Category Archives: Salmon

U.S. Supreme Court justices raise questions about culvert damage

As state and tribal attorneys faced off yesterday in the 20-year battle over culverts, justices for the U.S. Supreme Court drilled both sides about numbers.

A coho salmon tries to leap into a culvert on Gorst Creek where water discharges from fish-rearing ponds. // Photo: Meegan M. Reid, Kitsap Sun

The culvert case is not about the 50-50 sharing of the annual salmon harvest. The courts ruled years ago that treaties with Puget Sound tribes guarantee Indians half the total salmon harvest, to be shared equally with non-Indians.

The culvert case is about the environment, specifically the idea that culverts are capable of blocking the passage of salmon, reducing the salmon population to a meaningless number and making the treaty right worthless.

From the transcript of today’s Supreme Court hearing, I’ve tried to pull out the most interesting and legally relevant questions.

Opening the hearing and speaking for the state, Assistant Attorney General Noah Purcell said the lower courts have essentially established a new treaty right with the ruling under appeal. If culverts must be replaced as a result of the treaty, then consider what could happen to dams and virtually any development that has ever had an impact on salmon runs, he said.

In legal briefs, state attorneys have argued that the treaties work both ways, that tribes gave up the right to manage the lands they ceded to the U.S.

Justice Samuel Alito noted that the treaty describes the right of Indians to take fish. “What do you think that means?” he asked Purcell.

Three rights come from that language, Purcell said. They are the right to fish in historical places, the right to a fair share of the available fish and a “right to be free of certain types of state actions that are not justified by substantial public interest.”

The tribes, he added, need to show that state culverts specifically are responsible for a “large decline” on a particular river. There are many other causes of salmon declines as well, and the state is trying to work on all of them, he said.

Alito said he doesn’t understand the meaning of “large decline” or even “substantial decline,” the term used by the federal government, which is a party to the case on behalf of the tribes.

“Well,” Percell said, “it has to be more than a fraction of 1 percent of historic harvests or 5 percent of recent harvest. We think, for example, certainly a decline of half the salmon would certainly easily qualify …”

Asked Justice Elena Kagan, “I mean, do you have a number in your head?”

Justice Neil Gorsuch wanted to know whether a 5-percent reduction in the salmon runs would be adequate to support the tribes’ position. “If they could show that 5 percent is attributable to the culverts, would that suffice to satisfy you?” he asked. “And, if not, I guess I’m where Justice Kagan is. What’s your number.”

Purcell said he thought that half would obviously quality but not 5 percent.

“Suppose,” said Alito, “that there were more than salmon than anybody knew what to do with, and then the state did something that caused a decline. Would that be a violation of the treaty?”

“I don’t think that would be a violation even under the respondents’ (tribes’) theory, Your Honor,” Purcell replied. “… and that recognizes the crucial other piece of language… The treaties ceded control of the off-reservation land to future government to regulate in the public interest. And so the government has to have the ability to make some types of decisions, even if they affect the treaty fishing right when there are substantial interests involved.”

Gorsuch said he is struggling with that concept, the idea that state government could pursue other public interests and balance them against treaty rights.

“The point of a treaty, I would have thought, would have been to freeze in time certain rights and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim,” he said.

Purcell said the treaty must recognize interests other than the fishing rights of the tribes, and that includes actions to protect natural resources and public health.

“But where does this public interest theory come in in the treaty?” asked Kagan. “I thought this was an agreement. I give you my land. You give me the right to take fish. And — let’s make it narrower here — I have the right that you will not put up obstructions on these streams such that I can’t take fish.”

“Well, Your Honor,” said Purcell, “if the rule is narrowly limited like that, it’s much less problematic for the state, but the findings would not support that rule and it would outlaw every dam in the Northwest. So it’s inconsistent with the parties’ long-standing behavior.”

Alito asked federal prosecutors in the case whether federal dams also violate the treaties.

Assistant Solicitor General Allon Kedem of the U.S. Department of Justice said that issue was never part of the case and the legal issues have never been developed. Still, he added, many dams are built with fish ladders. In other cases, the U.S. government has compensated the tribes monetarily.

Justice Ruth Bader Ginsburg returned to the original language of the treaties, which “gives the tribes the right to take fish in common with all citizens.” One could simply interpret that to mean that nobody should discriminate against Indians, she said.

Kedem said the state had argued that point years ago, but the courts considered representations made by federal officials to the Indians when the treaties were signed. The conclusion, upheld by the Supreme Court, was that the tribes have access to fish in perpetuity.

Justice Kagan returned to the issue of numbers, asking Kedem if he has an idea how much habitat damage constitutes “substantial” degradation — the term used to define a treaty violation.

“So we don’t have a number,” Kedem said, adding that the lower courts used a habitat approach, the idea that loss of habitat would reduce the salmon population.

Later, Justice Alito turned to Attorney William Jay, representing the tribes.

“I hate to keep asking the same question,” he said, but does ‘substantial degradation’ mean a number or “significant degradation’ mean a number?”

“I don’t think it means a hard and fast number,” Jay said. “I think it is something that you would look at in context, in context of the particular species, in context of the strength of the species at a particular time.”

Without giving a number, Jay said, the court found that the state’s culverts are so numerous and reduce access to such a large spawning area that the impact on the fishery is significant.

“I just don’t see how that can mean anything other than a number,” Alito said, “and I still haven’t gotten an answer that seems to give any substance to this.”

Jay said the idea that the local, state or federal government could disregard the intent of the treaty while balancing their own perceived public interests is not consistent with promises made by the president of the United States and ratified by the Senate.

