Breathing New Life Into the ESA: The Pacific Northwest's Endangered Species Act Experiment in Devolution

Valerie Ann Lee and Jaelith Hall-Rivera¹

The Endangered Species Act (ESA or Act)² has been in Congress' gun sights for a number of years. The regulated community has decried the impossibility of balancing strong economic development with species protection. Local governments have been hit with lawsuits and held liable under the ESA for "take" in connection with traditional permitting decisions. In this atmosphere, few gave the ESA very long to live. However, developments in the Pacific Northwest bring to mind Mark Twain's pithy comment: "The reports of my death are greatly exaggerated."

There is a revolution in ESA implementation that is designed to breathe new life into the Act. With the collaboration of state and local governments in California, Idaho, Oregon, and Washington, the federal government is using a provision of the ESA known as § 4(d).³ Section 4(d) allows the Secretary (of the U.S. Department of the Interior (DOI) or Commerce) to relax the normal prohibitions on "take" usually applied to threatened species, provided the regulations issued continue to "conserve the species."⁴ Though it has been used in the past, this is one of the few times it has been employed in such a broad manner.⁵ If the process is successful in the Pacific Northwest, it may change the way the federal government implements the ESA in other geographic areas. Has the federal government found a way to revive an ailing statutory patient and make the ESA more streamlined and effective in encouraging sustainable development? This Dialogue will explore these issues, focusing specifically on the National Marine Fisheries Service (NMFS) § 4(d) rule⁶ and its implementation primarily in the Pacific Northwest.

The ESA: Structures and Past Practices

The ESA creates protections for species that are listed as endangered or threatened⁷ by the Secretary (Interior or Commerce). ESA § 9⁸ prohibits a variety of activities, including the unauthorized "take" of an endangered species by any private, state, federal, or foreign entity. Take is broadly defined as "actions that harass, harm, pursue, hunt, shoot, would, kill, trap, capture, or collect."⁹ "Harm" is defined by regulation as "an act which actually kills or injures wildlife," [31 ELR 10103] which "may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."¹⁰

The statute, as adopted, creates a different level of protection for threatened species in the case of actions by private parties. The ESA does not automatically prohibit take by nonfederal entities of threatened species. Instead, when species are classified as threatened, § 4(d) requires that the Secretary (Interior or Commerce) issue "such regulations as he deems necessary and advisable to provide for the conservation" of threatened species.¹¹ Section 4(d) grants broad discretion to the Secretaries in the case of threatened species. The Secretaries can extend all endangered species protections to threatened species. However, the breadth of discretion created by the statute is sufficient to give the Secretaries the flexibility to craft alternative regulatory approaches to achieve species recovery.

Historically, the opportunity created by § 4(d) to frame a more flexible approach to threatened species protection and recovery has been little used. Instead, the distinction in the Act as to the automatic prohibition against take for "endangered" (as compared to "threatened" species), has become somewhat academic as a result of regulatory actions by the Secretaries. Traditionally the U.S. Fish and Wildlife Service (FWS) and the NMFS, collectively referred to as the Services, extend the same prohibitions on take applied to endangered species to those listed as threatened. In fact, the FWS has done so by regulation for all threatened species.¹² The NMFS, on the other hand, issues a "4(d) rule" almost any time a species under their jurisdiction is listed as threatened, but has not automatically extended the take prohibitions to threatened species.¹³

Risks to State and Local Governments

The Secretaries apply the § 9 take prohibitions to threatened species in most instances. As a result, the reality is that state and local governments (as well as private parties) are exposed to substantial potential liability from actions that affect threatened species. First, the ESA has one of the broadest citizen suit provisions of any federal environmental statute. It provides that the court "may award the costs of litigation to any party (including reasonable attorneys fees and expert witness fees)."¹⁴ Consequently, the statute creates fertile ground for litigation.

Second, not only is there a powerful citizen suit provision, the courts have interpreted the prohibitions against take broadly. In the landmark decision of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon¹⁵ the U.S. Supreme Court upheld the FWS definition of "harm" wherein the FWS prohibited acts that caused both direct injuries to wildlife as well as indirect injuries precipitated by such actions as significant habitat modification or degradation where indirect activities significantly impair essential behavioral patterns, including breeding, feeding, or sheltering.¹⁶

Finally, the ESA not only prohibits direct takings by any party, but also bans those acts of a third party, such as governmental entities, that authorize activities resulting in a taking.¹⁷ This prohibition is founded on two provisions of the ESA read in conjunction. Thefirst relates to the definition of the prohibited activity of a "taking" (defined above),¹⁸ while the second concerns the solicitation or causation by a third party of a prohibited activity such as a taking.¹⁹ This section of the statute makes it illegal for any person to commit a take, and contains language making it unlawful for any person to "solicit another to commit, or cause to be committed" any take or other offense outlined by the ESA.²⁰ These provisions, when read together, apply to third-party actions that allow a take that, but for the permitting process, could not take place.²¹ However, questions remain as to what exactly constitutes third-party causation.

Holding third parties liable for takes occurring because of permitted activities has precedent in cases such as Defenders of Wildlife v. Administrator.²² In Defenders, the court held that the U.S. Environmental Protection Agency's (EPA's) registration of pesticides containing strychnine violated the ESA, both because endangered species died from ingesting strychnine bait and because strychnine could only be distributed pursuant to EPA's registration scheme. Similarly, in National Wildlife Federation v. Hodel²³ a federal district court held that the FWS' decision to authorize the use of lead shot ammunition constituted a taking of bald eagles under the ESA.

