This a rather long paper that myself and other long time fishing advocates came together to produce. It is about WDF&W use of rules and the habit that the agency has of avoiding public involvement. I think it will take multiple post. The pictures in the document I will not post and hopefully I get this readable with the formatting. If anyone wants a copy of the document just shoot a PM at me.


Using Grays Harbor and the Chehalis River as an example-


HOW THE PROCESS USED BY WDFW TO SET ANGLER SEASONS AND MANAGE FISHERIES FAILS THE PUBLIC AND THE RESOURCE

Introduction: This project is a joint effort by a group consisting of retired or former government fish managers or biologists and others with decades of experience in volunteer fisheries enhancement projects. The purpose of this paper is to review how rules that guide the fresh water angling public are utilized to govern and promote the public's access to freshwater game fish and salmon. Additionally, to showcase how past and present management decisions of the Washington Department of Fish & Wildlife ( WDF&W) can drastically influence or effect current angler opportunity set forth in annual season setting rules adopted by the Department. The subject is a complex issue governed by state law that is applicable to all regions of the state of Washington. While anticipating that the public will recognize similar conditions exist in their areas throughout the state, we have chosen to address the subject by utilizing examples within the Chehalis River Basin. The 2019 closure of the Chehalis River to all fishing was the catalyst for this paper, which is intended to simplify the process in an effort to assist the average citizen in understanding the impacts that decisions made by WDFW, has on recreational fishing opportunities throughout the state.

Permanent rule process: After laws are passed by the state Legislature and signed by the Governor, they are compiled in the Revised Code of Washington (RCWs) and commonly referred to as “statutes”. The statutes often provide authority to a Department to adopt “Rules” to carry out the intent of those laws. Adopted rules carry the weight of law and are filed as Washington Administrative Code and commonly referred to as “WACs”.

WACs (fishing seasons) are adopted by WDFW under the Washington’s Administrative Procedure Act (APA). The APA sets out exactly what steps an agency has to follow to adopt rules. Different processes are provided for different kinds of rules. The same basic process is used to adopt, amend, or repeal a rule. It has three formal steps requiring public notice and opportunity to comment: 1) Notice of intent to change, adopt, or repeal a rule (CR101), 2) the proposed new or revised rule language (CR102) followed by a public hearing providing stakeholders an opportunity to comment, and 3) if adopted, the language of the rule is filed with the Code Reviser (CR103). The CR103 must be accompanied by a “Concise Explanatory Statement” (CES) that shows the rationale of the Department and the public comments it received during the process.

Emergency Rule Exception: The exception is what is known as the “emergency rulemaking process,” commonly known as simply an Emergency Rule. Emergency rules are used significantly by WDFW to close or open fisheries each year. Use of an emergency rule is limited by the APA and can only be used “If an agency for good cause finds:
(a) 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;
(b) That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule;

Emergency rules do not require public notice or hearing. They usually take effect when filed with the Code Reviser. Emergency rules can remain in effect for up to 120 days after filing. An agency can re-file the emergency rule if the agency has started the permanent rulemaking process.

While the APA sets a rather high standard for using the emergency rule option, WDF&W staff uses the process nearly daily during fishing seasons even if the “emergency” is created by WDF&W staff, either by failing or by intention, to be prepared to perform within the timelines of the normal rule process required. Issues long ignored and not addressed can be expected to create the same “emergency” year after year.

The most important thing for a citizen to recognize is that the Emergency Rule allows an agency staffer within WDF&W to create law (season rule) that can result in fines, forfeiture of personal property or even imprisonment without any public input, participation, or oversight.

Salmon and Game Fish, Two different processes: WDF&W uses two very different processes for season setting for game fish and salmon. For game fish every two years the rules are opened for review and change with the off year being one of small or incidental adjustment. An honest assessment of this process is that average citizen cannot and will not have much of an effect on any particular rule. It requires someone representing an organization of substantial influence or has contacts within the agency structure to support and help with the effort.

For salmon, WDF&W utilizes a totally different approach. Each year state, federal and tribal fishery managers gather to plan the Northwest's recreational and commercial salmon fisheries. This pre-season planning process is generally known as the "North of Falcon" (NOF) process, which involves a series of public meetings involving recreational and commercial interests appointed to “adviser committees” and the public at large around the state. Numerous private meetings are held behind closed doors wherein WDFW, tribal co-managers, and other federal agencies meet out of the sight of the public. As you will see shortly, it is important to note that NOF is not the process wherein seasons are set in a WAC. It is the APA process that sets the actually season and most of that activity is not known to the public who are constantly directed by WDFW to NOF proceeding when inquiring about input into seasons.

