Watching Our Water Ways

When I heard that U.S. District Judge James Redden had, for the third time, rejected a biological opinion designed to protect Columbia River salmon from extinction, my mind leaped to this ongoing question: Will this decision move us closer or further away from removing dams from the Snake River?

After reading Redden’s opinion (PDF, 1.1 mb), I’m not sure. But I can understand why various sides of the debate must be feeling a mixture of hope and frustration from a legal battle that has continued for more than 10 years.

Redden was clear that NOAA Fisheries (National Marine Fisheries Service) could not conclude that salmon are on their way to recovery by relying on undetermined and unplanned habitat improvements proposed from 2013 to 2018 — not so very far in the future.

Quoting from his own opinions upheld by higher courts, Redden wrote in a fairly straight-forward way:

“The ESA (Endangered Species Act) prohibits NOAA Fisheries from relying on uncertain and speculative actions that are not ‘reasonably certain to occur.’ Mitigation measures may be relied upon only where they involve ‘specific and binding plans’ and ‘a clear, definite commitment of resources to implement those measures …’

“Mitigation measures supporting a biological opinion’s no-jeopardy conclusion must be ‘reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and, most important, they must be address the threats to the species in a way that satisfies the jeopardy and adverse-modification standards.

“Here, NOAA Fisheries improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified….

“It is one thing to identify a list of actions, or combination of actions through adaptive management to reflect changed circumstances. It is another to simply promise to figure it all out in the future….

“Coupled with the significant uncertainty surrounding the reliability of NOAA Fisheries habitat methodologies, the evidence that habitat actions are falling behind schedule, and that benefits are not accruing as promised, NOAA Fisheries’ approach to these issues is neither cautious nor rational.”

In a footnote, Redden said he is troubled that the agencies have been unable to come up with numerical predictions for salmon survival based on the habitat improvements proposed.

Redden said he would keep the biological opinion in place, flawed as it is, to ensure that NOAA Fisheries will “get out of the courtroom and get to work for the next two and a half years.”

By 2014, Redden wants a new biological opinion that thoroughly discusses the mitigation efforts but also addresses “more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications….

“As a practical matter,” he notes, “it may be difficult for federal defendants to develop a long-term biological opinion that relies only on mitigation measures that are reasonably certain to occur.”

That last sentence about the difficulty of relying on mitigation measures keeps the door open to a future court order involving dam removal — but Redden clearly understands that he cannot replace a biological opinion with a legal ruling.

Will Stelle, regional director of NOAA Fisheries put a positive spin on the ruling. He told Scott Learn of The Oregonian that adding more detail to the biological opinion should be enough satisfy the judge.

“He ordered us to tighten up on the habitat program after 2013, and that’s fine,” Stelle was quoted as saying. “We were intending to do it anyway.”

Environmental and fishing groups celebrated the judge’s ruling, as they explained in a joint news release (Scribd). The following comment is from Zeke Grader, executive director of Pacific Coast Federation of Fishermen’s Associations:

“Now is the time for the Obama Administration to walk the talk on real salmon solutions. As this ruling highlights, the federal government has spent nearly 20 years spending enormous sums of money foolishly by doing all the wrong stuff.

“Facing the problem squarely, including potential removal of the four fish-killing dams on the lower Snake River, will create many thousands more jobs, revive the fishing industry, save billions of dollars for taxpayers, and lead in the development of clean, renewable, more efficient energy.

“What we need most now is for this administration to lead us to those solutions, not just bury its head in the sand in denial as has so often happened in the past.”

Other news stories:

The News Tribune

Seattle Times

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The annual North of Falcon process is about to get under way again, beginning with a public meeting in Olympia on Tuesday. During Tuesday’s meeting, state, federal and tribal managers are expected to outline their preseason forecasts of abundance for each salmon species. See meeting announcement in the Kitsap Sun and on the North of Falcon website.

