June 18, 2014

Salmon Rules to Be Rewritten — But Impact Unknown


By Steve Shropshire

The National Marine Fisheries Service ("NMFS"), the federal agency that listed nineteen West Coast salmon species as threatened or endangered under the Endangered Species Act (ESA), has agreed that its designation of "critical habitat" for the recovery of those populations was not based on sound science. NMFS has agreed to rewrite its rules about what land and habitat need protection. In return, the National Association of Home Builders agreed to drop a lawsuit before the D.C. Federal District Court challenging the habitat designation. This proposed settlement has been submitted to the court for approval. People familiar with the litigation say that documents uncovered in the litigation demonstrated that the amount of habitat was based on a desire to protect as much habitat as possible, not science. This is supported by a 1998 intra-agency memorandum submitted to the court, in which a high-level NMFS official based in the Northwest reportedly stated that no analysis of habitat need was performed "because we lack information."

How will this affect us in Oregon? NMFS has designated the majority of the Willamette Valley and substantial portions of other watersheds around the state as "critical habitat," and now that will be re-evaluated. Certain areas may be re-designated, while others may not. But first, NMFS must set up the procedure it will use to evaluate which habitat is critical for survival and recovery of the fish species. NMFS has indicated the review of habitat designations could take up to two years. The habitat lawsuit is separate from another suit in which the listing of salmon was challenged because it did not count hatchery fish.

Meanwhile, the species themselves will remain protected by the ESA. It will still be illegal to "take" a protected fish by harming or killing it. Additionally, Oregon has a separate, state endangered species act that governs actions of state agencies that can serve a role in the conservation of a state-listed species. The designations of habitat under the state act are unaffected by the proposed federal litigation settlement. Oregon also will continue to implement the Oregon Plan, which is the State's effort to restore native fish populations without federal intervention. The proposed settlement may breathe new life into the Oregon Plan if the Bush administration allows the state to take the lead by returning some control to Oregon.

In Washington County, the county, cities and sewerage agency have extensively studied and evaluated the stream and adjacent riparian lands for fish habitat in a state mandated, Goal 5 review. In the rest of the Metro area, other cities have also performed similar work. Metro, the regional government, has performed a related task, evaluating the stream and riparian areas it desires to protect as "natural resources" under Goal 5 of the state land use laws.

Metro designated what it called "significant" habitat for protection. Significant habitat is not the same as critical habitat, but the scientific basis for Metro's designation has been criticized on the same grounds as NMFS's science — that it is designed to protect the maximum amount of land and streams, rather than being based in independent science.

It is too early to tell whether NMFS's decision will influence Metro, but there is no requirement that Metro change its posture. Metro seems wedded to finishing its Goal 5 review this summer, in order to determine whether, and how much land to bring inside the Urban Growth Boundary this fall. So, Metro may stay the course, and see whether any lawsuits are filed later.

In summary, NMFS's decision will have a great impact on federal environmental regulation in the near future by removing critical habitat designations until after the new review is completed. Meanwhile, however, it is unlikely to affect State and Metro regulation. In some areas of the state, this will result in decreased regulation of private activities in areas previously designated as critical habitat. Around Portland however, Metro is likely to proceed with its own habitat designation, resulting in no practical impact from the national settlement on land regulation here in stumptown.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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