The North of Falcon planning process coincides with the March and April meetings of the Pacific Fishery Management Council (PMFC), the federal authority responsible for setting ocean salmon seasons from 2.5 out to 200 miles off the Pacific coast. In addition to the two PFMC meetings, the states of Washington and Oregon and the Treaty Tribes sponsor additional meetings to discuss alternative fishing seasons that meet conservation and allocation objectives. Fishery managers generally refer to the entire set of pre-season meetings as North of Falcon (NOF). The name refers to Cape Falcon in northern Oregon, which marks the southern border of active management for Washington salmon stocks.

In this time frame WDF&W utilizes the same NOF process to set the terminal bay and river salmon season. Open to the public and utilizing Advisers selected by the Director, meetings are held by regional staff around the state for a preseason forecast presentation and preliminary discussions about possible seasons that year. In accordance to the APA process outlined previously, following the preliminary discussions, the public is supposed to have input into development of the seasons that are to be set forth in the CR 102 that will be scheduled for public hearings. Many argue such is not the case as the seasons have already been announced at the PMFC meeting, posted on the Federal Register, and inserted into the season pamphlet and sent over to the printer prior to the filing of the CR102. Since the season shown in the CR102 has already been adopted and published, few bother to provide comments or attend hearings on the CR102. The Concise Explanatory Statements filed with the adoption of the season WAC often state the Department received receive little, if any, input from the public leaving the impression the public didn’t really care about fishing seasons. As an example, the CES in 2018 stated: “No verbal and/or written comments were submitted during this comment period or at any of the public hearings.”

This year WDF&W changed the CR 102 hearing format to include both game fish and salmon seasons in one CR 102 with hearings at different locations in the state. The effect of this action is confusion on the public’s part as commenting on the entire state game fish and salmon rules effectively dilute a citizen’s ability to address a local issue in a meaningful way.

The Fishing Pamphlet Fiasco: While recognizing that WDF&W staff is not clairvoyant and management is a tough job, the Departments reliance on last minute changes to the season using Emergency Rules confuses the public and discourages fishing. In many cases, adoption of an Emergency Rule is appropriate but just as often the Emergency Rule is simply used as a tool to avoid interaction and accountability with the public. To compound the problem, WDF&W sends out press releases and posts on its website Emergency Rules which change day to day. The following steps are required for a game or salmon fisher each day before taking out a rod to find out what the rules are for particular stream as the pamphlet may or may not reflect the current rules in place. If you do not have a smart phone or computer you must call the WDF&W hotline. Using a smart phone or computer you must do the following.


• You must go to WDF&W's website here: https://wdfw.wa.gov/
• You must then choose fishing and shell fishing: https://wdfw.wa.gov/fishing
• You must then choose Emergency Rule Changes https://wdfw.wa.gov/fishing/regulations
• You must then choose Fresh water rules: https://fortress.wa.gov/dfw/erules/efishrules/
• You must choose river or stream: https://fortress.wa.gov/dfw/erules/efishrules/freshwater_select.h
• You must choose: https://fortress.wa.gov/dfw/erules/efishrules/rules_freshwater_river.j?body_of_water_id=1100

The unnecessary use of Emergency Rules as a means to avoid public input is a violation of trust between WDF&W and citizens and contrary to the intent of the APA. This use also removes from scrutiny issues that require long term well vetted out solutions. WDF&W’s reliance on Emergency Rules and its refusal to allow outside ideas into the process has denied the Department and the public meaningful resolutions.

Example 1: This year, WDF&W utilized two Emergency Rules to close the Chehalis River , which is the second largest watershed in the state to all recreational fisheries for conservation of Spring Chinook. Protection of the low number of returning Chehalis Spring Chinook was appropriate but the reliance upon Emergency Rules is short sighted in that it does not address the issue over the long term. A better approach in our view is to develop options that can be used that are easily understood and accepted to protect the Springers without shutting down recreational fishing for other species throughout the basin.

Additionally such options should take into account that similar circumstances exist for other salmon stocks in the Chehalis as with Fall Chinook. Broodstocking efforts in the 1990's found that when capturing Chehalis Fall Chinook that the male's survival was above expectations but female Chinook at times was near zero. The cause in the end was determined to be the females physical condition was poor due to the needs required for egg development and warm water temperatures. The risk factor was drastically reduced with the cooler water temperatures in October allowing efforts to resume within the Fall Chinook staging areas. In reviewing how to structure rules that both protect the fish and angling public we utilized the Skagit rule as template to accomplish both. These gear restrictions both protect the fish and allow common sense angling effort.