Chinook salmon are the primary prey for Puget Sound's killer whales. Here, J-40 grabs a fish off False Bay, San Juan Island
Photo by Astrid Van Ginneken, Center for Whale Research.

This year, there will be a new elephant in the room … actually, something as large as an elephant — a killer whale. But more about that in a moment.

The process of determining how many salmon of each species are available for harvest and how to divide up the catch has become a complex project involving commuter simulations, policy discussions and demands from fishing constituents. The goal is to make abundant stocks of salmon available for harvest while protecting “weak runs” — particularly those listed under the Endangered Species Act.

Sure, the process has its flaws, but I have not heard of any better ideas for protecting weak runs outside of stopping all fishing for a period of time. So far this year, I haven’t had time to get a head start on what salmon managers are thinking, but I’ll be following the discussions as they move along.

I’ve been thinking about the comments people sometimes post on this blog, blaming all the salmon problems on commercial fishing, tribal fishing or the locations of fishing nets. Because such comments are often based on a lack of knowledge, I was wondering if such folks ever consider attending these meetings to find out how fishing decisions are made. The meetings, which are open to the public, begin with general discussions and get more technically oriented right up to the point when final decisions are made in mid-April.

While the fishing issues are complex by themselves, it is becoming clear that anglers and tribal fishermen may soon need to share their chinook salmon — a highly prized sport and table fish — with another species, the Southern Resident killer whale, an endangered species.

In a letter to salmon managers (PDF 1.5 mb), Will Stelle, regional administrator for the National Marine Fisheries Service, announced that he would convene a series of workshops to study the relationship between chinook fishing and the survival of the Puget Sound orcas:

“The basic question NMFS must answer is whether Chinook salmon fisheries that affect the abundance of prey available to the killer whales are significantly and negatively affecting the well-being of the Southern Resident population and, if so, how those negative effects might be reduced.

“At the conclusion of the scientific workshop process, NMFS and others will be better able to determine what recovery actions are appropriate and, more specifically, whether and under what conditions additional constraints on salmon fishing may be necessary.”

As recently as 2008, the federal agency concluded that fishing at the levels allowed through the North of Falcon process had no serious effects on the whales. But, according to Stelle, more recent analyses may show otherwise:

“Our conclusions, which are preliminary at this point, strongly suggest that the amount of Chinook available to the whales in comparison to their metabolic requirements is less than what we estimated in the 2008 consultation, particularly during those summer months when the whales spend considerable time foraging in the Salish Sea.

“This change results from several factors, including but not limited to revised estimates of the metabolic requirements of the whales, their selective preference for larger Chinook salmon, and inclusion of a broader range of years to represent expected variations in the abundance of Chinook salmon available to the whales.”

While allocations for killer whales may not be explicit this year, the workshops could result in reduced harvest under the next Puget Sound Chinook Management Plan. For a more detailed discussion of the early analysis, download “Effects of Fisheries on Killer Whales” (PDF 345 kb).

For an outline of the proposed discussions, go to “A Scientific Workshop Process to Evaluate Effects of Salmon Fisheries on Southern Resident Killer Whales (PDF 21 kb).

To read a news story on the topic, reporter Craig Welch touched on the issue in the Feb. 11 edition of the Seattle Times.

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UPDATE, Jan. 27:
Since I first posted this item, Scott Veirs pointed out that the recovery of Atlantic salmon is under the joint jurisdiction of the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. I was not aware of this, and it could help explain the president’s statement. Thanks, Scott. See below for Scott’s comment and my response.
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President Obama made a joke about salmon in his “State of the Union” speech last night, but his statement didn’t ring true to me, so I did some checking.