“If the promise made by the United States in exchange for millions of acres of the tribes’ land means anything … it protects against a threat to the fishery like these, a threat that obstructs fish from getting to the usual and accustomed fishing grounds where the tribes have a right to fish.”

For further reading:

Amusing Monday: Wacky steelhead return for new ‘Survive the Sound’ game

“Survive the Sound,” an online game that features cute little fish swimming for their lives, is back for a second year with some new additions, including free participation for students and teachers in the classroom.

The basics of the game remain as I described them last year. You pick out a wacky cartoon steelhead and then receive daily reports as the fish makes its way through a perilous Puget Sound over a 12-day period. The journey starts May 7, and signups are now open. See Water Ways, April 29, 2017.

As in real life, many fish will not make it to the ocean because of the effects of disease and pollution along with the constant risk of predation. But a few lucky steelhead will survive, and the winners will be recognized.

Individuals join the game with a $25 donation to Long Live the Kings, which will use the money to further research, ecosystem restoration and education. This year, anyone can start a team and encourage others to participate, sharing the joy or heartbreak of the salmon migration. Prizes will be awarded to the winning teams.

This year, teachers can sign up their classrooms for free and play the game while learning about the Puget Sound ecosystem. Extensive educational materials have been developed to go along with the game. Check out “Bring ‘Survive the Sound’ to your Classroom!”

The game is based on the real-life travels of steelhead, which have been tracked using implanted acoustic transmitters. Some fish swim faster than others and some even reverse course. This year, participants will be able to watch the progress of all of the fish making the journey, according to Michael Schmidt of Long Live the Kings.

Last year, more than 1,100 people joined the game, and organizers hope for even greater participation this year.

If nothing else, you should check out the cartoon fish and the clever things they have to say by clicking on the individual steelhead in the “Survive the Sound” fish list.

If you would like to learn more about the person who turned the concepts for these odd and wonderful fish into creative works of art, check out “Meet the Artist Behind Survive the Sound.” To see more of Jocelyn Li Langrand’s work, go to her website, her Instagram page or Facebook.

New ways of fishing could better protect endangered salmon

Higher standards of “sustainability” for salmon — recently developed by the Wild Fish Conservancy — are designed to put salmon on people’s tables with virtually no impact on depleted salmon runs.

The new standards, which could become part of a certification program, are built upon the concept that fishing should take place closer to streams with abundant runs of salmon. The standards call for fishing methods that can take a portion of the fish from the abundant runs while allowing fish from depleted runs to pass on by and spawn naturally.

“We want to get away from open fisheries, where you are capturing multiple populations all at once,” said Nick Gayeski, a scientist with Wild Fish Conservancy whose studies have raised the bar for sustainable fisheries.

“If you fish much closer to the estuaries, the fish will sort themselves out,” Nick told me, “and you can fish with much more confidence about taking fish from a specific population.”

This idea of “placed-based fishing,” as described by Wild Fish Conservancy, would surely be good for the wild salmon, including Puget Sound chinook and steelhead, which are listed as threatened under the Endangered Species Act. It would also be good for a dozen listed species in the Columbia River system. But, if carried out to its full extent, the idea would just as surely create an upheaval for fishermen and fishing communities from Alaska to California.

Much of the chinook salmon caught in the ocean off Southeast Alaska come from the Columbia River, Oregon Coast, Washington Coast and Vancouver Island, according to a draft of the Comprehensive Management Plan for Puget Sound Chinook (PDF 6.5 mb).

“Most Puget Sound Chinook stocks are subjected to very low or zero mortality in Southeast Alaska,” the report says, “but there are notable exceptions. On average since 1999, 48 percent of the fishery-related mortality of Hoko, 7 percent of Stillaguamish, and 23 percent of Skagit summer Chinook occurred in Alaska.”

Those last numbers are significant for the listed Puget Sound chinook, considering the distance that these fish are from home. Although salmon managers have taken significant steps to reduce the take of listed chinook, the fish are still caught in significant numbers along the coast and in the Strait of Juan de Fuca.

Despite the ongoing harvest of threatened and endangered species, many of the fisheries taking these fish are certified as “sustainable” by the Marine Stewardship Council, an international group. Most are also listed as “good alternatives” by Monterey Bay Aquarium’s Seafood Watch program.

Nick Gayeski acknowledges that the “placed-based fishery” he is promoting cannot be accomplished overnight. Much of the salmon in Puget Sound are caught in fairly long gillnets, which ultimately kill the mixture of salmon caught in open waters.

Key criteria for place-based fishing include an assurance that essentially no fish are killed except for the target stock. If fishing close to the stream cannot offer that assurance, then the fishing gear must allow the non-target fish to be released without harm, according to an article by Nick along with Misty MacDuffee of Raincoast Conservation Foundation and Jack A. Stanford of the University of Montana. The paper, titled “Criteria for a good catch: A conceptual framework to guide sourcing of sustainable salmon fisheries,” was published this week in the scientific journal “Facets.”

Carefully managed set nets, which are gillnets usually attached to the shore, may allow for survival if the fish are removed within an hour or so, Nick told me. The big purse seines may also are able to save the non-target fish from harm if the net and the fish remain in the water while the crew removes and releases the non-target fish. Obviously, these aren’t the most efficient methods from a fisherman’s perspective.

Fixed gear that catches fish with little handling, such as reef nets, work well to protect the non-target fish, Nick said. Reef nets harken back to a time when fixed gear along the shore was more common. (See the first video above.)

