ESA presents big challenge for local government

By VALERIE ANN LEE
and JAELITH HALL-RIVERA
Environment International, Ltd.

"Extinction of our salmon is not an option” declared Gov. Gary Locke last year with the listing of the salmon as threatened under the Endangered Species Act.

The Governor went on to issue a challenge to Washingtonians: “If we walk out on this icon of our heritage, we won’t just be letting the federal government walk in. We’ll be turning our backs on a basic responsibility to protect the environment that’s made Washington such a great place to live. The overriding goal ... is for Washingtonians to restore healthy and abundant runs of wild salmon — and to control our own destiny.”

"Local governments have discovered charting a destiny for state residents that includes salmon recovery and development has been a difficult course."

A challenge is easy to make, but as local governments have discovered, charting a destiny for state residents that includes salmon recovery and development has been a difficult course. Local governments -- already struggling with a complex regulatory scheme under the Growth Management Act -- now have to incorporate one of the most complex set of federal environmental laws and regulations into their planning efforts. They have to accomplish this feat while creating a blueprint for the future that reflects local values while leaving a healthy space for salmon.

As those in the well-funded Tri-County “4(d) Rule” effort have realized, it pays local governments to understand the federal ESA regulatory regime and the structure and mission of the federal agencies implementing the ESA: The National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS).

The ESA contains a formerly little known provision under Section 4(d). Historically, this part of the ESA has gained little notice from local and federal officials struggling with threatened species recovery. The 4(d) planning process reflects a new age in restoration implementation, incorporating local knowledge and infrastructure in a more integrated, bottom-up approach. With the 4(d) process, the federal government is granting much of the authority for implementing recovery planning for threatened species to local governments.

"By creating powerful incentives for local programs in place of federal 'take' rules, we hope to broaden the scope of those conservation efforts and provide local governments with the option of going with home-grown solutions," said William Stelle, head of NMFS' Northwest Region.

"Our customary approach to protecting salmon has been to issue broad 'boiler-plate' 4(d) rules that provided protection for fish, but provided no place for local programs in lieu of those rules," Stelle said.

King, Snohomish, and Pierce counties have used the 4(d) process to advantage by defining activities considered consistent with salmon protection while maintaining local control over development and land use.

A 4(d) Rule is promulgated by either NMFS (in the case of salmon) or the FWS (in the case of bull trout, a recently listed threatened species) to relax the normal prohibitions on “take” usually applied to threatened species. Under this rule NMFS or FWS apply prohibitions on activities deemed necessary for the conservation of the species for which they have stewardship responsibilities. These types of rules allow flexibility and help integrate the adaptive species management and recovery programs at the local levels into a larger federal management strategy.

Incorporation of provisions dealing with approved local activities in a 4(d) rule offers important protections to local governments. It protects them from suits by the federal government and citizens. A shield against citizen suits is important as the ESA has the broadest citizen suit provisions on the books.

With extensive involvement of the Governor’s office and the Tri-County effort, the parties at the table with NMFS have developed language for inclusion in NMFS’ 4(d) salmon rule. NMFS proposes to exempt 13 programs from the prohibitions on take of salmon. These programs include a number of government and scientific activities. Three exemptions of interest to local governments are exemptions from take for habitat restoration activities, forestry practices conducted under the Fish and Forests Report, and, most importantly, certain development activities in urban areas. NMFS believes that new development can be specifically tailored to minimize impacts on threatened species.

Notwithstanding the apparent success of the Tri-County effort -- and Stelle’s optimism about the opportunities in the 4(d) process -- the reality is that smaller governments that are less well funded than the Tri-Counties and the cities of Bellevue and Seattle, are struggling to understand the federal 4(d) process and how it can work for them. The Tri-Counties have thrown a wealth of human and financial resources to the 4(d) effort.

Counties who have more modest budgets and did not get in on the ground floor of the 4(d) effort face a more difficult challenge. How do they do more with less in the face of NMFS’ reluctance to negotiate with “smaller” governments over 4(d) provisions. NMFS does not have the staff and funding to educate “smaller” governments and negotiate with them over elements specific to their locales for incorporation in NMFS’s 4(d) Rule.

"The reality is that smaller governments that are less well funded than the Tri-Counties and the cities of Bellevue and Seattle, are struggling to understand the federal 4(d) process and how it can work for them."

Ideally, local governments should obtain NMFS or FWS approval for land-use planning efforts under the Growth Management and Shoreline Management Acts. The ESA presents an enormous challenge for planners trying to meet state requirements and contribute to salmon restoration. Working in the breach without guidance from NMFS has landed local governments in challenges before Growth Management Hearings Boards. Ideally, by utilizing the “urban area development exemption” under the salmon 4(d) Rule, local jurisdictions can work with NMFS to craft language that will limit the prohibitions on salmon take.

They can then carry out plans to implement this language, through local ordinances, regulatory enforcement, and community involvement. The same holds true for bull trout.

Environment International Ltd., an environmental consulting firm in Seattle, has already begun to address some of these issues. EI has educated local government officials regarding 4(d) and the federal regulatory regime. Importantly, EI has also helped governments develop a dialogue with NMFS and FWS officials.

The challenge for local governments is to understand the complex federal process and structure and be strategic in their contacts with NMFS and FWS. Local governments need to present overburdened federal agency officials with the means by which they can satisfy their mission of threatened species recovery. That means, local government must develop clear provisions that can be effectively incorporated in a 4(d) rule. Local governments must also demonstrate that these provisions are grounded in best available science.

EI has also helped agencies and governments reach consensus regarding how major projects can be tailored to avoid the ESA pitfall of unlawful “take.” EI has helped groups craft such approaches on the Columbia River and in the state of Washington. Among other things, EI is advising the city of Aberdeen on ESA issues in connection with a brownfields redevelopment project, and is considering where there are wins for economic development and salmon restoration.

The new world of 4(d) holds both promise and risk. It offers a flexible way to integrate local concerns, development interests, habitat conservation, and federal statutory requirements into a plan through which the ecosystems that we prize will be protected. Local jurisdictions are at the heart of this process. Proactive jurisdictions who meet the challenge of planning within a federal context of a 4(d) rule will reap enormous rewards for their localities – they can shape their own destiny to be a bright one where sustainable development is balanced with threatened species recovery.