12-20-031

WSR 12-20-031

EMERGENCY RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Order 12-222 -- Filed September 27, 2012, 1:11 p.m. , effective September 27, 2012, 7:00 p.m. ]

     Effective Date of Rule: September 27, 2012, 7:00 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 220-33-01000R; and amending WAC 220-33-010.

     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: Sets three mainstem fishing periods for the late fall season. The first season is ten hours with the large "B" sanctuaries in effect. The remaining two periods are twelve hours each with the standard "A" sanctuaries in effect. Sturgeon sales from mainstem fisheries are discontinued effective October 2, 2012. The "multi-net rule" (WAC 220-33-001) is no longer in effect for mainstem fisheries. Select area sites remain open as scheduled. The seasons are consistent with the 2008-2017 interim management agreement. Salmon are available for harvest during fall season fisheries. The regulation is consistent with compact action of July 26, and September 25, 2012. There is insufficient time to adopt permanent rules.

     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 1; Federal Rules or Standards: New 1, Amended 0, Repealed 1; 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 1.

     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: September 27, 2012.

Philip Anderson

Director

NEW SECTION
WAC 220-33-01000S   Columbia River season below Bonneville.   Notwithstanding the provisions of WAC 220-33-010 and WAC 220-33-020, it is unlawful for a person to take or possess salmon or sturgeon for commercial purposes from Columbia River Salmon Management and Catch Reporting Areas (SMCRA) 1A, 1B, 1C, 1D, and 1E, except as provided in the following subsections.

     1. Mainstem Columbia River

     a. SEASON: 7 PM September 27 to 5 AM September 28, 2012

     b. AREA: SMCRA 1A, 1B, 1C, 1D, 1E (Zones 1-5).

     c. GEAR: Drift gillnet only. 8-inch minimum mesh size.

     Nets fished any time between official sunset and official sunrise must have lighted buoys on both ends of the net. If the net is attached to the boat, then one lighted buoy on the end of the net opposite the boat is required.

     d. SANCTUARIES: Elokomin-B, Cowlitz River, Kalama-B, Lewis-B, Washougal River and Sandy River.

     e. ALLOWABLE POSSESSION: Salmon and white sturgeon. A maximum of five (5) white sturgeon may be possessed or sold by each participating vessel during each calendar week (Sunday through Saturday).

     2. Mainstem Columbia River

     a. SEASON: 7 PM September 30 to 7 AM October 1, 2012

     7 PM October 2 to 7 AM October 3, 2012

     b. AREA: SMCRA 1A, 1B, 1C, 1D, 1E (Zones 1-5).

     c. GEAR: Drift gillnet only. 8-inch minimum mesh size.

     Nets fished any time between official sunset and official sunrise must have lighted buoys on both ends of the net. If the net is attached to the boat, then one lighted buoy on the end of the net opposite the boat is required.

     d. SANCTUARIES: Elokomin-A, Cowlitz River, Kalama-A, Lewis-A, Washougal River and Sandy River.

     e. ALLOWABLE POSSESSION: Salmon. White sturgeon sales prohibited.

     3. Blind Slough/Knappa Slough Select Area.

     a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights immediately through October 26, 2012. Open hours are 6 PM to 8 AM.

     b. AREA: Blind Slough and Knappa Slough. An area closure of an approximately 100-foot radius at the mouth of Big Creek is in effect. Concurrent jurisdiction waters include all areas in Knappa Slough and downstream of the Railroad Bridge in Blind Slough.

     c. GEAR: Gillnet. Monofilament gear is allowed. 9 3/4-inch maximum mesh size. Maximum net length of 100 fathoms. No weight restriction on lead line. Use of additional weights or anchors attached directly to the lead line is allowed.

     Nets not specifically authorized for use in this fishery may be onboard the vessel if properly stored consistent with WAC 220-33-001.

     Nets fished any time between official sunset and official sunrise must have lighted buoys on both ends of the net. If the net is attached to the boat, then one lighted buoy on the end of the net opposite the boat is required.

     d. ALLOWABLE POSSESSION: Salmon.

     4. Tongue Point/South Channel Select Area.

     a. SEASON: Monday, Tuesday, Wednesday, and Thursday nights immediately through October 26, 2012. Open 4 PM to 10 AM.

     b. AREA: Tongue Point and South Channel. All waters in this fishing area are concurrent jurisdiction waters.

     c. GEAR: Gillnet. 6-inch maximum mesh.

     Tongue Point fishing area: Net length 250 fathoms maximum. Weight not to exceed two pounds on any one fathom. Fishers participating in the Tongue Point fishery may have onboard un-stored gillnets legal for the South Channel fishing area.

     South Channel area: Net length 100 fathoms maximum. No weight restriction on lead line. Use of additional weights or anchors attached directly to the lead line is allowed.

     Nets not specifically authorized for use in this fishery may be onboard the vessel if properly stored consistent with WAC 220-33-001. Except: Vessels participating in the Tongue Point fishery may have on-board the vessel an unauthorized net that is not stored only when the un-stored net configurations are consistent with those described above for the South Channel fishing area

     Nets fished any time between official sunset and official sunrise must have lighted buoys on both ends of the net. If the net is attached to the boat, then one lighted buoy on the end of the net opposite the boat is required.

     d. ALLOWABLE POSSESSION: Salmon.

     5. Deep River Select Area.

     a. SEASON: Monday, Tuesday, Wednesday and Thursday nights immediately through October 19, 2012. Open 4 PM to 9 AM.

     b. AREA: The Deep River Select Area. Concurrent jurisdiction waters extend downstream of the Highway 4 Bridge.

     c. GEAR: Gill net. Monofilament gear is allowed. 6-inch maximum mesh. Net length 100 fathoms maximum. No weight restriction on the lead line. Use of additional weights or anchors attached directly to the lead line is allowed. Nets may not be tied off to stationary structures. Nets may not fully cross the navigation channel. It is unlawful to operate in any river, stream or channel any gill net gear longer than three-fourths the width of the river, stream, or channel. "River, stream, or channel width" is defined as bank-to-bank, where the water meets the banks, regardless of the time of tide or the water level. This emergency provision shall supersede the permanent regulation and all other regulations that conflict with it. All other provisions of the permanent regulation remain in effect (WAC 220-20-015(1)).

     Nets not specifically authorized for use in this fishery may be onboard the vessel if properly stored consistent with WAC 220-33-001

     Nets fished any time between official sunset and official sunrise must have lighted buoys on both ends of the net. If the net is attached to the boat, then one lighted buoy on the end of the net opposite the boat is required.

     d. ALLOWABLE POSSESSION: Salmon

     6. Quick Reporting: 24-hour quick-reporting required for Washington wholesale dealers, pursuant to WAC 220-69-240. When quick-reporting is required, Columbia River reports must be submitted within 24 hours of the closure of each fishing period. This quick-reporting requirement applies to all seasons described above (Columbia River and Select Areas).

[]

     Reviser's note: The unnecessary underscoring 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 7:00 p.m. September 27, 2012:

WAC 220-33-01000R

Columbia River season below Bonneville. (12-214)