U.S. Fish & Wildlife Service Proposes Dramatic Expansion of Critical Habitat for Threatened Bull Trout

On January 14, 2010, the U.S. Fish & Wildlife Service (the “USFWS”) proposed to revise its 2005 designation of critical habitat for the bull trout, a threatened species under the Endangered Species Act (the “ESA”), by significantly expanding the amount of marine and freshwater habitat designated as critical under the ESA.[1] Under the proposed rule, the USFWS would designate nearly 23,000 miles of streams and over 533,000 acres of lakes and reservoirs in five Western states. It would not change the nearly 1,000 miles of marine shoreline in Washington State that the USFWS designated in 2005. The majority of the areas proposed for designation occur on federally- and privately-owned waterways in Idaho and Montana, with substantial coverage in Washington, and smaller areas in Oregon and Nevada.

The USFWS estimates the potential incremental costs of the proposal – some of which would be borne by energy, timber, and other industries requiring federal authorization for activities – at between $5 and $7 million annually over the next 20 years. The USFWS is accepting comments on the rule through March 15, 2010. It will hold informational meetings in the affected states throughout February 2010 and a public hearing for purposes of oral testimony in Boise, Idaho on February 25, 2010.

Statutory Background

Under the ESA, the federal wildlife services are required to designate critical habitat at the time of listing, to the maximum extent possible. Section 3 of the ESA defines “critical habitat” as: (1) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary.

Factual Background

Bull trout, an amphidromouos species that returns seasonally to fresh water before returning to spawn, depend on clean, cold water to survive. As a result, they are a key indicator species for water quality. Today, bull trout are found in less than half of their historical range.[2]

Certain populations of bull trout have been listed as threatened under the ESA since 1998.[3] Currently, five distinct population segments of bull trout in Idaho, Oregon, Montana, Nevada and Washington are listed under the ESA. The USFWS designated critical habitat for bull trout in 2004 and 2005. See Marten Law, U.S. Fish and Wildlife Service Designates Critical Habitat for Bull Trout (Oct. 19, 2005). In January 2006, environmental groups sued the USFWS alleging, among other things, that the USFWS failed to designate adequate habitat or to rely on the best scientific and commercial data available as required by the ESA. In 2009, the Department of Interior Inspector general published an investigative report containing its findings that several listing decisions and critical habitat rules, including the 2005 rule designating the bull trout’s critical habitat, were improperly influenced by an official that subsequently resigned from the USFWS. In March 2009, the USFWS notified the court that it would seek remand of the 2005 critical habitat rule for the bull trout based on the findings of that report. The court granted the USFWS’ request for a voluntary remand of the 2005 rule.[4] The new proposed rule for the bull trout’s critical habitat resulted from that remand.

The Proposed Rule

In the listing decisions and proposed critical habitat rule, the USFWS determined that the bull trout’s decline has resulted primarily from habitat degradation and fragmentation, blockage of migratory corridors, poor water quality, poor fisheries management, dams, water diversions, and nonnative species.[5] These effects have resulted largely from timber harvest, agricultural practices, and road building near riparian areas; operation of dams without effective fish passage features; mining near aquatic systems; introduction of nonnative species that prey upon, hybridize, or exacerbate stresses on bull trout; and urbanization in watersheds.[6]

In the proposed rule, the USFWS also determined that climate change will “likely pose additional threats to bull trout,” since temperature models predict general air temperature warning by 1 to 2.5 degrees Celsius within the next 40 years, which will increase water temperatures. Bull trout need substantially lower water temperatures than other salmonids to survive, and coldwater fish do not adapt well to thermal increases. The USFWS also determined that climate change will “likely interact with other stressors, such as habitat loss and fragmentation”; nonnative fish invasions; predators and competitors; and flow alterations, to make some habitats “marginal or wholly unsuitable” for the bull trout’s essential functions.[7]

The proposed rule is designed to provide sufficient habitat to allow for genetic diversity of the species, to ensure bull trout are well distributed, and to ensure sufficient connectivity between populations and allow for the ability to address threats to the species. Of the waterways proposed for designation, the majority of stream and shoreline area is federally owned (13,220 miles). Privately-owned waterways comprise 8,216 miles of the proposed rule. The remainder are owned by tribes, states, or jointly by federal/private or federal/state ownership.[8]

The USFWS is considering excluding bull trout habitat occurring on lands covered by pre-existing Habitat Conservation Plans (“HCPs”), including HCPs governing certain timber and conservation areas.[9]

Estimated Costs of the Proposed Rule

According to the USFWS’ Draft Economic Analysis of the effects of the proposed rule, about half of the estimated annual costs amounting to $5 to $7 million will be for conservation efforts imposed on forest management activities, including efforts to reduce sedimentation, removal of fish barriers, and changes to harvest practices. The remaining costs would be imposed on development activities (i.e., to implement stormwater controls) and dam operations (i.e., conservation methods such as improving passage through fish ladders or trap and haul operations, temperature controls projects, habitat acquisition, and seasonal flow adjustments). The USFWS estimates that, because of the current conservation measures in place for listed salmon, steelhead, Klamath suckers, and other protected species in the area proposed for critical bull trout habitat, “the incremental regulatory and economic effect of critical habitat designation in areas occupied by bull trout will be small, and the most significant incremental effect will be in those areas not currently occupied (less than 4 percent of the proposed critical habitat) by the species.”[10] However, these numbers are estimates, and could vary considerably depending on circumstances across the expanse proposed for designation. Accordingly, the USFWS is specifically requesting input during the comment period on the rule regarding, among other things:

• “Whether regulatory protections and conservation activities already being implemented for salmon, steelhead, bull trout, other species, or other concerns (e.g., water quality) in areas proposed as critical habitat are appropriate to include as baseline costs (e.g., costs that would occur regardless of critical habitat designation for bull trout)”; and
• “Whether there are incremental costs of critical habitat designation (e.g., costs attributable solely to critical habitat designation) that have not been appropriately identified or considered in [the USFWS’] economic analysis, including costs associated with future administrative costs or project modifications that may be required by Federal agencies related to section 7 consultation under the [ESA.]”[11]

Potential Consequences

Designation of critical habitat does not affect land ownership, allow for government access to private lands, or create a conservation area of designated areas. However, critical habitat receives protection under section 7 of the ESA through the prohibition against federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Wherever a permit applicant seeks or requests federal agency funding or authorization that may affect a listed species or critical habitat, section 7 applies. But even in the event of potential destruction or an adverse modification finding, the permit applicant’s obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives (“RPAs”) to avoid destruction or adverse modification of critical habitat. RPAs vary “from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing [an RPA] are similarly variable.”[12]

According to the USFWS, the type of actions that would likely trigger section 7 obligations include, for example, applications for federal permits (such as a Clean Water Act section 404 permit) to conduct activities on critical habitat, or actions involving highway, FEMA, or aviation funding.

The proposed rule would only designate waterways as critical habitat. However, associated flood plains, shorelines, riparian zones, and upland habitat areas can be important to and affect those waterways. Critical habitat designations can require special management activities that could affect those areas.[13]

Although these regulatory requirements will not take effect unless and until the USFWS publishes a final rule designating bull trout habitat (anticipated to occur in September 2010), across a huge swath of western waterways, ESA requirements for activities with a federal nexus could be far more significant than they are now.

For additional information on the ESA, contact Jessica Ferrell or any other member of Marten Law Group’s Natural Resources practice group.