Category Archives: Dams

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:

Federal waters rule gets batted around endlessly in the courtrooms

Confusion is nothing new when it comes to figuring out whether federal agencies have jurisdiction over certain wetlands and intermittent streams under the Clean Water Act. And now the Trump administration has guaranteed that confusion will reign a while longer.

Meanwhile, lawsuits — also nothing new to the Clean Water Act — continue to pile up at a rapid pace.

Some argue that the confusion begins with the 1972 Clean Water Act itself, which requires the U.S. Army Corps of Engineers to issue permits for any filling or dredging — which covers most development — within the “navigable waters” of the country.

Congress defined “navigable waters” in a way that has generated much confusion and many lawsuits through the years: “The term ‘navigable waters’ means the waters of the United States, including the territorial seas,” the law states.

Even the U.S. Supreme Court couldn’t figure it out and ended up adding to the confusion. In a 4-4-1 split ruling, half the justices focused on “navigable waters” with a narrow definition to include major waterways but avoid federal protection for many wetlands and intermittent streams. The other half of the justices supported a broader definition, which would protect downstream waters by also protecting upstream sources of water.

Writer Steve Zwick of Ecosystem Marketplace does a nice job explaining the legal and historical context for the confusion in a four-part series of articles. Zwick relies on, and gives credit to, the writings of William W. Sapp and William M. Lewis, Jr.

Under the previous administration of Barack Obama, the Army Corps of Engineers and the Environmental Protection Agency worked together to draft a new rule to more clearly define federal jurisdiction over streams and wetlands, as outlined by the broader Supreme Court opinion. It became known as the “Clean Water Rule” or “WOTUS” for Waters of the U.S.

Some potential opponents applauded the certainty of the proposed rule, even if they disagreed with some details. (See Water Ways, March 25, 2014.) But others believed that the states, not the federal government, should be in charge of protecting streams and wetlands. It became a common theme to argue that the new rule would regulate the tiniest ditches and farm ponds — something the Obama administration denied.

One of the opponents of the 2015 rule was Scott Pruitt, Oklahoma’s attorney general who ended up suing the Obama administration on behalf of his state. In all, 31 states joined various lawsuits against the rule, with separate lawsuits brought by farmers and industry.

Scott Pruitt, EPA administrator
Photo: EPA official portrait

“President Obama’s Environmental Protection Agency currently stands poised to strike the greatest blow to private property rights the modern era has seen,” Pruitt declared in an opinion piece co-authored by U.S. Sen. Rand Paul, a Republican from Kentucky. The piece was published in The Hill.

Pruitt, of course, is the man that President Trump later named to head the EPA, the same agency he was suing in multiple lawsuits. Pruitt said early on that he would not allow Obama’s WOTUS rule to go into effect.

Before it took effect, the WOTUS rule was tied up in the courts, including an injunction issued by the Sixth U.S. Circuit Court of Appeals in Cincinnati. Under the Clean Water Act, appeals courts can take primary action under certain conditions, but the U.S. Supreme Court agreed unanimously (PDF 923 kb) on Jan. 22 that the WOTUS rule is not one of these conditions.

And so the rule, originally scheduled to go into effect in August 2015, was put back into a confusing status, ready to go into effect in 37 states where it was not blocked by an injunction that covers 13 states under an order of the U.S. District Court in North Dakota.

“This is just all-out war. All-out litigation,” Vermont Law School professor Pat Parenteau was quoted as saying in an article by Ariel Wittenberg in E&E News. “This is good news for lawyers, but it is not going to be settled at all.”

Pruitt’s EPA then moved to finalize the Obama WOTUS rule on Jan. 31 but with an “applicability date” set for two years away. The announced intent was to overhaul the rule by pulling back federal jurisdiction over streams and wetlands.

“Today, EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” Pruitt said in a news release. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

In the interim, the EPA has announced that it will revert to previous policies and guidelines drafted following the confusing Supreme Court ruling.

You can guess what happened next. On Feb. 6, a total of 10 states, including Washington, plus Washington, D.C., filed a lawsuit in New York, claiming that Pruitt’s delaying tactics were illegal. The state officials, led by New York Attorney General Eric Schneiderman, argued that the federal government ignored the federal Administrative Procedures Act by adopting the revised rule without a meaningful comment period and in disregard of the Clean Water Act’s underlying intent of protecting the nation’s waters.

“The agencies have now suspended the Clean Water Rule without consideration of the extensive scientific record that supported it or the environmental and public health consequences of doing so,” the lawsuit (PDF 1.9 mb) says.

