage site is shallower than shrimp gear is typically operated.

Dungeness crab: Hood Canal has not been open for commercial harvest of crab so Waketickeh will have no affect. Colvos Passage is a very small site and harvest opportunities are abundant outside the area. The crab fishery will not be affected by these closures.

Salmon (gillnet and purse seine): Total catch is established based on the strength of the salmon runs moving through these areas and will not be affected. The opportunity to harvest will not be seriously impaired by these conservation areas and preserve.

Area 11 (Colvos Passage) has been open for approximately 2-6 days per year for each type of gear annually. The area closed is small, it is located between two popular drifts, and identification for the fishers will be important. Salmon which may pass through this site will be available for harvest north and south of the site. Total harvest will be unaffected and fishing opportunity will not decrease.

Area 12B in Hood Canal (Waketickeh) has been open 4-9 days typically for each gear each year. The site is well away for the popular purse seine sites and relatively few gill nets work the area so there is ample alternative areas to drift.

Clams, oysters, and mussels (including geoduck clams): These resources are owned by the landowner (private ownership within the intertidal and DNR in subtidal areas). Harvest of these species is unaffected by a WDFW closure. In the case of geoduck clams, DNR would be the state agency to make a decision to forgo harvest. Only if the tribes concurred with that, the harvest model would be adjusted to decrease the total biomass available for the area.

Groundfish and baitfish: There has been no significant directed groundfish or baitfish harvest in these regions so closure of these areas will have no significant effect.

5. Cost of Compliance for the 10% of Businesses That Are the Largest Businesses Required to Comply with the Proposed Rules Using One or More of the Following as a Basis for Comparing Costs: a. Cost per employee; b. Cost per hour of labor; or c. Cost per one hundred dollars of sales. No cost.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So. There are no costs for this rule.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: Hold a public hearing in the Fish and Wildlife Commission rule adoption process.

8. A List of Industries That Will Be Required to Comply with the Rule: Commercial fishers must comply.

A copy of the statement may be obtained by writing to Mary Lou Mills, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2834, fax (360) 902-2944.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. These are not hydraulic rules.

Hearing Location: Yakima Convention Center, 10 North 8th Street, Yakima, WA, on April 7-8, 2000, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by March 31, 2000, TDD (360) 902-2207, or (360) 902-2226.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98504-1091, fax (360) 902-2944.

Date of Intended Adoption: April 7, 2000.

March 1, 2000

Evan Jacoby

Rules Coordinator


AMENDATORY SECTION(Amending WSR 98-06-031, filed 2/26/98, effective 5/1/98)

WAC 220-16-590
Orchard Rocks Conservation Area.

"Orchard Rocks Conservation Area" is defined as those waters and bedlands of Rich Passage ((north and west)) within a 400-yard radius of Orchard Rocks ((between a line projected 85 degrees true from Orchard Rocks day marker and a line projected from Orchard Rocks day marker southwesterly through the R '6' flashing red (2.5s) buoy as well as all waters within 50 yards of Orchard Rocks)) day marker.

[Statutory Authority: RCW 77.12.040 and 75.08.080. 98-06-031, 220-16-590, filed 2/26/98, effective 5/1/98.]


NEW SECTION
WAC 220-16-740
Waketickeh Creek Conservation Area.

"Waketickeh Creek Conservation Area" is defined as those waters and bedlands of Hood Canal from Waketickeh Creek (located 1000 yards north of Cummings Point) out perpendicular to shore 500 yards, then parallel to shore northeast 1700 yards, then back to shore along a line perpendicular to shore, excluding the area within 100 feet of ordinary high water.

[]


NEW SECTION
WAC 220-16-750
Saltar's Point Beach Conservation Area.

"Saltar's Point Beach Conservation Area" is defined as those tidelands owned by the Town of Steilacoom at Saltar's Point Beach located between Montgomery Street and Martin Street, and the water column above those tidelands.

[]


AMENDATORY SECTION(Amending Order 98-120, filed 7/7/98, effective 8/7/98)

WAC 220-20-015
Lawful and unlawful acts -- Salmon.

(1) It is unlawful to operate in any river, stream or channel any gill net gear longer than three-fourths the width of the stream; this provision shall supersede all other regulations in conflict with it.

(2) It is unlawful to operate any net for removing snags from state waters without permit from the department of fisheries.

