The following articles are excerpts from the newsletter:

The Puget Sound Salmon 4(d) Rule, Madeline June Kass

Salmon Recovery in the Pacific Northwest: Teetering at the Brink of Chaos, Gregory T. Costello

 

THE PUGET SOUND SALMON 4(d) RULE

Madeline June Kass

In March 1999, the National Oceanic and Atmospheric Administration (NOAA) listed Puget Sound Chinook Salmon as a threatened species under the Endangered Species Act. Pursuant to section 4(d) of the act, NOAA must issue regulations as necessary and advisable to provide for the conservation of such species and may apply the taking prohibitions applicable to endangered species. Recognizing the potential impact of such regulations, many local government leaders, environmental groups, and business interests in the Puget Sound region have been waiting anxiously for NOAA’s issuance of a 4(d) rule.

On September 14, 1999, the Section’s Endangered Species Committee sponsored a brown bag program entitled "NOAA’s Issuance of The Puget Sound Salmon 4(d) Rule." The speakers were Ms. Melanie J. Rowland of the Northwest Regional Office of the General Counsel of the National Oceanic and Atmospheric Administration, Mr. Todd True of the Earthjustice Legal Defense Fund (formerly the Sierra Club Legal Defense Fund), and Mr. Svend Brandt-Erichsen of the law firm of Heller Ehrman White & McAuliffe. In their presentations, the speakers discussed NOAA’s impending issuance of a 4(d) rule for Puget Sound threatened salmon and presented several perspectives on the implications and likely effect of the rule for the region. The program, hosted by the Seattle office of Heller Ehrman White & McAuliffe, was attended by approximately 25 attorneys and interested members of the community.

Ms. Rowland’s presentation focused on the purpose, policy reasons, and process for adoption of 4(d) rules. She explained that historically, the National Marine Fisheries Service (NMFS) routinely adopted blanket rules prohibiting all takings under the 4(d) provision. Now, however, the agency is attempting to use its 4(d) authority to do more than just prohibit the take of threatened species. Following this new approach, the agency distinguishes between take that will be prohibited and take that may be allowed consistent with conservation of the listed species. For example, a 4(d) rule might provide a general prohibition on take but not prohibit specific actions such as habitat activities conducted in accordance with approved state or local laws or regulations. By tailoring the 4(d) rules in this manner, the agency hopes to provide more specific guidance, create greater certainty, and encourage upgrading of state and local practices.

Mr. True’s presentation suggested that the responsible federal agencies were on the wrong track in their interpretation and implementation of 4(d) rules. From the environmental community’s perspective, conservation involves more than avoiding take, its means achieving species recovery and getting species off the Endangered Species List. By focusing on prohibiting take, rather than on requiring measures to conserve species, the 4(d) rules adopted by the agencies cannot achieve these goals. Mr. True also identified a gap between generalized goals for salmon protection and specific actions to achieve the identified goals as a significant concern of the environmental community. He noted that environmental organizations will be carefully watching to ensure that proposals move beyond general ideas to detailed measurable and identifiable actions that can be implemented for salmon protection.

Mr. Brandt-Erichsen’s presentation focused on the Puget Sound business community’s concerns regarding the current salmon listing. He noted that the business community’s concerns are of a pragmatic nature. These concerns include apprehension about (1) "consultation gridlock" resulting from insufficient agency resources to deal with substantially increased permitting demands; (2) overly cautious local government responses to the listing and the 4(d) process; (3) wasteful spending on salmon recovery that fails to achieve the most benefit at the least cost; (4) unnecessary or unintended loss of useable land areas; (5) the State of Washington’s role, or lack of a role, in the 4(d) rule development process; (6) potential conflicts of interest between local governmental promotion of public verses private projects; (7) citizen suits challenges; and (8) potential future listings in the Region.

