COMMENTS ON THE NATIONAL MARINE FISHERIES SERVICE PROPOSED 4(d) RULE
FOR SEVEN THREATENED SALMON ESUs
 
March 3, 2000
 
 
Submitted by
Washington Trout
PO Box 402
Duvall, WA 98019
 
 
Prepared by
Nick Gayeski, Resource Analyst
 
 
TABLE OF CONTENTS
1. OVERVIEW
 
2.0 SPECIFIC COMMENTS
2.1 Re: Supplementary Information: Background.
2.2 Re: Substantive Content of Proposed Regulation
2.2a Re: Fishery Management and Evaluation Plans
2.2b Re: Artificial Propagation Limit on the Take Prohibitions,
process for Developing hatchery and Genetic Management Plans,
and Criteria for Evaluating Hatchery and Genetic Management Plans
2.2c FMEPS, HGMPs, and The Public Process
2.2d Re: Habitat Restoration Limits on the Take Prohibitions
 
3.0 SUMMARY REMARKS
 
4.0 ATTACHMENT INDEX

1.0 OVERVIEW

 
Washington Trout is concerned by the overall tone and approach of the Proposed 4(d) Rule (proposed rule) for seven salmonid ESUs listed as Threatened under the ESA, submitted by the National Marine Fisheries Service (NMFS) for public review and comment in the Federal Register ( January 3, 2000, Volume 65, Number 1, Pages 169-196; Proposed Rules: 50 CFR Part 223; Department of Commerce, National Oceanic and Atmospheric Administration [Docket No. 991207323-9323-01; I.D. No 092199A]).

We believe that when a species or an ESU is listed under the ESA, it is implicit in the decision to list that the local and state agencies charged with the management of that species have failed. Given that failure, (acknowledged by NMFS in its listing decision and in the proposed rule) we believe it is neither necessary nor advisable for NMFS to place trust and responsibility with those same agencies for the formulation and implementation of recovery strategies.

The local and state agencies in question have shown again and again an inability or unwillingness to enforce their own existing environmental regulations (see attachments A, B, and C). It seems inappropriate and unrealistic to expect those agencies to now step forward and meaningfully implement new, more stringent conservation measures simply because the relevant ESUs have been listed as Threatened. If the resource’s jeopardy were enough to compel them into action, we might have expected to see that action well before now.

NMFS has a responsibility under ESA, where it is "necessary and advisable," to use the tools available to it under the Act to compel action by government and private entities that will foster and speed the recovery of the listed species or ESU. The most powerful tools that NMFS has under the Act are the Section 9(a)(1) take prohibitions (9a prohibitions, or, Section 9 prohibitions). It should be manifest that it is necessary and advisable to impose Section 9 prohibitions in this case. When NMFS contemplates allowing broad exemptions to 9a prohibitions based on conservation measures and plans submitted by state and local agencies, the standards and criteria for those plans should - at the very minimum - provide greater protections for the species than existed prior to listing. In many cases the criteria for recovery plans should be as stringent as standards for Section 10 incidental take permits under Section 9(a)(1). In too many instances, this proposed rule falls short of these standards.

When NMFS proposes a 4(d) rule for public evaluation, it should first be viewed under one over-arching context: What is the point? Is the goal of listing a species or ESU as Threatened under the ESA to foster and speed its recovery, or is it merely to prevent actions that will appreciably slow recovery? The vagueness, contradictory language and overall tone of this proposed rule make it appear that NMFS is opting for the second approach in clear violation of its statutory responsibility under the Act.

The proposed rule pays considerable deference to local and state agencies, and regional economic and social stakeholders. In its regulatory flexibility analysis, NMFS identifies its intention to provide "the benefits demanded by the ESA (protection of Threatened species) while minimizing uncertainty and costs for sectors of the economy wherever possible." NMFS acknowledges its "clear statutory responsibility to enact whatever protective regulations are necessary to provide for conservation of Threatened species." It states flatly, "[a]bdicating that responsibility is not an option." However, the tone and substance of the proposed rule make it appear that NMFS is attempting to balance on a knife-edge between some minimum standard of "whatever protective regulations are necessary," and "minimizing uncertainty and costs for sectors of the economy."

In a broad sense this approach may be politically justifiable, but it is inadequate from a recovery standpoint. First, knife-edges are difficult to balance on, especially when pressures from "sectors of the economy" can be expected to continue. The risk of falling off at the expense of the resource is unacceptably high. Second, knife-edges are even more difficult to identify, and in this case NMFS has missed its mark. The proposed rule does not "enact whatever protective regulations are necessary to provide for conservation of Threatened species." In the name of "minimizing uncertainty and costs," this proposed rule would result in compromised and delayed recovery of the Threatened ESUs, an abdication of NMFS’s "clear statutory responsibility."

The proposed rule would fail to secure adequate legal protection to the Threatened ESU's and to component populations (stocks) within these ESUs. NMFS fails to make a reasonable or compelling case that adequate protection can be provided for the ESUs and component stocks in question without invoking 9a prohibitions on a much broader scale than proposed. Failure by NMFS to invoke 9a prohibitions immediately upon publication of the final rule and for the foreseeable future - pending the drafting, public review, approval, and implementation of specific conservation plans that would be at least sufficient to warrant issuance of Section 10 permits to appropriate state, municipal, local, and private entities – will continue to place the listed ESUs at substantial risk of delayed recovery and/or continued decline.

In our view, the most appropriate course of action for NMFS to pursue at this time would be to impose Section 9a take prohibitions "globally," as outlined in alternative #1 of the initial regulatory flexibility analysis. The proposed rule fails to provide credible biological justification for pursuing the other outlined alternatives, including the identified preferred alternative.

Specific comments on the substantive content of the approach NMFS is attempting to justify and adopt in the proposed rule follow. Among the substantive issues, attention needs to be drawn at the outset to the fact that the proposed rule references several documents or formats that are either not available or do not exist in finished form. Three notable examples are the Viable Salmonid Populations document, the template for Fishery Management and Evaluation Plans, and the Hatchery and Genetic Management Plan template.

The Viable Salmonid Populations document, referenced in key parts of the proposed rule, is an unfinished, incomplete draft that has yet to undergo independent scientific peer review. This makes comment problematic at best. Elements of the proposed rule reference the draft VSP (December 13, 1999) without assurance that the final VSP will bear any resemblance to the parts of the draft that may be commented upon. There seems little prospect for public comment on the final VSP as it is or may be referenced in a final rule. It is possible that revisions to the VSP will change how and where it is referenced in the final 4(d) rule, without the benefit of public evaluation or comment.

Similarly, the Fishery Management and Evaluation Plans are merely described in the proposed rule, yet these plans will be fundamental components of the process limiting take prohibitions on listed species subject to fishery harvest impacts. General guidelines and criteria are enumerated, but no template is provided that would detail the kinds of considerations which states must address in developing acceptable plans, including how levels of risk will be determined and what standards for determining such risk must be used, what levels of risk are to be considered "acceptable," and what fishery managers must do to insure that actual fishing plans achieve no more than the allowable level of impact. Again, this limits the public’s opportunity to meaningfully evaluate and contribute to a final 4(d) rule.

In response to our request on February 5, we were told by NMFS personnel at the Protected Species Branch that the template was only in draft form, still in development, and had not undergone full internal review. A copy of the tentative draft was received for our review on February 11, but again, the public is only being allowed to analyze and comment upon the concept and rough outline of such plans. The situation regarding the HGMPs is essentially the same. It is impossible to evaluate the details of any plans when those details are unavailable, and it is only in the details that the value or weakness of these plans can be judged.

