Salmon on the Brink: the Imperative of Integrating Environmental Standards and Review on an Ecosystem Scale

• Publication year: 2000
• Citation: Vol. 23 No. 03

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 4SPRING 2000

Salmon on the Brink: The Imperative of Integrating Environmental Standards and Review on an Ecosystem Scale

Dianne K. Conway Daniel S. Evans(fn*)

I. Introduction

From a fish perspective, aquatic health under the ESA and clean water under the Clean Water Act should be the same thing, and if they're not, something's wrong.

Will Stelle, Regional Administrator National Marine Fisheries Service(fn1)

"Salmon Slip from Bounty to Brink." So exclaimed the massive headline on the front page of the Seattle Post-Intelligencer on March 3, 1998. Of course, salmon in the Pacific Northwest have been on the brink for decades. As early as 1937 Congress expressed concern about the Columbia River's salmon runs.(fn2) By 1978 the National Marine Fisheries Service was considering listing Snake River salmon populations under the Endangered Species Act,(fn3) a threat the agency finally followed through on fourteen years later.(fn4) But on February 26, 1998, the National Marine Fisheries Service announced the unprecedented proposed listings under the Endangered Species Act of thirteen salmon and steelhead populations in Washington, Oregon, and California.(fn5) On March 24, 1999, nine of these species, including the Puget Sound Chinook, were formally listed;(fn6) the remainder are expected to be listed in the near future.

The Endangered Species Act listings radically changed the world for decision makers and environmental managers in the Pacific Northwest. Although other fish have been listed in the past-most infamously, the snail darter(fn7)-the migratory nature of salmon and steel-head species implicates a far greater range of habitat than virtually any other species. Encompassed within this range are dozens of land and water uses that present potential threats to the species' survival.(fn8) The listing of the Puget Sound Chinook is also the first major Endangered Species Act listing in a heavily urbanized region, and it could have a potentially crippling effect on the regional economy and the ability to sustain important public services, from water withdrawals for irrigation to road construction and maintenance.(fn9) In short, billions of dollars of investment and the livelihoods of hundreds of thousands are at stake.

Despite the consequences of the listings, ignoring the plight of the salmon and steelhead runs is not an option. First of all, it is not legally possible. More importantly, there is broad public support for an aggressive campaign to restore salmon runs. While "eat an owl, save a logger" bumper stickers were popular in Western Washington during the early 1990s,(fn10) there is an entirely different view toward salmon in the Pacific Northwest. Salmon, like the recovering bald eagle, are at the top of the list of "charismatic megafauna."(fn11) For millennia, salmon formed the cornerstone of tribal culture and economies and retain a high status as a regional icon and symbol of the quality of life in the Pacific Northwest. As the title of the Washington governor's salmon plan notes, "extinction is not an option."(fn12)

The salmon and steelhead listings come a quarter century after the enactment of federal legislation that pledged to protect aquatic systems. Obviously, the legislation has not succeeded. As the Pacific Northwest and policymakers struggle to address the ramifications of the new listings, "watershed management" has come to the forefront as the modern, more effective, paradigm for aquatic ecosystem protection. The watershed management approach, a subset of ecosystem management that uses scientific evaluation of watershed dynamics and limitations to establish watershed specific standards and prioritize restorative actions, has generated much enthusiasm during the past decade amongst scientists, academics, and federal and state pollution control agencies.(fn13) Today, both the federal government and Washington have adopted-on paper, at least-watershed management as the preferred methodology for implementing water and aquatic species protection programs.(fn14)

A watershed, or ecosystem, focused approach to pollution control may very well lead to more comprehensive and efficient pollution management. However, management on a watershed scale must operate within the boundaries created by the same legislation that has thus far failed to prevent the precipitous decline of many aquatic ecosystems and species. The environmental statutes primarily responsible for creating and protecting healthy, freshwater ecosystems-namely, the Clean Water Act(fn15) and Endangered Species Act(fn16)-were written in an era when the comprehensive, broad-scale approach to pollution control envisioned by the ecosystem management approach was not part of the legislative discourse. More significantly, for two decades federal agencies focused their statutory and regulatory sights on small pieces of the environment, such as a point source discharge or an isolated population, rather than overall ecosystem health or multispecies habitat requirements.

Now, more than twenty-five years after the enactment of these landmark environmental statutes, results are mild. Great progress has been made in some areas, such as reducing point-source discharges from industries and municipal wastewater treatment plants.(fn17) In fact, we are getting to the point of diminishing returns in regulating many point sources: it will become increasingly-and prohibitively-expensive to squeeze additional reductions out of current and future point-source discharges. The current challenge in meeting the Clean Water Act's call for fishable, swimmable waters is nonpoint-source pollution from agricultural runoff, leaking septic systems, construction, parking lots, and streets. The 1998 Washington water quality assessment, for instance, found that agriculture was responsible for fifty-seven percent of the water pollution in the state.(fn18) Although there are well-established solutions for containing many nonpoint sources, imposing such controls is often a greater political and financial challenge than requiring point source controls. Similarly, as more and more species are listed as threatened or endangered under the Endangered Species Act, it is apparent that the narrowly-focused, species-by-species approach, applied only when at the verge of extirpation or extinction of a population, is an ineffective and inefficient way to address the problem of declining biological diversity.

Efforts to develop more cost-effective and politically acceptable management plans for the recovery of threatened salmon populations and improve the health of aquatic systems require a shift to environmental management on an ecosystem or whole-watershed scale. If ecosystem management is to succeed, however, standards, policies, and review under the environmental statutes must be applied uniformly and consistently. Although the agencies that implement the Clean Water Act and Endangered Species Act focus on providing healthy conditions for cold-water fish, currently there are no common fish-based standards or policies, and review processes for the two acts are entirely inconsistent. Predictably, this lack of coordination increases both the costs of compliance and frustration on the part of those trying to comply.

This Article examines the interplay between the Clean Water Act and Endangered Species Act, the necessity of applying these statutes under an ecosystem or watershed based model, and the need to coordinate and integrate standards and review processes under the acts. The concept of watershed management is summarized in Part II, and Part III gives a brief overview of the two statutes and their implementation. Part IV focuses on the opportunities for, and necessity of, streamlining and integrating the standards and review under the two statutes to support the integrated, place-based, management model envisioned by a watershed approach. We conclude in Part V that a change in the historical approach to environmental management is essential if we are to take the next big step forward in environmental health.

II. What Is Watershed Management?

A watershed-also known as a drainage basin-is the area in which "all water, sediments, and dissolved materials flow or drain from the land into a common river, lake, ocean, or other body of water."(fn19) It includes both the water resource(s) and the land from which the water drains. Watersheds vary greatly in size, from a few acres for some small streams, to the one million-square-mile watershed of the Mississippi River, which itself is made up of thousands of smaller watersheds.(fn20) Predictably, watersheds often cross multiple jurisdictional and geographic boundaries. The watershed for the Columbia River, for instance, is spread over two nations, five states, two EPA administrative regions, and the jurisdictions of numerous local governments.(fn21)

Watershed management is premised on the notion that the quality of rivers, streams, wetlands, and other water sources is directly related to the quality of the environment surrounding these waters, which in turn depends in part on the effluents discharged into the area's waterbodies. A watershed focused approach to water protection considers the whole system, including other resource management programs, which address land, air, and water, when developing solutions to the problems of a given water resource. A...