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1998 Farm & Ranch Irrigation
rights and regulatory takings:
Organizations addressing property rights "takings" issues
Important US Supreme Court takings decisions
The CORD Index
HEADLINES & BRIEFS:
US Fish and Wildlife
Service has proposed critical habitat and a draft recovery
plan for threatened bull
trout in the Deschutes Basin and other river systems
Related articles and links:
A report on the 2001 Klamath Basin irrigation conflict spreads
among diverse institutions and factors. The joint Oregon
State-University of California project says changes, including resolution
of competing water claims, must be initiated by various participants to
avoid a future crisis.
Steelhead are swimming
again in Squaw Creek after a long absence; cooperating landowners could
seek ESA "safe harbor" protection available for restoring "experimental"
populations. Another program aims to restore chinook
and sockeye salmon to upper Metolious River reaches and tributaries.
The Deschutes Basin Land Trust announced it has completed purchase of a large parcel near Camp Sherman. The land trust was joined by Orvis, the venerable outdoor equipment company, in its effort to purchase 1,240 acres in the Lake Creek watershed from timber giant Weyerhaeuser and restore chinook and sockeye runs in that Metolious tributary. Orvis offered to match 3 to 1 any donations to the $3 million fund raising quest. Lake Creek was historically a leading chinook spawning stream and the gateway to sockeye spawning in Suttle Lake before upriver passage of the two anadramous species was blocked by dam construction on the lower Deschutes River.
rule was quickly challenged in a lawsuit by
environmentalists who claim it doesn't protect basin stream flows.
The course to implementation and emerging litigation over the new water rule will
be significant in shaping the future of regional land use and resource
National Academy of Sciences study commissioned by the Washington State
Ecology could set precedents for analyzing impacts of irrigation, dams
and other activities related to stream flows and fish survival in the
entire Columbia River Basin. The 18-month study, begun in early December
2002, involves a panel of 13 scientists. The Washington state agency
hopes the study could help break through the gridlock of
litigation and other obstacles that have impeded water decisions in the
basin. Washington's initiative is a prelude to begin new rule-making for
the state's jurisdiction over instream flows in the Columbia main stem
and "pools" created by the John Day and McNary Dams.
An ambitious plan to manage public lands in four states appears to have been shelved for lack of administration and federal agency support. The Interior Columbia Basin Ecosystem Management Plan (often called "Ice-bump") was conceived as an integrated ecosystem approach that would over 10 years coordinate efforts of federal agencies in Oregon, Washington, Idaho and parts of Nevada to manage 71 million acres, including 32 national forests and 16 Bureau of Land Management districts. Proposed by the Clinton administration in 1994--the year of the Northwest Forest Plan--the ecosystem effort was largely shunned by federal agency managers, criticized as weak in certain areas by environmental groups and often opposed at the local level as another layer of regulation. Agency managers say they can use the voluminous research compiled to date in future management plans.
Sisters group is working to establish a community trails system.
The draft plan was unveiled at a public meeting in 2003, followed by a
the trail map and kiosk in November--an event that included mountain
bike treks, hikes and horseback
rides on portions of the proposed trail system. Work is expected to
begin soon on a trail section that would link the Sisters High School
with a neighborhood to the northwest and existing Forest Service trails.
Central Oregon's appeal remains strong. Deschutes County's population grew to an estimated 126,500 by mid-year as reported in late November by the Population Research Center at Portland State University. This is a 3.6 percent rise from July 1, 2001 to July 1, 2002, compared with a 5.8 percent increase over the longer 14-month period from census estimates of April 1, 2000 and the PRC's July 1, 2001 figures. Sisters' population reached 1,080, a 12. 5 percent jump from 2001 to 2002, likely due to the impact of voter-approved annexations.
has released a proposal to thin dense stands of trees, burn or clear
brush and other potential wildfire fuels and close roads in 12,600 acres
of late successional reserve forest in the Metolius Basin.
The Forest Service says the actions will help restore forest health and
protect older growth trees.
A report from the Northwest Power Planning Council revises downward the possibilities of power shortages in the Northwest for the next several years. The council says the more optimistic forecast results from lower power demands since 2000-2001 shortages and the fact that additional power plants have either come online or could be available.
