Conservation Groups Settle Lawsuit With WDFW Over Lower Columbia River Hatcheries, Litigation Continues With NOAA, ODFW

A lawsuit contending that lower Columbia River hatcheries downstream of Bonneville Dam are a threat to wild salmon and steelhead listed under the federal Endangered Species Act was settled in part last week.

The lawsuit was filed in Western Washington U.S. District Court April 17 by the Wild Fish Conservancy and The Conservation Angler. Defendants are NOAA Fisheries, the Oregon and Washington departments of fish and wildlife and Oregon’s Clatsop County.

The conservation groups contended that the agencies continue to fund and operate hatcheries under the Mitchell Act and Select Area Fishery Enhancement (SAFE) programs while exceeding limits under the ESA designed to prevent extinction of imperiled wild salmon and steelhead.

The two groups settled Sept. 19 with the Washington Department of Fish and Wildlife, agreeing in a joint consent decree to 10 measures the fish and wildlife agency has agreed it will correct.

The groups will continue to litigate in court against NOAA Fisheries, ODFW, and Clatsop County to ensure that “our states’ iconic salmonid species receive the ESA protections they are afforded by law.”

“The settlement agreement is a favorable outcome for at-risk wild salmon and steelhead populations in the Columbia River. While we are encouraged by this positive development, we remain discouraged by our fishery management agencies’ recurring failure to comply with the ESA when managing Columbia River hatcheries,” said David Moskowitz, Executive Director of The Conservation Angler.

The agreement requires WDFW to take essential measures that will result in more responsible, legally permissible, and transparent management practices at the Mitchell Act hatcheries they operate, the conservation groups said in a Sept. 26 news release.

Among the requirements of the settlement are the termination of WDFW’s Deep River net pens coho program and the non-native Washougal steelhead program, as well as a reduction in the release of Chinook from the Kalama/Fallert program. The settlement also paves the way for Oregon and Washington to collaborate on advancing alternative commercial fishing methods with the goal of reducing hatchery straying and supporting the recovery of wild salmon and steelhead populations, the groups said.

“WDFW is pleased to resolve this litigation,” said Director Kelly Susewind. “This agreement allows us to focus on conserving and recovering our salmon, steelhead, adaptively managing our hatcheries, and providing sustainable fisheries.”

The complaint calls out Mitchell Act and SAFE hatchery operations downstream of Bonneville Dam, and funding by the Department of Commerce and NOAA Fisheries, the states of Oregon and Washington, and Clatsop County, for “chronic and ongoing violations of the federal Endangered Species Act” at lower river hatcheries that produce Chinook, coho and chum salmon, and steelhead.

The groups said these hatchery operations are failing to comply with the requirements of their program biological opinions, which are “designed to prevent the extinction of ESA-listed salmon and steelhead and to protect the ecosystems where fish spawn and rear.”

Furthermore, they said, these hatchery operations are failing to comply with vital limitations and safeguards required by the ESA and recognized by NOAA Fisheries as necessary to prevent the extinction of at-risk wild salmon and steelhead.

The Wild Fish Conservancy had previously litigated over these same Columbia River hatchery programs in 2016 to force NOAA Fisheries to comply with the ESA when funding and authorizing Mitchell Act hatcheries. That lawsuit contended that since a 1999 NOAA Fisheries consultation, eight salmon species protected under the ESA had been harmed by the federal agency’s hatchery programs, including the Lower Columbia River Chinook and coho salmon that the litigation was seeking to protect.

“We are disheartened that, nearly a decade later, the responsibility for enforcing the ESA continues to require public intervention, and that non-compliant hatchery programs have been allowed to perpetuate harm to wild salmon, steelhead, and Southern Resident killer whales threatened with extinction,” said Emma Helverson, Executive Director of Wild Fish Conservancy.

See CBB, August 5, 2016, Wild Fish Conservancy Seeks Injunction To Block Use Of Mitchell Act Funds For Basin Hatcheries, https://columbiabasinbulletin.org/wild-fish-conservancy-seeks-injunction-to-block-use-of-mitchell-act-funds-for-basin-hatcheries/

The 1938 Mitchell Act established many of the hatcheries in the Columbia River basin with the goal to mitigate the adverse effects to salmon and steelhead caused by the construction of dams, water diversions, logging, and pollution. Funding for Mitchell Act hatcheries has ranged between $15 and $22 million each year, which supports roughly one-third of all hatchery production in the Columbia basin.

According to the two conservation groups, the SAFE program was developed by the Northwest Power and Conservation Council in 1993 to enhance fisheries.

“The program (SAFE) was a well-intended attempt to concentrate hatchery fish releases and fisheries in an ‘off channel’ location away from wild salmon migration and spawning areas in the Columbia River,” the two conservation groups said in April.

However, they say, a 2023 study that evaluated the impact of these hatchery programs ($9 billion over 40 years in the Columbia River basin) showed no evidence of increased abundance of wild salmon and steelhead.