When NMFS expects the public to comment on an incomplete proposed rule and support documents, it appears that the agency itself may be unprepared for the process. This places an unfair burden on the interested public and its advocates, and further indicates the significant level of risk the listed ESUs are being subjected to by NMFS’s failure to propose global imposition of Section 9 prohibitions, further evidence that NMFS is abusing the discretion of not invoking Section 9 prohibitions, which the ESA grants to the Secretary in Section 4(d)

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2.0 SPECIFIC COMMENTS

2.1 Re: Supplementary Information: Background.

From the start, NMFS’s approach to 4(d) rulemaking is confusing and unconvincing. NMFS admits that Threatened chinook, coho, chum, and sockeye "are at risk of extinction primarily because their populations have been reduced by human ‘take,’" and further states that "[w]hile the most influential factors differ from ESU to ESU and among chinook, coho, sockeye, and chum, habitat and harvest impacts have been important for all." NMFS then concludes "[t]herefore, it is necessary and advisable in most circumstances to apply the Section 9 take prohibitions to these Threatened ESUs, in order to provide for their conservation." (Our emphasis.)

However, NMFS immediately proceeds to suggest, in effect, that such "circumstances" do not obtain within the boundaries of the seven ESUs regarding a broad range of activities which threaten harm to the listed ESUs. While the proposed rule never states this contrary conclusion outright, NMFS sets the stage by describing requests it has received from governmental and private entities within the boundaries of the seven ESUs that (under Section 9 take prohibitions) would be engaged in takings of the listed species, and whose past and continuing activities have contributed fundamentally to the Threatened status of the listed species. These entities have asked that NMFS apply "take prohibitions only where other governmental programs and efforts are inadequate to conserve Threatened salmonids." This approach invites NMFS to pursue a strategy very close to the course attempted in April of 1998 when NMFS approved the Oregon Coastal Salmon Conservation Initiative (OCSRI) in lieu of listing the Oregon Coastal Coho Salmon ESU as Threatened. This strategy was found to be scientifically inadequate and illegal by the US District Federal Court of Oregon (decision by Judge Janice Stewart, June 1, 1998: Oregon Natural Resources Council et al. v William M. Daley, secretary of Commerce; and Roland Schmitten, Director, National Marine Fisheries Service).

Imposing Section 9 prohibitions via Section 4(d) in the case of species listed as Threatened where governmental programs and efforts are inadequate to conserve Threatened salmonids is precisely the minimum action required by the ESA (Viz., Section 4(a)(D)). The listed ESUs at issue are threatened with risk of extinction in fundamental part because governmental programs and efforts continue to be inadequate to conserve the ESUs, including inadequate enforcement of regulations and codes applicable to private entities whose activities have harmed or may harm listed species. Indeed, the inadequacy of these governmental programs and efforts encompasses the overwhelming majority of human actions acknowledged by NMFS to have caused the decline, and justified the listing of these ESUs.

It is inconsistent and, hence, irrational to list a species as Threatened on the grounds that government programs and efforts are inadequate to conserve the species, and then refuse to protect the species from those inadequate programs and efforts under 4(d) rule-making. NMFS displays such irrationality by failing to propose invoking Section 9 take prohibitions in the proposed rule, while acknowledging the existence and causal relevance of inadequate governmental programs and efforts.

NMFS attempts to make it appear that applying Section 9 prohibitions to Threatened species as part of its 4(d) rule-making authority is something extraordinary in the discharge of its legal obligations under the ESA, and that the consideration of such a course of action is entirely discretionary with NMFS. In fact, NMFS’s discretion in this matter begins and ends with a credible scientific assessment of the conditions of the Threatened ESUs, the conditions of human action which have caused the ESUs to become Threatened, the immediate preservation and recovery needs of the ESUs, and the prospects for human activities to cease harming the listed species. NMFS cannot logically hide behind the discretionary nature of Section 4(d) when the measures it proposes are inadequate to protect the listed species in view of the nature and extent of the factors for decline that NMFS identified in its decision to list the species, setting into motion the 4(d) rule-making process at issue. Doing so employs NMFS’s discretionary authority under 4(d) in an arbitrary and capricious manner, an abuse of that authority.

NMFS asserts at the outset of the proposed rule (Summary) and again in paragraph 2 of the sub-section Substantive Content of Proposed Rule that "[t]he rule would apply take prohibitions enumerated in Section 9(a)(1) …in most circumstances" except for some 13 "categories of activities that contribute to conserving listed salmonids or are governed by a program that adequately limits impacts on listed salmonids." Among the 13 categories are (1) all fisheries, (2) all hatchery and hatchery-related programs and activities, (3) the entirety of forestry practices on state and private lands in Washington State and (4) most development activities in urban areas.

Save for agriculture, which receives no thorough mention or detailed discussion, and federal land management activities covered by Section 7 consultation, these 4 categories encompass the vast majority of activities which have brought about the decline of the seven salmonid ESUs and to have justified the need to list them as Threatened under the ESA. These are a substantial proportion of activities that can be subject to Section 9 take prohibitions. NMFS’s proposal to issue limitations to the take prohibition to activities within these categories is a substantial one and, hence, contradicts NMFS’s claims that "the take prohibitions generally applicable for endangered species are necessary and advisable for conservation of the listed ESUs …." NMFS is quite clearly proposing to not apply Section 9 prohibitions to the majority of activities within the geographic range of the seven listed ESUs that have caused and will continue to cause the decline of populations within those ESUs.

In view of the broad range of human factors that continue to play a fundamental causal role in the threat of extinction faced by the listed ESUs across their broad geographical range, and in view of the persistent inability of regulatory agencies to enforce statutes or otherwise engage in actions which secure the health of the listed species, a strong presumption in favor of imposing Section 9 prohibitions globally across all seven ESUs would appear to exist. NMFS must bear a considerable burden of proof to convincingly demonstrate that the substantial benefits for the listed species of imposing Section 9 prohibitions can be secured by other means within NMFS discretionary purview, and that in pursuing such means NMFS is not abusing its discretionary authority under Section 4(d). NMFS fails to muster such a level of proof.

On the contrary, in proposing a mechanism outside of Section 10 planning and permitting "whereby entities can be assured that an activity they are conducting or permitting is consistent with ESA requirements and avoids or minimizes the risk of take of listed salmon" NMFS merely claims that programs exist which verifiably establish that "additional federal ESA regulation through the take prohibitions is not necessary and advisable because [they] would not meaningfully enhance the conservation of listed ESUs." NMFS then further insults the concerned and knowledgeable public by asserting that "declining to apply take prohibitions to such programs likely will result in greater conservation gains for a listed ESU than would blanket application of take prohibitions…" (Our emphasis.)

Claims and assertions, unsupported by sound evidence and example, are poor substitutes for the clear and solid protection which Section 9 prohibitions provide. As in the case of the OCSRI, such a course of action under 4(d) rule-making forces the Threatened ESUs to continue bearing the burden of risk, rather than those entities that continue to harm them.

