Settlement In Puget Sound Steelhead Lawsuit Reached

UPDATED WITH ADDITIONAL QUOTES AND A WDFW PRESS RELEASE

Hatchery early winter steelhead smolts will be released into the Skykomish River this spring and next, but they will end for 12 years on the Skagit, according to papers filed in U.S. District Court today.

A settlement between the Washington Department of Fish & Wildlife, which was sued over its production of Chambers Creek early winter steelhead without a federal permit by the Wild Fish Conservancy, says that the state agency can also continue to release the fish into the North Fork Nooksack, Green, North Fork Stillaguamish, Snoqualmie and Dungeness Rivers once it secures permits from the National Marine Fisheries Service for those programs.

That’s unlikely to occur over the coming few weeks, and means that those rivers will largely be bereft of hatchery winter steelhead during the 2015-16 season, save for a small percentage of two-salts, fish that decided to stay in the ocean an extra year instead of return this past winter with the rest of their year-class.

The papers, signed by WFC’s director Kurt Beardslee today and WDFW director Phil Anderson yesterday, also say that a native broodstock program will be studied on the mainstem Skagit and its tribs other than the Sauk.

In negotiations before it sued the state, WFC had been trying to get WDFW to halt winter steelhead releases in the Snoqualmie and Nooksack as well as the Skagit for a dozen years, according to a late March letter from Michael Grossman at the state Attorney General’s office.

Both parties agreed on the concept of gene banks for native fish, but the Snoqualmie is a much more compromised system than the Skagit, which has pretty good habitat.

The settlement documents indicate that the Skykomish may receive more than the 180,000 smolts that were otherwise going to be released into it in the coming weeks and at this time next year, with a permit from NMFS.

Jim Scott, state Fish Program manager, says that being able to continue releases into the Sky, a longtime favorite for steelheaders, was one of two key points for WDFW in the agreement.

“The big thing for us is, they won’t sue us for 2 1/2 years over our other programs,” he says, pointing to Puget Sound Chinook, an “immensely” important hatchery fishery for sport and tribal fishermen. “We were very concerned that was the next step for them.”

He said that WDFW was “disappointed” it couldn’t send out this spring’s full compliment of smolts, but basically WFC had the state by the short hairs over its lack of federally approved HGMPs, or hatchery genetic management plans, for the Chambers Creek steelhead program, its Puget Sound Chinook and coho programs, and its Skamania summer steelhead program in the Sky and Stilly.

“The bottom line is, we were in a very difficult legal position. We’d said we were not going to release early winter steelhead without an agreement with WFC or permit from NMFS. The settlement is an improvement over what we would have had,” Scott says.

“I think we’re in a much better spot than if we’d gone ahead with litigation,” confirmed Anderson.

He acknowledged that WDFW is out of compliance with the Endangered Species Act, but believes that changes in the state’s hatchery program in response to recent science mean that production steelhead are not harming or impeding the recovery of listed salmonids.

When NMFS does get around to approving Chambers programs for the Nooksack, Stillaguamish, Snohomish, Green and Dungeness systems, the number of early winter smolts annually released will drop to 700,000, roughly 35 to 40 percent of what it was a decade ago and before Puget Sound wild steelhead were listed as threatened under ESA.

WDFW has also eliminated releases in tribs where it doesn’t have the facilities to collect returning adults, rivers like the Tolt, Sultan and other smaller streams, and it has tightened up fisheries to protect the natives.

“I’m going to be all over NMFS to aggressively complete permitting the programs. We can’t find ourselves in the same position in two and a half years from now,” Scott vows.

WDFW began turning in HGMPs in 2005, but in an November 2012 letter, the feds admitted to falling down on part of the process.

“We need to keep our foot on the gas to get them done and reviewed in a timely way and get those permits,” says Anderson.

In a separate development, Scott says that NMFS has given tentative support for the concept of a Skagit-specific management plan that may allow fisheries on the system. Formerly it was open as late as the end of this month for catching and releasing wild steelhead, but has been closed in late winter and early spring in recent seasons as WDFW has pared back fisheries to protect native stocks.

For his part, Anderson says he’s eager to move on an integrated broodstock program at Marblemount hatchery on the Cascade, a tributary of the Skagit 80 miles above saltwater.

A spokesman for the Upper Skagit Tribe told The Seattle Times‘ that the tribe was analyzing the settlement for its impact on them, but said they “felt the settlement (made by state Fish and Wildlife) was premature if not opportunistic.”

“We’re unhappy on a whole lot of levels,” the tribe’s Scott Schuyler told Northwest Sportsman, adding that the settlement “stinks.”

He reserved his anger for the Wild Fish Conservancy.

“There was never any attempt by that group to reach out to us so we could hear their concerns or to listen to ours,” he says. “The blame here lies with the conservation group. The HGMPs have been completed. They could have let NOAA make the call and then sued then. What are they going to do next?”

Noting that they’ve often worked with sport angling groups, Schuyler says the Upper Skagits “have always been a steelhead fishing tribe,” and says it’s been a “never-ending battle for my tribe to maintain the integrity of the hatchery program over the years.”

Frank Urabeck, active in sportfishing affairs, told the Times‘ Mark Yuasa that “the sport fishing community felt it was wrong to cut a deal, and we’re very upset. If the state had went before a judge we felt they would’ve cut them some slack and allowed Fisheries to release all 900,000 in the rivers.”

The Northwest Sportfishing Industry Association blasted the state and feds for not completing and approving the HGMPs, which invite “these divisive and bitter lawsuits and endangering an entire industry.”

