WSR 02-21-114

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed October 22, 2002, 2:36 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-18-108.

Title of Rule: Marine fin fish aquaculture rules.

Purpose: Establish marine fin fish aquaculture escape and recapture plan.

Statutory Authority for Adoption: RCW 77.12.047, 77.125.030.

Statute Being Implemented: RCW 77.125.030.

Summary: Establishes marine fin fish aquaculture plan for prevention of escapes and mitigation after escapes.

Reasons Supporting Proposal: Protection of native stocks from competing aquaculture species.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

Name of Proponent: 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: In response to escapes of Atlantic salmon, the legislature passed HB 1499 in 2001. This bill instructs the department to work with industry to establish a marine fin fish aquaculture escape prevention program, and to have plans for recapture of escaped fish and eradication of spawning escaped marine fin fish. The proposed rules define marine fin fish, require a marking mechanism to determine the origin of escaped fish, require an escape prevention plan, require an escape reporting and recapture plan, provide for reasonable inspections, and establish an Atlantic salmon watch program. Additionally there is an education program contingent on funding. The proposed rules contain a two-year moratorium on use of transgenic fish in marine fin fish aquaculture. The purpose of these proposals is to minimize the effects of escaped aquaculture fish on native stocks and state and tribal hatchery production. It is anticipated that a reduction in competition for food and breeding sites, and a reduction in potential interbreeding will result from reducing escapes and recapturing escaped aquaculture fish. These proposals will allow the marine fin fish aquaculture program in Washington state to continue, while reducing potentially harmful interspecies competition.

Proposal does not change existing rules.

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: Aquatic farmers will be required to obtain a species, stock and race permit prior to commencing aquaculture. An escape prevention plan and an escape reporting and recapture plan will be required for all operations.

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: Cost of marking fish. Using thermal marking, the cost is $.03/1,000 fish. With an expectation of 12,000,000 fish to be marked, the cost will be $360.00.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No.

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.

There is only one business in the state that will be required to comply with this rule. With sixty employees, the cost is $6 per employee.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: Allowing use of thermal marking has significantly reduced the cost. The department has accepted NPDES documents as the escape prevention and rapid recovery plan documents, thereby reducing costs to the grower. Mitigating for escaped fish has been accomplished by providing for seasons on escapees.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The bill required negotiations with industry, and industry helped draft the rule.

8. A List of Industries That Will Be Required to Comply with the Rule: Marine fin fish net pen operators.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155.

RCW 34.05.328 does not apply to this rule adoption. Not hydraulics rules.

Hearing Location: Skagit County P.U.D., 1415 Freeway Drive, Mount Vernon, WA, on December 6-7, 2002, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Nancy Burkhart by November 22, 2002, TDD (360) 902-2207 or (360) 902-2449.

Submit Written Comments to: Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by November 27, 2002.

Date of Intended Adoption: December 6, 2002.

October 22, 2002

Evan Jacoby

Rules Coordinator

OTS-5994.3


NEW SECTION
WAC 220-76-100   Marine fin fish aquaculture -- Approval permit for marine fin fish aquaculture.   (1) It is unlawful for any aquatic farmer to possess any species, stock or race of marine fin fish, defined as fin fish being raised in marine waters, in net pens, cages or other rearing vessels without having first obtained and possessing a valid marine fin fish aquaculture permit from the director for that species, stock and race at that specific location of rearing or holding. The director will approve, condition, or deny a permit within sixty days after a completed application containing all requested information is received by the department's aquaculture coordinator. The application must be accompanied by an escape prevention plan and the escape reporting and recapture plan as required by this chapter. A permit may be denied based on the determination by the director of significant genetic, ecological or fish health risks of the proposed fish rearing program on naturally occurring fish and wildlife, their habitat or other existing fish rearing programs. The use of transgenic fish (as defined by the actual transfer of genes from one species to another) is prohibited for a period of two years from the effective date of this rule. Each permit application must contain a means mutually agreed to by the department and the aquatic farmer to individually identify to the aquatic farmer all marine fin fish in aquaculture hatched after December 31, 2003. A permit will be valid for a period of five years from the date of approval. The department will comply with the procedures of any appropriate federal court order in processing permit applications. Any change in species, stock, or race at a specific location of rearing or holding will require reapproval of the marine fin fish rearing operation. In the event of denial, the affected person may appeal the decision to the director. The department will advise the person of the appeals process. Additional appeals may be made through the Administrative Procedure Act (chapter 34.05 RCW).