Wild Fish Conservancy has been working with Patagonia, the sustainable clothing manufacturer, to find fishing operations that meet strict standards of protecting non-target fish. Because of the huge impact that food production has on the environment, Patagonia decided to go into the business five years ago with a line of food products called Patagonia Provisions. The video below is a short preview for a longer video called “Unbroken Ground.”

The first product sold was sockeye salmon caught with a set net in the Situk River estuary in the Gulf of Alaska, where nearly all of the sockeye are associated with the river. Other species are released unharmed.

More recently, Patagonia Provisions began buying pink salmon from a company called Lummi Island Wild, which operates a reef net on Lummi Island in northern Puget Sound. The reef net allows fish to be lifted gently out of the water. Any chinook or sockeye caught during the process are returned to the water unharmed.

The pink salmon taken in the operation are bled out immediately and placed on ice to produce the freshest fish possible.

“We think this is a good place to begin the educational process,” Nick said. “The fishers are handling the fish less and getting more money. We hope that restaurants and other retailers will see the value.”

Other fishing operations are under review by Wild Fish Conservancy to see if they can meet the stricter criteria.

Even if the fishing industry does not change overnight, when enough people purchase fish caught in place-based fisheries, it could reduce the pressure on endangered salmon trying to make it home to spawn while also providing some chinook to feed Puget Sound’s endangered killer whales.

“This is part of a transition,” Nick said. “It’s not only a down-the-road reconfiguration of West Coast salmon fishing but it involves long-term recovery of the wild runs.”

Nitrogen and plankton: Do they hold the missing keys to the food web?

In a way, some of Puget Sound’s most serious ecological problems have been hiding in plain sight. I have been learning a lot lately about plankton, an incredibly diverse collection of microscopic organisms that drift through the water, forming the base of the food web.

Sources of nitrogen in Puget Sound (click to enlarge)
Graphic: Washington Department of Ecology

To put it simply, the right kinds of plankton help to create a healthy population of little fish that feed bigger fish that feed birds and marine mammals, including the endangered Southern Resident killer whales. On the other hand, the wrong kinds of plankton can disrupt the food web, stunt the growth of larger creatures and sometimes poison marine animals.

OK, that’s a bit of an oversimplification, but Puget Sound researchers are just beginning to understand the profound importance of a healthy planktonic community to support a large part of the food web. That’s one of the main points that I try to bring out in five stories published today in the Encyclopedia of Puget Sound. I am grateful to the many researchers who have shared their knowledge with me.

Average daily nitrogen coming in from rivers and wastewater treatment plants (1 kg = 2.2 pounds)
Graphic: Washington Department of Ecology

These stories tie together several major issues all related to nutrients — mainly nitrogen — that feed the marine phytoplankton, which use their chlorophyll to take energy from the sun as they grow and multiply. In the spring and summer, too much nitrogen can mean too much plankton growth. In turn, excess plankton can lead to low-oxygen conditions, ocean acidification and other significant problems.

The complex interplay of planktonic species with larger life forms in Puget Sound is still somewhat of a mystery to researchers trying to understand the food web. As part of the effort, the Washington Department of Ecology is working on a computer model to show how excess nitrogen can trigger low-oxygen conditions in the most vulnerable parts of the Salish Sea, such as southern Hood Canal and South Puget Sound.

Areas of Puget Sound listed as “impaired” for dissolved oxygen (click to enlarge)
Graphic: Washington Department of Ecology

Stormwater is often cited as the most serious problem facing Puget Sound, and we generally think of bacteria and toxic chemicals flowing into the waterway and causing all sorts of problems for the ecosystem. But stormwater also brings in nitrogen derived from fertilizers, animal wastes and atmospheric deposits from burning fossil fuels. Stormwater flows also pick up natural sources of nitrogen from plants and animals that end up in streams.

Sewage treatment plants are another major source of human nitrogen. Except for a few exceptions, not much has been done to reduce the release of nutrients from sewage-treatment plants, which provide not only nitrogen but also micronutrients such as vitamins and minerals. Some experts suspect that nutrients other than nitrogen help to determine which types of plankton will dominate at any given time.

I plan to follow and report on new scientific developments coming out of studies focused on the base of the food web. Meanwhile, I hope you will take time to read this package of related stories:

Can carefully planned fishing seasons help the endangered orcas?

Salmon harvests in Puget Sound have been shared between Indian and non-Indian fishermen since the 1970s, when the courts ruled that treaties guarantee tribal members half the total catch.

Now a third party — Puget Sound’s endangered orcas — could take a seat at the negotiations table, at least in a figurative sense, as their shortage of food becomes a critical issue.

It isn’t at all clear how fishing seasons could be structured to help the Southern Resident killer whales, but the issue was discussed seriously at some length yesterday, when the 2018 salmon forecasts were presented to sport and commercial fishers. Thus began the annual negotiations between state and tribal salmon managers to set up this year’s fishing seasons.

General areas, in blue, where fishing closures in British Columbia are planned to provide extra salmon for Southern Resident killer whales.
Map: Department of Fisheries and Oceans

Penny Becker, a wildlife manager with the Washington Department of Fish and Wildlife, said a steady decline in the body mass of the Southern Residents has been observed, as the population fell to a 30-year low of 76 animals. People are calling for emergency measures, she said, noting that both Gov. Jay Inslee and the Legislature are working on ideas to protect the whales. See Water Ways Feb. 23 and Water Ways Feb. 17 and the Encyclopedia of Puget Sound, Nov. 2, 2017.

