NMFS' Final 4(d) Rule for Salmon and Steelhead

On June 19, 2000, the National Marine Fisheries Service (NMFS) adopted a final 4(d) rule to protect 14 evolutionarily significant units (ESUs) of salmon and steelhead listed as "threatened" under the federal Endangered Species Act (ESA or Act). While NMFS issued separate proposed 4(d) rules for salmon and steelhead in December 1999/January 2000, the final rule combines the two proposed rules into one final rule. The adoption of a separate final 4(d) rule governing tribal resource management plans is also expected soon.

Despite holding 25 public hearings throughout the Northwest following the release of the proposed rules and receiving more than 6500 public comments on the proposed rules, NMFS made only a few, minor changes to the final 4(d) rule as compared to the proposed 4(d) rules. [RE: background on the proposed rules, see Filippi, Insider, #239). At its core, the final 4(d) rule does essentially three things. First, it establishes a prohibition on the "take" of any salmon or steelhead subject to the rule. Second, the rule sets forth thirteen programs or activities under which the prohibition on take is not applied. These thirteen programs or activities are referred to as "limits" on, or safe harbors from, the take prohibition. Third, the rule makes explicit that the defendant has the burden of proof to show application and compliance with a limit as an affirmative defense to an alleged take. In addition, the preamble to the final rule identifies and describes activities that NMFS believes are "most likely" to injure or kill salmonids, thereby resulting in a violation of the 4(d) rules. Significantly, the preamble to the final rule also includes NMFS' responses to some 313 separate substantive public comments.

First and foremost, the 4(d) rule establishes a prohibition on the "take" of any individual member of one of the 14 salmon and steelhead evolutionary significant units ESUs covered by the rule. The term "take" is defined by the Act to mean "to harass, harm, pursue, hunt, shoot, would, trap, capture or collect, or to attempt to engage in such conduct." ESA § 3(19). As related to take, the term "harm" is defined by administrative rule to include "significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering." 64 FR 215 (1999) (see Filippi, Insider, # 237). While NMFS is not directly required by the ESA to establish a prohibition on the take of species listed as threatened under the Act, section 4(d) provides that NMFS may adopt whatever protective regulations it deems "necessary and advisable to provide for the conservation" of such threatened species. "Conservation" is defined as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." ESA § 3(3). NMFS believes that this definition, along with the directive in section 4(d) of the Act, gives it broad discretion to fashion protective measures for fish. Accordingly, the final rule expresses NMFS' belief that a prohibition on take is necessary and advisable for the conservation of the 14 ESUs. Once the rule becomes effective, any person who causes a take as defined above is subject to civil and criminal penalties, as well as citizen suits, as set forth in Section 11 of the Act.

NMFS responded to 34 separate comments regarding the take prohibition and guidance. Significantly, NMFS emphasized in its response that even if an activity is conducted pursuant to an approved state or federal permit or authorizationñsuch as a discharge pursuant to a valid National Pollutant Discharge Elimination System (NPDES) Permit under the Clean Water Act or a pesticide application pursuant to an approved Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) labelñsuch activities are still subject to the take prohibition. At the same time, NMFS indicated that it "would not intend to concentrate enforcement efforts on those who operate in conformity with current permits." Instead, NMFS intends to work with the responsible agency through section 7 consultations or other means to make necessary changes in the permitting program directly. In particular, NMFS appeared to recognize the essential role that pesticides play in commercial crop production on agricultural lands and the implications of the take prohibition on individuals needing to apply pesticides. NMFS expressed an intention to work closely with EPA and state authorities to address the potential harm to listed salmonids from pesticides through section 7 consultations with EPA and others, and indicated a preference for "this approach rather than us[ing] its enforcement authorities against an individual applicator for the otherwise-lawful use of the pesticide." Although the agency's approach provides some level of comfort to individual permit holders, NMFS acknowledged that individual pesticide applicators and other permit holders would still be subject to citizen suit enforcement actions.

Many commenters sought additional time. NMFS expressly rejected requests to wait to apply the take prohibitions until more local programs were ready to be included in the 4(d) rule, and also rejected the idea of a grace period from the take prohibition for those making good faith efforts to conserve species. According to NMFS, the "species are, by definition, likely to become endangered in the foreseeable future and undue delay in protecting them would likely increase the difficulty and expense of recovering them."

