ESA tells what you can't do


by Mike Archbold
King County Journal Reporter

Seattle, WA - Brian Gorman, a spokesman for the National Marine Fisheries Service in Seattle, the agency charged with enforcing Endangered Species Act protection for salmon, said it is helpful to understand what the Endangered Species Act is and isn't.

``Essentially ESA is a vehicle for prohibitions rather than a guidebook for recovery,'' he explained. ``The fact is that ESA can't force you to do good things; it can prevent you from doing bad things.''

The ESA aims to prevent extinction of the species. To that end, the fisheries service has done hundreds and hundreds of ESA-related biological opinions since 1999 on public and private projects that might affect salmon or their habitat.

The White River Amphitheatre project proposed by the Muckleshoot Tribe east of Auburn took an extra 18 months for approval, mainly due to ESA reviews by both Fisheries and the U.S. Fish and Wildlife Department, which oversees bull trout protection.

Gorman said state, local and tribal governments throughout the Northwest have stepped forward into the recovery process. Efforts in Washington include:

* The state-backed A Shared Strategy for Recovery of Salmon in Puget Sound.

* The Puget Sound Tri-County (King, Pierce, Snohomish) Salmon Conservation Coalition.

* The 1999 report Return of the Kings that set a course for King County and salmon conservation.

So far, there still is no salmon recovery plan for Puget Sound which the fisheries department must approve. The Shared Strategy group has pegged 2004 for completion of that plan.

What are `takings'?

The most stringent part of the ESA is the ``take'' rule, as in ``taking'' or killing salmon.

The take rule prohibits anything that hurts or harms a salmon.

That is a broad prohibition, and caused huge consternation among governments and builders concerned about liability.

Two years ago, the fisheries department approved a list of 13 exemptions to the take rule to give public agencies more certainty about what they can do. The exemptions included such activities as road maintenance, research, harvest management, and certain municipal, residential, commercial, and industrial development and redevelopment activities.

The exemptions are not a blanket authority to allow an agency to do whatever it wants. Rather, Gorman said, it allows exemptions to approved rules and protocols that take salmon into account.

There may be an ``exception'' from the prohibitions so long as the ``take'' occurs as the result of a program that adequately protects the listed species and its habitat.

``The whole idea was to prevent anxiety (at the local level),'' he said. ``We have been working with King County so they can produce regulations of their own so they will not automatically run afoul of the law.''

Daryl Grigsby, who heads King County's Water and Land Resources Division, which is charged with overseeing ESA issues, said the listing and response is complicated.

When the listing first came down, he said there was an expectation of quicker and more radical changes in how things were done.

That hasn't happened, he said.

In Grigsby's view, the ESA has taken three approaches at the King County level:

* Incorporate protection of the species into all activities.

For example, the county has maintenance activities on a host of levies along the Green River. Those maintenance projects are now done with more ``fish friendly'' elements, he said.

Last year, two such maintenance projects including creation of a softer bank for fish that gives them a bench of shallower water away from the main channel.

* Do extra fish-friendly things that weren't being done or were considered beyond the normal course of duty.

* Engage in longer-term conservation planning.


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