BP BHEAD INT S [atlas:bill]

AN ACT Relating to harvest management of stocks of anadromous salmonids; amending RCW 75.08.012 and 77.04.055; adding new sections to chapter 77.12 RCW; creating new sections; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds there has been a sizeable increase in the number of stocks of salmonids originating in Washington waters that have recently been declared as threatened or endangered by federal agencies under the federal endangered species act. Unlike most species that have been placed on the federal endangered species act, salmonids continue to be allowed to be harvested as a sport, for commercial purposes, and for tribal commercial, ceremonial, and subsistence purposes. Such harvests occur throughout the waters of many different governmental jurisdictions, each of whom has an interest in maintaining its share of the catch. The legislature finds that there is tension between preserving and restoring listed stocks and the ability to maintain acceptable levels of harvest in a mixed stock fishery, which results in direct and incidental harvest of these listed stocks of fish.

The legislature finds that generally fish reared in hatcheries can sustain a higher rate of harvest than fish that rely on natural spawning. Fish hatcheries have been used, for nearly a century in some regions, as a way to augment the number of salmonids available for harvest. Hatcheries have been used for increasing production when there is insufficient escapement to natural spawning grounds and for mitigation for loss of natural habitat. Because of the extensive use of hatcheries by numerous entities throughout the state for decades, it is frequently difficult to distinguish on a scientific basis between aboriginal native stocks, current natural reproducing stocks, and hatchery stocks some of which are native and other that have been introduced from other areas. Information derived from fish marking programs indicate the amount of straying and intermixing of fish from one watershed with fish in another has been occurring for decades. The extent to which these various fish stocks may have intermixed, as compared to remaining separate and distinct stocks, is not well understood by the various interests that are affected by the consequences of various recovery strategies for listed stocks.

The legislature finds that several hundreds of millions of public and private moneys have been spent and likely more will be expended to restore listed stocks of anadromous salmonids. Mechanisms that assure adequate protection of listed stocks from the impacts of harvest need to be established to assure that restoration efforts will be productive and long lasting. Further, that establishment of such mechanisms are needed to enhance public confidence that these public and private expenditures will not go forward without close monitoring and periodic reporting of verifiable progress.

The purpose of this act is to establish policies and strategies necessary to assure that stocks that have been listed under the federal endangered species act will be protected from overharvest and restored, while maintaining to the extent possible, the continued harvest of stocks from watersheds with abundant populations.

NEW SECTION. Sec. 2. A new section is added to chapter 77.12 RCW to read as follows:

(1) Each year the department shall identify each anadromous salmonid stock that has been listed as threatened or endangered under the federal endangered species act. For each of these identified stocks, the department shall report the best available estimates of the following:

(a) The run size of adult fish available for harvest within the stock's migratory range and for spawning escapement;

(b) The rate of harvest-induced mortality in the waters of each state and province through which the fish migrate and a delineation of the rate by sports, nontribal commercial, and tribal harvest. Harvest induced mortality shall include such sources as by-catch and hook mortality;

(d) The minimum escapement goal that would be necessary to remove the stock from its endangered or threatened status;

(e) The optimal escapement goal that would provide sufficient spawners to use the available spawning and rearing habitat fully; and

(f) The number of fish that escaped harvest and continue to migrate through state waterways for spawning.

(2) By December 1st of each year, the report shall be compiled. Reports for ensuing years shall have a consistent and well-summarized format to allow for comparability between years to determine the rate of change and whether success is being attained. The report shall be transmitted to the governor, the secretary of the senate, and to the chief clerk of the house of representatives. Copies of the report shall be available to the public upon request at no charge.

NEW SECTION. Sec. 3. (1) The legislature finds that the methods by which salmonids are currently propagated in waters of the state evolved over many decades are too complex to be instantly replaced without also placing the fisheries resource, dependent and affected communities, and the state's economy at unnecessary risk. The state, and public and private entities approved by the state, have made considerable investments in facilities to propagate salmonids and have been done voluntarily or to fulfill mitigation requirements. The legislature finds that federal fishery agencies are mandating that major modifications be implemented immediately without a thorough analysis of the impacts, an evaluation of less impacting alternatives, or documentation of the anticipated impacts. The legislature finds there are questions as to whether federal agencies have based their policies on only one of a number of possible interpretations of federal law. The legislature finds that the state's fishery resource, dependent and affected communities, and the state's economy could be unnecessarily and permanently harmed by overly precipitous federal action.

(2) Until June 30, 2002, to the extent not inconsistent with federal law, there shall be a moratorium placed on implementation of orders issued by federal fishery agencies that do not comply with the provisions of section 4 of this act. During the period the moratorium is in effect, representatives of the executive and the legislative branches of the state of Washington shall consult with their counterparts in the states of Oregon, Idaho, and Montana and involved federal fishery agencies, to examine the basis for federal policies that order destruction of significant populations of salmonids and their eggs and sperm, and to evaluate alternatives that have less impact to the salmonid resource, to dependent and affected communities, and to each state's economy.

(3) By December 15, 2001, the department of fish and wildlife shall submit a report that provides a list of the alternative policies that were considered together with the estimated impact of each alternative to the fishery resource, to dependent and affected communities, and to Washington's economy. The report shall be submitted to the chief clerk of the house of representatives and the secretary of the senate.

