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NMFS memo admits critical
habitat designations baseless
NMFS official remarks “We just designate everything as critical,
without an analysis of how much habitat a [species] needs” |
The National Association of Home Builders (NAHB) recently uncovered a landmark intra-agency memorandum that could change the entire playing field where the Endangered Species Act (ESA) is concerned. In that document, Donna Darm, who until Oct. 1, was the acting Regional Administrator for the Northwest for the National Marine Fisheries Service (NMFS), admitted that NMFS’ critical habitat designations for west coast salmonids are baseless.
The Endangered Species Act limits critical habitat designations to only those areas that are “essential to the conservation of the species,” and it requires NMFS to weigh the economic impacts of critical habitat protection before it is designated.
In the memo, Darm said: “When we make critical habitat designations we just designate everything as critical, without an analysis of how much habitat an ESU (evolutionary significant unit) needs...” Darm added that no analysis of habitat need was performed “because we lack information.”
Consequently, NMFS has designated “everything” as critical habitat in over 150 watersheds throughout Washington, Oregon, Idaho and California. The designations have enormous regulatory impacts on the use of land and water because the ESA prohibits any federal project, permit, or federally funded action from “adversely modifying” critical habitat. Federal critical habitat is also a key trigger for many state and local land use restrictions such as those addressed in Kitsap County’s Critical Areas Ordinance.
The regulatory demands of critical habitat are applied through a process called “consultation” under Section 7 of the ESA. The document uncovered by NAHB includes comments by Darm on NMFS’ development of a habitat approach to consultation. She summarized NMFS’ habitat approach, now used in all consultations, as follows: “We just say we need it all.”
In a reference to the recent Alsea Valley Alliance court ruling that invalidated NMFS’ listing of Oregon coastal coho salmon as a threatened species, NAHB spokesman Duane Desiderio called Darm’s statements “an example of NMFS’ careless approach to ESA enforcement that has called all of its species listing decisions into question.” Desiderio added, “critical habitat designations will be the next bricks to fall out of NMFS’ regulatory wall.”
Asked to comment on the revelation, Kitsap County Commissioner Chris Endresen said, “ I know that NMFS declared pretty much the whole Puget Sound area as an ESU, so the comment isn’t surprising.”
She noted that, “There is a lot of misinformation regarding the ESA and 4(d) right now. The Oregon decision did not effect the listings of Puget Sound Chinook or Hood Canal Summer Chum. It is my understanding that NMFS is not delisting these species while they review the listing to see how it affects (or not) hatchery fish. So the county is continuing discussions with National Marine Fisheries through the end of the year to see if we can reach an agreement.”
Endresen also added, “Regardless of the ESA court decisions the county does have to comply with new national and state storm water and shoreline regulations and we will be working on those as well. Many people are confusing some of those with the ESA response and that is understandable since we are trying to combine them together rather than treating them separately. Those regulations also affect salmon habitat, but are not exclusive of it.
Commissioner Jan Angel took a different view, saying, “I am thrilled to see NMFS people finally making comments that I have tried to bring forward for a long time now. I hope people will now take a hard look at NMFS procedures again. I have made these requests before and was told, ‘We are doing what is best for Kitsap County — not just what NMFS has requested us to do.’ I still question what is being done in the name of ‘what’s good for Kitsap County.’ It’s also costing this county and its citizens hundreds of thousands of dollars and we still don’t really know why we are doing what we are doing.”
In court papers filed in September with a federal district court in California, NMFS conceded that it failed to consider the economic impacts of critical habitat designations for salmon and steelhead, but argued that designations should remain in effect while NMFS conducts a review limited to economic issues.
The NAHB along with the plaintiffs in the California lawsuit have filed a similar lawsuit in Washington, D.C., maintaining that NMFS’ failure to consider economics alone is reason to invalidate its critical habitat designations. Additional documents recently uncovered by NAHB confirm that NMFS’ critical habitat designations also lack any scientific foundation.
The NAHB leads a coalition of eight trade associations including the Home Builders Association of Kitsap County (HBA) and eight counties from four states who are challenging NMFS’ critical habitat designations in a federal lawsuit filed in Washington, D.C. The HBA filed comments during the open comment period on critical habitat designation in 1998 and is one of the original plaintiffs in the litigation.
The lawsuit also challenges NMFS’ designation of “essential fish habitat” for Pacific salmon on similar grounds.
For more information on those lawsuits, visit www.KitsapHBA.com/Salmon. |
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