February 2000
Contact: Tim Smith, Legislative Liaison (360) 902-2223

Situation

In just over two years, 12 species of wild salmon and steelhead– as well as Columbia River and coastal-Puget Sound bull trout– have been listed by the federal government as endangered or threatened under the Endangered Species Act (ESA).

As part of the protection-listing process, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service are writing rules to define which activities or impacts will be prohibited as a "taking" of those species under section 4(d) of the ESA. It is expected that the proposed 4(d)rules will be issued in the second year of this biennium.

The 4(d) rules, which will affect the Puget Sound and Columbia River basins and surrounding watersheds, will have a dramatic impact on the activities of individual citizens and businesses, as well as on the Washington Department of Fish and Wildlife (WDFW). Recent case law suggests that state agencies such as WDFW can be found in violation of the rules if they permit or inadequately regulate third-party activities considered damaging to the protected species.

Besides other complexities, portions of the 4(d) rules that address tribal resource management could affect the relationship of the state and tribes as natural resource managers, a relationship that has been developed through years of government-to-government actions and federal court mandates.

Problem

On-going legal review and comment on the proposed 4(d) rules is crucial in crafting provisions that will minimize the liability of state agencies, while also maintaining service and facilitating the preservation and recovery of threatened and endangered fish species. The proposed rules envision a complex, continuing relationship between state and federal agencies responsible for ESA administration. The rules also propose continuous monitoring and evaluation of state laws, rules and programs to make sure species are receiving needed protected.

WDFW will need additional legal advice from the Office of the Attorney General to ensure that WDFW activities and operations conform to the new rules– and to prosecute and defend legal actions that are expected to arise as a result of the new requirements.

A full-time attorney is needed to address issues and litigation pertaining to the federal ESA protection listings. However, current staffing levels at the Office of the Attorney General cannot meet this new workload.

Without adequate legal representation, WDFW will be unable to effectively advocate for the interests of state citizens in the development of 4(d) rules regarding harvest, hatcheries, habitat and hydropower activities. Further, the Attorney General's Office will be unable to effectively represent WDFW in impending negotiations and litigation concerning the application of ESA provisions to treaty fishing rights and the law's effect on the court-ordered sharing of resources between treaty and non-treaty fishers

Proposal

Gov. Gary Locke has requested $150,000 in his supplemental budget recommendation to fund an additional attorney position devoted to ESA-related legal issues in the Office of the Attorney General. By funding this position, the state will improve efforts to achieve a carefully crafted 4(d) rule that minimizes adverse consequences for citizens, businesses and industries, while contributing to the recovery of listed species.

Return to Legislature 2000