Specific and detailed terms of the settlement are:

— Deep River Net Pens Coho Salmon Program. WDFW shall terminate the Deep River Net Pens coho salmon program with releases in April 2025 of juvenile coho salmon from the 2023 brood year. Within one year, WDFW shall have decommissioned and removed from the river the Deep River Net Pens.

— Washougal River Steelhead Hatchery Program. Within ninety days, WDFW shall terminate the segregated winter steelhead hatchery program in the Washougal River basin and release into non-anadromous waters or remove any hatchery steelhead remaining in the facilities associated with that program. WDFW shall not collect broodstock or otherwise initiate an integrated steelhead hatchery program in the Washougal River basin unless and until it receives coverage under an Incidental Take Statement applicable to ESA-listed species associated with that program under the ESA. Until the terms of this Consent Decree expire, WDFW shall limit annual releases under any integrated steelhead hatchery program in the Washougal River basin to no more than 40,000 hatchery fish.

— Kalama River/Fallert Creek Chinook Salmon Hatchery Program. WDFW shall limit releases from the Kalama River/Fallert Creek Chinook salmon hatchery program in 2025 to 1.9 million hatchery fish. WDFW intends to evaluate pHOS data (number of hatchery fish found on spawning grounds) to determine whether that release number may be adjusted in future years consistent with the ESA.

— Weir Operations Plan. WDFW shall develop a Weir Operations Plan within 30 days that includes the information for any existing or planned weirs funded through the Mitchell Act that WDFW operates or plans to operate in the Lower Columbia River (below Bonneville Dam) as part of the agency’s efforts to reduce pHOS. The plan shall address general operations of the weir; criteria for assessing the efficacy of the weir in reducing pHOS and how that will be monitored; criteria for assessing the weir’s impacts on the productivity of the wild salmonid population(s) and how that will be monitored; and how operations will be adapted based on these ongoing assessments. The conservation groups have 14 days to respond and afterwards WDFW will have 60 days to finalize the plan and submit it to NOAA Fisheries for consideration in the ongoing ESA section 7 consultation on hatchery programs funded under the Mitchell Act.

— Compliance Review and Data Disclosure Program. Within 180 days WDFW shall develop and implement a Compliance Review and Data Disclosure Program that will consist of databases hosted on WDFW’s website that will provide information for each of the lower Columbia River Mitchell Act Hatchery Programs and SAFE Programs operated by WDFW.

— WDFW’s Gillnet License Buyback. WDFW shall send a letter to ODFW requesting that ODFW reserve any impacts calculated to result from Washington State’s voluntary buy-back program for non-tribal commercial gillnet fishing licenses. The impacts should be reserved for conservation through increased wild salmonid escapement and/or for mark selective fisheries capable of harvesting surplus hatchery-reared salmon where needed to meet federal genetic protection requirements for wild salmon populations in a manner consistent with state-tribal fishery management agreements, the settlement agreement says.

— Alternative Fishing Gear Permitting. WDFW shall send a letter to ODFW requesting that both agencies amend the December 22, 2023, memorandum regarding Columbia River Emerging Commercial Fishery Direction in order to adjust the cap on authorizations allowed for alternative gear.

— Tule Work Group Meeting Minutes and Notes. WDFW shall provide the Conservation Groups within seven days with copies of any agendas, meeting minutes, and materials distributed to attendees for meetings of the Tule Work Group.

— BiOp Compliance Meetings. Within sixty days of NOAA Fisheries issuance of a new BiOp on its funding of hatchery programs under the Mitchell Act, the Settling Parties shall meet with WDFW to identify what measures it intends to implement to comply with the new BiOps and the 2021 SAFE BiOp’s requirements.

— Recovery of Litigation Expenses. WDFW stipulates that the Conservation Groups are entitled to an award from WDFW of their reasonable litigation expenses, including costs and fees (including attorneys’ and retained litigation expert fees), incurred in pursuing their ESA claims against WDFW. The Settling Parties have agreed to $160,000.

The Sept. 19 consent decree is here: https://wildfishconservancy.org/wp-content/uploads/2024/09/064.1.proposed.consent.decree.pls_.and_.wdfw_.pdf

The April complaint is here: https://wildfishconservancy.org/wp-content/uploads/2024/04/001.0.complaint-5.pdf

For background, see:

— CBB, May 3, 2024, Lawsuit Says Lower Columbia River Hatcheries Violating ESA By Releasing Too Many Fish, Threatening Listed Wild Salmon, Steelhead, https://columbiabasinbulletin.org/lawsuit-says-lower-columbia-river-hatcheries-violating-esa-by-releasing-too-many-fish-threatening-listed-wild-salmon-steelhead/

