Effective Date of Rule: Thirty-one days after filing.

     Purpose: Establish emerging commercial fishery for wild shellfish on nonstate tidelands.

     Statutory Authority for Adoption: RCW 77.12.047.

      Adopted under notice filed as WSR 06-01-019 on December 12, 2005.

     Changes Other than Editing from Proposed to Adopted Version: WAC 220-88D-010, after "this chapter is to" delete "establish" and insert "license and provide catch reporting requirements for"; after "on nonstate lands" change "as" to "in"; after "means shellfish" delete "that are not 'private sector cultured aquatic products,' as defined in chapter 15.85 RCW" and insert "identified in WAC 220-88D-050, that rule distinguishes between the harvest of wild shellfish stocks subject to this chapter and private sector cultured aquatic products not subject to this chapter";

     WAC 220-88D-020 [220-88D-030], at end of subsection (1) add "Both the permit and the license are required in order to commercially harvest under this chapter."; insert new subsection (2) to read "The trial fishery permit must be obtained for each site to be harvested. Each harvest site description will be the same as that used for obtaining certification of approval issued by the state department of health. The trial fishery permit must be renewed annually at the same time the site is recertified by the state department of health."; insert new subsection (3) to read "The commercial harvester is covered by a single license for harvesting activity undertaken at any permitted site. The license is effective for one year and must be renewed annually."; renumber remaining subsection.

     WAC 220-88D-030 [220-88D-040], in subsection (1) delete "nonstate lands commercial" and after "following" insert "for each site"; in subsection (1)(b), change "shellfish growing area" to "harvest site" and after "certificate" delete "of approval"; change (1)(c) and (1)(d) to (2) and (3); renumber (2) as (4) and after "permit holder" change "complete" to "fulfill" and after "following" insert "requirements"; renumber (3) and (4) as (5) and (6).

     WAC 220-88D-050, retitle as "Identification of wild stocks of clams, mussels or oysters -- Reporting requirements for the commercial harvest of wild clams, mussels or oysters from nonstate aquatic lands -- Conversion to private sector cultured aquatic products"; delete all verbiage in this section as replaced with the following:

     (1) Based upon RCW 15.85.020(3), the following shellfish are distinguished from private sector cultured aquatic products and are identified as wild stocks that are regulated under this chapter:

     (a) All clams, mussels, or oysters that were not propagated, farmed, or cultivated under the active supervision and management of a private sector aquatic farmer; and

     (b) All clams, mussels, or oysters that were set naturally prior to the time an aquatic farm was established and placed under the active supervision and management of a private sector aquatic farmer.

     (2) Examples of harvested wild stocks of shellfish include, but are not limited to, the following:

     (a) Any harvest of clams, mussels, or oysters from a site that is not registered as an aquatic farm unless there is some ability to demonstrate that the shellfish was propagated, farmed, or cultivated under the active supervision of an aquatic farmer;

     (b) Any harvest of clams, mussels, or oysters that were naturally set prior to the time an aquatic farm was established at the site and placed under the active supervision and management of an aquatic farmer; and

     (c) Shellfish that is harvested from a newly registered aquatic farm during the period when the shellfish is presumed to come from a wild stock as specified in subsection (5) of this section.

     (3) The sale of wild stocks of clams, mussels, and oysters must be reported through the use of shellfish receiving tickets. The failure to report the sale of shellfish with a fish receiving ticket when it is required is unlawful activity and constitutes a violation of WAC 220-69-215 and RCW 77.15.630. Any person selling wild stocks of clams, mussels, and oysters must sell the harvest to a licensed Washington wholesale fish dealer, who is then required to complete the fish ticket. Alternatively, if the person harvesting the clams, mussels, or oysters sells this shellfish at retail or arranges for the harvested shellfish to be transported out of state, they must be a licensed wholesale dealer and must complete a fish receiving ticket for each day's sales or for each shipment.

     (4) Wild stock sales may not be reported on aquatic farm quarterly production reports. Only private sector cultured aquatic products may be reported on quarterly production reports.

     (5) The following shellfish are presumed to be wild shellfish that are subject to these regulations:

     (a) All mussels, oysters, and clams other than geoducks that are commercially harvested from the nonstate lands within the first twelve months after a complete application for the aquatic farm registration is filed; and

     (b) All geoducks commercially harvested from the nonstate lands within the first thirty-six months after a complete application for the aquatic farm registration is filed.