(3) It is unlawful to take, fish for or possess for commercial purposes chinook salmon less than 28 inches in length or coho salmon less than 16 inches in length except as follows:

(a) In the Puget Sound, Grays Harbor, Willapa Bay and Columbia River commercial salmon net fisheries there is no minimum size limit on salmon taken with gill net gear.

(b) In the Pacific Ocean commercial salmon troll fishery frozen chinook salmon, dressed heads off shall be 21 1/2 inches minimum and frozen coho salmon dressed heads off shall be 12 inches minimum, measured from the midpoint of the clavicle arch to the fork of the tail.

(c) This subsection does not apply to salmon raised in aquaculture.

(4) It is unlawful to set, maintain, or operate any reef net gear at any location which places the stern ends of either or both reef net boats of said gear less than a distance of 800 feet in front of or behind the head buoys of any row or reef net gear, within the boundaries of the Lummi Island Reef Net Fisheries Area, as described in RCW 75.12.140.

(5) It is lawful to possess salmon for any purpose which were lawfully obtained from state and federal government fish hatcheries and facilities. Subsections (3) and (12) of WAC 220-20-010 and subsection (3) of WAC 220-20-015 do not apply to salmon possessed under this subsection.

(6) It is unlawful to take or fish for food fish from a commercial salmon trolling vessel with gear other than lawful troll line gear while said vessel is engaged in commercial fishing or has commercially caught fish aboard.

(7) It shall be unlawful to angle for salmon for personal use from any vessel that is engaged in commercial salmon trolling or has commercially caught salmon aboard.

(8) It is unlawful to fish for or possess salmon taken for commercial purposes from the Sund Rock Marine Preserve, ((or)) the Titlow Beach Marine Preserve, or the Colvos Passage Marine Preserve.

(9) It is unlawful to take salmon for personal use from the Colvos Passage Marine Preserve except by trolling, defined as fishing from a vessel under power and in gear making forward progress.

[Statutory Authority: RCW 75.08.080. 98-15-031 (Order 98-120), 220-20-015, filed 7/7/98, effective 8/7/98; 84-13-078 (Order 84-53), 220-20-015, filed 6/21/84; 79-10-013 (Order 79-75), 220-20-015, filed 9/7/79; 78-05-067 (Order 78-20), 220-20-015, filed 4/27/78; Order 77-66, 220-20-015, filed 8/5/77; Order 77-14, 220-20-015, filed 4/15/77; Order 76-24A, 220-20-015, filed 4/20/76; Order 1251, 220-20-015, filed 8/18/75; Order 1210, 220-20-015, filed 5/26/75; Order 1143, 220-20-015, filed 8/8/74; Order 1116, 220-20-015, filed 4/30/74; Order 1049, 220-20-015, filed 4/11/73; Order 984, 220-20-015, filed 2/17/72; Order 925, 220-20-015, filed 6/3/71; Order 920, 220-20-015, filed 5/13/71; Order 810, 220-20-015, filed 4/17/69.]


AMENDATORY SECTION(Amending Order 98-120 [99-215], filed 7/7/98 [12/16/99], effective 8/7/98 [1/16/00])

WAC 220-20-020
General provisions -- Lawful and unlawful acts -- Food fish other than salmon.

(1) It is unlawful to fish for or possess for commercial purposes any round, undressed white sturgeon less than 48 inches or greater than 60 inches in length or any round, undressed green sturgeon less than 48 inches or greater than 66 inches in length.

(2) It is unlawful to fish for or possess for commercial purposes or possess aboard a commercial fishing vessel for any purpose any species of halibut (Hippoglossus) unless permitted by the current regulations of the International Pacific Halibut Commission.

(3) It is unlawful to fish for or possess for commercial purposes sturgeon taken from any of the waters of Puget Sound or tributaries, and any sturgeon taken with any type of commercial gear incidental to a lawful fishery shall immediately be returned to the water unharmed.

(4) It is unlawful to fish for food fish for commercial purposes in the waters of Shilshole Bay inland and inside a line projected in a southwesterly direction from Meadow Point to West Point.

(5) It is unlawful to fish for or possess for commercial purposes any starry flounder less than 14 inches in length taken by any commercial gear, in all Puget Sound Marine Fish-Shellfish Areas.

(6) It shall be unlawful to harvest herring eggs naturally deposited on marine vegetation or other substrate, unless a person has a permit issued by the director.