Amassive report analyzing the origins and impacts of 2001 water shutdowns in the Klamath Basin concludes that the absence of "timely and effective collaboration" by tribes, local, state and federal agencies, irrigators and others had impeded solutions to problems known for a decade.
Among other key points, the more than 400-page report, authored by researchers at Oregon State and the University of California, notes: "It should now be clear to all that the Endangered Species Act trumps other claims to water when the survival of a species is in question."
The report says there is continued uncertainty over competing water claims resulting from "incomplete status of water rights adjudication in the Oregon portion of the Klamath Basin."
Anticipating future problems in drought years, the report concludes that greater flexibility in water allocation, including water banks or other measures creating a transfer market, could have mitigated agricultural losses by up to 80 percent.
The report estimates that three-year average crop production in the Tulelake Irrigation District dropped from $38.7 million to $17.3 million. Some losses were offset by government programs permitting groundwater pumping and emergency payments, thereby shifting local economic impact "to the larger public."
Also noted were the social and psychological effects on families, resulting in mental and physical problems including depression, suicide and stress-related heart problems.
"The eleventh-hour nature of the decision to curtail irrigation allocations and the absence of compensation programs at the time of the decision contributed to its social and economic costs," the report concludes.
Addressing a fundamental question in the crisis, the report notes that "uncertainty exists about precise relationships between fish and water level or stream flows," in the Klamath Basin. Lack of information can result in those making decisions relying on "incomplete and imperfect data."
The report suggests actions needed to resolve issues:
--The federal government must commit to resolving "disparate directions" of federal agencies and mediating competing interests.
--Various interests sharing the effects of water scarcity in drought years.
--A framework for water management to include a council of federal, state and tribal governments to set policy and jurisdictions interests; a mechanism to coordinate various agencies; and a forum for negotiation among agricultural, tribal, environmental, urban and other water interests.
Link to the full report
A number of groups are joining in efforts to restore long-absent steelhead to the waters of Squaw Creek where they were once bountiful.
In doing so, private landowners and groups attempting to re-establish "experimental" populations also could benefit from protection allowed by federal fish and wildlife agencies under the Endangered Species Act.
The Sisters area steelhead project in effect strives to turn back the clock.
Steelhead began their decline in Squaw Creek even before construction of Round Butte and Pelton Dams, which created lakes Billy Chinook and Simtustus and impeded passage to the upper Deschutes habitat. They were mostly gone from the stream that flows through Sisters by the early 1960s. Today, steelhead are listed as "threatened" under the ESA in parts of the Deschutes Basin and other basins of the middle Columbia River watershed.
Apart from fish passage obstacles, the mixing of currents from the Metolius, Deschutes and Crooked Rivers in Lake Billy Chinook is thought to be a factor in fish decline. Researchers believe the fish may become disoriented by the multiple river currents. Reduced stream flows, from irrigation or other water uses including groundwater well withdrawals, may also have contributed to the steelhead demise.
Back to Home Waters
In the "Back to Home Waters" program, about 300 year-old steelhead were planted in April of 2002 in Squaw Creek at the Camp Polk Preserve, on land purchased and managed by the Deschutes Basin Land Trust.
The Trust was joined in the project by the Confederated Tribes of Warm Springs and Portland General Electric, both of which must take action to mitigate effects on fish created by dams as they apply for federal relicensing of the dams. Also joining in the Squaw Creek restoration are the Oregon Water Trust, the Deschutes Resources Conservancy, and the Upper Deschutes Watershed Council.
Steelhead are an ocean migrating, or anadramous, rainbow trout. The species is a "salmonid," as are bull trout. Some biologists say that without lab analysis of dead specimens, it?s difficult to determine if larger fish with rainbow markings have actually migrated to the ocean--or instead may have spent their adult lives in upper stream reaches.
Restoring steelhead to Squaw Creek could present a dilemma for landowners who might want to participate in fish-friendly projects. Steelhead are listed as endangered in many river basins under the federal Endangered Species Act. It might appear a cooperating landowner could invite restrictions that didn?t previously exist.
