Environment News Service: Some Salmon Stand to Lose Habitat Protection

By Cat Lazaroff

WASHINGTON, DC, March 11, 2002 (ENS) - The National Marine Fisheries Service has agreed to withdraw its current critical habitat designations for 19 salmon and steelhead populations as part of a settlement with a property rights group. The agency said today it plans to reexamine these populations, which could lead to the removal of federal protection for some fish populations.

In court documents submitted today in the U.S. District Court for the District of Columbia, the National Marine Fisheries Service (NMFS) agreed to rescind its current critical habitat designation for 19 west coast salmon and steelhead populations. The agreement requires the approval of a federal district judge.


The critical habitat designation for this young coho salmon may be overturned. (Photo courtesy Earthjustice)
As part of the proposed settlement, the National Association of Home Builders (NAHB) agreed to dismiss its Endangered Species Act (ESA) suit against the federal agency.

"We applaud the government for doing the right thing," said Bruce Smith, NAHB's immediate past president and a builder from Walnut Creek, California. "This proposed agreement marks a major turning point in how we protect threatened and endangered species under the ESA. From day one, NAHB has said that environmental protection of salmon should be based on three key elements: the law, sound science and a consideration of the economic impacts."

Critical habitat consists of areas that biologists have determined to be necessary for the survival and recovery of a threatened or endangered species.

In a lawsuit filed in June 2000, NAHB and 16 other groups asserted that the areas designated by NMFS as critical habitat for the 19 fish species are "excessive, unduly vague, not justified as essential to conserve the listed species, and not based upon a required analysis of economic impacts."


Fourteen Pacific Northwest populations of salmon and steelhead, like this chinook salmon, are listed as threatened. (Photo courtesy Pacific Northwest National Laboratory)
NAHB argued that "the critical habitat designations are not justified by fact or law because NMFS designated every possible habitat area and adjacent or connected non-habitat to avoid the necessary work of determining what areas are actually occupied by, and essential to, the conservation of the listed salmon and steelhead." NAHB also argued that NMFS did not determine that these areas were critical to salmon or steelhead.

The designations challenged by NAHB encompass a geographic region spanning 150 watersheds, river segments, bays and estuaries throughout Washington, Oregon, California and Idaho.

The fisheries agency said today it plans to undertake a new, more thorough analysis of its critical habitat designations, based on the precedent set by a recent federal court decision. In that suit, "New Mexico Cattle Growers Association vs. U.S. Fish and Wildlife Service," the court held that the analysis of economic impacts for such designations must be much more specific than the current standards used by federal agencies.

In a release, NMFS said it does not expect its reevaluations to "significantly affect" the fish populations, because they will remain protected as threatened or endangered under the ESA. That status requires that federal agencies avoid any actions that could harm the protected species, including issuing permits to developers, loggers, miners and other land users.

That opinion is shared by Jeff Curtis, western conservation director for Trout Unlimited, who told ENS that while it is unclear how much effect the NMFS decision might have, critical habitat designations are far less important than actual ESA listing to a species.


These chinook salmon could face delisting after NMFS' review. (Photo courtesy Bonneville Power Administration)
"I don't think its going to have a major practical effect on the ground," said Curtis, noting that there is also no guarantee that the judge will permit NMFS to overturn its own habitat designations without the normal administrative process.

"The federal government is still going to have to consult on actions that need federal permits," added Curtis.

However, Curtis warned that NMFS could, while it reviews the status of the fish populations, decide that some of the fish do not warrant listing under the ESA.

"These species being listed or not is the bottom line question," Curtis said. "Delisting would have huge ramifications, if they rethink protection for the species."

NMFS noted as well that much of the habitat for the listed fish - which include 19 populations of chinook, chum and sockeye salmon, as well as steelhead trout - will remain protected under the essential fish habitat provisions of the Magnuson-Stevens Act. That Act is intended to minimize both fishing and non-fishing effects on habitat considered essential to the fish for breeding, feeding or other biological needs.