Watching Our Water Ways

It’s not often that we get to talk about a new environmental group in the Puget Sound region. We have a lot of existing groups, to be sure, but I can’t recall when the last one came into existence.

Whether Sound Action is actually a new group can be debated, since its core leaders come from Preserve Our Islands, the organization that battled the gravel mining operation on Maury Island. But I consider it a new group, because Sound Action has a new, clearly defined mission, not focused on a single development but on protecting shoreline habitats throughout Puget Sound.

The group will begin by keeping its eye on hydraulic project approvals issued by the Washington Department of Fish and Wildlife. The group’s audit of 290 past HPAs (PDF 3.3 mb) purports to show that adequate restrictions were not imposed in many cases where shoreline habitats and species needed to be protected.

Randi Thurston of WDFW disputes the report’s methods and conclusions, as I mention in my story published in today’s Kitsap Sun.

Those overall findings and statistics may make little difference in the long run, however. More interesting will be the deficiencies the group discovers as it goes about reviewing every permit issued by WDFW — the express goal of Amy Carey, the group’s executive director.

“Our intent here isn’t to be adversarial,” she told me yesterday. “We want to be supportive of DFW and help them fix the problem. … Reasonably good laws have been on the books for decades, but we have agencies that just don’t say no.”

When it comes to specific permits, it will be easier to discuss what conditions exist at a specific site, what data are available about the particular shoreline, what permit conditions are mandatory and what conditions would be advisable to add some measure of protection.

I can’t see how another set of eyes or even a differing opinion can hurt if the goal is to protect the environment, and maybe this effort will make a big difference in restoring Puget Sound to health. Of course, if the goal is to approve shoreline developments as quickly as possible, then regulations and oversight just get in the way.

Here are the goals, as described by Sound Action:

• In our new work, Sound Action will be reviewing each Puget Sound-based HPA as it comes under the consideration of WDFW to ensure that all applicable environmental regulations are applied.
• In the event that science-based information is missing or overlooked by WDFW, we will present detailed documentation on species and habitats present as well as impacts of the proposal.
• If a permit is approved which does not contain appropriate provisions or is approved in violation of state law, Sound Action will pursue appeal and legal action.
• Sound Action will expand its watchdog role to other regulatory areas in Puget Sound, but its first task is to focus on the state HPA program to make sure each permit does what the law requires and that the program is functioning and providing habitat protection. Not only is this required by law, it also supports the state mandate to restore Puget Sound by 2020.

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The final report on how salmon fisheries may affect Puget Sound’s endangered killer whale population has been released by a seven-member independent panel of U.S. and Canadian experts.

Download “The Effects of Salmon Fisheries on Southern Resident Killer Whales” (PDF 1.8MB)

It appears that the findings of the report are substantially the same as what I reported in a Kitsap Sun story on May 6. If you haven’t read the story, I think you will find all the comments interesting.

The next step will be for NOAA officials to issue recommendations from the report. In light of the findings and the uncertainty about the effects of reduced fishing, it seems likely that more studies will be proposed rather than an immediate adjustment to harvest.

I’ll continue to follow this story through the public review process, which is planned for early next year. Updates and related documents can be found on NOAA’s website.

The management plan for Puget Sound chinook fisheries will remain in effect through next year, after which time it will need to be updated in consultation between state and federal agencies. Chinook are a “threatened” species under the Endangered Species Act. See NOAA’s webpage, “Puget Sound Chinook Resource Management Plan.”

You may be interested in older studies and policy documents by the Washington Department of Fish and Wildlife. Go to “Comprehensive Management Plan for Puget Sound Chinook: Harvest Management Component.”

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At times, it seems a little voyeuristic to watch wild creatures behaving naturally, unaware that eyes from all over the world may be watching them via the Internet.

One of the most engaging critter cams is set up at a place called Pete’s Pond, located in the Mashatu Game Reserve in eastern Botswana. The pond lies at confluence of the Limpopo and Shashe rivers in a region that combines dry savannah, riverine forests and soggy marshes.

