The National Marine Fisheries Service ("NMFS") announced today that it is proposing to designate critical habitat for Lower Columbia River ("LCR") Coho salmon and Puget Sound steelhead. The specific areas proposed for the Coho designation include approximately 2,288 miles of freshwater and estuarine habitat in Oregon and Washington. Proposed critical habitat for Puget Sound steelhead includes approximately 1,880 miles of freshwater and estuarine habitat in Puget Sound. NMFS's proposed rule presents a number of maps showing all areas proposed for designation, which can be viewed here.
Under the federal Endangered Species Act ("ESA"), once a species is listed as threatened or endangered, the federal agency with jurisdiction (NMFS or the U.S. Fish and Wildlife Service ("FWS")) must designate, to the maximum extent prudent and determinable, the species' "critical habitat." Among other requirements, designated critical habitat must contain the physical and biological features that are essential to the conservation of the species – "primary constituent elements" or "PCEs." The PCEs identified in the proposed LCR Coho salmon and Puget Sound steelhead designations include:
- Freshwater spawning sites;
- Freshwater rearing sites with sufficient water quantity and floodplain connectivity to form and maintain physical habitat conditions and support juvenile growth and mobility (e.g., containing natural cover and submerged woody debris);
- Freshwater migration corridors, estuarine areas free of obstruction that can support juvenile and adult physiological transitions;
- Nearshore marine areas free of obstruction containing food to support growth and maturation; and
- Offshore marine areas with forage to support growth and maturation.
Federally authorized actions that occur in critical habitat must complete Section 7 consultations with NMFS or FWS to ensure, among other things, that the action does not destroy or adversely modify critical habitat. In its proposed rule, NMFS identifies a variety of activities, including forestry, grazing, agriculture, road building and maintenance, mineral, sand and gravel mining, and dams, that may have effects on the critical habitat of LCR Coho salmon and Puget Sound steelhead.
Finally, under Section 4(b)(2) of the ESA, NMFS may exclude areas from a critical habitat designation if it concludes that the benefits of exclusion outweigh the benefits of designation, unless the exclusion will result in the extinction of the species concerned. NMFS proposes to exclude a number of areas from both of the proposed designations. Most of the areas proposed for exclusion are composed of lands and waters managed by states and tribes, as well as lands and waters managed by public or private entities under ESA Section 10 habitat conservation plans.
NMFS is accepting public comments on the proposal through April 15, 2013, and requests for public hearings must be made in writing before February 28, 2013.
If you have any questions about the issues raised in this alert, or other legal matters relating to the ESA, please contact a key contributor.