Much of the substance of Judge Stewart's 1998 decision concerning NMFS’s refusal to list as Threatened the Oregon Coast Coho Salmon ESU in deference to the OCSRI is relevant to NMFS’s current attempt to pursue a similar course of action via 4(d) rule-making after listing a species as Threatened. In identifying the legal inadequacy, under the ESA, of relying on future actions and unenforceable efforts, Judge Stewart points out that "[a]bsent some method of enforcing compliance, protection of a species can never be assured." (Our emphasis.) With regard to determining whether or not to list a species, Judge Stewart firmly and clearly concluded that NMFS "may not rely on plans for future action to reduce threats and protect a species as a basis for deciding that a listing is not currently warranted. The NMFS may only consider conservation efforts that are currently operational, not those promised to be implemented in the future." (p. 31)

Yet, in order to fulfill its responsibility to conserve and recover seven ESUs it has listed as Threatened, NMFS now proposes to rely upon promised conservation efforts, future actions that are not currently operational, including intentions to enforce existing regulations that have long been irregularly and inconsistently enforced, if enforced at all. For example, on page 171 NMFS states that it "anticipates consideration in the Spring of 2000 of a comprehensive proposal for the conservation of salmonids by a broad array of county, municipal and other local governments whose effects on listed salmonids are interrelated because of their shared watersheds, transportation and water systems, or growth management strategies….In addition to its conservation objectives, the completed proposal would be intended to allow NMFS to determine that it is not necessary or advisable to apply take prohibitions to a broad array of related governmental activities." (Our emphases.)

The public should expect, as Congress intended when it passed the ESA, that a listed species will receive greater protection and greater assurance of protection than it received prior to listing. NMFS’s intent to rely upon entities’ intentions to undertake or comply with promised conservation efforts that are not currently operational as grounds for limiting the application of take prohibitions would provide no more substantive protection to the listed species than did NMFS’s attempt to avoid listing the Oregon Coast Coho ESU by accepting the OCSRI.

In addition to the fundamental inadequacy of NMFS’s proposed approach to 4(d) rule-making, the proposed approach has no benefits or efficiencies not possessed by the processes associated with the development of Habitat Conservation Plans and the issuance of Section 10 incidental take permits, processes set into motion by Section 9 prohibitions. NMFS provides no information or argument of substance in the proposed rule to convince or suggest otherwise.

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2.2 Re: Substantive Content of Proposed Regulation

In this section of the proposed rule, NMFS declares its intention to attempt to characterize the "subset of activities" under which resulting take of listed salmon "need not be prohibited." These are alleged to be activities "that are conducted in a way that contributes to conserving the listed ESUs, or are governed by a program that limits impacts on listed salmonids to an extent that makes added protection through Federal regulation not necessary and advisable for the conservation of an ESU."

NMFS comments that instead of accepting NMFS’s proposed limitation on Section 9 prohibitions, "an entity responsible for any habitat-related programs might equally choose to seek an ESA Section 10 permit." This is disingenuous. NMFS attempts to suggest that regarding protection of the resource, it is a matter of indifference whether an entity qualifies for the proposed limitation on Section 9 prohibitions or voluntarily seeks to undergo the Section 10 permitting process!

The two are fundamentally different. Absent imposition of Section 9, there is no incentive for an entity to seek a Section 10 permit because there is no take prohibition in force limiting or threatening to limit an entity's activities.

As noted above, NMFS proposes to apply limitations on take prohibitions to 13 categories of activities. Our lack of comment on the substantive content of any one of the 13 categories should not be construed as endorsement of every element of each proposed exception. Washington Trout has significant concerns with NMFS’s proposed limitations on take prohibitions across all 13 categories. However, in reviewing the comments of other entities involved in this public review process, we became concerned that several of the 13 categories were being inadequately addressed. Therefore, Washington Trout is focusing its substantive comments primarily on the following three categories: (4) fishery management activities, (5) hatchery and genetic management programs, and (8) state, local, and private habitat restoration activities.

Before turning to the specifics of these three categories, we must note that having listed these 13 categories, NMFS immediately hastens to reassure entities that its proposed approach is not to be confused with implementation of Section 9 prohibitions: "NMFS emphasizes that these limits are not prescriptive regulations. The fact of not being within the limit would not mean that a particular action necessarily violates the ESA or this regulation. The limits describe circumstances in which an entity or actor can be certain it is not at risk of violating the take prohibition or of consequent enforcement actions, because the take prohibition would not apply to programs within those limits." (Our emphases.)

The inescapable impression is that NMFS is making this proposal for the convenience of itself and the entities whose actions and practices have contributed substantially to the circumstances that have warranted the listing of the seven Threatened ESUs, and not for the sake of the listed resource it has a duty under the ESA to protect and recover. Section 10 permits provide entities with the requisite degree of assurance that they are "not at risk of violating the take prohibition or of consequent enforcement actions." More importantly, but less conveniently for NMFS and the entities in question, Section 10 permits provide this assurance in the context of providing the listed ESUs with the security of the full legal force of the ESA, by making Section 9 prohibitions the status quo context in which exemption from take prohibitions may occur. NMFS’s efforts to avoid adopting this approach and thereby failing to provide the listed species with such a minimal level of assurance of protection is, again, evidence that NMFS is abusing the discretionary powers granted by Section 4(d).

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2.2a Re: Fishery Management and Evaluation Plans

Washington Trout has five primary issues of concern with the proposal to use Fishery Management and Evaluation Plans (FMEPs) to limit the application of take prohibitions to fisheries. These issues regard criteria #s 2, 3, 4, and 5 of the criteria for approval of an FMEP and the absence of a requirement for an economic analysis of proposed fisheries. Criterion 2 appears to address the standards that agencies must use to identify population units of concern related to listed ESUs that may be affected by fishery management plans. But this is not clear, and the indicated standards are vague and/or weak. Criterion 3 addresses the two thresholds – ostensibly defined in the Viable Salmonid Populations draft document - to be employed in describing the status of population units of concern. This criterion countenances unacceptable impacts on populations near or below these thresholds. Criterion 4 addresses strategies that may be used in fishery management plans in order to achieve acceptable minimum impacts on non-target populations of listed ESUs. Criterion 4 gives fishery managers the discretion to choose between managing to achieve minimal escapement levels for populations or management units of listed ESUs, or managing to achieve maximum exploitation rates on such populations/units. Criterion 5 enjoins FMEP sponsors to provide a rationale demonstrating that harvest management strategies do not exceed acceptable minimum impacts. Criterion 5 fails to provide clear standards for determining such impacts.
Criteria 3-5 all contemplate allowing fishery-related mortality on listed ESUs and their component populations prior to the specification of recovery targets and de-listing requirements.

In combination, application of these criteria in approved FMEPs will subject listed ESUs to considerable risk of delayed recovery and/or increased likelihood of future Endangerment. In addition, the fishery impacts these criteria would permit are incompatible with the precautionary approach recommended by the United Nations Food and Agricultural Organization (FAO) and required by the Magnuson-Stevens Sustainable Fisheries Act. Incompatibility with the latter is likely to be illegal under relevant provisions within this statute. NMFS should clearly and firmly require that all FMEPs follow and exemplify the precautionary approach as detailed in the Section 4.3 of the FAO’s Report, Precautionary Approach to Fisheries (FAO Technical Report 350. United Nations, Rome. 1995).

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Criterion 2

Criterion 2 appears to require an FMEP to identify all populations within affected ESUs. Where "available data or technology are inadequate to determine the effects of the proposed action on individual populations, plans may identify management units consisting of two or more population units…." While a preference for management centered upon the preservation and recovery of individual populations that comprise an ESU may be suggested by such language, it is not clearly stated, leaving the criterion too ambiguous to achieve the implied preference.