 

SALMON RECOVERY IN THE PACIFIC NORTHWEST: Teetering at the Brink of Chaos

Gregory T. Costello

On March 16, 1999, the National Marine Fisheries Service (NMFS) added nine West Coast salmon to the Endangered Species List, bringing the total to sixteen salmon species in the State of Washington now listed as threatened or endangered. Two more are expected to be listed before the year is out.

The impact of the listing of these species will affect land use and water-related activities throughout the state, including in the entire Puget Sound region. The listing of the Puget Sound Chinook as threatened marks the first time that a major metropolitan area will be affected by the Endangered Species Act (ESA).

The stakes are tremendous for all, particularly the fish. The native salmon, a cultural icon to many in the Northwest, has declined to dangerous and sometimes nonexistent levels in some areas. The Snake River Coho salmon became extinct in 1986. The Hood River Coho followed shortly thereafter. In 1989, two Snake River Sockeye salmon returned to their spawning grounds at Redfish Lake. In 1992, one returned. The estimated cost to protect and recover these salmon species is staggering. Estimates have run as high as three to five billion dollars over the next twenty years. These costs include dollars from state and federal coffers that could be spent on other needed activities, as well as tremendous costs to be borne directly by citizens and businesses in the region. The costs of electric power, water, sewer, and waste disposal; personal property taxes; building materials; and a myriad of other products will increase substantially.

For the past ten years, attention has focused on the Columbia Basin salmon, with irrigators, hydropower interests, and commercial fisherman taking the brunt of efforts to save salmon. Unfortunately, the complexity of the situation — factually, legally, scientifically, economically, and politically — has led to much study, legislation and litigation, but little salmon recovery. Now, the impacts of the ESA are squarely focused on the Northwest’s major metropolitan area — the greater Puget Sound region. Having witnessed the economic impact of the spotted owl listings on small timber communities and the gridlock in the Columbia Basin, state, regional and local governments are scrambling to avoid widespread economic dislocation and to save these Northwest icons.

The state, counties, municipalities, tribes, and public interest groups are engaged in a range of efforts from habitat protection to education. Sometimes the efforts are coordinated. Sometimes they are not. All seek to avoid top-down regulation through the imposition of stringent federal take prohibitions and regulations. These voluntary efforts, the interplay between them and what the ESA mandates, the role and interests of the tribes and other players, and the dark cloud of endless litigation on the horizon, create an almost unlimited number of interesting legal issues for exploration. This article is the first in a series that will examine some of the issues of salmon protection and recovery in the Pacific Northwest. It will introduce the situation, identify the current legal framework, and describe the broad response strategy of state and local governments.

How Did We Get Here?

Researchers believe that in the predevelopment era, ten to sixteen million salmon and steelhead entered the Columbia River annually. That number is now less than one million. During that same time, the human population of the region went from a few hundred thousand Native Americans to over ten million people. The correlation between increasing human population and decreasing salmon population is beyond dispute. We have built dams that generate power and foster transportation of barges, but impede migration of salmon. We have silted the clear pebble spawning grounds of tributaries with runoff from development and timber production. We have introduced pollution from industries, yards, automobiles, and livestock; increased temperatures by slowing river flow; destroyed stream-side shading and vegetation from overgrazing; reduced snags and favored habitat in the name of flood control; and have over-harvested the resource year after year. Add to that the unknown, but clearly variable environmental conditions in the oceans, and the result is a very negative environment for salmon.

The Pacific Northwest did not suddenly wake up in 1999 to the discovery that it had a salmon problem. The federal government began examining the issue in 1978. In 1980, Congress passed the Northwest Electric Power Planning and Conservation Act. The Act was intended to protect, mitigate, and enhance salmon populations in the Columbia Basin. By the late 1980s, runs of Columbia Basin salmon and steelhead were disappearing, and tribes and other interested groups, such as Oregon Trout, were filing petitions under the ESA for listing of numerous salmon runs. Yet for most of this decade, salmon protection and recovery efforts have been marked more by conflicting scientific studies and litigation, than by progress. Now the full weight of the ESA hammer is poised to be brought to bear on the Puget Sound region and interesting developments are afoot.

