On March 9, 1998, the National Marine Fisheries Service officially announced its intent to add the Chinook salmon of Puget Sound to the endangered species list. The Service has until next March to make a final decision, and all indications point to a listing of the Chinook. Should that happen, residents of the Puget Sound area will come face to face with one of the nation’s most powerful environmental laws: the Endangered Species Act.
The 1998 Leadership Conference, sponsored by the Greater Seattle Chamber of Commerce, will explore the potential ramifications of the Chinook listing and the effort needed to bring about its recovery. This paper is intended to give Conference participants a background on the workings of the Endangered Species Act and how the act could be applied to Puget Sound Chinook.
I. The Endangered Species Act
In 1973, Congress passed the Endangered Species Act (ESA) with overwhelming votes in both chambers. Previous versions of the law, passed in 1967 and 1969, afforded some protection for endangered species, although their strictures applied only to federal lands and international trade. The 1973 act expanded this protection to nonfederal lands and added explicit prohibitions against harming listed species. Since 1973, Congress has amended the act several times, and is currently considering another set of important amendments.
Below, four areas of the current ESA are reviewed: the list of endangered species, the prohibitions and obligations created by the law, exceptions to these prohibitions, and recovery planning for listed species. Following these discussions, the possibility of revisions in the law before the end of the year is briefly considered.
A. The List of Endangered Species
Under the ESA, the Secretary of the Interior, acting through the Fish and Wildlife Service (FWS), and the Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS), share responsibility for maintaining a list of endangered species. The division of responsibility gives most oversight to the FWS; the NMFS is responsible for marine species of mammals and fish, including salmon and steelhead. A species need not reside within the United States to be listed, although the act treats domestic and foreign species differently.
As defined by the ESA, a “species” may include a full species, a subspecies, or a “distinct population segment” (defined as a geographically distinct group that interbreeds when mature). This latter category applies only to vertebrate wildlife and fish species, and not to invertebrate (e.g., insects) or plant species.
The listing procedure may be initiated by an outside petition or by the FWS or NMFS through an internal review process. The FWS or NMFS then determines whether the species is jeopardized by one or more of the following factors:
– the present or threatened destruction of the species habitat or range;
– the overutilization of the species for commercial, recreational, or other purposes;
– disease or predation;
– the inadequacy of existing regulatory mechanisms; and
– other natural or manmade factors affecting the species continued existence.
After reviewing these factors, the Secretary decides whether a species should be classified as endangered or threatened (or neither). An endangered classification is given to a species that is in danger of extinction throughout all or a significant part of its range; a threatened classification is given to a species that is likely to become endangered (as defined above) within the foreseeable future. If a species meets the requirements for either classification, a proposed listing is published in the Federal Register, with a final decision made within one year of the proposal (with a possible six-month extension to gather more data if there is a disagreement on scientific issues). The final decision must use “the best scientific and commercial data available,” and cannot consider any economic impacts.
At the time a species is listed, the Secretary must also, to the extent “prudent and determinable,” designate the critical habitat of the species. The ESA defines “critical habitat” as geographic areas currently occupied by the species that are either essential to its conservation or require special management considerations. Areas that are not currently occupied may be included in the critical habitat designation if those areas are essential for the conservation of the species. In the process of designating critical habitat, the Secretary can consider economic and other non- biological impacts.
For some listed species, biological evidence gathered after the listing may warrant a change in classification, from endangered to threatened or vice-versa, or a revision of its critical habitat. The process for making these revisions is essentially the same as that which governs the original listing. The Secretary can also remove a species from the list if it has become extinct or has achieved recovery, or if the the original data supporting the listing are in error. A species is deemed to be recovered if it is judged to be no longer endangered or threatened — that is, no longer at risk of extinction now or in the foreseeable future.