The courts have taken a similar approach in the case of state and local government permitting and decisionmaking. In the landmark case of Strahan v. Coxe,²⁴ [31 ELR 10104] the First Circuit Court of Appeals found the state of Massachusetts liable for take by issuing gillnet and lobster pot fishing licenses that allowed practices ultimately responsible for takes of the endangered northern right whale. The plaintiffs successfully argued that the right whales often become entangled in the fishing gear in the waters off the coast of Massachusetts.²⁵ The court held that the state was liable since the takes resulting from fishing would not have occurred without the issuance of state fishing permits. While the state argued that issuing fishing permits is analogous to issuing drivers' licenses and government agencies are not considered liable when a person commits a crime using a registered vehicle, the court disagreed.²⁶ The court held that the state's licensure of gillnet and lobster pot fishing did not involve the type of intervening independent actor involved in the state's analogy.²⁷ Instead, the state licensed fishing "in specifically the manner that is likely to result in a violation of federal law. The causation here while indirect is not so removed to extend outside the realm of causation as it is understood in the common law."²⁸

Similarly, in Loggerhead Turtle v. County Council of Volusia County, Florida²⁹ the court found Volusia County liable for take of endangered and threatened turtles. The litigation has a long history. It first arose in 1995 in the context of a challenge to the county's failure to ban beach driving during sea turtle nesting season and ban beachfront artificial light sources that adversely impact sea turtles.³⁰ During the pendancy of the district court action, the county obtained an incidental take permit under § 10 of the Act³¹ for take associated with beach driving, but did not obtain a permit that clearly covered artificial lighting. The district court dismissed the action, but on appeal the Eleventh Circuit held that the plaintiffs had standing to sue with respect to the county's failure to regulate lighting. Moreover, the court held that the district court had "the power to fashion a remedy that both constitutionally redresses the alleged harm and respects the scope of Volusia County's authority…."³² The Eleventh Circuit remanded the matter to the district court for further consideration.³³ By that time, Volusia County had adopted one of the most proactive lighting ordinances of any jurisdiction. Upon remand, the plaintiffs argued that, notwithstanding the new ordinance, Volusia County violated the taking provisions of the Act by its failure to effectively enforce the legislation. The district court rejected the argument, stressing that mere noneffective enforcement does not subject the government to liability.³⁴ The Loggerhead Turtles decisions suggest that local governments will face the likelihood of liability for activities on private lands. There are other cases, such as Palila v. Hawaii Department of Land & Natural Resources and its progeny,³⁵ that follow a similar analysis.

The Road to Recovery?

In March 1999, the NMFS listed the Puget Sound chinook salmon, which lives in one of the fastest growing regions in the United States.³⁶ The listing, along with listings of 13 other evolutionarily significant units (ESUs) of salmonids, sent shockwaves through the highly developed Puget Sound area and the Pacific Northwest. While the entire state of Washington is affected by the 14 salmon and steelhead threatened ESUs,³⁷ the Puget Sound chinook³⁸ is one of the first threatened species to reside primarily in an urban area. The salmon considered to be in greatest jeopardy migrate through and spawn in the most populous localities, including Seattle, Tacoma, Bellevue, and dozens of suburbs.³⁹ The Puget Sound chinook's listing will touch the lives of over three million people in these highly urbanized areas.⁴⁰

Given the historic approach to regulation of endangered species and the case law concerning takings, the listing could have crippled development in populous regions of California and the Pacific Northwest. Instead, the ESU listings have proven to be a crucible of creativity under the ESA.

[31 ELR 10105]

Soon after the listings were announced, Washington Governor Gary Locke declared that "Extinction of our salmon is not an option."⁴¹ The governor went on to issue a challenge to Washingtonians:

If we walk out on this icon of our heritage, we won't just be letting the federal government walk in. We'll be turning our backs on a basic responsibility to protect the environment that's made Washington such a great place to live. The overriding goal is for Washingtonians to restore healthy and abundant runs of wild salmon and to control our own destiny.⁴²

Undaunted by the listing of the salmon, local governments in Puget Sound took up the governor's challenge and began intensive negotiations with the NMFS over the § 4(d) rule. Similar activities occurred in Oregon. On July 10, 2000, the NMFS published the final § 4(d) rule, embarking on a revolutionary new approach to ESA implementation.⁴³

While the § 4(d) program being developed on the West Coast is partly a way to more effectively implement the ESA, it is primarily a reaction to one of the only ESA listings that affects predominantly urban areas. The new § 4(d) program in Washington departs from past practices and is revolutionary in the way it intends to manage threatened species. Species protection and recovery, once having been the bastion of the federal government, will now be devolved primarily to state and local levels. In an interesting piecemeal approach, the NMFS is building a conservation program not in its typical top-down way, but rather through integrated partnerships between all levels of government. The NMFS is taking pieces from federal law, combining them with state recovery plans, and implementing them through local lawmaking.

"By creating powerful incentives for local programs in place of Federal 'take' rules, we hope to broaden the scope of those conservation efforts and provide local governments with the option of going with home-grown solutions," said William Stelle, head of the NMFS' Northwest region. "Our customary approach to protecting salmon," he added, "has been to issue broad 'boiler-plate' 4(d) rules that provided protection for fish, but provided no place for local programs in lieu of those rules."⁴⁴ The most populous counties in Washington—King, Snohomish, and Pierce (collectively known as the "Tri-Counties")—have used the new § 4(d) process to their advantage by defining activities that are considered consistent with salmon protection while maintaining local control over development and land use.