Threatened Species and the 4(d) Rule

There is an important distinction between a species listed as threatened and one listed as endangered. When a species is listed as endangered, the take prohibitions and other protections of Section 9 of the ESA become effective immediately. 16 U.S.C. § 1538(a). For threatened species, however, the take prohibition is not automatic. Rather, the listing agency must promulgate regulations that establish protective measures that prevent further damage to the listed species. 16 U.S.C. § 1533(d). These rules are commonly referred to as the 4(d) rules. These rules vary from case to case, but typically contain the following elements:

A restatement of the prohibitions on take contained in Section 9;

1. The specification of actions with approved guidelines which essentially reduce take of the species to an incidental level, and which could be undertaken without threat of legal sanctions resulting from the take of the species; and
2. The specification of actions that would result in take and are therefore prohibited.

   Because the 4(d) rule offers the hope of flexibility that is not afforded under the ESA for endangered species, states and local governments have focused on the 4(d) rules as a mechanism for gaining a voice in the determination of what restrictions will result from an ESA listing.

   The Scramble for Self Governance

   Throughout the Pacific Northwest, governments are enacting rules limiting development, buying and restoring habitat, reexamining water uses and water rights, urging voluntary action on the part of individuals and businesses, and spending millions of dollars in the hope that the NMFS will accept these efforts as the foundation of its 4(d) rules for the threatened salmon species. These well-intentioned efforts may be beneficial in aiding salmon recovery. Whether they will be sufficient to avoid stringent 4(d) rule restrictions is anyone’s guess. Set forth below is a synopsis of some of these efforts. The role of voluntary action in establishing a 4(d) rule will be examined in greater detail in a future article.

   The Washington State Salmon Plan

   Declaring that salmon extinction "is not an option," the governor of Washington State has developed a plan to restore wild salmon and their habitat with the hope of avoiding federal intervention. The long-term recovery strategy identifies the state’s responsibilities in salmon protection and water conservation, and invites local communities and tribal governments to join in those efforts.

   The statewide strategy calls for:

3. A collaborative, incentive-based approach to salmon recovery, but one that also is coupled with increased enforcement of environmental laws;
4. Identifying what actions must be taken immediately to prevent extinction;
5. Performance measures for determining if restoration efforts are getting results: and
6. Establishing an action plan that can be put into place if restoration performance goals are not met on schedule.

   Washington’s long-term strategy is built on the "Four H’s" of salmon recovery: Habitat, Harvest, Hatcheries, and Hydropower. Of these four, the one that the state has the greatest ability to impact is habitat.

   The focus on habitat includes: immediate efforts to protect or enhance habitat; a revision of the rules governing state forest practices, which the state hopes will be accepted as a "programmatic" Habitat Conservation Plan by NMFS; and increased focus on enforcement of existing environmental laws that protect water quality and quantity.

   The remaining "H’s" are more problematic. Harvest, hatcheries and hydropower will require difficult negotiations with the tribes, and other federal and international interests. The state and NMFS have recently succeeded, however, in negotiating a salmon management plan with Canada. And on September 23, 1999, the Yakima Nation, PacifiCorp, environmental groups, and state and federal fishery agencies amended an agreement to remove the Condit Dam on the White Salmon River in southwestern Washington State to aid salmon recovery.

   The state has been told by NMFS that to be successful, its recovery strategy must demonstrate:

7. Substantive protective and conservation elements;
8. A high degree of certainty that it will be implemented;
9. A comprehensive monitoring program; and
10. A recognition of the need for a partnership between federal, state, local, and tribal governments.

