A “last-minute” rule change to Oregon’s Fish Passage Law has environmentalists,
Tribes and fishers concerned.
By Nathan Gilles
Originally Published in Columbia Insight on February 20, 2023.
As last year’s Christmas holiday approached, a last-minute change was made to Oregon fish regulations that critics say nullifies years of work to protect threatened and endangered salmon and steelhead species.
The change concerns the definition of “fish passages,” engineering structures, including fish ladders that allow migrating salmon to voluntarily swim past dams and other obstructions. Under the new rule change, fish passages now include trap-and-haul procedures, according to critics of the rule change.
Trap-and-haul procedures involve people catching salmonids and moving them, often by tanker truck, to waters above or below impediments. This includes moving juvenile fish from their natal waters and moving adults to their spawning grounds.
The rule change, say its critics, essentially turns the definition of “fish passage” on its head, to the detriment of salmonids, and could make it harder to modify or even remove dams to aid migrating fish.
The rule change was introduced by staff from the Oregon Department of Fish and Wildlife (ODFW) and was approved by the Oregon Fish and Wildlife Commission on Dec. 22, 2022, reportedly without significant public input.
At least 15 organizations oppose change
In a letter sent on Feb. 9 to the Oregon Fish and Wildlife Commission, Columbia Riverkeeper and 14 other salmon advocacy organizations expressed their concerns about the revised legal language. (Commission chair Mary Wahl and vice chair Jill Zarnowitz couldn’t be reached for an interview.)
The letter argues that trap-and-haul and voluntary fish passages simply aren’t equivalent, stating that “volitional fish passage is biologically preferable to so-called trap-and-haul or other mechanized transport methods that add cumulative stress to fish that are already enduring challenging migrations to or from their natal waters.”
The letter further argues that changing the legal definition of “fish passage” gives ODFW too much authority in determining when a voluntary fish passage should be used and when trap-and-haul should be used.
What’s more, the letter claims the revised definition is part of “last-minute changes” that were made without “appropriate public process or tribal consultation.”
“The rule-making change is completely opposed to the biological science.” —Glen Spain, Institute for Fisheries Resources
Oregon Tribes are also concerned about the changed definition.
A Jan. 10 letter to the Oregon Fish and Wildlife Commission written by representatives of the Nez Perce Tribe and the Confederated Tribes of the Umatilla Indian Reservation details similar concerns, calling the rule change an “unlawful,” “last hour” revision.
The letter goes on to state, “our Tribes reserve the right to seek all appropriate legal remedies.”
The letter was shared with Columbia Insight by representatives of the Nez Perce Tribe.
Fluid definition
For years “fish passage” was defined under Oregon regulatory rules to mean passages that are voluntary. According to this definition, salmonids need to be able to migrate through fish passages on their own and unaided.
The last-minute revision comes following years of public input intended to improve the rules and implementation of Oregon’s Fish Passage Law.
Previous revisions to Oregon’s Fish Passage Law involved lengthy public comment. Changes even included an earlier 2022 revision of the definition of “fish passage” that “only strengthened the existing rule,” according to the Tribes’ letter.
In fact, on the whole, previous changes to Oregon’s Fish Passage Law were widely supported by Tribes and environmentalists and seen as positive, according to Miles Johnson, legal director for Columbia Riverkeeper.
“It’s unfortunate because largely the updates to the rules [associated with Oregon’s Fish Passage Law] were good and needed to be done,” says Johnson. “But sliding in a change to the definition of ‘fish passage’ at the eleventh hour is not something that is going to be helpful to native fish in Oregon.”
Infographic illustrates how fish are taken from a water source, "trapped" in a tanker truck and "hauled" to another point to be released back into the water.
Trap-and-haul infographic: NOAA
Johnson, who wrote the letter on behalf of Columbia Riverkeeper and other concerned non-Tribal groups, says the change gives too much power to ODFW.
ODFW already oversees the implementation of fish passage rules.
The revised definition of “fish passage,” according to Johnson, extends that authority even further, effectively putting all decisions about when to use trap-and-haul and when to use voluntary fish passages at dams and other obstructions under the agency’s control.
Part of the problem, says Johnson, is the new definition means ODFW no longer has a clear standard it can use when making decisions about fish passages.
“There isn’t a requirement that trap-and-haul has to be as good for fish as a voluntary fish passage could have been,” says Johnson. “It just invites a political contest every time they make decisions [about fish passages] and frankly those aren’t contests that fish always win.”