In other programs, researchers at Oregon State University and Pacific Gas and Electric among others are studying survival rates for chinook and sockeye salmon released for several years into headwaters of the Metolious and its tributaries. In March of 2002, about 50,000 chinook fry and 10,000 sockeye were released into the upper Metolius. Salmon fry derived from eggs of fish trapped at Pelton-Round Butte facilities were also released into the upper Metolius in 2000 and 2001.
Safe harbor agreements for experimental projects
There are, however, incentives for those who help restore "experimental" populations of species in areas where they have disappeared or might otherwise thrive. These so-called "safe harbor" agreements can protect landowners from litigation and administrative regulations that might arise from having steelhead on their property.
Some ways landowners might cooperate in steelhead, or other fish habitat projects, include providing easements to protect shorelines, improving stream habitat with addition of woody debris, and by conserving water through ditch piping or other means. The conserved water could theoretically improve stream flows for fish.
Landowners and any group participating in a habitat improvement or conservation program can inquire of federal agencies and project sponsors regarding written assurances and incentives, such as the safe harbor agreements.
In some conservation projects aimed to return water to instream flows, such as ditch piping, landowners should fully understand the effects of conserved water programs on their water rights.
Oregon's 1987 conserved water law, with subsequent revisions, allows a water right holder to "spread" or change the place of water use in exchange for allocating a portion of saved water to an instream right owned by the state. At least 25 percent of conserved water must go to instream flows, although the owner can agree to increase that amount. The owner retains 75 percent, except that amount is reduced in proportion to any third party funding, such as state or federal grants. An example would be state and federal funds used for piping of irrigation ditches.
Oregon law also provides an instream leasing program in which a portion of a water right can be returned to streams for a five-year period. This satisfies the beneficial use requirement that a right be used in at least one year of a five-year period. This is something individual surface right owners and irrigation districts might consider as a way to participate in water conservation.
In another program, the Oregon Water Trust purchases senior water rights with early priority dates, and then applies to the state to transfer them permanently to instream rights. The program compensates water rights owners with payments indexed to the number of acres for which they hold surface rights.
As with any decision regarding water rights, it's advisable to seek the opinion of an attorney or other professional with knowledge of state water law and federal regulations. Lee Hicks
In proposing bull trout critical habitat, US Fish and Wildlife Service was careful to emphasize it would affect private landowners primarily if actions on their property involved federal funding or permits.
This is the so-called "federal nexus" that triggers Section 7 mandates of the ESA. Essentially, Section 7 requires federal agencies to consult on any actions, or lack thereof, that might affect listed species.
In some cases the impact of Section 7 can be a surprise. A permit to make a change in a ditch headgate, for example, might make an irrigator subject to Section 7 purview. Or funding for irrigation improvements, such as ditch piping or habitat acquisitions, might come directly from a state agency or non-profit group but also include federal funds. This could bring the private property under Section 7 provisions.
One example of this occurred in the Methow Valley of Washington state, a portion of the upper Columbia River system which has steelhead and spring Chinook salmon listed as endangered, as well as threatened bull trout.
In the spring of 1999, the National Marine Fisheries Service decided the Forest Service would be "jeopardizing" endangered fish by issuing permits for several irrigation ditches to divert water that originated or flowed through federal lands. As a result, some irrigators could not open headgates in one of the largest snow runoffs in Methow Valley history. Alfalfa fields on private property went fallow.
In the Sisters area, Squaw Creek originates in wilderness and flows through Forest Service and Bureau of Land Management land on its way to meet the Deschutes. As such, it would appear the Section 7 ESA provisions could potentially affect irrigation and other activities along Squaw Creek. Lee Hicks
As with most legislation, the Endangered Species Act contains much boilerplate and stilted, often redundant language.
But provisions having the most critical impacts are found in few key sections that are open to widely differing interpretations. They outline what must be done by government and the private sector when a species listings is made--and the potentially heavy penalties for violations.
Some of the most debated provisions involve what constitutes "best scientific and commercial data" used for decisions to list a species and chart its continued protection and recovery.
A brief overview of ESA provisions:
The responsibility for making listings decisions falls with the Secretary of Commerce or Interior, whichever cabinet level department has agencies with plant and wildlife missions.
Under Commerce, the key agency was known as the National Marine Fisheries Service, what might be called a sub-agency of the National Oceanic and Atmospheric Agency. In 2002, however, NMFS (popularly prounounced "nymphs") was renamed NOAA Fisheries.