NEW SECTION. Sec. 4. A new section is added to chapter 77.12 RCW to read as follows:

To the extent not inconsistent with federal law, all fish reared in state-funded hatcheries and fish reared in mitigation hatcheries approved by the department under RCW 75.20.090 (as recodified by section 129, chapter 107, Laws of 2000), surplus of the operational needs of the hatchery, shall be allowed to continue to spawn under natural conditions and the eggs and sperm from those fish shall not be destroyed pursuant to orders or other requirements of the federal government unless:

(1) The order from the federal agency is in writing and is signed by the appropriate federal official;

(2) The order has provided clear directions to assure that stocks of fish listed as threatened or endangered will not be accidentally or intentionally directed to be killed and that execution of such order will not constitute a violation of the prohibition on take included in the federal endangered species act;

(3) The federal agency order cites the specific federal regulation that contains criteria as to how various stocks of fish are to be distinguished from one another and that surplus hatchery fish, including their eggs and sperm must be destroyed;

(4) The basis for the order is genetic testing of scales or other parts of fish that allows accurate placement of stocks of fish into distinct categories;

(5) Surplus hatchery-reared fish have been verified to be genetically different than the naturally spawning fish;

(6) The stock differentiation is based on sound science and has been subjected to peer review that includes at least three scientists with a high degree of expertise in fish genetics chosen by the department chairs of two state universities' fishery programs. The peer review panel shall write a written report of the findings and conclusions;

(7) The number of fish in the population is of an adequate number to adequately restore the run without hatchery augmentation;

(8) The evaluation of fish stocks includes an estimate of the extent that various stocks have strayed and the number of years that said stocks have strayed; and

(9) The extent that indigenous stocks have intermixed with other indigenous stocks or with other hatchery stocks.

NEW SECTION. Sec. 5. (1) A study shall be conducted on ways to increase the returns of stocks of anadromous fish listed as threatened or endangered under the federal endangered species act. The goal of the study is to better manage fish harvesting activities and to improve the selectivity of fishing methods to increase returns of stocks with low numbers while allowing the continued harvest of abundant stocks. The study shall consider all the various methods of allowing improved harvest management and selective harvest strategies and associated harvest gear that can serve as an alternative to a full conservation closure that would restrict all fishing activity, including those that have a very small impact on listed stocks.

(2) In conducting the study, the department of fish and wildlife may form an advisory committee that includes representatives of major fishing groups and entities with expertise in the topics.

(3) The results of the study shall be included in a report to the governor and the legislature by December 1, 2000.

NEW SECTION. Sec. 6. The state fish and wildlife commission shall establish escapement goals for each stock of anadromous salmonids that has been listed as threatened or endangered under the federal endangered species act. For each stock there shall be two types of escapement goals: A minimum escapement goal that when reached would qualify the particular stock of fish for removal from the federal listing; and a optimal escapement goal that would allow sufficient fish to fully use the habitat that is currently available.

For each stock of fish that does not meet the minimum escapement goal, the commission shall provide for the management of the harvest so that spawning escapement levels are increased by equal amounts in each of the subsequent two life cycles so that the minimum escapement goals are fully achieved and maintained. Progress toward reaching these milestones shall be included in the report required under section 2 of this act.

Sec. 7. RCW 75.08.012 (as recodified by 2000 c 107 s 126) and 2000 c 107 s 2 are each amended to read as follows:

Wildlife, fish, and shellfish are the property of the state. The commission, director, and the department shall preserve, protect, perpetuate, and manage the wildlife and food fish, game fish, and shellfish in state waters and offshore waters.

The department shall conserve the wildlife and food fish, game fish, and shellfish resources in a manner that does not impair the resource. In a manner consistent with this goal, the department shall seek to maintain the economic well-being and stability of the fishing industry in the state. The department shall promote orderly fisheries and shall enhance and improve recreational and commercial fishing in this state. In carrying out this policy, the department shall take action to assure that sufficient escapement of stocks of anadromous salmonids listed under the federal endangered species act is achieved consistent with section 6 of this act.

The commission may authorize the taking of wildlife, food fish, game fish, and shellfish only at times or places, or in manners or quantities, as in the judgment of the commission does not impair the supply of these resources.

The commission shall attempt to maximize the public recreational game fishing and hunting opportunities of all citizens, including juvenile, disabled, and senior citizens.

Recognizing that the management of our state wildlife, food fish, game fish, and shellfish resources depends heavily on the assistance of volunteers, the department shall work cooperatively with volunteer groups and individuals to achieve the goals of this title to the greatest extent possible.

Nothing in this title shall be construed to infringe on the right of a private property owner to control the owner's private property.

Sec. 8. RCW 77.04.055 and 2000 c 107 s 204 are each amended to read as follows:

(1) In establishing policies to preserve, protect, and perpetuate wildlife, fish, and wildlife and fish habitat, the commission shall meet annually with the governor to:

(a) Review and prescribe basic goals and objectives related to those policies; and

(b) Review the performance of the department in implementing fish and wildlife policies.

The commission shall maximize fishing, hunting, and outdoor recreational opportunities compatible with healthy and diverse fish and wildlife populations. In carrying out this policy, the commission shall take action to assure that sufficient escapement of stocks of anadromous salmonids listed under the federal endangered species act is achieved consistent with section 6 of this act.

(2) The commission shall establish hunting, trapping, and fishing seasons and prescribe the time, place, manner, and methods that may be used to harvest or enjoy game fish and wildlife.

(3) The commission shall establish provisions regulating food fish and shellfish as provided in RCW 75.08.080 (as recodified by section 127, chapter 107, Laws of 2000).

(4) The commission shall have final approval authority for tribal, interstate, international, and any other department agreements relating to fish and wildlife.

(5) The commission shall adopt rules to implement the state's fish and wildlife laws.

(6) The commission shall have final approval authority for the department's budget proposals.

(7) The commission shall select its own staff and shall appoint the director of the department. The director and commission staff shall serve at the pleasure of the commission.

NEW SECTION. Sec. 9. (1) Sections 1, 2, and 5 through 8 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect June 8, 2000.

(2) Sections 3 and 4 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.