(7) It is unlawful to fish for or possess food fish other than salmon taken for commercial purposes from the San Juan Islands Marine Preserve, except that it is lawful to take herring.

(8) It is unlawful to fish for or possess food fish other than salmon taken from the Titlow Beach Marine Preserve, ((or)) the Sund Rock Marine Preserve, or the Colvos Passage Marine Preserve.

[Statutory Authority: RCW 75.08.080. 00-01-103 (Order 99-215), 220-20-020, filed 12/16/99, effective 1/16/00; 98-15-031 (Order 98-120), 220-20-020, filed 7/7/98, effective 8/7/98; 97-07-043 (Order 97-51), 220-20-020, filed 3/14/97, effective 4/14/97; 95-23-020 (Order 95-166), 220-20-020, filed 11/8/95, effective 12/9/95; 93-14-042 (Order 93-54), 220-20-020, filed 6/29/93, effective 7/30/93. Statutory Authority: RCW 75.08.080 and 75.28.245. 90-07-003 (Order 90-17), 220-20-020, filed 3/8/90, effective 4/8/90. Statutory Authority: RCW 75.08.080. 90-06-045 (Order 90-15), 220-20-020, filed 3/1/90, effective 4/1/90; 80-09-072 (Order 80-69), 220-20-020, filed 7/18/80; 79-03-014 (Order 79-11), 220-20-020, filed 2/15/79; Order 77-147, 220-20-020, filed 12/16/77; Order 77-14, 220-20-020, filed 4/15/77; Order 76-148, 220-20-020, filed 12/2/76; Order 76-26, 220-20-020, filed 4/20/76; Order 1193-A, 220-20-020, filed 3/5/75; Order 1193, 220-20-020, filed 3/4/75; Order 1143, 220-20-020, filed 8/8/74; Order 1105, 220-20-020, filed 12/28/73; Order 1057, 220-20-020, filed 5/22/73; Order 1045, 220-20-020, filed 3/8/73; Order 988, 220-20-020, filed 4/28/72; Order 920, 220-20-020, filed 5/13/71; Order 862, 220-20-020, filed 4/16/70; Order 817, 220-20-020, filed 5/29/69; Order 810, 220-20-020, filed 4/17/69.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 98-120 [99-213], filed 7/7/98 [12/15/99], effective 8/7/98 [1/15/00])

WAC 220-20-025
General provisions -- Shellfish.

(1) It is unlawful to drive or operate any motor-propelled vehicle, land any airplane or ride or lead any horse on the razor clam beds of the state of Washington, as defined in WAC 220-16-257. A violation of this subsection shall be punished as an infraction.

(2) It is unlawful to possess any soft-shelled crab for any purpose.

(3) It is unlawful to possess in the field any crab from which the back shell has been removed.

(4) It is unlawful to use any chemicals when taking or fishing for octopus except for persons granted a scientific collector's permit from the department for the harvest of octopus for display or scientific purposes.

(5) It is unlawful to willfully damage crab or other shellfish. Any crab taken incidentally to a net fishery must be immediately returned to the water with the least possible damage to the crab.

(6) It is unlawful to fish for or possess shellfish taken for commercial purposes from the San Juan Islands Marine Preserve, except it is lawful to fish for crab in Parks Bay.

(7) It is unlawful to fish for, harvest, or possess shellfish taken from the Titlow Beach Marine Preserve, ((or)) the Sund Rock Marine Preserve, or the Colvos Passage Marine Preserve.

[Statutory Authority: RCW 75.08.080. 00-01-095 (Order 99-213), 220-20-025, filed 12/15/99, effective 1/15/00; 98-15-031 (Order 98-120), 220-20-025, filed 7/7/98, effective 8/7/98; 95-23-020 (Order 95-166), 220-20-025, filed 11/8/95, effective 12/9/95; 94-12-009 (Order 94-23), 220-20-025, filed 5/19/94, effective 6/19/94; 90-06-045 (Order 90-15), 220-20-025, filed 3/1/90, effective 4/1/90; 80-13-064 (Order 80-123), 220-20-025, filed 9/17/80; Order 1179, 220-20-025, filed 11/19/74; Order 990, 220-20-025, filed 5/11/72; Order 810, 220-20-025, filed 4/17/69.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 98-232 [00-05], filed 11/6/98 [1/24/00], effective 12/7/98 [2/24/00])

WAC 232-12-011
Wildlife classified as protected shall not be hunted or fished.

