Expanded critical habitat for bull trout proposed

Jan 22, 2010

Expanded critical habitat for bull trout proposed

Ranchers in the Northwest may be looking at increased federal regulation if newly revised rules on bull trout critical habitat are adopted. On Jan. 13, in a reversal of a 2005 decision, the U.S. Fish and Wildlife Service (FWS) proposed a revision of its critical habitat designation for the bull trout, which is classified as threatened under the Endangered Species Act (ESA). The newly proposed designation calls for approximately 22,679 miles of streams and 533,426 acres of lakes and reservoirs in Montana, Oregon, Washington, Idaho and Nevada to be designated as critical habitat, a change that represents a four-fold increase over the 2005 rule.

The bull trout is not actually a trout, but a char, and thrives in cold, clear waters with complex steam systems and overhanging banks. FWS reports that the bull trout now exists in only half of its native range. According to the ESA definition, "[C]ritical habitat identifies geographic areas that contain features essential for the conservation of a listed species. Critical habitat designations provide extra regulatory protection that may require special management considerations and the habitats are then prioritized for recovery actions."

The proposed revision is the outcome of a lawsuit filed Jan. 6, 2006, against FWS by Montana conservation groups Alliance for the Wild Rockies and Friends of the Wild Swan alleging that the service failed to designate adequate critical habitat and unlawfully excluded areas from the final designation. In response to the litigation, FWS requested a voluntary remand of the final 2005 habitat rule from the U.S. District Court for the District of Oregon on March 23, 2009. As stated by FWS, the voluntary request for remand was made in order to address irregularities in the rule-making process and outcome as identified in a 2008 Investigative Report by the Department of the Interior inspector general. That report found a former Department of the Interior appointee had interfered with the final 2005 designation by directing that large areas be excluded from what had been proposed by government biologists. In July 2009, the court granted the service’s request. However, although FWS apparently requested two years to complete its research and issue a final rule, the court directed the agency to complete its proposed revision in less than one year, by Dec. 31, 2009, with a final designation due by Sept. 30, 2010. The 2005 designation will remain in effect until a revised designation is made final.

In addition to vastly increasing the 3,828 miles of streams and 143,218 acres of lakes and reservoirs previously designated in the 2005 rule, there are some other notable changes in the proposed revisions. Among these is the inclusion of certain streams where the bull trout is not presently found, but which are considered to be connecting waterways important for migration. Also included in the current proposal are previously excluded federal lands. In the 2005 final designation, nearly all federal lands were excluded if they were covered by management plans such as the Northwest Forest Plan. In the current proposal, approximately 58 percent of the proposed critical habitat water bodies occur on federal land, 36 percent are on private land, and 2 percent each are on state and tribal lands.

The main question for producers is how the proposed increase of critical habitat will affect grazing and other livestock-related activities on both public and private lands. According to the FWS website, "critical habitat designation does not affect all activities that occur on a designated area. It only affects activities that involve a Federal permit, license or funding and are likely to destroy or adversely modify the area of critical habitat."

Ranchers with federal lands permits will want to know whether grazing on federal lands bordering streams classified as critical habitat will be deemed destructive or an adverse modification, and whether permitees could lose allotments or animal unit months as a result of the designation. Ralph Thompson, FWS biologist, suggested that impacts to ranchers will likely be minimal as federal agencies leasing grazing lands where bull trout are presently found must already consult with FWS regarding activities potentially affecting bull trout. Further, much of the proposed bull head critical habitat is already being managed as critical habitat for salmon and steelhead trout. He added that there may be some new regulation for those sections of stream which are currently not occupied by bull trout or other protected species and have therefore not been previously regulated. However, these sections represent only 4 percent of the total.

Ranchers with streams designated as critical habitat running through private property may also be affected if they are seeking federal permits or are receiving federal funding. However, critical habitat designation does not allow government access to non-federal lands, nor does it impose any restrictions on private land use unless federal permits, funding, or activities are involved. In these cases, the government agency involved will be required to consult with FWS to determine impacts to the bull head trout, and determine how, or whether, a project can be executed.

While classification of a particular species as endangered or threatened does not bring economic factors into consideration, classification of lands as critical habitat does. ESA requires an economic analysis of critical habitat designation and allows that economic impacts be taken into account when deciding whether to classify land as critical habitat for a species.

A draft economic analysis projects that the potential cost of the proposed expanded critical habitat will be approximately $5 to $7 million a year over the next 20 years. About half of the potential costs are associated with additional consultation requirements for federal agencies. Other potential costs stem from possible fish passage improvements at dams, which are estimated at $2.1 million to $2.5 million a year spread among more than 70 federal and non-federal dams. Additional potential expenses, approximately $400,000 to $1.65 million a year, are associated with changes to forest management, such as removal of culverts and efforts to reduce sediment. FWS anticipates that costs to agriculture will be minimal.

FWS is soliciting public comment on the revised rule through March 15 of this year. Public meetings at various locations in the affected states are scheduled, as well as a public hearing to be held in Boise, ID, on Feb. 25. Information on how to submit an opinion, as well as times and locations of meetings, can be found on the FWS Bull Trout Web site: www.fws.gov/pacific/bulltrout. — Andy Rieber, WLJ Correspondent