NMFS announces 4(d) salmon rules

"The 4(d) rule sounds like such a technical thing.But the line in the federal Endangered Species Act sets the ground rules for local development after a species is listed as endangered – in other words, it says what developers can and can’t do and for what activists can and can’t sue.On Monday, the National Marine Fisheries Service published its draft of the Northwest 4(d) rule for 14 kinds of salmon and steelhead. Included in those are two that impact the Kitsap Peninsula and Central Kitsap in particular: Hood Canal summer chum and Puget Sound chinook.The largest historic runs of Hood Canal summer chum in Kitsap are in the the Chico Creek watershed and the Big Beef Creek watershed. The NMFS 4(d) rule does two things: it establishes that “take,” or any activity harming a threatened species, violates the Endangered Species Act; and it lays out specific exemptions to that rule. Those exemptions are precisely what local governments have lobbied for since the March 1998 listing. Exemptions to the 4(d) rule protects pre-specified actions (government or individual) from being sued for “taking” salmon. The draft version of the 4(d) rule, which has a placeholder spot for local government exemptions, will be codified on June 19. The local government exemptions should be made public in the upcoming weeks.“What that means is on June 19, unless an action undertaken by an individual or government is specifically exempted, that action, if it harms fish habitat, could mean liability for violating ESA,” said Kitsap County Natural Resources Director Keith Folkerts.The 4(d) draft lays out broad categories of actions covered by limits to the ESA, including permitted research, artificial propagation programs, habitat restoration under watershed plans and properly screened water divisions, among other things.Currently, the federal government is the only level of government seeing development restrictions at the hands of the ESA itself. “Right now, any activity that has either federal funding or federal permits or is undertaken by a federal entity has to go through a biological review to see if the action either further degrades habitat or harms fish,” Folkerts explained. “That’s the only thing that is currently in effect.“Next summer (with the final 4 (d) rule), that sort of requirement will come to town – to the locals, there will be teeth in the ESA.”"

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