Concerns are running equally high in British Columbia, where the orcas spend much of their time in the Strait of Georgia. The Canadian Department of Fisheries and Oceans has proposed an experiment with fishing closures this year in four areas frequented by the orcas:

  • Mouth of the Fraser River
  • West side of Pender Island
  • South side of Saturna Island, and
  • Strait of Juan de Fuca

“The primary objective of the proposed measures is to improve chinook salmon availability for SRKW by decreasing potential fishery competition, as well as minimizing physical and acoustic disturbance in key foraging areas to the extent possible,” states a “discussion paper” (PDF 1.9 mb) released Feb. 15.

The closures would be in place from May through September this year, with increased monitoring to measure potential benefits to the whales. Comments on the proposal are being taken until March 15.

Canadians also are working with ship owners to see if noise can be reduced significantly by slowing down large vessels moving through the Salish Sea. Previous studies have shown that noise reduces the ability of whales to communicate and to find food through echolocation. Experts are compiling the results of the “Haro Strait Vessel Slowdown Trial” conducted last year.

One bill in the Washington Legislature would require boaters to slow down to 7 knots when in the vicinity of killer whales.

Limiting fishing in specific areas of Puget Sound, such as the west side of San Juan Island, could be implemented through state-tribal negotiations, Penny said. The closures would occur during summer when chinook salmon — the orcas’ primary prey — are in the area. One option would be to implement the closures on certain days of the week.

Some people have talked about giving the orcas a clean break from whale watchers, and that could involve excluding whale-watch boats from salmon-rich areas at the same time as the fishing closures.

“We’re looking for creative solutions to make this work within our constraints,” Penny told the group.

One fisherman at the meeting said every person on the water should automatically turn off his motor and sit still when whales are approaching. It’s a courtesy to help the killer whales find fish, he said, and anyway the fish are not going to bite on one’s line while whales are around. Generally, they don’t stay long in one place.

One bill in the Legislature would help the Southern Residents by increasing hatchery production of chinook salmon in Puget Sound. Reaction to the idea has been mixed, because hatchery salmon have been known to affect the fitness and genetic makeup of wild salmon. If approved, the boost in hatchery production would likely be a temporary solution.

Sport fishermen generally like the idea of increased hatchery production, because they would be encouraged to catch all the hatchery fish not eaten by killer whales.

The hatchery bill, HB 2417, was approved unanimously by the House Agriculture and Natural Resources Committee. No further action has been taken so far, but its provisions could be attached to the supplementary budget with funds specified for hatchery production.

Tuesday’s meeting in Lacey launched the beginning of the negotiations between state and tribal salmon managers, a process known as North of Falcon. The name comes the fishery management area from Cape Falcon in Oregon north to the Canadian border. The full schedule of meetings and related documents can be found on the WDFW website.

Forecasts approved by WDFW and the tribes predict poor returns of several salmon stocks this year in Puget Sound, the Pacific Ocean and the Columbia River, resulting in limited fishing opportunities.

“We will definitely have to be creative in developing salmon fisheries this year,” Kyle Adicks, salmon policy lead for WDFW, said in a news release. “I encourage people to get involved and provide input on what they see as the priorities for this season’s fisheries.”

Warm ocean conditions and low streamflows in recent years affected several salmon stocks returning this year. As ocean conditions return to normal, experts hope for improved salmon runs in years to come.

A total of about 557,000 coho returning to Puget Sound is about 6 percent below the average over the past 10 years. Extremely low numbers predicted for the Strait of Juan de Fuca and the Snohomish River are expected to force managers to limit fishing in those areas.

While hatchery chinook returning to Puget Sound are expected to be 38 percent higher than last year, the need to protect “threatened” wild chinook could mean ongoing fishing restrictions in many areas.

Next month, NOAA, which oversees threatened and endangered species, is expected to provide guidance for managing this year’s fisheries, including possible discussions about protecting Southern Resident killer whales.

A 10-year “Comprehensive Management Plan for Puget Sound Chinook” is scheduled to be resubmitted this summer in response to comments received from NOAA on the first draft.

Plans for protecting Puget Sound chinook and Southern Resident killer whales have begun to overlap in major ways, as saving one involves saving the other.

Amusing Monday: Using musical notes to describe salmon migration

Researchers working on innumerable scientific investigations throughout the world continue to present their findings in new and interesting ways, often apart from the usual charts and graphs. Some have turned to animation, others to interactive graphics and some to the medium of sound — a process called sonification.

Jens Hegg of the University of Idaho has collaborated with several musical composers to turn the migration of young chinook salmon into a musical score — although it doesn’t exactly have a beat you want to dance to.

In the first video on this page, you can close your eyes and imagine that you are standing at the mouth of the Snake River facing upstream, Jens advises in an email. To get the full effect, you need to listen with headphones. Fish moving on the Upper Snake River are represented by notes that sound the farthest away, the Clearwater River somewhat closer and the Lower Snake River closer still.

“The ocean is at your back, so as they enter the ocean, the washy sound sounds as if it is either behind you or directly between your ears,” Jens told me.

“Each river has it’s own set of tones that build a chord,” he continued. “The YouTube video uses the same WAV recording every time, but the actual sonification program randomly assigns fish to a new tone each time it is played, so that the music actually changes and is slightly different each time it is played while maintaining the same meaning.”

I have to confess that I’ve listened to this recording more than a dozen times and I’m still trying to visualize the movement in my mind. The map on the video actually helps with the understanding, but that’s not the movement of fish on the river that I’m trying to visualize. Jens said the program was set up so that fish in the Upper Snake are heard in the right ear; fish in the Lower Snake are heard in the left ear; and fish in the Clearwater are heard in the center.

