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Feds Suggest Removing Fish Habitat Protections by Jonathan Brinckman The Oregonian, February 12, 2002

The Bush administration plans to temporarily end the protection of rivers and streams used by 19 runs of endangered salmon and steelhead in four Western states.

The action would retain federal protection for the fish, which are on the federal endangered species list, but could open up some areas to development.

The proposal, submitted Monday to a federal court in Washington, D.C., is the latest in a series of moves that could reduce the level of protection for fish or their habitat. Conservationists said they will oppose the plan, which must be approved by the federal court.

The National Marine Fisheries Service, the federal agency charged with restoring salmon listed under the Endangered Species Act, said Monday that it would temporarily revoke habitat protection for salmon and steelhead in 150 watersheds, river segments, bays and estuaries throughout Oregon, Washington, California and Idaho.

The agency said it would spend up to two years carefully analyzing the economic impact of habitat protections. It then would propose revised habitat protections, officials said, imposing new restrictions that could be more, less or equally extensive compared with the current regulations.

The agency's plan is a response to two lawsuits by the National Association of Home Builders, the Association of California Water Agencies and 16 other groups.

Harming or killing federally protected fish or destroying its habitat would remain a crime. But some areas currently designated critical habitat do not contain protected fish. Those areas would lose federal protection under the proposal. Federal officials were unable to say Monday how much acreage that involves.

The fisheries service is conducting a separate review of its decision to federally protect 24 species of West Coast salmon and steelhead. That review, announced in December and scheduled for completion this fall, was triggered by a September 2001 legal ruling by a federal judge in Eugene. The judge ruled that the fisheries service had improperly distinguished between wild and hatchery-born salmon and steelhead.

The federal government is also reviewing fish hatchery policy.

Conservationists said they were alarmed by Monday's proposal.

"It looks like another situation where this administration is giving in to an industry-led lawsuit," said Todd True, an attorney for Earthjustice in Seattle. "We think the government should be defending itself in this lawsuit, instead of rolling over and joining with the home builders."

Fisheries service officials said the proposal does not indicate that the administration wants to relax enforcement of the Endangered Species Act. They said they made the proposal because their attorneys determined that the agency was unlikely to prevail in the lawsuits by the home builders and others.

"This proposal will have its greatest impact on the government because we have a small staff of economists, and they will be engaged in this instead of their other duties," said Jim Lecky, an assistant regional administrator for the fisheries service. "In terms of the amount of protection these fish are afforded, it won't be significantly different."

In lawsuits they filed in June 2000, the home builders association and others argued that the areas designated as critical habitat by the fisheries service are "excessive, unduly vague, not justified as essential to conserve the listed species, and not based upon a required analysis of economic impacts."

That argument was backed in a recent ruling by the 10th U.S. Circuit Court of Appeals, the fisheries service said.

Representatives of the home builders association praised the fisheries service proposal and said they would drop their lawsuit if the court accepts the plan.

"We applaud the government for doing the right thing," said Bruce Smith, a builder from Walnut Creek, Calif., who is the association's past president. "This proposed agreement marks a major turning point in how we protect threatened and endangered species under the Endangered Species Act."

The critical habitat provisions for the salmon and steelhead were issued by the Clinton administration in February 2000. The provisions outlining safeguards for populations of chinook, chum, coho and sockeye salmon require that any federal actions in designated areas be approved by the fisheries service before going forward.