Such vagueness should be eliminated from the proposed rule. Fishery management programs must be firmly centered upon the preservation and recovery of individual populations that comprise listed ESUs. Recognition of individual populations of listed ESUs and the development of harvest regimes that avoid impacts to them must be clearly identified as the precondition for the development and approval of FMEPs. (See Attachments D.1 and D.2)

The language of criterion 2 is troubling and inadequate for a further reason. The criterion states that FMEPs may "identify management units consisting of two or more population units" not merely because data is lacking to enable an individual population to be identified but also in cases where the individual population may be identified but data or technology do not allow managers "to determine the effects of the proposed action on" the individual population. That is, an individual population may be identified or known to exist and to be susceptible to fishery-related impacts, but such impacts cannot be quantified or estimated by fishery managers. In such cases, NMFS would allow managers to lump the population into an aggregate "management unit" and then conduct the fishery! From a recovery standpoint, it is counter-intuitive to allow an action to take place when the impacts of the action can not be identified. In this case, NMFS will contemplate allowing an action to take place because the impacts of the action can not be identified! This is incompatible with NMFS’s duty under the ESA to "enact whatever protective regulations are necessary for the conservation of Threatened species" and with the precautionary approach to fisheries.

Moreover, facilitating the aggregation of individual populations into "management units" under the above conditions runs afoul of Section 4(e) of the Act by placing the convenience of harvest interests ahead of the conservation requirements of the listed species. Sub-sections A, B, and C of Section 4(e) are each and all applicable to individual populations of listed ESUs that it would be convenient to harvesters and fishery managers to lump with non-listed populations into aggregate "management units" in order to avoid take restrictions. Section 4(e) would enforce the opposite level of protection (namely, take prohibitions) to such aggregates.

Acceptance of aggregate "management units" in lieu of identifying individual populations, or determining impacts to those populations, due to inadequacy of "available data or technology" should only occur in conjunction with a specific plan and timeline for acquiring the data and/or technology necessary to identify individual populations and to evaluate the impacts of the proposed fishery on the individual populations which are thought to comprise the aggregate unit, and only within the context of Section 4(e) wherein the management unit is treated as a necessary component of the listed species and is protected by take restrictions. An exemption to such a requirement should occur only if data exists which demonstrate that managing the aggregate provides the same level of assurance of both detecting and avoiding harmful impacts on the individual populations which comprise the aggregate as would management based upon the individual populations themselves. The burden of such a demonstration must be placed clearly upon those who wish to prosecute the fisheries. Absent such demonstration, the application of Section 4(e) is in order.

Salmon fisheries have long contributed to the decline of individual salmon populations by managing on the basis of large aggregates of individual populations and ignoring the needs for gathering specific data on the individual populations which make up management aggregates. Lack of necessary technologies for acquiring population-specific data suited to the task of risk-averse fishery management has been a self-fulfilling outcome of conventional management based upon aggregate "management units." NMFS invites repetition of this approach by employing lax language for this criterion and by ignoring the clear applicability of Section 4(e) to this situation.

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Criterion 3

Criterion 3 requires that an FMEP describe "the functional status of each ESU or of any population or management unit intended to be managed separately within the ESU...." Functional status is to be described by classifying each such "management unit" with respect to one of two "thresholds" ("viable" or "critical"). In addition to such description, FMEPs are to "respond accordingly in order to minimize the risks to the long-term sustainability of the population(s)" based upon their prior classification.

The criterion suffers from two related shortcomings: lack of clarity regarding the standards of classification for viable and critical population levels, and inadequate standards for defining minimization of the risks to long-term sustainability. Lack of clarity arises in large part because the proposed rule itself contains no scientifically rigorous definition of the key concepts "viable" and "critical" population levels. These concepts are described in the draft document Viable Salmonid Populations, but only in a vague and principally qualitative manner. NMFS provides no clear standards for what they will require from state fishery managers in classifying populations with respect to "viable" or "critical" status, hence denying the public the opportunity to judge not only the value of the classification, but indeed, whether NMFS is carrying out its responsibility when it evaluates and/or accepts an FMEP. These are serious and unacceptable deficiencies of the proposal to limit application of take prohibitions to approved FMEPs.

The concepts of viable and critical population levels are clear enough, at a qualitative level. The draft VSP characterizes a viable salmonid population as "an independent population of any pacific salmonid … that has a negligible risk of extinction due to threats from demographic variation…, local environmental variation, and genetic diversity changes … over a 100-year time frame." (Page 6.) A critical population is characterized as one having "a high risk of extinction over a short time period." (ibid) A "short time period" is vaguely characterized as being on the order of ten to 20 years or less.

The proposed rule describes the viable threshold level as "the level of abundance and function at which the population is considered viable," and the critical threshold as a "very low population size and/or function" at which "any additional demographic and genetic risks increases the extinction [risk] exponentially." (Our emphasis.) Surprisingly, such a critical level of size and/or function is not necessarily a limit to the issuance of limitations on the take prohibition.

Harvest actions that will impact populations "functioning at or below critical threshold must not appreciably increase the genetic and demographic risks facing the population and must be designed to permit the population's achievement of viable function, unless the plan demonstrates that such an action will not appreciably reduce the likelihood of survival and recovery of the ESU as a whole despite any increased risks to the individual populations." (Our emphasis.) This is deeply disturbing on several fronts.

On the one hand, NMFS is claiming that a population at a level of abundance and/or function where any additional demographic and genetic risk increases the population’s risk of extinction exponentially can still be subjected to harvest impacts, provided that additional harvest mortality does not "appreciably increase" the demographic and genetic risks. But this latter is an impossibility because any additional mortality over natural background levels will by definition increase the demographic risk of extinction of a population at or even near any level of abundance or function low enough to be reasonably described as "critical."

Component populations of listed ESUs that are at critical levels present nearly insurmountable obstacles to prosecuting numerous commercial and tribal fisheries, such as those in Puget Sound "hatchery management zones" (HMZs) which conduct fisheries targeting aggregates of at-risk wild and relatively abundant hatchery salmon populations. (The proposed rule further demonstrates its incompleteness in its failure to even mention Puget Sound Hatchery Management Zones and the well-documented overfishing of at-risk wild chinook salmon populations that has occurred therein.) In the absence of demonstrated non-lethal selective fishery gears and regimes, the only biologically sound way to protect such critical wild populations from harvest-related mortality is to not allow the fisheries to be conducted.

NMFS appears desirous of avoiding this biologically appropriate conclusion, by immediately providing harvest planners the option of arguing that a population at or below the critical level can be exterminated for the convenience of the fishery if that population is not essential to the survival and recovery of the ESU as a whole. This effectively countenances the planned, intentional overfishing to extinction of critical populations, so long as they are not the sole surviving "viable" population comprising the ESU! With no standard established or provided for determining when any component population is essential to the survival of an ESU, short of the ESU being comprised of but one extant population, NMFS herein opens the door to providing protection under the ESA only to salmon ESUs composed of single populations. NMFS offers no credible, objective grounds for believing that it will not allow individual populations within listed ESUs to be reduced to "critical" levels and then extinguished by indirect fishing mortality or by other causes until there is but one remaining "viable" population to be identified with the original ESU.

If NMFS can so delimit the take prohibition as to allow harvest impacts on critical populations, it can likely delimit less direct forms of take, such as habitat destruction, provided such destruction can demonstrate that it "will not appreciably reduce the likelihood of survival and recovery of the ESU as a whole…." Regardless of NMFS’s intentions in this matter, such a policy with respect to FMEPs will clearly provide entities, whose land use activities will be circumscribed by take restrictions, legal grounds for arguing that their activities be freed from such restrictions as long as at least one viable population not impacted by their destructive land use practices exists in the ESU. Again, this seems clearly incompatible with the requirements of the federal law that NMFS has a responsibility to implement via this proposed rule.