On the same day, the implementation delay was challenged in a separate lawsuit (2.6 mb) by two environmental groups, Natural Resources Defense Council and National Wildlife Federation.

“The Agencies’ only proffered rationale for the suspension is that it will promote regulatory clarity and certainty,” the lawsuit says. “In light of the administration’s open antipathy for the rule’s provisions, that rationale rings hollow. But it is also belied by the record. There is no evidence that suspending the rule will promote clarity or certainty, and ample evidence that suspending the Rule will create confusion and uncertainty.”

In Ariel Wittenberg’s story in E&E, Georgetown Law professor William Buzbee talks about how messy things have become.

“If the administration had taken the time to put out proposals that truly and fully engaged with the merits of the Clean Waters Rule and tried to come up with a new read, then it would be ordinary days in the courts,” he was quoted as saying. “But anything they do now, given their proposals, is likely to be legally vulnerable.”

Now the possibility exists that some courts could delay implementation of the original WOTUS rule while others reject the two-year delay. In any case, there is no end in sight to the legal battles, and nobody can be certain about what kind of projects will require federal permits.

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.

Amusing Monday: celebrating the nation’s wild and scenic rivers

The value and enjoyment of rivers throughout the United States will be highlighted over the next year, as the Wild and Scenic Rivers Act approaches its 50th anniversary on Oct. 2, 2018.

Some 12,700 miles of rushing waters are protected on 208 rivers designated in 40 states plus the Commonwealth of Puerto Rico. A Wild and Scenic River designation is the strongest protection for rivers in our country, safeguarding clean water, recreation, fish and wildlife, and cultural heritage, according to American Rivers, an environmental group focused on river protection. Check out the webpage “Why do we need wild rivers?”

“Free-flowing rivers create natural riparian areas that foster healthy, abundant, and diverse wildlife and are the centerpieces of rich ecological processes,” according to a news release from the National Parks Service. “Recreationally, free-flowing rivers offer unparalleled inspirational experiences from challenging whitewater to placid fishing. Through the arterial connections of rivers to communities, we all live downstream of a Wild and Scenic River.”

The first video on this page, called “Make Your Splash,” celebrates a family enjoying water recreation. It was produced by the Park Service in conjunction with three other federal agencies and several nonprofit organizations.

To call attention to the importance of wild rivers, American Rivers has launched a program called “5,000 Miles of Wild” with the goal of putting an additional 5,000 miles of wild rivers into protected status.

As part of the effort, the organization is working to collect 5,000 stories from people around the country who have a place in their hearts for special rivers, as explained in “About the campaign.” The second video, “5,000 miles of wild,” promotes the campaign.

I think you will enjoy the personal stories about rivers and the photos submitted to the page “My River Story.”

I would like to see more submissions from people in Washington state, because we have some of the most beautiful and productive rivers in the U.S., and I know there are many personal connections to these special places. Among the Washington folks submitting stories is Paul Cain of Bow, who applauds the efforts of state fish and wildlife officers in an encounter along Samish River in North Puget Sound. Also, Peggy File talks about growing up on the Skagit River, one of the rivers designated wild and scenic.

Former President Jimmy Carter offers a testimonial about taking his own life into his hands on the Chattooga River, which flows from North Carolina into Georgia. The powerful river, he said, “kind of opened my eyes to a relationship between a human being and a wild river that I had never contemplated before.”

As president, Carter said he vetoed about 16 different dam projects throughout the country, because he believed they were counterproductive to the well-being of Americans.

American Rivers has compiled a list of rivers that warrant protection on its page “What is the 5,000 Miles of Wild campaign?” In Washington, protections are proposed for 688 miles of rivers in the North Cascades, including the Nooksack River, and 454 miles of rivers in the Olympic Mountains (Wild Olympics Campaign).

Fiftieth anniversary water bottle, Cafe Press

For existing wild and scenic rivers, take a look at the U.S. map or the map of Washington state. Other information is compiled on a government website called “National Wild and Scenic Rivers System.” The website also has a page with information about the 50th anniversary celebration. One can even purchase a variety of clothing and products showing off the 50th anniversary logo from Cafe Press.

An audio project by American Rivers was composed by intern Annemarie Lewis, who worked this past summer in the Colorado River Basin. She talks about culture, history and science of rivers, as related by a variety of people closely connected to this issue. The project is called “We are rivers: Conversations about the rivers that connect us.”