     The presumption that shellfish harvested from a newly registered aquatic farm during these time periods are from wild stocks may be overcome by a showing that the harvested shellfish were actually propagated, farmed, or cultivated under the active supervision of an aquatic farmer. After twelve or thirty-six months, respectively, all shellfish produced from a registered aquatic farm will be presumed to be private sector cultured aquatic products, and must be reported on quarterly aquatic farm reports. If a person does not commercially harvest mussels, oysters, or claims other than geoducks for the first twelve months after the aquatic farm registration, or does not commercially harvest geoducks for the first thirty-six months after registration, there is no requirement to obtain an emerging commercial fishery license or trial fishery permit.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; 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 5, Amended 2, 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: January 13, 2006.

Susan Yeager

for Ron Ozment, Chair

Fish and Wildlife Commission

     (1) Permits for the use of mechanical clam digging devices to take clams other than geoducks may be obtained from the director of fisheries subject to the following conditions:

     (((1))) (a) Any or all types of mechanical devices used in the taking or harvesting of shellfish must be approved by the director of fisheries.

     (((2))) (b) A separate permit shall be required for each and every device and the permit shall be attached to the specific unit at all times.

     (((3))) (c) All types of clams to be taken for commercial use must be of legal size and in season during the proposed operations unless otherwise provided in specially authorized permits for the transplanting of seed to growing areas or for research purposes.

     (((4))) (d) The holder of a permit to take shellfish from tidelands by mechanical means shall limit operations to privately owned or leased land.

     (((5))) (e) The taking of clams from bottoms under navigable water below the level of mean lower low water by any mechanical device shall be prohibited except as authorized by the director of fisheries. Within the enclosed bays and channels of Puget Sound, Strait of Juan de Fuca, Grays Harbor and Willapa Harbor, the operators of all mechanical devices shall confine their operations to bottoms leased from the Washington department of natural resources, subject to the approval of the director of fisheries. The harvesting of shellfish from bottoms of the Pacific Ocean westward from the western shores of the state shall not be carried out in waters less than two fathoms deep at mean lower low water. In said waters more than two fathoms deep the director of fisheries may reserve all or certain areas thereof and prevent the taking of shellfish in any quantity from such reserves established on the ocean bottoms.

     (((6))) (f) Noncompliance with any part of these regulations or with special requirements of individual permits will result in immediate cancellation of and/or subsequent nonrenewal of all permits held by the operator.

     (((7))) (g) Applications must be made on the forms provided by the department of fisheries and permits must be in the possession of the operator before digging commences.

     (((8))) (h) All permits to take or harvest shellfish by mechanical means shall expire on December 31 of the year of issue.

     (((9))) (i) All mechanical clam harvesting machines must have approved instrumentation that will provide deck readout of water pressure.

     (((10))) (j) All clam harvest machines operating on intertidal grounds where less than ten percent of the substrate material is above 500 microns in size must be equipped with a propeller guard suitable for reducing the average propeller wash velocity at the end of the guard to approximately twenty-five percent of the average propeller wash velocity at the propeller. The propeller guard must also be positioned to provide an upward deflection to propeller wash.

     (((11))) (k) Clam harvest machines operating in fine substrate material where less than ten percent of the substrate material is above 500 microns in size, shall have a maximum harvest head width of 3 feet (overall) and the maximum pump volume as specified by the department of fisheries commensurate with the basic hydraulic relationship of 828 gpm at 30 pounds per square inch, pressure to be measured at the pump discharge.

     (((12))) (l) Clam harvest machines operating in coarser substrate material where more than ten percent of the substrate material is above 500 microns in size, shall have a maximum harvest head width of 4 feet (overall) and a maximum pump volume as specified by the department of fisheries commensurate with a basic hydraulic relationship of 1,252 gpm at 45 pounds per square inch, pressure to be measured at the pump discharge.

     (((13))) (m) All clam harvest machine operators must submit accurate performance data showing revolutions per minute, gallons per minute, and output pressure for the water pump on their machine. In addition, they shall furnish the number and sizes of the hydraulic jets on the machines. If needed, the operator shall thereafter modify the machine (install a sealed pressure relief valve) as specified by the department of fisheries to conform with values set forth in either WAC 220-52-018 (11) or (12) of this section. Thereafter, it shall be illegal to make unauthorized changes to the clam harvester water pump or the hydraulic jets. Exact description of the pump volume, maximum pressure and number and size of the hydraulic jet for each harvester machine shall be included in the department of fisheries' clam harvest permit.

