Will salmon listing enganger developers?

By RICHARD A. DU BEY and CONNIE SUE MARTIN
Short Cressman & Burgess

Before the year 2000, the Puget Sound chinook salmon may be listed as threatened under the Endangered Species Act. If the National Marine Fisheries Service decides to list the chinook, the effect on Puget Sound developers could be substantial.

Developers should be aware of the potential ramifications of the Endangered Species Act listing, which may include new regulations and limits on development.

More importantly, developers need to understand the steps they can take, either alone or in partnership with the public sector, to mitigate or avoid the consequences of the listing.

Proposed listing of chinook salmon

In March, the National Marine Fisheries Service (NMFS) proposed listing two populations of chinook salmon as “endangered” (at risk of extinction), and five populations as “threatened” (at risk of becoming endangered).

One of those five potentially threatened populations, the Puget Sound chinook, can be found in waterways throughout Pierce, King and Snohomish counties.

The Endangered Species Act (ESA) applies with equal force regardless of whether a species is listed as endangered or threatened. It is the act of listing that triggers the ESA’s protections.

Likely impact on developers

If NMFS determines that the Puget Sound chinook salmon population should be listed as threatened, the agency will be required to adopt protective regulations and a recovery plan. In general, such protective measures would focus on timber harvesting, road building, agriculture, livestock grazing, construction, urban development and related water uses.

When Sacramento River winter-run chinook salmon were listed as threatened under the ESA, diminished availability of water proved to be a problematic issue. After the listing, NMFS determined that the continued operation of the Central Valley Project — a federal water reclamation project which supplied water to a California water district — would jeopardize the chinook population.

When the Central Valley Project reduced the allocation of water to the water district, the water district sued to compel it to provide the full allocation of water contained in its contract. The Ninth Circuit Court of Appeals held that the United States was not obligated to provide the full amount of water it had contracted to provide when that water could not be delivered as a result of a listing under the ESA.

Members of Gov. Gary Locke’s cabinet have predicted that an ESA listing in Washington could halt real estate development in a dozen counties, preventing homebuilders from obtaining new water permits and even slowing the expansion of Microsoft and Boeing.

How the ESA works

The ESA was enacted to halt and reverse the trend toward species extinction, whatever the cost. The statute requires all federal agencies to consult with the Department of the Interior to insure that no action authorized, funded or carried out by an agency is likely to jeopardize the continued existence of any listed species. Agencies must also ensure that their actions do not destroy or adversely modify critical habitat.

This provision applies with equal force to actions that either have not yet occurred or actions that may be near completion. You will likely recall what may be the most striking example of the force of the ESA: the Tellico Dam case on the Little Tennessee River.

This project was halted just shy of completion at a cost of more than $50 million when it was discovered that a listed species of fish, the snail darter, had critical habitat downstream of the dam that would be adversely affected.

Consultation: The ESA has a “consultation” requirement that kicks in any time a federal agency acts. When an agency is asked to consider issuing a permit for private development, it is taking action, so the

consultation requirement is triggered.

Landowners or developers seeking a federal permit, license or other approval for an activity on private land may find themselves enmeshed in an agency review of the effect the proposed activity may have on a listed species. In addition, projects which receive federal funds, for example, funding for the development of low-income housing by the Department of Housing and Urban Development, may also be considered “agency action.”

In addition, because the standards for “agency action” under the ESA and “major federal action” under the National Environmental Policy Act (NEPA) are much the same, the landowner or developer seeking a federal permit may also have to prepare an Environmental Impact Statement (EIS), adding a year or more to the permit process.

One example of the application for a federal permit which might trigger both the ESA and NEPA is an Army Corps of Engineers permit for the filling of wetlands under Section 404 of the Clean Water Act.

‘Taking’ endangered species: The ESA also contains a “no-take” provision that mandates civil and/or criminal penalties for “taking” threatened or endangered species. “Take” has been broadly defined to include harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting or attempting to engage in any such conduct.

Moreover, “harming” a species has been defined by the Secretary of the Interior to include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns including breeding, feeding or sheltering.

Criminal penalties for taking an endangered species include a $50,000 fine and/or a year in jail for each violation. If the taking is done unknowingly, the penalties are less severe (a $25,000 civil penalty). However, the possibility always exists that an environmental group will file a citizen lawsuit or apply for injunctive relief.

Incidental takes: The ESA provides a mechanism for private landowners to obtain a permit to allow activities that may result in the taking of a listed species, where the taking is “incidental” to the activity. An incidental taking is defined as one that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. An incidental take permit will protect the landowner from ESA enforcement by NMFS and also may protect against citizen lawsuits.

In addition, the application for an incidental take permit may be a necessary condition for a landowner seeking compensation for a regulatory taking of private property.

The U.S. Fish and Wildlife Service (USFWS), the sister agency of NMFS with jurisdiction over terrestrial species, issued guidelines for addressing the spotted owl listing. Timber companies were permitted under these guidelines, which have since been repealed, to engage in informal talks with USFWS, often resulting in authorization for activities without a formal application for an incidental take permit.

This process might also be available in dealing with NMFS, and would provide protection against NMFS enforcement action, but would likely not protect against citizen suits.

Habitat conservation plans are the key: In order to get an incidental take permit, you must submit a proactive habitat-management tool called a habitat conservation plan (HCP). The HCP must specify the anticipated impacts that are likely to result in a taking, as well as the mitigation and monitoring measures you plan to undertake.

The HCP also must identify alternative actions that were considered that would not result in a taking, the reason those alternatives were not employed, the funding that will be provided to implement the mitigation measures and conservation plan, and additional measures that may be required for species conservation.

Where NEPA applies (for example, where the activity requires a federal permit), applicants also will likely bear the burden of developing the information required under NEPA.

The administrative process

Now that the threatened listing has been proposed, NMFS must complete a data review and then announce a final rule. It generally takes about a year for NMFS to review data before making a final listing determination.

On the administrative side, NMFS has issued a call for public comments and suggestions on potential local, state, tribal and federal conservation measures that would improve the health of the salmon ecosystems and increase the salmon population. (See the “Want to comment?” box for contact information.)

This request for comments should not go unanswered by the Puget Sound development community.

The state Legislature has already taken action to improve salmon habitat. Last session, legislators passed an amended Watershed Management Act allocating $36 million in grant money. Local watershed-planning groups will use this grant money to determine how to increase water quantity and quality in watersheds in the range of ailing chinook salmon. How these funds are actually used will have a big impact on future actions by NMFS.

Last year Oregon took action to fund and implement a $30 million coastal coho salmon restoration plan, and a proposed ESA listing was forestalled. It is unclear whether Washington’s Watershed Planning Act will be equally effective.

Call to action

If NMFS determines that adequate steps have been taken to achieve the ESA goals — recovery of the chinook salmon population and their supporting ecosystems — the proposed listing will be averted.

To meet this challenge, we must take control of our future and work together to forestall the ESA listing. We must find new ways of doing things and form new public-private partnerships. Only the combined

efforts of the public and private sectors will result in the steps necessary to deflect the federal threat, protect Puget Sound’s development community and preserve our quality of life.

Resources Practice Group for Seattle law firm Short Cressman & Burgess P.L.L.C. Connie Sue Martin is an associate with the law firm’s Environmental and Natural Resources Practice Group.

Copyright © 1998 Seattle Daily Journal of Commerce.