As of June 30, 1998, almost 1700 species had been listed under the ESA; of these, more than 1100 are domestic species, including 903 classified as endangered and 233 as threatened. Of the domestic species, 639 are plants, 67 are mammals, 90 are birds, and 100 are fish. Washington State is home to 24 listed species, ranging from the bald eagle, northern spotted owl, and Columbia white-tailed deer, to plant species such as the Nelson’s checker-mallow and water howellia. Since 1978, 20 domestic species have been delisted, the Department of Interior recently announced its intent to delist or downlist (changing the classification from endangered to threatened) almost two dozen other species.
B. Prohibitions and Obligations under the ESA
The heart of the ESA is Section 9, which lists the actions prohibited by the law. Among these, the most powerful prohibition is against the take of any species of fish or wildlife classified as endangered. The term “take” includes any action to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” As interpreted by the courts over the past twenty-five years, this definition covers a wide range of actions, from directly killing a member of an endangered species to adversely modifying its habitat. (This latter example is the focus of a recent Supreme Court case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 .) Section 9 protects species on private land as well as public lands. (An exception is plant species, which are protected only on lands under federal jurisdiction.) If an endangered species occupies property that is privately owned, the landowner is prohibited from taking the species, which may include habitat modification.
Although the ESA directly prohibits take only for fish and wildlife species listed as endangered, this prohibition generally is extended to threatened fish and wildlife species by agency rule. The FWS has adopted a generic rule that treats all threatened fish and wildlife species as if they were endangered, except as provided by a species-specific rule known as a 4(d) rule (referring to the corresponding section of the law). The NMFS usually extends the take prohibition to threatened species that are under its jurisdiction by a 4(d) rule adopted either at or soon after the time of listing. These 4(d) rules sometimes allow limited take of the species — e.g., commercial and sport fishing allowed by applicable federal, state, or tribal regulations — but must in any case provide for the conservation of the species.
A listed species is also granted protection through Section 7, part of which governs the responsibilities of the federal government under the act. Section 7 commands all federal agencies to insure that their actions are not likely to place a listed species in jeopardy or result in the destruction or modification of its critical habitat. A listed species is in “jeopardy” if an action would appreciably reduce the likelihood of the survival and recovery of that species. An “action” by a federal agency includes activities that are authorized, funded, or carried out by the agency. This definition gives Section 7 a wide reach, covering activities such as federal funding of highway and housing projects, and the management of federal facilities such as military bases and federal lands such as national forests and parks. Section 7 also covers activities funded and carried out by private parties but authorized by federal permit, such as dredging and wetland modifications.
The ESA provides for a consultation process between either the FWS or NMFS and other federal agencies, intended to assist those agencies in complying with the law. The consultation process assesses the likelihood that a proposed action will result in an adverse impact to the species; if that is deemed to be the case, the FWS or NMFS issues a jeopardy opinion. This opinion identifies any adverse impacts that may result from the action and, if necessary, proposes reasonable and prudent alternatives (if any exist). The federal agency is not required by law to follow the opinion’s recommendations, but risks knowingly violating the ESA if it does not. If the proposed action is unlikely to have any adverse effects (either in its original for or after any modifications), the FWS or NMFS will issue a non-jeopardy opinion and the action can proceed with a presumption that it complies with the law.
C. Exceptions to the ESA’s Prohibitions
The ESA contains two possible ways of gaining an exception to the prohibitions of Section 9. (A broader exemption process, which would allow a federal action to jeopardize a species, is rarely used.)
For federal agencies, the exception stems from a distinction between the prohibitions against take (Section 9) and against jeopardy (Section 7). The former refers to harming an individual member of a listed species, while the latter is defined as appreciably reducing the chances of the species for survival and recovery. A federal action that “takes” a very small number of a listed species, then, would violate Section 9 but might not violate Section 7. This possibility led Congress to provide an exception process as part of the Section 7 consultation process. As long as the proposed federal actions do not jeopardize the species overall, the FWS or NMFS will issue an incidental take statement authorizing any resulting take so long as the federal agency complies with conditions specified by FWS or NMFS to minimize that take.
