I would like to pick your respective brains regarding the sequence of events for what happens after a salmonid population is listed as threatened or endangered under the ESA with respect to creation of HGMP’s.

As I understand it if a population is listed there is a 60 day cooling off period before 4D rules are created and go through the federal registry and public input. Then after the 4D rules are formulated and in place the action agency (ODFW) running the hatchery program is to create and submit the required HGMP.

Question:
What is the timeframe that an action agency has to create the HGMP before they are considered out of compliance?

Question:
Can they be sued the day after the 4D rules are in place for not having a completed HGMP?

Question:
With respect to the Oregon Coastal Coho that are now not listed but are proposed to be, will NOAA have to create new 4D rules and how long will that take?

Question:
How does NOAA enforce the Creation of HGMPs?

Question;
Internet searches show that action agencies do not have to create and submit an HGMP for a hatchery program after a new listing until there is a change in the hatchery program operation, but if that were true and no changes were ever made then an HGMP would never have to be made? Correct?

Best regards

POS Clerk

I will take a shot at answering, although other folks will likely have different answers.

It would probably help you get an answer if you also provide some indication of why you want this information. That is, for what purpose do you intend to use it?

Even without that info, here goes:

In short, HGMP's (Hatchery Genetic Management Plans) are not required by the Endangered Species Act. HGMP's are a NMFS creation. They were developed as a way to help State/Federal/Tribal hatcheries comply with the ESA. But HGMP's are not required and cannot be enforced directly thru the ESA. NMFS can enforce compliance with the ESA (obviously) but they cannot force anyone to write an HGMP. Nobody can sue anyone for not having an HGMP. However, an agency can be sued for being out of compliance with the ESA. An HGMP is a convinent way of facilitating compliance with the ESA but I would suggest its not the only way.

That should answer questions 1, 2, and 4.

Question 3 asks how long it will take to do a 4(d) rule. Only a NMFS person will be able to answer that one for NMFS. However, since I don't work for NMFS, I will guess that it depends on overall workload, staff time, complexity of the rule, other competing work priorities, public interest in the rule, etc. If someone wants it badly enough, it could get done quickly. Otherwise, it's one of many important things that NMFS needs to get done.

Question 5 gets to the issue of when does an action agency need to reintiate consultation (Section 7/10) in the event of a new listing. There is great debate on that point for the reason you've given. Some agencies say they don't have to consult on new listings until there is a change in project operations. The ESA agencies (NMFS/FWS) believe reintiation occurs whenever there is a new listing. Seems to me that a good compromise would be that reinitation of consultation should occur when 1) there is a new ESA listing and 2) the on-going action "may affect" the newly listed species. There should be no need to reinitiate consultation if there is no effect on the newly listed species. But then again, if there is agreement on the "no effect" determination, consultation could be completed rather quickly.

As I stated, I don't work for NMFS so please don't get the impression that this is their position on these issues.

An HGMP is essentially a permit application. The hatchery proponent (WDFW, ODFW, Tribe, private entity, etc) is applying for a permit to harm listed species, or "take authorization" in fed-speak. Under the existing 4d Rule, there are 13 areas of activity where agencies or other entities can apply for take authorization. Hatchery production is one of the areas. The rest include harvest, forestry, development, road building, etc.

The 4d Rule recognizes that lots of things are killing or hurting listed salmon and steelhead, but many of them are fairly necessary to modern life. So it's looking for ways to allow those activiteis where possible, but regulate and possibly improve them.

Under the ESA, any activity that harms listed species is technically illegal. Applying for take authorization is like getting a variance. If your permit-application qualifies, you get the variance, probably with some conditioins attached, and you're allowed to carry on whatever activity you applied for. If you don't apply, or don't get the variance, then you're techincally in violation of the law for harming species, and you can be punished and/or sued. What you have to remember is that it isn't necessarily illegal to harm listed species; it's illegal to harm listed species without permission. You can't be sued or punished for not filing an HGMP, but you can be sued for harming listed fish without an HGMP.

In the case of an HGMP, you get the permission by describing the particular hatchery program, including all the benefits to fishing, treaty rights, etc, and all the costs, economic and ecological. If the costs are high relative to the benefits, you describe measures you'll take to try and improve the performance. NOAA then weighs the package and if warranted, grants the take authorization; the public gets to offer input.
Getting an HGMP approved wouldn't necessarily mean that the program didn't hurt wild fish. I might mean that it didn't hurt very much, or that the benefits were worth it, or that the proposed plan to reduce the harm appeared credible. If hatcheries didn't hurt listed fish at all, they wouldn't need HGMPs.

Nobody can make you get the variance, but if then you're activity harms a listed fish, you'll be in trouble, or at least exposed to trouble. You're exposed to trouble as soon as the 4d Rule takes effect, so to be perfectly safe, you'd want to be permited up by then. Of course there are other ways to get take authorization for hatcheries without getting an HGMP (NOAA claims its the most convenient way). Or a hatchery could claim/hope it isn't harming any listed fish and take its chances.