Nevertheless, NMFS offered up a compromise of sorts on this issue. The prohibition on take has two separate effective dates. For the seven steelhead ESUs governed by the rule, the prohibition becomes effective 60 days after publication of the rule in the Federal Register. [Editor's Note: Federal Register publication had not occurred by our press-time. Sources at NMFS anticipated publication "on or about" June 27, 2000.] For the seven salmon ESUs governed by the rule, the prohibition becomes effective 180 days after publication. The delayed effective date for salmon will provide some local governments with much-needed additional time to craft local programs. For example, the cities of Seattle and Olympia are both located within the Puget Sound chinook ESU covered by the rule, but are not within any of the steelhead ESUs covered by the rule. For much of the Northwest, however, the delayed salmon rule effective date will provide little relief, as large areas in Oregon, Washington, Idaho, and California face the shorter, 60-day effective date for steelhead. Areas subject to the 60-day take prohibition include: the Lower and Middle Columbia River basins; the Upper Willamette River basin; and the Snake River Basin. This overall area effectively stretches from west of Salem to the eastern Idaho border, and includes the cities of Salem, Portland, Yakima, Pendleton, and Lewiston, and many others in between. In California, major cities subject to the 60-day effective date for steelhead include Sacramento, Chico, Santa Rosa, Santa Cruz, and San Luis Obispo.

The earlier effective date for steelhead is apparently driven by a court-approved settlement in a lawsuit in which various conservation groups sued NMFS for alleged unreasonable delay in issuing 4(d) rules for two steelhead ESUs in the Lower Columbia River and Snake River Basin. Clark County Natural Resources Council v. Daley, C99-1023R (W.D. Wash.). Curiously, while the joint motion to stay proceedings recites NMFS' commitment to take final agency action on all seven steelhead ESUs by June 19, 2000, the motion is silent with respect to an effective date. (See Joint Motion for Stay, filed October 19, 1999.) At a minimum, the two effective dates are awkward. On one hand, NMFS states in the preamble that the 180-day effective date for salmon is needed to give governments, organizations, and citizens across the four states adequate time to assess the consequences of their activities and implement adjustments needed to protect threatened fish and comply with the 4(d) rule. Along these lines, NMFS also announced that it will hold public workshops in the coming months to help people understand and comply with the new rule. A sound argument could be made that this same rationale for a delayed effective date applies equally to the take prohibition on steelhead-NMFS says its hands are tied by its court settlement.

The final 4(d) rule sets forth thirteen programs or activities under which the prohibition on take is not applied.-referred to as "limits" on the take prohibition. In NMFS' view, the limits are justified where the described program or activity is "specifically tailored to minimize impacts on listed threatened salmonids to an extent that makes additional Federal protections unnecessary for conservation of the listed species." NMFS believes that "declining to apply take prohibitions to such programs likely will result in greater conservation gains for a listed ESU than would blanket application of [take] prohibitions, through the program itself and by demonstrating to similarly situated entities that practical and realistic salmonid protection measures exist." NMFS further believes that the limits will also allow it to focus enforcement efforts on activities and programs that do not adequately address the conservation needs of the listed species.

As an example of how the limits operate, one of the thirteen limits addresses the physical diversion of water from a stream or lake. A diverter of water will not be in violation of the 4(d) rule or otherwise subject to liability under the ESA even if his or her diversion actually results in the death or injury to a listed fish so long as: 1) NMFS has agreed in writing that the diversion facility is screened, maintained, and operated in compliance with NMFS' "Juvenile Fish Screen Criteria" (Revised February 16, 1995, with Addendum of May 9, 1996), or in California with "NMFS' Southwest Region Fish Screening Criteria for Anadromous Salmonids, January 1997;" and 2) the diverter allows NMFS access to the diversion facility for purposes of inspection. Similar to an incidental take statement under section 7 of the Act and an incidental take permit under section 10 of the Act, the 4(d) "limits" effectively operate to allow an actor to legally take a listed species.

The thirteen limits set forth in the final rule are the same thirteen limits that were described in the proposed rule, with a few minor changes. While there were a number of requests for NMFS to grant additional limits on the take prohibition, NMFS declined to incorporate any additional limits into the final rule and instead indicated that all additional limits would have to be dealt with in a future amendment to the 4(d) rule. Presumably, NMFS was attempting to avoid any significant modification to the language of the proposed rule that would have required additional public notice prior to final agency action. Otherwise, if NMFS had incorporated new limits, thereby necessitating another round of public notice and comment, NMFS apparently would have been unable to comply with the settlement requiring final agency action by June 19, 2000 for the seven steelhead ESUs.

