Common Waters Clark County

ESA for Beginners

Background

The Endangered Species Act (ESA) was adopted by the United States Congress (Congress) and passed into law in 1974. The purpose of the ESA law was to protect fish, wildlife, and plant species, and the habitat in which they survive, from eventual extinction and increase their population size to non-endangered or non-threatened status. Specifically, the Congress determined that the purpose of the ESA law was, “to provide a means whereby the ecosystems (habitat) upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the (ESA).” Endangered species have been identified as imminently close to extinction. To a lesser degree, threatened species have been identified as likely to become endangered in the near future.

Congress realized, with widely recognized scientific evidence, that animal species were suffering as a result of human activities, and declared that, “ (1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;(4) the United States has pledged itself...to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction...” Human activities that may have lead to the decline in species populations include over-harvesting (fishing and hunting), increased pollution of the environment with toxic substances (chemicals) and development of species habitat with man-made structures (buildings, roads, etc.). The ESA law provides for both direct and indirect protection of a listed species; direct protection refers to the species at the biological, individual or population level. Indirect protection refers to the prevention of habitat loss or alteration that may result in the death of an individual or population of listed species.

Once a species has been identified, via scientific findings, as either threatened or endangered, and the Federal Government accepts the scientific findings, that species then becomes ‘listed’ into ESA law. At this point, the species and its habitat are then protected under the ESA law. Protection of listed species falls under the jurisdiction of different government agencies depending on the type of species it may be. United States Fish and Wildlife Service (USFWS) has jurisdictional control over federally listed plants, non-anadromous fish, and wildlife. The National Marine Fisheries Service (NMFS) under the auspices of the National Oceanic and Atmospheric Administration (NOAA) controls threatened and endangered marine species including anadromous fish (an anadromous fish is born in fresh water, migrates to salt water (ocean) to mature, then returns to fresh water to spawn and die) and marine mammals.

Under ESA law, Section 4 - Determination of Endangered Species and Threatened Species, sub-section (d) – Protective Regulations, provides the mechanism for the government agencies to create rules to protect threatened species. Oftentimes, these are referred to as the ‘4(d) rules’.

Also, under ESA law, it is illegal for any person to take any species of fish, plant, or wildlife shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Additionally, it is illegal to possess, sell, deliver, carry, transport, or ship any species that has been taken illegally. Violation of “take” prohibitions my result in civil or criminal penalties, including monetary fines and prison time. The ESA allows for any citizen, organization, or governmental body to sue suspected violators of the law.

NMFS maintains jurisdictional control over the protection of these salmon species, as they are anadromous fish. In response to the threatened listings, NMFS has issued proposed 4(d) rules to protect the listed salmon species and their environment. These proposed 4(d) rules were issued in December 1999, and are expected to be finalized in the summer of 2000.

NMFS has identified a number of activities that may lead to a take of a salmon, including, but not limited to the following:

Altering or destroying salmon habitat (e.g., removal of large woody debris and vegetation from a stream, draining, ditching, diverting, blocking, or altering stream channels or surface or ground water flow).
Dumping or discharging toxic chemicals or other pollutants (e.g., sewage) into salmon habitat waters.
Applying pesticides and herbicides in a manner that adversely affects the salmon habitat.
Introducing non-native species likely to prey on listed salmon or displaces them from their habitat.
Collecting, handling or harassing listed salmon species.
Diverting water through an unscreened or inadequately screened diversion at time when juvenile salmon are present.
Physically disturbing or blocking the streambed where spawning is occurring.
Blocking fish passage through land fills, dams, or impassable culverts.
Fishery harvest activities not approved by ESA.

The ESA and listing of Pacific Northwest salmon species will affect land use and construction. Past development oftentimes overlooked the potential impact to the environment, including salmon habitat. Permitting of proposed developments will likely become more involved, as these potential impacts will require scientific analysis. More stringent rules, requirements, and governmental review for developments that impact recognized salmon habitat are likely. Protection of the salmon habitat from further degradation is likely to be more costly to those who wish to develop property nearby salmon habitat.

Pacific Northwest

A number of species of Pacific Northwest salmon have been identified as threatened (steelhead, coho, chum, sockeye, chinook,). Scientific evidence has shown that the native populations of these salmon species are becoming dangerously low. Because these salmon migrate through many local rivers, streams, creeks, etc., of the Pacific Northwest, a vast majority of the regions surface waters are considered salmon habitat. Consequently, all human activities in and around our region’s surface waters that may result in a take of a salmon come under the scrutiny of the ESA law.

Environment
It has been generally recognized that the quality of the salmon’s environment may be influenced by four general categories, including hatcheries, harvest, hydropower, and habitat (also known as the 4 Hs).