— CBB, February 2, 2024, Hatcheries: Groups To Sue Over Lower Columbia Hatcheries’ Impacts On Wild Salmon; Noaa Seeks Comments On Expanding Hatcheries To Help Orcas, https://columbiabasinbulletin.org/hatcheries-groups-to-sue-over-lower-columbia-hatcheries-impacts-on-wild-salmon-noaa-seeks-comments-on-expanding-hatcheries-to-help-orcas/

— CBB, August 11, 2022, Federal Judge Says Noaa’s Approval Of Southeast Alaska Troll Salmon Fishery Fails To Protect Esa-Listed Salmon, Whales, https://columbiabasinbulletin.org/federal-judge-says-noaas-approval-of-southeast-alaska-troll-salmon-fishery-fails-to-protect-esa-listed-salmon-whales/

–CBB, Aug. 23, 2022, NOAA Says No Change Needed To Esa-Listing Status Of Interior Columbia River Basin Salmon/Steelhead; Two Populations Face High Extinction Risk https://columbiabasinbulletin.org/noaa-says-no-change-needed-to-esa-listing-status-of-interior-columbia-river-basin-salmon-steelhead-two-populations-face-high-extinction-risk/

— CBB, July 15, 2022, White House Issues Reports On Basin Salmon Recovery, Costs; ‘Business As Usual’ Not Restoring Esa-Listed Salmon, Steelhead, HTTPS://columbiabasinbulletin.org/WHITE-HOUSE-ISSUES-REPORTS-ON-BASIN-SALMON-RECOVERY-COSTS-BUSINESS-AS-USUAL-NOT-RESTORING-ESA-LISTED-SALMON-STEELHEAD/

–CBB, Oct. 21, 2021, Federal Judge Says Noaa Violated Esa When Approving Alaska Salmon Fishery; No Certainty New Hatcheries Will Mitigate Harvest, https://columbiabasinbulletin.org/federal-judge-says-noaa-violated-esa-when-approving-alaska-salmon-fishery-no-certainty-new-hatcheries-will-mitigate-harvest/

— CBB, October 14, 2021, Wild Fish Advocates File Lawsuit Challenging Washington Hatchery Reform Policy Changes, Increased Hatchery Salmon For Orcas, https://columbiabasinbulletin.org/wild-fish-advocates-file-lawsuit-challenging-washington-hatchery-reform-policy-changes-increased-hatchery-salmon-for-orcas/

— CBB, May 7, 2021, Nez Perce Study Shows Snake River Basin Salmon/Steelhead At Risk Of Extinction; Tribe Says Emergency Actions Needed, https://columbiabasinbulletin.org/white-house-issues-reports-on-basin-salmon-recovery-costs-business-as-usual-not-restoring-esa-listed-salmon-steelhead/

–See CBB, April 29, 2021, “NOAA Fisheries Conducting Status Review Of Endangered Southern Resident Killer Whales,” https://columbiabasinbulletin.org/noaa-fisheries-conducting-status-review-of-endangered-southern-resident-killer-whales/

— CBB, March 5, 2021, ESA-Listed Puget Sound Killer Whales Once Relied On Now Endangered Salmon For Prey; Produce More Hatchery Fish To Help 75 Remaining Southern Residents? https://columbiabasinbulletin.org/esa-listed-puget-sound-killer-whales-once-relied-on-now-endangered-salmon-for-prey-produce-more-hatchery-fish-to-help-75-remaining-southern-residents/

–CBB, Jan. 15, 2021, Washington State Salmon Recovery Report: Most Populations Not Making Progress, Some On Path To Extinction https://columbiabasinbulletin.org/washington-state-salmon-recovery-report-most-populations-not-making-progress-some-on-path-to-extinction/

— CBB, Dec. 17, 2020, Center For Biological Diversity Issues Intent To Sue Over Lack Of Final Rule For Expanded Critical Habitat For Killer Whales https://columbiabasinbulletin.org/center-for-biological-diversity-issues-intent-to-sue-over-lack-of-final-rule-for-expanded-critical-habitat-for-killer-whales/

–CBB, April 1, 2016, “Wild Fish Conservancy Files Lawsuit To Force Federal Consultation On Basin Mitchell Act Hatcheries” https://columbiabasinbulletin.org/436361.aspx

— CBB, Jan. 15, 2016, “Study: Chinook Salmon Make Up 80 Percent Of Diet For ESA-Listed Killer Whales In Pacific Northwest” https://columbiabasinbulletin.org/435857.aspx

—CBB, January 15, 2016, “Wild Fish Advocates File Notice Against Mitchell Act Hatcheries, 60 Million Smolts Annually,” https://columbiabasinbulletin.org/435862.aspx

— CBB, June 27, 2014, NOAA Report Details Threats To Southern Resident Killer Whales; Majority Of Diet Comes From Chinook https://columbiabasinbulletin.org/noaa-report-details-threats-to-southern-resident-killer-whales-majority-of-diet-comes-from-chinook/