On January 10, 2011, the National Marine Fisheries Service ("NMFS") issued an advanced notice of proposed rulemaking ("ANPR") announcing the agency's plan to prepare critical habitat designation proposals for lower Columbia River ("LCR") coho salmon (Oncorhynchus kisutch) and Puget Sound steelhead (O. mykiss), two species currently listed as threatened under the Endangered Species Act ("ESA"). Section 4 of the ESA requires NMFS to designate critical habitat for threatened and endangered species based on the best scientific information available, after taking into careful consideration economic, national security and other relevant impacts. The designation of critical habitat does not create wildlife refuges or preserves; however, Section 7 of the ESA mandates that federal agencies ensure that federally authorized projects, such as timber sales or energy projects, do not destroy or adversely modify critical habitat. Projects that have already received ESA approval, but are associated with ongoing activities, may be subject to re-evaluation once critical habitat is designated.
LCR coho salmon and Puget Sound steelhead are anadromous fish, meaning adults migrate from the ocean to spawn in freshwater lakes and streams where their offspring hatch and rear prior to migrating back to the ocean to forage until maturity. The areas under consideration for the species' critical habitat designations include watersheds in the LCR basin in southwest Washington and northwest Oregon, as well as watersheds in the Puget Sound and the Strait of Juan de Fuca in Washington.
The ANPR identifies issues for consideration and evaluation during the designation process, and solicits comments on these issues as well as information about the areas and species under consideration. Comments are due on or before 5 p.m. Pacific time on March 11, 2011, and all comments received will (1) become part of the public record and (2) be considered by NMFS when making its proposed critical habitat designations.
Stoel Rives has a broad depth of experience covering all aspects of the ESA, including advising on critical habitat issues and issues involving anadromous fish.
If you have any questions about the issues raised in this alert, please contact a key contributor.