Litigation Likely Regarding New Federal Fish Regulations
A day before his agency issued sweeping regulations to protect threatened salmon and steelhead in California, Oregon, Idaho and Washington, Will Stelle was matter-of-fact about the likely reaction: litigation.
As northwest regional administrator for the National Marine Fisheries Service, he's been in the hot seat for years as the region has struggled to reverse the devastation visited upon native fish species by dams, farming, urban development, road construction, logging, water diversions, and commercial and recreational fishing — virtually everything people do in or near the water. Working from an office in the dour National Oceanic and Atmospheric Administration complex on the shore of Seattle's Lake Washington, Stelle has been in the center of a pitched political and legal battle among local government officials, business owners and environmental groups over the intertwined fates of fish and local economies.
Lawsuits are inevitable, he said. In fact, they might be the only way the conflict between fish protection and economic pursuits will ever be resolved.
In late June, NMFS issued its final rule for preservation of 14 runs of salmon and steelhead, including three in California. The document was still warm from the photocopier when the Washington Environmental Foundation and four other groups filed a notice of intent to sue the agency to overturn the rules as inadequate to protect fish. Simultaneously, the rules were denounced as excessive by the National Home Builders Association and the Pacific Legal Foundation, a property-rights advocacy group, which had already filed suit on behalf of bait shops, motels, landowners and fishermen in southwest Oregon. The suit challenged NMFS's authority to list coho salmon there as threatened under the Endangered Species Act (ESA). Attorney Russ Brooks said the group may broaden the suit to challenge the new rules.
Reaction in California was more muted because many watersheds affected by the new regulations are already under restrictions imposed by previous ESA listings. Nevertheless, the NMFS rules released on June 20 have potentially far-reaching effects on local land-use practices across a broad swath of California. The regulations also represent an intriguing new approach to federal regulation. It is, in fact, the approach local communities have been demanding for years. But now that they have gotten their wish, local officials are almost completely unprepared to respond.
Technically, the document issued by NMFS is known as a "final 4(d) rule," after a section in the Endangered Species Act. When the relevant federal agency (the U.S. Fish & Wildlife Service for inland species and a few marine species, and NMFS for most marine creatures and anadromous fish) declares a species endangered, a blanket prohibition on "take" of that species automatically is imposed. When a species is listed as threatened, however, protection is not conferred until the agency devises a rule under section 4 (d) of the ESA describing regulations that are "necessary and advisable to provide for the conservation of the species."
In the past, NMFS has simply issued 4(d) rules that prohibit the take (any action that harms individuals or their habitats) of threatened species. The rules issued June 20 break with this tradition, providing exemptions for actions that are carried out under approved state, local or tribal conservation programs.
With this deceptively simple change, NMFS opened the door for local communities to decide how they will respond to the ESA listing, giving them a chance to continue some activities that harm fish as long as these occur in the context of a broader approach that improves the species' chance of survival — habitat restoration, land conservation, rigorous water-quality controls, removal of fish-blocking dams and culverts. This locally determined approach — in contrast to the top-down, one-size-fits-all mandate typically issued from Washington — has long been the regulatory grail sought by community leaders in regions hosting endangered species. Locals' presumption has been that they know the terrain best and must live with the consequences of the listing; therefore, local community leaders are in a better position to craft protections that respect both the ecological needs of imperiled creatures and the economic needs of their community.
Now they will have a chance to prove this presumption valid.
The new rules apply to 14 "evolutionarily significant units" of salmon and steelhead. An ESU is a biologically distinctive group of salmon or steelhead that is uniquely adapted to a particular area or environment. The California ESUs involved are the Central Coast steelhead, the South-Central Coast steelhead, and the Central Valley steelhead. Their habitat encompasses the coastal watersheds from just south of San Luis Obispo north to the Russian River, and the Central Valley from just south of Modesto to Redding — a total of 26,858 square miles comprising all or part of 31 counties.
The final 4(d) rules single out several state or local regulatory or conservation plans as being acceptable to NMFS; any activities that occur under their auspices are exempt from the ESA's "take" provisions. To provide comparable exemption, the rules invite other agencies to seek NMFS approval of their own plans for land-use regulation, fisheries management, hatchery operations, forestry practices, and water diversions.
However, none of the programs NMFS singled out for embrace is in California. The most likely candidate is the California Coastal Salmon and Watersheds Program, an embryonic initiative modeled after similar statewide plans in Oregon and Washington. In addition, two multi-county initiatives have been established to coordinate salmon and steelhead recovery along the North Coast. Other than that, little has been done at a state, regional or local level to prepare for the final rule. This means state, county and city agencies in California will have to seek federal approval to learn if their existing regulations provide adequate protection for steelhead
Greg Bryant, recovery coordinator for NMFS in California, said his agency has been trying for two years, with little success, to get the state to cooperate in developing a 4(d) response package. In 1990-2000, California allocated $13 million to salmon restoration — a relative pittance compared with its neighbors. For example, Washington's Salmon Recovery Funding Board has at least $75.5 million available in the 1999-2001 cycle for such work. Most of the money invested in programs of potential benefit to California steelhead have come through the CalFed program, a state-federal initiative to improve ecological conditions, water quality and supply reliability in the Sacramento-San Joaquin river delta. Those programs, however, address only Central Valley watersheds, not the coast.
The NMFS steelhead rules, which are controlled by a court order, take effect 60 days after their July 10 publication in the Federal Register, giving California until September 8 to respond. The salmon rules would take effect in January 2001.
That is not much time to respond. Without a comprehensive plan like the ones being developed in Washington and Oregon, California will end up mediating the inevitable conflicts between fish and people one lawsuit at a time.
Greg Bryant, National Marine Fisheries Service: 707-825-5162.
Russ Brooks, Pacific Legal Foundation: (425) 576-0484.
Michael Rossotto, Washington Environmental Council: (206) 622-8103.