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NMFS Rescinds Habitat Protections for 19 Endangered Fish by Les Blumenthal, Herald Washington, D.C., Bureau Tri-City Herald, March 12, 2002

WASHINGTON -- The Bush administration agreed Monday to temporarily rescind habitat protections for 19 endangered West Coast salmon and steelhead runs in a move environmentalists said signals a retreat from efforts to protect the fish.

The action, which would remove habitat designations considered critical to rebuilding the salmon runs, could affect about 150 watersheds, rivers, bays and estuaries in Washington, Oregon, California and Idaho, including Puget Sound and the Columbia and Snake rivers.

The decision to withdraw the habitat designations came in a lawsuit brought by developers and others who argued that the National Marine Fisheries Service had failed to properly consider the economic impacts of the designations.

The fisheries service said the move was technical and procedural and would not lessen protections for the salmon.

But environmentalists said the administration was under no pressure to lift the designations, and they voiced serious doubts about the White House's commitment to saving the salmon.

"It's a pattern we have seen elsewhere," said Todd True, a lawyer with the Earthjustice Legal Defense Fund in Seattle.

On Capitol Hill, some lawmakers, including U.S. Sen. Patty Murray, D-Wash., said they were increasingly skeptical about the administration's salmon protection efforts.

"Sen. Murray hopes this is not an effort by the administration to roll back the Endangered Species Act and will continue to monitor the case closely," said Todd Webster, a spokesman for the senator.

Earlier this month, the administration announced it was reviewing Endangered Species Act protection for 24 West Coast salmon stocks based on "substantial" information that "delisting" may be warranted. The review is expected to take about a year.

Under the federal law, critical habitat designation adds another layer of protection for endangered species. For salmon, that can include virtually anyplace they are found or might be found.

The fisheries agency asked the U.S. District Court for the District of Columbia for approval to withdraw the critical habitat designations approved by the Clinton administration. The agency said it will undertake a "more thorough" analysis of the economic impacts of such designations and issue new designations when the analysis is completed.

In a news release, the agency said it "expects this action will not significantly affect the protection of these 19 populations of chinook, chum and sockeye salmon nor steelhead populations whose ESA (Endangered Species Act) status remains unchanged."

The agency said it will remain illegal to jeopardize any of the listed runs and that other federal laws will continue to protect their essential habitat while the economic analysis is completed.

The critical habitat designations for salmon were released 13 months ago and were immediately challenged by the National Association of Home Builders, a group of Washington, Oregon and Idaho counties and the Association of California Water Agencies.

The lawsuit said the designations were "excessive, unduly vague, not justified as essential to conserve the listed species and not based upon the required analysis of economic impacts."

The homebuilders group, in exchange for the fisheries service's agreement to rescind the designations and conduct a review, agreed to drop its lawsuit.

"This proposed agreement marks a major turning point in how we protect threatened and endangered species under the ESA," said Bruce Smith, former president of the homebuilders association and a developer in Walnut Creek, Calif. "From day one, we said that environmental protection of salmon should be based on three key elements: the law, sound science and a consideration of economic impacts."

The fisheries service said it based its decision on a recent ruling by the 10th U.S. Circuit Court of Appeals in a case brought by cattle ranchers in New Mexico. In that case, the appeals court said the federal government had not adequately addressed the economic impact of critical habitat for the southwestern willow flycatcher.

But True of Earthjustice said that decision was not the "law of the land" and did not apply on the West Coast.

"They are taking away critical habitat designation for salmon when nothing is telling them to do so but an industry lawsuit," True said.

He said environmentalists would try to intervene in the homebuilder's salmon case and would file an objection with the court to the fisheries service's request to withdraw the habitat designations.

"These fish are in serious trouble and we need critical habitat to hold the line against further declines," said Bill Arthur, who heads the Northwest office of the Sierra Club in Seattle. "It sounds like they want to vaporize the scientific underpinnings of salmon recovery."