Speaking of American Rivers projects, I got a kick out of a video completed in 2015 called “50 Favorite Things We Love about Rivers.” See Water Ways, Feb. 23, 2015.

Facing the possibility of extinction for the killer whales of Puget Sound

Southern Resident killer whales, cherished by many Puget Sound residents, are on a course headed for extinction, and they could enter a death spiral in the not-so-distant future.

It is time that people face this harsh reality, Ken Balcomb told me, as we discussed the latest death among the three pods of orcas. A 2-year-old male orca designated J-52 and known as Sonic died tragically about two weeks ago.

Two-year-old J-52, known as Sonic, swims with his mother J-36, or Alki, on Sept. 15. This may have been the last day Sonic was seen alive.
Photo: Ken Balcomb, Center for Whale Research

The young orca was last seen in emaciated condition, barely surfacing and hanging onto life near the entrance to the Strait of Juan de Fuca on Sept. 15. Ken, director of the Center for Whale Research, said the young whale was attended to by his mother Alki, or J-36, along with a male orca, L-85, known as Mystery — who may have been Sonic’s father, but more about that later.

Extinction, Ken told me, is “very real” — not some ploy to obtain research dollars. The population of endangered Southern Residents has now dropped to 76 — the lowest level since 1984. Most experts agree that a shortage of chinook salmon — the primary prey of the orcas — is the greatest problem facing the whales.

Last week, the Leadership Council — the governing body of the Puget Sound Partnership — discussed what role the partnership should play to “accelerate and amplify efforts” to restore chinook salmon runs and save the orcas. Chinook themselves are listed as a threatened species.

Graph: Center for Biological Diversity

Puget Sound Partnership is charged by the Legislature with coordinating the restoration of Puget Sound, including the recovery of fish and wildlife populations.

The Leadership Council delayed action on a formal resolution (PDF 149 kb) in order to allow its staff time to identify specific actions that could be taken. Although the resolution contains the right language, it is not enough for the council to merely show support for an idea, said Council Chairman Jay Manning.

Sonic was one of the whales born during the much-acclaimed “baby boom” from late 2014 through 2015. With his death, three of the six whales born in J pod during that period have now died. No new calves have been born in any of the Southern Resident pods in nearly a year.

Meanwhile, two orca moms — 23-year-old Polaris (J-28) and 42-year-old Samish (J-14) — died near the end of 2016. Those deaths were followed by the loss of Granny (J-2), the J-pod matriarch said to have lived more than a century. Another death was that of Doublestuf, an 18-year-old male who died last December.

Three orcas were born in L pod during the baby boom, and none of those whales has been reported missing so far.

Ken believes he witnessed the final hours of life for young Sonic, who was lethargic and barely surfacing as the sun set on the evening of Sept. 15. Two adults — Sonic’s mother and Mystery — were the only orcas present, while the rest of J pod foraged about five miles away.

Sonic seen with his mother in June.
Photo: Ken Balcomb, Center for Whale Research

That was the last time anyone saw Sonic, although his mother Alki as well as Mystery were back with J pod during the next observation four days later. Ken reported that Alki seemed distressed, as often happens when a mother loses an offspring.

Ken admits that he is speculating when he says that Mystery may have been Sonic’s father. It makes for a good story, but there could be other reasons why the older male stayed with the mother and calf. Still, researchers are engaged in studies that point to the idea that mature killer whales may actually choose a mate rather than engaging in random encounters. I’m looking forward to the upcoming report.

I must admit that this issue of extinction has been creeping up on me, and it’s not something that anyone wants to face. Food is the big issue, and chinook salmon have been in short supply of late. It will be worth watching as the whales forage on chum salmon, as they are known to do in the fall months.

“This population cannot survive without food year-round,” Ken wrote in a news release. “Individuals metabolize their toxic blubber and body fats when they do not get enough to eat to sustain their bodies and their babies. Your diet doctor can advise you about that.

“All indications (population number, foraging spread, days of occurrence in the Salish Sea, body condition, and live birth rate/neonate survival) are pointing toward a predator population that is prey-limited and nonviable,” he added.

The Center for Biological Diversity, which was involved in the initial lawsuit that led to the endangered listing for the whales, is calling upon the NOAA’s National Marine Fisheries Service to move quickly to protect orca habitat along the coasts of Washington, Oregon and California. Currently designated critical habitat is limited to Puget Sound, even though the whales are known to roam widely along the coast.

“The death of another killer whale puts this iconic population on a dangerous path toward extinction,” Catherine Kilduff of CBD said in a news release. “If these whales are going to survive, we need to move quickly. Five years from now, it may be too late.”