Whether the state’s plan will be accepted by NMFS is far from certain. Much of the state’s plan is on hold, having been bogged-down in the state legislation or by the din of public outcry. For instance, the state’s efforts to revise its Shoreline Management Plan were met with such vociferous public resistance, including threats of physical harm to state workers, that the proposed revisions have effectively been shelved. Such acts provide little assurance to NMFS that the state’s plan will be implemented.

The Response of Local Governments

Coordinated with, but clearly independent of the Washington State plan, are the efforts of the counties and cities most impacted by the listing of the Puget Sound Chinook. For instance, the Tri-County ESA Response is a voluntary assembly of King, Pierce and Snohomish counties (which are the counties most impacted by the Puget Sound Chinook listing), in addition to local governments, tribes, businesses and environmental groups, and representatives of the state. The counties and local governments are motivated, in part, by their conclusion that their permitting and regulatory activities could violate the ESA under cases such as Straham v. Coxe, 127 F.3d 155 (1^st Cir. 1997), and Loggerhead Turtle v. Volusia County, 148 F.3d 1231 (11^th Cir. 1998). Whether that conclusion is correct is open to further examination, but there are other motivating factors that may moot this legal issue. These governments have a strong interest in minimizing the salmon impact on the region’s decade-long economic expansion. Moreover, it is fair to presume that most citizens in the Pacific Northwest would prefer that the salmon not pass the way of the dodo bird (at least until the cost squarely hits their wallets), and there is strong public support for these voluntary efforts.

The Tri-County team, local governments and even interest groups, such as the Association of General Contractors, have been working with NMFS to identify specific local governmental activities that can be done in such a way that salmon are more helped than harmed, and therefore exempted in the federal agency’s 4(d) rule.

For instance, in March 1999, the Tri-County team submitted a proposed plan to the NMFS. The plan is intended to assist in developing a 4(d) rule that would be flexible enough for local governments to continue their normal functions — albeit with more substantial commitment to protect and restore habitat for threatened species. Topics addressed by the Tri-County team include: road maintenance management practices; critical area ordinances; storm water regulations; shoreline regulations; monitoring and adaptive management; planning processes; training for code enforcement; and integrated pest management.

The Tribes

An important overlay on the state and local government efforts is the action of the Northwest Indian tribes. The tribes are co-managers of the salmon resource by virtue of treaty rights upheld in the Boldt decision. The tribes, which, in the words of the Northwest Indian Fisheries Commission, were "left out" of the state’s salmon plan, are developing their own salmon recovery plan.

The NMFS

The NMFS has stated that it is feeling a "renewed urgency" to complete a 4(d) rule for the Puget Sound region because delay in issuing a like rule for steelhead in the Lower Columbia River has spawned half a dozen notices of intent to sue the agency for failing to fulfill its duty under the ESA. Nevertheless, a consensus among interested and informed parties is that the 4(d) rule, that was scheduled to be issued in September 1999, will be delayed until year end or even into the next millennium. Such a delay will likely result in the first round of litigation over the 4(d) rule as the environmental community is unlikely to willingly accept such a delay.

Conclusion

The listing of sixteen salmonid species throughout the Pacific Northwest, including major metropolitan areas, promises to cause the most significant impacts on humans, and our economy and lifestyle, of any action ever taken under the ESA. The efforts of the state and local governments to avert salmon gridlock are substantial, real and well intended. Whether they are sufficient to save salmon and avoid federal intervention by forming the basis of a "self imposed" 4(d) rule remains to be seen. Moreover, the governments, including the federal agencies, are caught in a "no-win" situation. Too lax of a 4(d) rule will result in litigation from the environmental community, and perhaps the tribes. Business interests will challenge too strict a rule. Any decision will be susceptible to science-based challenges as it is fair to say that science has not been able to determine with any precision what is necessary to save the salmon. In the meantime, the efforts being made to comply with the ESA — voluntary government initiatives, programmatic habitat conservation plans, and greater integration of existing environmental laws with the ESA — provide fertile ground for further legal analysis and discussion.