AN AQUATIC SAFE HARBOR PROGRAM FOR THE UPPER ETOWAH RIVER Amanda Baxter Douglas Parsons Alison Van Lear for the The Etowah Initiative School of Law • Institute of Ecology• School of Environmental Design Spring 1999 UNIVERSITY OF GEORGIA, ATHENS, GA 30602 706-542-3948 [email protected] 1 Contents INTRODUCTION ............................................................................................................2 What is the Safe Harbor Program? ....................................................................................2 Our Manual’s Mission ......................................................................................................2 A Troubling Example ........................................................................................................2 HISTORY OF THE ETOWAH WATERSHED..................................................................4 Status of the Aquatic Fauna ...............................................................................................5 Fish fauna of the Etowah River .........................................................................................5 Etowah Darter (Etheostoma etowahae) .............................................................................5 Cherokee darter (Etheostoma scotti) .................................................................................6 THE ENDANGERED SPECIES ACT ................................................................................7 A. Overview .....................................................................................................................7 B. Evaluation.....................................................................................................................8 C. The “Carrot” ................................................................................................................8 OPINIONS ON SAFE HARBORS ..................................................................................13 RECOMMENDATIONS FOR BASELINE REQUIREMENTS ........................................15 Riparian Buffers ..............................................................................................................15 Sediment .........................................................................................................................15 Phosphorous ...................................................................................................................16 Specific Buffer Requirements ..........................................................................................16 CONSERVATION EASEMENTS ....................................................................................18 What is an Easement? .....................................................................................................18 Financial Benefits of Entering into an Agreement ............................................................18 Land Trust.......................................................................................................................19 MODEL CONSERVATION EASEMENT .......................................................................20 CONTACTS ...................................................................................................................31 REFERENCES ................................................................................................................32 2 INTRODUCTION “Conservation is a state of harmony between Fisheries Service, the Safe Harbor Program might men and land.” – Aldo Leopold, A Sand County possibly be the best approach to endangered Almanac species protection to date. Already, many private landowners are participating in Safe Harbor Programs across the country. The Fish and When many people think of Federal environ- Wildlife Service, however, has yet to implement a mental statutes, the Endangered Species Act is the Safe Harbor in an aquatic environment as we are first to come to mind. This visibility is both good proposing here. and bad. Protecting animal and plant species from extinction garners a lot of public support. However, implementation of the Endangered Our Manual’s Mission Species Act also creates controversy and public outrage. Many feel the Endangered Species Act This Manual will explain the basics of the pits the rights of private landowners against Safe Harbor Program as well as develop recom- endangered species protection. mendations for its implementation in an aquatic environment; specifically the Etowah Watershed Whether this is an accurate portrayal of in northern Georgia. The Etowah Watershed, federal species protection is not the point. The with its rich yet vulnerable aquatic diversity, is a point is that tension between the federal govern- prime area to implement Safe Harbor. ment and the public hurts endangered species. The U.S. Government recently implemented a Finally, the Manual contains a sample Safe new Endangered Species Act program – The Safe Harbor agreement as well as a more traditional Harbor Program — designed to bridge the gap approach to habitat protection: a conservation between federal species protection and private easement. We believe a combination of these two landowner rights, and hopefully improve endan- conservation tools is the best method to protect gered species protection in the United States. endangered species habitat. What is the Safe Harbor Program? A Troubling Example Safe Harbor is a federal program in which The Safe Harbor Program is designed to private landowners agree to maintain habitat avoid the harsh results of the Endangered Species beneficial to federally listed species with the Act that angers so many private landowners. The assurance by the U.S. government that future land following summary of recent news articles uses will not be restricted above those mandated describes the listing of salmon populations as by the agreement. The Program’s goal is to create federally endangered or threatened species. It more habitat for threatened or endangered species should impress any landowner previously doubt- while providing landowners with the assurance ful of the federal government’s power under the that future restrictions will not be imposed on Endangered Species Act. their land uses. This Program is totally voluntary. However, SALMON LISTINGS WILL AFFECT ALL IN participation creates two important benefits for WASHINGTON AND OREGON private landowners. First, landowners will receive valuable information on ways to protect the habitat of endangered or threatened species. SEATTLE – The Federal Government in Second, they receive “safe harbor” from the March of this year extended protective status to possible regulatory “bite” of the Endangered salmon in the Pacific Northwest. For the first Species Act. time federal regulations will affect neighborhoods and private activities as simple as car washing and Under the direction of the Fish and Wildlife fertilizing the lawn. Service and its counterpart, the National Marine 3 Under the Endangered Species Act, the Examples of possible regulations include: National Marine Fisheries Service (NMFS) listed • Restrictions on new construction, especially nine salmon populations mostly located in near streams and other waterways. Oregon and Washington as threatened or endan- gered.1 These listings represent the largest • Water rationing of outdoor and indoor use implementation of the Endangered Species Act during summer months. since its enactment 26 years ago. The action will Other effects due to the restoration of the cover all major rivers in the Northwest implicat- salmon populations may include: ing almost all the area’s watersheds. • Higher taxes in order to clean waterways and Further, these Endangered Species’ listings are buy land crucial to watersheds. the first to include a major urban area. The area • Increase cost of public services like electricity, covers the Willamette Valley of Oregon, the heart sewer, and water. of that state’s agricultural industry, and the The vastness of the possible impacts from Southern Puget Sound including Seattle. This these listings leaves communities wondering what area is home to two-thirds of all Washington and could they have been done to avoid the drastic Oregon citizens. measures that appear so imminent. A change in The NMFS believes that a degradation of attitude toward habitat conservation may have freshwater habitat and urbanization contributed been the only positive step to save the Northwest to the decline of the salmon populations. from federal regulations. Communities in both A feature of the NMFS action is the proposal Washington and Oregon are hoping that this for critical habitat designation for the salmon as change is not too late for them.2 allowed by the Endangered Species Act. How- ever, the NMFS extended its deadline for com- pleting the habitat designation for another year. Designation of critical habitat would create a 1 63 Fed. Reg. 11482 (March 9, 1998). focused area for conservation regulations aimed at 2 The previous information was compiled Federal and private activities, and may even result from news articles, including: Sam Howe in more federal restrictions upon private land- Verhovek, “Agency to List Pacific Salmon as owners. Threatened,” New York Times, March 16, 1999, Many agree that a holistic approach will be 5; “Saving a Regional Icon,” New York Times, most successful in saving the wild salmon. Thou- March 18, 1999, 1; Jonathan Brinckman, “Spe- sands of changes in everyday life, starting at the cies Act Now Covers NW Salmon, Steelhead