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July 12, 2001

Frequently asked ESA questions

By JOSEPH BROGAN
Foster Pepper & Shefelman

On July 10, 2000, the National Marine Fisheries Service (NMFS) published a final rule under Section 4(d) of the Endangered Species Act (ESA) which prohibits actions that take or harm certain Northwest salmonid species listed as threatened, including Puget Sound and Lower Columbia River chinook salmon.

BROGAN

The final rule was effective on Jan. 8, 2001, and extends the same level of protection to threatened species as applies to endangered species under ESA Section 9. The final rule has broad implications for municipal services and new and existing urban development impacting salmon habitat.

Here are some commonly-asked questions concerning the ESA — and implications of the 4(d) rule for municipalities and the development community.

How are “threatened” and “endangered” species defined under the Endangered Species Act?

The ESA protects species that have been listed as “endangered” or “threatened” by either the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Services pursuant to Section 4 of the ESA. A species is “endangered” if it “is in danger of extinction throughout all or a significant portion of its range.” A species is “threatened” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

What is the ESA’s “take” prohibition?

Section 9 of the ESA makes it unlawful for any person to “take” any endangered species of fish or wildlife. Under Section 4 of the Act, the “take” prohibition may be extended to species listed as threatened. The act defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The term “harm” is further defined by regulation to mean an act which actually kills or injures wildlife. Such an act may include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

What is required to establish a “take” of listed species?

To constitute an illegal take, an activity must be the “proximate cause” of actual death or injury to identifiable wildlife. However, this does not mean that actual death or injury to protected wildlife must have occurred before an injunction may be issued, but such death or injury must be imminent and reasonably certain.

What are the potential civil and criminal penalties for violating the ESA?

Any person who knowingly violates the take prohibition may be assessed a civil penalty of not more than $25,000 per violation. Any person who knowingly violates the take prohibition may also be subject to criminal penalties of up to $50,000 or imprisonment for not more than one year, or both.

Can citizens bring private enforcement actions alleging violation of the ESA?

Yes. The ESA provides for third party enforcement (citizen suits) and the award of costs of litigation, including attorneys fees, to the prevailing party. The act requires that before a citizen may commence an action under the ESA, the citizen must give the alleged violator and the Secretary of the Interior at least 60 days advance notice of intent to sue.

What does the 4(d) rule do?

In July 2000, NMFS adopted a rule prohibiting the “take” of 14 groups of salmon and steelhead listed as threatened under the ESA. NMFS adopted this rule under section 4(d) of the ESA. The rule prohibits anyone from taking a listed salmon or steelhead, except in cases where take is associated with a program approved by NMFS. The 4(d) rule approves some specific existing state and local programs, and creates a means for NMFS to approve additional programs if they meet certain criteria set out in the rule. The rule includes 13 “limits” or exceptions that provide qualifying governments or individuals with a safe harbor from federal enforcement under the ESA. Finally, the rule includes a list of activities that, in NMFS’s opinion, are most likely to cause harm and thereby violate the 4(d) rule.

What types of shoreline-related activities is NMFS concerned with under 4(d)?

NMFS’s ESA enforcement will focus on several categories of activities. The final rule identifies various shoreline and riparian disturbances (whether in the riverine, estuarine, marine or floodplain environments) as activities that “may be most likely to cause harm” and thus violate the ESA. The rule specifically lists removing riparian vegetation, floodplain gravel mining, development and armoring of shorelines, and bulkhead construction as examples of activities that may retard or prevent the development of certain habitat characteristics upon which fish depend.

What are the implications of the 4(d) rule for municipalities and developers?

The final 4(d) rule has broad implications for municipal services and new and existing urban development impacting salmon habitat. Municipal services, including stormwater programs, public water systems, and road construction and maintenance, will come under greater scrutiny and are at risk of enforcement actions and citizen suits under the ESA’s “take” provisions. In addition, the development community faces uncertainty in the form of a shifting set of federal, state and local regulations that seek to greatly curtail development activity affecting salmon and salmon habitat.

Joseph Brogan is an associate in the Land Use & Environmental Practice Group at Foster Pepper & Shefelman. His practice emphasizes land use, environmental and natural resource law. For more information, contact Joseph Brogan at (206) 447-6407 or Thomas M. Pors at (206) 447-2916.

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