US Fish and Wildlife Service, the other key government agency, is part of the Department of Interior.
Section 3 of the ESA affords protection for all endangered and threatened species, "other than a species of the Class Insecta determined ..... to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man."
Section 3 also defines "critical habitat" as the, "specific areas within the geographical area occupied by the species, at the time it is listed".. "specific areas outside the geographical area occupied by the species"... "(that are determined) essential for the conservation of the species," and, "(areas) for which no critical habitat has heretofore been established."
Although broad in scope, Section 3 does provide that, "Except in those circumstances determined by the Secretary critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.."
In practice, the interpretation of habitat is left largely at the agency rather than cabinet level, leaving "the Services," as they?re known, with substantial power to make decisions.
Those decisions that result in listings must be made, "solely on the basis of the best scientific and commercial data available."
Besides Section 3, the sections most often cited in ESA discussions and media coverage include:
Section 4 stipulates that listing decisions be made, "solely on the basis of the best scientific and commercial data available to (the cabinet level officials) after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.."
Section 4(b) provides that an agency can designate "critical habitat, and make revisions thereto...on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact..." But the law allows for exclusion of, "any area from critical habitat if (the secretary of the cabinet department) determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned."
ESA listings often spawn an energetic dialogue over what constitutes "best scientific and commercial data," as well as areas that should be included or excluded from critical habitat.
Section 4(d) applies to threatened, rather than endangered species, and requires issues regulations deemed, "necessary and advisable to provide for the conservation of such species."
Section 7 requirements resulted in a lost irrigation season for many Methow Valley irrigators who divert on Forest Service land, and in effect served notice of things to come with ESA enforcement.
Section 7 requires that federal agencies "in consultation with" the listing agency "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species ... after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption.... In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available."
Section 9 defines the responsibilities and jurisdictions of ESA for "private persons," making it unlawful for landowners to "take" threatened or endangered species.
Section 10 provides a remedy for allowing the, "take" of a listed species with a permit, know as an "incidental take permit."
A permit to take listed species cannot be issued, "unless the applicant therefore submits...a conservation plan that specifies..the impact which will likely result...steps the applicant will take to minimize and mitigate (them)..funding that will be available..(and) what alternatives actions to such taking the applicant considered.."
Section 11 is the penalties and enforcement section of ESA. It describes penalties of as much as $25,000 for civil infractions to $50,000 in criminal cases and possible jail terms of a year.
This section that authorizes "citizen suits," in which private parties may file suit, with 60 days notice, to force compliance with ESA. The broad nature of this provision has prompted some observers to call it the "hammer" of the legislation. Lee Hicks
A new Deschutes basin water rule was adopted September 13, 2002, but environmentalists quickly argued in a lawsuit that it should be scrapped for failing to protect stream flows needed for fish and recreation.
The rule approved by the Oregon Water Resources Commission requires that new groundwater withdrawals be offset, or mitigated, with water from other sources to protect the lower Deschutes River. The water rule requires a groundwater permit and a mitigation plan to withdraw water for use on more than one-half acre.
Total basin appropriation is limited to an additional 200 cfs (cubic feet per second), more than the approximately 400 cfs in groundwater permits, conditioned and not, issued since the early 1990s.
As of last spring the state had not issued any groundwater permits since 1997 and more than 300 applications were pending, according to state officials.
WORD must review the 200 cfs cap, and possibly propose a revised water rule, after 150 cfs is appropriated--or no later than Jan. 1, 2008--and thereafter for each ensuing five-year period. In spring of 2002, the state had more than 55 pending applications for nearly 170 cfs. However, the applications at that time included those for the since-mothballed Cogentrix power plant, which would have used an estimated 8 million gallons per day for cooling.
Mitigation banks and credits
The rule provides for a mitigation "bank" and system of "credits," each equal to 1 cubic feet per second ( 7.48 gallons), or about 450 gallons per minute. Those provisions replaced an earlier "pay to provide system" that would have enabled permit applicants to purchase groundwater for $250 an acre foot.
Under the final rule, any mitigation must be within the same area affected by withdrawal and also in an amount equal to water consumptively used; that is, water consumed through plant transpiration, evaporation or movement to another basin, and which therefore does not return to surface flows in the Deschutes basin.