(2) Any person who imports marine fin fish into the state for aquaculture or transports marine fin fish within the state for aquaculture and who does not have an approved marine fin fish aquaculture permit is guilty of unlawfully transporting fin fish. Violation of this section shall be enforced under RCW 77.15.290.

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NEW SECTION
WAC 220-76-110   Marine fin fish aquaculture -- Escape prevention plan required.   A fish escape prevention plan is required with each application for a marine fin fish aquaculture permit and approval by the department of the fish escape prevention plan is required before issuance of a marine fin fish aquaculture permit.

(1) The escape prevention plan must include:

(a) Routine procedures and best management procedures used to minimize the risk of escapement from pens during normal day-to-day operations.

(b) Procedures to minimize escapements in the event the net-pens need to be moved, repaired, or manipulated in any manner, or during stocking or harvesting operations, which could result in a release of fish to state waters. At a minimum, prior to the net-pens being moved, a bathymetric analysis should be made along the intended travel route(s) to ensure adequate depth and the absence of underwater hazards or obstructions.

(c) Procedures for routine training of employees and contractors in escape prevention.

(d) Procedures for routinely determining and tracking the number of fish in each pen lost due to predation and mortality, and the number of fish lost due to escapement.

(e) Procedures for monitoring the implementation of (a) through (d) of this subsection.

(2) The permittee shall submit, by the last day in February, an annual fish escape report to the department, covering the previous calendar year. The report shall summarize, by month and pen site, the number, age class, disease and medication history, and cause of all fish escapes to waters of the state. The permittee shall summarize the actions taken over the previous year to prevent the escape of fish to state waters.

(3) For the purpose of meeting the requirements of this section, plans and manuals required by the department of ecology through the National Pollutant Discharge Elimination System (NPDES) permit process may be submitted for approval.

(4) Marine fin fish aquaculture farmers are required to implement the provisions of their approved fish escape prevention plan. Failure to implement the provisions of an approved escape prevention plan may result in invalidation of the marine fin fish aquaculture permit. A notice of failure to comply with the fish escape prevention plan requirements will be given prior to invalidation of the permit, and the aquaculture farmer will have not less than seven nor more than ninety days to correct the conditions or status that caused the notice to be given. If the marine fin fish aquaculture permit is invalidated, any transportation of fin fish shall be treated as a violation of RCW 77.15.290.

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NEW SECTION
WAC 220-76-120   Marine fin fish aquaculture -- Escape reporting and recapture plan required.   (1) It is the responsibility of aquatic farmers to report an escape of marine fin fish and to attempt to recapture escaped fish. Escaped marine fin fish will be treated by the department the same as feral fish, and the department may augment capture and removal of such fish by scheduling recreational or commercial fisheries.

(2) An escape reporting and recapture plan is required with each application for a marine fin fish aquaculture permit and approval by the department of the fish escape reporting and recapture plan is required before issuance of a marine fin fish aquaculture permit.

(3) The escape reporting and recapture plan must include:

(a) Reporting procedure. Procedures for determining what constitutes a reportable fish escape. An emergency contact list in the event of a reportable fish escape from the permittee's net-pens, including local government, the department and the Washington department of ecology.

(b) Procedures requiring the permittee to report any reportable fish escape, within twenty-four hours of the permittee having knowledge of that escape, to local government, the department, and ecology. The report shall include the location, number, age class, disease and medication history, and cause of escape.

