National Marine Fisheries Service
4 D Rules and Comments from members of the CRWC.
Some one liners of the 4 D Rules
The 4D rules are an ESA mechanism for protecting threatened as opposed to endangered species. They propose a means by which states,tribes, government entities, developers,private citizens & others can obtain assurances that activities they authorize or conduct are permissible under the Act. There are 3 proposed rules and only the one covering steelhead concerns us.
The Steelhead 4 D rule would apply the "Take" prohibitions to all of our actions. 13 entities on the west coast that have what is described as a "Limit" will not be subject to the take prohibitions. As of September 1998 there were 243 incidental take permits & 200 Habitat Conservation Plans (HPC's) in various stages of development. MPWMD, Cal-Am and certain other CV stakeholders are already negotiating their own section 10 take permits and/or HPC's If this matter is of concern to those above surely it follows that we should be also concerned!
For threatened species there are nine "Take" prohibitions. Take is defined as harass, harm,pursue, hunt,shoot,wound ,kill, trap, capture, or collect or attempt any such conduct. What leads to "Take". Destroying or altering the habitat of listed salmonids. Removing large woody debris I.e.. moving fallen trees . riparian canopy, dredging, discharge fill material (dumping), draining, ditching, road construction, bridges, culverts and so on & so on. Violating fed or state clean water act discharge permits, applying pesticides. Diverting water through an unscreened or inadequately screened diversions when juvenile salmonids are present. Physically disturbing or blocking the streambed where spawners or redds are present. Blocking fish passages thru fills, dams or impassable culverts. You get the picture!!
If you will recall we talked about the "hammer" that was bringing us together. This is it! The 4 D rules committee having read through these Federal Register 28+ pages of rules concluded:
There is little that one can challenge NMFS on as it relates to the above but there is plenty of opportunity to educate all stakeholders and particularly riparian property owners of the need to be aware of the prohibitions. CDFG has a considerable amount of control over the state of play with their Fishery Management Evaluation Plan (FMEP).
Public opinion at the hearing on Feb. 2 was that NMFS & US Wildlife were not doing enough to protect the threatened species. Few spoke about the financial burden on property owners & users. NMFS appears prepared to negotiate HCP's and Section 10 take authorities which will permit some take but within the overall umbrella of a watershed group and its peer pressure on those who might become involved in a prohibition. These section 10 permits do not authorize " kill" but permit restoration work, fish rescues & other work within strict controls & limits.
In my opinion the CRWC needs to consider whatever comments may dissuade NMFS from taking a hands off posture as a result of public outcry that not enough is being done to protect the threatened species.
1. Recognize the need to make the permit application process easier. They say it may take 3 + years to get a HPC in place.
2. To recognize in a speedy manner any grassroots efforts to police ourselves.
3. Recognize that not one size fits all. Acknowledged the validity of the Regulatory Flexibility Act, arrange for a Initial Regulatory Flexibility Analysis that would provide financial relief in implementing the provisions of the ESA 4D rules if there is undue hardship.
4. NMFS says as there is no need for record keeping there is no need for regulatory relief.
5. Anyone who is undertaking work instream would in my opinion be wise to record all events & action (photograph records). Any temporary stream diversion would require rescue of juveniles to a safe location while work is in process. This applies I would think to Redlegged frogs.
6. Although MPWMD may be in a position to advise owners on streambank restoration and any other in stream work grant money is available to help. It can be obtained more easily through a properly structured watershed council that has a HPC in place.
7. Not only comments to NMFS from the council but from individuals too.
8. There is the technical aspect of control of events to be commented on also. Carmel river & tributaries can & will dry up through drought years. This also occurs when overpumping and diversions occur. There is nothing in the 4D rules that takes natural occurrences into consideration, such as escarpments falling into the river and causing diversions changes in water courses, flood etc. The rules talk about what constitutes a take. No clarity on the cause. How does one establish the status quo without mapping & photography of the sites. These are the primary concerns I have. Kallie, seems to imply that we are dealing with a benevolent caretaker. All I can say is that if I was a property owner I would be concerned at the open endedness of these rules and would seek clarification of my concerns to be incorporated in the final rules.
9. I do not accept the notion that we should be unconcerned because of governments inability or failure to enforce the laws. We have come together because of our appreciation of the Carmel Watershed and our desire to preserve or restore the river & habitat. We must believe that it is our intention to do all we can to achieve this. Obtaining clarity of the ground rules by commenting on some or all of the above is just plain good business sense.
10. There are real differences of opinion on the meaning of "restore & restoration". Bearing in mind that NMFS & USWL think in terms of restore it might have made more sense to ask them for their definition. The Webster Encyclopedic Unabridged Dictionary of the English Language (I hasten to add a US publication), among other definitions shows "to bring back to a state of health, soundness or vigor".
Clive R. Sanders
Chair 4D Rules Committee
February 8 2000
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