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Habitat Setback for West Coast Fish
Jeff McLain thought he had a pretty good argument to limit or even stop gravel mining along the Merced River, at least up until this March. The river is home to fall run salmon, but that species is only a candidate for the endangered species list and doesn’t yet receive protection under the law. But the Merced River, which runs from Yosemite National Park, where it is a wild and scenic river, to California’s Central Valley, may once have contained steelhead trout, which do receive protection under the Endangered Species Act as a threatened species. Even now, fishermen say they catch steelhead in the waters of the Merced, although none of their fish stories have been confirmed.
But McLain, a habitat restoration coordinator for U.S. Fish & Wildlife, knew one thing for sure: the Merced is a prime candidate for the steelhead reintroduction. Rainbow trout, which are the same species as steelhead but don’t migrate to the ocean, already live in the river.
Because the National Marine Fisheries Service had designated the Merced River as critical habitat for steelhead, McLain felt that he had a good chance to protect the river so it could help in the recovery of the species.
But he hit a major roadblock this spring. In March, the National Marine Fisheries Service, under pressure from a lawsuit by the National Association of Homebuilders, offered to drop critical habitat designation for 19 threatened and endangered species of salmon and steelhead in California, Oregon, and Washington. The agency is going back to the drawing board to improve its analysis of potential economic effects of critical habitat designation. But with critical habitat on hold, Merced County, which plans to mine for gravel along the river, no longer must meet the ESA’s highest standard. Before they would have had to prove that their activity wouldn’t interfere with recovery of the species. Now they must still consult with agencies, but they only have to show that their mining operation won’t make the species go extinct.
This is only one of almost two dozen battles over critical habitat designation that are now in litigation, as business and water interests fight to win back territory lost to environmentalist lawsuits over the past decade. In all of these cases, critical habitat designation, which sets a higher standard for species protection, is being thrown out because of a faulty economic analysis, not because of any flaw in the government’s science.
Critical habitat is a particularly litigious aspect of the federal Endangered Species Act, partly because there are so many gray areas related to the concept. The law is very clear that science, not economics, should be the only criteria for listing species. But other factors, including economic considerations, must be taken into account when designating critical habitat, defined as an area deemed "essential to the conservation" of the species.
Put simply, critical habitat is where people’s desire to preserve species runs smack into their backyards. Politicians have often preferred to dodge the issue, rather than confront it. During the Clinton era, officials took the position that critical habitat was redundant; they said, in effect, that habitat designation offered no additional protection to species.
In the 1990s, declining budgets for endangered species protection were one of many reasons officials gave for failing to keep up with an enormous backlog, both for critical habitat designation and for listing itself. Today, less than 20 percent of listed species have had critical habitat designated, despite the law’s clear mandate to do so.
Because Clinton officials didn’t believe critical habitat added protection for a species, the economic analyses produced by federal agencies during this period found that designating habitat had little or no economic impact. Now these analyses are falling like dominos under legal challenges, many from the National Association of Homebuilders and its local and regional affiliates.
Craig Wingert, supervisory fish biologist at the National Marine Fisheries Service, said the agency agreed to settle the case because of recent court decisions that had found similar economic analyses inadequate. "The handwriting was pretty much on the wall. We thought we were going to lose our case," says Wingert.
The decision to settle a case brought by the National Association of Homebuilders will affect mostly unoccupied habitat, particularly for steelhead, according to Wingert.
Unoccupied habitat, which may be crucial for recovering a species to a thriving population, can be protected when it is included in federally designated critical habitat. But when critical habitat hasn’t been designated, many federal agencies take the position that consultation isn’t needed.
This decision could be an important one for steelhead, particularly in places like southern California, the extreme edge of their range. Because steelhead are more adaptable than salmon, they are likely to show up unexpectedly in a stream or pool where they have never been seen before. Biologists say that 80 percent of steelhead habitat is already gone.
Wingert says he doesn’t agree with the position that critical habitat doesn’t provide any additional protection for species.
"Just based on some of my experiences, I think there are some situations where critical habitat is not of any great value and listing is enough," Wingert says. "Where you have occupied habitat and you can make the case that an activity affects habitat or reduces survival, that is good enough."
"But in areas that are unoccupied, you can’t make the same argument. Not having critical habitat in place leaves you with one less regulatory tool."
The Endangered Species Act offers fairly wide latitude on the question of how much unoccupied habitat should be included in an area designated as critical. The law states that while unoccupied habitat that would help to recover a species can be included in critical habitat, it categorically states that it does not require the inclusion of all unoccupied habitat. That leaves a lot of room for debate – and lawsuits.
