January 3, 2002

Lindsay Ball, Director
Oregon Department of Fish and Wildlife
P. O. Box 59
Portland, OR 97207

Dear Director Ball:

Following are Oregon Trout's comments on the December 14, 2001 drafts of the Native Fish Conservation Policy and Guidelines and the Hatchery Management Policy and Guidelines. We appreciate this opportunity to provide input into this important process.

Statutory Context

The Oregon Department of Fish and Wildlife has numerous statutory requirements that must guide the development and implementation of these policies, including the Oregon Wildlife Policy (ORS 496.012), the Oregon Food Fish Policy (ORS 506.109) and the Salmon Trout Enhancement Program (ORS 496.435). Primary among all of these statutes, however, is the Oregon Wildlife Policy which requires the department "to prevent the serious depletion of any indigenous species…". That policy also requires the Oregon Fish and Wildlife Commission "to represent the public interest of the State of Oregon" and "To make decisions that affect wildlife resources of the state for the benefit of the wildlife resources…".

It's clear to Oregon Trout that the department's primary obligation under these laws is to protect and restore naturally spawning populations of wild fish in their natural habitats. That legal obligation must be clearly reflected in the overall goals for native fish conservation in these policies.

Native Fish Conservation Policy and Guidelines Draft

General Comment

The draft policy seems to provide an overall framework for making future decisions at the watershed level in the context of developing sub-basin plans. This process seems to defer many important decisions to the sub-basin planning level. What isn't clear is just how the draft NFCP is integrated with the existing goals and policies in Division 7 of ODFW's administrative rules. Specifically, how will the draft NFCP work with the General Fish Management Goals, Natural Production Policy, Wild Fish Management Policy, Wild Fish Gene Resource Conservation Policy, Hatchery Fish Gene Resource Management Policy and the Transgenic Fish Policy? Is it anticipated that any of these existing policies would be repealed or amended as sub-basin plans are developed? What will occur in areas of the state where sub-basin plans may never be developed? Oregon Trout strongly encourages the department to clearly state how the process provided in this policy will actually be coordinated with existing statutes and administrative rules and implemented over time.

Executive Summary

The draft fails to define numerous important words, including "sustainable". This definition is left up to one of the science panels discussed later on in the document. The public's desire to "balance" conservation needs with economic expectations will likely conflict with the State Wildlife Policy and other statutory obligations of the agency. Determining the biological needs of individual fish populations, and their eventual grouping into management units, is also left up to these science teams.

Background

The draft lists some of the concerns of tribes and fishing groups with the current Wild Fish Management Policy but fails to mention the primary concern of fish conservation organizations-the fact that ODFW has failed to consistently implement and comply with the WFMP.

Importance of Hatchery and Wild Fish

By placing equal importance on both wild and hatchery fish, the draft ignores the overriding obligation of the agency to protect and restore "wild",native fish. The draft talks about meeting societal needs and protecting ecological health, but fails to mention the fact that the policy must protect and restore the wild, native fish themselves.

Overarching Draft Policy Statements for Native Fish Conservation

Goals of Native Fish Conservation

(1) This goal lumps wild fish in with hatchery fish resulting in a broad policy statement with very little meaning. "Conservation shall be the priority…" what does that mean? Is conservation defined as "wise use"? We do not believe that this draft goal reflects the department's primary obligation to protect wild, native fish.
(2) Subsection (a) of this goal should specifically focus on sustainable "wild" fish populations since we do not want to encourage the reproduction of hatchery fish in the wild.
(3) This provision is one of the most disturbing in the entire document. "Serious depletion" under the Oregon Wildlife Policy would now be defined as the loss of an entire species management unit. How ODFW aggregates existing populations into management units will determine whether individual populations of wild fish can be written off. Rather than having to go through a formal rule-writing process to exempt a population, which is now currently required under the WFMP, the department would now be able to sentence individual populations to extinction as long as the health of fish in the overall management unit is sufficient.

Operating Principles for Native Fish Management

(1) Will "appropriate" be defined in the new rule? In addition to meeting general policy goals, you should add "statutes and rules".
(2) How will "appropriate" be determined in the interim before new management plans are developed?
(3) Is there scientific consensus on what "best available science" means? We agree that collaboration is important, but none of the other state, federal, or tribal partners have the same statutory duties that ODFW has.
(4) This is a good idea, however watershed councils need to be included in the final sentence as well as the first.
(5) This is another indication of just how important delineating the management unit will be. More "flexibility" (read: hatchery intervention) will be allowed when the status of wild fish in the overall management unit is healthy, regardless of the health of individual wild fish populations within the unit.

Implementation of Native Fish Conservation Rules

All existing Division 7 rules must also remain in place until amended by future sub-basin plans.

