Endangered Species Act Law Alert: USFWS Proposes Revisions to Its 2005 Designation of Critical Habitat for Bull Trout


1/21/2010

On January 13, 2010, the U.S. Fish and Wildlife Service (the "Service") issued a proposed rule to revise its 2005 designation of critical habitat for threatened bull trout (Salvelinus confluentus). The proposal represents a dramatic increase in river miles and lake and reservoir acres designated as critical habitat under Section 4 of the Endangered Species Act ("ESA"). The proposed critical habitat is located in Montana, Idaho, Oregon, Washington, and Nevada. A map showing the areas proposed for designation is available at the link above.

Section 4 of the ESA requires the Service to designate critical habitat for threatened and endangered species based on the best scientific information available, after carefully considering economic impacts, impacts to national security, and other impacts relevant to specifying any particular area as critical habitat. Although critical habitat designations do not establish wildlife refuges, Section 7 of the ESA requires that federal agencies ensure that federally authorized projects, such as timber sales or energy facilities, do not destroy or adversely modify critical habitat.

The Service listed the Klamath River and Columbia River bull trout distinct population segments ("DPSs") as threatened in 1998. Since then, DPSs for Coastal Puget Sound, Jarbidge River, and Saint Mary-Belly River bull trout were listed as threatened. Native to waters of the western United States, bull trout are members of the family Salmonidae. Bull trout are found throughout the Columbia River and Snake River basins, extending east to streams in Montana and Idaho, and into the Klamath River basin in Oregon. According to the Service, the decline in bull trout is primarily due to habitat degradation and fragmentation.

Previous Federal Actions

In 2005, the Service designated critical habitat for the five DPSs listed above. In 2006, environmental advocacy groups filed a complaint in federal district court alleging that the Service failed to rely on the best scientific and commercial data available, failed to consider the relevant facts that led to listing, and failed to properly assess the economic benefits and costs of critical habitat designation. On March 23, 2009, the Service notified the U.S. District Court for the District of Oregon that it would seek remand of the final critical habitat rule for bull trout based on the findings of a report prepared by the Department of the Interior. On July 1, 2009, the court granted the Service's request for a voluntary remand and directed the Service to submit a new proposed rule.

Changes from the 2005 Rule

In the 2005 final rule, the Service designated approximately 3,828 miles of streams and 143,218 acres of lakes in Idaho, Montana, Oregon, and Washington, and 985 miles of shoreline paralleling marine habitat in Washington. The 2005 rule represented a significant downsizing of the critical habitat designated in the combined 2002 and 2004 rules. In the new rule, the Service is proposing to designate as critical habitat 22,679 miles of streams (which includes 985.3 miles of marine shoreline in the Olympic Peninsula and Puget Sound) and 533,426 acres of lakes and reservoirs.

Of the area proposed, 929 miles of streams are outside the geographical area that was occupied by the species when it was listed. The Service has determined these streams to be essential for the conservation of the species.

An economic impact analysis of the proposed rule estimates the annualized incremental cost to be $5 million to $7 million.

Implications

The expanded proposed critical habitat designations mean federal actions in the designated areas must consider the effect of the action on bull trout critical habitat. This will have ramifications for timber operators, farmers, energy developers, and others seeking federal approval for projects in the designated areas. As noted above, the Service must ensure that any projects occurring in such areas do not destroy or adversely modify the habitat.

The Service will be accepting comments on the proposed critical habitat revision until March 15, 2010. If you have questions about the issues discussed in this alert or would like more information, please contact:

Cherise Oram at (206) 386-7622 or cmoram@stoel.com
Greg Corbin at (503) 294-9632 or gdcorbin@stoel.com
David Filippi at (503) 294-9529 or defilippi@stoel.com
Sarah Stauffer Curtiss at (503) 294-9829 or sscurtiss@stoel.com


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