The final limits are as follows:

• Activities conducted in accordance with an incidental take statement or permit issued under section 7 or section 10 of the ESA. No changes were made to this limit.
• Ongoing scientific research activities, for a period of up to 6 months after the final 4(d) rule becomes effective. No changes were made to this limit.
• Emergency actions related to rescuing or salvaging injured, stranded, or dead salmonids. No changes were made to this limit.
• Fishery management activities, when the activities are specifically tailored to meet certain criteria. To eliminate the need for the added federal protection of a take prohibition for fishery management activities involving hatchery steelhead and resident species fisheries, states are directed to develop Fishery Management and Evaluation Plans (FMEPs), which must be designed to minimize and limit take and promote the conservation of all salmonid life stages. The proposed rule was modified to simplify NMFS' approval of the FMEPs and otherwise clarify the use of population thresholds and the timing of reports describing take.
• Artificial production activities, including the use of listed salmonids as hatchery broodstock, under specific circumstances. To qualify for this limit on the take prohibition, states and federal agencies are directed to develop Hatchery and Genetic Management Plans (HGMPs), which must contain specific management measures that will minimize and limit impacts on listed fish and promote the conservation of the listed ESUs. This limit was modified to simplify NMFS' approval of the HGMPs.
• Activities in compliance with joint tribal/state plans developed within the continuing jurisdiction of United States v. Oregon, which is the ongoing federal court proceeding to enforce and implement reserved treaty fishing rights. No changes were made to this limit.
• Scientific research activities permitted or conducted by the states. This limit was modified to address concerns over the feasibility and adequacy of state fishery agency oversight.
• State, local, and private habitat restoration activities. A "habitat restoration activity" is defined as one "whose primary purpose is to restore natural aquatic or riparian habitat processes or conditions. 'Primary purpose' means the activity would not be undertaken but for its restoration purpose." NMFS does not consider herbicide application or artificial bank stabilization to fit within this definition. However, NMFS specifically identifies several activities, subject to various conditions (such as no in-water work, no sediment runoff to stream, etc.), that may potentially fall within the scope of this limit on the take prohibition. These activities include: riparian zone planting and fencing; off-channel livestock water development; large wood or boulder placement; the correction of road/stream crossings to improve fish passage; and the repair, maintenance, upgrade or decommissioning of roads in danger of failure. In addition to several minor modifications, the limit was modified to clarify that the take prohibition does not apply to habitat restoration activities provided the activity is part of a state Watershed Conservation Plan (WCP) that meets criteria listed in the regulation.
• Properly screened water diversions. According to NMFS, unscreened or improperly screened water diversions can lead to the stranding of juvenile fish in diversion ditches, the impairment of juvenile and adult migration behaviors, the entrainment of juveniles in pumping facilities, and the impingement of fish on screens. The two basic requirements for this limit are described in the example above, and include written screen certification by NMFS and access for inspection purposes. In addition, the proposed rule was modified to allow NMFS to authorize other state agency engineers to review and recommend certification of the screens as being in compliance with NMFS standards. The limit was also modified to allow NMFS, on a case by case basis, to grant this limit to water diversion projects where NMFS has approved a design construction plan and schedule, including interim operation measures to reduce the likelihood of take. Significantly, this limit on the take prohibition does not apply to flows.
• Routine road maintenance activities in Oregon. The take prohibitions do not apply to road maintenance activities (other than herbicide and pesticide spraying, or dust abatement), so long as the activity is covered by and conducted in accordance with the Oregon Department of Transportation's (ODOT) Maintenance System Water Quality and Habitat Guide (June 1999). NMFS emphasized several factors that contributed to its conclusion that the Guide provides adequate safeguards for listed salmonids, including: ongoing and extensive training requirements for ODOT work crews; annual reporting of program implementation; and ongoing coordination with NMFS staff. Significantly, this limit was modified to make it available to any state, county, city, or port, or any employee or agent of those entities, once they have demonstrated in writing that their routine road maintenance activities are equivalent to the ODOT Guide.
• Certain park maintenance activities that are carried out by the City of Portland in accordance with the City of Portland, Oregon, Parks and Recreation Department's Pest Management Program. This limit was modified to address properly functioning conditions, and to clarify how NMFS will address future changes to the program.
• Certain Municipal, Residential, Commercial and Industrial (MRCI) Development and Redevelopment Activities. According to NMFS, "MRCI development (and redevelopment) have a significant potential to degrade habitat and injure or kill salmon and steelhead in a variety of ways." At the same time, NMFS wants to give both local governments and developers assurance that their approvals and actions conserve listed salmonids, without requiring a section 7 or section 10 incidental take authorization for each and every development permit. Thus, in an effort to streamline ESA compliance, the take prohibition is not applied where the MRCI development is governed by and conducted in accordance with local ordinances that NMFS has reviewed and approved. This approach also shifts the burden of developing conservation measures to local jurisdictions, thereby leaving NMFS in the position of reviewer. The final rule specifically makes reference to Portland-area Metro's Urban Growth Management Functional Plan. The Plan outlines what development will be allowed in, and what conditions will be placed on development for, urban reserve lands being brought into the urban growth boundary. With regard to this development, NMFS proposes that if it finds that the Plan is adequate, then the take prohibition will not be applied to development governed by ordinances that Metro has found to be consistent with the Plan. In determining the adequacy of the Plan or local ordinances approved by Metro in accordance with the Plan, the rules focus on 12 specific issues, including: storm water discharge; riparian buffers; stream crossings; stream banks; impacts to wetlands and surrounding vegetation; erosion and sediment runoff during and after construction; water supply demands; monitoring; funding; and enforcement. Significantly, NMFS noted that Metro has not yet submitted its Plan to NMFS for consideration as a limit to the take prohibition, nor has NMFS approved it for that purpose.