As I write this on Monday morning, several giraffes have come to the waterhole, where it is late Monday afternoon. Last night (Monday morning at the pond), I spotted a lone jackal wandering near the water.

The viewing is enhanced significantly by volunteers from around the world who take turns aiming the cameras and zooming in on interesting activities taking place. I love the sounds of the pond almost as much as the sights, but an ongoing clicking sound on the audio this morning detracted from the natural sounds.

Late afternoon in Botswana (morning here) seems to be an active time, but apparently different animals show up at the pond at all times of the day and night, and I find it interesting to watch and listen even when things seem completely serene.

I’ve mentioned other wildlife cams on this blog (See Water Ways, March 3, 2011). Technical difficulties always seem to be a factor in keeping these remote cameras in operation.

For the WildWatch Cams managed by the Washington Department of Fish and Wildlife, it does not help that the department has been through some massive budget cuts. Staff efforts on these live videos has been reduced, and some are not in operation. But a few seem to be working fine. Try Batcam, Heroncam, Sealcam and Swiftcam.

If you are aware of other good critter cams working at the moment, feel free to pass them along.

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Forecasts for Puget Sound salmon runs call for lower returns this year compared to last year, but officials with the Washington Department of Fish and Wildlife are emphasizing “promising” chinook fishing off Washington’s coast and Columbia River.

Each year, sport fishers line the banks of the Skokomish River as they try to catch the prized chinook salmon. / Kitsap Sun file photo

Preseason forecasts were released yesterday, launching the North of Falcon Process, which involves state and tribal salmon managers working together to set sport, commercial and tribal fisheries. Federal biologists and regulators keep watch over the negotiations to ensure compliance with the Endangered Species Act.

For a complete schedule of meetings leading up to final decisions the first week of April, go to the WDFW’s North of Falcon page.

With regard to fishing opportunities, Doug Milward, ocean salmon fishery manager for the agency, had this to say in yesterday’s news release:

“It’s still early in the process, but we will likely have an ocean salmon fishery similar to what we have seen the last two years, when we had an abundance of chinook in the ocean but low numbers of hatchery coho.”

(more…)

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Given the excitement of the moment, including comments over the radio, some people still believe that L-90, a 19-year-old female orca named Ballena, was struck by a boat off the west side of San Juan Island on Friday.

An experienced driver for the Prince of Whales whale-watching company was mentioned as a likely witness.

I talked to a spokeswoman for the company who told me that nobody she knows has any pictures. The only interviews granted by staff were with enforcement officers for the Washington Department of Fish and Wildlife.

Sgt. Russ Mullins, one of the WDFW officers who patrols that area, said he has investigated the incident. As best as he can tell, no collision occurred.

“Nobody witnessed an actual strike,” he told me. “It was a close call perhaps, but we do not have vessel-related injuries on this animal.”

Here are some of the details that Sgt. Mullins reported:

The boat reportedly involved in the incident was a slow-moving liveaboard passing through the area. The speed was about 7 knots. Mullins does not know why some news reports mentioned a high-speed boat, except for the possible assumption that only a fast-moving boat was likely to strike a killer whale.

A witness on the Prince of Whales boat told officers that the orca in question and possibly others surfaced some 20 feet off the bow the boat, which then stopped for a short time before leaving the area.

The whale was acting sluggish, barely moving and logging on the surface for quite some time. That behavior led people in the area to believe a collision had occurred. Comments to that effect went out over the radio.

“I heard the transmission,” Mullins said. “The close proximity, combined with the unusual behavior of the whale, led some people to think it had been struck. We assume the worst. As primary law enforcement for the area we have a responsibility to respond…”

Another patrol boat quickly tracked down the suspect vessel.

“We talked to the skipper, who was very concerned,” Mullins said. “He did not appear to be the kind of person who would strike a whale and knowingly leave.”

