Volume 15, Number 4
Winter 2003

USFWS Legally Committed to Bull Trout Critical Habitat Protection
By Mike Bader, Consultant for the Alliance for the Wild Rockies

Alliance for the Wild Rockies and Friends of the Wild Swan recently completed successful negotiations resulting in a new Consent Decree with the U.S. Fish & Wildlife Service, which commits the agency to finalizing critical habitat designations for all bull trout populations in the lower 48 states. FWS acknowledges that they must designate critical habitat for the bull trout, as required by the Endangered Species Act. The agency's Washington office backed up the commitment in writing, stating bull trout are a priority species. The plaintiff groups were represented by attorney Jack Tuholske and consultant and legal assistant Mike Bader.

The decree, approved by federal U.S. District Court Judge Robert Jones in Portland, Oregon, contains several provisions spelling out a new timeline for the designations. Final designations for the Columbia and Klamath basins, comprising approximately 80% of all bull trout in the Northwest, will be due by September 21, 2004. Proposed designations for the Coastal-Puget Sound in Washington, Nevada's Jarbidge River, and the St. Mary River area in north-central Montana are due by June 15, 2004, with final designations by June 15, 2005. The FWS will also provide both the court and the plaintiffs with 90-day progress reports, detailing funding and progress in finalizing the designations.

The FWS has already published a proposal for critical habitat designations in the federal register, comprising more than 18,000 miles of rivers and streams and over a half million acres of lakes and reservoirs. This process represents the largest single designation of critical habitat in the history of the Endangered Species Act.

In addition to the settlement, the FWS has also sent a letter to the plaintiff groups detailing their commitment to completing the critical habitat designation process as set forth in the Consent Decree. In part, the letter states, "In particular, the Service will allocate sufficient funds available for critical habitat designations to meet the deadlines for the bull trout critical habitat designations which are scheduled for delivery to the Federal Register during FY2004 before allocating any such funds for any other purpose. The service regards the designations of critical habitat for bull trout a priority and is committed to doing everything possible to ensure they get completed by the agreed upon deadlines."

The new agreement, which is legally enforceable in court, may be a breakthrough for bull trout recovery efforts, which have followed a long and tortuous legal history. The plaintiff groups first petitioned for listing of the bull trout in October 1992, with the first listings coming in 1998. The ESA requires designation of critical habitat at the time a species is listed, or if insufficient information is available at that time, within one year of the date of listing.

Although the final designations will be at least 6 years late, the listing and recovery process has not been without significant progress. For example, the listing and the proposal for critical habitat were cited by government officials as key factors in the decision to remove and cleanup the Milltown Dam area on the Clark Fork River, which will also open up spawning for bull trout upstream to the Blackfoot River and the Rock Creek system. AWR, working with the Montana CHEER coalition, convinced Stone Container Corporation to donate $30,000 towards installation of a fish ladder on Rattlesnake Creek, which is now functional, and passing spawning bull trout and cutthroat trout.

Moreover, proposed critical habitat has protection under the ESA, and Section 7 consultations apply to any projects which may adversely modify or destroy proposed critical habitat.

The groups also noted that the bull trout is an economic indicator species, whereby the ESA process for bull trout will lead to many new jobs associated with watershed and habitat restoration.