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NOAA Fisheries must Re-Do "Essential Fish Habitat" Designation by Bill Rudolph NW Fishletter, November 10, 2003

A federal judge in Idaho has told NOAA Fisheries that it must run its essential fish habitat (EFH) designation for Pacific salmon through the normal rulemaking process. The Oct. 1 ruling came in Idaho County et al. v. Evans, in which two Idaho counties, a homebuilders association and two forestry groups sued the Department of Commerce, claiming that the actions taken by NMFS to implement the essential fish habitat designation for salmon were "overreaching and unduly burdensome."

Federal law says that federal fishery management councils, under the Magnuson-Stevens Act, must designate essential fish habitat to protect marine fisheries. The plaintiffs allege that the EFH designation for salmon, finalized in 2000, has the effect of subjecting "all manner" of upland non-fishing activities in the Northwest and most of Alaska to consultation over EFH designation to decide whether such activities adversely affected salmon habitat.

Idaho District Court Judge Edward J. Lodge disagreed with the plaintiffs on several other points, but said they were entitled to more opportunity for comment than they were given before the EFH amendment was adopted. He said the plaintiffs had standing because of an economic interest in the form of increased costs and delays by the alleged "overlord" definition of EFH.

Boise-based attorney Robert Maynard, who represented the plaintiffs, said he hoped the ruling would reduce the scope of EFH in the future, noting that presently it includes everywhere "from the tip of Washington to Pt. Conception and out to the 200-mile limit of the fishery councils' jurisdictions.

"These consultations require substantial budgets and costs to rural communities," Maynard told NW Fishletter. Currently, federal agencies use their ESA Section 7 consultations to satisfy the EFH consultation requirements of the Magnuson-Stevens Act.