Bay wolf,

The BIA has next to nothing to do with treaty tribal fishery management as a general rule. Until it serves tribal interests, which in the case of ESA approvals, it coincidentally does. It's not so much a matter of "fast tracking" or "slow tracking," but basic attributes of permitting processes under the ESA. Section 7 consultations - that can result in a permit approval by NMFS - are between federal agencies. WDFW is not a federal agency. Treaty tribes are not federal agencies. So neither can consult with NMFS under Section 7. However, the BIA is a federal agency, so the tribes bundle their Puget Sound fishing plans in a BIA planning document and have the BIA as a figurehead do the consultation with NMFS. Section 7 consultations are quite routine, and by law must be completed within 135 days (although many of the complex consultations take 2 years or longer despite the legal requirement). And many Section 7 consultations are completed much faster than 135 days, and since NMFS participates in NOF, they are aware of the fish abundance forecasts and the proposed fisheries and can process the BIA consultation quickly under the rules of Section 7.

WDFW has no pathway to use Section 7 unless the state fishery plans are attached to the treaty tribes' plans and submitted together to NMFS under the BIA consultation. And this is how and why co-management breaks down. Co-management can only work when both parties share roughly equal power. Under the current permitting process the tribes possess 100% of the power, so they have no incentive to accommodate WDFW interests other than basic allocation sharing under US v WA.

I think WDFW's only recourse is to persue an independent permit under Section 10 of the ESA, known as a "Conservation Plan." Section 10 consultations are between the federal agencies, either USFWS or NMFS, and a non-federal party, either private like a person, corporation, or a state agency like WDFW. For example, WDNR has a Section 10 Conservation Plan known as the "Forests and Fish" plan for management of state timber lands to protect ESA-listed species. WDFW could develop a Conservation Plan for Puget Sound marine and freshwater fisheries, but it would be a general multi-year plan, missing the specific numbers of fish of each ESA stock, which would have to be supplemented on an annual basis for NMFS review and approval. NMFS doesn't want WDFW to do this because the present system of the co-managers using the BIA consultation is easier for NMFS to process. However the current process is obviously broken, and it isn't WDFW's job to make NMFS' job easier.

It will take a lot of pushing and shoving for WDFW to go the Section 10 route, but it is doable if they have the spine to work for their non-treaty constituents (98%) and not just the treaty constituents (2%). It would take a couple years to complete that Section 10 Conservation Plan, and it would be up to NMFS to reconcile the disparities between the tribal and state annual plans, something that NMFS doesn't want to have to do. But under the rules of problem ownership . . . NMFS would get to explain to a federal judge why WDFW should be forced to use a planning system in which it has no negotiating power even though US v WA is clear about equal sharing.

Every day that WDFW delays in developing its own ESA permit it is hurting the 98% of constituents who pay the taxes and license fees that keep the doors open and the lights on at WDFW . . . and the paychecks coming regularly.