The final § 4(d) rule extends the same prohibitions on take to the threatened salmon as those applied to endangered species, except under certain defined exemptions. The rule describes two types of exemptions from take prohibitions that can be obtained. One concerns specific programs the NMFS has already reviewed and determined will minimize harm or contribute to species conservation. The other includes general categories of programs that the NMFS may evaluate in the future.⁴⁵ For the second type of limit, the § 4(d) rule sets out the standards the NMFS will use when it reviews programs for inclusion. The NMFS has also established a process for periodically evaluating the limits, making recommendations for adjusting the programs, and withdrawing approval and reapplying take prohibitions.⁴⁶

Some of the broad categories of activities that will qualify for take exemptions in the final rule are (1) scientific research by state fishery agencies, (2) fish harvest activities, (3) habitat restoration, (4) forest management practices in Washington, (5) routine road maintenance, and (6) municipal, residential, commercial, and industrial development and redevelopment.⁴⁷ The NMFS is not requiring the affected entities to change their practices to qualify for an exemption from the part of the regulations making take unlawful. The take exemption provisions provide one way to be sure an activity or program does not risk violating the take prohibitions. By receiving a take exemption, governments and individuals receive assurance that their activities do not violate the take prohibitions and will not be subject to enforcement.⁴⁸ To be approved for a limit from ESA take prohibitions, a program must conserve salmon and meet certain biological requirements, which may differ from place to place.⁴⁹

Bounds of § 4(d) Discretion: Accentuate Recovery

Although § 4(d) allows the Secretaries latitude for creative approaches to threatened species, there are bounds to this discretion. Relying on other provisions of the ESA that impose duties on federal agencies with respect to both threatened and endangered species, the courts have imposed a duty on the Secretaries to promulgate rules that "conserve" threatened species.⁵⁰

The courts⁵¹ have determined that the Secretaries' mandate to conserve species imposes a requirement not just [31 ELR 10106] to avoid negative actions, but to engage in affirmative actions to increase the population of a threatened species.⁵² Thus, they cannot implement § 4(d) rules that undermine their conservation duty or merely protect the status quo level of species numbers. This includes refraining from promulgating rules allowing purposeful taking except in those instances where threatened species are overpopulated in an area.⁵³ In short, the discretion allowed the Secretaries is to develop creative approaches that accentuate recovery. What constitutes "conservation" and recovery of the species is certainly in the minds of federal regulators as they consider programs that may qualify for exemptions from take under the new § 4(d) rule.

Federal and State Partnerships in Endangered Species Protection

Though states have been playing larger roles in endangered species protection, they have never undertaken a truly broad-ranging, comprehensive program such as the one being planned under § 4(d) for salmon management. It might seem that this is an evolution in endangered species policy that has been an administrative construct. However, interestingly, the legislative history of the Act indicates that Congress intended states to play a critical role in implementing the ESA.⁵⁴ Why haven't they done so and what is so different about § 4(d) implementation now? This section will provide some answers to those questions.

The legislative history of the ESA provides an eye-opening look at how Congress and the executive branch intended the Act to work. Nathaniel P. Reed, then-Assistant Secretary of the Interior for Fish, Wildlife, and Parks, explained that the administration's proposal granted states "an all-important role to play in the protection of endangered species…."⁵⁵ Reed stated that the bill would provide the maximum protection to the threatened species throughout the nation while still providing an incentive to the states to develop programs responsive to the needs of imperiled species in their own states.⁵⁶ The federal government, in fact, intended to primarily leave the traditional dominion of the states to regulate wildlife management in their hands. Assistant Secretary Reed explained that "… we do not intend to usurp the privilege of the States to manage their resident wildlife."⁵⁷

The floor debates in the Senate reflect similar sentiments. Sen. John Tunney (D-Cal.) stated that "… it was well established … that most of the States possess much greater wildlife management resources than does the Federal Government."⁵⁸ He made it clear that any effort on the part of the federal government to encourage restoration of imperiled species would fail without the active assistance of the states. He stressed that the bill was "designed to permit and encourage State endangered species programs that act in concert with the purposes of the Act."⁵⁹ In fact, they assumed that states would quickly take over the duties of managing threatened and endangered species in their jurisdictions. Assistant Secretary Reed noted that he was "very optimistic that the 50 states are going to very swiftly, and I mean within a year, pass laws giving them the authority they need."⁶⁰ It seems that the original intent of the Act had the federal government playing an oversight role, where they would encourage states to "broaden their activities, beyond the traditional concern only for animals which are harvested by sportsmen."⁶¹ It was assumed that within one year, all states would pass a program acceptable to the DOI, and the federal government would then supervise the programs. Though this is somewhat analogous to what is currently happening in the Pacific Northwest, Congress did not intend § 4(d) to play this role, but rather constructed an entirely different section solely for that purpose, § 6.⁶²

Section 6(a) directs the Services to cooperate "to the maximum extent practicable with the States."⁶³ Section 6(c) further allows them to enter into "cooperative agreements" with states that establish and maintain "adequate and active" programs for endangered and threatened species in their states.⁶⁴ It was this section to which Assistant Secretary Reed and Senator Tunney were referring. Though it was intended that states would take over most of the responsibility for managing threatened and endangered species, this vision had not yet been realized four years after passage of the Act. In 1977, Congress amended the Act, focusing solely on § 6.⁶⁵ The preamble to the final rule promulgating DOI regulations to implement the amendment observed that "Congress intended that the State cooperative agreement program would be a vital element of the Act. Unfortunately, the cooperative agreement program has developed more slowly than originally hoped because of the difficulties encountered by the States in satisfying subsections 6(c)(1)(A) and (B) of the Act."⁶⁶ These requirements were particularly onerous for states, requiring them to have a state agency where authority resides to conserve resident species of fish and wildlife [31 ELR 10107] listed as threatened or endangered, and requiring them to establish acceptable conservation programs for all resident species of fish or wildlife deemed to be endangered or threatened.⁶⁷ The House Report concerning the 1977 Amendments indicated that "one of the greatest impediments to the development of an active cooperative agreement program has been the five requirements of Section 6(c)."⁶⁸ It went on to note that the states are reluctant to enter into cooperative agreements primarily "because of the language on paragraphs (1) and (2) of Section 6(c)."⁶⁹

