USFWS quadruples habitat for endangered fish, hikes scrutiny of grazing on federal land

By MATEUSZ PERKOWSKI, Capital Press 10/14/10

Cattle grazing, logging and mining on federal lands in several Western states may be subject to increased scrutiny due to the expanded critical habitat designation for the threatened bull trout.

The U.S. Fish and Wildlife Service has quadrupled the amount of critical habitat along rivers and shorelines, from 4,800 miles to 19,700 miles, in Washington, Oregon, Idaho, Nevada and Montana.

More than 488,000 acres of lakes and reservoirs in those states will now be designated critical habitat, up from about 140,000 acres.

"It seems the service has basically fallen on its sword and acceded to the environmental community's demand for more habitat," said Damien Schiff, an attorney for the Pacific Legal Foundation, a group that opposed the expansion.

In 2006, environmental groups filed a legal complaint against the agency for allegedly designating inadequate critical habitat for the protection of the bull trout, which has been federally protected as a threatened species under the Endangered Species Act since 1999.

When an area is designated as critical habitat on federal land, agencies are subject to a stricter regulatory standard in approving activities that could have an impact on the species.

Agencies must not only avoid jeopardizing the species, but they must also prevent harm to its habitat.

"With critical habitat, it's a much higher bar. You can't adversely modify critical habitat," said Michael Garrity, executive director of the Alliance for the Wild Rockies, an environmental group involved in the lawsuit.

After several years of litigation, the Fish and Wildlife Service agreed to reconsider the bull trout's critical habitat last year, ultimately resulting in the final designation announced on Oct. 12.

"I think the rule is based on science, and they did it right this time," Garrity said.

While the designation does offer more protection to the species, "the flip side is that it adds another layer of regulation," Schiff said.

The Pacific Legal Foundation disagrees with how the agency analyzed the economic effect on natural resource industries, he said.

Schiff said the critical habitat designation can act as the "straw that breaks the camel's back."

Instead of only weighing the economic effect of the straw itself, the agency should assess the full economic impact of the action, he said.

"At some point, you're going to reach a tipping point. You're going to cause economic harm as a result of excessive regulation," Schiff said. "It's just not convincing to say the regulated community won't see a difference in cost."

Schiff said the Fish and Wildlife Service appears to have bowed to political pressure by designating more than 800 miles of streams and 16,700 acres of lakes as critical habitat, even though these waters aren't actually occupied by the bull trout.

"That's certainly a significant change I'm very suspicious of," he said, noting that industry groups represented by Pacific Legal Foundation may decide to challenge the designation in court. "It's certainly not off the table."

Joan Jewett, a spokesperson for the agency, said only a small percentage of the total critical habitat is not occupied by the species.

Those unoccupied areas were included in the designation to connect waters that bull trout are known to inhabit, she said.

"Where they occur now is a fraction of where they used to occur," Jewett said.

Federal agencies must consult with the Fish and Wildlife Service when planning to undertake an action that could potentially harm the bull trout's habitat, which could affect grazing and other activities on federal land, she said.

However, 97 percent of the area in question was previously designated as critical habitat for other federally protected aquatic species, she said. "All of those types of consultations are already going on in the majority of these places."