The provisions regarding populations at levels of abundance above "critical" but below "viable" are little more protective. Regarding such populations, "harvest management must not appreciably slow the population's achievement of viable function." (Our emphasis.) By the above qualitative definition of "viable," a population that is at a level below the threshold for viable status has a greater-than-negligible risk of becoming extinct in less than 100 years. So, harvest must not appreciably slow a population’s attainment of a "negligible" probability of becoming extinct during the next 100 years. But NMFS specifies no objective, scientifically credible criterion or standard for calculating or otherwise determining when an action will "appreciably slow" the attainment of such a condition of population viability.

Further, no criteria are identified for determining whether a population falls within this abundance level, other than the irresponsibly vague "high degree of confidence." In plain language, what does that mean? How will an FMEP applicant be required to prove a "high degree" of confidence? Again, such vague and subjective language makes it difficult if not impossible for the resource’s advocates to not only judge the value or weakness of a particular FMEP, but whether or not NMFS has properly discharged its responsibility when it grants a limitation on take prohibitions.

NMFS further seems to envision that a population below viable level could be on a trajectory toward attaining viable status - while subject to harvest-related mortality - that would be practically indistinguishable from a trajectory toward attainment while subject to no harvest mortality whatsoever. This is more than doubtful. In any case, NMFS simply asserts it without any explanatory argument whatsoever and without providing any clear objective criteria, as noted above. NMFS is clearly struggling to avoid acknowledging the biologically intuitive position that populations below "viable" thresholds cannot be harvested toward recovery.

It is also important to recognize, regarding populations at or below the viable threshold level of abundance or function, that the attainment of a level above the threshold level is not equivalent to attainment of a level that justifies de-listing. De-listing criteria are widely understood to require that a population or ESU attain a level of abundance and function considerably above such a threshold level and maintain that level for several generations, which in the case of species like chinook salmon would be a period of ten to 18 years (two generations at five years/generation to three generations at six years/generation). (See, e.g., Cramer and Neeley 1993.Evaluation of Delisting Criteria and Rebuilding Schedules for Snake River Spring/Summer Chinook, Fall Chinook, and Sockeye Salmon, BPA, Technical Report 10 of 11) NMFS is proposing to accept FMEPs which would induce fishery-related mortality on weak populations of listed salmonids functioning at levels well below those which would justify de-listing. We strongly question the biological soundness of such a proposal.

It also must be pointed out that NMFS implicitly contradicts its own Draft VSP document’s "Viable Population Size Guidelines" when it considers accepting harvest impacts to populations below the threshold for viable status. Guideline #2 (Draft VSP, p. 14) appropriately suggests that for a population to be considered viable "abundance is substantially above levels where depensatory processes are likely to be important … and in the realm where compensation is substantially reducing productivity." (Our emphasis.) This means that a viable population must a) be experiencing density-dependent growth and b) be at such a level of abundance that density-dependent growth is causing a demonstrable marked reduction in marginal recruitment-per-spawner (significantly less than 1-to-1). Such a level of abundance, in other words, is markedly to the "right" of the maximum likelihood point estimate of spawning escapement needed to achieve "Maximum Sustained Yield."

Regarding the general issue of establishing threshold levels for critical and viable population status with respect to actual populations, NMFS acknowledges that the "biological analysis required… will be more or less intensive depending on data availability and changes." Yet NMFS highlights the extreme importance of annual abundance data only for making adjustments to FMEPs after they have been approved and implemented. Again, NMFS would not only countenance but invite FMEPs that would inflict or risk inflicting harvest-related mortality on populations about which data is lacking or inadequate for determining whether individual populations are above or below these threshold levels. Harvest mortality would be allowed and then managers will be required to "review monitoring data on a regular basis" and adjust harvest practices if adverse impacts are detected.

Not only is the actual timeline for this monitoring review left undefined, no mention is made in this regard of the need for substantive prior knowledge about weak populations that will likely be encountered by proposed fishery regimes. Nor does NMFS address the critical issue that substantive baseline information is lacking for most at-risk wild salmonid populations. Information recently obtained, where it exists, will generally be information about small populations many of whose characteristics have already been altered by fishery impacts. The monitoring of changes to population parameters such as "run timing, phenotypic diversity or other characteristics" will at best only monitor changes with reference to an already much-altered "baseline." Due to past alteration by harvest, monitoring is unlikely to reveal any fundamental incremental alteration of this "baseline" from recent (post-FMEP) fishery impacts. Therefore, the proposed "monitoring" will likely reveal no fishery impacts. This is convenient for fishery interests but at odds with the recovery of populations within the listed ESUs.

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Criterion 4

Criterion 4 allows FMEP applicants complete discretion in choosing between "fixed escapement objectives or maximum exploitation rates for each management unit or population based upon its status, and a harvest program that assures not exceeding those rates or objectives (sic!)." (NMFS can perhaps be excused for the proofreading slip here. But we can’t help taking them literally and pointing out that harvest managers are already largely in compliance with these guidelines: since many populations of listed stocks have consistently fallen short of their "fixed escapement objectives" for over a decade, managers have indeed succeeded in crafting " a harvest program that assures not exceeding those … objectives.")

Exploitation rate harvest management where depressed wild populations are involved, either individually or as members of aggregate "management units," is merely a loophole for assuring continued fishing regardless of population impacts. Approving and allowing harvest programs based on exploitation rate management would be inconsistent with NMFS’s responsibility to conserve Threatened species. Reductions in exploitation rates have accompanied declines in wild coho and chinook salmon populations in Puget Sound, the Strait of Juan de Fuca, the Washington and Oregon Coasts and elsewhere for a decade or more. Despite these rate reductions, salmonid populations within the Threatened ESUs have consistently failed to meet even minimal (often biologically questionable) escapement objectives.

To cite but one instance, the Snohomish River Basin wild chinook stock - an aggregate of four populations, one of the (relatively) healthiest aggregate populations in the Puget Sound ESU - has an escapement goal of 5250, established in the late 1970s. Harvest rates on this stock have "declined steadily from approximately 80% in the late 1970s to approximately 55% in the mid-1990s. The rates have likely declined further in the late 1990s, to as low as 35%, because of increased restrictions on fishing." (Executive Summary: Initial Snohomish River Basin Chinook Salmon Conservation/Recovery Technical Work Plan, Snohomish Basin Salmonid Recovery Technical Committee, October 6, 1999. Page vii.)

Despite this decline in harvest rates, the escapement goal has been attained only once - in 1998 - in the 19-year period between 1981 and 1999. The 12-year average escapement for 1987-1998 is 4013. This period includes implementation in the early 1990s of "corrective" measures by the Pacific Fishery Management Council triggered by the Snohomish chinook stock’s meeting the Council’s definition of an overfished stock. The "correction" was to continue fishing at a reduced harvest rate. Since the recent rate reductions in response to this "corrective" action, the average escapement for the past seven years is 4216.

Absent a clear directive to annually achieve biologically credible and risk-averse (i.e., conservative) escapement target levels for individual populations within all listed ESUs, the record demonstrates that it is highly doubtful that recovery of listed ESUs and their component at-risk populations can be secured. Permitting fishery managers the discretion of choosing between harvest management based upon escapement targets - which would likely require curtailment of many fisheries - and management based upon exploitation rates simply invites continued over-fishing of listed ESUs and their component populations.

The FAO, in articulating the basic elements of a precautionary approach in the document cited above, specifies the inclusion of biological reference points for overfishing as an essential component of such an approach. Exploitation rate management of listed or otherwise at-risk salmonid populations violates such a principle. Especially for the cases of at-risk populations (i.e., any population that is arguably at or below the threshold level for "viable" status per the qualitative concepts of the Draft VSP document discussed above) firm, risk-averse escapement targets for individual populations provide the most reasonable and operable standards for determining overfishing of such populations. The determination and specification of risk-averse escapement levels must be a firm prerequisite for approval of FMEP applications. Further, NMFS must require that fisheries implemented under approved FMEPs consistently attain those targets.

