Developments in the ESA

By Environment International Ltd.

Protecting a threatened species is difficult. More difficult is protecting a species that not only migrates between the vast space of the ocean and countless inland streams, but also lives in the midst of one of the nation’s most populous urban areas. On Monday, July 10th, 2000 The National Marine Fisheries Service (NMFS) unveiled the most ambitious step in their plan to do so. The NMFS has been working with state and local government officials in all the affected Pacific Coast states since before the March 1999 listing of the Puget Sound chinook (and 13 other salmon ESUs) to develop an effective conservation and recovery strategy for West Coast salmon. What they have come up with is an innovative integrated approach to managing threatened species - a so-called “4(d) Rule.”

A 4(d) Rule is promulgated by the agency that has regulatory authority over the species in question, either NMFS or the Fish and Wildlife Service (FWS). Under FWS regulations take is prohibited for any species once it is listed as threatened, whereas the NMFS approach has been to develop boiler plate regulations prohibiting take for each species listed. The 4(d) Rule offers a means to relax the normal prohibitions on “take” usually applied to threatened species. Under 4(d) Rules, NMFS or FWS apply prohibitions on activities deemed necessary for the conservation of the species for which they have stewardship responsibilities. Under the new approach being tested in the in the Pacific Northwest, NMFS has created flexibility to allow for the integration of adaptive species management and recovery programs at the local levels into a larger federal management strategy. In turn, incorporation of provisions dealing with approved local activities in a 4(d) Rule offers important protections to local governments.

Environment International Ltd. has dealt with many of these issues. EI has educated local government officials regarding 4(d) and the federal regulatory regime. Importantly, EI has also helped governments develop a dialogue with NMFS and FWS officials. Among other things, EI is advising a Washington city on ESA issues in connection with a Brownfields redevelopment project and is considering where there are wins for economic development and salmon restoration. It is still too soon to tell whether this Pacific Coast experiment will be a success. With the federal government searching for ways to streamline the ESA process, what happens here will resonate throughout the country. The Fish and Wildlife Service has developed a similar strategy for managing bull trout and other species that are listed throughout the Pacific Coast. The 4(d) experiment taking place here is a continuously changing process- one which EI monitors closely.

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