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NMFS' Draft Hatchery Policy Focuses on Wild Fish Protection by Barry Espenson Columbia Basin Bulletin - July 26, 2002

The National Marine Fisheries Service on Wednesday released a preliminary draft hatchery policy that reaffirms the agency's emphasis on building self-sustaining salmon and steelhead populations in their natural ecosystem with careful consideration of the risks and benefits that hatchery fish might bring to the recovery process.

The working draft shipped off to NMFS' federal, state and tribal fish co-managers this week is a completed first step in development of a new policy to guide NMFS' consideration of hatchery fish in making determinations on Endangered Species Act listings.

Co-managers say they want to study the document carefully before commenting on the its merits. NMFS has asked them to provide technical and policy comments by Aug. 16. The document would then be reworked and released for an official public comment period.

Two legal adversaries involved in the lawsuit that triggered the policy review again offered contrary views. Those that believe the hatchery fish are, essentially, the equals of wild, naturally produced fish say that the policy put forth in the draft will only stimulate more litigation. Those that want recovery focused on wild fish alone say the draft is a step in the right direction.

The reworking of NMFS' artificial production policy, and a reconsideration of 24 of 26 West Coast salmon and steelhead listing decisions, was forced with last year's U.S. District Court decision in Alsea Valley Alliance v. Evans. Judge Michael Hogan found that NMFS' 1998 listing of Oregon Coast coho made improper distinctions beyond the level of an "evolutionarily significant unit" by excluding hatchery populations from listing protection even though they were determined to be part of the same ESU as listed naturally spawning populations. As a result the coho were dropped from the ESA list.

A U.S. Court of Appeals for the Ninth Circuit subsequently granted an emergency motion filed by conservation groups to stay the judgment while the listing decision was reconsidered, effectively restoring ESA protections.

"This new policy is intended to ensure, in accordance with the Court's ruling, that hatchery populations are considered in determining whether or not to list an ESU under the ESA," NMFS regional administrator D. Robert Lohn said in a cover letter to co-managers. "The policy will more clearly articulate how the agency will consider artificial propagation in conducting ESA status reviews and listing determinations for Pacific salmon and steelhead."

Lohn's letter to co-managers stressed four points in the "working draft:"

• The natural and hatchery populations that comprise an ESU would be determined prior to the status assessment for the ESU. In past status reviews NOAA Fisheries first identified the natural populations comprising an ESU, then determined the status of these populations, and subsequently considered which hatchery populations were also part of the ESU.
• Assessments of extinction risk, or the risk of endangerment, would be based on the likelihood that an ESU as a whole is sustaining itself through natural reproduction in its natural ecosystem over the long term.
• Both the positive and negative effects of artificial propagation will be considered in the ESA status reviews and listing determinations. This consideration will be given in the context of whether artificial propagation represents a protective effort that provides a genetic reserve for the ESU, contributes to long-term self-sustainability of the ESU in the natural ecosystem, or reduces threats to the ESU through the reform of harmful hatchery practices.
• If an ESU as a whole warrants listing, all populations in an ESU will be listed whether they are of natural or hatchery origin, as prescribes by the Alsea decision.

"Consistent with the ESU policy, to be considered part of the ESU a hatchery population must be representative of the evolutionary lineage of the ESU, and it must not have diverged appreciably from the parent population in measurable biological characteristics," the draft policy says. Appreciable divergence, or uncertain lineage, would preclude a hatchery stock from inclusion in the ESU.

The draft policy say that a tack with the potential to give both natural and hatchery-produced populations ESA-listed status presents challenges.

"While this proposed policy requires NMFS to list all populations within a threatened or endangered ESU, the ESA does not require NMFS to implement protective regulations equally among populations within an ESU," according to the working draft. The ESA requires that protections be "applied appropriately for all listed populations. This does not mean, however, that these protections will apply to hatchery populations exactly as they will to natural populations."

"The presumption should not be that there are equal protection" across the board, said Garth Griffin, a NMFS supervisory fishery biologist. He said that the ESA gives NMFS descretion about what level of protection to provide various components of a listed stock. The agency would likely have to make those decisions on a case-by-case basis, he said.

