March 14, 2000

Smaller cities face real challenge from ESA

By BENN BURKE
Adolfson Associates, Inc.

With the looming June deadline for the National Marine Fisheries Services’ requirement to provide specific protections for salmon and steelhead, many local governments are actively working on plans to respond to the new rules.

Unlike previous federal directives, the National Marine Fisheries Service is fostering a bottom-up approach to the latest round of salmon protection by setting regulations that favor locally developed approaches over top-down federal regulation.

Local responses to the federal governments requirements, termed the 4(d) rulemaking process after the section of the Endangered Species Act that requires the added protections, are being spearheaded by the Tri-County coalition. Tri-County is composed of the governments of Snohomish, King and Pierce counties, ports, tribes, local cities and environmental and industry groups.

The Tri-County plan is based on several platforms, four of which are directly related to land use and development. These include salmon-friendly comprehensive planning, heightened controls on some development, improved agricultural practices, and adequate enforcement of new and existing regulations. The Tri-County 4(d) Rule Framework was released for public comment in late January and is expected to be sent to the National Marine Fisheries Service late this month.

While the Tri-County 4(d) Rule Framework makes significant strides toward the development of a regional salmon recovery plan, it leaves the actual implementation of the plan up to participating local governments. Although this effort to empower local decision makers is to be commended, the lack of specific implementing regulations may leave many local governments in a difficult position. For the three counties and larger cities, implementation of the plan will mean changing responsibilities and shifting staff, but the real challenge will lie in implementing the proposed salmon protection measures in the region’s small and medium-sized cities. In contrast to the dozens of environmental scientists, planners and permit specialists who work for King County, most small cities in the Tri-County region have only one or two planners, who already have their hands full keeping up with the demands of development review.

The conundrum for smaller cities is that participation in the plan will mean the commitment of resources and the development of new regulatory infrastructure to implement the plan’s provisions. Yet not participating will mean that the legal protections provided under the 4(d) umbrella will not apply to development in that jurisdiction. As a result, every development proposal in non-participating cities, including the city’s own capital projects, could be challenged by opponents or federal regulators. While the liability faced by each city will vary considerably, the potential does exist for the development process in nonparticipating cities to be driven more by fear of third party litigation and federal oversight than by proactive land use planning.

In either instance, it will be up to the local agencies to develop a process of environmental screening for development proposals to make sure they comply with the Endangered Species Act. The National Marine Fisheries Services has developed guidelines for use by other federal agencies to evaluate proposed federal actions for Endangered Species Act compliance, but these guidelines were intended for biologists to develop assessments reviewed by other biologists. While these federal guidelines provide a good starting point, they are of limited use for direct application by project proponents or the planner staffing the permit counter.

However, local agencies do not have to look far to find other cities that area finding solutions to these problems. The city of Tukwila, for example, is credited with developing the first local tool to help staff assess the impacts of a project related to salmon recovery. Working with our firm, Tukwila developed a tool to assist the public works department pre-screen projects for potential impacts to salmon. They quickly settled on a checklist-format using simple yes-or-no answers. The city required a tool that was applicable to the projects or actions anticipated by the city’s comprehensive planning process, was based of the NMFS and USFWS evaluation criteria, directly linked specific activities to indicators of potential harm to salmon, and was clear and easy to use.

Adolfson analyzed the federal guidelines, the city’s capital improvement plan, comprehensive land use plans, and information on salmon use within the city limits and identified nearly 200 possible criteria for consideration for each project review.

“By working closely with city staff and using the criteria to evaluate real life projects in various stages of development, we were able to narrow the initial list of 190 criteria into five basic categories,” notes Lloyd Skinner, Adolfson’s principle in charge for the project.

The five categories, or pathways, which may result in harm to salmon, were: clearing activities, grading or excavation, alteration of waterways, landscaping, and hazardous materials use or storage.

“The checklist approach proved very useful,” says Skinner. “A ‘no’ answer to a question about clearing, for example, will allow the reviewer to skip that entire category. While a ‘yes’ answer directs the reviewer to a secondary evaluation, to help determined the potential of the project to result in harm to listed salmon and trout species. The benefit of this approach is that an applicant for a permit to construct an espresso stand in a mall parking lot isn’t burdened to the same extent as an applicant who wants to construct a tank farm. This distinction between types of projects is important for Tukwila since much of the city's industrial properties are located adjacent to the Duwamish River and its salmon resources. Still, both projects will receive an equal degree of evaluation.”

In addition to developing the criteria and format for the checklist, Adolfson worked closely with city staff to design the screening checklist specifically for use in Tukwila’s unique regulatory environment. This was accomplished by using terms and referencing policies already defined in the city’s zoning code or in use by city staff so the review integrated as seamlessly as possible into the city’s existing permitting and development review process.

Adolfson Associates is currently developing a screening tool similar to Tukwila’s for the city of Bellevue planning department to help assess the effect of lakeshore development on salmon, and is assisting Pierce County, Whatcom County, and other local jurisdictions plan responses to the upcoming 4(d) requirements.