Mullins said he stayed with the group of whales for 10 hours, including part of Saturday. During that time, they passed the town of Friday Harbor, where they became as active as he’s ever seen them.

Experts familiar with the orcas assured him that the whale had been acting strangely even before Friday’s incident and that nothing had changed See my Water Ways entry from Friday and Erin Heydenreich’s further explanation later that day.

Technically, the driver of the boat was in violation of the protective zone around the whales, 100 yards under state law and 200 yards under federal law. That applies even when the whales catch up to a boat going the same direction, but officers have discretion to consider the conditions.

Mullins said his department plans to issue a written warning to the driver of the boat and refer all the information to officials at the National Oceanic and Atmospheric Administration.

“This guy’s biggest mistake is not being aware of his surroundings,” the sergeant said, “but when the whales were within his view, he took appropriate action.”

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For years, I’ve heard complaints about tribal fishing. Frankly, many people who complain about tribal fishing, or commercial fishing in general, have no understanding of treaty rights or how individual salmon stocks are managed.

Tarboo Bay
Washington Department of Ecology photo

Most don’t care about the work that goes into long-range management plans, preseason forecasts or computer models of harvest options, which make it possible to manage fisheries with concurrence of state, tribal and federal entities. Most folks with concerns wouldn’t think of accepting the public invitation to join the annual discussions about harvest.

Occasionally, however, someone raises a concern that resonates with managers and biologists who understand the issues. Such is the case with fishing in Tarboo Bay, a story I told in Friday’s Kitsap Sun.

It all comes down to a simple proposition: If salmon management plans are working, then why aren’t we getting more chum and coho into Tarboo Creek? Should we be content with ongoing productivity well below what the stream appears capable of supporting?

Putting politics aside, should the overall management plan for Hood Canal strive for some minimum escapement or maximum exploitation rate on individual streams? Oh, what a complex plan that would be! But if low escapement creates sustainability problems on any stream, then someone needs to take a serious look and not be hampered by plans that consider Hood Canal coho and chum as aggregate stocks for all Hood Canal.

Maybe we should elevate Tarboo Bay to a test case, first with some monitoring to determine the stock composition of the tribal beach seine in question. If it turns out that this is an all-or-nothing fishery, then one answer would be to move the closure line farther out into Dabob Bay, as managers for the state and two tribes agreed to do.

Beyond that, however, perhaps more attention should be given to individual streams, their carrying capacity and trade-offs between harvest and escapement. Interesting studies have been conducted for listed species and a few other stocks in Hood Canal. See “Mid-Hood Canal Juvenile Salmonid Evaluation…” But the need to improve escapements of all species remains a concern.

I’m tempted to say that this is an emperor-has-no-clothes moment when it comes to fisheries in Hood Canal, but I don’t believe that’s accurate. It may seem that everybody understands the problem and nobody wants to speak out. In reality, the problems are many; they vary from place to place; and lots of people are speaking out.

Maybe it is more like a house of cards that continues to grow. Many weaknesses are found in the structure, but only so many can be fixed at one time. So people just keep going, hoping for the best.

Washington Department of Fish and Wildlife has developed a management framework to address these kinds of issues. See “21st Century Salmon and Steelhead Initiative.” It seems like a good start, but the agency must not forget that restoration comes together stream-by-stream for harvest as well as for habitat.

Consider these goals, among others, spelled out in the initiative:

As local groups — including the tribes — work hard to remove barriers to salmon passage and improve habitat in specific streams, there is a growing recognition that individual streams can support more salmon than has been possible in the past. Maybe it is time to test the limits of the habitat for selected streams, understanding that decreased harvest in the short term could well translate to greater terminal fisheries in the future.

The Kitsap Sun published an editorial today about the Tarboo Bay fishery.

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I’m happy to inform you that reports of a killer whale being struck off the west side of San Juan Island this morning apparently were false.

