Comments from Dr. Roy thomas, President of Carmel River Steelhead Association

Carmel River Steelhead Association P. O. Box 1183, Monterey, CA 93940

March 1, 2000

Branch Chief, Protected Resources Division, National Marine Fisheries Service, Northwest Region, 525 NE Oregon Street, Suite 510, Portland, OR 97232-2737.

Dear Sirs, Comments on 4 D Rules It seems reasonable to suppose that the 4D Rules are intended to help the Steelhead by changing the practices & conditions that got them listed in the first place. Unfortunately it appears that the rules tend not to affect the most serious offenders (the large dam operators, loggers, road builders, agricultural irrigation diversions & developers etc.). Through Section 10 & other exclusions the biggest problem makers will be legalized. This is a poor way to help the fish. You need to try harder to reduce the problems caused by the big guys. Oversight -peer evaluation-monitoring-re-evaluation There needs to be a system of constant oversight and re-evaluation of any exclusion on exemptions of take restrictions. Blood money needs to be extracted from section 10 and other excluded takers to fund restoration, monitoring & policing efforts. "Properly screened" needs to be defined & peer reviewed. How well it works over time to prevent, killing, harassing or delaying needs to be the real criteria, not just an approved design that may or may not work. The Section 7 process is a failure. There needs to be follow up, enforcement & review with the requirement to rebuild if it does in fact cause harm. Mitigation & restored habitat has to function through all life stages to be acceptable. The US Army Corp of Engineers does not and will not review work permits by biological opinions. The 4 D Rules should deal with uncooperative federal agencies. The Federal Energy Regulatory Commission (FERC) also has a history of ignoring the spirit & letter of biological opinions. These agencies need to be policed by Government. The 4 D Rules should be amended annually to perfect their goals & adjust for mistakes. Section 10 permits need to be constantly re-evaluated to require such changes as necessary to avoid damage & destruction of ESU’s. "Reasonable & prudent" need to be defined; extinction is not "reasonable & prudent". Habitat conservation plans need to be monitored & annually reviewed; incidental take plans & HCP’s fines or imprisonment should be imposed on an entity’s HCP for willful violation. Teeth need to be incorporated to avoid the ever more common attitude that "forgiveness" is easier & cheaper than to get permission. So what do you want, apologize and they will not do much to you! Program & agencies listed as excluded from 4 D Rules need oversight, annual review & independent peer review to keep their exclusions.

Extend 4 D rules coverage to the Ocean 4D protection needs to go to the high seas. It is a scientific fact that Steelhead & Silver Salmon are harvested in greater percentages than other salmon considering their ocean abundance. (International North Pacific Fisheries Commission). Steelhead & Coho are very susceptible to high seas drift nets due to their shallow night feeding behavior. NMFS needs to do independent ocean research to understand high seas life history & should impose 4D rules to protect this far ranging listed specie. Presently there is virtually no high seas research, the US does not even have a boat capable of research fishing on the high seas and half to three-quarters of the steelhead's life history is spent on the high seas. There is circumstantial evidence and some hard evidence (analysis of illegal high seas catches) that much of steelhead's steep population drop from late seventies to early nineties was the result of the development of high seas drift net fishing both legally & illegally. The drift nets effect on "Ocean Conditions" was particularly problematical for the world's steelhead populations including those in Alaska & Kamchatka. Japanese data, upon which we have relied, is tarnished with political & economic impacts & criminal inaccuracies. The Russian data is even worse. We need our own well-funded high seas research to adequately develop 4 D Rules for the Pacific Ocean. In shore gillnetting & purse seines also need to be considered in the 4D Rules. It is extremely important that the habitat & life history of steelhead be independently studied on the high seas. To date the U.S. has no vessel capable of studying or capturing steelhead on the high seas. Focus 4 D Rules on the ocean not the pristine streams

There are some populations for example Big Sur, Little Sur, Waddell Creek that have very little human impact on their instream population. Most of the headwaters of these pristine rivers & creeks are in parkland or wilderness areas. The major influences on their populations are "Ocean conditions". You need to focus the 4D Rules for these streams on the high seas. Carmel Steelhead C & R surveys reveal sea lion teeth scars

The 4D Rules should consider the management of marine mammals & fresh water fish eating birds. It is only reasonable to reduce all areas of take on any threatened species. The 4 D Rules have to develop a way to deal with take by predators, birds & mammals. Example: Predators taking listed species should have any restrictions on taking them lifted. That is listed species can be protected from predators by any & all means. In a degraded river filled with sand & silt, where all the large woody debris has been removed for flood control there is no place for young of the year & downstream migrants to hide. Conditions like this attract large numbers of cormorants, herons, mergansers, loons & kingfishers. Within the 4D rules these predators as well as bullfrogs, bass & sunfish need to be actively reduced. These predators need to be actively managed, discouraged & or killed to reduce pressure on listed species. Viable population size

There should be an easing of the 4 D Rules as soon as a "viable population size" is reached. This will give incentives to land owners, dam owners & fishermen to work together to rapidly reach restoration goals & maintain conditions that support these goals. If you take the usual bureaucrat's tact of saying we don't have the money or the personnel to evaluate the situation; or you take the gutless scientific approach that we're not sure we need more study or we don't want to act too soon; you will loose the support of all the groups. The ESU will suffer & the affected groups will band together & fight you legally. NMFS & the fish are likely to loose. Please don't use the same time-line & tact you used on silver salmon. Most people are beginning to think that significant improvement will not take place in most of our life times. There are many coastal streams, which already have "viable population size" but were listed as threatened when the ESU was listed as threatened. These populations need to be identified soon & either exempted from the 4D rules or allowed to support some take with mitigation activities, Giving full protection of hatchery-reared steelhead that are genetically the same as a protected ESU is a problem. States trying to provide a resource usable to fishermen could be forced to contaminate the gene pool in the ESU by bringing in outside fish. This is contrary to restoration goals. Genetically correct enhancement activities are to be encouraged. The only way to get the funding is to allow some sort of fishing.

Summary Our 4 D Rules comments are intended to expand your concepts of threatened Steelhead protection. We would like to see the spirit of the ESA supported by the rules of law & the creative efforts of the resource managers. Understand the whole life history; deal with all “stressors” both natural & artificial. Don’t be afraid of Politics & Big Business. Your professional charge is restoration of the native runs in the presence of mankind. Complete restoration is unrealistic but by fostering cooperation you can set your goals much higher than they now appear to be.

Yours truly,

Roy Thomas DDS President