I think NOAA has approved about a dozen HGMPs out of literally hundreds of hatchery programs that need them. The newest existing 4d Rules are like four years old. So technically all those hundreds of hatcheries have been out of compliance with the ESA for four years, not for failing to file HGMPs, but for harming listed fish without a permit. NOAA could fine them, or maybe even force them to close, or they could be sued by virtually any citizen or organization.

So far just about none of that has happened, so the answer to your question about how long agencies can go without filing seems to be anyone's guess. Washington Trout did sue WDFW for unauthorized take of PS chinook from WDFW hatchery operations when the HGMPs were two years overdue. We settled that case for a committment from WDFW to submit all its HGMPs by a specific deadline, and an expanded pubic-input opportunity. WT also recieved $50,000 to recover its litigation expenses, including legal fees. Since the settlement, all PS HGMPs have been submitted; half fo the Columbia River HGMPs are available for public comment now and will be submitted before the end of the year, and the other half will be submitted within a year after that. Not exactly lightning fast action, but better than what we had before, which was no action. To its credit, WDFW made the first Columbia River package of HGMPs available for public comment two months ahead of its deadline.

(None of the HGMPs have yet been approved by NOAA, so most WDFW hatcheries continue to operate without an ESA permit.)


Ramon Vanden Brulle
Washington Trout

POS Clerk,

Thanks to Coho and Ramon for their thorough response to your questions. I think some context might help in understanding your question regarding time frames. So many species ESUs were listed in 1998 and 1999, and so many human activities affect the listed species that NMFS and all the agencies required to consult under the ESA were over-whelmed by the sheer magnitude of the task. It certainly exceeded anything ever contemplated by the original ESA legislation. As a result, the timeframes established by law were ignored, not so much by intent, as by the fact that there was far more compliance work required than could possibly be performed within the allowable time. NMFS and everyone else has been playing catch up for about four years. Most of the out-of-compliance things I'm familiar with should be caught up within the next year.

As you know, we're very litigious in the U.S., and anyone can sue almost anyone else for just about anything. But getting a case to stick can be another matter. Making a case for ESA non-compliance these past four years usually required the plaintif to demonstrate a lack of effort, or even a lack of intent, to comply. Many required consultations hadn't occurred, but they were sort of lined up in a que, demonstrating the intent to comply just as soon as humanly possible. I think it would have been difficult to successfully sue a party who was trying to comply, but was waiting in line for their project to come up. Just the same, I did see a fair amount of re-prioritizing of projects, as managers tried to adjust which consultations were most important to complete first.

Sincerely,

Salmo g.

POS Clerk -
Looks like the rest of the gang has the issue pretty well covered.

I would only add that as referred to above the HGMPs are tool to help with the evaluation of potential "takes". It is something that has been "invented" as the process moves along. Early on both the format and content of the document was not clearly defined added to general confusion in the submittal process - should not be an excuse for delays but makes those delays understandable (at least for some).

As an aside on continual frustrate for myself is that committents and modifications in both hatvheries and harvest are being made and progress has been made in reducing impacts on ESA listed salmon for those Hs are real. However in the habitat arena one would be hard press to shown similar progress. The pressure continues to be placed on the fishers and I would ask when is the rest of society step up.

Tight lines
S malma

Pos, you asked the question with reference to putting Oregon Coast coho on the endangered species list. Spawner abundance for these fish is at 50 year highs the last two years. This fall and winter, it looks like another year in the fifty year high range based on the predominance of non clipped coho in the ocean and the obvious high numbers of coho in most Oregon coastal bays. It will be known soon. If this year comes in as expected, the last three coho returns will all be higher than any other year in the last fifty. The three strong years will constitute the entire resource given coho are a three year fish. There will be over 200,000 each year and they will be strong in rivers from the Nehalem to the Coquille.

There is a good chance that NOAA will choose not to put this group on the ESA list. Biologically, these fish are healthy enough that they do not qualify.

Second, hatchery coho smolt releases on the Oregon Coast have been reduced from over 5 million to less than one million. This seems like a very aggressive approach to reduce any possible negative impacts on wild fish. Its not a gimic, but a straight forward action that is almost certain to sharply reduce hatchery impacts if there are any. Given the big reduction in hatchery coho, this does not seem like the place to start suing people. There are better places to sue over hatchery fish, and if you want to sue somebody over Oregon Coast coho, did you ever think timber or ag might be a better target? It seems like with your question on HGMP's your searching for a technicality to be obstructionist rather than using the ESA and legal system to fix an actual problem.

Smalma is right on. Harvest is even more heavily regulated than it used to be, huge steps are being taken to lessen hatchery management impacts on naturally produced populations and increases in run size of many depressed populations have been evident in recent years.

But if we do not make proportionate strides in habitat improvement we are doomed to repeat the down-cycles of the 80's and 90's. There are examples out there where we can point to and say "we need to do some of that where I live" when it comes to habitat. But there are too many local jurisdictions that do not want to alter their codes and ordinacces to protect fish and wildlife habitat in fear that some unrecoverable economic downturn will result.

There are no easy answers. But there are opportunities for county, city and small town policy people to step up to the plate and demonstrate some real leadership in the habitat protection and imporovement arena. There are actually some of these folks doing the job. But many, many more need to get on the bandwagon.