WDFW, Orgs Settle Columbia Hatchery Lawsuit

The Washington Department of Fish and Wildlife and two litigious environmental groups appear to have reached a settlement on a federal lawsuit over alleged Endangered Species Act violations related to hatchery salmon on the Lower Columbia.

According to court documents, WDFW will reduce fall Chinook smolt releases into the Kalama River for 2025, end and mothball the Deep River netpens that produce coho for Lower Columbia commercial fisheries, and terminate a hatchery winter steelhead program on the Washougal River.

But the agency plans to mitigate all that with new programs.

WDFW said it will seek permission from the National Marine Fisheries Service to replace the steelhead – which came from a nearby Oregon hatchery as a bridge stock after Chambers Creek releases were ended there last decade – with native broodstock. Under the settlement, no more than 40,000 smolts could be released into the Clark and Skamania Counties river for five years. The current segregated program releases 85,000; the 2021-22 season saw a harvest of 76 in the system.

And the state will also ask NMFS to approve releasing additional Chinook and coho at alternative locations to compensate for the reduced production required by the settlement. According to Jim Scott, a special assistant in WDFW’s Director’s Office, the agency is proposing new conservation hatchery programs on the Grays River and Abernethy Creek that would release 347,000 and 113,000 fall Chinook, respectively, and is coordinating with ODFW and Columbia River tribes on increasing coho releases in Youngs Bay near Astoria and Ringold Springs near Tri-Cities.

The consent decree between WDFW and its officials and Wild Fish Conservancy of Duvall and The Conservation Angler of Portland was announced late last week.

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

After threatening the lawsuit earlier this year, WFC and TCA filed it in April in US District Court for Western Washington in Tacoma against not only WDFW but ODFW, NMFS and Clatsop County as well.

WFC and TCA argued that Mitchell Act and Select Area Fisheries Enhancement hatcheries funded or run by the feds, states and county caused a variety of takes of listed Chinook, coho and other species, and that the federal biological opinions authorizing the programs weren’t being fully complied with.

Both ODFW and NMFS recently filed motions to dismiss the case against themselves or have the presiding judge issue a stay of the case.

In its motion, NMFS noted that it had already begun consultations about Mitchell Act programs in summer 2023 before the lawsuit and in the meanwhile, out of an abundance of caution was withholding disbursement of the program’s funding, which is provided by Congress as mitigation for the Columbia hydropower system, until it issued a new biological opinion, which is expected late this year.

In noting that the suit appeared to be part of a long-running “pattern” by the plaintiffs of filing ahead of the conclusion of administrative processes, NMFS said that one claim against it had already been dropped for lack of standing and the rest would soon be rendered moot by the new biop. WFC is infamous for its low-hanging-fruit lawsuits.

As for the settlement with WDFW, it requires the agency to share its plans for operating weirs as well as permits and reports around Mitchell Act and SAFE operations with WFC and TCA.

In a potentially very touchy requirement, it directs WDFW to request fellow Columbia salmon managers at ODFW to reserve allowable commercial fishing impacts on ESA-listed salmonids from the Washington legislature’s voluntary gillnet license buyback program for efforts to increase wild spawner numbers and/or mark-selective fisheries to remove excess hatchery fish. Last fall, when WDFW tried that tack, ODFW balked and held a commercial fishery on its side of the big river.

The settlement also requires reducing fall Chinook smolt releases into the Kalama next year to 1.9 million from around 2.6 million roughly a 27 percent decrease. The river below the hatchery produced a harvest of 1,038 fin-clipped fall kings in 2021.

And it provides WDFW coverage against further WFC and TCA lawsuits over alleged ESA violations that occur before the end of the year or for hatchery fish in Lower Columbia tributaries through December 31, 2027.

Ending the current Washougal winter steelhead program follows on a 2017 WFC lawsuit over Mitchell Act hatcheries that was ultimately withdrawn but led to the phasing out of out-of-basin/Chambers Creek stock winter steelhead in the Lower Columbia through a new NMFS biop. Those fish were replaced with winter steelhead from the Eagle Creek hatchery on Oregon’s Clackamas River. Last week’s agreement calls for Washougal smolts being reared for future release to be let loose in water bodies not connected to the ocean within 90 days, so after this winter’s return there could be a very long gap until the next run, given how long it takes to get hatchery genetic management plans written and approved.

As part of the settlement, WDFW must also pay Wild Fish Conservancy and The Conservation Angler a total of $160,000 for litigation expenses.

It’s the second lawsuit settlement between the parties in a 15-month period. In June 2023, WDFW and WFC resolved a lawsuit that grew out of a new hatchery summer steelhead program on the Skykomish River to involve dozens of important salmon and steelhead production programs up and down the I-5 corridor. The state is paying the organization to snorkel survey two rivers for a period of four years in exchange for a promise not to sue over certain hatchery programs.