A federal judge in Oregon has ruled that releasing hatchery-raised, non-native summer steelhead into the North and South Santiam rivers in the Willamette River system harms the river’s wild winter steelhead and violates the federal Endangered Species Act.
However, Oregon Federal District Court Judge Ann Aiken did not choose to vacate a NOAA Fishery biological opinion covering the hatcheries’ operations or rule on a remedy, such as closing hatcheries, and is instead awaiting briefings from the parties involved in the case before determining how the issue will be settled. A status conference is set for Feb. 13.
The Jan. 21 opinion and order comes in a lawsuit filed against the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service and intervenor Oregon Department of Fish and Wildlife. It was initially filed by The Conservation Angler and Willamette Riverkeeper in 2017, with a follow-suit filed in January 2021. The conservation groups alleged in both lawsuits that hatchery summer steelhead harm the native wild winter steelhead and have led to their decline. Willamette winter steelhead were listed as threatened under the ESA in 1999.
The conservation groups were seeking a final ruling that the Corps and the Fish and Wildlife Service violated the ESA in funding and facilitating releases of summer steelhead, which are alleged to jeopardize winter steelhead, and that NOAA Fisheries violated the ESA in issuing an unlawful Biological Opinion and Environmental Impact Statement under the National Environmental Policy Act to analyze the effects on winter steelhead of those releases, Aiken’s opinion said.
In her opinion and order, Aikin dismissed from the lawsuit the Corps and Fish and Wildlife Service because the agencies had ceased funding steelhead hatchery operations on the North and South Santiam rivers.
“This is a huge victory for winter steelhead and the anglers who care about them. The Conservation Angler hopes this decision marks a turning point for the species and sparks a serious conversation about the future of dangerous hatchery operations,” said John McMillan, President of The Conservation Angler.
Since the 1960s, ODFW has released hatchery summer steelhead from the Marion Forks and South Santiam hatcheries, both once owned by the Corps. ODFW began releasing the fish into the North Santiam River in 1966 and into the South Santiam River in 1969. The summer steelhead stock used by ODFW originated from the Washougal River in Washington so are not native to the Willamette River watershed.
The Corps’ Willamette Valley Project includes 13 dams, but the dams at issue in the lawsuit are Big Cliff and Detroit Dams on the North Santiam River and Foster and Green Peter Dams on the South Santiam River, the two rivers covered by Aiken’s opinion. Together, those dams block winter steelhead from roughly one-third of their historic habitat.
“As a result, winter steelhead are largely confined below much of their historical spawning and rearing habitat. Habitat conditions below the dams are poor,” she says in her opinion. “Water quality in the rivers and tributaries is degraded; many are ‘water quality limited’ under the Clean Water Act due to high temperature and poor dissolved oxygen, both of which are destructive for steelhead. Further, riparian areas along the rivers and tributaries lack trees to create shade, and adjacent lands exhibit ‘poor agricultural and forestry practices.’”
Aiken’s opinion and order is at https://ugc.production.linktr.ee/c51721dd-96d5-4f57-9c05-b396fc080289_Opinion—Order-1-21-25.pdf
The releases of hatchery summer steelhead were initially to create new opportunities for recreational fishing after the Corps’ Willamette Valley Projects were completed. Some 242,000 of the hatchery smolts have been released in recent years into habitat also occupied by wild winter steelhead, according to a news release from the two conservation groups.
Aiken’s opinion says that from 2003 to 2014, an average of 595,600 hatchery summer steelhead smolts per year were released in the Upper Willamette River. Releases dropped to 242,000 with the completion by the Corps and ODFW of a Hatchery and Genetic Management Plan.
From 2007 to 2016, an annual average of 3,140 adult wild winter steelhead were counted at Willamette Falls near Oregon City in the lower Willamette River, Aiken says.
Summer hatchery steelhead return to the river in much larger numbers. Some 18,500 of the fish returned on average from 2005 to 2016 and recreational anglers caught an average of 10,000 of those fish from 2007 to 2015.
In its 2015 five-year status review for Northwest salmon and steelhead, NOAA Fisheries found that “overall abundance for the Upper Willamette River winter steelhead [distinct population segment] remains low with recent trends being stable,” Aiken says. The review found that none of the four listed winter steelhead populations in the Upper Willamette River are meeting recovery goals and all four have downward trends.
Plaintiffs initially sued the Corps on May 22, 2017, for failing to reinitiate consultation as to new information about the effects of summer steelhead on winter steelhead, and for causing jeopardy to winter steelhead by failing to submit to NOAA Fisheries a proposed summer steelhead HGMP, as the 2008 BiOp required.
On April 9, 2018, the Corps reinitiated consultation with NOAA and Plaintiffs voluntarily dismissed the case. In addition, the Corps stopped funding the production and release of hatchery summer steelhead in the South Santiam River in 2017 and in the North Santiam River in 2018, another reason the conservation groups dismissed the lawsuit.
In 2018, the Corps and ODFW submitted to NOAA Fisheries the HGMP for the summer steelhead hatchery program, the plan that is at issue in this case, Aiken says. It incorporates certain mitigation measures in accordance with the 2008 BiOp to reduce interactions between hatchery steelhead and winter steelhead. The plan included a 25 percent reduction in annual hatchery releases, down to 121,000 smolts from each hatchery. It also proposed measures such as spawning summer steelhead earlier in the hatchery, the aim of which is to have the summer steelhead leave and return earlier than when winter steelhead are spawning, resulting in less interaction during spawning time, according to the opinion.