Protected wildlife are designated into three subcategories: Threatened, sensitive, and other.

(1) Threatened species are any wildlife species native to the state of Washington that are likely to become endangered within the foreseeable future throughout a significant portion of their range within the state without cooperative management or removal of threats. Protected wildlife designated as threatened include:


Common Name Scientific Name
western gray squirrel Sciurus griseus
Steller (northern)

sea lion

Eumetopias jubatus
North American lynx Lynx canadensis
Aleutian Canada goose Branta Canadensis

leucopareia

bald eagle Haliaeetus leucocephalus
ferruginous hawk Buteo regalis
marbled murrelet Brachyramphus marmoratus
green sea turtle Chelonia mydas
loggerhead sea turtle Caretta caretta
sage grouse Centrocercus urophasianus
sharp-tailed grouse Phasianus columbianus

(2) Sensitive species are any wildlife species native to the state of Washington that are vulnerable or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. Protected wildlife designated as sensitive include:

Common Name Scientific Name
Gray whale Eschrichtius gibbosus
Larch Mountain

salamander

Plethodon larselli
Pygmy whitefish Prosopium coulteri
Margined sculpin Cottus marginatus
Olympic mudminnow Novumbra hubbsi

(3) Other protected wildlife include:


Common Name Scientific Name
cony or pika Ochotona princeps
least chipmunk Tamius minimus
yellow-pine chipmunk Tamius amoenus
Townsend's chipmunk Tamius townsendii
red-tailed chipmunk Tamius ruficaudus
hoary marmot Marmota caligata
Olympic marmot Marmota olympus
Cascade

golden-mantled

ground squirrel

Spermophilus saturatus
golden-mantled

ground squirrel

Spermophilus lateralis
Washington ground

squirrel

Spermophilus washingtoni
red squirrel Tamiasciurus hudsonicus
Douglas squirrel Tamiasciurus douglasii
northern flying squirrel Glaucomys sabrinus
wolverine Gulo gulo
painted turtle Chrysemys picta
California mountain

kingsnake

Lampropeltis zonata;

All birds not classified as game birds, predatory birds or endangered species, or designated as threatened species or sensitive species; all bats, except when found in or immediately adjacent to a dwelling or other occupied building; all wildlife within Titlow Beach Marine Preserve ((Area)), the Sund Rock Marine Preserve, the Colvos Passage Marine Preserve, and the conservation areas defined in chapter 220-16 WAC; mammals of the order Cetacea, including whales, porpoises, and mammals of the order Pinnipedia not otherwise classified as endangered species, or designated as threatened species or sensitive species. This section shall not apply to hair seals and sea lions which are threatening to damage or are damaging commercial fishing gear being utilized in a lawful manner or when said mammals are damaging or threatening to damage commercial fish being lawfully taken with commercial gear.

[Statutory Authority: RCW 77.12.040, 77.12.010, 77.12.020, 77.12.770, 77.12.780. 00-04-017 (Order 00-05), 232-12-011, filed 1/24/00, effective 2/24/00. Statutory Authority: RCW 77.12.020. 98-23-013 (Order 98-232), 232-12-011, filed 11/6/98, effective 12/7/98. Statutory Authority: RCW 77.12.040. 98-10-021 (Order 98-71), 232-12-011, filed 4/22/98, effective 5/23/98. Statutory Authority: RCW 77.12.040 and 75.08.080. 98-06-031, 232-12-011, filed 2/26/98, effective 5/1/98. Statutory Authority: RCW 77.12.020. 97-18-019 (Order 97-167), 232-12-011, filed 8/25/97, effective 9/25/97. Statutory Authority: RCW 77.12.040, 77.12.020, 77.12.030 and 77.32.220. 97-12-048, 232-12-011, filed 6/2/97, effective 7/3/97. Statutory Authority: RCW 77.12.020. 93-21-027 (Order 615), 232-12-011, filed 10/14/93, effective 11/14/93; 90-11-065 (Order 441), 232-12-011, filed 5/15/90, effective 6/15/90. Statutory Authority: RCW 77.12.040. 89-11-061 (Order 392), 232-12-011, filed 5/18/89; 82-19-026 (Order 192), 232-12-011, filed 9/9/82; 81-22-002 (Order 174), 232-12-011, filed 10/22/81; 81-12-029 (Order 165), 232-12-011, filed 6/1/81.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Washington State Code Reviser's Office