Under Section 10(a) of the ESA, a similar exception process exists for non-federal parties, which may include state and local governments as well as private parties. They may apply for an incidental take permit (also known as a 10(a) permit), which would authorize the take of a listed species if that take is incidental to an otherwise legal activity. To obtain a 10(a) permit, the applicant must develop a habitat conservation plan (HCP) that identifies the scope of the incidental taking and the steps that will be taken to “minimize and mitigate” the impacts. An Environmental Impact Statement or a somewhat less formal Environmental Assessment and, in this region, an implementation agreement are required. Public comments on the draft HCP, draft EIS or EA and draft Implementation Agreement are solicited through notice in the Federal Register.
The use of HCPs has increased dramatically over the past decade with about 200 being approved during that period. One of the largest was developed by the Washington State Department of Natural Resources, covering nine listed species and 1.6 million acres of state land; the smallest HCPs typically cover one species and an area no larger than one or two acres.
D. Recovery Planning
The ESA directs all federal agencies to undertake actions to conserve and help recover listed species. In most cases, the FWS or NMFS must develop and implement a plan to recover the species following its listing. This plan describes the actions considered necessary or desirable for recovery and includes estimates of the time required and cost to carry out those actions. The extent of the legal obligations created by a recovery plan is not clear. To date, recovery plans have been used as guidelines for actions and federal funding priorities. They are not considered binding even on the federal agencies that wrote them, nor are they are binding on non-federal parties unless implemented through state or local regulations, HCPs or other agreements. Non-federal parties may develop their own conservation and/or recovery plans, independent of the HCP process of Section 10(a). These programs may be considered by the FWS or NMFS in decisions to list a species, promulgate a 4(d) rule, fashion a recovery plan, and so forth. (If the party is a state government, the state may enter into a cooperative agreement with the federal government under Section 6 of the ESA, which would hand over most of the authority for managing resident endangered species to the state; however, this option is rarely used.) Examples of such efforts include the California Natural Community Conservation Planning program, which was incorporated into a 4(d) rule covering the coastal California gnatcatcher, and the Oregon Coastal Salmon Restoration Initiative, which was considered by the NMFS in its original decision not to list Oregon coast coho. (This latter decision was later reversed, however, in response to a court challenge. The court noted that the decisions of the FWS and NMFS may not consider future legislation by state or local governments, or voluntary efforts not yet initiated. NMFS has appealed this decision.)
E. The ESA in the 105th Congress
Over the past several years, Congress has considered several bills that would have amended the ESA, although none has come to a vote in both chambers. The major current piece of legislation in the 105th Congress that would affect the ESA is the Endangered Species Recovery Act (S. 1180), originally sponsored by Senator Dirk Kempthorne (R, ID). The bill would amend the recovery planning process, change many of the procedures for consultation, and expand the habitat conservation planning process to cover species not yet listed. Although the Senate Environment and Public Works Committee approved the bill last fall, the full Senate has not yet considered it, and action by both chambers of Congress before the end of the year is unlikely.
II. Puget Sound Chinook and the ESA
Over the past ten years, the NMFS has identified and evaluated the status of numerous individual populations of salmon and steelhead throughout the Pacific coast region. The first stock to be listed was the Sacramento River winter-run chinook in 1989. Since then, four more populations have been listed as endangered and ten more as threatened, including the Oregon coast coho salmon in August.
In 1994, the NMFS announced its intent to review the status of all west-coast chinook salmon populations. Completed in December 1997, the review identified fifteen distinct populations (three of which were already on the list), and NMFS proposed this past March to add seven more populations to the endangered species list, including the Puget Sound chinook.
For Puget Sound Chinook and the other populations covered by the NMFS review, the “species” proposed for listing fits into the category of a distinct population segment. The NMFS has developed a specific concept — the Evolutionarily Significant Unit (ESU) — to identify populations of Pacific salmon and steelhead that may warrant protection under the ESA. An ESU is a population that is isolated (in terms of reproduction) and represents an important component of the evolutionary legacy of the species. Typically, the ESU concept applies only to wild (non- hatchery) individuals of a species (the progeny of hatchery fish may be included if the hatchery fish have spawned under natural conditions).
