Such a strange fish. And such a baffling set of rules protecting it. Onchorynchus mykiss, commonly known as the steelhead, is an odd creature. Technically a trout (which belong to the salmonid family), the steelhead behaves more like a salmon in that it''s anadromous, meaning it hatches in fresh water, swims to the ocean to mature, and returns inland to spawn. Furthermore, unlike most salmon, the steelhead lives to repeat this cycle several times instead of dying after the first spawn.
But its numbers have declined significantly--from tens of thousands locally in the 1960s to hundreds now--and in 1997 the National Marine Fisheries Service (NMFS) declared it threatened.
For the first three years of its threatened listing, the steelhead had no particular set of laws protecting it--just a blanket "no take" rule saying, in effect, not to bother it. As for prohibitions on activities that might result in dead steelhead, such as disturbing its habitat, agency spokesman Brian Gorman says there was nothing in place. "You could literally drive a bulldozer up a stream, and unless there was a local law against it, nothing would happen."
That changed two months ago.
Enter the 4(d) rules, poetically named after the section in the Endangered Species Act that gives specific commandments for protecting threatened species. Released by NMFS in June, these rules protect certain populations of steelhead, coho, chinook, chum and sockeye salmon along the coast and inland. For the steelhead, whose protection is linked to the settlement of a 1998 court case, the rules go into effect on Sept. 8. And they have the power to change forever the way residents, developers, water companies and government agencies do business in the Carmel and Salinas river valleys.
"I think this listing and the 4(d) rules have the potential to be as important as the spotted owl is to forest cutting," says David Dettman, Senior Fisheries Biologist with the Monterey Peninsula Water Management District. "Potentially it''s a big deal, and not just here on the Carmel River. It''s a big deal for anyone who diverts water from streams. It''s a big deal for anyone who makes a mistake and puts a large amount of sediment in a stream."
At the heart of the 4(d) rules protecting the steelhead is the concept of "take." In exhaustive bureaucratese, the rules define "take" as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect." Of these, "harm" is the one that has everyone sweating. Harming a steelhead includes disturbing its habitat. That can mean anything from permitting leachate from septic systems to pollute a stream where steelhead live to allowing dirt from road repair to muddy the clear, deep gravels where the fish spawn to diverting so much water from a river that the fish can''t live in it.
That makes the Carmel River Valley full of potential 4(d) violators, and anyone--individual homeowner, property developer, fly fisher, water company--whose activity may harm the steelhead must apply for a permit from NMFS. If they don''t, and they kill a fish, they risk incurring crippling fines. Just ask CalTrans how serious NMFS is. CalTrans got popped for killing steelhead while building a bridge in Ventura County this summer. The blunder could cost the agency at least $27,000 per violation.
But there''s a plot twist to the 4(d) rules that makes them more exciting reading. After all, applying the "no take" rules to a threatened species and strictly enforcing them essentially affords the animal the same protection as an endangered species--and as Mike Fergus of the NMFS southwest regional office in Long Beach says, "Then what''s the difference between ''threatened'' and ''endangered?''"
So NMFS has created 13 exempt categories of activities. For example, anything that benefits the fish (like propagation programs) is allowed, even if it means having to capture steelhead temporarily. Simple enough. But other categories are eerily ill-defined. "Routine road maintenance," for example, and "certain municipal, residential, commerical and industrial development and redevelopment" are also allowed. Determining what "routine" and "certain" mean in those two phrases will surely keep attorneys busy for a long time to come.
Part of the NMFS''s plan is to get state and local agencies to develop stringent rules of their own so that NMFS doesn''t have to bother with issuing so many individual permits. California State Department of Fish and Game, which issues fishing permits to anglers, is now working to get its fisheries management plan approved by NMFS so that sport fishermen can happily flycast knowing they''re within the parameters of the law.
"We have quite a protective set of rules, but so far it''s not what''s required," says Pat Coulson, a senior biologist working on a fisheries plan for the region stretching from Pajaro River to Santa Maria River. He will have a proposal in to NMFS in January.
Similarly, Monterey Peninsula Water Management District is working to get a regional general permit so it can approve projects like building bridges or repairing stream banks. "The standards for any of these projects will be much higher than they''ve been in the past because of the new rules," Dettman observes.
As for how the new rules might affect California American Water Company, which supplies water to over 100,000 peninsula residents and has already been charged with overdrafting the Carmel River, Dettman says only, "It''s a possibility that there will be further changes to the amount of water that can be taken out of Carmel River Valley."
You tame the rivers, and suddenly it''s not the Wild West anymore.
Molly Nance contributed to this report.