(c) Procedures to recapture escaped fish. Each marine aquatic farming location shall have a procedure for attempting recapture of escaped fish. The plan may include the use of facilities' skiffs, seines or nets and/or tribal and commercial fishers acting under contract with the aquaculture facility. For all reportable escapes, the permittee shall also submit a follow-up report describing all fish recovery efforts initiated in response to the escape, and effectiveness of the recovery efforts.

(d) Emergency procedures that will be taken to minimize the number of escaped fish.

(e) In the event the escaped fish were being treated with antibiotics or other drugs subject to USFDA withdrawal requirements and the withdrawal periods had not expired at the time of the escape, the permittee shall also include this information in the report required by (b) of this subsection, and shall provide a copy of the report to the Washington state department of health.

(4) For the purpose of meeting the requirements of this section, plans and manuals required by the department of ecology through the National Pollutant Discharge Elimination System (NPDES) permit process may be submitted for approval.

(5) Marine fin fish aquaculture farmers are required to implement the provisions of their approved fish escape reporting and recapture plan. Failure to implement the provisions of an approved escape reporting and recapture plan may result in invalidation of the marine fin fish aquaculture permit. A notice of failure to comply with the fish escape recapture and reporting requirements will be given prior to invalidation of the permit, and the aquaculture farmer will have not less than seven nor more than ninety days to correct the conditions or status that caused the notice to be given. If the marine fin fish aquaculture permit is invalidated, any transportation of fin fish shall be treated as a violation of RCW 77.15.290.

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NEW SECTION
WAC 220-76-130   Marine fin fish aquaculture -- Aquaculture facility inspection authority.   Authorized department employees shall, at reasonable times and in a reasonable manner, have access to marine aquatic farming locations to conduct inspections to determine conformity with the law and the rules of the department relating to preventing escaped fin fish and/or the recapture of escaped fin fish.

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NEW SECTION
WAC 220-76-140   Marine fin fish aquaculture -- Atlantic salmon watch program established.   Contingent on funding, the director shall develop and implement an Atlantic salmon watch program which will include the following elements:

(1) Establish an Atlantic salmon watch coordinator position whose responsibilities include providing a focal point for consolidation of scientific information and implementation of subsections (2) through (5) of this section.

(2) Develop and maintain a system to record and report observations and catch of Atlantic salmon in waters of the state, including modification of the recreational catch data reporting system, the commercial fish ticket reporting system, education of volunteers to identify and report spawning sites, and monitoring of selected watersheds to detect spawning Atlantic salmon.

(3) Model the impact of Atlantic salmon on naturally produced and cultured fin fish stocks by estimates of identification of Atlantic salmon standing crop or populations in the wild, detailed life history requirements, and estimates of niche overlap.

(4) Coordination with marine fin fish aquatic farmers under WAC 220-76-110 for the reporting of escapes of Atlantic salmon from marine aquatic farming locations, and adjustment of escape prevention plans filed with the department under WAC 220-76-100 to prevent future escapes.

(5) Provide public information on recreational opportunity in the event of an escape, assist the public in understanding the effect of Atlantic salmon escapes on native populations, and provide a public contact for all department efforts regarding Atlantic salmon.

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NEW SECTION
WAC 220-76-150   Marine fin fish aquaculture -- Educational program for marine fin fish aquatic farmers.   Contingent on funding, the director shall develop and implement an educational program with marine aquatic farmers which will include the following elements:

(1) WDFW will notify aquatic farmers of upcoming WDFW hatchery workshops, meetings or tours with regard to hatchery disease control procedures and prevention, feeding and waste control at hatcheries and programs investigating raising marine fin fish species.

(2) Annual "workshop" co-hosted by the industry, WDFW and other interested parties reviewing new containment technologies, or other environmental developments affecting the aquaculture industry.

(3) Information sharing by WDFW from any regional or international symposiums attended by WDFW staff covering aspects of marine fin fish aquaculture.

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Washington State Code Reviser's Office