     (((14))) (n) All clam harvest machines shall be equipped with a 3/4-inch pipe thread tap and valve that will allow rapid coupling of a pressure gauge for periodic testing by enforcement personnel.

     (((15))) (o) Each mechanical clam harvester must have controls so arranged and situated near the operator which will allow the operator to immediately cut off the flow of water to the jet manifold without affecting the capability of the vessel to maneuver.

     (((16))) (p) Licensing: A hardshell clam mechanical harvester fishery license is the license required to operate the mechanical harvester gear provided for in this section.

     (2) Aquatic farmers may harvest geoducks that are private sector cultured aquatic product by means of water pumps and nozzles.

     (3) Persons may harvest nonstate tideland wild geoducks under a nonstate lands commercial wild clam, mussel and oyster trial fishery permit by means of water pumps and nozzles.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), § 220-52-018, filed 5/19/94, effective 6/19/94; 84-08-014 (Order 84-24), § 220-52-018, filed 3/27/84; 79-02-053 (Order 79-6), § 220-52-018, filed 1/30/79; Order 76-152, § 220-52-018, filed 12/17/76; Order 1258, § 220-52-018, filed 8/25/75; Order 807, § 220-52-018, filed 1/2/69, effective 2/1/69. Formerly WAC 220-52-010(2).]

[Statutory Authority: RCW 77.12.047. 03-16-099 (Order 03-176), § 220-52-020, filed 8/6/03, effective 9/6/03; 01-02-059 (Order 00-264), § 220-52-020, filed 12/29/00, effective 1/29/01. Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), § 220-52-020, filed 5/19/94, effective 6/19/94; 91-10-024 (Order 91-22), § 220-52-020, filed 4/23/91, effective 5/24/91; 84-08-014 (Order 84-24), § 220-52-020, filed 3/27/84; Order 807, § 220-52-020, filed 1/2/69, effective 2/1/69; subsections 1 and 2 from Order 679, filed 4/20/66; subsections 1, 1a, 2 from Orders 351 and 256, filed 3/1/60; subsection 1b from Order 605, filed 4/21/64; Orders 443 and 256, filed 3/1/60.]

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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

OTS-6397.16

NEW SECTION
WAC 220-88D-010   Emerging commercial fishery -- Commercial wild clams, mussels, and oyster shellfish fishery on nonstate tidelands and bedlands.   The purpose of this chapter is to license and provide catch reporting requirements for the commercial harvest of wild clams, mussels, and oysters on nonstate lands in an emerging commercial fishery. For purposes of this chapter, "wild" or "wild stocks of" clams, mussels, and oysters means shellfish identified in WAC 220-88D-050. That rule distinguishes between the harvest of wild shellfish stocks subject to this chapter and private sector cultured aquatic products not subject to this chapter. These terms, and all provisions of this chapter pertaining to "wild" or "wild stocks of" clams, mussels, and oysters, or to "private sector cultured aquatic product," are for state resource management, catch reporting, and enforcement purposes only. They are neither intended to be, nor should be characterized as, any determination or evidence of whether "wild" or "wild stocks of" clams, mussels, and oysters (or any portion thereof) are naturally occurring, are subject to treaty sharing, or are part of natural or artificial shellfish beds as those concepts and terms are used and defined in United States v. Washington, 157 F.3d 630 (9th Cir. 1998), the Shellfish Implementation Plan of United States v. Washington, C70-9213, Subproceeding 89-3 (W.D. Wash, rev. April 8, 2002), and other applicable court orders relating to shellfish.

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     (2) The trial fishery permit must be obtained for each site to be harvested. Each harvest site description will be the same as that used for obtaining certification of approval issued by the state department of health. The trial fishery permit must be renewed annually at the same time the site is recertified by the state department of health.

     (3) The commercial harvester is covered by a single license for harvesting activity undertaken at any permitted site. The license is effective for one year and must be renewed annually.

     (4) "Commercial harvest" of wild clams, mussels, and oysters includes both harvest for sale or barter and harvest of the presumptive commercial quantities defined in RCW 69.30.010.