How fast the whales will go extinct is hard to determine, experts say, but the current population is headed downward at an alarming rate, no matter how one analyzes the problem.

“I would say we are already in a very dangerous situation,” said Lance Barrett-Lennard, senior marine mammal researcher at the Vancouver Aquarium. “If this trajectory continues and we lose two or three more from deaths or unsuccessful birth, we will be in a real spiral,” he told reporter Richard Watts of the Times Colonist in Victoria, B.C.

A five-year status review (PDF 4.3 mb), completed last December by NMFS, takes into account the number of reproductive males and females among the Southern Residents, the reproductive rates, and the ratio of female to male births (more males are being born). As the population declines, the risk of inbreeding — and even more reproductive problems — can result.

Eric Ward of NOAA, who helped write the status report, said the agency often estimates an extinction risk for endangered populations, but the actual number of Southern Residents is too small to produce a reliable number. Too many things can happen to speed up the race toward extinction, but it is clear that the population will continue to decline unless something changes.

As Ken describes it in simple terms, Southern Resident females should be capable of producing an offspring every three years. With 27 reproductive females, we should be seeing nine new babies each year. In reality, the average female produces one offspring every nine years, which is just three per year for all three pods. That is not enough to keep up with the death rate in recent years. To make things worse, reproductive females have been dying long before their time — and before they can help boost the population.

Experts talk about “quasi-extinction,” a future time when the number of Southern Residents reaches perhaps 30 animals, at which point the population is too small to recover no matter what happens. Some say the population is now on the edge of a death spiral, which may require heroic actions to push the population back onto a recovery course.

As described in the five-year status review, prey shortage is not the only problem confronting the Southern Residents. The animals are known to contain high levels of toxic chemicals, which can affect their immune systems and overall health as well as their reproductive rates. Vessel noise can make it harder for them to find fish to eat. On top of those problems is the constant threat of a major oil spill, which could kill enough orcas to take the population down to a nonviable number.

The graph shows the probability that the Southern Resident population will fall below a given number (N) after 100 years. Falling below 30 animals is considered quasi-extinction. The blue line shows recent conditions. Lines to the left show low chinook abundance, and lines to the right show higher abundance.
Graphic: Lacy report, Raincoast Conservation Foundation

Despite the uncertainties, Robert Lacey of Chicago Zoological Society and his associates calculated in 2015 that under recent conditions the Southern Resident population faces a 9 percent chance of falling to the quasi-extinction level within 100 years. Worsening conditions could send that rate into a tailspin. See report for Raincoast Conservation Foundation.

What I found most informative was how the probability of extinction changes dramatically with food supply. (See the second graph on this page.) A 10 percent decline in chinook salmon raises the quasi-extinction risk from 9 percent to 73 percent, and a 20 percent decline raises the risk to more than 99 percent.

On the other hand, if chinook numbers can be increased by 20 percent, the whales would increase their population at a rate that would ensure the population’s survival, all other things being equal. Two additional lines on the graph represent a gradual decline of chinook as a result of climate change over the next 100 years — a condition that also poses dangerous risks to the orca population.

The close links between food supply and reproductive success are explored in a story I wrote last year for the Encyclopedia of Puget Sound.

At last Wednesday’s Puget Sound Leadership Council meeting, members discussed a letter from the Strait (of Juan de Fuca) Ecosystem Recovery Network (PDF 146 kb) that called on the Puget Sound Partnership to become engaged in salmon recovery efforts outside of Puget Sound — namely the Klamath, Fraser and Columbia/Snake river basins.

“Such collaborative efforts must be done for the benefit of both the SRKW and chinook fish populations, without losing sight of the continuing need to maintain and improve the genetic diversity of these fish populations …” states the letter.

A separate letter from the Puget Sound Salmon Recovery Council (PDF 395 kb) also asks the Puget Sound Partnership to become more engaged in orca recovery. The group is calling on the partnership to support salmon recovery statewide, “relying on each region to identify strategies to restore robust salmon runs.”

Rein Attemann of Washington Environmental Council said salmon on the Columbia and Snake rivers, as well as he Fraser River in British Columbia, are “vitally important” to the recovery of the Southern Resident killer whales, and Puget Sound efforts should be coordinated with other programs.

Jim Waddell, a retired civil engineer with the Army Corps of Engineers, spoke forcefully about the need to save chinook salmon and the Southern Residents, starting by tearing down dams on the Snake River.