Some sonification efforts result in music that is quite enjoyable to listen to. See Water Ways, Jan. 1, 2016. But if the point is to convey information, then the underlying music can sometimes be a distraction.

Jens told me that his experiments with sound originated in a roundabout way, somewhat out of desperation, as he tried to design his doctoral dissertation to meet the cross-disciplinary requirements for the program in Water Resources Science and Management.

“I had been told that the geology/ecology combination I had used for my master’s in the same program was not quite interdisciplinary enough, so I was in search of other possibilities,” he said.

Jens had read a newspaper profile about Jonathan Middleton of Eastern Washington University, who was creating music from protein data. He was finding that the people could discern variations in complex protein structure more easily with sonic rather than visual clues.

Jens always enjoyed music. He even writes his own songs. (See second video on this page.) Combining music and scientific data provided a fascinating challenge. “Nobody could say this wouldn’t be interdisciplinary,” he noted, “and it incorporates something I enjoy already, so it seemed like something worth pursuing.”

The data needed to create the sonic composition comes from Jens’ extensive study of salmon migration based on the ear bones of fish, called otoliths. Otoliths are composed of chemicals that build up over time as a fish grows. Rivers have their own chemical signatures, which are captured in the otoliths, so the movement of salmon can be determined by the chemical record stored in their ear bones.

Understanding the timing of salmon migration can help researchers figure out why some populations are more successful than others, especially as climate change shifts the timing of streamflows and alters the temperature and dissolved oxygen levels.

Mounds of otolith data were converted to notes with the help of Middleton at Eastern and Ben Luca Robertson at the University of Virginia. Middleton had developed a software program to help researchers turn their data into sound. Courtney Flatt of Northwest Public Broadcasting separated out some of the individual sounds in a piece she produced for Earthfix. Listen below.

      1. Tracking Salmon With Musical Notes

Part of Jens’ research was to see if people could tell when the sound pattern changed, thus discerning the movement of fish from one place to another. The complexity of the sound reduced the ability of listeners to distinguish transitions, according to a new report by Jens and his collaborators in the journal Heliyon. Check out the additional sounds and animations in the “supplementary content” at the end.

It also turned out that people were able to describe the changes more accurately if they were not watching a related animation. One reason could be that the visual clues caused people to divide their attention, focusing less on the sound.

“We have a long way to go before a sonification of a large number of fish can clearly indicate movement,” Jens told me in his email. “Our paper shows that people can accurately distinguish movement of individuals played alone, two at a time, or three at a time. But we haven’t spent as much time optimizing the sonification for a large number of fish.

“Knowing how it is set up helps in interpreting it,” he said. “On repeated listenings, you can hear times where larger numbers of fish are all moving at once from one place to another. These are the kinds of trends we want to highlight in terms of understanding salmon migration timing.”

Orca protection bill stumbles and dies on state Senate floor

State legislation that would increase protection for Puget Sound’s killer whales died this week amidst confusing action on the Senate floor.

Now, orca advocates are pushing a narrower bill approved by the House to limit remote-controlled aircraft around whales, while they also hope for a $3-million budget appropriation to support other orca protection measures.

J pod, one of the three Southern Resident killer whale groups, has recently spent time in the San Juan Islands.
Photo: Dave Ellifrit, Center for Whale Research, taken under federal permits: NMFS:15569-01, DFO SARA: 388.

Whether people should be allowed to fly a drone around the endangered Southern Resident orcas seems to be the issue stirring up the most attention in the Legislature — although it is a small part of the overall effort.

Current law prohibits a “vessel or other object” from approaching the Southern Residents closer than 200 yards. Using that language, state fisheries enforcement officers have issued at least two citations to people flying their drones over orcas in the San Juan Islands, according to Sgt. Russ Mullins of Washington Department of Fish and Wildlife.

In one case filed in 2015, a Mercer Island photographer appealed the citation, saying the law does not apply to drones. The prosecutor in San Juan County eventually dropped the case while requesting a legal clarification from the state Attorney General’s Office.

The opinion from the AG’s Office says the 200-yard limitation for “other objects” should apply to drones flying over the killer whales. The final word, however, would need to come from a judge in a state court.

To eliminate any confusion, Rep. Kristine Lytton, D-Anacortes, last year introduced a bill that would prohibit “unmanned aerial systems” from approaching orcas closer than 200 yards in any direction. The one exception would be if the drone inadvertently flies over the whales while traveling to an unrelated destination. See info for HB 1031.

“My intention is to keep drones away from an icon of our state and to prevent the almost harassment, as some people in my district feel, of our orca whales,” Rep. Lytton testified after submitting her bill.

The concern is not so much about one or two drones, although any could crash and harm a whale, Sgt. Mullins told me. But if the rules do not keep drones away from the whales, it will be only a matter of time before lots and lots of whale watchers bring their drones out to photograph the orcas up close while watching from a boat.

“There is already enough drama and confusion out there,” he said. “We don’t need someone driving his boat as well as his drone around these whales.”

Some lawmakers, including Rep. Jeff Morris, D-Mount Vernon, said they would prefer to broaden the legislation to keep drones from operating around any threatened and endangered species. But no changes have been made so far, perhaps because the specific law being revised is focused entirely on the protection of killer whales.

The bill to protect orcas from drones passed the House last week on a vote of 67 to 31, with all Democrats in support of the legislation along with about a third of the House Republicans.

In the Senate, Democrats decided to take a broader approach to the issue of orca protection. Sen. Kevin Ranker, D-Orcas Island, introduced a bill to complement Gov. Jay Inslee’s proposed orca protection and restoration initiative.

