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Final Rule on Critical Habitat for Bull Trout Impacts Five Western States

December 9, 2010

The U.S. Fish & Wildlife Service’s (the “USFWS”) final rule designating critical habitat for the bull trout, a threatened species under the Endangered Species Act (the “ESA”), recently took effect.[1] The species’ critical habitat now covers approximately 18,975 miles of streams, 488,252 acres of lakes and reservoirs, and 754 miles of marine shoreline in five states. While the area covered is less than USFWS initially proposed earlier this year, it covers five times more marine and freshwater habitat than the USFWS’ 2005 designation.[2] The majority of areas designated occur on federally- and privately-owned waterways in Idaho, Washington, and Montana, followed by substantial miles of streams and acres of lakes and reservoirs in Oregon, and under 100 stream miles in Nevada.[3]

The USFWS map reproduced below shows areas designated as critical habitat (in blue) compared to areas proposed (in red), over 32 discrete critical habitat units (shaded):

Bull Trout CH Map

Environmental groups have applauded the rule, but it has been condemned by some water-dependent communities and irrigation districts, particularly in Idaho.[4] They argue that the USFWS is being too cautious in light of the real risks presented, and that the Service severely underestimated the actual costs of the designation.[5] Lawsuits challenging the rule; its practical effects (i.e., water shortages); and the operation of activities in, or with the potential to affect, critical habitat are likely. Current operations in bull trout critical habitat – including irrigation projects, dams, ranching, and other uses – may have to be modified to ensure compliance with the ESA. Those seeking a federal permit, license, or other approval to conduct activities in or near the species’ critical habitat should also expect more involvement by the USFWS with their project.

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 amphidromous 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.

Certain populations of bull trout have been listed as threatened under the ESA since 1998.[6] Currently, five distinct population segments (“DPSs”) 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.[7] 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. This year’s final rule is a result of a 2009 order from the U.S. District Court for the District of Oregon court in that lawsuit, granting the USFWS’ request for a voluntary remand of the 2005 rule.[8]

The Final Rule

In the listing decisions and proposed and final critical habitat rules, 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.[9] USFWS determined that those 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.[10]

The USFWS also determined that climate change poses 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, increasing water temperatures. Bull trout need substantially lower water temperatures than other salmonids to survive, and coldwater fish do not adapt well to thermal increases. Accordingly, the USFWS determined that “[b]ull trout may be among the species most sensitive to the effects of climate change[.]”[11]

The 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, followed by privately-owned waterways. The remainder are owned by tribes, states, or jointly by federal/private or federal/state ownership.[12] The Service recently re-evaluated its DPS designations, and identified six “recovery units” for the species, including the following: the Mid-Columbia recovery unit; Saint Mary; Columbia Headwaters; Coastal; Klamath; and Upper Snake. The Service determined that “[c]onserving each [recovery unit] is essential to conserving the listed entity as a whole.”[13]

Potential Consequences

The designation of critical habitat does not directly affect land ownership, allow the government access to public lands, or create a conservation area. Rather, when an area is designated as critical habitat, it receives protection under section 7 of the ESA through the prohibition against federal agencies carrying out, funding, or authorizing activities that could result in the destruction or adverse modification of that 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.

In the event of potential destruction or an adverse modification finding, the permit applicant must usually implement reasonable and prudent alternatives (“RPAs”) to avoid destruction or adverse modification of critical habitat. RPAs range from slight project modifications to extensive redesign or relocations, and costs are similarly variable. In the case of bull trout, non-exempt timber practices, hydroelectric operations requiring renewal of federal permits, irrigation districts, and ranchers are likely to be affected. While the rule designates only waterways, bodies and shoreline as critical habitat, 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 as well.[14]

Section 9 of the ESA also prohibits “taking” endangered species – a broad concept that includes modifying species’ habitat to the point of injuring the species. While section 9 covers a wider range of actors, section 7 has been more frequently used by project opponents to challenge agency action.

The final rule covers a very large swath of western waterways, and the onus of ESA compliance – particularly for actions with a federal nexus – can be substantial. The costs of ensuring that no further harm befalls the bull trout or its habitat will now be borne, in part, by public land and resource users in the five affected states.

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

[1] USFWS, Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Bull Trout in the Coterminous United States; Final Rule, 75 Fed. Reg. 63898 (Oct. 18, 2010) (“Bull trout habitat rule”).

[2] See USFWS, U.S. Fish and Wildlife Service Designates Critical Habitat and Releases Economic Analysis for Bull Trout (Oct. 12, 2010). For background on the species’ listing, prior critical habitat designation, and substance of the proposed rule, see J. Ferrell, U.S. Fish & Wildlife Service Proposes Dramatic Expansion of Critical Habitat for Threatened Bull Trout, Marten Law News (Jan. 28, 2010).

[3] By state, the designation covers approximately:

  • Idaho: 8,772 stream miles; 170,218 acres of lakes or reservoirs
  • Oregon: 2,836 stream miles; 30,256 acres of lakes or reservoirs
  • Washington: 3,793 stream miles; 66,308 acres of lakes or reservoirs; 754 miles of marine shoreline
  • Montana: 3,056 stream miles; 221,471 acres of lakes or reservoirs
  • Nevada: 72 stream miles

USFWS, U.S. Fish and Wildlife Service Designates Critical Habitat and Releases Economic Analysis for Bull Trout (Oct. 12, 2010); see also Bull trout habitat rule.

[4] See P. Taylor, Battle lines drawn in Idaho over bull trout habitat, Land Letter (Nov. 4, 2010) (subscription required).

[5] See id.

[6] For more information, see USFWS, Bull Trout Listing History 1992-2009.

[7] See Marten Law, U.S. Fish and Wildlife Service Designates Critical Habitat for Bull Trout (Oct. 19, 2005).

[8] Alliance for the Wild Rockies v. Allen, 2009 U.S. Dist. LEXIS 63122 (D. Or. July 1, 2009).

[9] See Bull trout habitat rule; J. Ferrell, U.S. Fish & Wildlife Service Proposes Dramatic Expansion of Critical Habitat for Threatened Bull Trout, Marten Law News (Jan. 28, 2010).

[10] Id.

[11] Bull trout habitat rule, 75 Fed. Reg. at 63910.

[12] See id.

[13] Id. at 63927.

[14] See USFWS, U.S. Fish and Wildlife Service Proposes Revision of Critical Habitat for Bull Trout (Jan. 13, 2010).

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