NOAA Fisheries on Thursday issued the final policy it will use when considering the status of hatchery produced fish in the agency's determination of whether particular fish stocks will require protection under the Endangered Species Act.

The policy, delivered after more than three years of work, immediately drew criticism. Some say hatchery-origin fish should be counted along with naturally spawning fish in determining the status of a particular stock. Others say they should not. Neither side was pleased this week.

"They essentially denied everybody's petitions," Trout Unlimited's Kaitlin Lovell said of listing decisions that hinged on the new policy.

The agency also made final listing decisions for 16 Pacific Northwest salmon populations this week. The decisions reaffirm previous listing decisions for 15 of the salmon stocks and add the Lower Columbia River coho to the ESA list.

The agency also announced Tuesday that it was deferring decisions on the Oregon Coast coho salmon and 10 steelhead/rainbow trout stocks for six months for further scientific review.

Trout Unlimited joined a coalition of 17 fishing and conservation groups in late 2001 that petitioned NOAA Fisheries to list only the naturally spawning component of 14 separate salmon and steelhead stocks. The proposed listing determinations issued June 14, 2004 ruled out that proposal. The final determinations announced Thursday add more than 130 hatchery stocks to the ESA listings, the agency says.

A set of petitions -- submitted in the wake of the so-called "Alsea" decision -- from the Washington Farm Bureau et al., the Columbia-Snake River Irrigators' Association, the Kitsap Alliance of Property Owners and the Skagit County Cattlemen's Association, seven anonymous petitioners, the Greenberry Irrigation District and the Interactive Citizens United asked that numerous stocks be delisted because they felt the inclusion of hatchery fish would push populations above listing levels. Stocks are listed if they are believed to be in danger of going extinct.

The new policy is part of NOAA's response to a court ruling in which U.S. District Court Judge Michael R. Hogan directed the agency to consider hatchery fish in ESA listings.

Hogan in September 2001 ruled that the agency wrongly excluded hatchery fish from the 1998 Oregon Coast coho listing after they had been identified, along with naturally spawning coho, by NOAA as part of the "evolutionarily significant unit" for the stock. After a series of legal exchanges the listing was officially dissolved a year ago when the Ninth Circuit Court of Appeals refused a request to overturn Hogan's order.

Under the new policy, hatchery fish will be included in determining listing status in the context of their contribution to conserving natural self sustaining populations, and will be listed if it is determined that the species as a whole warrants ESA protections, according to NOAA. After reviewing more than 20,000 public comments, the agency revised the policy, first introduced last year, to emphasize the importance of natural spawning to species' health and to clarify the contribution hatcheries can make to population health.

"The goal here is to improve natural, self sustaining salmon runs," said Bob Lohn, NOAA Fisheries Northwest Regional administrator. "This is not simply a numbers game, but a scientific based policy to use a well managed hatchery program as another tool in salmon recovery."

"The final policy establishes the criteria a hatchery stock must meet to be considered part of the same biological unit as a naturally spawning population; reaffirms that NOAA Fisheries Service will list biologically related hatchery stocks under the ESA when it lists the related naturally spawning population; establishes that NOAA Fisheries Service will consider the extinction risk of the entire biological unit, both naturally spawning populations and hatchery stocks, when it makes a listing decision; and adopts a policy that the agency will allow harvest of listed hatchery fish that are surplus to conservation needs," according to a fact sheet provided by the agency.

"Applying the hatchery listing policy did make a difference for some of the populations. In particular, we listed lower Columbia River coho as 'threatened' rather than 'endangered' because the presence of abundant hatchery fish lowers the immediate risk of extinction. In the proposed rule last year, we also proposed to change upper Columbia steelhead from 'endangered' to 'threatened' because of abundant hatchery fish," the fact sheet says.

Russell Brooks, the attorney for the Alsea Valley Alliance in the lawsuit against NOAA, says that the new policy totally misses the intent of Hogan's order.

"It's just going to result in another lawsuit because they're doing what they've been doing all along, just in a different say," Brooks said of the new final hatchery rule. Brooks, managing attorney for the Pacific Legal Foundation's Seattle office, a year ago filed a 60-day notice of intent to challenge the proposed rule. With the final little changed, he said Thursday he intends to file a complaint challenging the policy and new listing determinations, as well as a new 60-day notice targeting the latest agency actions.