  In a document issued by NMFS entitled "Common Myths About the NMFS 4(d) Rules," NMFS makes clear that the 4(d) rule in no way requires a 200-foot streamside buffer. While NMFS indicates that local needs and conditions may require locally tailored buffers, NMFS also states that "[a]s a general guide, ... a distance equal to the height of the tallest tree that can grow on that site (known as the site-potential tree height and often found to approximate 200 feet) is a good starting point for beginning a 4(d) assessment under the urban development limit."

  This urban development limit was modified in a number of ways. First, the final rule clarifies that it applies to development and redevelopment activities undertaken by cities, counties, and regional governments. Second, the 12 considerations were expanded and clarified. Third, NMFS clarified that not all 12 considerations would be relevant to all local ordinances and plans submitted for review and approval. Fourth, the final rule places more emphasis on properly functioning habitat conditions. Fifth, NMFS clarified the public notice and review process for amending and withdrawing limits.

• Certain forest management activities within the State of Washington. The take prohibition will not apply to non-federal forest management activities in the State of Washington that are in compliance with the April 29, 1999 Forests and Fish Report (FFR) to Governor Locke. NMFS identified several specific elements of the FFR that helped to support its conclusion that take prohibitions are not warranted for the conservation of salmonids in Washington, including: the focus on classifying water bodies and making stream typing information widely available; maintaining and upgrading forest roads; protecting unstable slopes; and achieving properly functioning riparian conditions along waterways. This limit was modified to include forest management activities taken pursuant to alternative plans, so long as they are submitted and approved by the authorized Washington state agency.

In the proposed 4(d) rules, NMFS identified three different categories of activities that it believed would injure and kill salmonids, thereby resulting in a violation of the rule unless the activity fell within one of the identified limits or was otherwise authorized pursuant to a completed section 7 consultation (for activities with a federal connection) or an approved section 10 habitat conservation plan (for nonfederal activities). The three categories included (1) activities that were "very likely" to injure or kill salmonids, (2) activities that "may" injure or kill listed salmonids, and (3) activities that, while individually were "unlikely" to injure or kill listed salmonids, may "collectively" cause significant detrimental impacts on salmonids. The third category identified activities such as: individual maintenance of residences and gardens; individual decisions about energy consumption for heating, travel, and other purposes; and discharges to streams that are not listed under the Clean Water Act as water quality limited, and where the discharge is in full compliance with an NPDES permit.

NMFS received intense criticism on the second and third categories, with some arguing the categories were too specific and others arguing that they were too general. In response, NMFS eliminated the three categories and eliminated any reference to individual activities, such as gardening, driving, and energy consumption. Instead, NMFS came up with a single list of 16 activities "which as a general rule may be most likely to result in injury or harm to listed salmonids."

These activities include:

