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Subjects › Environment › ESA Salmon › Outline of Vancouver's Response to the Listing of the Lower Columbia River Steelhead Salmon on The Endangered Species List
WSAMA Panel on Endangered Species

Outline of Vancouver's Response to the Listing of the Lower Columbia River Steelhead Salmon on The Endangered Species List

Jim McNamara, Assistant City Attorney, City of Vancouver

Outline of presentation on panel Endangered Species Act and Salmon Recovery: How It May Affect Municipalities, Washington State Association of Municipal Attorneys' 1998 Annual Fall Conference, October 7-9, 1998 at Chelan Washington, Legal Notes, Information Bulletin No. 500. [Edited for Web Presentation]

I. OVERVIEW OF THE PROBLEM

Listing of Lower Columbia salmon:

    The NMFS listed the lower Columbia River Steelhead as a protected threatened species on March 13, 1998. Bull trout were listed on June 13, 1998

    There is only one tributary in the City of Vancouver that contains spawning salmon - Burnt Bridge Creek. However, Vancouver is the largest Washington City on the lower Columbia and we foresee that the listing will have a significant impact on Vancouver's and Clark County's public works and development review activities.

    Note: this is the first time a species with urban habitat has been listed in Washington. Vancouver's response is driven by two forces:

    • The requirement to preserve salmon habitat as a mandate of the ESA, and other state law, in particular GMA.
    • Participation in a statewide strategy to protect and restore salmon,( in a sense because it is "the right thing to do")
II. Endangered Species Act Section 9

Section 9 of the ESA makes it unlawful for any person to "take" an endangered or threatened species. A "taking" is defined by FWS regulation to include habitat modification that injures or kills members of an endangered species or significantly impairs essential behavioral patterns, including breeding, feeding or sheltering. 50 CFR § 17.3

Therefore, habitat protection is the key to a city's response to the ESA.

III. THE FOUR 'H's

Four areas of potential response in salmon recovery effort: Harvest (Fish Management), Hatcheries, Hydropower, Habitat Protection

Vancouver's primary focus will be on habitat. Other factors of decline such as hydro-dams, harvesting and hatchery issues will fall under the jurisdiction of the state or federal government.

In the context of habitat, the following factors of decline have been identified:

  • Destruction of natural habitat
  • Logging of trees along the banks of rivers and tributaries
  • Residential development along streams and creeks
  • Removal of native vegetation
  • Soil erosion and sediment disbursement
  • Pollutants
  • Increased water temperature due to decreased shading
  • Culverts that prevent fish passage
  • Overbreeding of wild stocks with hatchery raised stock
  • Sport harvest fishing
  • Commercial fishing
Before, discussing Vancouver's current and planned responses to the ESA, it is important to note that, unlike, the GMA, there are not set guidelines for local governments to follow to comply with the ESA

TO A CERTAIN EXTENT, CAN RELY ON existing law and processes:

  • SEPA
    • Main tool available for assessing and mitigating environmental impacts. SEPA checklist currently includes a requirement to list threatened and endangered species known to be on or near the site
  • GMA
    • Contains a requirement to adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170. (RCW 36.70A.060)
    • Three of the five critical areas are directly related to salmon survival: (a) Wetlands; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas
    • GMA currently provides that "In designating and protecting critical areas . . . counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries" RCW 36.70A.172
    • Comp. Plan shall have a land use element which shall provide for the protection of the quality and quantity of ground water used for public water supplies. "Where applicable, the land use element shall review drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute waters of the state. 36.70A.070 (1)
  • SMA
    • SMA provides a policy basis for addressing salmon habitat issues as a part of a management system for shoreline development. Contains standards such as preservation of natural character; protect shoreline resources and ecology.
    • The local shoreline master program is considered to be an element of the City's GMA comp plan and development regulations and therefore should be consistent with them.
  • Forest Practices Act (RCW 76.09)

    • Under a 1997 amendment to the act, cities and counties are required by December 31, 2001 to adopt and begin administering regulations for forest practices which convert parcels from forest management to development
THAT SAID . . .

