© James Buchal 2000

The multi-factor test for whether or not to list a species is complex, and set forth in 16 U.S.C. § 1533(a)(1) (attached as Appendix A hereto).    A successful petition for delisting will require addressing each of the statutory elements.  In the context of salmon populations, however, it seems most appropriate to start with the most fundamental question, subsumed in the statutory listing factors:  what is a "species" of salmon for purposes of the ESA?


            Congress permitted NMFS to protect "any distinct population segment of any species of vertebrate fish . . . which interbreeds when mature".  16 U.S.C. § 1532(16).  NMFS' authority with respect to salmon arises from this statutory language, and federal regulations and policies interpreting (and expanding) that statutory language.

            A.        Federal Policy on Species Definition

            On November 20, 1991, NMFS issued a "Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon".   Pursuant to this policy, which appears to still govern NMFS' listing decisions, groups of Pacific Salmon will be considered a "distinct population segment" when they are 1) substantially reproductively isolated from other conspecific population units and 2) represent an important component in the evolutionary legacy of a species.  56 Fed. Reg. 58,618.  This policy established the "Evolutionarily Significant Unit" or ESU, as the basic unit in Pacific salmon listings.

On February 7, 1996, NMFS and the Fish & Wildlife Service issued a joint "Policy Regarding the Recognition of Distinct Vertebrate Population", which purports to clarify the interpretation of a "distinct population segment", requiring listing authorities to consider:  1) the discreteness of the population segment in relation to the remainder of the species; 2) the significance of the population segment in relation to the species to which it belongs; and 3) the population segment's conservation status in relation to the ESA's standards for listing.  61 Fed. Reg. 4725.  In this latter policy, the Services characterize NMFS' ESU policy as "consistent", and "a detailed extension" of the newer policy.

            Read together, the two policies identify and expand the universe of issues that should be addressed in any delisting petition, including

With regard to the Oregon coastal coho, the foundations for species definition are found in NMFS "Biological Review Team" (BRT) status reviews.  Other NMFS papers containing positions that must be addressed include:  "Scientific Disagreement Regarding Coho Salmon Status under the ESA" (9/27/96) and "Conclusions Regarding the Updated Status of Coho Salmon from Northern California and Oregon Coasts" (4/3/97).  Further relevant papers are listed in a supplement to the 1998 listing decision.

            B.        Federal Policy on Hatchery Populations

            The ESA draws no express distinction between wild and hatchery fish (or any other species).   Indeed, the ESA defines "conservation" to include "propagation" and "transplantation".  16 U.S.C. § 1532(3).  Nevertheless, the listing agencies have tended to interpret the ESA's statutory purpose to "provide a means whereby the ecosystems upon which endangered species and threatened species depend", 16 U.S.C. § 1531(b), as calling for an near-exclusive focus upon "wild" or "natural" production of listed species. 

On April 5, 1993, NMFS promulgated an "Interim Policy on Artificial Propagation of Pacific Salmon under the Endangered Species Act".  58 Fed. Reg. 17573.  The policy is sufficiently flexible to permit NMFS to include or exclude hatchery fish from listed groups at will, based upon NMFS' discretion as to whether the hatcheries are useful in recovering "natural" populations.  See also NOAA Technical Memorandum NMFS F/NWC-194, March 1991"  "Definition of "Species" Under the Endangered Species Act: Application to Pacific Salmon".

A good summary of the anti-hatchery "science" is available in NOAA Technical Memorandum NMFS-NWFSC-30, May 1997:  "Genetic Effects of Straying of Non-Native Hatchery Fish into Natural Populations".   As applied to the Oregon coastal coho, it will be important to address M. Ford & J. Hard, "Does traditional hatchery production help conserve wild salmon—a comment on the Fall Creek coho hatchery controvery" (Conservation Biology Division, NWFSC, undated).   

            C.        NMFS' Emerging "VSP" Policy

            In June 2000, NMFS issued a 156-page paper entitled "Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units" which appears to represent the future bases on which NMFS will defend listing decisions concerning Pacific salmon.   This paper introduces yet another concept:  the Viable Salmonid Population (VSP).  Pursuant to this policy, NMFS will further deconstruct ESUs into VSPs and will consider catastrophic events, long-term demographic processes, and long-term evolutionary potential  to consider the number of populations that must be maintained as "necessary for a sustainable ESU".    The document is full of aspirational statements concerning ideals for viable populations which may not be met with respect to nearly all Pacific salmon populations.

Based upon the "wide recognition among NMFS, other agencies, and independent scientists for the need to undertake conservation efforts at scales smaller than the ESU", NMFS is producing survival and recovery standards at the VSP level for a number of Northwest salmonid ESUs.  NMFS has even published a computer program, SimSalmon, for conducting population viability studies.  It has not, however, yet conducted such an analysis for the Oregon coastal coho ESU.  Ideally, a delisting petition would address the VSP innovation, and apply NMFS' own techniques to the populations of interest. 

John Emlen, who recently submitted a critique of NMFS' recent population viability efforts to Science, would be an ideal addition to a delisting effort, as he is the only scientist of which I am aware in the Pacific Northwest who has actually produced sophisticated metapopulation models of salmon extinction risk (finding nearly none for the Snake River spring/summer chinook ESU).


            The general theme of any listing petition would be that much habitat destruction occurred in the past, and that salmon habitat is generally improving because of pre-ESA regulatory measures, apart from increases in urbanization that do not form a significant portion of salmonid habitat.  The nature of habitat modification may vary significantly depending upon the species selected for a delisting effort.  In all cases, it will probably be necessary to discuss trends in water quality, in response to recent designations of most Northwest waterways as water-quality limited.