The 1977 Amendments loosened these requirements by providing an alternative set of requirements to be utilized by individual states and the Services in ascertaining the eligibility of a state's program for a cooperative agreement. Congress amended the Act to give a state two options for entering into a cooperative agreement. First, under the original requirements astate could attempt to show that it has adequate authority to satisfy all of the requirements of § 6(c)(1)(A) through (E). This would require a state to have the authority to conserve all resident species of fish and wildlife which are federally listed as threatened or endangered.⁷⁰ However, because these requirements were quite prohibitive for most states, the 1977 Amendments facilitated state qualification of an alternative cooperative agreement. The amendments added a section requiring only the satisfaction of the criteria of subsections (c)(1)(C), (D), and (E), thus eliminating the requirement that states have the authority to conserve all resident listed species.⁷¹

Though the requirements for cooperative agreements were loosened with the 1977 Amendments, the NMFS has not chosen to utilize this section of the Act for salmon management in the Pacific Northwest. Instead, the NMFS has chosen to construct a program under § 4(d). One must wonder why, and, in fact, commenters on the final § 4(d) rule suggested that the NMFS should utilize a § 6-like process and delegate to state and local officials authority to limit the take prohibition themselves.⁷² The NMFS' response notes that while the Agency "aim[s] to recognize and encourage state and local programs…. Nothing within the ESA would give NMFS the authority to delegate the functions suggested, unless a state had the full set of authorities required under Section 6."⁷³ This response concerns much more than a simple lack of state programs that fulfill § 6's requirements. It suggests why the NMFS has chosen to utilize § 4(d) rather than § 6 to in essence create a "cooperative agreement" for managing resident threatened species. Even with the less restrictive option available for cooperative agreements, states must still fulfill a number of mandates to qualify for "cooperative agreement" status and funding. They must "have the authority to conduct investigations to determine the status and requirements for survival of resident species of fish and wildlife, be authorized to establish programs for the conservation of those species, and they must make a provision for public participation in designating those species as endangered or threatened."⁷⁴

These requirements seem both complicated and burdensome when compared with the lone requirement of § 4(d): "The Secretary shall issue such regulations as he deems necessary and advisable for the conservation of species…."⁷⁵ Though NMFS is still well within the bounds of the law, it is apparent it was not within Congress' original intent to use § 4(d) to enter into "cooperative agreement-like" programs. That is why § 6 was drafted. It is also apparent that NMFS believes the requirements under § 6(c) are still too prohibitive; it is simply easier to stay within the bounds of § 4(d).

Anatomy of Innovation: Washington and Oregon

Though it is important to recognize the differences between §§ 6 and 4(d), we do not wish to downplay the creativity the Services have demonstrated in utilizing § 4(d) to more effectively manage imperiled species. The NMFS' innovative § 4(d) program in Washington will devolve much of the power for conservation and restoration of the threatened species to the state, through its local governments.

The state has developed an overall recovery strategy, of which localities are one part. Localities will likely follow the process developed by the state primarily for habitat conservation and for obtaining funding for these projects.⁷⁶ However, to conform with the § 4(d) exemptions, they must develop their own individual plans. By developing programs that fit within the road maintenance exemption, the habitat restoration exemptions, and the municipal, commercial, residential, and industrial development and redevelopment exemption, localities and other entities can receive exemptions from the take prohibitions. The guidelines provided by the § 4(d) rule contain the requirements that these programs must meet, but are sufficiently broad as to accommodate unique local values.

[31 ELR 10108]

The § 4(d) program encourages counties, cities, and other regulated entities to develop plans that conform to the exemption guidelines. The goal is to both allow them to continue carrying out governmental activities and to minimize harm to salmon. The local plans must be submitted to the NMFS for approval, and once approved must be carried out and monitored. The plans will actually be implemented by methods traditionally utilized by local governments, including land use and stormwater ordinances, zoning determinations and other controls. Additional implementation tools are likely to include best management practices (BMPs) for activities such as building and road maintenance and habitat restoration or conservation projects.

Plans are expected to take many shapes, with local governments focusing on those areas that most affect their activities. Of course, localities retain the right not to develop plans, but they must still avoid take. They can attempt not to engage in activities that result in take—an unlikely option—or they can apply for § 10 incidental take permits, which require among other things the development of a conservation plan. However, these types of plans tend to be very restricted in their approach, focusing generally only on one project or one area. The § 4(d) program will allow localities to comprehensively cover all types of activities in their jurisdiction, while also maintaining or restoring important salmon habitat. That is one of the primary reasons this program is so revolutionary, and is likely to be more effective in protecting species.

One program that has already gained an exemption under § 4(d) is the Oregon Department of Transportation's (ODOT's) Routine Road Maintenance practices program. This program was included as part of the final § 4(d) rule, and any other state that complies with Oregon's program and obtains approval from the NMFS will also gain an exemption. It is important to note how ODOT constructed their program to gain the NMFS' approval to understand how the § 4(d) process is playing out in terms of specifics—both program specifics and species protection specifics.

