WSR 09-01-191

EMERGENCY RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Order 08-310 -- Filed December 24, 2008, 10:08 a.m. , effective January 1, 2009 ]


     Effective Date of Rule: January 1, 2009.

     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. 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 220-33-04000D; and amending WAC 220-33-040.

     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; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: The smelt fishery regulations are consistent with Level 1 fisheries in the "Washington and Oregon Eulachon Management Plan for the Columbia River." Abundance and productivity indicators project a weak return of smelt for 2009. Rule is consistent with Columbia River compact action of December 18, 2008. 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 Endangered Species Act. 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 Endangered Species Act, 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: December 24, 2008.

Phil Anderson

Director


NEW SECTION
WAC 220-33-04000D   Smelt -- Areas and seasons.   Notwithstanding the provisions of WAC 220-33-040, effective January 1, 2009, through March 31, 2009, the Columbia River and Washington tributaries are closed to fishing for smelt except under the following provisions:

     1) Area: Columbia River - SMCRA 1A, 1B, 1C, 1D, and 1E

     Dates: Mondays and Thursdays, 7:00 a.m. to 2:00 p.m.

     Gear: Gillnets, dipnets and trawl nets.

     Allowable sales: Smelt.

     Other: 24-hour quick-reporting required for Washington wholesale dealers, WAC 220-69-240.

     Notwithstanding the provisions of WAC 220-20-010, during open salmon and/or sturgeon seasons fishers may have stored onboard their boats, while fishing, smelt gill nets; and while smelt fishing, fishers may have stored onboard their boats, gill nets of a size that meets the commercial salmon/sturgeon mesh size, weight, and length restrictions for the open salmon/sturgeon season.

     2) Area: Cowlitz River downstream of Peterson's Eddy

     Dates: Sundays and Wednesdays, 6:00 p.m. to midnight

     Gear: Dipnets.

     Allowable sales: Smelt.

     Other: 24-hour quick-reporting required for Washington wholesale dealers, WAC 220-69-240.

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REPEALER


     The following section of the Washington Administrative Code is repealed effective April 1, 2009:


WAC 220-33-04000D Smelt -- Areas and seasons.

© Washington State Code Reviser's Office