Maine’s Atlantic Salmon Proposal Could Be Costly In Many Ways

The U.S. Fish and Wildlife Service (USFWS), combined with the National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC) and Department of Interior (DOI), is proposing to create a new Distinct Population Segment (DPS) of Atlantic salmon that, if allowed, will entail nearly two-thirds of the state of Maine, when combined with the existing DPS.

In November of 2000, the feds created a DPS for Atlantic salmon that involved basically eight rivers of eastern Maine and much of its watershed.

The GOM DPS was defined as all naturally reproducing wild populations and those river-specific hatchery populations of Atlantic salmon having historical, river-specific characteristics found north of and including tributaries of the lower Kennebec River to, but not including, the mouth of the St. Croix River at the U.S.-Canada border. In the final rule listing the GOM DPS, we did not include fish that inhabit the mainstem and tributaries of the Penobscot River above the site of the former Bangor Dam, the upper Kennebec River, or the Androscoggin River within the GOM DPS (65 FR 69469; November 17, 2000).

The new proposal intends to create another new DPS which will include the three main rivers of the state – the Kennebec, the Penobscot and the Androscoggin – and all of their tributaries and watersheds. (see included map)

Before getting into the affects this proposal may have on Maine’s economy and the Atlantic salmon, lets first address an issue that, from what I can see, is not even being discussed but could come back and derail the entire process once lawsuits begin gathering at the doorstep of the Department of Interior. This involves Distinct Population Segments.

Back this past September, Judge Paul Friedman in a Washington, D.C. courtroom, made a ruling that involved returning gray wolves in the Western Great Lakes region back to federal protection under the Endangered Species Act. What’s that got to do with Atlantic salmon? Good question. (You can read the complete ruling of Judge Paul Friedman here.)

Friedman’s ruling, considered by some as “shameful“, may have created a conundrum that few, if any, will see until it’s too late.

Friedman ruled that the reason the wolves had to be placed back on the Endangered Species List was because the USFWS cannot create a Distinct Population Segment within a Distinct Population Segment. Essentially what he ruled was that because in 1978 the USFWS declared wolves endangered or threatened in all 48 lower states, they couldn’t now create a DPS out of that, in other words the Western Great Lakes wolf population.

In 1978, the gray wolf (Canis lupus) was listed as threatened in Minnesota and endangered throughout the rest of the conterminous United States. On February 8, 2007, the United States Fish and Wildlife Service (“FWS”), an agency within the Department of the Interior, promulgated a final rule revising the wolf’s listing status. See 72 Fed. Reg. 6052 (Feb. 8, 2007) (the “Final Rule”). The Final Rule did not affect the listing status of the gray wolf everywhere. Rather, it designated a cluster of gray wolves in the western Great Lakes region as a “distinct population segment,” or DPS. It then removed the wolves within the western Great Lakes DPS from the endangered species list. The Final Rule did not change the listing status of gray wolves outside the boundaries of the western Great Lakes DPS.

His reasoning, as I understand if from his ruling, is because the Endangered Species Act does not provide a definition of what a DPS is. Oddly and confusingly enough, Friedman, in his very own ruling seemed to contradict himself by saying the USFWS had the authority to create Distinct Population Segments, but in this case they couldn’t.

In another unusual move, he remanded the case back to the USFWS for a definition. In consulting a lawyer, I was told that this move was unusual because to remand a case usually involves sending the case back to a lower court. There was none in this case.

In any case, I have been told by some, including legal council, that although Friedman’s ruling doesn’t come right out and say it, he may have created a mess. Some feel that his ruling now makes it impossible for the USFWS to create any Distinct Population Segments. If this is the case, we now have to ask the questions as to whether or not the USFWS and the NMFS has the legal authority to create a new DPS of Atlantic salmon in Maine. One would think this could at least be challenged in court.

But as I said, this mess may not even rear its ugly head until long after the feds have decided whether to strap the state of Maine by essentially locking up two-thirds of the state in order to protect the habitat of the Atlantic salmon.

It has been 8 years since the feds declared rivers and watersheds in Eastern Maine off limits in order to allow the Atlantic salmon to grow. Since that time minimal change in the number of salmon in the rivers has occurred. Of course we have to wonder if declaring more waters critical habitat will do anything more for the Salmon or even if the effort will destroy the fragile and struggling Maine economy.

Many have argued this point. I read one article where someone said that back in 2000 the argument was used that listing the Downeast region critical Atlantic salmon habitat would destroy the economy there. They now show proof as the Downeast economy as remaining unchanged.

I offer a few things in rebuttal to that. Without meaning any offense to anyone Downeast, it’s hard to destroy an economy that doesn’t exist. The other argument that can be made is that when considering the geography and population densities of Washington County and Eastern Maine, compared with the areas surrounding the Penobscot, Kennebec and Androscoggin rivers and their watersheds, there are astounding differences. And, we can’t lose sight of the fact we are in the middle of an economic crisis of which we have to wonder if this piling on of listing the Atlantic salmon would be too much for Maine or the federal government to handle?

I know of no one who does not want to see a return to Maine of Atlantic salmon. The question has to be, at what expense compared to the results of the effort? It would seem to me that much of the effort that has taken place all across Maine has contributed to the minimal successes we have seen for the Atlantic salmon. With continued efforts, that would include the anticipated removal of some dams in these rivers and construction of fish ladders at others, we can continue moving forward with that progress without the interference and numbing, crippling restrictions of the federal government and administrating the Endangered Species Act.