As defined by the NMFS, the Puget Sound Chinook ESU covers the broader Puget Sound region, an area north from the North Fork Nooksack River, south through Puget Sound (including rivers basins such as the Skagit, Snoqualmie, Duwamish, Deschutes, and Nisqually), north through Hood Canal, and west to the Elwha River. Chinook salmon that naturally spawn in this ESU would be classified as a threatened species, allowing NMFS to adopt special regulations through the 4(d) rule process, and would include spring, summer, and fall runs. The NMFS proposal also designates the critical habitat for the Puget Sound Chinook, which would cover the species entire current range but not extend into areas historically but not currently occupied.
Should the proposal become a final listing, the Chinook’s life cycle greatly expands the likely reach of the ESA in this region. Like other salmon species, the Chinook is anadromous: it hatches in freshwater, matures in saltwater, and returns to freshwater to spawn. This cycle presents innumerable opportunities for disruption by human activities. The scope of these potential disruptions is sometimes referred to as the “four H’s”: harvesting, habitat, hatcheries, and hydropower. Early declines in Chinook populations were mostly the result of commercial harvesting; later declines have been attributed to a combination of all of these factors, as well as natural factors such as changes in ocean conditions.
Habitat losses come from the loss or degradation of the salmon’s habitat requirements, which include adequate quantities and quality of instream water; adequate food and forms of shelter; sufficiently clean and stable stream bed conditions to support spawning; and the ability to move between the water bodies that link the marine and inland habitats. Numerous activities can affect these features, including dam operations, forestry and agricultural practices, mining, and urban development.
While capable of supplementing overall salmon numbers, hatcheries can have harmful effects on wild salmon by producing fish that compete for the available resources, prey on wild populations, transmit diseases, and reduce genetic diversity by interbreeding with wild fish. In addition to affecting habitat, hydropower is a significant source of mortality for salmon migrating either to or from the ocean. All of these causes have contributed to the decline of Puget Sound Chinook.
Another factor has recently come under consideration, as noted in a 1998 article in Science. Temperature conditions in the ocean can have a major influence on salmon survival, and these conditions have undergone a shift in the past twenty years. The biological response to these changes has contributed to changes in the abundance of many marine species ranging from California to the Gulf of Alaska.
A wide variety of activities, then, could come under the purview of the NMFS through the listing of the Chinook. Basically, any activity capable of adversely affecting Chinook salmon or its habitat would be covered, including:
Federal agency actions
– Land management activities of the Forest Service and Bureau of Land Management, including timber sales and livestock grazing;
– Operation of hydroelectric and storage projects of the Bureau of Reclamation and Corps of Engineers;
– Section 404 permitting activities under the Clean Water Act;
– Federal Energy Regulatory Commission licenses for non-Federal development and operation of hydropower;
– Federal grants for highways, sewage treatment plants and other infrastructure;
– Federal programs related to water quality, fish and wildlife, and land use, where there are federal grants or loans to state or local agencies or federal review and supervision of state and local programs; and
– Federal salmon hatcheries
– Land-use activities that adversely affect chinook salmon habitat (e.g., logging, grazing, farming, urban development, road construction in riparian areas and areas susceptible to mass wasting and surface erosion);
– Destruction/alteration of Chinook salmon habitat, such as removal of large woody debris and “sinker logs” or riparian shade canopy, dredging, discharge of fill material, draining, ditching, diverting, blocking, or altering stream channels or surface or ground water flow;
– Discharging or dumping of toxic chemicals or other pollutants (e.g., sewage, oil, gasoline) into waters or riparian areas supporting chinook salmon;
– Violation of discharge permits;
– Pesticide applications; and
– Introduction of non-native species likely to prey on chinook salmon or displace them from their habitat.
A federal agency action such as any of those listed above would likely go through the consultation process of Section 7. If the NMFS found the action likely to jeopardize the Chinook, the agency would have to modify the action or pursue an alternative that avoided that consequence. For private actions that might harm the Chinook or its habitat in any of the ways described above, an incidental take permit could be obtained under Section 10(a), which would require the development of a habitat conservation plan. The scope of the permit could range widely, from an individual development project (i.e., a road-building project or housing development) to entire state-wide operations (i.e., state rules governing forest practices or instream flows).
