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NMFS Removes Habitat Designations in Settlement by Kat Ricker Capital Press - May 24, 2002

The National Marine Fisheries Service has agreed to remove "critical habitat designations" from 19 West Coast salmon and steelhead populations to settle a lawsuit.

The suit as brought by the National Association of Home Builders, challenging the agency's process of establishing the designations. Environmental-interest groups are calling the move a sell-out. Ag lobbyists are celebrating.

U.S. District Judge Colleen Kollar-Kotelly granted the motion for settlement April 30. The settlement calls for NMFS to begin working on new critical habitat designations. That means more scientific studies to back them up, and changing how the agency analyzes its economic impacts on the community.

The agency proposed the settlement in a District of Columbia federal court, after losing a similar lawsuit in the Southwest.

This rescinds critical-habitat designations the Clinton administration made for chinook, chum and sockeye salmon, as well as steelhead trout, in Washington, Oregon, Idaho and California.

The agency stated in a release that the settlement will not significantly affect the protection of 19 populations of chinook, chum and sockeye salmon nor steelhead populations, because they are still protected under the Endangered Species Act.

Oregon Farm Bureau executive vice president Andy Anderson found the settlement encouraging.

"We agreed with the hoe builders, that it was pretty arbitrary, the way they were doing it. The highlight of this is the fact that NMFS is re-evaluating how it does business."

Glen Stonebrink of the Oregon Cattlemen's Association said it was excellent news.

"It will have a bearing on where we go from here, how we work with NMFS. We don't want to pollute, but we want science and good sense to prevail, and last year's return proves we're not the monsters the environmental groups make us out to be."

The Suit
The ESA requires NMFS to designate geographic areas essential to the conservation of species, known as the "critical habitat" of the species. The act also requires the agency to measure the economic impacts this will have on businesses, communities and people.

Critical habitat designations are among the most contentious provisions of the Endangered Species Act. In some cases, they allow NMFS and the U.S. fish and Wildlife Service to limit or block activities in areas where threatened or endangered species might be harmed.

In February 2000, NMFS designated habitat for chinook, chum, sockeye salmon and steelhead trout in Washington, Oregon, Idaho and California.

The home builders association and 16 other groups of developers and local governments in Washington, Idaho and Oregon counties quickly filed a lawsuit challenging the designations, and the Association of California Water Agencies filed a similar suit.

The suits alleged that NMFS failed to adequately evaluate the economic impacts associated with the designations, that in some cases it failed to prove that the areas were critical and that the designations were excessive and vague.

Environmental groups have criticized NMFS as caving to economic interests. The Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Oregon Natural Resources Council and Pacific Rivers Council filed an "objection to the propose consent order" with the court.

Specifically, the designations were for chinook, chum and sockeye salmon, and steelhead trout, populations in Washington, Oregon, Idaho and California. Columbia Basin populations included the Lower Columbia River, Upper Willamette River and Upper Columbia river spring-run chinook salmon, Columbia River chum salmon, and Upper Columbia River, Snake River Basin, Lower Columbia river, Upper Willamette River and Middle Columbia river steelhead.

NMFS lost a similar case earlier this year in the 10 Circuit Court of Appeals -- New Mexico Cattle Growers Association vs. U.s. Fish and Wildlife Service. Although that case involved a different species, the Southwestern willow flycatcher, the finding was the same.

"The change in policy form the Bush administration may mean critical habitat designation will no longer be a preferred management tool," Water for Life advocacy group stated in its spring newsletter.

NMFS is part of the National Oceanic and Atmospheric Administration, which is an agency of the U.S. Department of Commerce.