Hatcheries: Domesticated fish operations have been around since the 1800s. Hatcheries provide a protected and controlled environment for salmon (and other fish species) to be raised prior to release into rivers and streams. The purpose of hatcheries is to improve a salmon’s chances of survival in the natural environment, thus increasing their numbers. The downside to domesticated hatchery salmon is that they aren’t as ‘strong’ genetically as wild salmon. Interbreeding of domestic salmon with wild salmon has been shown by scientific evidence to reduce the genetic ‘strength’ of wild salmon

Harvest: There is a general consensus among experts that wild salmon stocks have been over-harvested during the past several decades. Between commercial fishing vessels and sport fishing, thousands of salmon are taken from the rivers and oceans each season.

Hydropower: The Pacific Northwest has a long and prosperous economic history associated with hydropower that is created by the many dams on our rivers. Most of the dams, constructed decades ago, do not adequately account for fish passage.

Habitat: Fish habitat includes the streams, rivers, and oceans in which salmon survive. As human development increases, impact on fish habitat is inevitable. Past and present human activities have adversely impacted water quality, wetlands and stream and river ecologies. Fish accessibility to native habitat has also been impacted. Activities that impact the salmon’s habitat include human contamination of water with chemicals and sediments, construction of barriers to natural habitat (roads and other development), and removal of foliage and vegetation nearby streams and rivers.

Of the 4 Hs, hatcheries, harvest, and hydropower is the focus of the federal government. The last H – habitat – is a concern for local interests, including local government and concerned citizens.

Salmon Recovery

At the federal and state level, NMFS is required to provide a framework for addressing the ESA listing of Pacific Northwest salmon species. Through NMFS Recovery Planning Guidelines, geographically-based Technical Recovery Teams (TRTs) will be formed to perform the following functions: (1) identify population and habitat goals for recovery; (2) identify the factors for decline; (3) identify early actions that are important for recovery; and (4) identify research, evaluation, and monitoring needs. The purpose of recovery goals is, at a minimum, to restore ESA listed salmon species to levels at which they are no longer threatened. NMFS has indicated it intends to work closely with local recovery efforts that may already be underway.

The federal and many local governments are already implementing salmon recovery plans and projects. Federal activities include more active enforcement of the ban on high seas drift nets and other commercial harvest regulations; implementing a treaty between the US and Canada to limit fish harvesting; increasing funding for salmon habitat improvement projects; and implementing stricter requirements for new construction of roads and control of sediments into streams. Local government (Clark County) actions include compliance with surface water pollution limitations; fish barrier removal; more stringent erosion control requirements for development (including inspection
and enforcement processes); and acquisition and protection of salmon habitat property.

On an individual level, citizens may take actions to assist in protecting salmon habitat. Such actions include limiting the use of toxic chemicals at home and on lawns and gardens; refraining from disposing of chemicals (including oil) into the stormwater system; discontinuing washing vehicles at home, where runoff water drains to the stormwater system; planting of native plants along stream banks and removing invasive plants such as blackberry bushes; stenciling stormwater drains to identify drainage points, conserving water and electricity, recycling, and becoming more informed and educated about salmon recovery.

Future

The intent of the ESA is to protect listed salmon species from extinction. The health of the salmon represents the health of our environment. Rapidly declining salmon species are an indication that the quality of the environment is declining. To protect the salmon species from extinction and protect our environment from further degradation, human activities in and around salmon habitat must be evaluated for potential negative impacts.

Protection of salmon habitat will result in additional costs, in one form or another, to all citizens. Developers will be required to provide conclusive evidence that proposed land development won’t impact salmon habitat; Governmental agencies will be required to further analyze and monitor their own impacts to salmon habitat; Governmental agencies will need to allocate more resources for thorough review of proposed developments in and around sensitive salmon habitat; Additional legal costs, at the eventual cost of taxpayers will be incurred as a result of the inevitable increase in ESA litigation; and homeowners will likely be asked to pay higher water, electric, and garbage disposal fees, as providers of these utilities will pass on costs to comply with ESA law to the consumer.

As an affected citizen, taxpayer, and consumer, individuals must take the initiative to become further knowledgeable of the issues associated with the ESA and listing of Pacific Northwest salmon species. As decision-makers struggle with balancing protection of the environment versus the costs, input from those affected is needed.

Of the 4 Hs, hatcheries, hydropower, and harvest is the primary focus of the federal government. Habitat is the primary focus of local government and local citizens. Through further understanding of how human activities impact the quality of our environment and the salmon habitat, individuals can realize that making a conscious effort to modify environmentally insensitive habits will significantly improve the salmon’s environment, and may lead to less of a cost impact to implement ESA law.