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    Building/Industrial Council    Statewide Planning Goals    Metro Urban Growth Plan    Glossary of Terms and Acronyms

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In December 1999 and January 2000, the NMFS (National Marine Fisheries Service) issued proposed 4(d) rules to protect 14 species of salmon and steelhead listed as threatened under the federal Endangered Species Act (ESA). Following a legal settlement between NMFS and several conservation and fishing groups, NMFS has agreed to issue final 4(d) rules by June 19, 2000. These rules affect the Columbia and Willamette River Systems.

On a parallel path at the local level, Metro is proceeding with proposed rules which they say are required to respond to Statewide Planning Goal #5 (preservation of natural resources including wildlife habitat) and NMFS 4(d) . Their program is being called Streamside CPR (Conservation Preservation Restoration).

What is the 4(d) Rule; (ESA Section 4) The protective rule promulgated by the lead federal agency at the time it makes a final decision to list a species as threatened. This rule is developed only for single species at a time. The content of a 4(d) rule may be a restatement of section 9(a) prohibitions on TAKE of a species, but also may specify activities which have been determined to be adequately regulated and therefore can be given legal coverage for the incidental take of the listed species...

The proposed NMFS 4(d) rules prohibit a "take" of the listed threatened species. If an activity results in a "take" the initiator is subject to civil and criminal penalties as well as citizen suits as set forth in section 11 of the ESA. The rules provide certain "safe harbors" which are activities that are approved by NMFS as limiting impacts on the listed salmonids. One of the proposed "safe harbors" supposedly already approved by NMFS is Metro's Functional Plan for Urban Development including the proposed Streamside CPR Program.

Many coalitions have formed throughout the 4 western states which are affected by the NMFS 4(d) rules to provide testimony that the rules in their current form are not based on sound scientific evidence. That they go beyond the intent of the ESA, that they encourage local jurisdictions to develop programs that go beyond eliminating "take", that NMFS has violated several federal mandates regarding Environmental Impact Statements, the Regulatory Flexibility Act, Executive Order 12866, etc.

Locally, two coalitions have been quite active--one which CREEC has joined, the Central Portland Riparian Committee (CPRC); and a group led by the Oregon Building Industry Association (statewide homebuilders). These two groups have both provided testimony on 4(d) consistent with the above mentioned issues and have added that having Metro's Functional Plan sanctioned as a safe harbor is premature and inconsistent with the intent of ESA. The two groups are taking slightly different approaches to the next steps in the process.

The CPRC has proposed both a local (Metro) and a federal (NMFS) strategy that is currently under consideration by the parties involved. Bob Durgan is representing CREEC and AGC in this process.

AGC must support having land on which to construct buildings and roads. The committee recommends AGC join with APP, NAIOP, BOMA, CREEC, CCC, and the Westside Economic Coalition in the CPRC to refute the current Metro staff positions by funding a scientific study which we need to get into the public record in the next two months. This may allow us to get the regulation rewritten correctly. If not, it will give us much of the information we will need to litigate next year should we not win in this round.

AGC needs to provide $100,000.00, $25,000.00 out of the AGC Chapter funds. The committee and others will work to raise the balance.

The B/I and H/H/U Councils should consider creating a subcommittee of 3-7 members to work with Bob Durgan to get more members involved directly with Metro and other land use issues.

AGC should continue to lobby the Oregon and SW Washington federal delegation about the negative affects of NMFS 4(d) on our members And clients, and try to have them exert influence consistent with the CPRC national strategy.

AGC should continue to monitor activities of the OBIA group which is moving forward with a litigation strategy at the Federal level.

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