STEELHEAD SUMMIT POLICY ON THE ENDANGERED SPECIES ACT
A Factual Basis
The Endangered Species Act (ESA) is a Federal Law created to protect and recover
species of fish and wildlife that are in danger of extinction or may be in the not too
distant future. Responsibility for implementation and enforcement of the ESA for
steelhead and Pacific salmon in the United States rests with NOAA Fisheries (formerly
called the National Marine Fisheries Service).
For purposes of implementing the ESA, NOAA Fisheries has divided the native steelhead
stocks of the four states (California, Idaho, Oregon and Washington) they inhabit in the
lower 48 states into 15 geographically and evolutionarily contiguous groups of stocks,
called Evolutionarily Significant Units (ESU’s). As of January 2004, ten of the 15
steelhead ESU’s were listed under the ESA. Two of the ESU’s were listed as
Endangered, defined in the law as “in danger of extinction through all or a significant part
of its range” (Upper Columbia River and Southern California). Eight were listed as
Threatened, defined as “likely to become endangered in the foreseeable future” (Snake
River Basin, Middle Columbia River, Lower Columbia River, Upper Willamette River,
Northern California, Central California Coast, Central Valley California, and SouthCentral California Coast). One was a candidate for listing (Oregon Coast). Only four
were classified as healthy (Olympic Peninsula, Puget Sound, Southwest Washington, and
Klamath Mountains Province). Scientists, anglers, and others with substantial knowledge
of these fish understand that even the unlisted ESU’s do not come close to approaching
historic abundance levels.
Steelhead are gone from over 40% of their native range in the lower 48 states due to
habitat destruction and the construction of impassible dams and other barriers. In short
the overall status of steelhead is severely depressed compared to historical levels of
abundance. The status and ESA listing of Pacific salmon is similarly depressed.
Most of the ESA listings of steelhead have resulted from petitions to NOAA by citizen
sport fishing and environmental organizations, often followed by law suits against NOAA
by the same organizations. In 2002, NOAA withdrew all of its “critical habitat
designations” for listed steelhead, leaving no steelhead habitat so designated. This was
done of spite of the ESA’s requirement for the responsible agency to establish “Critical
Habitat Designations” to keep listed species from becoming extinct. Clearly, NOAA has
not been proactive in implementing the ESA due to political pressure and budgetary
constraints.
Most of the ten ESA listed steelhead populations have included only the wild steelhead in
the ESU, not hatchery steelhead. In most cases sport fishing is not allowed for steelhead
listed as Endangered, although occasional exceptions have been made, with catch and
release of wild fish when significant populations of hatchery fish are available for
harvest; e.g., in the Methow and Okanogan/Similkameen tributaries of the Endangered
Upper Columbia steelhead ESU. Sport fishing is generally allowed for steelhead listed as
Threatened, with catch and release of wild fish, harvest of hatchery fish, and usually with
gear restrictions such as single barbless hooks and/or artificial lures and flies only.
In the last couple of years a series of petitions and law suits has been brought against
NOAA Fisheries by the real estate development, timber, agriculture, and other industries,
and local governments, requesting delisting of most of the ESA listed steelhead and
Pacific salmon ESU’s due to the presence of substantial numbers of hatchery fish. These
actions were triggered by federal judge Michael Hogan’s decision invalidating NOAA’s
policy of listing only wild fish in an ESU comprised of both hatchery and wild fish, and
his decision to remove ESA listing protection from the Oregon Coastal coho. NOAA
Fisheries declined to appeal the Hogan decision, but a group of conservation
organizations did. However, that appeal was unsuccessful and Oregon Coastal coho are
no longer protected by the ESA.
An opposing petition was sent to NOAA Fisheries by Trout Unlimited and other sport
fishing and conservation organizations, arguing strongly that only wild fish should be
included in ESU’s for ESA listing purposes. This petition was later denied.
These opposing sets of petitions led to the NOAA decision to review and update the role
of hatchery fish in ESA listings. In early June, NOAA released a proposed hatchery
policy and its proposed status review and decisions on which species to list or not. As
expected, the hatchery proposal includes hatcheries that are within a genetic spectrum
relative to the wild populations in the ESU. NOAA then proposes to base listing
decisions on the viability of the entire ESU, including hatchery populations. When
applied, NOAA found that most hatchery populations increase the abundance of the ESU
but do not improve the actual viability of the species. Thus, NOAA proposes continuing
the listing of all species. However, there is significant concern that the proposed listings
would be extremely vulnerable to legal challenges and accelerated delistings based on the
hatchery populations. Furthermore, NOAA proposed merging rainbow trout and
steelhead into O. Mykiss ESUs and listing all of the O. Mykiss ESUs. The implications
of this are to review the risk to the ESU based on the health of both resident and
anadromous life histories. Furthermore, rainbow trout would be listed species, thus
triggering the consultation and critical habitat provisions of the ESA as well.
Despite the proposals, litigation continues. A group of Central Valley California
irrigators upped the ante on listing challenges by suing NOAA to de-list Threatened
Central Valley California steelhead based on two arguments: (1) the presence of good
numbers of hatchery steelhead; (2) the presence of significant numbers of resident
rainbow trout, which are the same species (Onchorynchus Mykiss) as steelhead, but much
different life history forms. In this case, the Federation of Fly Fishers, Trout Unlimited,
and several other organizations intervened on the side of the defendant, NOAA. NOAA
responded to the suit by initiating a review of the role of resident rainbow trout in
steelhead ESA listings. The judge ruled in favor of the defendant and the interveners,
based on inconclusive science on the relationship between the sea-run and resident forms
of rainbow trout. Therefore, the listing will stay in place for now. An almost identical
suit was filed later by agriculture, building and property rights interests requesting
delisting of the Lower Columbia, Middle Columbia, and Upper Willamette steelhead
ESU’s. Intervention by sport fishing and environmental organizations is in process on
this suit as well.
