January 20, 2010

Fish and Wildlife Service proposes dramatically to expand bull trout critical habitat

By Fish and Wildlife Service proposes dramatically to expand bull trout critical habitat

Author:  Damien M. Schiff

Last week, the U.S. Fish and Wildlife Service published a proposal to revise the existing critical habitat for the bull trout.  The proposal, covering some 22,000 miles of streams and 500,000 acres of lakes of reservoirs in Washington, Oregon, Idaho, and Nevada, is a significant expansion over the trout's current habitat, designated in 2005.  The proposal stems from a 2006 lawsuit filed by environmental groups, led by the Alliance for the Wild Rockies.  (PLF had intervened in that lawsuit, representing the Idaho Farm Bureau Federation and the Building Industry Association of Washington, to defend the 2005 designation).  The essential points of the Alliance's lawsuit were:  (1) the Service had used too high a standard for determing what type of occupied habitat qualified as critical, and (2) the Service had failed to designate unoccupied habitat.

While the lawsuit was pending, the Julie MacDonald controversy erupted.  The Interior Department's Inspector General issued a report contending that Ms. MacDonald, an Assistant Secretary of Interior, had inserted political and other impermissible considerations into the Service's critical habitat designation process.  In the report's wake, the Service conducted a review of several putatively "tainted" designations, one of them being the 2005 bull trout designation.  Ultimately, the Service successfully moved for a voluntary remand of the designation, and last week's proposal is the result.

It is certainly a fair question whether the Service's significant expansion of the bull trout's critical habitat is justified under the Endangered Species Act's rather strict definition of that habitat.

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