Threatened species in an urban environment:
Chinook salmon and the 4(d) rule

By CONNIE SUE MANOS MARTIN
Short Cressman & Burgess PLLC

Urban lands make up about 2 percent of the land base in Washington state, and most of them are located in the Puget Sound region. This 2 percent also encompasses prime spawning, rearing and migratory habitats for threatened salmon and steelhead. In March 1999 the Puget Sound Region began to address the impact of having a federally protected species in our backyards. Fifteen months later, where are we?

Puget Sound Chinook are listed as threatened

On March 24, 1999 the Puget Sound Chinook Salmon Evolutionarily Significant Unit (ESU) was listed by the National Marine Fisheries Service (NMFS) as threatened under the Endangered Species Act (ESA). NMFS identified widespread habitat modification as one factor contributing to the decline of the Chinook.

The ESU includes all naturally spawning populations of Chinook salmon from rivers and streams flowing into Puget Sound. The listing set into motion a process which, like it or not, will fundamentally affect the way Puget Sound residents live, work, and make use of real property.

"Take" prohibition

The ESA prohibits any activity which will result in the "taking" of an endangered species. "Taking" is broadly defined under the statute and NMFS' regulations, and has been broadened even further by the United States Supreme Court's construction of the statute and regulations.

"Take" includes destruction or modification of habitat that kill or injure listed species. Some examples of Chinook salmon habitat-modifying activities that NMFS has determined may fall within the scope of "take" include the following:

• Land use activities such as logging, grazing, farming or road construction;
  
  
• Destruction or alteration of habitat, such as the removal of large woody debris or riparian shade canopy, dredging, discharge of fill material, and draining, ditching, blocking or altering stream channels or surface or ground water flow;
  
  
• Blocking fish passage through fills, dams, or impassable culverts;
  
  
• Pesticide applications; and
  
  
• Water withdrawals in areas where important spawning or rearing habitats may be adversely affected.

Critical habitat

The ESA requires that NMFS designate critical habitat for listed species. Critical habitat means areas within the geographical area the listed species occupies which have features that are essential to the conservation of the species, such as food, shelter, and breeding areas, and which may require management or protection.

For salmon, habitat includes freshwater, estuarine and marine habitat. Because human uses are often in conflict with salmon uses, salmon "compete" with humans for freshwater and estuarine habitat in the Puget Sound region.

On Feb. 16, 2000, NMFS designated critical habitat for the Puget Sound Chinook, which includes all marine, estuarine and river reaches accessible to listed Chinook salmon in Puget Sound. Major river basins containing spawning and rearing habitat for listed Chinook encompass about 3,761 square miles, and fall into portions of Clallam, Island, King, Kitsap, Jefferson, Mason, Pierce, San Juan, Skagit, Snohomish, and Whatcom counties.

West Coast 4(d) rule

Under Section 4(d) of the ESA, NMFS is also required to issue protective regulations for the conservation of a listed species. NMFS issued its proposed 4(d) rule for the seven threatened ESUs of West Coast Salmonids on Jan. 3, 2000.

"Since the listing of chinook in March, 1999, the backlog of applications for Army Corps of Engineers in the Seattle District has increased exponentially. There are approximately 1000 permit applications pending in the Seattle District, with 40 to 50 more being added each month."

NMFS' proposed rule included the agency's standard application of the "take" prohibitions under Section 9 of the ESA, which are generally applicable to endangered species, to threatened Chinook.

However, NMFS identified 13 specific activities to which the take prohibition will not apply, including fishery and hatchery management activities; activities in compliance with approved joint tribal/state resource management plans; habitat restoration activities; and forest management activities within the state of Washington.

Additionally, NMFS referred to the joint efforts of jurisdictions representing King, Snohomish and Pierce counties to develop a comprehensive proposal for the conservation of salmonids (the Tri-County Framework), and indicated that it would consider the final Framework for inclusion in the final 4(d) rule.

The final 4(d) rule is scheduled to be published on June 19, but whether that deadline will be met remains to be seen. Recent indications that NMFS might delay the date on which the final rule becomes effective have prompted several local environmental organizations to provide notice of their intent to file suit if NMFS delays the effective date of the final 4(d) rule.

Tri-County draft Framework of proposed Salmon Recovery Plan

The Framework addresses some of the activities that harm salmon, including land development, stormwater runoff, and road and bridge maintenance, and identifies ways in which these activities can be regulated to allow for salmon recovery.

A substantial component of the Framework is the regulation of development through the definition of "management zones," designated areas adjacent to streams, lakes, wetlands and marine shorelines, in which development projects or activities will receive special scrutiny and may be limited or conditioned.

