WASHINGTON TROUT RESPONDS TO SALMON 4d RULE

by Ramon Vanden Brulle

On June 20, National Marine Fisheries Service briefed the public on their adoption of a Final 4d Rule for Pacific Salmon, promising to make the details of the Final Rule available within one week. On July 10, nearly 20 days later, the Final Rule was finally published in the Federal Register. While NMFS has formally adopted the Final Rule, its provisions will not take effect until January 2001, six months from the Rule’s publication. Washington Trout continues to express strong opposition to the approach and overall tone NMFS is adopting for this 4d Rule.

NMFS has a responsibility to use the Endangered Species Act to promote the recovery of listed species. The most powerful tools that NMFS has are the take restrictions listed in Section 9a of the ESA. "Take" refers to categories of actions that have been defined as harmful to listed species. It is illegal to "take" a listed species. NMFS claims that this 4d Rule will apply 9a take restrictions to activities that harm salmon, except in 13 areas where the restrictions can be "limited." However, even a cursory examination makes it clear that the 13 "limits" encompass the breadth and sum of the factors that have contributed to the salmon’s decline, including salmon harvest programs, hatcheries, water diversions, road building, urban development, and forest practices!

NMFS will allow regional governments and agencies to submit conservation programs under the 13 categories that can qualify for take exemptions. This deference to state and local agencies and regional economic stakeholders will come at the expense of salmon recovery. When a species is listed under the ESA, it is implicit that the regional agencies charged with the management of that species have failed. NMFS acknowledged that failure in its listing decisions for salmon and steelhead and again in the 4d Rule itself. Yet NMFS is placing the trust and responsibility for salmon and steelhead recovery planning with the same agencies whose management failures caused the species’ decline and resulted in listing. Without applying the full force of the Endangered Species Act, NMFS has no objective reason to believe that those agencies will now begin to fulfill their management responsibilities. In foregoing the 9a take restrictions, NMFS is giving up its most powerful hammer, and failing to meet its legal responsibility to conserve the listed species.

The citizens of the Northwest have a right to believe that species listed under the ESA will receive greater protection than they received before they were listed, that the government will work proactively to recover those species. The approach being taken by NMFS fails that test. Washington’s "Forest and Fish Plan" and NMFS’s criteria for harvest and hatchery programs will not provide greater protection for West Coast salmon. In most cases they preserve the status quo; in many they represent a step backward.

Is the point of the Endangered Species Act to foster and speed the recovery of listed species, or merely to disguise their slide toward extinction? In this 4d Rule, NMFS is clearly opting for the second approach.

In March, WT submitted substantive comments to the Proposed 4d Rule. In their June 20 briefing, NMFS indicated that they had made changes from the Proposed Rule, and they included responses to submitted comments in the July 10 publication of the Final Rule. WT staff is now analyzing the details of the Final Rule and we will keep our members and the general public updated on our analysis. We are particularly concerned with, and plan to focus significant attention on the criteria for Fisheries Management and Evaluation Plans (FMEPs), and Hatchery and Genetic Management Plans (HGMPs), that WDFW and Northwest Treaty Tribes will submit to NMFS for approval to govern harvest and hatchery management programs. In our analysis of the Proposed Rule, we found that the criteria for both the FMEPs and the HGMPs lacked sufficient specificity and rigor to preserve and recover listed species, particularly Puget Sound chinook.

Washington Trout will continue to challenge inadequacies in the 4d Rule by whatever means are appropriate, including court challenges if necessary. For the full text of WT’s March 3, 2000 comments on the Proposed 4d Rule, click here.