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New Rules Set Up for Salmon by Jonathan Brinckman The Oregonian, June 21, 2000

U.S. policy will give local agencies a chance to write their own protection regulations

The federal government issued rules Tuesday that make harming protected salmon or steelhead, or their habitat, a crime across 160,000 square miles of Oregon, Washington, Idaho and California.

For the first time, heavily populated urban centers, including the Willamette Valley and Puget Sound, face restrictions on a broad range of activities, from housing development to use of garden chemicals to road maintenance.

In an unprecedented approach, the government said that if people follow approved local salmon protection rules, they will not face criminal and civil penalties, which can include thousands of dollars in fines and jail.

Conservationists called the new federal rules inadequate, and three groups said they plan legal action against the National Marine Fisheries Service, which issued them.

Home-building industry representatives said the rules would bring harsh restrictions that would raise housing prices and slow construction.

The fisheries service's rules are designed to protect 14 stocks of salmon and steelhead listed as threatened under the U.S. Endangered Species Act. But with three exceptions, the agency Tuesday did not specify what would be allowed or forbidden under the law.

"This will make everybody nervous and everybody tense," said Kathleen Gardipee, an assistant to Portland City Commissioner Erik Sten.

Fishery service officials said the agency won't try to enforce the rules in every case but will take action against flagrant violations that result in serious harm to listed fish or their habitat. They also warned that with release of these rules, the Endangered Species Act allows citizens to file lawsuits against anyone who hurts listed salmon or steelhead or damages habitat.

"There's a simple rule," said Will Stelle, regional director of the fisheries service: "Don't do things that hurt salmon."

The new rules were released in draft form last year and were debated in often contentious public hearings across the region.

But federal officials say their approach in crafting these rules is groundbreaking, because they protect threatened fish stocks by linking them to local regulations designed to protect listed fish.

In the past, similar rules have simply prohibited harming or killing listed species. Exceptions were determined on a case-by-case basis. The new rules take a new approach, letting state and local agencies write their own salmon rules.

If the fisheries service approves the local rules, landowners will know what the specific regulations are. They would not have to apply for a permit from the federal agency, and more important, they wouldn't have to worry about being sued.

"This is a very big deal," Stelle said Tuesday, adding that local programs "provide more and better benefits for the fish."

The fisheries service originally cited Metro's stream protections and measures to protect salmon being developed in the three-county Seattle area as examples of local programs that it might approve. But on Tuesday, the agency mentioned only three local programs:

• Washington state's timber rules. Logging regulations worked out among the timber industry and state and federal regulators are deemed to adequately protect fish.

• Oregon road maintenance: Procedures developed by the Oregon Department of Transportation will protect listed fish stocks, the agency said.

• Portland's parks pesticide program: The city's integrated pest management for parks, which minimizes use of pesticides that could harm fish, is adequately protective, the fisheries service said.

Conservationists were skeptical that the new federal rules would protect dwindling stocks of salmon and steelhead.

The Earthjustice Legal Defense Fund, acting on behalf of three environmental groups, notified the fisheries service Tuesday morning that it intends to take legal action against the rules.

"The government is letting timber companies and big developers off the hook," said Michael Rossotto, legal program director for the Washington Environmental Council in Seattle, one of the groups represented by the Earthjustice Legal Defense Fund. "We will not see the return of healthy salmon runs in Washington if the state's largest industries are allowed to continue harming salmon."

But organizations representing home builders expressed equal alarm.

Neil Gaffney, a spokesman for the National Association of Home Builders in Washington, D.C., called the rules released Tuesday a federal intrusion into private life that would discourage new construction and hurt the region's economy.

"We think it's a whole new world of regulation now in Washington and Oregon," Gaffney said. He predicted that developers in the region would be excessively cautious, choosing not to build rather then risking running afoul of the Endangered Species Act. "Housing is expensive in Portland as is. It's going to get worse."

Fisheries service officials conceded that the rules are vague, but they said they plan to incorporate local regulations that protect fish as they are developed and adopted.

The rules that prohibit harming listed steelhead will become effective 60 days after the regulations are published, and rules that prohibit harming listed salmon will become effective 180 days after the regulations are published. Agency officials say the regulations will be published next week.

Stelle, the agency's regional director, said he couldn't predict whether the new rule would survive legal challenges from conservationists who argue that they are not protective enough or from industry representatives who argue that they're too restrictive.

"No doubt it will be tested," he said. "Fasten your seat belts."