Management zones are more than simply buffers in which development cannot occur, although prohibiting activity in the part of the management zone closest to the water entirely is being considered as an option for inclusion in the final rule. Rather, the zones are areas in which local governments will require all permit applicants to assure that actions are not taken to jeopardize the continued existence of listed salmon or adversely modify their critical habitat.

Management zones would be implemented by city and county governments through their authority under the Growth Management Act, the Shoreline Management Act, and the state Environmental Policy Act.

The width of the management zones currently being analyzed range from 50 to 300 feet, depending upon factors including the presence or absence of salmon in the water body, the critical habitat features, and the opportunity for preservation or restoration of habitat. NMFS has pushed for 100-foot no-touch buffers along marine shorelines.

If the Framework is approved by NMFS and adopted into the 4(d) rule, the prohibition on take would not apply to specified activities, including the adoption of land use, shoreline, and environmental policies, programs and regulations; issuance of land use, development, and environmental permits; and "lawfully permitted private and public land use and development activities."

The Framework, as proposed, has two phases. The first phase, lasting five years, commences when the final 4(d) rule becomes effective.

During the first two years of Phase I, cities and counties will complete an Early Action Program which includes improved land use regulations, a comprehensive stormwater program, specific road maintenance procedures, acquisition and restoration of habitat, scientific watershed assessments, and the initial steps toward development of watershed-based salmon conservation plans.

In the last three years of Phase I, cities and counties must finish the watershed plans begun as part of the Early Action Program. Phase II, which commences on the fifth anniversary of the 4(d) rule's effective date or the effective date of a NMFS-approved watershed plan (whichever comes first)is the implementation of the approved watershed plans.

The draft Framework was made available for public comment in Feb. 21, 2000, and was scheduled to be completed by the counties and released for public comment by NMFS in April, 2000. This goal has not yet been met.

The effect of the listing

Section 7 of the ESA requires that any federal agency that will approve, fund, or perform any activity that has a potential for a taking must consult with NMFS. Since the listing of Chinook in March, 1999 the backlog of applications for Army Corps of Engineers in the Seattle District has increased exponentially. There are approximately 1000 permit applications pending in the Seattle District, with 40 to 50 more being added each month.

The Corps attributes the delay in processing permits, in part, to the fact that NMFS is awaiting the completion of the Tri-County Framework.

The Corps backlog results in a wait of approximately two years before a permit application can be reviewed and processed. The Corps has proposed a new programmatic review process to try and address the problem, and NMFS and the US Fish and Wildlife Service have requested funding to hire additional staff for consultations.

Permit applicants may increase the speed at which consultation with NMFS is completed and their permits are processed by paying for the cost of the consultation. For example, the salary of NMFS biologist who is reviewing Sound Transit's application is paid by Sound Transit.

Two projects that are of substantial importance to the region and which must be approved by NMFS before they can be completed are the Port of Seattle's $773 million third runway at SeaTac Airport and Sound Transit's $4 billion light rail project.

"Permit applicants may increase the speed at which consultation with NMFS is completed and their permits are processed by paying for the cost of the consultation. For example, the salary of NMFS biologist who is reviewing Sound Transit's application is paid by Sound Transit."

The expansion of Northgate Mall, which was to have begun this spring and continue in four stages over the next 15 years, was delayed by a court order entered May 18 requiring additional environmental review of Thornton Creek.

Thornton Creek has been channeled through a culvert running under the south parking lot since the mall's expansion in the 1960s. Environmental groups allege that the stream is salmon habitat and want the stream to be "daylighted" and restored.

And in the continuing fight over water in the Methow Valley, the Justice Department recently sought injunctive relief compelling the Methow Valley Irrigation District to convert from open ditches to pressurized pipelines. NMFS has sued the district, asserting that the valley's diversion dam is killing protected salmon and steelhead. If the proposed consent decree is not approved by the Justice Department, the judge could order the district to de-water the ditches that irrigate pastures, lawns and farms in the Methow Valley.

The largest factor in the dilemma created by the listing of salmon is uncertainty. NMFS holds up applications for further study, so federal agencies cannot issue permits. State and local agencies and municipalities are hesitant to authorize activities that may cause a "take" for fear the agency or municipality may be held liable.

Once the final 4(d) rule is in place, and the regulations proposed in the Tri-County Framework are enacted and enforced, NMFS' review of permit applications can be expedited because NMFS can be confident that applicants will comply with ESA.

Until then, we wait.