Transcript Lecture #12, Legal Framework for Puget Sound

Ocean/Envir 260
Lecture 12:
Legal Framework for Puget
Sound Conservation:
Constitutional and Federal Law
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Ocean/ENVIR 260 Autumn 2010
Lecture 12
© 2010 University of Washington
Federalism
The powers delegated by the
proposed Constitution are
few and defined. Those
which are to remain in the
State governments are
numerous and indefinite.
--James Madison, The Federalist Papers
(quoted by Chief Justice William
Rehnquist, U.S. vs. Lopez, 1995)
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Federal Powers
• Management of federal
lands
• Interstate commerce
• Treaty-making
• Bill of Rights
– Limits on all government
powers: federal, state,
and local
Preamble to U.S. Constitution
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Federal Lands
• Owned by entire nation
– National Parks/
Recreation Areas
– National Forests/
Wilderness Areas
– Wildlife Refuges
– Department of Defense
• Can limit ability to commit or
even to participate in regional
processes
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The federal government owns 40%
of the Puget Sound ecosystem,
predominantly forest and park lands
(green in map).
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© 2010 University of Washington
Interstate Commerce
• Authority for:
Regulatory
authority of
federal agencies
generally
depends on
interstate
commerce
– Endangered Species Act
– Clean Water Act
– Many less prominent laws:
• Hazardous Waste Clean-Up and
Management (CERCLA, RCRA)
• Coastal, Fisheries Management
• Noxious Weeds, Aquatic
“Nuisances”
• Marine Mammal Protection
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Endangered Species Act
“Undeniably the most
innovative, wide-reaching,
and successful environmental
law enacted within the past
quarter century.”
Chinook salmon vs. spotted
owl under the ESA: a
counter-argument to Babbit?
--Bruce Babbit, Secretary of the
Interior, 1993
• True for both federal and
non-federal lands?
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ESA Listings
• Must pass three tests:
1. Identify group to be evaluated
• Species, subspecies, “distinct
population segment”
2. Identify risk of extinction
• Can be for “significant portion of [a
species’] range”
3. Evaluate adequacy of existing
conservation efforts
– All matters of judgment
– Petitions, lawsuits, budgets affect
Boundaries of “Evolutionarily
Significant Unit”, Puget
Sound Chinook salmon
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Endangered Species Act
• Federal requirements:
– Protection when listing is
proposed
– All agency actions must not
“jeapordize” species
• Key to owl protections
– Management of national forests,
parks
• Also covers federal spending,
permits
Wetland restoration in West Seattle,
which required federal permits
– More significant for salmon:
– Wetland, shoreline permits
– Floodplain, pesticide regulations
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Endangered Species Act
• Universal requirements
– Bind non-federal and federal
– No “take” of listed species
• Includes “significant habitat
modification…[that] actually kills
or injures wildlife”
– Difficult to apply to land use
• Where “take” results from
cumulative effects
– Example: No lawsuits filed on local
land use issues for salmon
Degraded stream and buffer:
no liability for effects on
salmon under ESA?
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Endangered Species Act
• Salmon: “4 H’s” fare
differently
– Harvest restrictions
• But treaties with Canada and
tribes support some harvest,
are co-equal responsibility
– Hatchery reforms
• Easy to document “take”
– Hydro licensing
– Habitat
• Least progress, yet most
important in Puget Sound
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Potential legal liability has been key to
reforms in hatchery operations (above)
and harvest management
© 2010 University of Washington
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Clean Water Act
Quotes from introduction:
• “The objective of the Clean Water Act is to
restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.”
• “It is the policy of the Congress to recognize,
preserve, and protect the primary responsibilities
and rights of States to prevent, reduce, and
eliminate pollution, to plan the development and
use (including restoration, preservation and
enhancement) of land and water resources…”
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Clean Water Act
• Responsibilities delegated
to states:
– Administer permits
– Monitor and evaluate water
quality
– Develop and support cleanup plans (TMDLs)
– Certify federal permits
• Dam relicensing, wetlands
The State Department of Ecology
is directly administers most
aspects of Clean Water Act
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Clean Water Act
• Progress on “point” sources
• Struggling on “non-point”
– 1987: defined stormwater
programs as “point sources”
– 2007-2012: latest permits
• Virtually all cities and all counties
in Puget Sound now included
• Fight over requiring “low impact
development”
Permits for local stormwater programs
require adoption of State manual or
“equivalent” standards
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Treaties
• Historical basis for federal
wildlife regulations
– Migratory Bird Treaty
– Early versions of ESA
• Crucial to Puget Sound
salmon
– Pacific Salmon Treaty
(Canada)
– Treaties with Indian tribes
Snow geese in Skagit Valley:
Protected under Migratory Bird Treaty
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Salmon management:
Harvest
• Pacific Salmon Treaty
– Interdependence with
Canada
• Canadian fish caught in AK
• WA, OR, CA fish caught off
BC (esp west Vancouver Is)
– Amended in 2009 to
address “depressed” stocks
The large majority of harvest of Puget
Sound salmon occurs in Canadian
waters
– Still general goal: “maximum sustained yield”
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Pacific Salmon Treaty:
Challenges
• Most harvest in “mixed
stock” fisheries
– Can’t know where fish is from
– “Depressed” stocks mixed
with healthy ones
• Difficult to predict run sizes
– How to know maximum yield?
• “Terminal” fisheries better?
– Taste worse?
– If wait to catch, few fish left
Native American fishing weir; tribal
fishermen could know which stock
they were fishing
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Tribal Treaties
• “The right of taking fish…is
secured to said Indians, in
common with all citizens of the
Territory.”
– Treaty language
• “By dictionary definition and as
intended and used in the Indian
treaties…‘in common with’ means
sharing equally the opportunity to
take fish…”
Judge George Boldt, author
of key decision
– U.S. v. Washington, 1974
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Tribal Treaties
• Tribal rights: river flows (yes);
habitat protection and
restoration (yes?)
– “The most fundamental
prerequisite to exercising the
right to take fish is the existence
of the fish to be taken.”
– “Culvert case” decided in
principle for tribes
Washington DOT culvert blocking
fish passage on Terrell Creek,
near Birch Bay
• Decision on remedy is imminent
• Potentially profound implications
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Bill of Rights
• Amendments to Constitution
• Most important for
environmental issues:
– 5th: Property rights
– 10th: Federal directives to
states, local government
– 14th: Due process
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Property Rights
Government must be established
and laws provided, before lands
can be separately appropriated,
and their owner protected in his
possession. Till then, the property
is in the body of the nation, and
they, or their chief as trustee, must
grant them to individuals, and
determine the conditions of the
grant. [emphasis added]
– Thomas Jefferson
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Property Rights
Private property therefore is
a creature of society, and is
subject to the calls of that
society, whenever its
necessities shall require it,
even to its last farthing…
– Benjamin Franklin
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State Government
• Most important level of
government for Puget
Sound ecosystem
–
–
–
–
–
–
Framework for land use
Water rights
Implements most of CWA
Fish and wildlife regulations
Manages state lands
Broad “police power” to
serve public interest
State Capitol: The legislature is the most
important decision-maker for land and water,
the keys to the Puget Sound ecosystem
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Recap: Constitutional
and Federal Law
• Federal powers defined by Constitution
• Interstate commerce basis for federal regulation
• ESA, CWA generally two most important laws
• Treaties with Canada, tribes, crucial for salmon
• Bill of Rights limits all government powers
• State government most important for Puget
Sound?
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Ocean/ENVIR 260 Autumn 2010
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© 2010 University of Washington