Key Elements of Native Fish Conservation Policy Implementation

As stated earlier, collaboration is fine as long as ODFW acknowledges its "overriding obligation" to protect wild fish under the State Wildlife Policy.
Comments on Specific Provisions of the Document

Page 3.
In the next to last paragraph the policy discusses the statutory obligation under the State Wildlife Policy (ORS 496.012), but provides the department's mission statement rather than the language from the State Wildlife Policy. There's a big difference between the mission statement to "manage and conserve native fish for use and enjoyment" and the wildlife policy directive "to prevent the serious depletion of any indigenous species." When referring to the State Wildlife Policy it would be essential to use the actual language from the law.

Page 4.
Under Scope there is a statement about the fact that OCN coho were recently delisted. That delisitng has now been stayed by the 9th Circuit Court pending an appeal of Judge Michael Hogan's September decision.

Page 4.
Expected Outcomes (2) requires ODFW to "optimize" all hatchery programs. This is not the best alternative to take in all instances. Also, the current language in (1) would allow individual wild fish populations to be eliminated.

Page 5.
The final paragraph talks about fully integrating this policy into ongoing watershed planning efforts, but that could prove to be very difficult given ODFW's statutory mandates. A better discussion of just how the department intends to accomplish this task would be helpful.

Page 7.
Under (b), ODFW would be allowed to make all of the initial recommendations without any outside input. You should at least be required to consult with the IMST on these initial recommendations.

(c) allows the agencies and tribes to write administrative rules without any public involvement, which is entirely unacceptable. If the department intends to utilize the services of a rules advisory committee in this capacity, it must be open to any interested party to participate.

Page 8.
(a) also limits participation in the RAC to tribes and agencies. (b) would allow decisions to be made in venues such as US v. Oregon, a secret process. These are unacceptable outcomes.

Page 9.
Under Conservation Opportunities, harvest options could include "no" harvest and development options could include "no" development, but hatchery options do not include the option of "no" hatcheries. This assumes that hatcheries are appropriate everywhere, even in areas such as the John Day basin. This is another outcome that Oregon Trout could not support.

Page 11.
Under Funding we suggest a complete prioritization of all existing programs within the agency to determine which programs are compatible with the protection and restoration of wild, native fish.

Appendix A.
This document represents a major policy statement on behalf of the Oregon Department of Fish and Wildlife and should be adopted as an additional administrative rule under Division 7. Oregon Trout assumes that this document is also a draft, although it does not indicate that fact.

Before this policy on the Role of Hatchery and Wild Fish in Native Fish Conservation can be adopted by rule, it must undergo scrutiny from both within and outside of the agency. It's not apparent who the author of this document is. Was it someone within the Natural Production Section of the agency or staff in the Fish Propagation Section? Has the policy been reviewed by the Independent Multidiciplinary Science Team to determine consistency with the Oregon Plan for Salmon and Watersheds? Has the policy been reviewed by federal agencies for consistency with the federal Endangered Species Act? We would encourage the agency to send this document out for independent peer review before it's considered any further.

Hatchery Management Policy and Guidelines Draft

General Comments
Since this is the first draft of this important policy, and it has not been subjected to the same level of review that the NFCP has had, Oregon Trout assumes that the development and implementation of this policy is on a separate time line from that of the NFCP. If our assumption is correct, this policy will be adopted sometime after the adoption of the NFCP, scheduled for this April.

With that assumption in mind, Oregon Trout has not spent the same amount of time reviewing this document as we have with the draft of the NFCP and our comments will be rather limited at this time. Also, since this document is directly related to Appendix A of the NFCP, we believe that the policy in Appendix A must be fully discussed and resolved before the draft of the HMP can be adopted.

Hatchery Premise
It seems puzzling that the department would provide a premise for the hatchery program and then proceed to state that it "will be difficult, if not impossible, to achieve". Perhaps more thought should be given to developing a hatchery premise that can be achieved "without changing natural fish characteristics or incurring risk to natural populations."

Program Types
Given some of the conclusions in recent scientific studies (Lynch & O'Hely 2001), perhaps the department should reconsider the current direction of making hatchery fish as similar to wild fish as possible. There may be certain hatchery programs that should maintain reproductive isolation from wild fish populations. How this question is answered will ultimately affect the transition of current hatchery programs to local broodstocks.

Perhaps we have overlooked it, but we don't recall any reference in the draft to the 25 hatchery facilities operated under the Salmon Trout Enhancement Program. Will all of those facilities be subject to the same provisions and requirements of the HMP as department-operated facilities?

Management Guidelines
The department admits that future funding and facility constraints will affect the implementation of these policies. What plans does the department have for securing the necessary funding for the required staff and necessary upgrades to existing facilities? Isn't it time to prioritize all of the agency's hatchery operations and determine which facilities you can continue to maintain and operate and which facilities should be closed?

Thank you for this opportunity to comment on these important documents. Oregon Trout looks forward to our continued participation in this process as it develops.

Sincerely,

Jim Myron
Conservation Director

Cc: Fish & Wildlife Commission
Governor's Office