The legislation, SB 6268, would more than double the number of marine patrols around the orcas, essentially protecting the animals from aggressive boaters and drone operators anytime the whales are in Puget Sound. Studies have shown that the mere presence of patrol boats leads to greater compliance with the rules, which are designed to allow the whales to find food more easily and to engage in more normal social interactions. The patrols also serve to educate boaters about how to act around the whales.

The cost for the nearly full-time patrols is estimated at about $475,000 per year. If the patrols help save the whales from extinction, it would allow a continuation of the multi-million-dollar tourism industry, not to mention the ecological importance of orcas and the joy that people experience when seeing whales.

Other provisions of the bill would require boaters to slow down to 7 knots anytime they come within 400 yards of a Southern Resident orca. Also included are proposed studies to see how human-generated noise affects the orcas, along with at least one meeting to better coordinate protection and recovery strategies between Washington state and British Columbia in Canada.

The Senate bill appeared to be sailing through the Legislature until Wednesday — the last day to approve bills that originated in the Senate. Democrats were anxious about approving two bills before the end of the day — one dealing with student debt and the other with basic education funding. They thought the so-called Orca Protection Act would be approved with barely a bump in the road.

The first amendment offered to the orca bill was the “ominously numbered amendment 666,” as Lt. Gov. Cyrus Habib dubbed it while calling on the amendment’s author, Sen. Jim Honeyford, R-Sunnyside. The hostile amendment would remove any prohibition against using drones around killer whales.

“The orcas are a really a big tourism attraction in the Puget Sound,” Honeyford told the chamber. “This would allow those tourists who have unmanned aircraft or drones or whatever you want to call them to be able to fly them. They are electric, and they are quiet, and they can take pictures. I believe it would be a great increase in tourism.”

With an eye toward the clock, the Democrats decided not to fight the amendment. They knew that the House bill was coming later to deal with drones, and they apparently hoped to get quick approval of the Orca Protection Act. After all, everyone was still speaking in favor of it.

As you can see in the video above, the Democrats were talking fast. But Republicans along with Sen. Tim Sheldon, a right-leaning Democrat from Hoodsport, appeared to be taking their time. Democrats finally gave up and pulled the bill, essentially killing it for this year.

The original bill to limit drones around the orcas, which originated in the House, is still alive after House passage. It is scheduled to be heard on Feb. 20 by the Senate Committee on Energy, Environment & Technology.

Some aspects of the Senate bill, such as the extra patrols around the orcas, could be implemented through the budget, according to Sen. Christine Rolfes, D-Bainbridge Island, who chairs the Senate Ways and Means Committee.

The House bill is titled, “Concerning the use of unmanned aerial systems near certain protected marine species.” That title does not leave much leeway to resuscitate the Senate bill by heavily amending the House bill, Sen. Rolfes told me.

Still, other efforts to protect the orcas could be accomplished with legislative funding of Gov. Inslee’s Southern Resident killer whale recovery program. He is seeking $3 million from the general fund for the next two years.

The governor’s proposal goes well beyond the idea of extra patrols around the whales. Included is increased hatchery production of chinook salmon, the orcas’ primary food; restoration of chinook salmon habitat in streams and estuaries; and steps to reduce seal and sea lion predation on chinook, which are also on the Endangered Species List.

Inslee’s budget proposal also calls for developing oil spill plans to help the orcas in an emergency, since many experts believe that an oil spill could drive the whales to extinction faster than any other problem they face.

“Funding orca recovery is an urgent issue that cannot wait another legislative session,” said Mindy Roberts, director of People for Puget Sound, a division of Washington Environmental Council. “Our region knows all too well the pressures the orcas face. They are starving because they don’t have enough salmon to feed on; toxics in their bodies are released when they go hungry; and vessels are interfering with their abilities to feed and communicate.”

As she told me in an email, “We will be looking for ways to provide emergency funding for short-term solutions identified in the bills that died and in the governor’s budget proposal.”

Pesticides and salmon: Can we see a light at the end of the tunnel?

Once again, the National Marine Fisheries Service has determined in official findings that three common pesticides — chlorpyrifos, diazinon and malathion — raise the risk of extinction for threatened and endangered salmon.

A crop duster sprays pesticide on a field near an irrigation ditch.
Photo: NOAA/USFWS

By extension, for the first time, the agency also concluded that those same pesticides threaten Puget Sound’s endangered orca population by putting their prey — chinook and other salmon — at risk.

This politically and legally charged issue — which has been around for more than 15 years — has gone beyond a debate over potential harm from pesticides. It also raises uncomfortable questions about whether our society will follow science as we try to solve environmental problems.

The immediate finding of “jeopardy” — meaning that the three pesticides pose a risk of extinction — comes in a biological opinion (PDF 415.6 mb) that is more than 3,700 pages long and covers not just salmon but, for the first time, dozens of other marine species on the Endangered Species List.

The report follows a scientific methodology for assessing the effects of pesticides that arises from suggestions by the National Academy of Sciences. The NAS report (PDF 14.2 mb) attempted to reconcile differing methods of assessing risk that had been used by the Environmental Protection Agency, the U.S. Fish and Wildlife Service and NMFS.

EPA’s original assessment raised no concerns about the effect of these pesticides on the survival of salmon populations. The original lawsuit by environmental groups forced the EPA to “consult” with NMFS, as required by the Endangered Species Act. The result was the first jeopardy finding in 2008. For background, see Water Ways, Aug. 11, 2008, in which I reported that the long wait for regulatory action on pesticides may be about over. Little did I know.