“We are out of time,” Waddell said. “The Corps of Engineers have it within their power to begin breaching the dams within months…. The orcas cannot survive without those chinook.”

An environmental impact statement on chinook recovery includes the option of breaching the dams, something that could be pushed forward quickly, he said.

“Breaching the Snake River dams is the only possibility of recovery,” Waddell said. “There is nothing left.”

Stephanie Solien, a member of the Leadership Council, said speaking up for orcas in the fashion proposed is not something the council has done before, but “we do have a responsibility to these amazing animals and to the chinook and to the tribes.”

The council should work out a strategy of action before moving forward, she added, but “we better get to moving on it.”

Amusing Monday: A quiz for you based on the ‘Puget Sound Fact Book’

Two years ago, I worked with a group of Puget Sound researchers and environmental writers to produce the “Puget Sound Fact Book” (PDF 27.6 mb) for the Encyclopedia of Puget Sound and Puget Sound Institute. The project was funded by the Environmental Protection Agency to provide a quick reference for anyone interested in the Puget Sound ecosystem.

I have pulled out some of the facts (with excerpts from the fact book) to create a 15-question quiz for this “Amusing Monday” feature. The answers and quotes from the book can be found below the quiz.

1. Puget Sound averages 205 feet deep. What is its greatest depth?

A. 300 feet
B. 600 feet
C. 900 feet
D. 1,200 feet

2. It is said that Puget Sound was carved out by a series of glaciers. What was the name of the last ice glaciation some 15,000 years ago?

A. Vashon
B. Cascade
C. Blake
D. Olympia

3. One river is responsible for at least one-third of all the freshwater flowing into Puget Sound. What river is it?

A. Snohomish
B. Skagit
C. Skokomish
D. Puyallup

4. How much water is contained in the main basin of Puget Sound, which includes all of the inlets south of Whidbey Island?

A. 5 cubic miles
B. 10 cubic miles
C. 40 cubic miles
D. 80 cubic miles

5. How many Washington counties have shorelines that front on Puget Sound, including the Strait of Juan de Fuca and waters around the San Juan Island? (That’s the definition of Puget Sound used by the Puget Sound Partnership.)

A. Six
B. Eight
C. Ten
D. Twelve

6. What percentage of the total Washington state population lives in counties with shorelines on Puget Sound?

A. 58 percent
B. 68 percent
C. 78 percent
D. 88 percent

7. Puget Sound is part of the Salish Sea, which extends into Canada. How many marine mammals are considered by researchers to be “highly dependent” on habitats in the Salish Sea?

A. 10
B. 20
C. 30
D. 40

8. Three types of killer whales spend their lives in and around the Salish Sea. “Residents” specialize in eating chinook salmon, and “transients” specialize in eating marine mammals. What do the so-called “offshore” killer whales specialize in eating?

A. Sharks
B. Squid
C. Plankton
D. Birds

9. Rockfish are a long-lived species that live in rocky areas of Puget Sound. How many species of rockfish can found in the waterway?

A. Four
B. 12
C. 21
D. 28

10. What is the length of shoreline in the main basin of Puget Sound, which includes all inlets south of Whidbey Island?

A. 246 miles
B. 522 miles
C. 890 miles
D. 1,332 miles

11. Bulkheads and other shoreline armoring disrupt the ecological functions of natural shorelines. What percentage of the Puget Sound shoreline is armored with man-made structures?

A. 7 percent
B. 17 percent
C. 27 percent
D. 37 percent

12. How many dams could be counted in 2006 in the greater Puget Sound region, including the Elwha dams on the Olympic Peninsula?

A. 136
B. 236
C. 336
D. 436

13. Puget Sound Partnership tracks the attitudes and values of Puget Sound residents. What percentage of the population believes that cleaning up the waters of Puget Sound is an “urgent” priority?

A. 40 percent
B. 50 percent
C. 60 percent
D. 70 percent

14. Climate change can be expected to result in significant changes in the Puget Sound region. Which of the following is something we are likely to see over the next 40 years?

A. Higher 24-hour rainfall totals
B. Higher peak flows in streams with more flooding
C. Α small change in annual rainfall totals
D. All of the above

15. Climate change also affects sea life through ocean acidification. Few species in seawater are expected to avoid impacts. Some of the greatest concerns are being expressed for which animals?

A. Shellfish
B. Sharks
C. Salmon
D. Sea lions

Answers:

1. Puget Sound averages 205 feet deep. What is its greatest depth? Answer: C, 900 feet

“Puget Sound averages 205 feet deep, with the deepest spot near Point Jefferson in Kitsap County at more than 900 feet.”

