ICIE Workshop hones in on bull trout critical habitat rule

The latest of ICIE’s annual “Gold Room Workshop,” held earlier this month, focused on bull trout, nearly 20 years after the U.S. Fish & Wildlife Service was petitioned to list the species.

Brian Kelly and Ted Koch of the US Fish and Wildlife Service joined Nate Fisher of the Idaho Office of Species Conservation and Norm Semanko of the Idaho Water Users Association in providing historical context and highlighting key issues on the topic for a session of the House Resources and Conservation Committee. The presentation was made to the Senate Committee on Resources and the Environment on Monday.

Kelly described the process for designating critical habitat in Idaho, noting that the critical habitat designation that the USFWS made in 2005 excluded 75% of the area designated in the original rule. Lawsuits were filed and in 2008 the Inspector General found fault with the proposed plan. The new plan designates a total of more than 9,000 miles of streams and 170,000 acres of lakes and reservoirs in Idaho.

Kelly said the economic impact of this plan will be minimal since 94% of this habitat is occupied and protected by original listing regulations. The USFWS compiled the final rule, addressing more than 1,100 comments from 350 commentators including federal agencies, tribes, the state, and the general public all related to water use.

Kelly noted that the primary impact of establishing critical habitat is to focus recovery efforts, including educating the public, collaborating with partners to restore habitat and water flows, implementing improvements in stream habitat and water quality, and protecting the species from direct take. He maintained that so much of the state is designated as critical habitat precisely because Idaho’s bull trout population is in such good shape.

“Bull trout have been listed since 1998, and we have not made a jeopardy finding. In all the areas where bull trout is doing so well, a listing of critical habitat does help focus critical habitat dollars for things like piping or fish screens for ranchers, for example, that want to engage in those actions.”

Fisher contended, however, that efforts to downplay this extension of critical habitat as “no big deal” are disingenuous, otherwise, why sue the federal government to extend it?

“Conservation groups and the Fish and Wildlife Service say it (critical habitat extension) won’t do much since the species is listed anyway,” Fisher says, “We differ … Their estimate of $5 to 7 million in economic impact is a gross underestimate.”

Fisher also maintained that extending critical habitat will have an impact on efforts to curb invasive aquatic species such as milfoil.

“Under critical habitat designation,” he said, “what consultation will we have to undertake to control these species with pesticide? We cannot simply dismiss this as another procedural practice of a federal agency and move on.”

Semanko outlined several points of contention with the rule, including what he called the arbitrary and capricious decision of Secretary of the Interior to fail to exert his discretion to exclude any particular area from designation on the basis of economic impact, when industry experts estimate over a billion dollars in potential costs in southwest Idaho.

Koch noted that so few exclusions were made to the new critical habitat designation because of the mechanisms needed in order to identify potential exclusions, like tribal management plans, did not exist in Idaho.

“We excluded from critical habitat designation those lands with a plan authorized by us with an endangered species permit, or Tribal management plan, and there were none of those in Idaho,” Koch said. “This is a simple fact – there is no judgment beyond that.”

Drawdowns of Dworshak Dam doesn’t impact one of the most healthy habitats for bull trout, Koch said. “So we would be hard pressed to find that this draw down would have an adverse impact.”

Semanko also pointed out that the designation of critical habitat as spelled out in the rule includes bankful streams and reservoirs. While the Bureau of Reclamation attempted to fix the rule by recognizing reservoir fluctuations, the USFWS didn’t concur. This decision, Semanko asserted, could be used to make the argument that drawing down reservoirs to deliver water constitutes “adverse modification of bankful streams and reservoirs.”

“The fact that an existing Federal project is not presently adversely modifying critical habitat does not mean that the same operations would not result in adverse modification under future circumstances,” he said.

Semanko said there are other adverse impacts of the rule, such as requiring federal agencies to ensure that their actions are not likely to destroy or adversely modify critical habitat. Federal regulations require federal agencies to re-initiate consultation on previously reviewed actions in instances where critical habitat has subsequently been designated. As a result, federal agencies may sometimes need to re-initiate consultation on actions for which formal consultation has been completed. This is exactly what happened with the Upper Snake Basin water project in southwest Idaho, Semanko said, which has undergone consultation pursuant to the Nez Perce Water Rights Agreement.

“It is unclear what new conditions may be required because of re-initiation of consultation,” Semanko said, “or whether such consultations will undo the existing biological opinions for salmon. This potentially impacts the entire region.”

Activities listed in the rules that may result in consultation include:
- Detrimental alteration of the minimum flow or the natural flow regime of any designated stream segment or water bodies,
- Alteration to designated stream segments or water bodies including construction, grazing, off-road vehicle use and mining,
- Detrimental alteration of channel morphology,
- Detrimental alteration to water chemistry,
- Activities that could spread invasive species,
- Activities that could create significant instream barriers such as diversions, impounds and hydropower generation.

Semanko invited USFWS to voluntarily remand this rule and examine potential economic and other impacts in Southwest Idaho for potential exclusion of reservoirs from the critical habitat designation.

Representative Boyle noted her chagrin that the new designation is so much more extensive than the last one. Koch countered that this 2010 modification is very similar to the originally proposed rule, from which the USFWS deleted 75%, an action which resulted in a law suit and with which the inspector general found fault.

Representative Boyle was unsympathetic.

“It appears to be a job protection for federal agencies and a job killer for Idaho,” she said.

Chairman Stevenson addressed the anxiety expressed by the committee members in attendance at the end of the presentation.

“You know why we seem a little spooked with talk about listing species,” he said. “We’ve been burned by the wolf issue.”