Oregon's program is essentially a series of BMPs that must be followed for road maintenance that fall under a number of programmatic elements.⁷⁷ There are 22 programmatic elements, most of which contain both Minimization/Avoidance Actions for take and BMPs for implementation. The program also includes training for all ODOT staff in carrying out the specifics of the program, processes for review and documentation, and a process for monitoring implementation effectiveness.⁷⁸ The likely keys to success for this program are its specific implementation requirements and ODOT's commitment to both training and monitoring. ODOT has established approximately 14 areas that will be targeted for employee training, including hazardous materials handling, erosion control, and fish passage training, to name a few.⁷⁹ Additionally, ODOT must submit annual reports to both the NMFS and the Oregon Department of Environmental Quality that includes investigations of complaints regarding impacts to the environment from maintenance activities, modifications, or improvements to current actions, compliance reviews, and an overall summary of contacts and coordination with relevant state and federal agencies.⁸⁰

ODOT's programmatic elements include items such as surface work, shoulder rebuilding, dust abatement, sweeping, culvert clearing/repair, erosion repair, channel maintenance, vegetation management, mowing, and spraying. Each element contains Minimization and Avoidance Actions and/or BMPs for carrying out those tasks. These are quite specific requirements, and they target areas important for maintaining viable fish habitat. Some illustrative examples are: use environmentally sensitive cleaning agents, blade in dry weather, permanently stabilize disturbed soils, do not carry out dust abatement during rain, use erosion control devices such as check dams, silt fences, and other techniques, reseed drainage ditches, confer with Oregon Department of Fish and Wildlife (ODFW) on removal of material from a culvert, and a number of others.⁸¹ The program must also comply with ODFW's Guidelines and Criteria for Stream-Road Crossings and their Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources,⁸² among other Oregon state environmental laws.

Oregon's program is one of the few that has already gained NMFS approval. This may be in part due to the fact that ODOT, indeed the state of Oregon, have been working on integrated salmon planning for several years. However, NMFS approval is also probably due in large part to the fact that the program applies to only one state agency with a fairly narrow mandate. It is much easier to apply specific requirements and train personnel, and ensure compliance, when only a single agency is involved.

Another program being developed in Washington crosses three counties, multiple localities, a number of agencies, and overlapping jurisdictions. The "Tri-County program" is still in the review and comment stages; it is anticipated that the NMFS will make changes, but some form of the program is still expected to qualify for take exemptions. This program is similar to what will likely be implemented throughout the state, given that it is sponsored by local governments, rather than administrative agencies—making it an illustrative example of how § 4(d) will be implemented.

The "Tri-Counties" have been working together since 1998 to develop a joint species recovery plan. The Tri-County partnership includes representatives of federal, state, tribal, and local governments, businesses, environmental [31 ELR 10109] groups, and citizens.⁸³ The Tri-County partnership has developed a plan (known as the Tri-County Response) that identifies immediate actions and commits to long-term conservation plans that will help recover the chinook salmon, while maintaining the region's economic vitality and strength. Though this program is not yet approved, it is still important as an illustrative example of multiple local jurisdictions, rather than a singular agency, attempting to develop a program under § 4(d).

The Tri-County proposal encompasses three operational programs and three core programs. The three operational programs are road maintenance BMPs, stormwater, and land management. The three core programs are habitat funding, watershed planning, and adaptive management. While these six programs provide a comprehensive package, they were developed for maximum flexibility to enable local jurisdictions to make choices about what approaches are most effective for them. Each operational program is linked to the core programs.⁸⁴ For example, if a jurisdiction wants the road maintenance operations to qualify for a § 4(d) exemption, the exemption, jurisdiction could elect to comply with the Road Maintenance BMPs Program. The jurisdiction would also be required to participate, to a specified extent, in the three core programs: Habitat Funding, Watershed Planning and Adaptive Management.⁸⁵

The operational programs are intended to address salmon habitat degradation causes identified by the NMFS and the FWS.⁸⁶ With improved road maintenance practices, the plan will provide significant benefit to areas affecting water quality. The Stormwater Program will provide habitat protection by improving hydrologic patterns and water quality that affect salmon habitat. The Land Management Program will provide more focused improvements to land use practices directly affecting the riparian and near shore areas.⁸⁷ These three operational programs were developed to work together to provide wide geographic improvements to salmon habitat in the Tri-County area, while not impeding critical jurisdictional functions. The Tri-County proposal also contains a Habitat Funding Program. This program consists of commitments to fund capital projects to protect, enhance, and restore salmon habitat that may not or cannot be accomplished through regulatory programs or other means.⁸⁸

Each of the above programs includes built-in requirements to monitor compliance of the program and effectiveness of the various actions within the program as well as commitments to change (adaptively manage) the program as needed based on the information collected through monitoring.⁸⁹ The Tri-County plan is much less specific than that developed by ODOT. However, it is intended to maximize both flexibility and creativity at the level of local agencies and local jurisdictions. The Tri-Counties have consulted with the NMFS throughout their planning process. As such, it is still expected that the Tri-County plan will eventually be approved in some form, though the lack of specificity likely hurt its chances for prior NMFS approval.

Notwithstanding the apparent success of the Tri-County effort, the reality is that smaller, less financially endowed governments are struggling to understand the federal § 4(d) process and how it can work for them. The Tri-Counties have thrown a wealth of human and financial resources to their § 4(d) effort. Counties with more modest budgets and those who did not get in on the ground floor of the § 4(d) effort face a more difficult challenge. How do they do more with less in the face of the NMFS' reluctance to negotiate with "smaller" governments over § 4(d) provisions? The NMFS does not have either the staff resources or the funding to educate local governments about the § 4(d) process.⁹⁰

Ideally, local governments should obtain NMFS approval for land use planning efforts under the already outlined exemptions. However, the ESA presents an enormous challenge for planners in smaller localities trying to meet state requirements and contribute to salmon restoration. By utilizing the "municipal, commercial, residential, and industrial development exemption" under the § 4(d) rule, local jurisdictions can work with the NMFS to craft language that will limit the prohibitions on salmon take. They can then carry out plans to implement this language. The difficulty comes in actually crafting plans that meet the NMFS' approval and implementing them to the NMFS' satisfaction with little in the way of financial or capital resources.

Practical Realities of Implementation

Though the NMFS and the affected states and localities have spent considerable time developing an effective § 4(d) program approach, problems are inevitable. The NMFS is already struggling with permit approval for projects such as dredging that involve the U.S. Army Corps of Engineers, thus requiring § 7 consultations. Though the § 4(d) process will hopefully streamline permit processes at the local level, those projects requiring federal approval face a permit backlog of months and up to a year. The NMFS is dealing with an immense oversight and enforcement task. It has only about 22 staff members in its western offices,⁹¹ as well as funding [31 ELR 10110] constraints. Additionally, the NMFS is committed to adaptive management and monitoring of all the plans it approves, in Washington and the other states.⁹² With so little staff, it is unlikely that the high level of enforcement required to ensure species recovery will be possible.