Erin Heydenreich, Ken Balcomb and others with the Center for Whale Research spent about two hours on the water this afternoon checking out L-90, a 19-year-old female known as “Ballena.” She was the orca reported to have been struck by a boat going too fast near the whales.

“We got a very good look at her,” Erin noted. “There were no signs of injury or indications that she had been struck.”

She noted that the orca was acting “strange,” including logging at the surface for unusually long times, moving slowly and making brief dives. That may have been one reason that observers believed she had been struck by a boat.

But another explanation for her unusual behavior is that Ballena is pregnant and about to have a calf, she said. That type of behavior has been seen in the past among expectant orca moms.

“She is at that age where she should be having a calf (her first),” she said. “She could be having a difficult pregnancy or something may be wrong with her not related to this vessel thing.”

Erin said officers with the Washington Department of Fish and Wildlife questioned individuals involved with the incident and reported that it was unlikely that any whale was hit.

She said the researchers also checked out J-32, a 15-year-old female that was initially reported in the area. That whale, named “Rhapsody,” also showed no signs of injury.

The Center for Whale Research plans to watch L-90 especially closely the next few days to see if she has a new calf or otherwise changes her behavior.

Craig Bartlett of WDFW confirmed that officers had talked to the occupants of a large pleasure boat that had been moving slowly through the area. They were surprised that anyone believed something was seriously wrong, he said.

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UPDATE, Aug. 16, 2011
The Tahuyeh Lake Community Club appealed the Kitsap County Superior Court ruling yesterday, the same day that the judge issued her findings of fact and judgment in the matter.

Check out my story in tomorrow’s Kitsap Sun or review the judge’s findings document (PDF 968 kb).
—–

While I was away for a week, Kitsap County Superior Court Judge Jeanette Dalton handed down a most intricate ruling in the case called Tahuyeh Lake Community Club versus Washington Department of Fish and Wildlife.

This legal dispute has gone on for years and may not be over even now. But, through it all, I’ve learned a great deal about riparian rights to use shorelines and surface waters in Washington state.

The bottom line, if the ruling stands, is that WDFW will be allowed to build a public boat launch on Lake Tahuyeh. Officers of the community club pursued the case even after the agency withdrew its plans for a launching facility, which was given conditional approval.

Local fishing groups wish to have access to Lake Tahuyeh for recreation, while the community club maintains that the lake is private and under its exclusive control.

Judge Dalton understood the legal and societal implications of her decision:

“In bringing this lawsuit, the members of the community club seek to protect important rights to the quiet enjoyment of their private shoreside community. In defending this action, the state of Washington also seeks to defend values central to our society, those of public access to public lands.

“Fortunately, resolution of this action does not require this court to resolve the relative importance of the competing values represented by the two parties. Rather, centuries of lawmakers have weighed these values for us, and their legal mandates dictate the necessary outcome of this case.”

Judge Dalton’s ruling maneuvers logically through a maze of facts and legal benchmarks before reaching the conclusion that a single parcel of lakefront property provides legal access to the entire surface of the lake. Much of the decision hinges around the question of whether Lake Tahuyeh was actually a lake when the property was first conveyed by the federal government and later when the state acquired its small parcel of property — both long before a dam formed the lake as we know it today.

If Lake Tahuyeh was nothing more than a swamp or a man-made lake, then ownership and access would be defined by boundary lines drawn on a map and the related legal descriptions. If the lake were large and deep enough to be a “navigable” waterway, then the state would have claimed ownership to the entire lake bed.

But Dalton concluded — based on historical documents and testimony from folks who fished on the lake a half-century ago — that Lake Tahuyeh was, and is, a “nonnavigable lake.” As such, each property owner along the shoreline owns a pie-shaped piece of the lake bed to the center — unless that ownership is conveyed to someone else. In this case, the community club acquired ownership of most of the lake bed, but the state retained its ownership, Dalton concluded.

Whether the state has riparian rights to use the lake depends not only on whether Lake Tahuyeh was actually a lake, but also whether those rights were conveyed during successive ownerships of the property.