"Even though they list hatchery fish, they exempt them from the protective regulations" with the rationale that the hatchery fish are "surplus to recovery needs," Brooks said.

"In other words there are so many damn salmon that they can't protect them all," Brooks said sarcastically. That goes contrary to Judge Hogan's intent, Brooks said.

"He gave some pretty specific reasoning" in calling the Oregon Coast coho listing illegal, Brooks said. The judge said that once stocks are aggregated, as in an ESU, further distinctions cannot be made.

"That meant to us that you can't distinguish between parts of the same population," Brooks said.

Trout Unlimited officials said that NOAA's new strategy reflects a policy reversal that undermines decades of recovery strategies and actions targeted toward wild fish and also is contrary to the judgment of fisheries scientists who have examined the question of wild-versus-hatchery fish management in recent years.

"The conclusion of the vast majority of fisheries science's finest minds who've studied this problem is that hatchery fish and wild fish are different animals and must be managed accordingly, especially under the auspices of the Endangered Species Act," said Dr. Jack Williams, senior scientist for Trout Unlimited. "It's puzzling that NOAA Fisheries would issue a policy that contradicts the advice of its own scientists."

Trout Unlimited cites published findings supporting the conclusion that hatchery fish should be excluded from ESA listings and says the policy "appears to disregard what is reported to be some 90 percent of the over 27,000 public comments which supported listing only the wild component of individual salmon stocks."

"We're pleased that the wild fish that were protected before will have continued protection in the near term under this policy," said Lovell, salmon policy coordinator for Trout Unlimited's Portland office. "But at the same time it's disappointing that NOAA has seemingly squandered the opportunity to adhere to the science, address wild salmon recovery head-on and resolve the issues that landed us all in litigation the first time around. There's little in this policy to give us hope we won't end up there again."

"We all hope for the day when wild salmon and steelhead runs no longer need Endangered Species Act protections. But de-listings should only occur when the science shows the wild runs are restored to healthy, self-sustaining numbers," said Rob Masonis, senior director of the Northwest regional office of American Rivers. "De-listing fish to suit political purposes robs future generations of the opportunity to enjoy healthy rivers and salmon runs."

NOAA Fisheries, however, says the new policy and listing determinations sit on solid scientific ground.

"This policy reinforces our commitment to protect naturally spawning salmon and their ecosystem," said retired Navy Vice Admiral Conrad C. Lautenbacher, Jr., Ph.D., under secretary of commerce for oceans and atmosphere and NOAA administrator. "A properly managed hatchery program can provide a great boost to natural populations of fish and we intend to use this as a key component of our overall salmon recovery efforts which, along with favorable ocean conditions, have contributed to record returns over the last few years."

NOAA Fisheries' final determinations retain the listings of 15 Pacific salmon populations, and to add lower Columbia coho as a threatened species. In addition, the central California coast coho was changed from "threatened" to "endangered" status, which better reflects California's endangered listing under state law.

The requested extension for the Oregon coast coho determination is to allow NOAA more time to consider a new analysis by Oregon, which concludes the coho are not at risk of extinction, according to the federal agency. Oregon coast coho are not now listed.

The extension of a decision on 10 currently listed steelhead populations is to give the agency more time to resolve disagreements with the U.S. Fish and Wildlife Service over the inclusion of rainbow trout. Meanwhile, steelhead remain listed.

The stocks receiving an "endangered" determination include the Snake River sockeye, the Sacramento river winter-run and Upper Columbia River spring-run chinook and the Central California Coast coho. Salmon listed as "threatened" include the Ozette Lake sockeye, the Central Valley spring-run, California coastal, Lower Columbia Rivr, Upper Willamette River, Puget Sound, Snake River fall-run and Snake River spring/summer-run chinook and the Central California Coast, S. Oregon/N.California Coast and Lower Columbia coho, the Hood Canal summer-run and Columbia River chum.

For more information, go to: http://www.nwr.noaa.gov/AlseaResponse/20040528/index.html

NOAA: http://www.noaa.gov

NOAA Fisheries: http://www.nmfs.noaa.gov