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Capitol Comment

    Capitol Comment 270 - The 4(d) Rules for Salmon in the Pacific Northwest

    03/17/2000

    During 1999, the U.S. National Marine Fisheries Service (NMFS) added several evolutionarily significant units (ESUs) of salmon and steelhead to the Endangered Species List. Under the Endangered Species Act (ESA), full "take" prohibitions apply automatically upon listing for species considered "endangered." Species considered "threatened," however, are covered by what is called a

    During 1999, the U.S. National Marine Fisheries Service (NMFS) added several evolutionarily significant units (ESUs) of salmon and steelhead to the Endangered Species List. Under the Endangered Species Act (ESA), full "take" prohibitions apply automatically upon listing for species considered "endangered." Species considered "threatened," however, are covered by what is called a
    4(d) rule. These are regulations considered "necessary and advisable to provide for the conservation of the species," and are intended to clarify what constitutes take of a threatened species.1 In all cases, take is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."2 A take not only includes harming a listed animal or plant directly, but also modifying the habitat in which they live. Violating the take prohibitions of the ESA can result in penalties of up to $50,000 and a year in jail.

    In December 1999, NMFS proposed a 4(d) rule for seven steelhead ESUs. This was followed in January by a rule for seven salmon ESUs and an additional rule for Indian tribal fisheries. The fisheries service claims that the 4(d) rules, which also cover ESUs listed prior to 1999, will allow "state or local authorities, or the private sector, to craft their own conservation strategies" and will be "fish-friendly and people-friendly."3 However, the very structure of the ESA combined with NMFS’ approach to saving salmon has made such promises purely symbolic.

    Semantics of control. The 4(d) rules are intended to clarify what types of activities are permissible under the ESA. The fisheries service lists 13 categories of activities that, if conducted properly, will not result in punishment should they cause a take of listed salmon and steelhead. These include:

    activities covered by an existing incidental take permit;
    ongoing scientific research projects for a period of six months;
    aiding injured or stranded fish, or salvaging dead fish for research purposes;
    NMFS-approved fishery management programs;
    NMFS-approved hatchery programs;
    activities in compliance with tribal/state programs;
    state-approved scientific research activities;
    state-approved habitat restoration projects;
    properly screened water diversions;
    road maintenance activities in Oregon;
    certain park maintenance activities in Portland, Oregon;
    NMFS-approved urban development projects; and,
    forest management activities in Washington.4
    This is a fairly extensive list of activities, and the fact that several state-run programs are included may give the appearance of a locally controlled, people-friendly strategy. However, the fisheries service retains ultimate veto power over any activity, including those within state-approved programs. Furthermore, "new information may require a reevaluation" of any permissible activity "at any time." If changes are not made in accordance with NMFS’ orders, the fisheries service will "impose take prohibitions…"5 Essentially, NMFS will determine whether or not a "local strategy" meets its standards and it can redefine the standards at will. In addition, anything falling outside of the list of 13 permissible activities risks violating the ESA.

    Behind the velvet glove. NMFS included in its rules another list of activities. These are activities the fisheries service feels are very likely to violate the ESA including: handling listed fish; improperly screened water diversions; disturbing or blocking streambeds when spawners or eggs are present; discharging undefined "pollutants" into waters or riparian areas; and blocking fish passage through fills, dams or impassable culverts.6

    Another list includes activities that may violate the ESA, such as water withdrawals that affect habitat; activities that cause excessive changes of stream temperatures; destruction of habitat through removal of "woody debris" or "riparian functional elements;" land use activities that adversely affect habitat such as "logging, grazing, farming, urban development, or road construction in riparian areas;" use of pesticide or herbicides; and altering habitat in ways beneficial to salmon predators.7

    NMFS includes still another list of activities that "while individually unlikely to injure or kill listed salmonids, may collectively cause significant detrimental impact" to these fish and therefore might be construed as a take. Among the candidates are "individual decisions about energy consumption for heating, travel, and other purposes," and "individual maintenance of residences and gardens." As a result, according to the fisheries service, "it is important that individuals alter their daily behaviors to reduce these impacts as much as possible."8 Such Brezhnevian directives conjure up images of the former Soviet Union.

    What is to be done? Whether listing individual ESUs has scientific merit or whether hatchery fish should be considered "real" salmon are still very legitimate questions. However, the fact remains that having put salmon and steelhead on the Endangered Species List, NMFS is statutorily responsible for their recovery. How it goes about that recovery is another matter.

    Despite the symbolism of the 4(d) rules, the fisheries service still has failed to provide the substance of local control. NMFS should go beyond the rhetoric, quantify exactly what population size will constitute recovery of an ESU -- something it has yet to do -- and allow the states to meet that goal by whatever means they see fit. Local officials, rather than an unelected bureaucracy headquartered in Washington, D.C., could then come up with appropriate measures. While this would not relieve all the burdens of the ESA, it would come closer to a "people-friendly and fish-friendly" recovery strategy. That, at least, would be a step in the right direction.

    1 "The ESA Proposed 4(d) Rules for Pacific Salmon," NMFS Northwest Region, 12/99.

    2 Endangered Species Act of 1973.

    3 William Stelle Jr. (Regional Administrator NMFS Northwest Region) op-ed, The News Tribune, 2/20/00.

    4 Federal Register, 50 CFR Part 223, 1/3/00, p. 171.

    5 Ibid., p. 175.

    6 Ibid., p. 172.

    7 Ibid.

    8 Ibid., p. 173.