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Wild Fish Conservancy files notice of intent to sue NMFS & DOC for ESA violations associated with Mitchell Act funded Columbia River hatcheries

WFC issued a 60-day Notice of Intent to sue the NMFS and the DOC for funding hatchery programs throughout the Columbia River Basin under the Mitchell Act without complying with section 7 of the ESA.
Jan 13, 2016

WILD FISH CONSERVANCY
PO Box 402 Duvall, WA 98019 · Tel 425-788-1167 · Fax 425-788-9634 ·
info@wildfishconservancy.org

Contact: Kurt Beardslee, Wild Fish Conservancy, 425-788-1167
Brian Knutsen, Kampmeier & Knutsen, PLLC, 503-841-6515

Wild Fish Conservancy files notice of intent to sue NMFS & DOC for ESA violations associated with Mitchell Act funded Columbia River hatcheries


Wednesday, January 13, 2016- Today, Wild Fish Conservancy issued a 60-day Notice of Intent to sue the National Marine Fisheries Service (NMFS) and the United States Department of Commerce (DOC) for funding hatchery programs throughout the Columbia River Basin under the Mitchell Act without complying with section 7 of the Endangered Species Act (ESA). These programs adversely affect five distinct population segments (subspecies) of Chinook salmon and steelhead listed under the ESA, as well as threatened or endangered coho, chum, and sockeye salmon and bull trout, along with their critical habitat.

Federal agencies are obligated under section 7 of the ESA to “insure that any action authorized, funded, or carried out by such agency…is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of” habitat that has been designated as critical for such species.”  In order to satisfy this requirement, federal agencies planning to fund or undertake an action that “may affect” ESA-listed species or their critical habitat are required to immediately consult with NMFS and/or the United States Fish and Wildlife Service (FWS) to quantify the effects of the proposed action and their likely adverse impact on the listed species and their critical habitat. Such consultation concludes with NMFS’ and/or FWS’ issuance of a biological opinion determining whether the action is likely to jeopardize ESA-protected species or result in adverse modification of critical habitat.  

Congress enacted the Mitchell Act in 1938, in an effort to mitigate adverse effects to salmonids in the Columbia River Basin resulting from the construction of dams, water diversions, logging, and pollution. NMFS distributes funds appropriated under the Mitchell Act that Congress has allocated to hatchery programs. Mitchell Act funding of 62 hatchery programs in the Columbia River Basin ranged from $12 to $22 million per year between 2003 and 2012.  

Since 1999, NMFS has failed to initiate or reinitiate consultation for nearly all 62 programs. Consultations prior to 1999 are outdated, as several salmon and steelhead population units in the Columbia Basin have since been listed under the ESA and considerable new scientific information regarding the adverse effects of hatchery salmon on wild, ESA-listed, salmon has become available. Both new listings and new scientific information required that previous consultations be re-initiated immediately.

The hatchery programs funded by NMFS under the Mitchell Act adversely affect the ESA-listed species and their critical habitats through a variety of mechanisms, including facility effects, fish removal activities, genetic and  ecological interactions, harvest, and monitoring and evaluation. DOC and NMFS are therefore required to consult with NMFS and the US Fish and Wildlife Service (FWS) on these effects under section 7(a)(2) of the ESA. DOC and NMFS have failed to initiate or reinitiate consultation and are in direct violation of the ESA for failing to do so.

“These programs discharge over sixty million hatchery fish into the Columbia River Basin every year, knowingly causing harm to threatened and endangered salmon, steelhead, and bull trout, “said Kurt Beardslee, executive director of Wild Fish Conservancy. “It’s ironic that NMFS is required by law to consult with themselves yet they continue to fund programs that they themselves have identified as contributing to the decline of the very same listed fish they’re charged with protecting. It’s been 17 years; NMFS needs to step up, initiate consultation, and put the needed solutions in place. We are investing millions of state and federal dollars every year on salmon recovery, and at the same time spending millions of public dollars on hatchery programs that are compromising that investment.”

The groups are represented by Kampmeier & Knutsen, PLLC of Portland, OR and Seattle, WA, and the Law office of David H. Becker, LLC, of Portland, OR.

Link - Notice of Intent to Sue for Violations of Section 7 of the Endangered Species Act Associated with Funding Hatcheries Under the Mitchell Act

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