EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: June 20, 2011, 3:00 p.m.
Purpose: The purpose of this rule making is to allow nontreaty commercial 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 Existing Rules Affected by this Order: Repealing WAC 220-33-03000G and 220-33-03000H; and amending WAC 220-33-030.
Statutory Authority for Adoption: RCW 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: Extends the standard shad commercial season in the 2S and Washougal Reef areas for four additional days. Further defines gear restrictions in both the 2S and Washougal Reef areas. Harvestable numbers of shad are available, and industry has expressed interest in extending the season as market strength has improved. Rules continue to allow sales of shad when caught under an experimental gear permit issued by the state of Oregon. Washington supports innovative fishing techniques for shad. Incidental impacts to nontarget species are expected to be minimal, and are covered in a biological opinion. This rule is consistent with actions of the Columbia River compact hearing of May 4, and June 16, 2011. This rule is consistent with requirements of the ESA. There is insufficient time to promulgate permanent regulations.
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 nontreaty 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 2; Federal Rules or Standards: New 1, Amended 0, Repealed 2; 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 2.
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: June 17, 2011.
Philip Anderson
Director
1. Area 2S.
a. Area: Within SMCRA 1D and 1E, specifically waters from a true north/south line through Light #50 near the mouth of the Sandy River upstream to the commercial fishing boundary near Beacon Rock.
b. Season: Monday through Friday immediately through June 24, 2011. Open hours are daily 3:00 p.m. to 10:00 p.m.
c. Gear: Drift gill net only. Single-wall, unslackened, floater gill net; 5 3/8" - 6 1/4" mesh size restrictions; 10-lb breaking strength; and the net may not exceed 150 fathoms in length or 40 meshes in depth. Rip lines are authorized spaced not closer than 20 corks apart
d. Allowable sales: Only shad may be kept and sold. All other fish must be immediately returned to the water unharmed.
2. Washougal Reef.
a. Area: Within SMCRA 1D and 1E, specifically waters inside a line commencing at the white six-second equal-interval light approximately 3/4 miles east of the Washougal Woolen Mill pipeline and projected westerly to the Washougal blinker light, thence to the four-second blinker light on the east end of Lady Island, thence easterly and along the shoreline of Lady Island to the State Highway 14 Bridge, thence easterly across the State Highway 14 Bridge to the mainland.
b. Season: Monday through Friday immediately through June 24, 2011, open hours are daily 8:00 p.m. to 12:00 a.m.
c. Gear: Drift gill net only. Single-wall, unslackened, floater gill net, with breaking strength of less than 30 pounds. Mesh size: 5 3/8 inches inches to 6 1/4 inches. Net may not exceed 150 fathoms in length or 40 meshes in depth
d. Allowable sales: Only shad may be kept and sold. All other fish must be immediately returned to the water unharmed.
3. Mainstem Columbia River
a. Stipulations: Shad may be taken and sold for commercial purposes with experimental fishing gear. A permit issued by the State of Oregon as described in the Oregon Administrative Rule 635-006-0020 is required to use experimental gear types for shad. Conditions under which shad may be taken and sold for commercial purposes will be specified in the permit.
b. Area: SMCRA 1A-1E
c. Season: Immediately through July 15, 2011
d. Gear: experimental, including but not limited to purse seines
e. Allowable sales: Only shad may be kept and sold. All salmonids, sturgeon, and non-target species taken as incidental catch in operation of such gear shall immediately, with care and least possible injury, be released and transferred to the water without violence.
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Reviser's note: The typographical error 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 3:00 p.m. June 20, 2011:
| WAC 220-33-03000G | Commercial shad -- Columbia River. (11-88) |
The following section of the Washington Administrative Code is repealed effective July 16, 2011:
| WAC 220-33-03000H | Commercial shad -- Columbia River. |