The biological opinion, or BiOp for short, examines both the direct harms to species exposed to pesticides — such as effects on behavior, reproduction and immune function — as well as indirect effects — such as whether the pesticides wipe out insects needed for the fish to eat.

The new BiOp is considered a pilot study for future pesticide assessments.

“Notably,” states the document, “this Opinion represents the first consultation using newly developed approaches and the first to assess all listed species throughout the U.S., its territories, and protectorates. Future Opinions regarding pesticides may utilize different analyses and approaches as the interagency consultation effort proceeds.”

The next step is for the EPA to restrict the use of the pesticides to reduce the risks for salmon and other species. Among suggested measures, the BiOp says those who use pesticides must limit the total amount of chemicals applied in high-risk areas, such as streams. No-spray buffers or similar alternatives are suggested.

Interim no-spray buffers, established by the courts, will remain in effect until the EPA takes action. The interim buffers were put on, taken off, and are back on as a result of the lengthy court battle between the agencies and environmental groups. Pesticide manufacturers have weighed in, arguing about the need for pesticides without undue restrictions.

The Trump administration asked the court for a two-year delay in the release of the BiOp, but NMFS ultimately met the deadline when the judge failed to rule on the request in time to make a difference.

I discussed some of the ongoing intrigue and a bit of history in a Water Ways post last August, after EPA Administrator Scott Pruitt reversed course on an impending ban on chlorpyrifos. The proposed ban, approved during the Obama administration, came in response to studies that showed how the chemical could adversely affect children’s brains.

Although it took legal action to get to this point, agency and independent scientists have worked together to study the problem and come up with solutions. The question now is whether policymakers and politicians will take reasonable steps to reduce the risks based upon these findings, which are complex, evolving and rarely definitive for all time.

As I was going back through the blog posts I’ve written about pesticides, I recalled that President George W. Bush wanted to limit scientific consultations in an effort to streamline the regulatory process — much as President Trump’s people are doing today. Check out Water Ways from March 4, 2009, which shows a video of President Obama reversing the Bush policy and speaking out for increased input from scientists.

When it comes to human health and the environment, it is good to remember that without the work of scientists, many species throughout the world would have been wiped out long ago. Human cancer, disease and brain impairment would be far worse today without regulations based on scientific findings. Science can tell us about the risk of pesticides and other threats to salmon and orcas. But knowledge is not enough. People must take reasonable actions to protect themselves and the environment. And so the story goes on.

Last week, Earthjustice, which represents environmental groups in the legal battle, released the biological opinion, which had been sent by NOAA as part of the legal case. The group posted links to the document and related information in a news release. As far as I know, nobody in the Trump administration has spoken about the findings.

Could we ever reverse the trend of shrinking Chinook salmon?

Much has been said about the decline of Puget Sound Chinook salmon. Often the discussion focuses on how to increase the salmon population, but I believe a good case can be made for increasing the size of these once-mighty “kings.”

Chinook salmon // Photo: NOAA Fisheries

There are plenty of reasons why we should strive for larger Chinook, not the least of which is the pure joy of seeing — and perhaps catching — a giant salmon. But I’m also thinking about our endangered Southern Resident killer whales, which don’t seem to find Puget Sound very hospitable anymore. As we know, the whales favor Chinook over any other food.

While it might take more energy for a killer whale to chase down a large Chinook versus a smaller one, the payoff in nutrition and energy far outweighs the expenditure, according to Jacques White of Long Live the Kings, who has been thinking about the size issue for some time.

In terms of competition, a giant returning Chinook might be difficult for a harbor seal to handle, and that could give the orcas a special advantage. Still, we are learning that harbor seals create problems for the Chinook population by eating millions of tiny smolts migrating to the ocean before they get a chance to grow up.

Perhaps the major reason that Chinook have declined in size is the troll fishing fleet off the coast of Alaska and Northern Canada, Jacques told me. It is almost simple math. It takes six, seven or eight years to grow the really large Chinook in the ocean. Today’s fishing fleet goes out into the middle of the Chinook-rearing areas up north. The longer the fishing boats stay there, the more likely it is that they will catch a fish that could have grown into a really big one.

Years ago, the fishing boats did not travel so far out to sea, Jacques said. There was no need to travel far when plentiful runs of salmon came right into the shore and swam up the rivers.

“In the old days,” he said, “you didn’t have people risking their necks off Alaska trying to catch fish in all kinds of weather and seas.”

In additional to the trollers, plenty of sport fishermen have taken the opportunity to catch and take home nice trophy fish, putting extra pressure on the biggest members of the fish population. Fishing derbies, past and present, challenged people to catch the biggest Chinook.

Long Live the Kings, a conservation group, once held fishing derbies, Jacques noted. But, after giving it some thought, everyone realized that the effort was counterproductive. “Long Live the Kings is now out of the derby business,” he said.

Gillnets, once common in Puget Sound, entrap fish by snagging their gills. Gillnets tend not to catch the truly giant salmon, because of the mesh size, but they do catch the larger salmon. Often only the smaller ones make it through to spawn — and that breeds another generation of small fish.

Fishing is not the only factor that tends to favor the survival of small fish, but it tends to be a big factor, according to Tom Quinn, a University of Washington professor of aquatic and fishery sciences. The issue is complicated, and every salmon run has its own characteristics, he said.

Hatcheries, dams and habitat alterations all tend to favor fish that can compete and survive under new conditions, and often those conditions work better for smaller fish. Changes in the food web may create a nutritional deficit for some salmon stocks, and competition at sea with large numbers of hatchery fish may be a factor. Check out the study in the journal Plos One by researchers for the Alaska Department of Fish and Game.