NMFS’s failure to do this in the proposed rule leaves one once again with the unavoidable impression that NMFS is under the illusion that the region can harvest its way to recovery. Allowing FMEP applicants the option to manage fisheries without clear escapement objectives would constitute a failure by NMFS to meet its responsibility to protect listed populations.

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Criterion 5

This criterion enjoins sponsors of FMEPs to "[d]isplay a biologically based rationale demonstrating that the harvest management strategy does not appreciably reduce the likelihood of survival and recovery of the species in the wild." (Our emphasis.) We must point out once again that no objective standards are provided or indicated for determining that a proposed action "does not appreciably reduce the likelihood of survival and recovery." (We emphasize here, and reference the discussion under criterion 4 above, that risk-averse target escapement levels for individual populations provides just such a clear and, generally, publicly determinable standard.)

Of equal importance, even were such standards available it is neither clear nor reasonable that harvest actions be directed at populations or species listed under the ESA! At a minimum, such populations/species should first be the subject of biologically credible recovery planning. Such planning must include the development of recovery targets connected with biologically relevant de-listing goals accompanied by clear timelines.

This criterion and the entirety of the proposal to issue limitations on take prohibitions to FMEPs which contain acknowledged likely harvest mortality impacts on listed populations would clearly approve fishery impacts on listed populations and ESUs prior to the existence of any bone fide recovery targets and plans! Such a policy would be a clear failure to adequately protect listed populations and ESUs with the force due them under the ESA.

Lack Of Economic Analysis Criteria

Finally, the proposed rule includes no criteria that would require FMEP applicants to provide an economic analysis of the costs enjoined by the prosecution of the proposed fishery and the benefits yielded by the fishery. Numerous relevant costs are incurred by fisheries that are conducted in such a manner as to place populations of listed ESUs at risk, including appropriate monitoring of catch and population status and enforcement of fishery regulations by state and federal entities. Such monitoring and enforcement result in the incurring of opportunity costs in the form of forgone investments in other areas of salmonid preservation and recovery, such as freshwater habitat.

Where all segments of society are bearing costs related to salmon preservation and recovery under the ESA, all costs related to the pursuit of activities affecting salmonids which result in the forgoing of other investments in salmonid protection and recovery must be accounted for and compared to one another as well as to the potential benefits that they do or may produce. This includes fishery activities. Unaccounted and unrecovered costs related to the management of fisheries impacting or likely to impact listed ESUs are simply another subsidy that the region pays - in this case to those who benefit from conducting the fisheries - and that results in funding that is not available for investment in salmon conservation and recovery. These costs of fishery management must be made transparent and the benefits that fisheries are alleged to produce detailed and weighed against such costs. FMEPs must require such an accounting.

2.2b Re: Artificial Propagation Limit on the Take Prohibitions, process for Developing hatchery and Genetic Management Plans, and Criteria for Evaluating Hatchery and Genetic Management Plans

NMFS proposes "a mechanism to limit the application of take prohibitions to broodstock collection." The mechanism proposed is the development of Hatchery and Genetic Management Plans (HGMPs) by state, tribal, and federal hatchery operations that meet nine criteria "designed to minimize and adequately limit take and promote conservation of the listed species."

Washington Trout recognizes the need for hatchery facilities and programs to undertake thorough performance audits and to regularly complete and update substantive inventories of their operations and practices. We support NMFS’s attempt to create a template for such audits and inventories as a salmonid recovery tool. Only with the aid of those audits and inventories can managers and the public begin to fully understand and appreciate the costs and the benefits of hatchery programs and to evaluate and manage their impacts on the recovery of listed ESUs. NMFS’s Draft Template for HGMPs holds promise for initiating such a thorough accounting and assessment. However, the Template is incomplete and the proposed rule contains shortcomings regarding the substance of HGMPs that must be addressed if HGMPs are to fully contribute to the recovery of the listed ESUs.

We have four primary concerns regarding NMFS’s proposal and discussion of HGMPs. 1) NMFS’s discussion of issues related to the physical facilities of hatcheries fails to address site impacts, including the issue of adult and juvenile fish passage blockage by hatchery facilities themselves and by hatchery operations such as those involving surface and groundwater withdrawal. 2) NMFS fails to provide a critical discussion of biological and genetic limitations and risks of captive broodstock and supplementation practices and programs. 3) NMFS fails to provide adequate specificity with regard to the relationships between hatchery programs and fishery programs. 4) NMFS fails to substantively address the uncertainties regarding the ability to monitor broodstock and supplementation programs with variables that permit early detection of deleterious impacts of such programs on wild populations of listed species.

In regard to the physical facilities of hatcheries NMFS only mentions in-hatchery protocols related to fish health, broodstock collection and mating, and juvenile rearing and release. (See criteria 4,5, and 7.) No mention is made of hatchery facilities that intentionally prevent upstream adult passage of salmonid species, listed or unlisted. Numerous such facility blockages exist at both state and federal salmonid hatcheries throughout the region encompassing the seven listed ESUs. (See Attachment E.)

Such blockages include permanent channel-spanning weirs and de-watering of stream channels by surface and groundwater withdrawals to provide hatchery facilities with water for hatchery operations. NMFS, in fact, appears to be well aware of such problems and references the specifics of several federal hatcheries - among them the US Fish and Wildlife Service’s Leavenworth National Fish Hatchery and NMFS’s own Grays River Hatchery - in its Biological Opinion on Artificial Production in the Columbia River Basin, March 29, 1999.

In addition, numerous facilities are sited in floodplains, which required filling in order to permit construction of the hatchery complex. In addition to loss of floodplain habitat, processes, and productivity, bank armoring of the resulting constricted channel has caused and/or exacerbated channel avulsions and hillslope erosion in the vicinity of and downstream of the facilities, causing and/or contributing to loss of spawning or rearing habitat for listed species. (See Attachment F.)

Such impacts would appear to involve both direct and indirect takings of listed species under Section 9. NMFS’s failure to include this issue in HGMPs is a serious one, especially in view of its apparent knowledge of such problems. Moreover, NFMS failure to even mention the enforcement of state fish passage laws, (for example, Titles 75 and 77 RCW) that state fish and wildlife agencies have statutory authority and responsibility to enforce, is another glaring omission, particularly in view of the fact that many hatcheries operated by these same agencies are currently in violation of these statutes. Omitting criteria for HGMPs regarding fish passage is surprising, given that fish passage blockage is defined as a take under Section 9 (59 FR 34272).

NMFSs’ provisions for limiting the application of take prohibitions to broodstock collection with respect to the viability of the populations/ESUs from which such collections are taken mirror those regarding acceptable harvest impacts under FMEPs. Under criterion 2A broodstock may be collected from donor populations of listed ESUs that are "currently at or above viable thresholds," provided the collections "will not reduce the likelihood that the population remains viable." As discussed under FMEPs above, NMFS provides no clear objective standards whereby it is to be determined that such an impact (removal of wild spawners from the population) "will not reduce the likelihood that the population remains viable."