2. It is said that Puget Sound was carved out by a series of glaciers. What was the name of the last ice glaciation some 15,000 years ago? Answer: A, Vashon

“Puget Sound, as we know it today, owes much of its size and shape to massive ice sheets that periodically advanced from the north, gouging out deep grooves in the landscape. The most recent glacier advance, about 15,000 years ago, reached its fingers beyond Olympia. The ice sheet, known as the Vashon glacier, was more than a half-mile thick in Central Puget Sound and nearly a mile thick at the Canadian border.”

3. One river is responsible for at least one-third of all the freshwater flowing into Puget Sound. What river is it? Answer: B, Skagit

“The annual average river flow into the Sound is about 1,174 cubic meters per second, and a third to a half of this comes from the Skagit River flowing into Whidbey Basin. It would take about 5 years for all the rivers flowing into the Sound to fill up its volume … “

4. How much water is contained in the main basin of Puget Sound, which includes all of the inlets south of Whidbey Island? Answer: C, 40 cubic miles

“Chesapeake Bay, which filled the immense valley of an ancient Susquehanna River, covers about 4,480 square miles — more than four times the area of Puget Sound (not including waters north of Whidbey Island). But Chesapeake Bay is shallow — averaging just 21 feet deep. In comparison, Puget Sound averages 205 feet deep… Consequently, Puget Sound can hold a more massive volume of water — some 40 cubic miles, well beyond Chesapeake Bay’s volume of 18 cubic miles.”

5. How many Washington counties have shorelines that front on Puget Sound, including the Strait of Juan de Fuca and waters around the San Juan Island? (That’s the definition of Puget Sound used by the Puget Sound Partnership.) Answer: D, twelve

“The Puget Sound coastal shoreline lies within 12 of Washington state’s 39 counties: Clallam, Island, Jefferson, King, Kitsap, Mason, Pierce, San Juan, Skagit, Snohomish, Thurston and Whatcom. An additional two counties (Lewis County and Grays Harbor County) are also within the watershed basin, although they do not have Puget Sound coastal shorelines….”

6. What percentage of the total Washington state population lives in counties with shorelines on Puget Sound? Answer: B, 68 percent

“As of 2014, the 12 Puget Sound coastal shoreline counties accounted for 68 percent of the Washington State population — 4,779,172 out of 7,061,530, according to the U.S. Census Bureau.”

7. Puget Sound is part of the Salish Sea, which extends into Canada. How many marine mammals are considered by researchers to be “highly dependent” on habitats in the Salish Sea? Answer: C, 30 marine mammals

“Thirty-eight species of mammals depend on the Salish Sea. Of the 38 species of mammals that have been documented using the Salish Sea marine ecosystem, 30 are highly dependent, 4 are moderately dependent, and 4 have a low dependence on the marine or intertidal habitat and marine derived food when present.”

8. Three types of killer whales spend their lives in and around the Salish Sea. “Residents” specialize in eating chinook salmon, and “transients” specialize in eating marine mammals. What do the so-called “offshore” killer whales specialize in eating? Answer: A, sharks

“Three ecotypes of killer whales (Orcinus orca) can be found in the Salish Sea. These distinct population segments or designatable units are classified as fish-eating Residents (both the Northern and Southern Resident populations), marine-mammal-eating transients (West Coast Transients), and fish eaters that specialize in sharks called Offshore Killer Whales.”

9. Rockfish are a long-lived species that live in rocky areas of Puget Sound. How many species of rockfish can found in the waterway? Answer: D, 28 species

“The Puget Sound has 28 species of rockfish. Rockfish are known to be some of the longest lived fish of Puget Sound. Maximum ages for several species are greater than 50 years. The rougheye rockfish can live up to 205 years.”

10. What is the length of shoreline in the main basin of Puget Sound, which includes all inlets south of Whidbey Island? Answer: D, 1,332 miles

“The coastline around Puget Sound is 2,143 km (1,332 miles) long. It would take about 18 unceasing days and nights to walk the entire shoreline if it were passable — or legal — everywhere. Note: this distance refers to Puget Sound proper and does not include the San Juan Islands or the Strait of Juan de Fuca.”

11. Bulkheads and other shoreline armoring disrupt the ecological functions of natural shorelines. What percentage of the Puget Sound shoreline is armored with man-made structures? Answer: C, 27 percent armored

“The amount of artificial shoreline has increased by 3,443 percent since the mid- to late-1800s. For example, shoreline armoring — such as bulkheads and riprap — has been constructed on an average 27 percent of the Puget Sound shoreline, but as high as 63 percent of the central Puget Sound shoreline.”