Mitigation would not be required of existing groundwater permits that were issued since 1995 with conditions they not reduce lower Deschutes stream flows. But without mitigation, those rights would be subject to Department of Water Resources regulation to protect flow--as in times of drought.
Lawsuit says stream flows will suffer
Organizations seeking charters as mitigation banks must apply to the state Water Resources Department, which will initiate a review and public comment process. Municipalities, irrigators, developers and conservation organizations were among those at the table in more than three years of public negotiations and meetings. State officials say the rule as hammered out is a consensus that reflects the key participants and public comment.
But the state court of appeals lawsuit by Water Watch of Portland, on behalf of 14 environmental groups, argues the mitigation rule violates the Oregon Scenic Waterway Act and Instream Water Rights Act. The suit says the acts are intended to protect stream flows on the Deschutes River below Round Butte-Pelton Dams.
The suit reasons that the hydrologic connection between groundwater and surface water means that additional groundwater use in the middle Deschutes--even with mitigation--will threaten the lower Deschutes. The suit does not ask that implementation of the rule be halted pending a court decision.
Rule opponents say it's a water "shell game"
In a position paper explaining its lawsuit challenging the water rule, Water Watch maintains that mitigation provisions would in effect "rob Peter to pay Paul" and reduce lower Deschutes stream flows.
Using a golf course as an example, the position paper says a course operator could obtain a 50 gallon groundwater permit and offset it by lining a leaky irrigation canal. The course would get a 50 gallon credit for conserving the water for instream use in the middle Deschutes.
However, by Water Watch?s reasoning, there would be a net loss of 50 gallons to the lower Deschutes, in that the water that previously leaked into the aquifer would not reach that part of the river. This scenario tracks conclusions of a US Geological Survey study that irrigation and other water percolating into the middle Deschutes aquifer makes its way to the river at or below Lake Billy Chinook.
The Water Watch position paper says the group does not oppose lining ditches that leak.
"We wholeheartedly support canal lining--as long as river flows are not reduced."
The new Deschutes mitigation provisions amount to a "shell game" that takes water away from the lower river, contrary to the state Scenic Waterways Act designation that protects fish, wildlife and recreational interests, Water Watch says.
Water watch has also objected in other published statements to the "spreading" provisions of the state?s conserved water law that allow up to 75 percent of water saved by projects such as canal lining to used for other purposes.
For the complete state water rule and related useful information, visit these links. Lee Hicks
The impact of water withdrawals on temperature, and potential quality, is rising as a key policy tool of state agencies enforcing provision of the federal Clean Water Act.
As a result, there will likely be mounting pressure on irrigators and other water users whose surface or well diversions lower stream flows and increase temperatures.
The temperature issue as applied to water quality has already prompted litigation and proposed legislation in Washington state.
In recent studies of Deschutes Basin streams, the Oregon Department of Environmental quality has concluded that many were at times suffering from warmer temperatures detrimental to fish spawning and rearing.
Even the Metolius River, considered icy by those wading it to fish, was deemed by DEQ to be above acceptable temperatures of 50 F degrees for bull trout spawning on a number of days. The DEQ stream temperature standards were revised downward in 1996 to a maximum of 64 degrees or less statewide except for cold water fish spawning and bull trout habitat. Those limits are 55 and 50 degrees respectively.
DEQ bases its water quality data on the number of days in which stream temperature exceeds the average of the warmest, consecutive seven-day period of the year.
For the Metolius in 2001 (the data used for the 2002 303d draft listing), that average rose above 50 F on 61 days at river mile 12, eight days at mile 29 and 110 days at river mile 32, as shown on the DEQ web site.
Besides in-stream readings, DOE also uses overflights with forward-looking infrared (FLIR) technology to pinpoint temperatures for comparison with instream readings.
Squaw Creek temperatures were also above maximum standards for much of the distance from its high-country mouth and through the Sisters area. Indian Ford Creek also exceeded the standards.
Some biologists have attributed Squaw Creek problems to increased withdrawals. They note temperatures increase all the way to Alder Springs in the lower reaches.
The character and depth of new diversion channels may have caused problems with Indian Ford, biologists have said.