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     (a) Documentation of ownership interest in or contractual right to harvest from the lands from which the wild clams, mussels, or oysters are to be harvested.

     (b) A harvest site certificate issued by the state department of health for the lands from which the wild clams, mussels, or oysters are to be harvested.

     (2) A copy of the application for a nonstate lands commercial wild clam, mussel, and oyster trial fishery permit will be provided to the affected tribes by the department.

     (3) If a person registers nonstate lands as an aquatic farm, a copy of the aquatic farm registration will be provided to the affected tribes by the department.

     (4) Prior to conducting harvest activities under a nonstate lands commercial wild clam, mussel, and oyster trial fishery permit, the permit holder must fulfill the following requirements:

     (a) Provide a copy of the notice required to be given to affected tribes under the Stipulation and Order Amending Shellfish Implementation Plan, United States v. Washington, Case No. C70-9214, W.D.Wa., if such notice is required.

     (b) Clearly and visibly mark with stakes and/or buoys the property boundaries of the nonstate lands to be harvested, using standard marking methods.

     (c) Failure to comply with the requirements of this subsection invalidates the emerging commercial fishery license issued for the harvest of wild clams, mussels, and oysters.

     (5) A nonstate lands commercial wild clam, mussel, and oyster trial fishery permit allows harvest only of clams, mussels, and oysters, and it is unlawful to harvest any other shellfish or any fin fish.

     (6) It is unlawful to commercially harvest wild clams, mussels, or oysters without a valid emerging commercial fishery license and a nonstate lands commercial wild clam, mussel, and oyster trial fishery permit valid for the lands from which harvest is occurring.

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     (a) All clams, mussels, or oysters that were not propagated, farmed, or cultivated under the active supervision and management of a private sector aquatic farmer; and

     (b) All clams, mussels, or oysters that were set naturally prior to the time an aquatic farm was established and placed under the active supervision and management of a private sector aquatic farmer.

     (2) Examples of harvested wild stocks of shellfish include, but are not limited to, the following:

     (a) Any harvest of clams, mussels, or oysters from a site that is not registered as an aquatic farm unless there is some ability to demonstrate that the shellfish was propagated, farmed, or cultivated under the active supervision of an aquatic farmer;

     (b) Any harvest of clams, mussels, or oysters that were naturally set prior to the time an aquatic farm was established at the site and placed under the active supervision and management of an aquatic farmer; and

     (c) Shellfish that is harvested from a newly registered aquatic farm during a period when the shellfish is presumed to come from a wild stock as specified in subsection (5) of this section.

     (3) The sale of wild stocks of clams, mussels, and oysters must be reported through the use of shellfish receiving tickets. The failure to report the sale of shellfish with a fish receiving ticket when it is required is unlawful activity and constitutes a violation of WAC 220-69-215 and RCW 77.15.630. Any person selling wild stocks of clams, mussels, and oysters must sell the harvest to a licensed Washington wholesale fish dealer, who is then required to complete the fish ticket. Alternatively, if the person harvesting the clams, mussels, or oysters sells this shellfish at retail or arranges for the harvested shellfish to be transported out-of-state, they must be a licensed wholesale dealer and must complete a fish receiving ticket for each day's sales or for each shipment.

     (4) Wild stock sales may not be reported on aquatic farm quarterly production reports. Only private sector cultured aquatic products may be reported on quarterly production reports.

     (5) The following shellfish are presumed to be wild shellfish that are subject to these regulations:

     (a) All mussels, oysters, and clams other than geoducks that are commercially harvested from the nonstate lands within the first twelve months after a complete application for the aquatic farm registration is filed; and

     (b) All geoducks commercially harvested from the nonstate lands within the first thirty-six months after a complete application for the aquatic farm registration is filed.

     The presumption that shellfish harvested from a newly registered aquatic farm during these time periods are from wild stocks may be overcome by a showing that the harvested shellfish were actually propagated, farmed, or cultivated under the active supervision of an aquatic farmer. After twelve or thirty-six months, respectively, all shellfish produced from a registered aquatic farm will be presumed to be private sector cultured aquatic products, and must be reported on quarterly aquatic farm reports. If a person does not commercially harvest mussels, oysters, or clams other than geoducks for the first twelve months after the aquatic farm registration, or does not commercially harvest geoducks for the first thirty-six months after registration, there is no requirement to obtain an emerging commercial fishery license or trial fishery permit.

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