|Nethercutt Letter from
Washington State Farm Bureau President
(Note: We need a good grassroots response to the Bull Trout Listing. This letter we went to Congressman Nethercutt contains some good information for responding.)
January 16, 2003
The Honorable George Nethercutt
U.S. House of Representatives
223 Cannon House Office Bldg.
Washington, D.C. 20515
RE: USFWS Illegally Listing Critical Habitat for Bull Trout
Dear Representative Nethercutt:
As you are probably aware, on November 29, 2002, the United States Fish and Wildlife Service (USFWS) sent two proposals out for public comment. One proposal, the Critical Habitat Designation for Bull Trout, is a Federal Register Rule that is 651 pages long and includes the listing of approximately 18,471 miles of streams and 532,721 acres of lakes in Idaho, Montana, Oregon and Washington.
There are approximately 2,507 miles of streams and 30,896 acres of lakes to be designated in the state of Washington. The adjacent land ownership is 58 percent federal, 36 percent private, 4 percent state and local, and 2 percent tribal. In the state of Washington, 54 percent of the adjacent land ownership is private and 73.5 percent of the Columbia River is included in the designation for CH.
The second proposal, the Bull Trout Recovery Plan, is more than 650 pages, and would impact a much larger area than the critical habitat designation. The proposed critical habitat rule and the draft recovery plan are closely linked. The difference between the two proposals is: "critical habitat refers to areas determined to be essential to the conservation of the species, whereas a recovery plan is a much larger blueprint for the recovery and eventual delisting of a species, as it provides recommendations concerning habitat and various other factors that need to be addressed to achieve recovery," according to the USFWS.
USFWS is in the process of holding hearings throughout Washington, Idaho, Montana and Oregon to allow public comment on these two voluminous proposals. At those meetings, spokespersons from USFWS are telling the public that these rules will not impact private property. However, they go on to tell landowners that if there is a federal nexus to anything they do on their property, they may have to have a Section 7 consultation under the Endangered Species Act. It is likely that the critical habitat designation will significantly increase the number of ESA section 7 consultations, as well as increasing the impacts from those consultations. With regard to farmers, the section problem takes on an even greater role since one court has ruled that federal farm payments alone can be enough of a federal nexus to require initiation of the ESA section 7 consultation. Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998).
Washington Farm Bureau has more than 30,000 members representing farmers and ranchers. We believe that these rules will have devastating impacts on our members, the rural communities in Washington, and the economy of Washington. Our preliminary analysis of the rules indicate:
The rules are being illegally promulgated in violation of the ESA -- The ESA (16 U.S.C. Sec. 1533 (b)(2)) requires that the USFWS conduct an economic analysis of all costs associated with the listing of critical habitat. USFWS has not done this. They say that they will conduct an economic analysis later and then allow the public to comment on that analysis. Splitting the economic analysis from the actual critical habitat designation does not meet the requirements of the ESA. New Mexico Cattle Growers Association et all v. United States and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). Furthermore, the public needs the economic analysis to be able to comment on the critical habitat rule. In addition the ESA requires that USFWS evaluate "all relevant impacts" of CH designations, not just the economic impacts. 16 U.S.C. Sec. 1533(b)(2). In this critical habitat designation for Bull Trout it seems that USFWS also has not complied with this legal requirement necessary prior to designation of critical habitat.
The rules do not comply with OMB's requirement for the agencies to use good data -- In September of 2001, the Office of Management and Budget published credible data regulations in the Federal Register (66 FR 49718-01). The rule requires USFWS to only use information that has been reviewed and substantiated before the information is disseminated. There are numerous places in the Bull Trout Critical Habitat Designation and the Draft Recovery Plan where USFWS simply makes statements that are derogatory about agriculture without any substantiation. In other places the document references various state agencies as the source for its negative statements about agriculture; however, it seems that USFWS did not substantiate or review this data as required by OMB's rule. The Critical Habitat Designation and Bull Trout Recovery Plan appear to rely upon many findings or statements of "fact" from state regulatory agencies that have not been verified or peer reviewed. This data needs to be reviewed and verified objectively and independently before it is used as the basis for such a broad-reaching Critical Habitat Designation or Bull Trout Recovery Plan. This is a self-perpetuating problem -- federal agencies rely upon untested state data; then once these alleged "facts" or "findings" are published in the federal rule, they are used by the state to justify local regulatory efforts, or by environmental organizations to demand stricter rules. Fish & Wildlife needs to independently determine the validity of the data before relying on it for such a far-reaching Critical Habitat Designation and Recovery Plan. Unfortunately, once Critical Habitat Designations or Recovery Plans are adopted, it is virtually impossible to rectify errors; even when good science proves original assumptions to have been wrong.
Citizens need more time to be able to comment on such lengthy documents that will have such a negative impact on their land and livelihoods -- The U.S. Fish & Wildlife Service has spent four years developing its Critical Habitat Designation, which covers 651 pages in the Federal Register, and its Bull Trout Recovery Plan, which covers 650 pages. The Critical Habitat Designation would affect more than 18,000 miles of streams and rivers and nearly 31,000 acres of lakes in Idaho, Montana, Oregon and Washington. It would include nearly three-quarters of the Columbia River. The Bull Trout Recovery Plan would encompass an even greater area. It is unreasonable and unfair to expect private citizens and organizations such as the Washington Farm Bureau to respond to such an overwhelming amount of data, with such broad-reaching implications in 60 to 90 days. It seems that USFWS is trying to bury us in unsubstantiated data with an impossible response deadline.
This is an example of what is wrong with the ESA and indicates that we need true reform this session
USFWS apparently spent four years developing a Critical Habitat Designation and Recovery Plan without complying with the ESA, the OMB requirement, and without considering the economic impact of its suggested Critical Habitat and Recovery Plan for Bull Trout. This is not acceptable.
We ask you to please help us bring some common sense to the ESA and Bull Trout issues in the state of Washington. We will be contacting Steve Williams, Director of USFWS, to request an extension of time. Please support us in this request.
We look forward to working with you in the future on this and other issues impacting agriculture in the state of Washington. The impact of the ESA is getting worse, not better. We truly appreciate your leadership on these issues and others impacting agriculture in the state of Washington.
Steve Appel President
Washington Farm Bureau
1011 10th Ave. S.E.
P.O. Box 2009
Olympia, Washington 98507-2009
Craig Manson, Assistant Secretary for Fish, Wildlife and Parks, DOI
David P. Smith, Deputy Assistant Secretary for Fish, Wildlife and Parks, DOI
Steven A. Williams, Director of (U.S.) Fish & Wildlife Service, D