Many have questioned the scientific soundness of the § 4(d) planning process and wonder whether the threatened salmon will actually benefit from the programs without effective enforcement and monitoring. Several environmental groups in Washington State filed suit against the NMFS in a federal district court on September 12, 2000,⁹³ regarding the issue and numerous other groups have openly criticized the final rule.⁹⁴ Though the § 4(d) process promises a new type of species conservation planning, it is not perfect and still has to overcome many obstacles.

Those rattling challenge sabers have also questioned whether the federal government has unlawfully commandeered state regulatory process and local law in its attempts to better protect threatened species. There may be a fine line between better species protection and Tenth Amendment⁹⁵ violations. However, with the failure to implement successful recovery programs⁹⁶ and the heavy fire it has taken in Congress,⁹⁷ the ESA faces an uncertain future. By making it more palatable to regulated entities, the Administration hopes to make it more effective, and preserve its strong species protection provisions. The Administration has pursued other programs, such as the No Surprises Policy⁹⁸ and Candidate Conservation Agreements⁹⁹ with landowner assurances, that are similarly designed to accomplish the goals of the Act while streamlining the ESA process and easing some of its burdens on citizens. However, § 4(d) may very well be the most comprehensive and effective way of accomplishing these goals.

Conclusion

It is too soon to predict the success of this approach to ESA compliance. However, it could be the treatment required to heal an ailing patient. Yet the design and implementation of the § 4(d) rule experiment has not been smooth. Highly developed areas, such as the Tri-Counties in Washington's Puget Sound area, are still struggling with attaining the right balance between planning specificity, species protection, and flexibility. Smaller governments have not even begun to plan, finding the combination of state and local requirements together with local funding and staffing constraints too daunting. The federal government's devolution of regulatory power and implementation enforcement to state and local governments, though common in environmental programs, is still evolving in the field of natural resources. The ability of state and local programs to effectively implement species protection, as they were originally intended to do, remains to be seen. However, § 4(d) does offer the promise of achieving sustainable development that balances economic growth with threatened species recovery. Perhaps it is indeed just "what the doctor ordered."

1. Valerie Ann Lee is president, Environment International Ltd. and principal attorney, Lee & Associates. J.D. Yale, M.S. Civil Engineering, MIT; Jaelith Hall-Rivera is an analyst at Environment International Ltd. and a MPA/MSES candidate at the School of Public and Environmental Affairs, Indiana University.

2. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

3. Id. § 1533(d), ELR STAT. ESA § 4(d).

4. Id.

5. Section 4(d) has traditionally been used by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) (the Services) to exempt from take liability activities like state-permitted hunting and fishing that affects threatened species, to loosen certain import restrictions on threatened species, and by the NMFS particularly to grant threatened species the same protections as endangered species whenever a species under their jurisdiction is listed as threatened. The FWS has done so by administrative rule and thus need not write a § 4(d) rule every time a species under their jurisdiction is listed as threatened. This rule has been used similarly for the gnatcatcher in southern California. The state's Natural Community Conservation Planning Program was incorporated into a unique § 4(d) rule written by the FWS that intended for the state's program, rather than the federal government, to be the primary instrument of conservation and recovery of the threatenedspecies. For more information on this program, see Jon Welner, Natural Communities Conservation Planning: An Ecosystem Approach to Protecting Endangered Species, 47 STAN. L. REV. 319, 338 (1995), among others.

6. Endangered and Threatened Species: Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionarily Significant Units (ESUs), 65 Fed. Reg. 42422 (July 10, 2000) [hereinafter Final § 4(d) rule]. Bull trout ESU's (see infra note 36), a salmonid that is primarily not anadromous, have been listed as threatened as well. Because these species primarily lack marine life stages, they fall under the jurisdiction of the FWS. The FWS has already published a proposed § 4(d) rule (Endangered and Threatened Wildlife and Plants; Notice of Intent to Prepare a Proposed Special Rule Pursuant to Section 4(d) of the Endangered Species Act (ESA) for the Bull Trout, 64 Fed. Reg. 58934 (Nov. 1, 1999)) for bull trout, and it is expected that the final rule will both resemble the NMFS' rule and work in concert with it. Though the state and local governments in Washington are already preparing for bull trout management and many are integrating it into their plans for managing salmon, the FWS has not yet published a final rule and the NMFS program is much more evolved. Thus, this piece will focus primarily on the NMFS program.

7. 16 U.S.C. § 1532(6), (20), ELR STAT. ESA § 3(6), (20). "Endangered" is defined as any species that is in danger of extinction throughout all or a significant portion of its range and "threatened" is defined as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

8. Id. § 1538, ELR STAT. ESA § 9.

9. Id. § 1532(19), ELR STAT. ESA § 3(19).

10. The FWS has defined harm in 50 C.F.R. § 17.3. The FWS' definition of harm is also followed by the NMFS. Endangered and Threatened Wildlife and Plants; Definition of "Harm," 64 Fed. Reg. 60727 (Nov. 8, 1999) (codified at 50 C.F.R. § 222.102).

11. 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d).

12. 50 C.F.R. § 17.31 (originally promulgated in 1975, see 40 Fed. Reg. 28719 (1975)).

13. See Strahan v. Coxe, 939 F. Supp. 963, 980-81, 27 ELR 20254, 20258 (D. Mass. 1996) (citing Permits for Incidental Taking of Endangered Marine Species, 55 Fed. Reg. 20603, 20603-04 (May 18, 1990)). See also 50 C.F.R. § 223 (1999).