President Obama delivers State of the Union.White House photo

Obama used salmon as an example of redundancy in government and the need for reorganization. His point was valid about how a confusing number of agencies are involved in salmon and their habitat, But I’m afraid he’s mistaken about who’s in charge when it comes to these migrating fish. Here’s his statement:

“… Then there’s my favorite example: The Interior Department is in charge of salmon while they’re in freshwater, but the Commerce Department handles them when they’re in salt water (laughter). I hear it gets even more complicated once they’re smoked (laughter and applause).“

The truth is the National Marine Fisheries Service is in charge of most salmon listed under the Endangered Species Act, no matter where they are. NMFS, of course, is an agency under the National Oceanic and Atmospheric Administration, which is under the Department of Commerce.
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Early in December, I wrote about a plan to attach satellite transmitters to selected Puget Sound killer whales by shooting darts into their dorsal fins. At the time, lots of people offered questions and concerns, but few had taken a strong position. See my story in the Kitsap Sun of Dec. 5.

Since then, Ken Balcomb of the Center for Whale Research and others involved in research, education and advocacy have come out against the tagging program as currently proposed. On the other hand, several other researchers are encouraging the federal government to push the tagging program forward.

After 140 days, marks are apparent where barbs of satellite tag entered the dorsal fin of the transient killer whale known as T-30.
Click to enlarge

As Ken explained it to me, his bottom line is that the information gathered by tracking the whales by satellite may not be worth the injury caused by shooting barbed darts into the whales’ fins. He argues that more follow-up investigation is needed into the short- and long-term effects of the darts, which eventually work their way out.

Ken was actually the first to apply for a permit from the National Marine Fisheries Service to conduct the tagging program with barbed darts. While not wishing to criticize his fellow researchers, Balcomb said he had been overly assured that the risk of injury was exceedingly small.

“I was shown pictures of almost-healed wounds,” Ken told me. “I was given assurance that there was not an issue. I didn’t even think about these titanium leaves coming out and leaving a hole that size (in the fin).”

The current design of the dart used to attach satellite transmitters to killer whales.

The turning point was when Ken saw a photo of a transient killer whale, T-30, who had carried one of the satellite tags. (See the picture, above right.) He said the long-term scarring was “ugly and unacceptable to me personally,” and he believed that many whale supporters also would object.

Ken turned down the approved tagging permit — in part because it was granted as an amendment to his existing permit for photographing and identifying orcas as part of his ongoing census. If unacceptable injury were to occur to the subject whales, he said, his entire permit could be suspended. That, in turn, would prevent him from continuing the identification work he has done for more than 30 years.

Ken elaborated in a Dec. 18 letter written to the National Marine Fisheries Service:
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Killer whale researchers and advocates are beginning to stir a little bit in response to a proposal by federal researchers who want to attach satellite transmitters to the dorsal fins of up to six Puget Sound killer whales. I reported on the plan in Sunday’s Kitsap Sun.

The benefits of these satellite tags would be to track the Southern Residents during winter months when they head out into the ocean and disappear for periods of time. Knowing where the whales go is important if people are going to protect their habitat, according to Brad Hanson, chief investigator with the Northwest Fisheries Science Center, a research arm of the National Marine Fisheries Service.

It is conceivable that the whales are visiting some favored spots for hunting salmon. Finding and protecting important forage areas from human intrusion could increase the whales’ chances of long-term survival, officials say.

On the other hand, some observers are raising concerns about this research project as well as the cumulative effects of all research on the endangered killer whales. To attach a satellite transmitter, a boat must get close enough to an orca for an operator to fire a dart from an air gun. The dart penetrates the skin on the dorsal fin of the animal.
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I’m willing to stand corrected, but I cannot recall a time when there has been so much activity related to the use and abuse of pesticides around water.

In a story written for Monday’s Kitsap Sun, I reported about the permitting activity to comply with the Clean Water Act at both the state and federal levels. I did not, however, get into some significant and surprising activities related to the Endangered Species Act, which I will discuss here in a moment.