Section 303d of the federal Clean Water Act requires states to identify problem streams in relation to their total daily maximum load (TDML) of pollution factors, including temperature, PH, dissolved oxygen, turbidity, conductivity, E. coli bacteria and nitrate.
The federal act also establishes conditions for state agencies to regulate effects of hydroelectric diversions on water temperature.
The US Supreme Court, in what was known as the "Elkhorn decision," upheld the states? authority to regulate federal dam permitting under Section 401 of the Clean Water Act. The 1994 case involved the Washington state Department of Ecology.
That agency, Washington?s counterpart to Oregon?s DEQ, has recently stepped up efforts to regulate irrigation diversions in the state?s Methow Valley. In a decision involving one irrigation district, the Washington agency limited diversions on the basis that increased temperatures would degrade water quality for fish listed under the Endangered Species Act.
As in the Deschutes basin, bull trout are listed as threatened in the Methow. Steelhead trout and spring chinook salmon and listed as endangered.
The irrigation district has since filed suit challenging the decision
and the issue has resulted in proposed new Washington legislation that
would limit the agency?s authority.
Acre-foot?A volume of water covering an acre of land to a
depth of 1 foot, or 325,851 gallons.
Irrigation water-use efficiency terms---
Federal agencies will get more time to fix fish plan
US District Judge James Redden in late June gave federal agencies a year to repair a salmon recovery plan for the Columbia River system that he had earlier concluded is flawed.
Redden?s earlier decision came in a suit by conservation groups who challenged the biological opinion issued in 2000 by NOAA Fisheries. The opinion, required under the federal Endangered Species Act, addresses operation of dams, fish harvest, habitat and hatchery operations.
Columbia and Snake River dams have been the focus of intense debate regarding their role in Northwest salmon recovery. The dialogue had pitted former Oregon Gov. John Kitzhaber against his fellow Northwest governors as he argued dams on the Snake River should be removed to aid migrating salmon.
Other governors contended the economic impact of removing dams would severely cripple the regional economy.
The federal agency backed away from recommending dam removal in favor of continuing to barge juvenile salmon and improving fish ladders and other fish passage devices at dams. The agency has also placed greater emphasis on improving fish habitat for anadramous fish spawning and rearing in sub-basins of the Columbia system.
The vision to create a Sisters community-wide trails network is coming into focus with the efforts of a volunteer citizens committee including local agency representatives.
By spring of 2003, perhaps before, Sisters residents will get a glimpse of how the network might come together.
Building on a community planning meeting in March of 2002, the committee is drafting a proposed plan that outlines more than two dozen possible trail segments with multiple non-motorized uses.
A design for trail information kiosks is well underway, along with language describing the trails system, user rules and etiquette.
While not all trails will be appropriate for every travel mode, the mixed uses will be for biking, hiking and horseback riding.
One objective is to connect existing trails, such as those on Forest Service or Bureau of Land Management lands, to other trails that join outlying neighborhoods. Ideally most trails would provide a path into the town of Sisters.
Among issues being addressed are gaining cooperation of private property owners for access as needed, working with county and state transportation officials to improve road shoulders, and developing a trails management and maintenance structure. The committee has drawn on experiences of other communities--including resort and recreation areas and municipalities. Lee Hicks
November 14, 2002
Contact: Joan Jewett, Portland, Oregon 503-231-6121
Questions and Answer For the Proposed Critical Habitat for Bull Trout ( PDF File 113 kb)Questions and Answer For the Bull Trout Draft Recovery Plan ( PDF File 106 kb)
Following nearly three years of collaboration with more than 120 stakeholders, the U.S. Fish and Wildlife Service today (Nov. 14, 2002) released its draft recovery plan for three distinct population segments of bull trout and proposed critical habitat for two of those populations.
The draft recovery plan contains recommendations for recovering bull trout in the Columbia River Basin, the Klamath River Basin and the St. Mary-Belly River Basin. Critical habitat is being proposed only in the Columbia and Klamath river basins at this time.
In January 2002, the U.S. Fish and Wildlife Service and the Alliance for the Wild Rockies and Friends of the Wild Swan reached a court settlement establishing a schedule for the proposal of critical habitat for bull trout. The two environmental groups sued the Service for not designating critical habitat after listing bull trout in 1998 and 1999 as threatened throughout its range in the lower 48 states. At the time, the Service had been unable to complete critical habitat determinations because of budget constraints.