Fisheries impact
Glen Spain, executive director for the Institute for Fisheries Resources, whose organization joined Columbia Riverkeeper in its letter, says the fundamental issue is that trap-and-haul shouldn’t be seen as equivalent to voluntary fish passage.
“The rule-making change is completely unwarranted and completely opposed to the biological science behind the restoration efforts we are trying to promote,” says Spain. “The whole point of fish passage is volitional passage. You want the fish to be able to do what fish do best.”
Spain says trap-and-haul stresses migrating fish and increases mortality rates.
The Institute for Fisheries Resources is the research branch of the Pacific Coast Federation of Fishermen’s Associations, which also opposes the rule change.
Spain says the rule change isn’t just bad for fish, it’s bad for the fishing industry.
“The rule change means we will have a lot more difficulty restoring these [salmon] runs and that means economic losses to the fisheries and the communities that depend on them,” says Spain.
ODFW clarifies position
What to do about the revised definition now sits with ODFW, but what exactly the agency is going to do is uncertain, according to Johnson.
“I think ODFW and the [Oregon Fish and Wildlife] Commission understand there is a problem, but I don’t [think] it’s clear yet what they intend to do about it,” says Johnson.
ODFW says it’s continuing to work with concerned groups and the public.
“We’ve indicated to the parties that wrote that letter and we’ve reached out formally to the Tribes to indicate that we are willing to engage in a narrow revision of the rules to address, to make it more clear what authorities the department has,” says Shaun Clements, assistant administrator for Inland Fisheries at ODFW.
Ultimate goal: A male coho stands guard over a redd in Idaho’s Salmon River. Photo: BLM
Clements says the agency is in a “holding pattern” at the moment as it waits for a response from the Tribes, and following a discussion with concerned parties the agency will “initiate some changes to the rules.”
Clements says Columbia Riverkeeper’s characterization that the rule change gives ODFW undue authority around the use of fish passages isn’t a fair assessment.
Clements says the rule change doesn’t give the agency more authority but simply clarifies the authority the agency already had.
He also says the rule change does not, as its critics claim, fundamentally change the definition of “fish passage.”
“We don’t believe this was a substantive change at all,” says Clements. “It just clarified what existing practice was.”
Clements, however, says he understands concerns about the rule change.
“These groups feel like it was a substantive change,” says Clements. “That does change the way we are going to approach [fish passage]. Because of that we accept that there is not clarity in the rule and that there is change that needs to be made.”
Responding to criticism, Clements says his agency recognizes that voluntary fish passage is better for migrating salmonids than trap-and-haul. Though he says the rule change probably wouldn’t have the impact many are worried about because trap-and-haul isn’t used that often in Oregon.
“Keep in mind that trap-and-haul is rare in Oregon and will remain rare,” says Clements.
Change could affect dam operations
According to critics of the rule change, the frequency of trap-and-haul use isn’t really the point, it’s what trap-and-haul allows you not to do: modify or remove existing dams to allow for fish migration.
This is spelled out in the Columbia Riverkeeper letter to the Oregon Fish and Wildlife Commission.
The letter notes that trap-and-haul is “often significantly cheaper to install at pre-existing structures” than voluntary fish passages. Because of this, a revised “fish passage” definition “can only make the installation of high-quality volitional fish passage less common, with predictable harm to Oregon’s native migratory fish and the people whose cultural and economic well-being depend on Oregon’s fisheries.”
“Keep in mind there is a dam removal movement now everywhere,” says Spain. “But some people don’t like that idea and in some cases it will be cheaper to keep a dam if they can provide a sort of Rube Goldberg system to get the fish around the dam than to take the dam down.”
Public meeting Feb. 24
Last week, ODFW announced its Fish Passage Task Force and the Fish Passage Rules Revision Initiative Sub-Committee will meet on Feb. 24 in Salem at ODFW headquarters.
“The meeting agenda includes numerous ODFW Fish Passage Program updates and Task Force business items,” according to an ODFW press release.
The meeting is scheduled for 9 a.m.-4:30 p.m. The public can attend in-person or online.
Pre-registration is required to provide verbal testimony. The deadline to register is 9 a.m., Wednesday, Feb. 22.
Written comments will be accepted prior to the meeting; send comments to greg.d.apke@odfw.oregon.gov.