I think it’s becoming fairly well recognized that chemicals successful at killing target plants and animals may have unwanted and uncertain effects on plants and animals that we would like to protect. Unfortunately, state and federal regulations have not always kept pace with scientific findings.
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The U.S. Navy is collaborating with private and governmental researchers in an effort to determine how sonar affects marine mammals.

Tracey Moriarty, chief of the Naval Operations Environmental Readiness Division, describes three recent field studies in a piece published Monday on the Navy News Web site.

One project, based in the Bahamas, involved tracking marine mammals — notably beaked whales — during battle group exercises. Before the exercises started, researchers were able to attach radio and acoustic “tags” to three Blaineville’s beaked whales, a Cuvier’s beaked whale and five sperm whales.

Beaked whales are believed to be especially sensitive to sonar. It was in the Bahamas that six beaked whales were found dead on the beach within 24 hours of a Navy exercise.

“The mere presence of these species on a Navy range is counterintuitive to the perception of beaked whale reactions to sonar,” the Navy’s David Moretti was quoted as saying. “Given that this is an active Navy range where sonar is used, you wouldn’t anticipate this species to be present in this particular location if you believed the popular press.”

Moretti is the principal investigator for the Marine Mammal Monitoring Program at the Naval Undersea Warfare Center in Rhode Island.

“The animals are moving in and out of here,” said Diane Claridge, director of the Bahamas Marine Mammal Research Organization, “and one of the things I’m interested in is whether or not that movement is related to the activities taking place such as the SCC (the Navy exercise).”

The working hypothesis is that the animals move off the training range during sonar exercises and then come back when the exercises are over, but researchers can’t be sure the returning animals are the same.

“I think the most important thing is that it’s still very early,” John Durban of the National Marine Fisheries Service said in Moriarty’s report. “Like any study, it’s tempting to want results straight away, but often the key results are only obtained from continued long-term monitoring of abundance and movement patterns.”

A similar experiment in California was conducted with the assistance of Greg Schorr and Erin Falcone of Cascadia Research Collective, based in Olympia. By the way, Cascadia’s Robin Baird collaborated on a study published in June (PDF 832 kb) about the likelihood of beaked whales getting “the bends” when startled by sonar.

The third experiment, in the Mediterranean Sea, looked at the responses of whales to sound in an area where whales were unlikely to have been exposed to sonar in the past.

I’m looking forward to conclusions from all three studies, which are expected to be described in upcoming reports.

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The Navy has decided not to conduct training exercises involving sonar within Puget Sound. That information was revealed in a proposed incidental take permit for the Northwest Training Range Complex, now subject to public review under the Marine Mammal Protection Act. See my story in today’s Kitsap Sun.

While this decision no doubt will be a good thing for area marine mammal populations, I’m still a bit confused about the extent to which sonar may be used in non-training conditions.

Use of sonar in the testing of equipment and new technologies will come under a separate take permit for the Naval Undersea Warfare Center, based at Keyport.

But, according to a statement I received from the Navy, that still leaves open the use of sonar for “safety and navigation,” “testing,” and “maintenance.”

As I understand the process, if the Navy were to harm marine mammals in one of these procedures without obtaining a take permit in advance, the Navy would be in violation of the Marine Mammal Protection Act.

The potential exists for such harm, given the experience earlier this year with the fast-attack submarine USS San Francisco. The submarine was found to be using sonar, which was picked up loudly on hydrophones miles away. The submarine was in the Strait of Juan de Fuca after it left Bremerton after undergoing repairs.

It appears there were no killer whales in the area. But nobody could be sure about other marine mammals, since it was dark during much of the time the sonar was being used.

To keep things in perspective, the Navy has made progress in its effort to come into compliance with the Marine Mammal Protection Act. While there may always be disagreement about the level of protection necessary, the Navy is explaining its operations more and working cooperatively with other agencies to reduce the harm to wildlife.