12. How many dams could be counted in 2006 in the greater Puget Sound region, including the Elwha dams on the Olympic Peninsula? Answer: D, 436 dams

“As of 2006, there were 436 dams in the Puget Sound watershed. Dams alter the water flow of rivers and trap sediment, which affect deltas and embayments at the mouths of these rivers and streams. For example, there was nearly 19 million cubic meters of sediment trapped behind the Elwha and Glines Canyon Dams on the Elwha River ¬ enough sediment to fill a football field to the height of the Space Needle more than 19 times.”

13. Puget Sound Partnership tracks the attitudes and values of Puget Sound residents. What percentage of the population believes that cleaning up the waters of Puget Sound is an “urgent” priority? Answer: C, 60 percent

“A related, ongoing survey has been gauging the attitudes and values of individual Puget Sound residents, beginning with the first survey in 2008. Since the survey’s inception, more than 60 percent of the population has held to the belief that cleaning up the waters of Puget Sound is an ‘urgent’ priority.”

14. Climate change can be expected to result in significant changes in the Puget Sound region. Which of the following is something we are likely to see over the next 40 years? Answer: D, all of the above

“Projected changes in total annual precipitation are small (relative to variability) and show increases or decreases depending on models, which project a change of −2 % to +13 % for the 2050s (relative to 1970-1999) ….

“More rain in autumn will mean more severe storms and flooding. Annual peak 24-hour rainfall is projected to rise 4 to 30 percent (depending on greenhouse emissions levels) by the late 21st century. Hundred-year peak stream flows will rise 15 to 90 percent at 17 selected sites around Puget Sound. In the flood-prone Skagit Valley, the volume of the 100-year flood of the 2080s will surpass today’s by a quarter, and flooding and sea-level rise together will inundate 75 percent more area than flooding alone used to.

“At the other extreme, water will become scarcer in the spring and summer…. By the 2080s, average spring snowpack in the Puget Sound watershed is projected to decline 56 to 74 percent from levels 100 years earlier. The decline will reach 80 percent by the 2040s in the headwaters of the four rivers (the Tolt, Cedar, Green, and Sultan) serving the cities of Seattle, Tacoma, and Everett — reflecting the fact that their snowpacks are already very low, hence vulnerable. By the 2080s, April snowpack will largely disappear from all four watersheds, leaving Puget Sound’s major rivers low and dry in summer.”

15. Climate change also affects sea life through ocean acidification. Few species in seawater are expected to avoid impacts. Some of the greatest concerns are being expressed for which animals? Answer: A, shellfish

“Another factor has also made the Northwest a frontline for acidification: the importance of its shellfish industry, together with the special vulnerability of one key component, larval oysters. University of Washington researchers recently identified worrisome effects on other species with vital commercial or ecological importance. Acidification affects the ability of mussels to produce byssus, the tough adhesive threads that anchor them to their rocks against waves and surf — a life-and-death matter for a mussel. The native bay mussel (Mytilus trossulus) also loses byssal strength when water temperatures surpass 20 degrees C., whereas Mediterranean mussels (M. galloprovincialis) grow more byssus as the waters warm. This suggests a potential species succession, from native to introduced mussels, as Puget Sound becomes warmer and more acidic.

“Potentially more ecologically devastating are acidification’s effects on copepods and krill, small swimming crustaceans at the base of the marine food web….. Krill also inhabit deeper, more acidic waters than copepods, compounding their exposure. Their loss would be grievous for the fishes, seabirds and whales that depend on them.”

Floodplains by Design solves problems through careful compromise

Water

The water understands
Civilization well;
It wets my foot, but prettily,
It chills my life, but wittily,
It is not disconcerted,
It is not broken-hearted:
Well used, it decketh joy,
Adorneth, doubleth joy:
Ill used, it will destroy,
In perfect time and measure
With a face of golden pleasure
Elegantly destroy.

— Ralph Waldo Emerson (1803-1882)

Floodplains by Design, a new program that combines salmon restoration with flood control, is a grand compromise between humans and nature.

I got to thinking about this notion while writing a story for the Encyclopedia of Puget Sound regarding the need to protect and restore floodplains in order to improve habitat for salmon and other species. The story is part of a series on Implementation Strategies to recover Puget Sound. Check out “Floodplain projects open doors to fewer floods and more salmon.”