14. 16 U.S.C. § 1540(g)(B)(4), ELR STAT. ESA § 11(g)(B)(4).

15. 515 U.S. 687, 25 ELR 21194 (1995).

16. Id.; see also supra notes 9 and 10 and accompanying text.

17. 16 U.S.C. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B). See also id. § 1538(g), ELR STAT. ESA § 9(g).

18. Id. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B).

19. Id. § 1538(g), ELR STAT. ESA § 9(g).

20. Id.

21. Strahan v. Coxe, 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997), cert. denied, 525 U.S. 830 (1998).

22. 882 F.2d 1294, 1301, 19 ELR 21440, 21443 (8th Cir. 1989).

23. 15 ELR 20891, 20893 (E.D. Cal. 1985).

24. 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997), cert denied, 525 U.S. 830, 978 (1998); see also supra note 21.

25. Id. at 164-65, 28 ELR at 20118.

26. Id. at 164, 28 ELR at 20117.

27. Id.

28. Id.

29. 148 F.3d 1231, 28 ELR 21546 (11th Cir. 1998), cert. denied, 119 S. Ct. 1488 (1999), upon remand, 92 F. Supp. 2d 1296, 30 ELR 20621 (M.D. Fla. 2000).

30. Id. at 1235, 28 ELR at 21547.

31. 16 U.S.C. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B) mandates that the Secretary may issue a permit governing "any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." To receive such a permit, an applicant must complete a habitat conservation plan (HCP). The HCP must specify: (1) the impact which will likely result from such taking; (2) the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; (3) alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and (4) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.

32. 148 F.3d at 1258, 28 ELR at 21557.

33. 92 F. Supp. 2d at 1296, 30 ELR at 20621.

34. Id.

35. In Palila v. Hawaii Dep't of Land & Natural Res., 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981) and Palila v. Hawaii Dep't of Land & Natural Res., 649 F. Supp. 1070, 17 ELR 20514 (D. Haw. 1986), aff'd, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988) (Palila II) the courts determined that the state's practice of maintaining feral goats and sheep in palila habitat constituted a taking and ordered the removal of the animals.

36. Endangered and Threatened Species: Threatened Status for Three Chinook Salmon Evolutionarily Significant Units in Washington and Oregon, and Endangered Status of One Chinook Salmon ESU in Washington, 64 Fed. Reg. 14307 (Mar. 24, 1999) (to be codified at 50 C.F.R. pt. 17).

37. A stock must satisfy two criteria to be considered an ESU: (1) It must be substantially reproductively isolated from other nonspecific population units; and (2) It must represent an important component in the evolutionary legacy of the species. 61 Fed. Reg. 4722 (Feb. 1996).

38. One of the 14 ESUs included in the March 1999 listing.

39. Ross Anderson, Salmon Hit Endangered List Today, SEATTLE TIMES, Mar. 16, 1999 (available at http://archives.seattletimes.nwsource.com/cgi-bin/texis/web/vortex/display?slug=salm&date=19990316).

40. Id.

41. As evidenced by the title of the Statewide Strategy to Recover Salmon, Extinction Is Not an Option (available at http://www.governor.wa.gov/esa/strategy/strategy.htm).

42. Office of Governor Gary Locke, Locke Says State Salmon Recovery Plan Is Essential (Mar. 16, 1999) (press release) (available at http://www.governor.wa.gov/press/1999/99031601.htm).

43. 65 Fed. Reg. 42422 (July 10, 2000).

44. NMFS, Federal Agency Unveils Innovative ESA Salmon Rules (June 20, 2000) (press release) (available at http://www.nwr.noaa.gov/1salmon/salmesa/4ddocs/pr62000.pdf).

45. 65 Fed. Reg. at 42422.

46. Id.

47. Id. at 42471-73.

48. NMFS, A Citizen's Guide to the 4(d) Rule for Threatened Salmon and Steelhead on the West Coast (2000) (available at http://www.nwr.noaa.gov/1salmon/salmesa/4ddocs/citguide.htm).

49. Id.

50. See 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d), which provides in pertinent part that "whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species." (Emphasis added.)

51. Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 7 ELR 20269 (D.D.C. 1977); Sierra Club v. Clark, 577 F. Supp. 783, 14 ELR 20269 (D. Minn. 1984), aff'd in part, rev'd in part, 755 F.2d 608, 15 ELR 20391 (8th Cir. 1985), upon remand, 607 F. Supp. 737 (D. Minn. 1985).

52. Id. See also Keith Saxe, Regulated Takings of Threatened Species Under the Endangered Species Act, 39 HASTINGS L.J. 399 (1988).

53. The Sierra Club v. Clark decisions, see supra note 51, make this point abundantly clear.

54. Endangered Species, Hearings Before the Subcomm, on Fisheries and Wildlife Conservation and the Environment of the Comm. on Merchant Marine and Fisheries, 93d Cong. 204-05, 211 (1973); 44 Fed. Reg. 31578 (May 31, 1979).

55. Endangered Species, Hearings, supra note 54, at 205.

56. Id.

57. Id.

58. 119 CONG. REC. 25669 (1973).

59. Id. at 25669.

60. Endangered Species, Hearings, supra note 54, at 211.

61. Id.

62. 16 U.S.C. § 1535, ELR STAT. ESA § 6.

63. Id. § 1535(a), ELR STAT. ESA § 6(a).

64. Id. § 1535(c), ELR STAT. ESA § 6(c).

65. Pub. L. No. 95-212 (codified as amended at 16 U.S.C. § 1535(c)(E)(i-ii), ELR STAT. ESA § 6(c)(E)(i-ii)).

66. 44 Fed. Reg. at 31578.