In another ESA based law suit, 16 conservation, sport fishing, and commercial fishing
organizations won the first round of their action against NOAA requesting rewrite and
strengthening of the Columbia/Snake River Biological Opinion (BiOp)/Recovery Plan for
eight ESA listed steelhead and salmon ESU’s in the Columbia Basin. In May 2003 the
judge ruled for the plaintiffs, sending the BiOp back to NOAA for redo by June 2004.
NOAA requested and was granted a five month delay until November 30, 2004 to
complete the rewrite. The content of the rewritten BiOp will be critically important to
Columbia system steelhead and salmon.
In addition to these legal actions, the Endangered Species Act has become an enormous
political football, as demonstrated at a recent endangered species conference, where one
speaker described the ESA as “broken,” and another said there is “nothing wrong with
the Endangered Species Act. It works.”
Policy Statement
The Endangered Species Act, although imperfect, is an effective regulatory tool for use in
protecting and recovering depressed runs of steelhead and Pacific salmon. ESA listing of
severely depressed stocks, as well as enforcement of its provisions, can reduce the
harmful impacts of man’s activities on these fish and result in habitat restoration. Sport
fishing and environmental organizations support the ESA as law and encourage its use in
wild fish protection efforts, even to the point of using the courts, if necessary, to ensure
that it is implemented, enforced, and obeyed.
The express intent of the ESA is to protect and recover species in the wild by restoring
the ecosystems upon which they depend. Thus, the ESA should afford protection only to
wild steelhead and Pacific salmon populations, except in those cases where there is no
viable wild population and hatchery fish are needed to avoid extinction, such as the case
with Snake River sockeye salmon.
The ESA provides for listing below the species or sub-species level, describing smaller
candidates for listing as “distinct population segments.” We support the designation of
wild steelhead and salmon ESU’s separate from hatchery fish in every group of stocks as
consistent with the meaning of “distinct population segments.” This separation is
justified by the many ways in which hatchery fish are inferior to wild fish, including
behavioral, physiological, ecological, reproductive, and evolutionary shortcomings.
The relationships between seagoing steelhead and resident rainbow trout (both species O.
Mykiss) in the same watershed are more complex than wild and hatchery steelhead.
Steelhead and resident rainbows have dramatically different life history forms. However,
there is evidence that seagoing and resident wild rainbows carry out limited spawning
interactions occasionally and that both the seagoing and the resident forms can be critical
to the long term health of the stocks in some watersheds. For instance, a catastrophic
natural or man-caused event (e.g., Mt. St. Helens eruption) could wipe out an entire
searun or resident population, but the surviving population could repopulate both the
searun and resident strains over time.
The science about steelhead/rainbow relationships is still emerging, with new studies in
process. Given the scientific uncertainty, the river-to-river variations in these
relationships, and the need to manage ESA listed species conservatively, NOAA is at
least acting prematurely in grouping steelhead and rainbows in the same ESU. More
likely, the agency is setting a course that will do enormous damage to the health of
steelhead stocks. As Kathryn Kostow of the Oregon Department of Fish and Wildlife
stated in her report on genetic analysis of the sea-run and resident forms in the Columbia
Basin: “However, it is uncertain that steelhead in these ESUs would persist into the future
without the protections of the ESA. The loss of the steelhead life history would represent
a significant, and possibly irreversible, change in the character of the ESUs. The
steelhead phenotype is distinctive from trout and both life histories are an important
component of the species.” Before even considering grouping steelhead and rainbows in
a single ESU, a detailed river-by river review of steelhead and rainbow genetics,
abundance, temporal and spatial distribution, life history variables, and spawning
interactions needs to be completed.
Meanwhile, the searun and resident strains must be designated as separate “distinct
population segments” and ESUs, each vitally important to the long term viability of the
species in the watershed if either strain is depressed. NOAA Fisheries should not deny
ESA protection for steelhead or resident populations on the basis of treating these two life
histories as a single population. The distinct life history differences between sea-run
steelhead and resident rainbows should override genetic similarities and spawning
interactions in ESU determinations.
For the reasons set forth above, we adopt the following policy positions:
(1) We oppose any attempt by NOAA Fisheries to de-list wild steelhead and Pacific
salmon ESU’s based on the presence of substantial numbers of their hatchery
counterparts.
(2) We oppose de-listing of wild steelhead ESU’s based on the presence of wild or
hatchery resident rainbow trout.
(3) We oppose amending the ESA in ways that would weaken protection of steelhead
habitat necessary to sustain and rebuild wild steelhead populations.
(4) We support designation of critical habitat for wild steelhead, and such
designations should include habitat above man-made barriers within the historic
range of steelhead if providing access to that habitat would provide a substantial
benefit.
(5) We support using the best available science for ESA decision-making, and
application of the precautionary principle embodied in the ESA to ensure that
wild steelhead populations are protected in the face of scientific uncertainty.
(6) We support development of recovery plans for all listed steelhead populations.
(7) We support scientifically supported restrictions on wild steelhead harvest
necessary to rebuild populations listed under the ESA, and an annual harvest
accounting of ESA listed steelhead by ESU, including distribution of that harvest
accounting to the public.
(8) We support funding for NOAA Fisheries to enable it to fully execute its
responsibilities under the Endangered Species Act.
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