One of the other things confusing for the public is the level of protection required in critical habitat areas. Designating a place as critical habitat merely invokes consultation with a wildlife management agency when a development has a federal nexus. Such a nexus might be when another federal agency – such as the U.S. Bureau of Reclamation or the U.S. Army Corps of Engineers – is planning a water development, wetland, flood control or similar project. Private interests are thus forced to consult with wildlife managers only when another federal law, such as the Clean Water Act, is invoked.
Critical habitat has stopped development outright in less than half a percent of cases, although sometimes projects are redesigned to reduce impacts on sensitive areas.
Duane Desiderio, counsel to the homebuilders, says his organization’s members are concerned about the disproportionate effects of regulation on certain landowners. Desiderio says his organization is litigating about half a dozen critical habitat lawsuits, including cases involving the San Diego fairy shrimp, the red-legged frog, and the Alameda whipsnake.
According to Desiderio, environmentalists had developed a strategy to force the government to list species and designate critical habitat. Under pressure from court orders, "the agencies were doing a slipshod job," he says. "Broad critical habitat designation swept thousands and thousands of acres into a regulatory net."
"We don’t oppose the Endangered Species Act," says Desiderio. "We oppose the irrational ESA regulations."
Desiderio points to a 2001 court victory, New Mexico Cattle Growers Association vs. U.S. Fish and Wildlife Service, where a federal judge ruled that the government’s analysis of the economic impacts of critical habitat designation for the southwestern willow flycatcher was inadequate. The government had shown virtually no economic impact from critical habitat designation – the same conclusion that NMFS had put forward for anadromous fish on the West Coast.
The judge’s ruling that the economic analysis was inadequate, "had an impact throughout the Bush administration," says Desiderio. Kieran Suckling, the executive director of the Center for Biological Diversity, couldn’t agree more. The Center for Biological Diversity is the group that has most aggressively pursued litigation to force federal agencies to designate critical habitat. Like his foes, Suckling believes that critical habitat designation has some impacts – but he predicts the Bush administration will overstate rather than understate the economic impacts of designating critical habitat, radically changing course from previous administrations.
"These decisions play into the hands of the Bush administration," says Suckling. "They have been given a green light to grossly exaggerate the impacts."
NMFS’ Craig Wingert says it may take the agency several years to come up with a new and more legally defensible critical habitat designation approach. In the meantime, yet another lawsuit – this one brought by the Association of California Water Agencies – brings a separate set of challenges to critical habitat designation in California. In this case, which federal attorneys are hoping will be resolved once a final decision comes down in the homebuilders case, water agencies go a step further, asking the judge to establish specific criteria for economic analyses.
That case sets the stage for the next round of battles, as agencies get to work on new, court-ordered iterations of critical habitat designation. A recent decision by a federal court in Alabama found that critical habitat must use the higher "recovery" standard rather than simply preventing jeopardy to a species. That implies the protection of enough unoccupied habitat to recover — eg., delist a species — which might be perceived as a threat to commercial activity in places like the Merced River.
Environmentalists also are concerned about what will happen to salmon and steelhead if the agency withdraws critical habitat protections while it goes back to revamp its economic analysis. In Tucson, Arizona, critical habitat designation of 731,712 acres for the endangered cactus ferruginous pygmy owl was thrown out because of a similar court challenge by the homebuilders. The judge did not require that critical habitat protection remain in place while the agency revised its economic analysis. Real estate development has now reached record highs as developers race to take advantage of the window of opportunity.
What’s startling is how little analysis of the economic effects of critical habitat designation has been done. In Tucson, Arizona Daily Star reporter Tony Davis showed some economic impacts on mass-graded developments, but also revealed that individual landowners’ property values appeared to rise during the period that critical habitat was in effect.
Zeke Grader of the Pacific Coast Association of Fishermen’s Associations, fears if critical habitat designation is lifted while the agency conducts an economic analysis, coastal California will also see a real estate boom while the opportunity exists.
"The problem we have is we’re going to have this hiatus and it’s going to basically leave everything wide open. And a lot of damage can be done," says Grader. "I think this action sort of highlights what our fear was with this administration, that there would not be a head-on attack on most environmental regulations, they would not go in and try to do away with the ESA, Magnuson-Stevens, or the Clean Water Act. This is the most insidious attack on environmental laws that are absolutely critical for our industries, sport fishing and commercial fishing."
Seattle-based Earthjustice attorney Patti Goldman is on the legal team arguing that, in the case of salmon and steelhead, critical habitat protections should remain in place while the agency goes back to conduct a better economic analysis.
Goldman points out that critical habitat designation has already been approved through the regulatory process, which includes publication in the federal register and a public comment period. "The overriding point we made is that the government can agree to do more analysis but it cannot undo a protection by fiat," says Goldman.
The judge has ordered the National Marine Fisheries Service and the National Association of Homebuilders — the two parties who reached the agreement suspending critical habitat designation in early March — to respond to Earthjustice’s questions regarding interim protection. SZ
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