Bush's salmon habitat proposal is move in right direction
December 8, 2004 By Emma Suarez, California Farm Bureau Federation,
Followed by
Growers hopeful about proposal for fish habitat
December 8, 2004 by Christine Souza CFBF

The federal government provided welcome relief for landowners when it unveiled "critical habitat" boundaries for salmon and steelhead populations in four Western states, including California. The newly identified critical habitats, required under the federal Endangered Species Act, are much smaller than the areas originally designated.

This adjustment is appreciated because increased government surveillance usually results from these designations. The designations also prompt attention from "eco-litigants," environmental groups that exist to file costly lawsuits against government agencies and landowners.

But consider: Why do we need critical habitat for a species that is under no real threat or danger of extinction, a species that is given special status only because the government continues to improperly manipulate the ESA to justify the listing?

A little background is in order. Between 1989 and 2000, the federal government listed 26 species of Pacific salmon and steelhead, including some species in California. Once the government decided to list these populations, it was required under the ESA to identify, for possible future regulatory oversight, the geographic area containing the "critical habitat" needed by the species. A federal court, however, forced the government to redraw the original boundaries because the first line drawing was done illegally. The decision-makers had improperly discounted the economic and social impacts on local communities flowing from the designation.

It is important to note the government justified these salmon and steelhead listings, in part, by disregarding the hatchery-raised fish that swam side-by-side with the naturally spawned members of the same species. Another court, in another case, told the government that it could not discriminate against hatchery-spawned fish to justify the ESA listing of another member of the same species of wild fish. The court ordered the government to re-do how it analyzes hatchery-raised fish when deciding whether to list or de-list a species.

Unfortunately, as Farm Bureau pointed out in our comments on the proposed hatchery policy, all indications are that the government plans to continue treating the hatchery fish differently at the listing stage, illegally turning members of the same species against each other in order to justify listing the species as a whole.

Designation of critical habitat is one of many actions triggered by the listing of wildlife, plants or fish under the federal ESA. And because most of the critical habitat identified is usually on private lands, designation is one of the most disconcerting and discomfiting aspects of the ESA for landowners.

Critical habitat designation, however, does not occur unless and until the government has decided to list a species as threatened or endangered. In the case of the salmon and steelhead populations, the government should stop fooling around identifying unneeded habitat, and instead embark on the serious business of implementing a legally sound hatchery policy and, as appropriate, de-listing these fish populations.

Now that would be welcome news.

(Emma Suarez is an attorney with the California Farm Bureau Federation's Natural Resources and Environmental Division. She may be reached at esuarez@cfbf.com.)

Growers hopeful about proposal for fish habitat

Issue Date: December 8, 2004

By Christine Souza
Assistant Editor

Mendocino County Farm Bureau President Peter Bradford is just one of many throughout the state who has been dealing with fisheries issues related to the Endangered Species Act. He said that he is cautiously optimistic about recent news brought by a federal fisheries agency that has scaled down critical habitat boundaries for several species of salmon and steelhead.

"We are quite pleased with the reduction in area. That is going to be tremendous for a lot of the landowners here," Bradford said. "The regulatory hammer is always poised to come down. NOAA Fisheries still hasn't adequately proven the science to show that any conditions created by landowners are the cause of the species decline. But any reduction at all in impact areas is very good news."

The National Oceanic and Atmospheric Administration filed proposed rules in the Federal Register last week to designate critical habitat areas for species of threatened and endangered salmon and steelhead in California, Oregon, Washington and Idaho. A revised version of previous designations, the plan could exclude more than 80 percent of the critical habitat that the agency previously said was necessary to save and strengthen fish populations.

"The recent action by the NOAA Fisheries is good news. The government was forced to develop a more careful boundary of the critical habitat and do a better economic impact study than it had originally," said Emma Suarez, associate counsel for the California Farm Bureau Federation Natural Resources and Environmental Division.

The proposal comes as a result of a lawsuit brought by the National Association of Homebuilders in 2000, where the court required that the fisheries agency meet a deadline for revising its proposal for fish. The homebuilders alleged NOAA Fisheries had failed to consider the economic impacts of critical habitat on West Coast economies as required under the ESA.

As part of the settlement with homebuilders, NOAA Fisheries agreed to redo its critical habitat designation for salmon and steelhead. A later lawsuit brought by environmental and fishing groups led to the court-imposed deadline.

The federal government is required to designate critical habitat for any species that is listed under the ESA. Critical habitat areas contain any physical or biological features essential to the conservation of the species.

The proposal includes a separate rule for seven fish species in California and a separate rule for 13 species in Washington, Oregon and Idaho. Proposed critical habitat designations for California species include: Central Valley spring-run chinook salmon; California coastal chinook salmon; Southern California steelhead; South-Central California coast steelhead; Central California Coast steelhead; Central Valley California steelhead and Northern California steelhead.

A most important feature of the plan is an assessment of the economic impacts associated with proposed designations.

"This proposal seeks to protect critical salmon habitats and meet the economic needs of the citizens of the Pacific Northwest and California," said Bill Hogarth, NOAA Fisheries administrator.

"Congress wanted the federal government to consider the negative economic impacts associated with critical habitat designations, and directed so in the ESA," Suarez said. "The federal government has to look at those economic impacts and weigh them in its consideration. If the impacts are substantial, the ESA gives the federal agencies discretion to limit the size of that line drawing."

Since 2000, NOAA Fisheries has collected data that three of four of the Northern and Central California runs and 13 of 16 listed runs of salmon in the Pacific Northwest have experienced significantly improved numbers. According to the data, nearly all salmon populations have increased greatly and current levels are now well above 10-year averages.

The agency is seeking comments on the critical habitat plan for salmon and steelhead during a 60-day public comment period. Suarez encourages those with property adjacent to rivers and streams to download the proposed rule from the NOAA Fisheries Web site and look at the critical habitat designation map.

"Areas recognized as critical habitat will be included in the critical designation map. If by any chance that area covers property where our members farm, I suggest they submit comments and especially comment on any possible economic impacts that they might foresee because of their property being designated," Suarez said.

Comments and feedback on the proposal may be presented in January at public hearings scheduled in various locations in each of the affected states. Following the public comment period and hearings, the final rules are to be completed by NOAA Fisheries by June 2005.

(Christine Souza is a reporter for Ag Alert. She may be contacted at csouza@cfbf.com.)

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