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Sweeping New Rules Protect Salmon by Robert McClure Seattle Post-Intelligencer, June 21, 2000

Environmentalists, businesses unhappy

Federal fisheries managers yesterday issued a sweeping yet simple set of rules for the Pacific Northwest that boil down to this: Thou shalt not harm endangered salmon or the streams where they live.

Environmentalists immediately criticized the rules as vague and unmanageable, and filed papers to initiate a lawsuit. Business interests say the plan will drive up costs, and vowed to maintain their legal barrage against salmon-recovery requirements.

The new rules simply prohibit killing or harming of some populations of salmon and a similar fish, steelhead. The rules require no positive efforts to return the fish to their former abundance.

The announcement followed recent criticism from a scientific panel appointed by Gov. Gary Locke that targeted Washington's own salmon-recovery strategy, a separate plan adopted by the 1999 Legislature in anticipation of yesterday's announcement.

The scientists called the state plan an "unscientific . . . disjointed collection of partial measures." Yet a key part of that strategy was singled out for praise yesterday by the federal official who announced the new salmon rules, Will Stelle, regional director of the National Marine Fisheries Service.

"These rules put into place another essential building block for recovering salmon. They're needed by the fish," Stelle said. "It says to everybody: Change what you are doing to avoid injuring or killing these fish."

The rules cover huge swaths of Idaho, Oregon, California and Washington, including the Puget Sound region.

Typical homeowners probably will not feel an immediate impact when the rules go into effect in December. Builders, fishers, local government officials, hatchery managers and others, however, will have to figure out whether what they are doing is likely to endanger fish protected under the Endangered Species Act.

If so, they have to change their actions or seek special dispensation from the Fisheries Service. The rules provide "a hugely powerful incentive to change the way we do development and re-development to make it salmon-friendly," Stelle said.

At the heart of the Fisheries Service's strategy is a hope that local governments will come up with their own plans for saving salmon. Towns, cities and counties are not required to formulate such plans. But that leaves developers, road maintenance crews and others who can potentially mess up streams inside their boundaries liable to prosecution under the Endangered Species Act.

Instead, the Fisheries Service hopes, local governments will seek exemptions to the rules. That way, local governments can protect their citizens against Endangered Species Act lawsuits in exchange for promising to do good things to help salmon, such as re-creating wetlands that shelter young salmon on their journey to the sea.

Otherwise, the Fisheries Service is left to enforce the rules on its own across a California-sized piece of ground -- a task the agency has nowhere near enough workers to perform.

To save the salmon, Stelle said, the Fisheries Service must harness local governments' aid.

"These exemptions provide better, more comprehensive benefits for the fish that make it more likely we'll reach recovery," he said. "The benefits of those local programs are much more effective than episodic application of the 'take' prohibition."

"Taking" is the legal definition for killing or harming salmon.

Praise for the new rules came from King County Executive Ron Sims, who is working with counterparts in Snohomish and Pierce counties and a slew of other local interests to win an exemption for this region .

"Our goal is to meet their standards. It is not an option," Sims said.

In the past, "We worked really hard to kill as many fish as we could, quite frankly and bluntly. We have not been good stewards," Sims said.

Nor do the new rules ensure a major change, said Michael Rossotto of the the Washington Environmental Foundation, which along with four other environmental and fishing groups took the first formal step yesterday to legally challenge the new rules in federal court.

Rossotto said the rules lack "rigorous and well-defined criteria," leaving all future enforcement efforts subject to negotiation.

"Our concern is that (the Fisheries Service) is going to play let's make a deal and cave in, and the fish are going to be the losers," Rossotto said.

For example, the rules call for "adequate" buffers beside the streams to help keep pollution out.

"Is two feet adequate or is 200 feet adequate?" Rossotto asked. "They are setting up a process where every municipal parks department and every county road maintenance department is going to go out and try to develop a plan that tries to meet this ... but because there aren't any clear guidelines or criteria about what 'adequate' means, it's going to be very hard to evaluate whether those are going to get the job done."

Also, he said, the Fisheries Service included a provision telling farmers they can be exempted from enforcement if they design irrigation intakes so they don't suck in young salmon and kill them. Why not simply require farmers to install the fish-friendly irrigation, Rossotto asked.

Criticism also came from those fighting salmon protection efforts.

Russ Brooks, a Bellevue-based attorney working for the conservative Pacific Legal Foundation, said he may broaden an existing lawsuit to also challenge the new rules.

The suit was filed on behalf of bait shops, motels, landowners, fishermen and others in southwest Oregon who lost income when the Fisheries Service protected coastal coho salmon there. It challenges the Fisheries Service's ability to list the fish as "threatened" under the Endangered Species Act.

Developers also attacked the new rules. Neil Gaffney, a spokesman for the National Home Builders Association, predicted they would restrict the supply of new homes, leading to higher housing costs in an area that already has staggering home prices.

"We don't think we've ever seen anything like this in terms of federal government intrusion into local government's land use regulation," Gaffney said.

"I don't know if more regulation in terms of land-use activities is going to solve the problem. How effective is it going to be? Is it truly going to solve the problem?"

In releasing the new rules, Stelle praised Washington's Forests and Fish Report, the state plan approved by the Legislature, because it demonstrates how state and local governments can take actions on their own. The plan, a 50-year deal between state and the timber industry, allows logging to continue with some restrictions.

"If you would have suggested a decade ago that I would have been here today (praising Washington's timber rules), I would have said you were dreaming," Stelle said.

But the deal came under sharp criticism last month by a group of scientists appointed by Locke to critique the state's efforts.

"The (state plan) is comparable to making a visit to the drugstore when you are ill and purchasing as much of everything in stock as you can afford, taking it in as great a dose as you can get, and hoping for the best," said the scientists' report.

The report said the state's strategy:

Is not based on scientific principles;

Lacks clear goals;

Is unlikely to revive dwindling salmon populations, and

"Leaves an impression that tinkering with failures of the past will restore glories of the past."

Salmon FAQ

Answers to frequent questions about the new rules:

Q: Who is affected?

A: Everyone who lives or works near salmon habitat. The rules could affect road construction and maintenance, house building, commercial and industrial development, farming, fishing, logging and other activities.

Q: Why do we need rules?

A: They seek to restore 14 species of salmon and steelhead, an oceangoing trout species, listed as endangered or threatened under the Endangered Species Act.

Q: How do the rules work?

A: They basically tell people not to harm or kill salmon. They don't prohibit specific activities, although they do list some things that would probably harm fish: dumping pollutants into streams, building culverts that block salmon, farming activities that cause excess run-off into salmon streams. If you wanted to build a house next to a stream, you'd have to apply for a permit from the National Marine Fisheries Service (NMFS) or risk being sued under the Endangered Species Act.

Q: What about enforcement?

A: NMFS says it will pursue civil or criminal penalties against "flagrant" violators. The agency does not plan, for example, to go after a farmer or a homeowner who is using a legal pesticide.