The gist of the most pertinent federal case on the subject, Oregon Natural Resources Council v. Daley, 6 F.Supp.2d 1139 (D. Or. 1998) (Oregon coastal coho), suggests that NMFS believes that listings are required to "address freshwater habitat".  NMFS has been quite aggressive in listing a great number of habitat-driven "factors of decline", based mostly upon qualitative evidence or even outright speculation.  For whatever species is selected, it will be necessary to address each of these factors, hopefully distinguishing those that actually have measurable influences on salmon population dynamics, and those of mainly theoretical interest.  One reason that the court overturned NMFS' decision not to list Oregon coastal coho is that the rabid staff in NMFS' Portland office declared that of 17 "habitat factors for decline", the Governor's coho plan would have a "low" likelihood of reversing 11, a "moderate" likelihood of reversing six, and a "high" likelihood of reversing none. 

            With respect to Oregon coastal coho salmon, the May 6, 1997 decision not to list recites habitat-related factors of decline in detail.  62 Fed. Reg. at 24,592-93.  In general, logging, road building, grazing and mining activities, urbanization, stream channelization, dams, wetland loss, beaver trapping, water withdrawals and unscreened diversions for irrigation have been identified as the critical factors affecting Oregon coastal coho.   It is my casual impression that the principal negative development with respect to coho habitat is sedimentation and pool destruction, and that there have been measurable improvements in habitat in recent years.


            This section would demonstrate a continuing diversity of salmon populations, and the lack of significant curtailment of their overall range.  Changes in abundance must also be discussed.  Mathematical models of extinction risk based upon trends in abundance should be presented here.  Obviously, the content of the section depends significantly upon the population selected for delisting.

With respect to the Oregon coastal coho, there are presumably recent upturns in abundance based in reduced fishing pressure and improving ocean conditions, although significant flooding/scouring losses may still impact populations.  The administrative record for the coho listing contains several extinction risk analyses that I have forwarded to Dr. Lannan; while it will be important to acknowledge and distinguish these studies, the VSP approach discussed in the context of species definition may prove most important.


            This section should highlight the critical nature of overfishing in population dynamics, and address the extent to which "overutilization" remains an important factor of decline.  It may also be useful to demonstrate the degree to which minor changes in harvest regimes are far more cost-effective than land use regulations—and that harvest regimes are fully regulated without the ESA.

            With respect to Oregon coastal coho salmon, the May 6, 1997 decision not to list recites "overutilization" in detail.  62 Fed. Reg. at 24,593-94.  It is important to recite the significant role of overfishing, and ODFW's poor estimation of coho abundance, to set the stage for the claim that the continuation of mid-1990s reductions in harvest will remove a primary threat to coho populations. 


            The ESA refers to information on "disease or predation".  I presume the primary factor of interest in changes favoring marine mammal and perhaps avian populations.   It will be necessary to address NMFS' February 11, 1999 "Congressional Report : Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and West Coast Ecosystems".  There is also the question of mackerel forays in recent years.

            With respect to Oregon coastal coho salmon, the May 6, 1997 decision not to list discusses diseases and predation in some detail.  62 Fed. Reg. at 24,594-96.  Unfortunately, NMFS generally denies any negative impact from pinnaped predation, arguing that "there have been no specific studies that demonstrate a cause-effect relationship between increases in pinnaped numbers and declines in salmon populations.  A layman named Don Dodds has conducted some interesting quantitative analyses of predation impacts that might be useful; he might be interested in participating in a delisting effort.


      This section of the petition should demonstrate that existing regulatory mechanisms are sufficient to protect the "species" from extinction.   On June 13, 2000, NMFS promulgated a "Draft Policy for Evaluation of Conservation Efforts When Making Listing Decisions".  65 Fed. Reg. 37102.  The policy generally requires NMFS to assess the certainty that particular conservation programs will be implemented, and the certainty to which those programs will be effective.

To that end, it would be useful to recite specific local, state and federal regulations of relevance.  Many of the more recent regulations have been generated in response to salmonid listings, raising the question whether and to what extent the regulations would be repealed if listings were repealed.  Some regulatory efforts, including NMFS-administered Habitat Conservation Plans, would presumably expire.  But most other regulations would probably remain in place, particular larger-scale regulations such as forest plans enacted to cover multiple listings and other factors. 

With respect to Oregon coastal coho, a federal court judgment exists which NMFS has interpreted as forbidding it from "considering any non-Federal efforts that will take place in the future or are voluntary in nature".  63 Fed. Reg. at 42,589.  In its decision not to list, NMFS focused on the Northwest Forest Plan; state forest practices; dredge; fill and inwater construction programs; water quality programs; state agricultural practices; state urban growth management; and harvest and hatchery management.  62 Fed. Reg. at 24,596-98. 

The treatment of harvest will be of particular concern, in that NMFS may not be permitted by the courts to assume the continuation of existing harvest regimes.  For this reason, it will be important to demonstrate the degree to which existing state regulatory regimes will protect coho stocks, perhaps based upon better measurement and estimation techniques than those previously used.


            This section of the petition would focus primarily upon weather and climate conditions, particularly ocean conditions, stressing the degree to which most of the variation in salmonid populations is a function of factors beyond human control.   In its listing decisions, NMFS has tended to lump its discussion of hatchery effects in this section, but the question of hatchery fish may more appropriately be thought of as one of species definition—assuming one concludes that there is generally no principled reason to exclude hatchery fish from groups under consideration for listing.



Appendix A:


Sec. 1533. Determination of endangered species and threatened species