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Lyons Ferry Hatchery Offset for Reduced Spill Off the Table by Mike O'Bryant Columbia Basin Bulletin - June 18, 2004

The Nez Perce Tribe, saying that keeping subyearling chinook one extra year in the Lyons Ferry hatchery is unlawful, filed a lawsuit Monday (June 14) asking the U.S. District Court in Portland to order the Washington Department of Fish and Wildlife to release the fish this year.

The tribe asked Judge Garr King for an expedited hearing because the current river and water conditions are optimal for releasing the fish as subyearlings.

The lawsuit has since been replaced by an agreement with WDFW.

WDFW Director Jeff Koenings said in a letter to the tribe Monday that his agency had not intended to break any agreements and that the subyearling hatchery fall chinook would be released this month.

One of the mitigation measures proposed by the Bonneville Power Administration and the U.S. Army Corps of Engineers in their amended summer spill proposal to offset unlisted salmon losses is to hold over for one year 200,000 hatchery subyearling chinook and release them as yearling chinook in 2005. Releases of larger sized fish improve the smolt to adult return rate and WDFW estimates that could bring 1,600 more adults back to Lower Granite Dam.

However, the Nez Perce complaint and the fact that WDFW did not approve the offset, has effectively taken the Lyons Ferry Hatchery offset off the table in the amended summer spill proposal, according to both BPA's Mike Hansen and the Nez Perce Tribe.

"We reached an agreement whereby Washington will again feed and release the fish," said tribal attorney Dave Cummings. "It's clear that Bonneville cannot rely on this particular offset" in its summer spill offset program.

The Nez Perce had said holding the hatchery subyearlings over one year violates a U.S. v Oregon management agreement that calls for 450,000 Lyons Ferry Hatchery fall chinook to be released as yearling chinook in 2005 and 200,000 to be released as subyearlings this year.

Anthony Johnson, chairman of the Nez Perce Tribe, said the state of Washington is bound by the U.S. v Oregon agreement and that the state should have consulted with the tribe before agreeing with BPA to hold 200,000 fish until they are yearlings. Subyearlings normally migrate in late May and early June, the Nez Perce said.

"BPA is adding insult to injury; it wants to take the water away that these subyearlings need to assist them in their journey to the sea, and pretend they are compensating for that by releasing the fish at a different time of the year and at a different life stage," Johnson said.

NOAA Fisheries agreed with BPA that holding the additional 200,000 subyearlings at the hatchery could serve as an offset, according to the "Amended Proposal for FCRPS Summer Juvenile Bypass Operations," released by BPA and the Corps June 8. But NOAA also said that the release of 200,000 subyearlings must be restored next year with brood year 2004 fish in order to address tribal concerns about deviating from the natural life history of fall chinook.

Although the Lyons Ferry Hatchery offset has been removed from the summer spill proposal, the other offsets still more than compensate for losses to non-listed fish resulting from reduced spill, Hansen said.

"We're fully mitigating for the summer spill operations even without the Lyons Ferry Hatchery release," Hansen said. "We're now looking at whether other actions could be taken at the hatchery or for other hatcheries or habitat improvements to make up for the loss at Lyons Ferry." Holding over the 200,000 subyearlings would have cost BPA about $140,000, Hansen said. That money will be used for these other actions.

Koenings said in a letter to Johnson and Allen P. Slick, chairman of the tribe's Natural Resources Subcommittee, that the intent of releasing all 650,000 fall chinook in 2005 as yearlings was to increase their survival, not to break an agreement. He said holding all the fish would have increased the supply of subyearlings in the long run.

"I believe this would have fulfilled the intent of the obligation under U.S. v. Oregon," Koenings said. "Thus, in proposing to keep the 200,000 fish in the Lyons Ferry Hatchery until they reach the yearling stage, WDFW did not intend to take action contrary to any U.S. v. Oregon agreement."

With Washington Gov. Gary Locke supporting BPA's amended summer spill proposal, Koenings said that WDFW was obligated to explore mitigation measures that would meet the "no net impact" standard of the proposal, but that it had not made the decision about holding over 200,000 fall chinook subyearlings at the hatchery prior to the Nez Perce lawsuit. WDFW made the decision to release the fish this month late Monday afternoon after the Nez Perce filed its complaint.

"In view of the Nez Perce Tribe's concerns, and in our desire to maintain good relationships among the parties in U.S. v. Oregon, I have today directed my staff (1) immediately to begin feeding the 200,000 brood year 2003 fall chinook in the Lyons Ferry Hatchery to prepare them for release as subyearlings, and (2) to release them in June 2004," Koenings said in the letter.