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New Salmon Crimes by Lynda V. Mapes, staff reporter Seattle Times - January 7, 2001

A broad swath of the Northwest and California face a new reality as of tomorrow when a federal rule makes it a crime to harm or kill threatened salmon.

For the first time in the decades that fish advocates have warned of the decline of the region's signature fish, there will be teeth in the federal protections for Puget Sound chinook.

The so-called 4(d) rule shields 14 threatened West Coast populations of salmon and steelhead in all, including Puget Sound chinook.

Implementation of the rule has been expected since last June, when it was first announced by the National Marine Fisheries Service. One of the biggest changes it brings is the potential for third-party lawsuits brought under the rule. Those suits can allege land-use practices harm or kill fish.

For farmers, the rule could mean a court injunction turning off their irrigation water, while a legal challenge is mulled.

For a developer, it could mean financial losses and, ultimately, project cancellations as building permits bog down in a morass of legal uncertainty.

"Our members are worried," said Tom McCabe of the Building Industry Association in Olympia. "It puts an indecisiveness in the marketplace."

Critics of the rule say they worry about "frivolous lawsuits" brought by environmental and neighborhood groups who use it as a vehicle to block growth.

"We'll see that, definitely," McCabe said.

Dean Boyer of the Washington State Farm Bureau called ESA lawsuits "a threat everyone is now going to have to live with, not only on the farm, but in urban areas. Anyone can bring a third-party lawsuit, and it doesn't have to be legit."

The federal government also now will have the authority, for the first time since Puget Sound chinook were listed for protection in March, 1999, to bring civil or criminal penalties against anyone harming or killing chinook.

But that doesn't mean region residents should expect the fish cops at their door tomorrow morning, according to Bob Turner, senior policy analyst for the National Marine Fisheries Service Northwest Regional Office.

Instead the feds can be expected to give some breathing room to jurisdictions, industries and individuals making a good-faith effort to comply with the law.

Similar rules have been in effect for steelhead in other parts of the state since last June and even longer elsewhere for other species.

"The world doesn't come to an end. There isn't a litigation Armageddon," Turner said. Instead, "the consciousness is raised."

But as soon as Thursday, fish advocacy groups may be filing a notice of intent to sue Puget Sound Energy and the Federal Energy Regulatory Commission.

The action is expected in response to dam operations that hurt salmon nests on the Skagit River last November and killed fish on the White River last September.

Enforcement of the rule is the middle step of a five-step process intended to protect plants and animals under the federal Endangered Species Act. First, the species is listed for federal protection. Second, its critical habitat is designated.

In this phase, the rule making it a federal crime to harm or kill a threatened species is implemented.

Next a recovery plan is issued, and finally, the plant or animal is taken off the endangered-species list.

The entire process has no certain timetable. It can be decades from the time a species is listed for protection until it rebounds enough to come off the list.

Puget Sound chinook have a long way to go, before they are out of the federal emergency room.

The region's biggest and, to many, most beautiful and tasty salmon, chinook once thrived throughout Puget Sound.

Today only two of 13 stocks of Puget Sound chinook are considered healthy. But Mother Nature has been providing a boost to troubled runs: more abundant food supplies and favorable water temperatures in the ocean, combined with good stream flows and a lack of devastating floods have helped salmon hatch, migrate and survive.

Consider the Skagit River: only 400,000 baby salmon were counted in their out-migration from the Skagit River in 1995 because of devastating floods that damaged salmon nests. But 4 million baby fish made the trip in 1996 and 7 million made it down river in 1997.

But even in good times, only a tiny fraction of baby salmon that hatch out of their nest grow to adults in the ocean and make it all the way back to their home river to spawn.

Chinook typically return from the sea four years later, so Northwesterners saw some of the highest adult chinook returns in decades this summer.

But a combination of devastating blows to salmon--from development to logging, dams and overfishing - mean salmon will continue to decline toward extinction, unless the damage is reversed through recovery actions, no matter what Mother Nature does.

In a new approach to recovery, the feds are allowing governments and industries to craft their own solutions to the recovery problem.

Those state and local salmon regulations can be deemed adequate ESA protection by the fisheries service. Anyone who follows those regulations is then safe from prosecution or lawsuit under the rule prohibiting harm to threatened fish.

Several such local fixes are in the works. The Tri-County area is working on a plan covering storm-water management, road maintenance and development. The Washington Legislature adopted a logging law during the 1999 session which, when adopted into final rules, is expected to meet federal standards for ESA compliance.

The idea is to implement the ESA in a flexible manner.

Environmentalists have been critical of that approach, arguing that strong federal medicine is the only thing that will cure damaged rivers and fish runs.

The feds argue the most effective approach is working out cooperative, local solutions.

It's harder to bring about change through prosecutions or lawsuits alleging harm to salmon habitat. That's because without hard evidence - a bunch of dried up salmon nests, for example, or salmon stranded in irrigation canals - those are tough cases to win.

Some of the most dramatic changes on the ground so far for salmon have not come about as a result of prosecutions under the rule but from a different part of the ESA altogether, which requires federal agencies to show they themselves aren't hurting salmon.

That has compelled federal dam operators to be more fish-friendly, shut down irrigation canals and required the construction of new fish screens all over farm country. Changes can also be expected in everything from dredging permits to highway projects.

The simple fact that it's now a crime to harm or kill protected Puget Sound chinook also gives the rule a cutting edge. There is new urgency to salmon recovery if only through the potential threat of lawsuits and enforcement, said Curt Smitch, Gov. Gary Locke's top fish adviser.

"We've done all the easy things," Smitch said. "Now we are to the hard stuff. Deciding what we will do with buffers along streams. Modifying people's behavior in how they treat areas around streams and wetlands."

Fish advocates will be watching closely to see how much muscle the feds bring to salmon recovery now that the rule is in effect, said Kurt Beardslee of Washington Trout, a wild-fish advocacy group.