IV. WHAT VANCOUVER IS DOING NOW

  • STREAM INVENTORY
    • Collecting baseline data on fish numbers, temperature, turbidity, flow
  • STEP -- Septic Tank Elimination Program -- guaranteed sewer connection fee, subsidized by the City, $600,000/year
  • Low interest loans (3%) to remove septic tanks
  • Erosion control ordinance VMC 14.24
    • Construction access routes
    • Sediment removal from roadways
    • Stabilization of denuded areas
    • Sediment traps
    • Erosion control plans: For subdivisions and for Demolitions
  • Grease trap program - monitoring and technical assistance
  • Catch basin cleaning program
  • Free household hazardous waste elimination
  • Curbside oil recycling
  • Storm drain stenciling
  • Spill response training for the Fire Department
  • Creation of a stormwater utility (authorized via RCW 35.67)
    • Fee based on amount of impervious surface
V. WHAT WE PLAN ON DOING
  • Stormwater Discharge Ordinance
    • Prohibit dumping of waste (oil) into storm-drains
    • Development of a stormwater BMP manual
  • Aquifer Recharge Ordinance to limit incompatible development in aquifer recharge areas
  • Other local options
    • Gravel mining moratorium
      • Clark County has recently imposed a prohibition on mining activities within the 100 year floodplain. This action restricts detrimental channel modification as a result of gravel mining.
    • Land Acquisition and greenway development
    • Wetlands preservation ordinance
    • Stormwater control ordinance
      • Prevent surface and groundwater quality degradation and prevent erosion and sedimentation of creeks, streams, and wetlands
    • Erosion control ordinance
      • Focuses on erosion and sedimentation that results from land disturbing activities which increase the risk of flooding
    • Excavation and grading ordinances
      • This is a regulation currently in place and part of the UBC and sets forth the regulations to control excavation, grading and earth movement construction including fills and embankments, establishes the administrative procedures for issuance of permit
    • Road standards ( fish access and barrier to passage)
  • Other Steps to Take
    • Educate City Council, Planning Commission and Hearings Examiners that this is a coming issue
    • Collect Baseline data on salmon bearing streams in your jurisdiction in order to have a point of reference to determine if an activity will result in a take
    • Review, department by department, what regulations relevant to salmon preservation are on the books, what gaps exist, what needs to be done.
    • Initiate a plan for removal of impediments to migration -- removal/replacement/improvements of culverts

VI. EXPOSURE UNDER THE ESA : Direct Takes and Indirect Takes

Indirect Takes

    Although an agency's regulation or failure to regulate a particular activity may not be the direct or sole cause of injury or death, courts have concluded, in appropriate circumstances, that regulations, or the absence of regulations, can constitute a "taking" as that term is defined by the ESA. This type of take should be of some concern to cities as regulatory agencies. Some examples:
    • Loggerhead Turtle v. Volusa County, 896 F.Supp. 1170 --Florida -- county, by allowing vehicles on the beach was taking the sea turtle; County enjoined from allowing such access)
    • Defenders of Wildlife v. EPA, 882 F.2d 1294 - EPA's registration of strychnine pesticides was taking of black-footed ferret. Ranchers poisoning prairie dogs could accidentally kill ferrets. The EPA was enjoined from continued registration of the pesticide.
    • National Wildlife Foundation v. Hodel 15 Envtl. L. Rep. 20891 (E.D. Cal. 1985). -- Allowing hunting of migratory birds with lead shot violated the ESA. Federal action resulted in taking of bald eagles which fed on wounded waterfowl and ingested lead shot.)
    • Greater Ecosystem Alliance v. Wash. Dept of Fish and Wildlife, (W.D. Wash. 1996) state allowing use of hounds and bait for black bear hunting in grizzly bear recovery zone was a taking of grizzly bear. WDFW paid $12,000 in attorney fees and costs.)
    • Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) (petition for cert. filed March 6, 1998) State of Mass. Liable for incidental take of northern right whales in course of gillnet and lobster pot fishing authorized by the state. State enjoined from allowing such fishing.

A plaintiff may succeed on its claim of a taking if it can show that the agency's regulatory scheme is "reasonably certain" to lead to imminent harm of the endangered species.

VI. CONCLUSION

Prohibition against taking of threatened/endangered salmon will affect cities both in their their own public works activities and in the regulation of private development.

The processes for dealing with the ESA issues are already in place under SEPA and the GMA.

Cities ought to ensure that they have the resources in place to prevent the taking of listed species through

  • Critical area ordinances
  • Erosion control ordinances
  • Education programs.

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