It turns out that the proposed incidental take permit for the Northwest Training Range (PDF 1.3 mb) serves as a nice primer to help us understand Navy exercises, sonar technology, types of sonar and their specific uses, potential effects on marine mammals and the history of Navy exercises where marine mammals have been killed.

Similarly, a proposed permit for the Naval Undersea Warfare Center (PDF 1.1 mb) offers extensive information about the use of sonar in testing advanced equipment and related activities.

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The idea of regulating whale watching around killer whales, particularly in the San Juan Islands, has gotten a lot of attention the past few years.

First, San Juan County approved an ordinance in 2007 that required boaters to stay back 100 yards from the whales. That was followed by a state law in 2008. Now, the federal government proposes to turn their longstanding 100-yard “guidelines” into a 200-foot enforceable rule. See my story in today’s Kitsap Sun.

I first wrote about the concerns of whale watching nine years ago — before the whales were listed under the Endangered Species Act. (See my story from July 2, 2000.) I think it is safe to say — and Kari Koski of Soundwatch confirms this — boaters have generally gotten more responsible, particularly commercial whale-watch operators based in the U.S.

This is a complex issue, in part because the killer whales themselves are complex creatures with a high level of intelligence. Trying to rebuild a population of killer whales is nothing like rebuilding a population of salmon. I could say a lot more about that, but instead I’ll make a few observations about the federal action.
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The Southern Resident killer whales, which frequent Puget Sound, are acting a little strangely of late and their actions are making a few people nervous.

I always look forward to hearing about their arrival to the San Juan Islands in early June. Ideally, someone will see all three pods of orcas getting together in one big reunion called a “superpod” with more than 80 whales splashing about together.

Last year, the superpod occurred on June 3, according to Howard Garrett of Orca Network. Sometimes the orcas show up earlier than that and sometimes they come in later, but generally by mid-June all three pods are hunting chinook in and around the San Juans.

Their “late” arrival this year is not the only thing that’s disconcerting, however. J pod, which is generally in and out of our inland waters frequently, was gone the entire month of April. Now the pod is gone again and has not been seen since May 25.

Also worrisome is how the whales have split into smaller family groups. Nine animals in L pod (known as the L-12s) have been around until possibly leaving today. Meanwhile, twice that many whales in L pod are somewhere unknown.

Two members of K pod have been in and around the islands, but another 16 or so whales are somewhere else.

“It is very worrisome,” said Susan Berta of Orca Network. “I know a lot of researchers who want to wait for the data, but things seem to be changing and we are getting these oddities. Also, they are absent more and more.

“All the naturalists that we have talked to are just really surprised at this,” Susan told me. “They think that it is not something good to have these bits and pieces of pods showing up and the larger groups not showing up.”

Nobody knows where most of the orcas are right now, but that isn’t necessarily a bad thing, said Brad Hanson, a researcher with the National Marine Fisheries Service. It’s pretty clear that there aren’t many salmon in the San Juan Islands at the moment.

We are either seeing a weak run of chinook salmon or a late run, Brad told me. Maybe the whales have found some fish somewhere else.

“It’s like when you go fishing, do you leave fish to find fish?” he asked. “If they are in a spot with adequate foraging opportunities, they may just stay there.”

There are rumors of more abundant salmon in the Queen Charlotte Islands in Canada — a vast area with lots of inlets where orcas could easily go unreported.

“These animals are mobile predators,” Brad noted. “They can move throughout their range in a very short period of time. Fish are either late or low, but they are not present right now. We hope they (the whales) are taking advantage of fish somewhere else.”

Lack of food in low-fish years has serious implications for the whales’ reproductive capabilities, as Ken Balcomb of the Center for Whale Research recently documented. The abundance of fish could well determine whether the Southern Resident population rebuilds or goes extinct. That’s why so much attention is being paid to saving the salmon, for the sake of the entire ecosystem.

“If the whales were here now, we’d be concerned,” Hanson said, “because it would mean they’re not finding fish somewhere else.”

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