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U.S. Plan Casts Off Protection for Large Areas of Fish Habitat by Joe Rojas-Burke The Oregonian, December 1, 2004

Federal officials say easing of streamside rules still would help salmon,
and they rule out removal of Snake River dams

The Bush administration on Tuesday proposed a steep reduction in the miles of rivers and streams to come under federal protection for Pacific salmon, and offered exemptions for property owners and broad areas of the Northwest and California.

Also on Tuesday, the administration made final a decision that flatly rejects the possibility of demolishing Snake River hydropower dams to help restore salmon runs.

Together, the actions signal far-reaching changes in federal enforcement of the Endangered Species Act. Federal officials said they are more carefully balancing the needs of threatened and endangered salmon against human demands for water, energy, timber and real estate along the Northwest's cold-flowing rivers.

Conservation groups and fishing groups, including Native American tribes with treaty rights to salmon, said the federal actions are sacrificing salmon for developers seeking land and businesses wanting cheap energy.

"The tribes made treaties 150 years ago to carry on a way of life that depends on salmon," said Olney Patt Jr., executive director of the Columbia River Inter-Tribal Fish Commission, which represents the Nez Perce, Warm Springs, Yakama and Umatilla tribes. "Now we see the federal government is turning its back on that obligation."

In the habitat proposal, total protected river miles amount to one-fifth that were protected under a set of "critical habitat" rules issued in 2000. Those were challenged by real estate developers. The National Marine Fisheries Service withdrew the original habitat rules more than two years ago, after a federal court ruled that the agency failed to properly consider the economic effects.

Critical habitat is a legal definition for areas "essential" for the conservation of threatened or endangered species. On lands so designated, federal fish and wildlife authorities must complete extensive studies of potential harm to protected species before any development requiring federal action, such as permitting, can go forward. The proposed reductions in critical habitat affect 20 populations of Pacific salmon and steelhead.

But Bob Lohn, a regional administrator for the National Marine Fisheries Service, said that as a practical matter, the level of protection for the fish will not change.

"By incorporating more accurate data about the presence of salmon, we were able to conclude that the area occupied by salmon was one-fifth as large as the area proposed in the older designations," Lohn said.

Comment sought
Within the rivers and streams occupied by salmon, the agency is seeking public comment on exemptions that would allow public and private landowners to avoid critical habitat restrictions. For instance, the agency proposes to exempt about 10 percent of the occupied areas because conditions are of low value to salmon and unlikely to sustain significant populations. Where the costs of the regulation exceed the benefits, additional lands also may be excluded.

A more far-reaching proposal could allow the exemption of lands under other kinds of state or federal protections, such as the federal Northwest Forest Plan.

Lohn said his agency is weighing whether excluding such lands from critical habitat, and relying on other legal agreements, could lead to stronger protections for fish. As an example, he said owners of private forestlands might agree to higher standards of care for watersheds to avoid federal designation of their land as critical habitat.

"We're not asking whether the fish can do without that habitat," Lohn said. "We're asking how can we get to the arrangement that is most protective for fish."

The agency will hold public hearings in January in Washington, Oregon, Idaho and California.

Early reaction
Developers cautiously praised the proposal, particularly the potential for exemptions of land already regulated for salmon protection.

"Right now, it sounds positive," said Ernie Platt, president of the Oregon Home Builders Association, an affiliate of the national association that challenged the 2000 critical habitat rules. Platt said his group would reserve judgment until members study maps laying out where protections fall.

Conservation groups found reasons to be concerned. "What we're seeing here is a pattern of trying to avoid protecting salmon habitat," said Patti Goldman, an attorney with Earthjustice in Seattle. Goldman, who led a lawsuit that held the fisheries service to a deadline for completing the critical habitat rules, said exempting lands covered by the Northwest Forest Plan from critical habitat would be a "disaster" for salmon.

On the hydropower ruling, salmon advocacy groups said the government is grossly understating the impact of dams. Todd True, an Earthjustice attorney representing several conservation groups, said the fisheries service appears to be ignoring the foremost requirement of the Endangered Species Act. "This opinion really isn't focused on keeping salmon from going extinct," he said.

Operation of dams
Federal officials said they do not have the legal authority to order the removal of federal dams -- only Congress has that power -- and so they did not consider it (although they did in 2000). To comply with a 2003 court order, the fisheries service, working with the Bonneville Power Administration and U.S. Army Corps of Engineers, proposed specific changes in the operation of the dams to compensate for their lethal effects on salmon.

"The dams are being operated in a way that is vastly different from what would be found 10 years ago," Lohn said.

Among the actions, the agencies said they will expand efforts to reduce predators, such as Caspian terns and pikeminnow, that prey heavily on young salmon. The agencies said they will outfit all of the major dams with structures, called spillway weirs, that help juveniles pass downstream without getting sucked into turbines. The proposal also calls for continuing habitat restoration work, and transporting as much as 90 percent of the young of some salmon stocks by barge or truck past the dams.