In October 2003, critical habitat proposals will be made for the St. Mary-Belly River (Montana), Jarbidge (Nevada), and Coastal-Puget Sound (Washington) distinct population segments of bull trout. A draft recovery plan also will be released then for the Jarbidge and Coastal-Puget Sound populations.
Bull trout are protected as a threatened species, under the Federal Endangered Species Act, throughout their U.S. range, which includes parts of Oregon, Washington, Idaho, Montana and Nevada. Distinct population segments are groups of organisms from the same species that occupy geographically discrete areas. There are five distinct population segments of bull trout in the lower 48 U.S. states.
?We are grateful to the states, tribes, watershed councils, private landowners and representatives of industry and conservation groups who spent so much time working with our biologists to determine what it will take to protect and recover this wide-ranging but declining species,? said Anne Badgley, Regional Director of the Service?s Pacific Region.
The critical habitat proposal calls for a total of 18,468 miles of streams in Oregon, Washington, Idaho and Montana to be designated as critical bull trout habitat, along with 537,722 acres of lakes and reservoirs in those four states. The designations would apply only to the waterways. Adjacent lands would not be included.
The proposed critical habitat designations account for approximately 10 percent of the stream miles in those states. Across the four states included in the current proposal, the adjacent land ownership is 58 percent Federal, 36 percent private, 4 percent State and local, and 2 percent Tribal.
Today?s critical habitat announcement is only a proposal, Regional Director Badgley emphasized. The Service will be taking a close look at the descriptions in the next few months to determine whether this is the right approach. Among the items the Service will be considering is whether all the areas are essential to the conservation of the species. The public will have at least 60 days to comment on the proposal and provide comments and additional information. An in-depth economic analysis of the critical habitat proposal also will be done and made available for public comment before a final decision is made. The Service may exclude areas from the final description if the benefit of excluding them outweighs the benefits of including them.
?We will ensure that we?ve considered all information possible before final bull trout critical habitat designations are made,? Badgley said.
Nine public information meetings and nine public hearings will occur in January. Other public information meetings will be added and publicized as they are scheduled. Meetings and hearings currently are set for:
? January 7, 2003 Wentachee, Washington West Coast Wentachee Center Hotel, 201 North Wenatchee Avenue
? January 7, 2003 Polson, Montana KwaTaqNuq Resort, 303 USHwy93
? January 7, 2003 Salmon, Idaho Salmon Valley Center Meeting Room, 200 Main Street
? January 9, 2003 Spokane, Washington West Coast Grand Hotel, 303 West North River Drive
? January 9, 2003 Lewiston, Idaho Red Lion Hotel, 621 21st Street
? January 14, 2003 Boise, Idaho AmeriTel Inn/Boise Spectrum, 7499 West Overland Road
? January 14, 2003 Eugene, Oregon Hilton Eugene & Conference Center, 66 East 6th Avenue
? January 16, 2003 Pendleton, Oregon Red Lion Hotel, 304 S.E. Nye Avenue
? January 22, 2003 Klamath Falls, Oregon Shilo Inn, 2500 Almond Street
Informal information meetings will be from 1 p.m. to 3 p.m.; Formal public hearings will be from 6 p.m. to 8 p.m.
The proposed critical habitat designations are patterned after the 23 recovery units identified in the draft recovery plan for the Columbia River and Klamath River distinct population segments. The information developed by the recovery unit teams in each of the units, and the science underlying that information, are the basis for the critical habitat proposals. The critical habitat proposal and the draft recovery plan are closely linked. However, critical habitat is designed to provide for the conservation of a species and requires special management, whereas a recovery plan is a much larger blueprint providing guidance for the recovery and eventual de-listing of a species.
The recovery units are largely based on watersheds and river basins and parallel existing state plans as much as possible. More discussion of recovery objectives can be found in the accompanying Recovery Question and Answer document and individual recovery unit documents. Recovery plans are advisory only and carry no regulatory authority.
?We expect recovery of bull trout to be a complex, dynamic process occurring over a long time,? Regional Director Badgley said. ?Ultimately, bull trout recovery will depend on cooperative partnerships and interagency collaboration.?