The Sept. 12 ruling prompted a flood of actions. In September and October the agency received six petitions asking that 15 of the 26 listed Pacific salmon and steelhead ESUs be delisted. All of the delisting petitions cited the Hogan decision. A petition filed in April of this year asked that only the "wild, naturally producing" fish among 15 West Coast salmon and steelhead stocks should be listed. (See Story No. 4 below)

NMFS announced in November 2001 that it would begin work to revise its hatchery policy and launch status reviews of all ESUs that include hatchery elements.

In early February the NMFS announced, in response to the delisting petitions, that "review may be warranted for 14 of the 15 petitioned ESUs." That established a deadline -- the ESA says the agency is to produce a "finding" as to whether the stocks should be listed or not within a year from the date the petitions were received. NMFS also announced in February that it would conduct reviews for an additional 11 ESUs containing hatchery fish. In all, 24 of the 26 listed salmon and steelhead ESUs, as well as the Lower Columbia River/southwestern Washington coho ESU, are now under review.

The listing decisions will be made consistent with the new artificial propagation policy, according to NMFS.

Pacific Legal Foundation attorney Russell C. Brooks this week panned NMFS' first hatchery policy draft. Brooks, who represented the Alsea Valley Alliance in the coastal coho case, said that NMFS was "given the opportunity to correct an ESA violation and the service is letting it slip back."

"I don't think anything has changed," said Brooks, who insists relatively abundant hatchery stocks are the genetic equals of the wild fish and should be considered when NMFS is making a final listing determination.

"They are evaluating oranges and listing apples," Brooks said. He said that the document must be changed drastically before a final policy is adopted, or the federal government could expect more litigation.

Earthjustice attorney Patti Goldman said she agreed with the draft policy's statement that listing's should be judged on a wild stocks' ability to sustain themselves in their natural ecosystems. A main difference in the draft from current policy is that more hatchery stocks would be listed, but they would not necessarily receive the same level of ESA protections as the naturally produced stocks. Earthjustice represented intervenors in the Alsea case that pressed and won the stay of the Hogan decision.

Columbia River Inter-Tribal Fish Commission senior policy analyst Doug Dompier said his agency and its member tribes would most certainly offer their thoughts on the NMFS draft. CRITFC's lower Columbia River treaty tribes have long sought more "flexibility" in NMFS policy on the use of artificial propagation -- and supplementation, in particular, in attempts to boost populations.

"It's good to see that it is on the street and will get the review we feel is necessary," Dompier said. The tribes feel that "hatcheries should be used to assist the natural runs."

The information posted on NMFS regional web site stresses that the "working draft," and eventual final policy will address artificial propagation "only in the context of ESA status reviews and listing determinations for Pacific salmon and steelhead. NOAA Fisheries will separately issue guidelines for the design and implementation of artificial propagation programs for the purpose of supporting tribal treaty fisheries, recreational and commercial fisheries, species reintroduction and restoration efforts, and species conservation efforts."

NMFS is asking co-managers to review the draft document and lend their technical and policy expertise on fish and wildlife management issues.

The draft policy is being distributed to co-managers only. The NMFS will consider only their comments during this early policy-building process. Following co-manager review and revision of this working draft, the policy will be formally proposed and go though a crucial public review process, including further opportunity for tribal, state, and federal co-manager input.

NMFS spokesman Brian Gorman said the schedule for that public comment process has not been set.

The mailing list included more than 50 tribal entities, the states of Alaska, California, Idaho, Montana, Oregon and Washington and the U.S. Department of Justice and Fish and Wildlife Service. The co-managers were asked to provide comments by Aug. 16.

Related Links:
The draft policy is posted at www.nwr.noaa.gov
A Move to Protect Wild Salmon Disappoints Property-Rights Advocates, by Robert McClure, Seattle Post-Intelligencer
Plan Protects Salmon as Long as Wild Stocks Struggle, by Jonathan Brinckman, The Oregonian
New Policy may Complicate Seasons by Eric Barker, Lewiston Tribune