In 2019, NOAA completed a new biological opinion of the HGMP, finding the hatchery releases do not jeopardize native steelhead, but Aiken in her Jan. 21 opinion disagreed on five counts:
- It fails to show that hatchery operations can comply with limits intended to protect winter steelhead from genetic harm from hatchery steelhead;
- It fails to consider the degraded environmental conditions below dams in the Santiam River Basin, where most winter steelhead spawn;
- The BiOp’s conclusion that competition between winter steelhead and hatchery summer steelhead is “low” is not supported by the evidence;
- The BiOp fails to consider how hatchery summer steelhead displace winter steelhead from their habitat;
- The BiOp does not consider the consequences of climate change on winter steelhead, nor does it evaluate whether the species could withstand ongoing hatchery releases on top of climate change impacts.
In releasing hatchery summer steelhead into the rivers, ODFW had reasoned that “[n]ative winter steelhead had not provided the angling opportunity desired by sportsmen and fisheries managers, since they spawned and were essentially gone from the system by late May. By the time dependable weather rolled around, the winter fish were gone,” according to a historical summary of the issue by Aiken. “The creation of a healthy summer run was intended to expand the duration of the steelhead angling season through the summer and fall,” she says.
ODFW spawns and rears summer steelhead at the South Santiam Hatchery at the base of Foster Dam, where the Foster Fish Collection Facility is located, for release into the South Santiam River; and it releases summer steelhead into the North Santiam River from the Minto Fish Collection Facility. The state fishery agency also releases summer steelhead into the mainstem Willamette, Middle Fork Willamette and McKenzie rivers
Hatchery summer steelhead generally return from the ocean to freshwater in two years, ascend Willamette Falls in June and reach the Santiam basin from June through August, the opinion says.
“Some return to traps at fish collection facilities. Some are caught by anglers. Some spawn in the wild, either with other summer steelhead, or with wild winter steelhead,” Aiken’s opinion says.
On some issues, Aiken also ruled in favor of the lawsuit’s defendants. Among those positive rulings for the defendants are:
— One of the mitigation measures included in the HGMP is Advancing Hatchery Steelhead Spawn Timing. “Accordingly, the Court finds all Defendants are correct, that the BiOp rationally concludes that “[t]he shift to a higher percentage of summer steelhead spawning in December versus January will reduce the probability of overlap between summer and winter steelhead,” a ruling in favor of defendants, Aiken wrote.
–Another mitigation measure was Suspension of Recycling: “Plaintiffs argue that the no jeopardy opinion relies on ‘terminating recycling’ of summer steelhead.” Recycling means to take adults that return to traps but are not needed for broodstock and release them back into the river to enhance fishing. “The Court finds these measures reasonably certain to occur,” she says.
— Temporarily Reduced Releases: “Plaintiffs take issue with the reduced number of releases and the fact that the HGMP permits future increases. Defendants note that, in describing the proposed annual fish release levels, the HGMP states that releases are being temporarily reduced in the South Santiam by 25%—to 121,000, and explicitly states that “[t]he proposed current release is 121,000 smolts[.]”
“In sum, these mitigation measures—advancing spawn timing, reducing releases in the South Santiam River, and terminating recycling—had “been implemented recently” or “w[ould] be implemented” under the HGMP,” Aiken says.
“Nevertheless, the BiOp estimates that the temporal overlap in spawn timing is ‘low’ between summer steelhead with winter steelhead,” Aiken continues. “As discussed above, hatchery summer steelhead in the UWR spawn from late November to February— earlier than winter steelhead, which spawn in March through June, with peak spawning in late April and early May.”
“The Court finds that, without the parties’ knowing its ruling, and reasoning for that decision—that vacatur is inappropriate.” Aiken concludes in her opinion and order. “Further, it would be disruptive and would not benefit the listed species to vacate the BiOp at this time. First, there are measures aimed at mitigating harm to the wild winter steelhead in the HGMP approved in the BiOp, which ODFW represents to the Court are already being implemented. Those measures appear to the Court to be helpful to the listed species.”
For background, see:
— CBB, June 9, 2017, “Groups Sue Corps Over Upper Willamette Summer-Run Steelhead Hatchery Releases; Says Harm Wild Fish,” https://columbiabasinbulletin.org/groups-sue-corps-over-upper-willamette-summer-run-steelhead-hatchery-releases-says-harm-wild-fish/
–CBB, March 17, 2017, “Groups Intend To Challenge Summer Steelhead Hatchery Program For Willamette, Santiam Rivers,” https://columbiabasinbulletin.org/groups-intend-to-challenge-summer-steelhead-hatchery-program-for-willamette-santiam-rivers/
–CBB, March 10, 2017, “Corps Says Five Oregon Mitigation Hatcheries Could Stay With ODFW, May Solicit Bids For Two Others,” https://columbiabasinbulletin.org/corps-says-five-oregon-mitigation-hatcheries-could-stay-with-odfw-may-solicit-bids-for-two-others/
–CBB, February 10, 2017, “Corps To Bid Out Operations At Seven Corps-Owned Oregon Hatcheries Now Managed By ODFW, https://columbiabasinbulletin.org/corps-to-bid-out-operations-at-seven-corps-owned-oregon-hatcheries-now-managed-by-odfw/
–CBB, March 27, 2015, “Judge Rules McKenzie River Salmon Hatchery Releases Sufficient To Protect Wild Fish,” https://columbiabasinbulletin.org/judge-rules-mckenzie-river-salmon-hatchery-releases-sufficient-to-protect-wild-fish/