• Constructing or maintaining barriers that eliminate or impede a listed species' access to habitat or ability to migrate.
• Discharging pollutants, such as oil, toxic chemicals, radioactivity, carcinogens, mutagens, teratogens or organic nutrient-laden water including sewage water into a listed species' habitat.
• Removing, poisoning, or contaminating plants, fish, wildlife, or other biota required by the listed species for essential behavioral patterns.
• Removing or altering rocks, soil, gravel, vegetation or other physical structures that are essential to the integrity and function of a listed species' habitat.
• Removing water or otherwise altering streamflow when it significantly impairs essential behavioral patterns.
• Releasing non-indigenous or artificially propagated species into a listed species' habitat or where they may access the habitat of listed species.
• Constructing or operating dams or water diversion structures with inadequate fish screens or fish passage facilities in a listed species' habitat.
• Constructing, maintaining, or using inadequate bridges, roads, or trails on stream banks or unstable hill slopes adjacent to or above a listed species' habitat.
• Conducting timber harvest, grazing, mining, earth-moving, or other operations which result in substantially increased sediment input into streams.
• Conducting land-use activities in riparian areas and areas susceptible to mass wasting and surface erosion, which may disturb soil and increase sediment delivered to streams, such as logging, grazing, farming, and road construction.
• Illegal fishing.
• Various streambed disturbances that may trample eggs or trap adult fish preparing to spawn. The disturbance could be a mechanical disruption caused by constructing push-up dams, removing gravel, mining, or other work in a stream channel. It may also take the form of egg trampling or smothering by livestock in the streambed or by vehicles or equipment being driven across or down the streambed.
• Interstate and foreign commerce dealing in listed salmonids and importing or exporting listed salmonids unless they were harvested pursuant to an ESA permit.
• Altering lands or waters in a manner that promotes unusual concentrations of predators.
• Shoreline and riparian disturbances (whether in the riverine, estuarine, marine, or floodplain environment) that may retard or prevent the development of certain habitat characteristics upon which the fish depend (e.g., removing riparian trees that reduce vital shade and cover, floodplain gravel mining, development, and armoring shorelines which reduces the input of critical spawning substrates, and bulkhead construction that eliminates shallow water rearing areas).
• Filling or isolating side channels, ponds, and intermittent water, which destroys habitat that the fish depend upon for refuge areas during high flows.

Several observations are in order regarding the final rule. First, the rule only applies to the fourteen ESUs identified in the rules. Effects resulting from various activities (including activities that fall within the limits on the take prohibition identified in the rule) on other listed species, such as bull trout, must be addressed through section 7 or section 10 of the ESA, as appropriate. Moreover, activities that are in compliance with the 4(d) rule must still comply with all other state and federal laws and permitting requirements.

Second, just because an activity does not fall within one of the thirteen limits identified in the proposed rules does not mean that the activity is necessarily in violation of the ESA or the 4(d) rule. However, conforming to a limit provides assurances that the activity is not in violation of the take prohibition and will not be subject to enforcement action by NMFS.

Third, there will likely be much confusion and concern during the interim period between the effective date of the take prohibition and the formal approval of a local plan, if for no other reason than there will likely be a backlog of local ordinances and plans awaiting review and approval by NMFS. The best way to avoid enforcement action is to take some immediate action to avoid being an enforcement target. NMFS has said repeatedly that it would prefer to work constructively to find conservation solutions and that it views enforcement action as a last resort. With that said, it is likely that initial enforcement efforts by both NMFS and citizens will concentrate on unscreened diversions, because such actions may require very little effort on the part of NMFS or the citizen-plaintiff. In fact, state law requires the Oregon Department of Fish and Wildlife to keep an inventory listing the priority of diversions in the state in need of screens.

Fourth, NMFS currently lacks the funding and staff to effectively implement the 4(d) rule. While the concept of having local governments develop and submit programs for approval is designed to ease the burden on NMFS' resources, the agency itself admits that it needs more funding to operate effectively. At the NMFS press conference announcing the release of the rule in Portland, Rob Jones with NMFS indicated that the agency would be seeking additional funds from Congress at the next opportunity. In the meantime, the agency specifically requested that local governments bundle their ordinances and programs to help streamline NMFS' review process. Although not yet developed, the same concept could be applied to local governments in need of multiple section 7 consultations within the same watershed.

In two short months, the 4(d) rule will become effective with respect to the seven steelhead ESUs, and then four months later it will become effective as to the seven salmon ESUs. The rule prohibits the take of the species, with certain limits on the take prohibition. For those individuals and entities that can conform their activities to the limits described in the rule, they will have an assurance that their activities are legal under the ESA and not subject to civil or criminal enforcement. For those who cannot conform to the limits or simply choose not to conform to the limits, these individuals will need to move forward under alternate compliance mechanisms or face possible enforcement action by NMFS and the potential of citizen suits. (For background on other ESA compliance mechanisms, see Achterman & Filippi, Insider, #205.) The salmon and steelhead 4(d) rule has tremendous legal ramifications on water users, developers, and business interests throughout the Northwest. Those whose activities may potentially take salmon and steelhead would be well-advised to be proactive now rather than wait for the take prohibitions to become effective.

Published July 1, 2000 in Issue 251 of Oregon Insider, a twice-monthly environmental management and regulatory update.