ESA: are dire predictions fact or fiction?

By CARL EINBERGER and MICHAEL MCDOWELL
Special to the Journal

Most Puget Sound residents are aware of the recent listings of salmon under the Endangered Species Act and many have heard dire predictions of how commercial and industrial operations will be affected, such as: "Now I won't be able to develop my riverside parcel." "My stormwater discharges will be prohibited." "This will bring new home construction to a screeching halt. Real estate prices will skyrocket!"

Residential landowners are also wondering about impacts: "Can my neighbor sue me for washing my car in my driveway?" "Do I have to stop fertilizing my lawn?"

We believe that many of the alarmist predictions about ESA impacts in the Puget Sound area will turn out to be exaggerated, worst-case scenarios. However, changes are certain and the range of possible ramifications for commerce is broad. It is prudent to take a look at your business to evaluate ESA issues of concern and to prepare for changes that are inevitably coming. A proactive approach is crucial to ensuring that dual goals of salmon recovery and a healthy local economy are not mutually exclusive.

For most businesses the key issue will be protection or restoration of habitat, in order to prevent or minimize "take," which can be broadly defined as harming salmon. The National Marine Fisheries Service, responsible for implementing the ESA for marine species, is currently defining "critical habitat."

A number of "top-down" efforts are underway to try to provide a regional ESA response that will allow necessary economic activities to continue while providing for salmon recovery. All of these effortsfor example, the Governor's Salmon Recovery Plan and the Tri-County proposal have the goal of providing legislative revision or legally binding plans that will promote and ensure recovery of the listed species.

NMFS appears to be in favor of the top-down regional efforts to streamline their obligations under ESA. In addition, they have entered into discussions with the Washington Department of Fish and Wildlife and with the U.S. Army Corps of Engineers to consider developing programmatic Habitat Conservation Plans (HCPs) that would apply to certain activities, such as sediment dredging and hydraulic permits. If approved, these HCPs would alleviate additional permitting burdens by addressing ESA requirements within the existing permitting processes.

It remains to be seen how successful local, state and federal efforts to guide NMFS' rule making will be. The immediate question of concern is: Do you need to address the ESA? The answer is yes, if:

• Your project or activities are supported by federal funding or permits; or,

• You have reason to suspect that your activities could result in a taking and you are a concerned citizen, or are concerned about agency or citizen lawsuits.

Applying this litmus test is already changing the way we do permit projects and do business in the Puget Sound area. An immediate effect has been a growing backlog of road and marine construction permits that now must be reviewed by NMFS for potential salmon take' issues prior to approval. NMFS is seriously understaffed to handle their new mandate. Any activity with potential impact to salmon that requires a federal permit will be delayed in the short term, but additional staffing for NMFS will hopefully resolve this problem in the coming months.

Several of our firms' clients are trying to anticipate potential effects of their businesses on listed species. "Everyday operations" of commercial and industrial facilities will need to be reassessed in terms of potential "take" of salmon and, as a result, may no longer remain standard practice.

Stormwater management

One of the most significant areas that will likely impact commercial and industrial facilities is stormwater management. Stormwater discharge can impact habitat by modifying flow rates, water temperature and chemistry, and stream sediment loading. Clients with significant discharge will likely need to modify activities to minimize risk to habitat.

Groundwater withdrawals from wells are also expected to receive increasing scrutiny, because groundwater discharges to surface water in many areas of salmon habitat, and, among other things, buffers surface water temperature and streamflow rates during periods of low rainfall. Newer technologies, such as aquifer storage and recovery are expected to be increasingly employed.

Some clients are asking for ESA risk assessments' as part of strategic planning. This includes looking at facility or company-wide operations for potential exposure to claims of taking listed species. Direct impacts to water quantity and quality, or to physical habitat are of greatest concern.

For more complex projects currently underway, a process of informal and formal communication with NMFS is essential. Formally, this process includes preparation of a biological assessment by the lead federal agency for submittal to NMFS. However, in practice, we recommend preparing a draft assessment for the lead agency by the 30 percent design phase, if not sooner, to expedite the process. Even if federal agency oversight is not required, you may choose to prepare a biological assessment to obtain a determination from NMFS for legal protection.

In one recent example, a facility-specific ESA risk assessment recommended no immediate action, but included contingency planning for changes to stormwater management resulting from future changes in permitting requirements. In another example, a company-wide survey of several facilities recommended no action at some facilities, and preparation of biological assessments at others because of the potential for salmon "take."

Our firms recently prepared a draft biological assessment for the city of Tacoma for a major sediment cleanup project along the Thea Foss Waterway in Commencement Bay. This work seems to indicate that the sediment cleanup can move forward. The cleanup will improve habitat in the Thea Foss Waterway, and do extensive habitat mitigation in the nearby St. Paul Waterway. Based on the recommendations of the draft assessment, the site remediation will be consistent with habitat maintenance and restoration.

We are also working with the city of Tacoma to develop habitat restoration plans for Swan Creek. Several acres of adjacent wetlands are connected to the creek only during high-flow conditions. Juvenile salmon move into the wetland during floods to seek shelter, but they are unable to return to the stream after the flood waters have receded. Many stranded fish die during the summer as water temperatures increase within the wetland. We are developing a restoration plan for the city that calls for establishing consistent connections between the wetland and Swan Creek to allow fish to move freely between them.

As part of ongoing site work, we are also planning for a habitat restoration design for Beaver Creek, adjacent to the Manchester Annex Superfund site, in Kitsap County. This work is being conducted, in part, to offset habitat modifications in the area of remediation. The project will include habitat assessment as well as developing engineering plans and specifications, allowing the remediation work to move forward in a timely manner.

The dire predictions have some basis in fact in the short run if you want to build or fix your dock or other marine structure, or you are a road construction contractor on hold. But as NMFS staffing increases to handle the workload, you should be able to develop that riverside parcel, but maybe not without some habitat enhancement or maintenance.

Your stormwater management system may need to be retrofitted to provide better pretreatment and storage. Some impact will likely filter into the housing market, because of additional buffers required along shorelines and streams, potential habitat migtigation, and, once again, additional requirements for stormwater management. But by planning ahead and understanding your site-specific issues, we believe you can still find ways to proceed with projects within the constraints imposed by the ESA listings.

Oh, and by the way, taking the car to the car wash and mulching your lawn are always good ideas.

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