The draft recovery plan included in today?s announcement were developed with the cooperation of 24 Bull Trout Recovery Teams of Federal, State, Tribal and private biologists working with representatives of local watersheds, private landowners, industry and conservation organizations. These teams included experts in biology, hydrology and forestry, as well as natural resource users and stakeholders with interest and knowledge of bull trout and the habitats they depend on for survival. In all, 127 stakeholders participated, in addition to Federal, State and Tribal biologists and policy managers.
?This was truly a collaborative process with input from a broad array of local interests,? Regional Director Badgley said.
Critical habitat designates areas that contain habitat essential for the conservation of a threatened or endangered species and which may require special management considerations. These areas do not have to be occupied by the species at the time of designation. A designation does not set up a preserve or refuge or signal any intent by the Federal government to acquire or control lands or waters. It does not close an area to human access or use, such as fishing or boating.
Critical habitat designation requires Federal agencies to ensure that any activity they fund, carry out or authorize is not likely to destroy or adversely modify a protected species? critical habitat. By consulting with the Service, an agency can usually minimize or avoid any potential conflicts with listed species and their critical habitat, and the proposed project may proceed.
Bull trout are members of the char subgroup of the salmon family. They require very cold, clean water to thrive and are excellent indicators of water quality and stream health. Char have light-colored spots on a darker background, reversing the dark-spots-on-light-background pattern of trout and salmon. Bull trout have a large, flattened head and pale-yellow to crimson body spots on an olive green to brown background. They lack teeth in the roof of the mouth.
Some bull trout populations are migratory, spending portions of their life cycle in larger rivers or lakes before returning to smaller streams to spawn, while others complete their entire life cycle in the same stream. They can grow to more than 20 pounds in lake environments and live up to 12 years. Under exceptional circumstances, they can live more than 20 years.
Bull trout have declined due to habitat degradation and fragmentation, blockage of migratory corridors, poor water quality, past fisheries management, and the introduction of non-native species such as brown, lake and brook trout. While bull trout occur over a large area, many of the populations are small and isolated from each other, making them more susceptible to local extinctions.
The Columbia River Basin and Klamath River populations of bull trout were listed as threatened in June 1998. Three other populations of bull trout were listed in 1999 as threatened: Coastal-Puget Sound (Washington), St. Mary-Belly River (Montana) and Jarbidge River (Nevada). Critical habitat will be proposed for those populations in October 2003.
A 90-day public comment period for the draft recovery plan will begin when the official Notice of Availability is published in the Federal Register. At this time, the publication date is unknown. As soon as it is determined, the Service will issue a news release advising the public that the comment period has begun. Once the comment period opens, comments on the draft recovery plan may be mailed to the U.S. Fish and Wildlife Service, Snake River Basin Office, Attn: Robert Ruesink, 1387 S. Vinnell Way, Room 368, Boise, ID 83709; faxed to 208-378-5262, or sent via e-mail to [email protected]
The publication date for the critical habitat proposal also has not yet been established. Upon receiving a publication date, the Service will announce the opening of the 60-day comment period. After that, comments may be sent to John Young, Bull Trout Coordinator, U.S. Fish and Wildlife Service, 911 N.E. 11th Avenue, Portland, OR 97232. Comments may also be submitted on our Bull Trout Website at http://species.fws.gov/bulltrout or faxed to John Young at 503-231-6243.
Maps, fact sheets, photographs and other materials relating to today?s announcement may be found on the Pacific Region?s Bull Trout Website at http://species.fws.gov/bulltrout. Video of bull trout is available to television stations by calling our Regional External Affairs Office at 503-231-6121.
The U.S. Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting and enhancing fish, wildlife and plants and their habitats for the continuing benefit of the American people. The Service manages the 95-million-acre National Wildlife Refuge System which encompasses 540 national wildlife refuges, thousands of small wetlands and other special management areas. It also operates 66 national fish hatcheries, 64 fishery resource offices and 78 ecological services field stations. The agency enforces Federal wildlife laws, administers the Endangered Species Act, manages migratory bird populations, restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their conservation efforts. It also oversees the Federal Aid program that distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to state fish and wildlife agencies.