NMFS, county still after 4(d) in spite of court ruling
By Stephen Kaczor
Kitsap Business Journal


   Kitsap County, WA - 2/4/02 - Everyone in Washington appreciates salmon, right? Currently, Puget Sound Chinook and Hood Canal Chum salmon are listed as a threatened under a provision of the Endangered Species Act (ESA). Why, then, are Chinook and Chum salmon being clubbed in mass for sale and stopped from spawning?

   The National Marine Fisheries Service (NMFS) will tell you that it is because hatchery stocks are not “natural” fish, despite the fact that they define hatchery stock as members of the same Endangered Species Unit (ESU).

   Why, if there are no “natural” salmon in hatcheries, are property owners upstream from hatcheries subject to property setbacks? The NMFS will tell you that it is because some hatchery stock are allowed to spawn, and the new born salmon will become “natural” fish, protected under the ESA. The truth, then, is that no genetic difference exists between hatchery salmon and “natural” salmon. This we already know; the NMFS recognizes both under the same ESU.

   With this background, it becomes easy to understand why Federal District Court Judge Michael Hogan found the NMFS has acted “capriciously” and “unlawfully” with regard to its salmon policies in the Pacific Northwest. The Sept. 13 Oregon ruling (Alsea Valley Alliance v. Evans) affirms that hatchery-spawned salmon are “biologically indistinguishable” from naturally spawned salmon. NMFS must now count hatchery stock when determining whether salmon are indeed threatened. Chinook salmon runs all over Puget Sound were supposedly “threatened”, according to the bogus NMFS definition.

   This Alsea decision is expected to help private property owners in Washington’s wetlands (most of Kitsap County is wetlands) avoid overly restrictive setbacks to protect a species that can no longer be legally deemed as “threatened.” Most importantly, the appropriateness of the 4(d) exemption currently being negotiated between Kitsap County and NMFS must now be called into question as a result of the recent Federal decision.

   Kitsap County has opposed an October petition to de-list its salmon from ESA protection. Kitsap County had submitted a Salmon Habitat Protection Plan to NMFS for 4(d) protection. 4(d) is a section of the ESA that requires the federal government draft “protective regulations” to safeguard threatened species. It states, “Whenever any species is a listed as a threatened species, the Secretary shall issue such regulations as he deems advisable to provide for the conservation of such species.”
Vivian Henderson, Director, Kitsap Alliance of Property Owners, writes about the response NMFS employee Dan Guy gave when questioned about 200’ setbacks proposed for each side of local streams. The question was proposed by Tom Stansbery, Port Orchard City Councilman, “Who is going to compensate property owners when we take 400’ of their property away from them?” The answer from Guy was “Who’s going to compensate the fish.”

   Such was the attitude of the NMFS prior to the recent Federal Court ruling against its practices. Catherine Lewers of the U.S. Department of Justice reports that NMFS has filed a pleading in the case notifying the court that it will not appeal Judge Hogan’s decision. In addition, NMFS has filed a plan of action with the court.

NMFS will be taking four steps:

1) NMFS will immediately begin a public rulemaking process, including public hearings, to determine what ESA listing standards should be applied to salmon populations that include fish reared in hatcheries.

2) When completed, these standards will be applied promptly to all ESA-listed salmon and steelhead populations and not just the Oregon Coast coho ESU which was the subject of the Alsea decision.

3) In the meantime, it is vital that the regions efforts to protect and rebuild these populations, which are beginning to show signs of success, be continued to assure a full recovery of healthy salmon and steelhead runs. NMFS will increase its support for local planning efforts to rebuild salmon runs, and will provide interim planning targets for the areas with listed salmon and steelhead populations.

4) Except for the Oregon Coast coho, where the Court ordered delisting, no other salmon or steelhead populations will be delisted at this time. The current protections of the Endangered Species Act will continue in force until appropriate standards are developed and the status of each listed population has been reviewed under the new standards, using the most recent data about the populations.

   In addition, NMFS will conduct rulemaking on artificial propagation impacts, according to a report by Karen L. Smith, Environmental Policy Analyst, National Association of Home Builders.

   Smith reports, “Proposed rules will be published by February, 2002, with a 60-day comment period and public hearings. Final rules will be published by September, 2002. This will be an open proceeding with public hearings and comment about how the ESA should be applied to those salmon populations that include fish reared in hatcheries. NMFS will also re-initiate status reviews of all similarly situated ESUs and propose listing determinations for all 24 potentially affected ESUs within 45 days of completion of artificial propagation rulemaking.”

   NMFS further proposes increased support for local planning efforts. The Kitsap County 4(d) exemption is one example of such an effort.

   “State and regional planning processes are being organized to develop comprehensive sub basin plans. NMFS believes that these plans are a critical next step toward salmon recovery,” noted Smith. “We will work with states, tribes, other federal agencies, and regional agencies such as the Northwest Power Planning Council to assure that the local efforts have adequate resources and technical assistance. However, the plans cannot move ahead very far without some tangible goals. Providing interim goals will give planners a target to shoot for while this rulemaking and status review are underway, and will help to keep the physical recovery efforts moving forward in a practical way. These targets, and the plans that address them, should also help to reduce the uncertainty, and the costs associated with it, that would otherwise occur for landowners and other stakeholders affected by the habitat-related impacts.”

   In other words, NMFS is not changing its philosophy in response to the Federal Court finding that its ESA processes are “illegal.” Rather, NMFS will maintain protection for ESUs, which are based upon subsets of subspecies, while “status reviews” and “rulemaking” are underway. Protected status will continue for all currently listed populations during the review. Property owners in wetlands are advised to remain alert through these processes.

   According to Henderson, Kitsap County Citizens wishing to guard against future “capricious” and “illegal” NMFS actions, and overly restrictive setbacks on salmon streams, would be wise to question County Commissioners on the 4(d) exemption and get involved at the local and state levels. She said her group believes that state and local management of salmon habitat is preferable to NMFS controls based upon illegal definitions of endangered species.

(Editor’s Note: Steven Kaczor is a noted environmental writer with ties to both the Northwest and the desert Southwest. He may be reached at imr@az.org.)

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