Regulatory Issues Environmental regulatory statues not only help guide decisions related to human use activities in specific applications but the statues themselves have a broader and more significant role in attempting to reflect or capture the value that the public holds in the environment. This section briefly identifies some of the more relevant statutes that come into play in the Cedar River Watershed and then provides a more detailed discussion on the response in the watershed to the recent listing of several species under the Endangered Species Act (ESA). Finally, the section addresses how well the ESA reflects public sentiment about the protection of the environment. The regulatory statues that guide or help inform decisions on how watersheds can and should be used are vast. The regulatory parameters that encompass the Cedar River Watershed use include not only city and county statutes but also broader state and federal mandates. Regulations exist for just about every imaginable parameter in the watershed from road maintenance, land use, and protection of wetlands to minimum in-stream flows, water quality, and tribal fishing rights. Many of the environmental statues relevant to the Cedar River seek to balance human utilitarian uses of the watershed with environmental or ecosystem based needs by restricting uses or actions in certain areas. Examples of this type of statue include the Growth Management Act and local land use ordinances. Land use ordinances can apply to residential and commercial development or to forest management; they recognize the necessity of human use activities for economic purposes but seek to minimize unnecessary impacts to the environment. Statutes such as the State Environmental Policy Act (SEPA) and the National Environmental Policy Act (NEPA) do not restrict uses, but require a disclosure of effects and an evaluation of alternatives of proposed actions that would impact the environment. Other statues convey how use of a natural resource should be decided between different groups, for example Treaty Fishing rights or Water Rights. Still other statutes such as the Shoreline Management Act, Coastal Zone Management Act, Clean Water Act and the Endangered Species Act each convey strong sentiment on how we value the amenities (e.g. water quality, endangered species) that are covered within their preview and how the amenities should be protected. These statutes do not explicitly weigh the benefits and costs of different options, but more or less establish a threshold that must be meet. The Endangered Species Act is often thought to be one of the most rigid statues, in that there is little room for balancing human use activities with protecting the environment. This perception of the Act is largely associated with the Section 7 provisions and in definitions of what constitutes a take of a species under Section 9. Partially in response to Act’s stringent provisions, in 1982 Congress amended the Act to include Section 10. Under Section 10, a non-federal applicant may apply to the Services (National Marine Fisheries Services and Fish and Wildlife Service) for an incidental take permit following the completion and approval of a habitat conservation plan. The plan must identify the impact of such a taking, how impacts will be minimized and avoided, what alternative actions were considered, and why such alternatives cannot be utilized. Following public comment of a draft HCP, the Secretary then makes the determination based on (1) whether the take is incidental; (2) the applicant will, to the maximum extent practical, minimize and mitigate impacts; (3) the applicant will ensure adequate funding for the plan will be provided for; (4) the taking will not appreciable reduce the likelihood of the survival and recovery of the species; (5) and any required measures will be met. This incidental take provision gives the Secretary a far greater amount of latitude in determining what are acceptable plans and how impacts to species are addressed. Depending on how the Services choose to implement these balancing provisions, the Act may adequately protect the species or the Act may become more subject to political pressure. Between 1982 and 1992 ITP’s were applied for. Under the Clinton Administration, requests and approvals for such permits greatly accelerated. The increase was not only in total number of applications but also in the physical size of the area to be covered under the permit. Prior to 1996, most HCP’s covered areas less than 1000 acres, recently a more significant number of plans cover areas up to and beyond 500,000 acres (Plater, Abrams et. al. Environmental Law and Policy, p705). Given the change in character of the permits it is difficult to tell how the balancing provisions are working or well work in the future. Another potential concern with the Section 10 process is the extreme difficulty for citizen lawsuits. The City of Seattle has recently completed an HCP, under Section 10 of the Endangered Species Act, for the Cedar River Watershed and is in the process of implementing the plan. The development, approval and implementation of the plan provides an example of how the stakeholders including the applicant, the public, the scientific community, agencies and the political players interact to establish an acceptable plan. The HCP covers a broad array of activities including; (1) drinking water supply operations; (2) management of Forest Resources; and (3) hydroelectric power generation. The total land area under consideration was over 90,000 acres, with 83 species of concern identified. Since the Services decision to grant an ITP would be a federal action with potential affects on the human environment, the applicant was required to prepare a NEPA review document, the applicant determined an EA was appropriate. The applicant’s proposed actions were also subject to SEPA, and a state EIS needed to be prepared. The proposed HCP and draft EA/EIS was submitted for public review in September 1998. Prior to the development of the proposed HCP, the applicant conducted extensive public involvement to gain input on the various components of the plan. Overall the documentation for the proposed plan was comprehensive and well received by the public and resource agencies. During the public & agency review period, two of the areas most commonly sited as needing more documentation were land practices in the upper watershed and additional details on the timing, frequency and amounts of withdrawls from the Cedar River for M&I water supply. Comments also indicated that the City needed to provide more funding for habitat restoration and mitigation for the Landsburg diversion. The final adopted plan incorporated many of these issues and was then submitted to the services for their approval. The cost of the overall plan, finalized in July 1999, is estimated at $89 million over the next 50 years. The HCP also includes a provision for the establishment of three committees; an anadromous fish committee, an HCP oversight committee and an instream flow committee. Details on the HCP can be found at http://www.cityofseattle.net/util/watershed/cedar/hcp/default.htm. Public and agency comment through the HCP planning process resulted in fairly substantial changes in the plan. It is difficult to tell whether the Services would have granted the incidental take permit without the changes, or how involved the Services were in the review process. It is equally difficult to tell whether the public and agency input to the plan, places enough emphasis on protection of the species and how stringently the Services review this and other plans. It is recognized by many that changes must be made in the ESA, and even questions related to whether the ESA as written adequately protects species. The Section 10 provision provides needed flexibility in the Act, but does it provide too much? The high value held for the environmental in the northwest helps assure that the intent of the ESA is upheld, but it is easy to see the potential abuses of the Section 10 provisions. The Section 10 process puts a tremendous burden on the resource agencies and can be more easily influenced by the Administration and other political pressure. Time will be the best indicator of how effective the Section 10 provision is.