NMFS proposes settlement, agree that salmon issue requires 'sound science'

Steelhead Habitat Must Be Determined by Sound Science

WASHINGTON, March 11 /PRNewswire/ -- In court documents submitted today in the U.S. District Court for the District of Columbia, the National Marine Fisheries Service (NMFS) agreed to rescind its current critical habitat designation for 19 West Coast salmon and steelhead populations and craft a new designation based on sound science and an analysis of the economic impacts. In turn, as part of this proposed settlement filed by NMFS, the National Association of Home Builders (NAHB) agreed to dismiss its Endangered Species Act (ESA) suit against the federal agency.

"We applaud the government for doing the right thing," said Bruce Smith, NAHB's Immediate Past President and a builder from Walnut Creek, Calif., who is active in the association's ESA reform efforts. "This proposed agreement marks a major turning point in how we protect threatened and endangered species under the ESA. From day one, NAHB has said that environmental protection of salmon should be based on three key elements: the law, sound science, and a consideration of the economic impacts."

In its critical habitat lawsuit filed in June of 2000, NAHB and 16 other groups asserted that the areas designated as critical habitat by NMFS are "excessive, unduly vague, not justified as essential to conserve the listed species, and not based upon a required analysis of economic impacts." NAHB also argued that "the critical habitat designations are not justified by fact or law because NMFS designated every possible habitat area and adjacent or connected non-habitat to avoid the necessary work of determining what areas are actually occupied by, and essential to, the conservation of the listed salmon and steelhead." NAHB also argued that NMFS did not determine that these areas were critical to salmon or steelhead.

The designation challenged by NAHB encompasses a geographic region spanning 150 watersheds, river segments, bays and estuaries throughout Washington, Oregon, California and Idaho.

Background Information: Under the ESA, NMFS -- a part of the U.S. Commerce Department and the lead agency on protection efforts for fish that migrate up rivers from seas to breed, such as salmon -- must designate specific geographic areas that are essential to the conservation of species and that require special management, protection or land/water use restrictions. These specific geographic areas are known as the "critical habitat" of the species.

The critical habitat designation has 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 designation is also a key trigger for many state and local land use restrictions.

NMFS and other agencies with ESA oversight such as the U.S. Fish and Wildlife Service cannot designate entire stretches of land that are not considered essential to the species. As the ESA states, "critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species." The ESA also requires that critical habitat designations be based on the best available scientific and commercial data and consideration for economic impacts.

"Designate everything as critical": Underscoring the magnitude of NMFS' erroneous critical habitat designation for the 19 salmon and steelhead populations, NAHB recently uncovered and submitted in court a 1998 intra- agency memorandum in which a high-level NMFS official based in the Northwest stated that "When we make critical habitat designations we just designate everything as critical, without an analysis of how much habitat ... " is needed for a salmon population. The official added that no analysis of habitat need was performed "because we lack information."

Commenting on the proposed settlement agreement submitted by NMFS on March 11, Bruce Smith of NAHB added that, "with this agreement on our mutual obligations under the ESA, NMFS concurs with NAHB on the need for salmon protection that uses better scientific data. NMFS also agrees with NAHB on the need for salmon protection that considers the economic impact on communities in Washington, Oregon, Idaho and California. This agreement gives us a chance to work together and create a more balanced approach. Ultimately, we think we can come up with more science-based salmon protection and environmentally sensitive land use while still meeting housing demand in these communities. We look forward to working with NMFS and environmental groups to achieve these goals."

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