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NOAA Fisheries Seeks More Time in Salmonid ESA Listing Review by Barry Espenson Columbia Basin Bulletin - March 19, 2004

NOAA Fisheries last week asked a Spokane, Wash., federal court to push back by 90 days the deadline for completion of eight salmon and steelhead Endangered Species Act listing proposals, citing the "unexpected complexity" of the biology and policy related to the task.

The listing determination process has essentially been under way since early in 2002. A September 2001 U.S. District Court decision in the Alsea Valley Alliance vs. NOAA lawsuit prompted the filing with NOAA of numerous petitions asking that West Coast salmon and steelhead stocks be delisted. Most said that, given the so-called Hogan decision, hatchery stocks must be included along with co-habitating wild stocks when determining if a stock is in peril.

Petitions such as the two filed in October 2001 by the Building Industry Association of Washington, the Kitsap Alliance of Property Owners, the Columbia-Snake Irrigators Association and the Skagit County Cattlemen's Association said that if NOAA counted the hatchery fish, numerous stocks would have to be delisted.

Hogan declared the Oregon coast coho listing illegal because NOAA impermissibly excluded from the federal protections hatchery fish that it had earlier included in the coho stock's "evolutionarily significant unit."

NOAA opted in February of 2002 to undertake status reviews 26 listed ESUs and one candidate of salmon and steelhead, including 12 in the Columbia River Basin. It also decided to formulate a new policy for deciding what role hatchery fish would play in listing determinations.

Those processes bogged down, prompting the Building Industry Association of Washington, the Kitsap Alliance of Property Owners, the Columbia-Snake Irrigators Association and the Skagit County Cattlemen's Association to file a lawsuit in August 2003 in an attempt to force the action. NOAA issued its initial petition findings for the eight stocks in February 2002, setting off the one-year clock within which the ESA requires a final determination and listing proposal.

The petitions included eight stocks for review -- Snake River sockeye salmon, fall chinook salmon, spring/summer chinook salmon and steelhead, the Upper Columbia River spring-run chinook and steelhead, the Middle Columbia River steelhead, the Puget Sound chinook and Hood River Canal summer-run chum salmon.

The March 11 motion filed by U.S. Justice Department attorneys asked that the U.S. District amend a settlement agreement filed in that lawsuit in October 2003 that charges the federal agency with completing the eight status reviews by March 31.

The agency says that it is unable to complete the tasks and suggests that it has the "good cause" necessary to extend the deadline. The agreement is supported by a six-page declaration by D. Robert Lohn, NOAA's Northwest regional chief.

"There is great public interest throughout the Pacific Northwest and elsewhere in the outcome of NOAA Fisheries' ongoing review, given the visibility and importance of salmonids as central, emblematic natural resources in the region," Lohn wrote. "Many segments of the public hold very strong divergent views on the subject.

"NOAA has encountered unexpected difficulty and complexity in developing a new hatchery policy to be applied in making the new listing determinations," Lohn said. Among those complexities, according to the federal filings, is a recent request from the U.S. Fish and Wildlife Service that a national hatchery listing policy be developed jointly by the two the agencies that would be applicable across the country. NOAA is charged under the ESA with protecting ocean-going stocks, such as salmon and steelhead. The USFWS has responsibility for resident freshwater fish and wildlife.

Three of the "ESUs" targeted for delisting in the lawsuit, and 10 of the 27 stocks now being reviewed are "Oncorhynchus mykiss" -- called steelhead if they are anadromous and rainbow trout if they are freshwater resident life forms. The NOAA has, according to Lohn's declaration, previously determined that some of the steelhead ESUs include rainbow trout, so listing requires coordinated action with the USFWS.

Lohn said the agency has "fully expected that it would be possible to meet that (March 31) deadline. However, because of the unexpected complexity of the hatchery issues and related legal and administrative considerations, and the need to interagency coordination," NOAA had run out of time.

As a result, it filed the motion to modify the agreement and "asked the court for expedited consideration" of the issue, according to Ruth Ann Lowery, Justice Department attorney. The plaintiffs in the case have 11 days from the filings to respond.

The motion cites case law in arguing that federal rules allow a court the flexibility to modify such an agreement, such as when "significant change either in factual conditions or in law" and "when a decree proves to be unworkable because of unforeseen obstacles."

"As demonstrated by the Lohn declaration, a modification in the deadline is necessary to further the public interest in producing a thoroughly considered agency decision and avoid an inequitable result stemming from the complexity and unforeseen difficulties presented," according to the motion.

Timothy Harris, one of the attorneys representing the Building Industry Association of Washington, said Tuesday that plaintiffs in the case plan to file in opposition to the motion.

"The motion is full of excuses. None of that has changed since Oct. 2 when the petitions were filed," Harris said of the ESA's requirements and case law driving the status reviews.

"It is absolutely inexcusable," he said of the requested deadline extension.

And, Harris said, "all of these justifications (for an extension) are irrelevant."

"The interpretation of the data was in error according to Alsea," Harris said. That means if the wild and hatchery stocks were aggregated, the listings would be unnecessary.

In making its request to the court, NOAA said that a high-level joint task force has been appointed by the departments of Commerce and Interior with direction to formulate a preliminary joint hatchery listing policy by March 31.

"… NOAA Fishers will then complete its listing proposals by applying the new policy to the 27 listed ESUs, a process that could be completed within 60 days," Lohn wrote. "An additional 30 days is required for the preparation, review and clearance of the listing proposals prior to publication in the Federal Register."

Lohn said that there are many economies associated with making all 27 determinations at once rather than addressing just the eight listings in the lawsuit.

"The comprehensive approach would make clear to the public what NOAA Fisheries proposes to do about all of the listings that may affect them," Lohn wrote. "Furthermore, it would make the opportunity for public comment both comprehensive and more economical; interested parties could submit comments once, rather than serially.

"By the same token, it would make more efficient use of NOAA Fisheries' limited resources to protect endangered species, by avoiding unnecessary multiple rulemakings," Lohn wrote.

He said the senior management of both federal departments were "fully committed to completing a preliminary hatchery policy and issuing proposed listing determinations on all 27 ESUs within that period,…."