A legal challenge to two permits that would allow industrial animal feeding operations to continue discharging waste into Washington state’s salmon rich waters is the latest round of a decades-long battle to halt pollution and restore the habitat and watersheds.
And yes, there is an Alaska connection, related to the future of the Southeast Alaska Chinook salmon commercial harvest.
Stemming the tide on pollution in the Puget Sound waters would mean healthier habitat and more Chinook salmon to benefit human harvesters and hungry Southern Resident orca whales, whom fisheries biologists estimate must consume 18 to 25 adult salmon a day to meet their energy requirements.
This effort to safeguard drinking water from nitrate pollution, protect shellfish beds from pathogenic bacteria and ensure public health in the context of changing climate was brought by the Western Environmental Law Center’s Seattle office. The center is asking that the Washington Department of Ecology rewrite these permits to control discharges from concentrated animal feeding operations (CAFOs), dairies and cattle feedlots, in compliance with the Washington State Environmental Policy Act.
The appeal to the state’s Pollution Control Hearings Board on behalf of five environmental entities names the Washington State Department of Ecology as the respondent. A unanimous 2021 decision by the Washington Court of Appeals required the Ecology Department to rewrite those permits because they violated state and federal law. Despite a court order that detailed ways to bring those permits into compliance, the permits still fail to control the discharge of these pollutants, the law center contends.
Vince McGowan, water quality program manager for the Department of Ecology, said the agency is doing everything possible to improve water quality, restore threatened salmon runs and preserve the Southern Resident killer whales.
“The CAFO permits include requirements for how and when operations can spread manure onto crops and soils to prevent manure runoff and seepage into groundwater. If soil tests show high nitrate levels, the operator must stop or limit manure spreading or monitor the groundwater,” McGowan said, in part. “While we have strict standards for these livestock operations, they are not considered to be one of the largest contributors to the nutrient problems facing Puget Sound. We recently set new nutrient standards for wastewater treatment plants that discharge into the Sound.” The Department is also working to reduce specific regional sources of nutrient pollution, such as efforts to limit nutrients flowing into Budd Bay at the southern tip of the Sound, he said.
The connection between this litigation and Southeast Alaska fisheries is an ongoing legal battle between the Alaska Trollers Association (ATA) and the Wild Fish Conservancy, which wants to halt the commercial harvest of winter and summer Southeast Alaska Chinook Salmon.
A ruling handed down late last year by U.S. Magistrate Michelle L. Peterson was headed for the U.S. District Court for the Western District of Washington in Seattle in mid-January.
According to Emma Helverson, executive director of Wild Fish Conservancy, benefits to wild Chinook and Southern Resident orca whale recovery cannot be overstated. Still spokespersons for NOAA Fisheries, responding to a query from Magistrate Peterson, said that if the court shut down the winter and summer commercial Chinook salmon troll fisheries it would do nothing to increase the number of Chinook salmon available for Southern Resident orca whales, for whom those salmon are a major food source. According to the Chinook salmon technical committee, within the Pacific Salmon Commission all fisheries gear groups in Southeast Alaska combined catch less than half of 1% of Puget Sound kings.
In advance of the ruling by Peterson heading to the U.S. District Court, ATA responded on Tuesday to the magistrate’s report and recommendations. ATA’s response noted that the National Marine Fisheries Service incorporated reduced harvest limits from the latest version of the Pacific Salmon Treaty in the 2019 biological opinion (BiOp). The opinion concluded that allowing Southeast Alaska fisheries to continue to harvest Chinook salmon would not jeopardize the existence of Southern Regional killer whales or listed salmon species.
ATA contends that contrary to the report and recommendations, if the prey increase program is maintained, allowing Southeast Alaska fisheries to continue to harvest with incidental take protections will have mitigated impacts that will be far outweighed by the effective closure of troll fisheries and the resulting catastrophic economic impacts on Southeast Alaska communities.
The proposed remedy punishes the trollers for mistakes made by the National Marine Fisheries Service, the trollers contend. Any impacts from allowing the incidental take statement (ITS) to continue to authorize fishing trollers would be mitigated by the prey increase program, they said in their response to Peterson’s recommendations. They are asking the court to decline to vacate the ITS and continue to allow trollers in Southeast Alaska to fish.
All sides in that case now get to file their comments on the ATA’s response, which will be considered by Judge Richard A. Jones in the Western District of Washington District Court. Further arguments at some point could be heard by the Ninth Circuit Court of Appeals.
The Washington Governor’s Salmon Recovery Office noted in its 2020 State of Salmon Report that in the Puget Sound about 45% of river systems show levels of toxic chemical pollution that increase health risks to predators, including Southern resident orcas.
“Most toxic pollution in Puget Sound is carried by stormwater that runs off paved roads and driveways, rooftops, yards and other developed land,” the report said. “These contaminants can reduce growth, increase disease susceptibility and alter hormone production, all of which can reduce the survival of salmon.”
Puget Sound is also dealing with stream flows in flux because there is less rain and warmer temperatures in the summer, with some streams having too warm and not enough water for fish to survive and reproduce.
The overall challenge of declining Chinook and other salmon stocks is an issue of concern from California, Oregon and Washington to Alaska and British Columbia, and all states are working to boost stocks in the midst of ongoing pollution and climate change.