67. 44 Fed. Reg. at 31578 (citing H. REP. NO. 95-333, at 609 (1977), and also referring to the requirements that "authority reside in the State agency to conserve resident species of fish or wildlife determined by the State agency or the Secretary to be endangered or threatened" (1)(A) and that the "State agency has established acceptable conservation programs, consistent with the purposes and policies of this chapter, for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered or threatened…." (1)(B) (emphasis added)).

68. H. REP. NO. 95-333, at 610 (1977).

69. Id. These sections correspond to 16 U.S.C. § 1535(c)(1)(A-B), ELR STAT. ESA § 6(c)(1)(A-B).

70. 16 U.S.C. § 1535(c)(1)(A-E), ELR STAT. ESA § 6(c)(1)(A-E).

71. See Pub. L. No. 95-212, supra note 65.

72. 65 Fed. Reg. at 42434.

73. Id.

74. 16 U.S.C. § 1535(c)(E)(i-ii), ELR STAT. ESA § 6(c)(E)(i-ii).

75. Id. § 1533(d), ELR STAT. ESA § 4(d).

76. Statewide planning has been going on since approximately 1997 when Governor Gary Locke and 13 agency heads signed a memorandum of agreement (MOA) to establish a forum to serve as the "formal and ongoing institutional framework to promote interagency communication, coordination, and policy direction on environmental and natural resource issues," called the Joint Natural Resources Cabinet. The state's legislature passed the Salmon Recovery Planning Act, Engrossed Substituted House Bill 2496, in 1998 to coordinate recovery planning and establish a funding mechanism for habitat conservation and restoration projects throughout the state.

77. See Oregon Dep't of Transp., Routine Road Maintenance: Water Quality and Habitat Guide Best Management Practices (July 1999) (available at http://www.odot.state.or.us/eshtm/images/4dman.pdf).

78. Id.

79. Id. at 2.

80. Id. at 3.

81. Id.

82. See id. apps. B and C.

83. King County, Washington, Report, Return of the Kings: Strategies for Long-Term Conservation and Recovery of Chinook Salmon (Mar. 1999) (King County's portion of the Tri-County Initiative).

84. The draft Tri-County proposal, essentially as it was submitted to NMFS in June 2000, is available at http://www.salmoninfo.org/tricounty/tcplan.htm. The plan has not yet received final approval from the NMFS and some elements may change as part of the review process.

85. Id.

86. Id.

87. Id.

88. Id.

89. Id.

90. The concerns of local government were reflected in the comments on the final rule, 65 Fed. Reg. at 42434 ("The ESA [§]4(d) limits are 'negotiated,' 'second-class,' HCP's appropriate only to larger governmental entities, and they consight jurisdictions with smaller population bases to the fringes of the process.").

91. Personal communication with NMFS staff member.

92. Final § 4(d) rule, supra note 6.

93. Washington Environmental Council, Federal Salmon Plan Violates Law: Environmental and Fishing Groups Sue for Real Recovery (Sept. 12, 2000) (press release) (available at http://www.wecprotects.org/pressrel/2000_9_12.html).

94. Numerous groups, including the American Fisheries Society's Western Division, the Northwest Chapter of the Society for Ecological Restoration, Earthjustice Legal Defense, and the Washington Environmental Council, have criticized the § 4(d) program for failing to incorporate scientific principles and not doing enough to ensure species protection and recovery. Some of the NMFS' own scientists have also expressed concerns. Memorandum from National Marine Fisheries Service Oregon Branch and Habitat Division Staff, following a September 24, 1998 NMFS internal briefing, available at http://www.wecprotects.org/pressrel/2000_9_12.html.

95. The Tenth Amendment of the U.S. Constitution gives the principles of federalism the force of law. It provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Under the federalism structure suggested by the amendment, the states retain a significant measure of sovereign authority.

96. Of the 893 species under jurisdiction of the FWS, 484 (54%) had approved recovery plans in place as of September 30, 1994. Another 185 (21%) had plans in draft, and 159 more had recovery plans under development. Fifty-one species did not have recovery plans being developed, and 14 species were exempt from recovery planning altogether. See U.S. FWS, Recovery and Delisting (last modified Nov. 6, 2000) (available at http://endangered.fws.gov/recovery/program.htm). Though these recovery efforts may seem significant, problems with recovery plan implementation are common; among the most prevalent is the lack of money received to carry them out. The 1995 appropriation, for example, was $39.7 million for 956 listed species, or roughly $40,000 per species.

97. Recent attacks include the moratorium on listing imposed by the 104th Congress, the moratorium on funding imposed by the 103d Congress, and various proposed bills to get rid of or completely alter the protections granted to species under the Act, including H.R. 490, H.R. 571, and H.R. 1714 in the 104th Congress. Additionally, the Act has failed to be reauthorized since 1992 and faces the insecure tenure of continuing resolutions for funding until it is.

98. Conservation Plan Assurances (No Surprises) Rule, 63 Fed. Reg. 8859 (Feb. 1998). No Surprises assurances are provided by the government through the § 10(a)(1)(B) process to nonfederal landowners. Essentially, private landowners are assured that if "unforeseen circumstances" arise, the Services will not require the commitment of additional land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP without the consent of the permittee. The government will honor these assurances as long as a permittee is implementing the terms and conditions of the HCP, permits, and other associated documents in good faith. In effect, this regulation states that the government will honor its commitment as long as the HCP permittees honor theirs.

99. Announcement of Final Policy for Candidate Conservation Agreements With Assurances, 62 Fed. Reg. 32726 (June 17, 1999). This new approach to Candidate Conservation Agreements provides nonfederal property owners who voluntarily agree to manage their lands or waters to remove threats to candidate or proposed species assurances that their conservation efforts will not result in future regulatory obligations in excess of those they agree to at the time they enter into the agreement. The Services provide technical assistance in the development of these agreements.