May 1 to August 1 the Chehalis River from 101 Bridge located at Aberdeen upstream to South Elma Bridge. May 1 to October 15 South Elma Bridge upstream.

"Selective gear rules, except anglers fishing for sturgeon must use bait. Anglers may not use hooks that measure larger than 1/2" from point to shank except anglers fishing for sturgeon may use single -point hooks of any size."

As an example of things not considered for the Chehalis Closure, back of the envelope calculations would indicate that game fish seasons as we have discussed here would have minimal impacts on Chinook. With the “new and improved WDFW web site” we cannot find any of the old sport catch reports so for this example I'm going to assume that the recreational target spring Chinook fishery was able to catch 10% of the in-river run. With a salmon season closure and the banning of bait with the small hook size it would not be unreasonable to assume at least a 75% reducing in Chinook encounters. Thus reducing encounters to 2.5% of the run.

Generally the co-managers assume a 10% release mortality lowering the impacts to 0.25%. However, utilizing a bait ban and barbless, we should expect a further decrease in the release mortality. As an example, in the recent 2017 co-manager Puget Sound Chinook Plan the table of non-landed mortalities show that in the Buoy 10 fishery requiring the use of barbless hooks lowered the release mortality from 10% to 8%). I think one could expect that the combined requirement of no bait and barbless hooks would reduce the release mortality by at least 50% (maybe as much as 90% that is found in trout fisheries). Reducing that 0.25% impacts to 0.125%.


It has been noted that once the Chinook have been in freshwater and their scales have set they become much more durable. A couple examples are Skagit summer Chinook captured up river for brood stock with drift gill nets, transferred to the hatchery and held through spawning over a 10 year period showed an annual mortality of only 2%. The Stillaguamish Tribe collects Chinook brood stock using seines in river and in even the elevated temperatures typically have a capture to spawning mortality of 10% - in both cases well below mortality rates expected in marine or estuary fisheries. Further in a upper river bright Chinook brood stock capture program using sport gear (above tri-cities) had a capture to spawning mortality of 2.5% agree well with the 2% mortality in Canadian brood stock captures on the upper Fraser river using sport gear. Again it might not be unreasonable once the Chinook have become "water hardened" based on this information to see an additional reduction in handling mortality by 2/3 reducing our impacts to 0.084%.


Often rules have good intentions addressing a state wide issue but are simply ill conceived for some streams. This seems the case for the substantial use of Emergency Rules by WDF&W which avoid public input. An excellent example is the recent Chehalis River closure and the closure several years ago when after a full marine season, tribal netting, and commercial non tribal netting WDFW closed the Chehalis River and tribs except small reaches for conservation. Not only is this completely unfair to the terminal angler, the reality is in the Chehalis Basin it is not unusual for the runs to be outside what the harvest model timing predicts. Also, it normally rains the first week in November resulting in what is known as a brown out with drastically increased flows and huge portion of the runs moving in mass. During this time debris and conditions do not lend themselves to commercial or recreational fisheries and the Chehalis Basin makes escapement. Emergency Rules should only be used as a last resort and never as a means evade public input and not to mirror reactions to problems in other streams in the state that are not present in the Chehalis.

Example 2: To further explore the use of rules and how this influences agency and citizen behavior, the Wynoochee River serves as an excellent example. Currently WDF&W has two hatchery game fish programs on the Wynoochee River which are a sport angler Summerrun Steelhead and Wynoochee Dam Winter Steelhead mitigation production. Broodstock are taken at the dam trap and from the Aberdeen Lake Hatchery which is serviced by a pipeline from the Wynoochee River, prodigy reared. Smolt are trucked from the hatchery and planted at various locations from river mile 8 to 50 which is the trap downstream from the dam. The upper reaches of the river above White Bridge mile 16 has very limited public access and is mostly accessed by drift boat fishers. Below mile 16 and particularly below mile 11 and 8 has the greatest public access.

The Summerrun Steelhead program has the best cost benefit ratio of any hatchery program in the Chehalis Basin but it is not without issues. Anglers under the ruse of fishing for Summerrun targeted Fall Chinook for catch and release resulting in the following regulations in the upper reaches of the river.

7400 Line Bridge (337) ALL SPECIES Aug. 16-Sept. 15 Single-point barbless hooks required.
Sept. 16-Nov. 30 Bait prohibited. Single-point barbless hooks required.

TROUT Sat. before Memorial Day- Mar. 31 Statewide min. size/daily limit, except cutthroat trout and wild rainbow trout: min. size 14".
OTHER GAME FISH Sat. before Memorial Day-Mar. 31 Statewide min. size/daily limit.


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