Publication Title

Washington Law Review

Document Type



There is a windowof opportunity in the wave of Endangered Species Act salmon listings that has descended on the Pacific Northwest in 1998 and 1999. Federal law links listings to the "inadequacy of existing regulatory mechanisms." Experience in Oregon has shown that EPA listings cannot be avoided by "voluntary or future conservation efforts."

Meaningful state law that will deter federal overrides must be "current" and "enforceable." With salmon stocks plummeting and with "inadequate" regulation prominently confirmed, what would the naive observer expect from a Washington State legislature intent upon saving the salmon and protecting its authority? A spate of stunning new laws pushing the outer limits of environmental protection? A declaration that the better-documented offenses to the salmon (unscreened water withdrawals, forest practices, outright obstructions) are now "point sources" that can be summarily suppressed under the clean water laws? An insistence that Atlantic salmon escaping from West Coast fishing operations are "pollutants" that should be curtailed under penalty of law?

Not quite. Lawmakers in Washington State are motivated to secure their "state lead" in salmon recovery. But the means to this end is not an enthusiastic embrace of environmental law. The centerpiece of the latest efforts to save the salmon is Senate Bill 5595, which was approved with partial veto of Governor Gary Locke on June 11,1999.

Senate Bill 5595 redefines the salmon problem as something that can be fixed by "activities" and "projects" such as habitat restoration and corrective maintenance. In this respect, it resembles the federal Superfund law which attacked contaminated sites and lands by selectively framed and directed cleanup strategies. Also like the Superfund law, Senate Bill 5595 anticipates a priority list and a chipping away at worst things first. Finally, like the Superfund law, Senate Bill 5595 is erected atop a failed superstructure of preexisting law—solid waste, air, and water pollution law, on the one hand, and salmon protection habitat laws on the other.

Viewed through the lens of the Superfund statute, questions can be asked about how Senate Bill 5595 addresses issues of (l) funding, (2) enforcement, (3) voluntary compliance, (4) regulatory certainty, and (5) scientific input.



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