Moreover, criterion 3 makes it clear that NMFS is contemplating the use of "viable" populations of listed ESUs to provide broodstock for hatcheries for the "secondary" purpose of augmenting harvest, a purpose completely unrelated to and generally at odds with the preservation and recovery of the listed species. Such a policy is doubly contradictory when conjoined to NMFS’s policies regarding FMEPs discussed above: NMFS would countenance the elimination of populations of listed ESUs that are below the viable or critical threshold levels if it can be argued that such populations are not essential to the recovery of the ESU while allowing the mining of broodstock from populations of the same ESU that are above the viable threshold in order to raise hatchery fish for harvest!
As in its discussion of FMEPs and other plans/measures that NMFS would allow for limiting the application of take prohibitions, NMFS fails to distinguish between an action or policy "not reducing the likelihood that populations will remain viable" and its contributing to the population’s and the ESU’s prospects for recovery and de-listing. We seriously question the biological acceptability of allowing hatchery-augmentation impacts on wild populations of listed species via broodstock mining. Again, NMFS appears more interested in promoting a vague and ill-defined standard of "not reducing the likelihood of remaining viable" in preference to a standard of not reducing the probability and rate of attainment of recovery. The former accommodates status quo practices; the latter does not.

NMFS fails to acknowledge the substantial uncertainty and risk surrounding the collection of broodstock for the "supplementation" of wild populations. Under Criterion 2B NMFS would limit the application of take prohibitions to broodstock collection from populations that are "not currently viable but [where] the sole current objective of the collection program is to enhance the propagation or survival of the listed ESU…." (Our emphasis.)

The word "propagation" is used here ambiguously. Most commonly it is used to refer to within-hatchery practices; accordingly, any purported "supplementation" program would trivially qualify for the proposed limitation on the take prohibition. If instead NMFS intends it to mean increase in the numbers of natural-spawning fish, it needs to state so clearly. In either case, however, this provision would appear to permit the taking (collection) of listed populations for supplementation programs based upon the mere statement of the intention to "enhance the survival of the listed ESU."

NMFS’s references to supplementation programs nowhere reveal the significant scientific uncertainties and doubts regarding the critical assumption that hatchery practices can be revised so as to "enhance" wild populations with hatchery-raised individuals that are practically identical to members of the wild populations both genetically and adaptively. Severe scientific concerns exist regarding the use of supplementation practices on populations of salmonids that are at low abundance levels but have not yet been listed under the ESA, let alone on populations already listed. Many of these concerns have been stated and argued by NMFS’s own fisheries geneticists and geneticists on its biological review teams, both in official NMFS documents and in peer-reviewed scientific publications. The scientific concerns are fully great enough to justify the rigors of the Section 10 permitting process.

Moreover, NMFS fails to address the seriousness of the issues that surround the monitoring and evaluation of supplementation programs. Statements of intentions to monitor effects are insufficient in the absence of clear evidence that sensitive and responsive monitoring variables exist that permit the prompt detection of either deleterious impacts of supplementation on the wild target population or of beneficial intended effects. In the absence of such responsive monitoring variables, it is relatively easy for proponents of supplementation programs to claim that no harm is being done to the target wild population.

Even where such monitoring variables may exist, the logistics of adequately employing and measuring them under field conditions may render monitoring inadequate for the evaluations required. In view of these uncertainties regarding the scientific basis for supplementation and the ability to monitor the consequences of supplementation using sensitive response variables detectable under field conditions, the basic fact that supplementation requires the direct taking of a portion of the natural spawning population would clearly appear to require applying Section 9 prohibitions and Section 10 permitting requirements to each and every supplementation program subject to NMFS review.

In criterion 2C NMFS contemplates allowing broodstock collection from populations "above critical threshold although not yet viable…." As in the case discussed above of allowing harvest-related impacts on such populations, NMFS would allow this provided "the collection would not appreciably slow the attainment of viable population status." Here broodstock may be collected even in the absence of a supplementation purpose; in other words, for the purpose of augmenting harvest or, perhaps, of developing a distinct hatchery stock for outplanting elsewhere than the watershed in which the population from which the collection is made resides.

Regardless of whether members of a population of a listed ESU are killed "unintentionally" in fisheries targeting other populations or are killed near the spawning grounds for use in a hatchery program that lacks the intention and purpose of supplementation, the population is equally deprived of the contribution of those individuals to its next generation. When that population is below the threshold of viability, it is clear that the population’s ability to attain the threshold of viability will be reduced. If one is to claim that one can safely and unappreciably slow a population’s attainment of the threshold of viability, it would seem that one should be obligated to muster considerable evidence and scientific argument in order to credibly establish such a claim. As we argued in the case of FMEPs, NMFS simply fails to provide appropriately rigorous standards for establishing such a claim in an HGMP and fails to indicate the seriousness of the risk the proposed policy would pose to listed populations.

Finally, NMFS nowhere in the proposed rule regarding HGMPs and hatchery practices requires that hatchery programs address the relationships between policies, programs, and actions aimed at restoring natural productivity, capacity, and life-history diversity of listed populations and ESUs, and the purposes and activities of the hatchery program and specific facilities. Nowhere would hatchery programs, operations, or facilities be required to evaluate and specify the way(s) in which they are 1) positively contributing to the preservation and recovery of wild populations, 2) merely not interfering with preservation and recovery, 3) positively hampering or interfering with preservation and recovery.

Among other relevant circumstances, hatchery programs are extremely costly and absorb a considerably fraction of fishery agency budgets which might otherwise be devoted to measures and programs directly devoted to protecting wild populations and their habitats and to improving fisheries management. Hence, hatchery programs cannot be adequately evaluated with regard to the take of listed species merely by addressing whether or not their activities directly harm listed species. They need to be evaluated from the perspective of whether or not they contribute manifestly to the preservation and recovery (de-listing) of listed salmonid populations. This would include a detailed economic analysis of the capital and operating costs of each hatchery facility, the economic benefits resulting from hatchery operations (including the economic return to various fisheries to which releases from the hatchery contributes) and the opportunity costs of investing in hatchery operations and maintenance instead of in preservation and recovery measures devoted to habitat and fishery management.

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2.2c FMEPS, HGMPs, and The Public Process

The proposed rule states that "NMFS will make [new or amended FMEPs and HGMPs] available for public review and comment for a period of not less than 30 days" prior to approving such plans. The magnitude of the issues involved in both FMEPs and HGMPs, as evidenced by our discussion in the foregoing, makes it important that the processes of the development, revision, and evaluation of these plans and their implementation be transparent to the public. At a minimum this requires the opportunity for public comment prior to NMFS’s approval as provided for in the proposed rule.

However, such end-of-the-pipe review and comment is far from adequate and by itself will fail to secure meaningful public input and will fail to render the process(es) whereby such plans are developed and refined transparent to the public. The public must have a clear avenue to view and to participate in the development of nascent FMEPs and HGMPs and in the revision of existing ones. Only by bone fide front-of-the-pipe involvement, if only to witness the stages of development of such plans, can the public and its advocates be guaranteed the opportunity of providing substantive input that can shape the final plans in meaningful ways. The proposed rule contains no provision or assurance for making such meaningful public review a reality. This needs to be corrected.

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2.2d Re: Habitat Restoration Limits on the Take Prohibitions

In this section of the proposed rule, NMFS ostensibly appears concerned with avoiding the imposition of unnecessary administrative impediments to the undertaking of local-level on-the-ground habitat restoration projects intended to benefit salmon. Such projects are those "likely to contribute to conserving listed salmonids without significant risks…." NMFS reasons that "it is not necessary and advisable to impose take prohibitions on those activities when conducted in accordance with appropriate standards and guidelines." (Our emphasis.) Such standards and guidelines, it appears, are to be provided by "a state-approved watershed conservation plan with which NMFS concurs." Such a plan "will contain adequate safeguards such that no additional federal protections through imposition of take prohibitions on actions in accord with the plan is necessary…."

