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ESA Delisting

Tuesday, July 16, 2013 in Comments Off

Issue

Listing of salmon populations in the Columbia River and elsewhere has a complex and contentious history. The National Marine Fisheries Service (NMFS) has the administrative responsibility for overseeing the application of the Endangered Species Act (ESA) to anadromous salmon. Beginning in 1991, NMFS determined that Snake River sockeye qualified to be listed as “endangered” under the ESA. Subsequently, 12 additional salmon stocks were listed as either threatened or endangered.

NMFS also determined in the early 1990s that the appropriate unit for listing was the Evolutionarily Significant Unit (ESU), composed of variable numbers of individual salmon populations that were determined to share an evolutionary history that was more similar among those populations than with adjacent or other salmon populations. The tribes were critical of the ESU policy because it appeared to elevate concerns for the maintenance of reproductive isolation of individual salmon populations over the condition of the listed species as a whole in its environment. In 2000 NMFS published a technical paper clarifying viable salmonid population conditions in recovery of ESUs. And in 2005 NMFS further clarified the roles that hatcheries can play in listing and delisting salmon populations.

Delisting an ESU involves passing a two-part test. First, a specified list of populations in an ESU must achieve a biological status that no longer warrants the protections of the ESA. NMFS defines this status in terms of spawner abundance, productivity, distribution and diversity—referred to as the four Viable Salmonid Population (VSP) parameters. Second, NMFS must show that the factors that led to listing of the populations in the first place have been addressed.

In a July 21, 1998 letter, Department of Commerce Assistant Secretary Terry Garcia wrote to CRITFC about the relationship of the ESA and the tribes’ treaty fishing rights. In the letter, Mr. Garcia announced that “the recovery of salmon populations must achieve two goals: 1) the recovery and delisting of salmonids listed under the provisions of the ESA; 2) the restoration of salmonid populations, over time, to a level to provide sustainable harvest sufficient to allow for the meaningful exercise of tribal fishing rights.” The letter further discussed the trust responsibilities of the federal government to the tribes and recognized:

…[T]he importance of the federal government’s efforts to allocate the conservation burden for salmonids listed under the ESA in such a way that, among other things, it does not discriminate against tribal fishing rights and is implemented in a least restrictive manner. Accordingly, the tribes may reasonably expect, as a matter of policy, that tribal fishing rights will be given priority over the interests of other entities, federal and non-federal, that do not stand in a trust relationship with the United States.

Hypothesis and Needed Actions

Progress on rebuilding salmon populations is often held up by regulatory processes as much as by correcting or remediating for biological and environmental problems. Developing more efficient administrative systems will increase the effective use of available resources and faster rebuilding of salmon populations. The following actions will increase the likelihood of protecting the exercise of tribal treaty rights and delisting of salmon populations.

Ensure that all parties understand the tribes’ treaty rights and the need to fairly allocate the burden of conservation in a manner that is consistent with those rights and the federal government’s trust responsibilities to the tribes.
Implement the Secretarial Order 3206, which requires proper allocation of the conservation burden proportional to the causes of decline.
Identify specific actions that are reasonably certain to occur and produce anticipated biological benefits.
Support and implement the 2005 NMFS hatchery policy.
Plan and evaluate the use of hatchery technology within the context of all risks and impacts to salmon throughout their life cycle rather than as a single issue.
Establish monitoring and evaluation efforts sufficient to determine whether anticipated benefits are being achieved.
Complete and submit Hatchery and Genetic Management Plans (HGMPs) for each salmon population.
NMFS should reduce the time required to review and accept HGMPs to no more than nine months.

Expected Outcome

Implementing the above actions provides the best likelihood for the tribes to exercise their reserved fishing rights while also delisting populations under the ESA. This strategy will also make better use of available resources and provide the flexibility necessary to address local conditions and buffer against new challenges posed by climate change, toxics and invasive species.

Comments are closed.

ESA Timeline

1991/92: Federal government lists Snake River sockeye as an endangered species, others as threatened.

1992: First biological opinion by National Oceanic and Atmospheric Administration (NOAA) says dams will not jeopardize endangered or threatened fish; plan immediately challenged in court.

1994: U.S. District Judge Malcolm Marsh strikes down plan.

1995: New biological opinion says dams jeopardize salmon and steelhead; standards proposed for spill, flow, reservoir levels and barging juvenile fish downstream.

1996: Environmental, fishing groups and Oregon sue, saying jeopardy standard is not enough; Oregon argues for greater river flows.

1997: Marsh okays 1995 plan; ruling appealed.

1998: Upper Columbia steelhead listed as endangered; Snake River and lower Columbia steelhead listed as threatened.

1999: Appeals court upholds Marsh’s ruling and 1995 plan; six more Columbia Basin salmon and steelhead listed as endangered or threatened.

2000: With a nine-agency federal caucus, NOAA releases plan focused on hydropower, habitat, hatcheries and harvests for 10 years.

2001: National Wildlife Federation and fishing and conservation groups challenge 2000 plan; Oregon and four tribes join.

2003: Judge James A. Redden takes case; he rejects NOAA’s plan, saying it does not protect salmon harmed by dams.

2004: New NOAA plan adjusts spill, says dams do not threaten salmon survival.

2005: Redden overturns plan for violating the ESA and orders summer spill at three Snake dams and one Columbia dam.

2008: NOAA issues another biological opinion; Redden finds that actions slated for years 5-10 of the opinion were not reasonably certain to occur and the biological benefits estimated for some specific actions, e.g. the estuary improvements, were uncertain.

2008: Federal agencies, five tribes and two states sign separate 10-year agreements identifying specific fish and habitat projects—the Columbia Basin Fish Accords—funded by the Bonneville Power Administration.

2010: NOAA’s supplemental opinion incorporates 2008 plan; supporters and plaintiffs file briefs through February 2011.

2010-2013: A supplemental biological opinion, revised implementation plan and draft 2014 FCRPS Biological Opinion are prepared. Briefing continues on challenges to the plans.

—Thanks to The Oregonian