Pacific Salmon and Steelhead Critical Habitat Designation

The National Marine Fisheries Service (NMFS) designated almost 9,000 miles of West Coast river habitat and nearly 500 square miles of estuary habitat in the San Francisco Bay area as protected critical habitat for the chinook salmon and steelhead under the Endangered Species Act (ESA), thereby adversely impacting millions of Americans living and working in California. By its own estimate, the designation of critical habitat for these species produces economic costs of over $81 million. Because activities in the watershed might affect the critical habitat of the rivers, anyone conducting activities within the watershed may incur substantial costs, even if there is no direct modification of the river or estuary habitat. Including the watersheds, the regulation effectively subjects nearly the entire coast of California plus substantial inland stretches to potential costs under the ESA.

The rule is problematic for many reasons. The agency violated its own past policies and regulations by applying a much more discretionary policy in the final rule than the more restrictive policy it stated it would use in the proposed rule. In the ESA Listing, NMFS distinguished between resident (rainbow trout) and migratory (steelhead) O. mykiss species, even though NMFS had found that both are part of the same species inhabiting the same ecosystems —and therefore are not distinct population segments. Thus, treating migratory and resident O. mykiss differently results in an inconsistent and artificial species definition that is not supported by the ESA. NMFS then focused solely on the viability of “naturally spawned” steelhead species in making its ESA listing, failing to consider the role hatchery steelhead in recovery efforts, yet listed both naturally spawned and hatchery steelhead as part of the protected population. This is contrary to the ESA, which requires NMFS to review the status of the species or the distinct population segment of the species—not merely a portion of the species or distinct population segment. Then, NMFS decided only to protect a portion of a species using take prohibitions, arbitrarily excluding hatchery O. mykiss without adipose fins even though they could be used for conservation purposes. In sum, the regulation is costly, has expansive application, and is founded on an arbitrary listing.