Jean Bulette, president of Tahuyeh Lake Community Club, has told me several times and argued in a Kitsap Sun op-ed piece in March 2010 that the lake bed and its riparian rights were granted to predecessors of the club and can never be taken away.

Judge Dalton agreed that the original owners obtained title to the lakebed when the federal patent conveyed ownership, but she also gave weight to the original federal survey of the site, which included a “meander line” to note the approximate edge of the water:

“There is some authority for the proposition that a lot is conclusively riparian if it bounders a ‘meander line,’ at least in the absence of evidence showing that the lot was meant to run only to the meander line and not to the actual edge of the watercourse.”

What is the evidence that the original owners meant to pass on riparian rights — lake access — to the state in 1939, when the state took ownership of the parcel?

“The court finds that the parties likely were contemplating public access to Lake Tahuyeh by the conveyance to the department. It was a historic aberration for a grant of land to be only 200 feet wide and run between a known access road and a lake, at least where other acquisitions of property during those early decades were much larger parcels of land. The mere dimensions of the department’s lot suggest — and probably require — the conclusion that the lot was intended for water access….

“Other factors lead the court to this conclusion, includ(ing) that the consideration for the transfer of the property was apparently not money, but rather the department’s agreement to allow the grantor to control the level of Tahuyeh Lake and to allow removal and harvest of the sphagnum moss.

“If the transfer was not intended to run into the lake at all, then raising or lowering the level of the lake would have had no consequences to the state. The fact that such an agreement was specifically negotiated as consideration for the deed indicates to this court that the grantor intended to convey, and did convey, the bed of the lake under the water as well as the upland parcel to the road.

“The court therefore determines that the lot conveyed to the department included riparian rights to Tahuyeh Lake, which the lot abutted.”

While a riparian owner has rights that extend to the entire surface of the lake, Judge Dalton pointed out that such rights must “not interfere unreasonably with the riparian rights of other owners.”

Dalton said she does not minimize the potential effects that her ruling could have on the “solitude currently enjoyed by members of the community club.” Still, the facts in this case do not address the extent to which public use might interfere with the recreational rights of community club members. That, Dalton said, could be the subject of future legal action.

Further information:

Judge Jeanette Dalton’s ruling

Steve Gardner’s Kitsap Sun story

Christopher Dunagan’s preview of Lake Tahuyeh case

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Before salmon managers begin to focus on harvest quotas and seasons for salmon fishing, they must work out predictions about the number of salmon coming back to each management area throughout the Northwest.

Those are the numbers released this week during the annual kickoff meeting for the North of Falcon process held in Olympia. Check out my story in yesterday’s Kitsap Sun.

So how do the managers go about predicting this year’s salmon runs? It gets pretty technical, but it is basically a combination of counting the number of salmon smolts that leave selected streams and then calculating a rate of survival to determine the number of adults that will come back.

Mara Zimmerman
WDFW photo

Numerous conditions affect whether eggs and fry will survive to smolt stage and make it out of a stream, just as many factors can cause the death of the young fish after they leave freshwater. I’m tempted to describe these factors here, but instead will defer to Mara Zimmerman, who heads the Wild Salmonid Production Evaluation Unit. Her well-written report on the “2011 Wild Coho Forecasts…” (PDF 376 kb) provides an excellent education into how coho are estimated. Check it out.

I was one of three newspaper reporters who attended Tuesday’s meeting in Olympia. It was easy to tell the difference between my handling of this story and the approaches by Jeffrey P. Mayor, who writes for the Olympian and the News Tribune in South Puget Sound, and Allen Thomas, who writes for the Columbian in Vancouver (Clark County).

The biggest difference is that those guys are sports or outdoor reporters, mainly interesting in telling their readers what fishing will be like this year. As an environmental reporter, my primary focus is to describe how the salmon are doing ecologically — although I do recognize that many readers of my stories are anglers who also want to know about fishing.

(more…)

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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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