With the removal of two dams on the Elwha River, I’m hoping that experts can make sure that the conditions will be right for larger fish — if they can survive to make it home.

Quinn, along with doctoral student Michael Tillotson, recently published a paper showing how fishing seasons alone can alter the genetic makeup of a population along with the behavior of individual fish.

Although these characteristics are not necessarily related to the size of fish, it directly affects the fitness of the population. When people are fishing on wild stocks during open season, a fish has the best chance of survival if it shows up before the fishing season begins or after the fishing season is over. But that is not nature’s way.

Through evolution, the greatest number of fish tend to come back when environmental conditions are optimal for migration, spawning and smolt survival. If fishing seasons are timed for the peak of the run, that will reduce the percentage of fish taking advantage of the best conditions. Over time, the population gets skewed, as more fish come back during times when conditions are less than optimal.

The result is likely a lower survival rate for the overall population. The real crunch could come in the future as a result of climate change. If temperatures or streamflows become more severe, the fish may be in a no-win situation: If they show up at the most optimal time, they are more likely to get caught. if they come early or late, the environment could kill them or ruin their chances of successful spawning.

“We are reducing the ability of fish to find good environmental conditions,” said Michael Tillotson in a UW news release about the new paper. “We’re perhaps also reducing the ability of fish to adapt to climate change.”

Certain behaviors are bred into wild fish over many generations, and some traits are connected to their timing. Whether they feed aggressively or passively can affect their survival. Some salmon will wait for rain; others will wait for the right streamflow or temperature. Some smolts will stay in freshwater for extended periods; others will move quickly to saltwater. It’s not a great idea when fishing seasons, rather than environmental conditions, dictate fish behavior.

The move to mark-selective fishing — which involves removing the adipose fin of all hatchery fish before they are released — can help solve some problems for wild fish, Tom told me. Under selective fishing rules, fishers are allowed to keep the hatchery fish with a missing fin, but they must release the wild ones that still have all their fins. Some of the wild fish die from injury, but most of them survive, he said.

The key to the problem is a better understanding of the genetic makeup of the individual stocks while increasing the effort to maintain a high-level of genetic diversity. That’s an insurance policy that allows the fish to survive changing conditions.

The genes for giant Chinook have not been lost entirely, as I pointed out in Water Ways on Nov. 25. If we want to have larger Chinook, we must protect the individual Chinook that are larger. That could mean reduced ocean fishing, selective fishing for hatchery populations, and requirements to release fish larger than a certain size. Perhaps it would even be possible to selectively breed larger Chinook in a hatchery for a limited time to increase the size of the fish.

It won’t be easy, because these notions involve messing with billions of dollars in the fishing industry, not to mention complicated international relations. I will save discussions about the Pacific Salmon Treaty for another day. I will just say that this treaty is supposed to be between the U.S. and Canada. But negotiations involve tradeoffs among Washington, Canada and Alaska. Even the Endangered Species Act can’t always protect wild Puget Sound Chinook from being caught in Alaska, with the ultimate outcome that fewer fish make it home to spawn.

Remembering Dan O’Neill, who focused on things as they are

I was pleased to see the tribute story about Dan O’Neill written by Arla Shephard Bull, a regular contributing reporter for the Kitsap Sun.

Dan O’Neill
Photo: Hood Canal Salmon Enhancement Group

Dan, who played a key role in Puget Sound restoration, died in October at age 81. A celebration of his life is scheduled for Saturday from 11 a.m. to 1 p.m. at the Salmon Center in Belfair.

Dan was a longtime board member for the Hood Canal Salmon Enhancement Group based at the Salmon Center. He also served on the Washington State Transportation Commission and was a member of the Leadership Council, the governing body of the Puget Sound Partnership.

I thought Mendy Harlow, executive director of the enhancement group, described the Dan I knew in Arla’s story: “He was really focused on the facts, the science and the truth, which was something I appreciated in him as an individual, but also as a board member,” Mendy said. “He was someone who looked at the reality and not at dreams.”

I don’t remember Dan ever saying anything flashy, but I could always count on him for an honest assessment of various situations. He looked at all sides of an issue. His comments were thoughtful and down to earth.

His unique role on both the Transportation Commission and Leadership Council put him in a good position to address some serious environmental issues. We talked about stormwater runoff from highways and salmon-blocking culverts. He was downright practical about these matters, even when funding measures inexplicably fell into legislative cracks.

“The Legislature right now is dealing with all kinds of issues,” Dan told me in the midst of the culvert lawsuit pitting tribes against the state. “From a transportation standpoint, revenues are down. Gas taxes aren’t producing as much revenues, because people are driving less or using more efficient cars or whatever.”

On the Leadership Council, Dan was always looking for ways to help the public understand the issues better. He once told me that he learned from my stories about the environment, which was nice to hear.

During this time, Dan served on the board of The Greenbrier Companies, a publicly traded railroad car leasing and manufacturing company. He was also a founder of and investor in PowerTech Group, Inc., a business security software company. Sheida Sahandy, executive director of the Partnership, said she appreciated his business sense.

“Dan’s unique perspective from the business community enabled the Leadership Council and the Partnership to make more balanced and broadly informed choices about Puget Sound recovery,” Sheida said in a written statement. “He spoke eloquently on behalf of business interests, but he also kept protection and recovery of Puget Sound at the top of his priority list.”

Dan’s obituary can be found in the Kitsap Sun.