Floodplains by Design is an idea born from the realization that building levees to reduce flooding generally causes rivers to rush faster and flow higher. Under these conditions, the rushing waters often break through or overtop the levees, forcing people to rebuild the structures taller and stronger than before.

Flooding along the Snoqualmie River
Photo: King County

Salmon, which have evolved through untold numbers of prehistoric floods, were somehow forgotten in the effort to protect homes and farmland built close to a river. Absent the levees, floodwaters would naturally spread out across the floodplain in a more relaxed flow that salmon can tolerate. High flows, on the other hand, can scour salmon eggs out of the gravel and flush young fish into treacherous places.

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Bremerton loses ground in annual ‘water pledge’ competition among cities

Bremerton may need some help to get back on top in the National Mayor’s Water Pledge Challenge, an annual competition that encourages people to take specific steps to save water and help the environment.

As usual, Bremerton started out on top in its population category when the contest began on April 1. The city held its own through most of last week. But now the city has slid down to number 4, which means that more water customers are needed to take the pledge. Go to My Water Pledge.

Bremerton has always done well in the competition, perhaps largely because of the enthusiasm of Mayor Patty Lent, who likes to see people conserve water and always wishes the city can come out on top in the competition. This year, a good showing in the competition would be especially nice, considering that Bremerton is celebrating the centennial of its unique water system.

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Interactive map brings together extensive salmon information

When I first started covering the environment for the Kitsap Sun in the early 1980s, I convinced a state fish biologist to make me a copy of a notebook containing information about salmon streams on the Kitsap Peninsula.

Winter steelhead streams in Puget Sound from SalmonScape. Map: Washington Department of Fish and Wildlife
Winter steelhead streams in Puget Sound, as shown in SalmonScape, a GIS-based interactive map.
Map: Washington Department of Fish and Wildlife

Hand-drawn maps of streams, both big and small, along with field notes about the migration of salmon, stream blockages and other information were listed in that notebook. Through the years, the information was updated, combined with other data and eventually transferred to electronic databases for wider access.

A few years ago, much of this little-known information was digitized into a map that could be accessed by anyone from a web browser. The map, using a geographic information system, is such a valuable tool that I wanted to make sure that readers of this blog are aware of it.

It was given the name SalmonScape, and the map shows salmon streams across the state (click “hydrography”); salmon migration by species (“fish distribution”); stream blockages (“fish passage”); and hatcheries, fish traps and major dams (“facilities”).

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Death of female orca with young son raises worries about the future

It has been hard to take the news that J-28, a 23-year-old female killer whale named Polaris, is now missing and presumed dead — even though I knew this news has been coming since August. It now appears likely that her 11-month-old son J-54, named Dipper, will not survive either.

On Oct. 2, J-28, named Polaris, was photographed with an indentation behind her blow hole, a condition known as “peanut head.” Polaris has now been confirmed as dead, and her son is probably dead as well, researchers say.
On Oct. 2, J-28, named Polaris, was photographed with an indentation behind her blow hole, a condition known as “peanut head” and related to malnutrition. Her 11-month-old son, shown with her, also was struggling to survive. Polaris has now been confirmed as dead, and researchers say her son is probably dead as well.
Photo: Ken Balcomb, Center for Whale Research

I sadly reported on Polaris’ “super-gaunt” condition in Water Ways (Aug. 24) after talking to Ken Balcomb of the Center for Whale Research. Until recently, various whale-watching folks, including CWR researchers, have reported that Polaris was still alive. She was generally seen moving slowly and in poor shape, but at times she seemed to have more energy, raising hopes that she might recover. But the last sighting of Polaris was Oct. 19 in the Strait of Juan de Fuca.

During a press conference Friday, Ken announced the death of Polaris, as he spoke out to raise awareness about the plight of Puget Sound orcas.

Ken said Dipper’s sister and aunt were attempting to care for the young orphan, but no other lactating females have moved in to provide milk, so he likely will die if he is not already dead.

Ken read a personally penned obituary for Polaris, noting that she was popular with whale watchers, in part because she was easily identified by a nick in her dorsal fin. She acquired the distinctive mark when she was nine years old.

At the press conference, Ken talked about the most concerning problem facing the orcas: a shortage of chinook salmon, their primary prey. The food shortage is exacerbated when the whales burn fats stored in their blubber, causing the release of toxic chemicals from their blubber into their bloodstream. Chemicals can affect the immune and reproductive systems, as well as other hormonal systems.

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