Washington Local Governments Score a Win Against Possible Lawsuits . . . or Did They?

---

By ARON BOROK
Environment International Ltd.

Published in Planning Northwest

 

In late-August 2001, a decision by the Shorelines Hearing Board tossed out the new rules adopted by the Department of Ecology last November. The Board decided the guidelines would unnecessarily expose local governments to suits brought under the federal Endangered Species Act (ESA). “Ironically, throwing out the rules may pose even worse risks to local governments,” observed Steven Morrison, Senior Planner at Thurston Regional Planning Council.

The rules were to be used by 247 local governments that control development and protect the nearly 20,000 miles of Washington’s shorelines under the Shoreline’s Management Act (SMA). Some local governments, along with developers and gravel miners, argued that the new guidelines were too costly and restrictive on development. Other localities, with the support of environmental groups, supported the guidelines as a means to protect their shorelines as well as their coffers from suits under the ESA.

Despite the decision, even those opposing the guidelines admit they are still worried about the potential impact of not complying with the ESA. “The ESA could definitely adversely impact the economic viability of the county,” conceded Stephen Hallstrom, Chief Deputy Prosecutor for Grant County. Bruce Chattin, Executive Director for the Washington Aggregates and Concrete Association, underscored the concerns of the governments: “liability under the ESA is so broad–I have been told that if a child skipped rocks on a salmon bearing stream then the child would be liable under the ESA. It is no wonder that planners want some assurances but the federal agencies don’t seem equipped to offer such assurances.”

Due to the decision, governments lack federal guidance, yet still face the specter of liability under the ESA. Valerie Ann Lee, president of Environment International Ltd. and former attorney for the U.S. Department of Justice’s Environment and Natural Resources Division stated, “the ESA has the broadest citizen suits in the books,” meaning that local governments authorizing actions that affect endangered or threatened species may face liability from any number of individuals and groups.

“Environmentalists and citizens have shown a willingness to file lawsuits,” Ms. Lee added. “To be protected from such suits it pays to understand the federal ESA regulatory scheme and the structure and mission of the federal agencies tasked with implementing the ESA.”

Some governments, through their planning commissioners, have indeed been consulting with the National Marine Fisheries Service (NMFS) to comply with the ESA in their plans for the future. Unfortunately, NMFS does not have the staff and funding to educate governments in smaller communities and negotiate with them over elements specific to their locales in relation to ESA requirements.

Over a dozen West Coast salmon and steelhead runs are listed as endangered or threatened under the ESA. Not only are salmon and steelhead important icons for Washington and many local governments, requirements under the ESA for their protection are incredibly complicated andstrict. Non-compliance could be financially devastating for many local governments and landowners.

Under the guidelines, local governments would establish shoreline master plans (SMPs) according to either Path A or Path B. Path A is the default that allows local governments greater flexibility and creativity to meet the requirements of the SMA; however it offers no certainty of protection for actions brought under the ESA. Path B is more restrictive but is designed to meet the requirements of the SMA and to protect against claims brought under the “take” provisions of the ESA.

Path B was developed with input from federal agencies to insulate local governments accordingly. Officials from NMFS and FWS stated that the “intent during the drafting of the revised guidelines has been to insure that as local governments complied with part IV [Path B] of the revised guidelines, they also would be in compliance with the requirements of the ESA.” However, a majority of the board decided that Ecology was attempting to implement the ESA through the guidelines, which exceeded the authority provided to Ecology in the 1996 SMA revisions.

Ecology’s guidelines were intended to provide a measure of protection for commissioners and local governments. On the other hand, those opposing the guidelines were more concerned about restrictions and costs.

While Planning Commissioners in larger jurisdictions or on multi-jurisdictional Boards may find the planning departments in their areas more equipped to deal with planning under the ESA, Commissioners on the Boards of smaller cities and more rural counties face an uphill battle. Drafting plans and integrating ordinances that NMFS will find acceptable to exempt them from take presents a difficult task for smaller governments.

The Board’s decision found that Ecology did not have authority to agree to enter into formal section 7 consultations of the ESA for Path A and B master programs. According to the decision, by agreeing to these formal consultations, Ecology would expose the state and local governments as well as shoreline permit applicants to potentially unnecessary liability. Ecology had argued that the formal consultations were already required for master program approval and therefore the rules did not impose any unnecessary potential liability. The Board however did not agree.

What’s next?

On September 26 the parties announced they will try to negotiate a settlement. Without a settlement, it may be years before there is a final decision on the guidelines, thus leaving governments to chart a course in uncertain waters. In such waters it will pay to know the intricacies of the law under the ESA.

Copyright © 2003 Environment International Ltd. Contact Us