ESA Law Alert: NMFS Proposes Designation of Nonessential Experimental Population of Middle Columbia River Steelhead in Deschutes River Basin

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Today, the National Marine Fisheries Service (NMFS) published a proposed rule to designate steelhead being reintroduced above Round Butte Dam in Oregon's Deschutes River Basin as a nonessential experimental population pursuant to Section 10(j) of the Endangered Species Act (ESA). 76 Fed. Reg. 28715 (May 18, 2011) (available here). The purpose of the proposed designation is to temporarily lift certain ESA liability and consultation requirements to allow time for the development of conservation measures that will support the ongoing reintroduction efforts in the Deschutes Basin. Once final, the designation will serve as a model for the reintroduction of listed species throughout the nation while protecting those who engage in lawful activities from liability for the unintentional "take" of a member of the experimental population.

Section 10(j) of the ESA authorizes NMFS to designate reintroduced populations of listed species as "experimental" where (1) the experimental population is geographically separate from the non-experimental population and (2) the designation will further the conservation of the listed species. NMFS concluded in its proposed rule that both of these requirements are satisfied. First, the experimental population is geographically separate from the non-experimental population because Round Butte Dam prevents members of the non-experimental population from intermingling with the experimental population. That is, all steelhead above the dam will be part of the experimental population, while all steelhead below the dam will not be part of the experimental population. Second, the designation of the experimental population is expected to promote the development of conservation measures that will support the reintroduction effort. For example, the proposed designation will build support for the reintroduction effort among local landowners and facilitate the development of conservation efforts that will carry forward even after the proposed designation has expired.

An experimental population is designated as "nonessential" where the population is not essential to the continued existence of the species. NMFS concluded in its proposed rule that the experimental population is nonessential because the recovery effort is only one of many recovery efforts being undertaken for the population. Further, the steelhead used for the reintroduction will be surplus hatchery stock, which are not essential to the species' continued existence.

The designation of a nonessential experimental population allows NMFS to lift certain ESA liability and consultation provisions to protect local social and economic values while promoting the reintroduction of a listed species. Under the proposed rule, the taking of a member of the experimental population would not result in ESA liability, provided that the taking was unintentional and not due to negligent conduct, and incidental to an otherwise lawful activity. Absent the designation, otherwise lawful actions that harm the reintroduced steelhead could result in liability under the ESA, even if the harm was accidental or unintentional.

While the U.S. Fish and Wildlife Service (FWS) has designated many nonessential experimental populations pursuant to Section 10(j), this proposed designation is significant because it is the first proposed designation by NMFS. As such, the proposed designation will likely serve as a model for future designations by NMFS and will encourage the reintroduction of species under NMFS's jurisdiction elsewhere. At the same time, unlike previous designations by FWS, NMFS's proposed rule includes a specific expiration date, with the expiration of the designation set for 12 years after the first generation of adult steelhead return to the nonessential experimental population area.

NMFS is currently seeking public comment on the proposed rule. The deadline for submitting comments is July 18, 2011.

Stoel Rives represents local irrigation and municipal interests in the pursuit of this rule. For further information regarding the proposed designation or the formulation of comments, please contact a key contributor.

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Key Contributors

Barbara D. Craig
David E. Filippi
Cherise M. Gaffney
Kirk B. Maag
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