This reassuring language fails to provide the level of protection that would be secured by requiring state and local jurisdictions to perform the types of watershed planning necessary to secure Section 10 incidental take permits. The granting of such permits, under such conditions would provide NMFS with assurance that "appropriate standards and guidelines" for stream restoration activities are in place and will be enforced by state and local jurisdictions. This would place NMFS on firmer legal grounds for asserting that "no additional federal protections through imposition of take prohibitions" would be necessary or advisable.

NMFS's language yet again is meant to suggest that NMFS is acting reasonably by recognizing the exigencies which listing salmonids under the ESA poses for local and state entities while at the same time enforcing minimally essential protections for the conservation of the listed species. NMFS would have the public believe that failing to provide Section 9 take protection for Threatened species, while awaiting and "encouraging" state-approved watershed conservation plans and guidelines which, if subsequently acceptable to NMFS, would justify limiting the application of take prohibitions, suffices to secure protection of listed species from take under the Endangered Species Act. This is clearly false.

If such subsequent plans were determined adequate to justify limiting the application of take prohibitions, then arguably they would suffice for NMFS to grant the entity or entities in question a Section 10 incidental take permit. This, of course, could only be done after the plans had been developed and evaluated by NMFS! To suggest that equivalent protection is being afforded the listed species in the interim, by not imposing Section 9 prohibitions while watershed conservation plans embodying the "appropriate standards and guidelines" are being developed stretches the bounds of credulity.

NMFS proceeds to consider policy "[w]hile criteria and plans are being developed" during a two year window which NMFS proposes to provide for the development of such plans. NMFS implicitly distinguishes between "[m]ore complex restoration activities such as habitat construction projects or channel alterations" and some six categories of presumably less complex habitat restoration activities.

Complex activities "require project by project technical review at least until watershed planning is complete." In this, NMFS is surely correct. Yet even here NMFS ignores the principal issue that no take restrictions are clearly proposed to be in effect and hence NMFS’s legal ability to compel such review would appear to be non-existent! Absent a background wherein Section 9 take prohibitions are in effect, requirements such as this one are simply dead letters.

In lieu of legal leverage to compel project by project review, such "complex activities" will at best be reviewed and approved through existing state permitting policies. With respect to Washington State, the principal permitting authority for restoration activities that would qualify as "habitat construction projects" or would involve channel alterations lies with the Washington Department of Fish and Wildlife (WDFW). WDFW has the authority for enforcing the Washington Administrative Code rules for Hydraulic Project Approval (HPA) and for issuing HPA permits for construction activities taking place within the bankfull wetted channel or within the 100-year floodplain boundary of any stream in Washington State.

With respect to this authority, NMFS must believe that HPA permits issued by WDFW staff assure that appropriate standards are applied to permitted projects and activities. This is far from true. The process whereby HPA permits are issued by WDFW is fraught with significant problems and in need of major independent peer review. Many field staff with authority to issue permits lack the technical expertise and/or field experience for evaluating the potential impacts of projects and activities on salmonid habitats. In addition, the judgment of competent and conscientious field staff is frequently ignored or over-ruled by superiors desirous of accommodating private and municipal entities. There is no reason to believe that these conditions will not lead to the permitting of channel altering activities of questionable merit and intent under the guise of habitat restoration.

In the remainder of this section NMFS proposes to exempt six categories of less complex activities provided that they comply with broad guidelines that NMFS proceeds to list. NMFS fails to address issues regarding the reporting of such activities or the issuance of permits for such projects by state or local agencies. Even presumptively "minor" restoration activities, such as the placement of large woody debris in streams and riparian zone planting and fencing in Washington State require the issuance of HPA permits. The proposed rule would, therefore, place the listed salmonid populations and ESUs at risk from state permitting of questionable, poorly designed restoration activities as well as from lack of proper oversight and reporting of such activities.

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3.0 SUMMARY REMARKS

 
Washington Trout finds that the proposed rule broadly fails to provide the listed ESUs and their component populations the minimal protection due them under the ESA in view of the nature and extent of the factors that have caused their decline and that continue to confront them with risk of extinction within the reasonably foreseeable future. We find that global imposition of Section 9a take prohibitions, with attendant requirements for Section 10 permits for all activities that would reasonably threaten harm to individual populations of the listed ESUs is the most appropriate statutory response under extant circumstances.

Regardless of NMFS’s intentions in attempting to devise a different course through its 4(d) rule-making authority, we argue that it is clear that NMFS has failed to find a course that accomplishes NMFS’s primary and over-riding legal obligation to secure minimally adequate prospects of recovery for the listed ESUs. NMFS’s apparent desire to accommodate the comforts of governmental and private entities whose activities may continue to harm the listed species has lead it to advocate a course of rule-making that is arbitrary, capricious, and otherwise abusive of its discretionary authority under Section 4(d).

NMFS compounds these inadequacies by using and relying upon vague concepts and unclear, largely qualitative standards. Such lack of clarity deprives the public of any reasonable prospect of evaluating proposed programs and actions, and of determining whether NMFS is adequately discharging its responsibility. Moreover, as we have argued in detail in regard to FMEPs and HGMPs, this vagueness and lack of firm, biologically credible standards would result in positive harm to the listed ESUs.

NMFS’s real obligation regarding the listed ESUs should be patently clear: to prevent any further decline of each ESU and its component populations and to initiate their recovery. NMFS consistently attempts to confuse this obligation with the less substantial goal of "not appreciably reducing the likelihood of recovery." The two are fundamentally different. A clear focus on the former would not have resulted in the vague and contradictory content that pervades most of the substantive sections of the proposed rule. For these and related reasons, the proposed rule is inadequate to the monumental task which has occasioned its proposal. Preventing the further decline and initiating the recovery of the listed ESUs and their component populations cannot be accomplished without requiring – at the very minimum – greater protections than the species received
prior to listing. A background whereby activities that take listed species could be subject to Section 9 prohibitions is necessary in order to provide those greater protections to the seven listed ESUs and initiate their recovery.

4.0 ATTACHMENT INDEX

A. THE RUSTED SHIELD: Government’s Failure To Enforce – Or Obey – Our System Of Environmental Law Threatens The Recovery Of Puget Sound’s Wild Salmon, Daniel Jack Chasan. The Bullitt Foundation, March 2000.
B. SALMON HABITAT PROTECTION IN KING COUNTY IS FAILING, Washington Trout, 1999.
C. WASHINGTON DEPARTMENT OF FISH AND WILDLIFE’S HPA PROCESS FAILS FO PROTECT SALMON HABITAT, Washington Trout, 1999.
D. 1. EXTINCTION WILL BE GUARANTEED FOR OVER 100 POPULATIONS, Comments on the Proposed Rule Governing Take of Seven Threatened Evolutionarily Significant Units (ESUs) of West Coast Salmonids and draft report entitled "Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units," Washington Trout, February 2000.

2. A PERSPECTIVE: on Fish Population Management Elements that Must be Addressed in Order to Achieve the Successful Recovery of Naturally Spawning Puget Sound Chinook Salmon, Sam Wright. Washington Trout, 2000
E. INVENTORY OF FISH PASSAGE BARRIERS AT WDFW HATCHERIES, Mike Barber, Ron Whitney, Tom Burns. WDFW Lands and Restoration Services Program, Salmonid Screening, Habitat Enhancement and Restoration Division.
F. TOKUL CREEK HATCHERY CASE STUDY, Artificial Propagation and NMFS 4(d), Washington Trout, March 2000.

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