I did a bit more asking around and gathering information on areas this listing would affect that maybe many of you haven’t even considered. I received information from an anonymous source about one aspect of how a listing would affect us all. Below is a map of Maine that shows the regions that would be effected by an Atlantic salmon listing. Areas in red show the existing area of critical Atlantic salmon habitat. The green and gray encompass the area that will be affected by the new proposal.

As you can see, the creation of this area as critical and protected Atlantic salmon habitat is enormous when compared to the entire geographical scope of the state. What this would mean to each and every citizen is actually unclear as is always the case in dealing with the Endangered Species Act and especially when specific cases end up in our courts which have historically disregarded science, the Commerce Clause and the intent of the ESA.

One area that has already had a broad sweeping affect on Maine residents has been the Department of Transportation. The MDOT has opted to take the position that assumes the listing will occur. A memo was sent out to supervisors of DOT that will be affected by an ESA listing.

Almost all instream work will need to be reviewed under Section 7 of the Endangered Species Act. Although these changes have not been finalized (there is still time period for public hearings) we will have to treat them as if they have. The reason for this is pretty simple. If the habitat is designated when we are halfway through a project, all stream work will have to cease until consultation can be completed. When habitat is proposed, rather than designated, the process is referred to as a conference rather than a consult, but otherwise the process is the same. I will have to send a scope of work and a map to Dan Tierney, a biologist in our Environmental office in Augusta. Dan will do a screening which can take a few days. That said, there is a potential for formal conferencing, which can take six months or longer to process. Plus I will also have to have John Perry, a fish biologist out of our Environmental office, conduct a habitat assessment before Dan can get the ball rolling on the conference. Once the habitat is listed John may not be able to shock streams in the habitat without a USFWS or NOAA biologist on the scene which will take even more time. So what does all this mean to you? It is even more important that you get me scopes of work on instream work as soon as you can. It is never too early to get me that information. I will need to know existing conditions such as the existing length and existing diameter. I will also need to know the proposed length and diameter of what you want to put back. If you know of any instream work for next summer let me know now so I can get the ball rolling.

For those who don’t have a copy and/or would like to read the amended Endangered Species Act of 1973, can do so by clicking this link. Below I’ve provided only a portion of Section 7 of the Act, as was mentioned above as a necessary step before any work can be done by the MDOT in AS designated habitat areas.

SEC. 7. ø16 U.S.C. 1536¿ (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.
(2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘‘agency action’’) 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 which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee
pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the
prospective permit or license applicant if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his project and that implementation of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 4 or result in the
destruction or adverse modification of critical habitat proposed to be designated for such species. This paragraph does not require a limitation on the commitment of resources as described in subsection
(d)

What does all this mean? As I said before, it’s really hard to say precisely but there are some things that are revealed through this memo that definitely will happen and that’s the slowdown of all work within the DOT that might affect critical habitat of the Atlantic salmon. That slowdown will cost money, so you can expect your taxes to increase to pay for the added time and expense of administering the Act.

That culvert repair or replacement at the end of your driveway, may not happen this year or next or perhaps not at all. Bridge construction statewide in areas of Atlantic salmon habitat will be slowed or postponed. It may be cheaper to try to put off construction than deal with added expenses.

General road repair may be affected, resurfacing and new road construction will be slowed and costs go up. Where is the end to this? And this is only an issue with the Department of Transportation. How will this affect businesses within the habitat area and the general population?

The truth is we really don’t know for sure but all this needs consideration before jumping to create another Distinct Population Segment of Atlantic salmon that might not reward us with any more salmon than utilizing of the efforts we have in place.

Another aspect to consider is the length of time this listing will remain in effect. For those who don’t know, in order for a listing to happen, certain criteria of the Endangered Species Act must be present.

SEC. 4. ø16 U.S.C. 1533¿ (a) GENERAL.—(1) The Secretary shall by regulation promulgated in accordance with subsection (b) determine whether any species is an endangered species or a threatened species because of any of the following factors:
Q:\COMP\WILDLIFE\ESA73
January 24, 2002
225 ENDANGERED SPECIES ACT OF 1973 Sec. 4
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.

Notice the Act doesn’t say all of these conditions, only one needs be proven before any species can be considered for listing. In the reverse of this action, in order for the USFWS and NMFS to remove the Atlantic salmon from protection, it has to be proven that the criteria that listed it has been met and that none of the other listed reasons exist.

This doesn’t mean that Maine can try a listing for a couple of years to see how it goes and then if it appears its not working well, bailout.

History has shown us that once a species is listed, rarely is federal protection removed. This costs all taxpayers money, strips management powers away from the state to care for its own populations of Atlantic salmon and seldom, if ever, protects local businesses, municipalities and the citizenry in general.

Me mustn’t lose sight of the fact that when listing critical habitat for a species, it affects all activities within that designated area including other species. What will this mean for recreational and commercial fishing in the area, home gardening, the farm that produces the milk next to the river, etc., etc.?

Even without the looming concerns of what’s going to happen to our economy, it is my opinion that the state of Maine and the efforts already exemplified can continue to work toward improvement of the waterways, removal of dams and construction of fishways and restoration of habitat, that will provide as much benefit as anything an ESA listing will accomplish. It may even provide a better outcome.

It should be up to the people of Maine and what they are willing and prepared to do to address this issue.

Tom Remington

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