forces review of salmon habitat
The National Marine Fisheries Service says the agreement won't lessen protections for endangered salmon.
Sun Staff and Sun news services
Bremerton, WA -3/12/02 - Federal scientists will be forced to redraw maps of "critical habitat" for 19 populations of salmon and steelhead — including two in Kitsap County — under an out-of-court settlement proposed Monday by the Bush administration.
The settlement, entered in federal court, essentially acknowledges that the National Marine Fisheries Service slipped up in its management of salmon under the Endangered Species Act.
If approved by a judge, all critical habitat designations for Northwest salmon would be eliminated. The agency essentially would start over with the latest scientific studies, taking into account the economic impacts on areas it may designate as critical habitat.
Applauding the settlement were the parties that brought the lawsuit against NMFS — the Association of California Water Agencies, National Association of Home Builders, Home Builders of Kitsap County and 15 other groups of developers and local governments.
The immediate impact of the agreement is uncertain. Some officials hope it will speed up approvals for construction projects involving federal funds, which currently undergo a biological review for their impacts on listed salmon.
Jim Lecky, the service's southwest regional administrator for protected resources, said the fish still will be protected under the Endangered Species Act while the habitat provisions are reworked, a process that could take about two years.
Salmon habitat also will be protected by the Magnuson-Stevens Act, which regulates fishing and non-fishing impacts on fish populations, according to a statement by NMFS.
Galen Schuler, a Seattle lawyer who specializes in the Endangered Species Act, said once a species is listed, the law requires federal agencies to make sure their actions do not jeopardize the "continued existence" of the species. That part of the law remains in full force.
When critical habitat is designated, federal agencies must make sure their actions do not adversely modify such habitat. That part could change.
"As NMFS would say, everything is fact-specific," said Schuler, affiliated with the law firm Perkins Coie. "It may speed things up in some cases, but this gets to the crux of what the lawsuit is about — how important it is to have critical habitat."
In their lawsuit, the developers and local governments argued that the critical habitat designations approved by NMFS were never based on science and failed to consider the economic impacts, as required by law.
Art Castle of the Kitsap home builders said the agency made a mistake by designating as critical habitat everywhere that the listed salmon could go. For example, the eastern shoreline of the Kitsap Peninsula, including Bainbridge Island, were designated critical habitat for Puget Sound chinook — even though wild chinook do not generally spawn in the small streams on the peninsula.
Agency scientists contended that the shoreline is important for migrating juvenile chinook, but they never proved that, Castle said.
"My gut feeling," he said, "is that when the agency goes back through a sound scientific process, there will be somewhat less geography included."
The settlement also should give local governments, including Kitsap County, more time to deal responsibly with endangered salmon, he said.
Environmentalists contend that President Bush is going against his campaign promise to help save the endangered fish and that the proposed settlement is part of a larger campaign to roll back environmental protections enacted under President Clinton.
"It sounds like they are giving the home builders a pass," said Nicole Cordan, policy and legal director for Save Our Wild Salmon.
Another environmental group, Earthjustice Legal Defense Fund, has asked to intervene in the case and planned to file an objection to the settlement on behalf of environmental and fishing industry groups.
On Capitol Hill, some lawmakers, including Washington's Sen. Patty Murray said they were increasingly skeptical about the administration's salmon protection efforts.
"Senator 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.
The critical habitat provisions for the salmon and steelhead were issued by the Clinton administration in February 2000. They outlined safeguards for populations of chinook, chum, coho and sockeye salmon and covered a wide swath of land, touching 150 watersheds, river segments, bays and estuaries in Washington, Oregon, California and Idaho, including metropolitan areas like Seattle and Portland.
The Fish and Wildlife Service also said recently that it plans to review, and in some cases set aside, critical habitat designations for up to 10 other endangered species in the West.
The government's proposal to eliminate the protections stems from a decision in the 10th Circuit Court of Appeals requiring the federal agencies to do a better job analyzing the economic impact of the critical habitat protections.
U.S. District Judge Colleen Kollar-Kotelly, based in the District of Columbia, will decide whether to grant the motion for settlement.
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