Lawsuits could follow 4(d) ruling
June 11, 2008 · Updated 10:58 AM
"For the first time, the National Marine Fisheries Service has released a 4(d) ruling that describes types of activities the federal agency might exempt from Endangered Species Act regulations and the criteria it will use to do it. The text of the June 19 ruling, currently being recorded in the national register in Washington, D.C., will be released next week. The 4(d) ruling serves as a sort of prototype for enacting an endangered species listing. The 4(d) rule is the provision that would open the county to third party lawsuits if endangered salmon or habitat is harmed. However, if a county habitat protection plan is approved by the NMFS, it could be protected from those lawsuits.The 4(d) rule sets up the bar. It says, 'Don't harm salmon habitat,' said Kitsap County natural resources coordinator Keith Folkerts. Now, the bar can be lowered if local government proves it can protect salmon habitat on its own.We have to show them how each of our efforts and ordinances meets their standards. We'll have until October to show how our efforts meet their rules.The 4(d) ruling establishes a strict, no-harm status for the county, prohibiting anything which might harm salmon habitat. The county hopes to get to an incidental-harm status, which allows more leeway. Folkerts said the difference between the two is huge.Though the NMFS has the power to apply the 4(d) rule to areas where endangered species live, the agency does not outline specific reparations for any governmental body. It's up to the county to come up with its own salmon habitat restoration plan.Once the NMFS is assured the county has a solid plan to address the listing, the federal agency will get out of Dodge, Folkerts said.NMFS is looking to certify our permitting practices. Once they see the framework of the process through which we permit, they'll leave permitting to the county Department of Community Development.The DCD will check in periodically with the NMFS, which will continue to monitor the number of permits issued.A second exemption in the rule covers existing programs, like routine road maintenance in Oregon and forest practices in Washington, though with some clarification requested by county staff.The county has until October to pull together its response to Monday's ruling and list steps it will take to protect habitat. By December, the NMFS will decide whether the county will meet the incidental-harm standard.Typically, there will be a one- or two-month cooling-off period. The cooling-off period is a six-month period in this case, Folkerts said. Legal prohibitions from harming salmon or habitat will not take effect until December.The ruling is expected to be similar to a draft version released earlier this year in which the NMFS identified 12 areas that would move the county from no-harm to incidental-harm status. County officials asked for clarification on some items in the draft ruling, including whether all 12 must be met or if a combination of several would be sufficient."