“We are deeply disturbed that a failure to complete and approve the HGMPs allowed this small success for an avowed anti-hatchery organization. NSIA leadership, Scott Weedman, Carl Burke and Liz Hamilton will work with legislative champions, WDFW and the Tribes to restore these critical Puget Sound steelhead fisheries,” the organization vowed.

The resolution is being discussed on Piscatorialpursuits.com, Ifish.net and Washingtonflyfishing.com.

As for the smolts that won’t be released into rivers this year, Scott points to his agency’s strong push towards improving lake fishing in Pugetropolis.

“This is an opportunity to really invest in our trout program. We’re going to see what sort of interest we can generate this fall and next spring. We’re going to hold ‘em and grow ‘em so we can have good fisheries,” he says.

As part of the settlement, WFC will get at least 14 days’ head’s up from WDFW before it releases smolts into lakes for the next two and a half years.

Meanwhile, members of WFC undoubtedly will be paying for drinks at The Barking Frog over in Woodinville tonight as they celebrate their “victory” and await a handsome $45,000 check from WDFW for lawyers fees and to buy even shinier rose-colored glasses. The group believes that somehow native steelhead will recover if hatchery fish are removed, never mind the cumulative effect of 150 years of massive habitat alterations, let alone two decades without clipped fish in the Nisqually failing to do anything for its wild run.

“I don’t think the fish win,” says Anderson. “I believe our current practices are sound.”

BELOW HERE IS THE PRESS RELEASE FROM THE WASHINGTON DEPARTMENT OF FISH AND WILDLIFE

OLYMPIA – The Washington Department of Fish and Wildlife (WDFW) announced today it has reached an agreement with the Wild Fish Conservancy that will stop litigation against the department over its Puget Sound hatchery programs for 2½ years and permit the release of hatchery steelhead this spring into the Skykomish River.

No early winter steelhead will be released into other Puget Sound rivers in 2014.

The agreement is reflected in a federal court consent decree signed by WDFW Director Phil Anderson and Conservancy Executive Director Kurt Beardslee. The decree is designed to settle a lawsuit filed by the Conservancy last month in U.S. District Court in Seattle.

In its March 31 complaint, the Duvall-based non-profit group claimed the department’s Puget Sound hatchery steelhead programs violate the U.S. Endangered Species Act (ESA) by impairing the recovery of wild steelhead, salmon, and bull trout. All three species are listed as “threatened” under the ESA.

While acknowledging that certain hatchery practices may pose risks to wild fish productivity and recovery, WDFW officials denied the Conservancy’s claim and said the department has taken numerous steps based on current science to ensure its hatchery operations protect wild steelhead and other listed fish species.

The department’s Hatchery Genetic Management Plans (HGMPs) are designed to ensure that all steelhead hatcheries support wild fish recovery, but those plans are still under review by the National Marine Fisheries Service (NMFS).

“While I am disappointed the agreement does not allow for the release of more of the early winter hatchery steelhead we have on hand into Puget Sound rivers, I am gratified that we were able to reach agreement to release fish from our Skykomish hatchery in 2014 and support a popular recreational fishery,” Anderson said.

He added that the most important element of the agreement is the 2½-year suspension of lawsuits initiated by the Conservancy over the department’s Puget Sound hatchery programs. The suspension will allow the department to work with tribal fishery managers to resubmit HGMPs for other species raised in Puget Sound hatcheries for NMFS’ review and approval.

The federal court agreement includes the following provisions:

 ·         WDFW may release up to 180,000 hatchery steelhead in 2014 and again in 2015 into the Skykomish River, which flows into the Snohomish River near Monroe.

·         The Conservancy will not sue WDFW over its Puget Sound hatchery programs during the next 2 ½ years, or until NMFS approves those programs, whichever comes first.

·         WDFW will refrain from planting early winter (Chambers Creek) hatchery steelhead into most rivers in the Puget Sound region until NMFS completes its review.

·         A 12-year research program will be established in the Skagit River, during which no early winter steelhead will be released into the watershed.  In cooperation with the Conservancy, WDFW will work with tribes to evaluate and potentially implement a steelhead hatchery program in the Skagit River using native steelhead.

·         The department may release hatchery steelhead into other rivers around Puget Sound when NMFS approves the department’s HGMPs. This provision will not apply to the Skagit River watershed, which will not receive early winter hatchery steelhead releases during the 12-year study period.

·         Early winter steelhead from WDFW hatcheries that cannot be released into Puget Sound-area rivers will be released into inland waters that have no connection to Puget Sound. The department will give the Conservancy 14 days’ advance notice of those releases.

·         WDFW will pay the Conservancy $45,000 for litigation expenses.

Jim Scott, who heads the WDFW Fish Program, said that until the Conservancy filed the lawsuit, the department had planned to release about 900,000 juvenile steelhead this spring into several rivers that flow into Puget Sound. The settlement means that hatchery steelhead will continue to be released into the Skykomish, while the remaining steelhead will be used to enhance the state’s inland trout fishing programs, he said.

When the lawsuit was filed, WDFW officials said the department was vulnerable to litigation because its hatchery steelhead operations had not been approved by NMFS following the ESA listing of Puget Sound steelhead in 2007. Scott said WDFW worked with tribes to revise and update its HGMPs for all Puget Sound steelhead hatcheries, and resubmitted them to NMFS earlier this year.

With the litigation settled, Scott said the department will work with tribal and federal officials on an aggressive schedule to complete the NMFS review.