If the Puget Sound ESU of Chinook salmon is listed next spring, the NMFS will then begin work on a recovery plan. This plan would cover the full range of actions needed to recover Puget Sound Chinook, not just those directly funded and implemented by NMFS; and it would define criteria by which to judge the recovery of the species, as well as estimate the cost of implementing the various actions outlined in the plan. The existence of a recovery plan, however, would not ensure adequate (or any) funding for the recommended actions.
Efforts at the state and local levels can supplement the federal recovery efforts, and may be incorporated in the federal recovery plan or in a 4(d) rule. Ongoing efforts include
– The Governor’s Salmon Recovery Office Salmon Team, which has developed a state plan for the Lower Columbia steelhead and will develop and coordinate an overall state salmon strategy;
– Regulations promulgated by state agencies, including forest practice rules (adopted by the Forest Practices Board and administered through the Department of Natural Resources) and several regulations covering water quality and instream flows (through the Department of Ecology);
– Washington State legislature efforts initiatives, including HB 2496, which created the Governor’s Salmon Recovery Office, and other legislation passed this year, as well as legislation that may be considered in the 1999 session;
– The Tri-County (Snohomish, King, and Pierce) effort, which intends to coordinate local recovery planning efforts and help develop a possible 4(d) rule covering Puget Sound Chinook; and
– Numerous private initiatives, which may be required to obtain an incidental take permit or be covered in some other way.
This list is far from exhaustive, and is constantly expanding.
Finally, there are aspects of the recovery effort that go beyond the ESA. The Puget Sound Chinook and other species of salmon are harvested by Canadian fisheries, and the recent short- term agreement with Canada covering the Chinook, sockeye, and coho will improve the chances of those species avoiding extinction. Further negotiations will be needed to extend the agreement over more species and beyond the one year time frame. A second consideration is the treaties with the Native American tribes, which cover salmon and other wildlife species. Any recovery plan must account for these treaty rights, and cooperation with the tribes will be an essential part of that effort. In addition, some factors that affect recovery are completely outside human control. If ocean conditions turn out to be a major determinant of salmon health, recovery efforts in this state may be faced with the problem of trying to overcome the effects of adverse changes in those conditions.
The listing of Puget Sound Chinook under the Endangered Species Act will present this region with an unprecedented series of challenges. The force of the law will be immediately directed toward halting any further deterioration in the Chinook’s status. Accomplishing this will cause some economic and social disruptions, some subtle and others obvious, but preventing the extinction of this (or any other) species is a worthy goal. Moving beyond prevention to recovery will require substantially greater resources and resolve.
Nor is the Puget Sound Chinook the only endangered species on the horizon. The NMFS and FWS have identified several populations of salmon and other fish species that could be listed in the near future:
– Puget Sound/Strait of Georgia coho (candidate for future listing)
– Southwest Washington/Lower Columbia River coho (candidate for future listing)
– Lower Columbia River chinook (proposed for listing as threatened)
– Upper Columbia River spring-run (proposed for listing as threatened)
– Hood Canal summer-run chum ((proposed for listing as threatened)
– Columbia River chum (proposed for listing as threatened)
– Ozette Lake sockeye (proposed for listing as threatened)
– Baker River sockeye (candidate for future listing)
– Middle Columbia River steelhead (proposed for listing as threatened)
– Coastal Puget Sound bull trout (proposed for listing as threatened)
These species share some of the same habitat needs, of course, but not all.
Tackling these challenges will require an effort that goes beyond the narrow confines of the ESA. The law does not allow the FWS or NMFS to consider economic costs in any substantive way, and their decisions are restricted in most cases to a consideration of scientific evidence. Yet the task of building public support for an expensive, long-term recovery program must confront those costs from the beginning, and science alone cannot ensure its success. Economics and politics must be allowed to share the stage with biology, for invoking the “best science” will not foster the political determination and economic resources needed in the years ahead.