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Green Sturgeon Prevails In Federal Appeals Court

Green sturgeon being tagged | Photo: Pacific Ocean Shelf Tracking Project

An explanatory series focusing on one of the most complex issues facing California: water sharing. And at its core is the Sacramento-San Joaquin Bay Delta. Stay with kcet.org/baydelta for all the project's stories.

The National Marine Fisheries Service (NMFS) wasn't obligated to conduct an economic cost-benefit analysis when it designated critical habitat for the Threatened green sturgeon in 2009. That's according to a recent ruling by the U.S. Court of Appeals for the Ninth Circuit, which issued the decision as the result of a lawsuit filed by Bay Area builders' trade groups.

In the decision, the Ninth Circuit upheld the November 2012 ruling of a district court, which found that NMFS had given all due consideration to the economic effect critical habitat designation for the sturgeon would have on homebuilders' profits.

NMFS listed the Bay Delta population of green sturgeon, Acipenser medirostris, as a Threatened species in 2006, and the fish's numbers have apparently continued to drop since then. Between dams blocking historic spawning habitat, overfishing, and invasive clams eating the sturgeon's food supply, the primitive-looking fish is in serious trouble.

In 2009, NMFS designated more than 800 miles of rivers and Delta channels as critical habitat for the sturgeon, along with 1,519 square miles of Delta wetlands, estuaries, and floodplains and more than 11,400 square miles of the Pacific between Monterey Bay and Canada.

Though critical habitat designations are extremely unpopular among certain sectors of industry, they do very little to impede commerce; they merely require federal agencies involved in projects in designated habitat to consult with the appropriate federal wildlife agency over the effect of their projects on the species in question.

In other words: unless the federal government is involved in your project somehow, a critical habitat designation will have no effect on your business. If your project is on public land or you get a federal incentive or subsidy, then a critical habitat designation gives you a couple extra hoops to jump through. That's the whole point of critical habitat: it limits the likelihood that one federal agency will spend money to harm a species that another federal agency is spending money to preserve.

Nonetheless, NMFS and its parent agency, the U.S. Department of Commerce, were hauled into court in 2011 by the Building Industry Association of the Bay Area and the Bay Planning Coalition, which charged the agency should have conducted a rigorous cost-benefit analysis of the critical habitat designation for each section of the habitat the agency designated.

The District Court for the Northern District of California rejected that argument more or less out of hand two months after the lawsuit was filed, and the Ninth Circuit's July 7 decision upheld that rejection. Both courts held that while NMFS is obliged to consider the potential economic impacts of designating habitat, that didn't mean the agency was obligated to conduct an exhaustive cost-benefit analysis on every parcel of land or water it decided was crucial for the survival of the sturgeon.

It's worth noting that NMFS's 2009 critical habitat designation did exclude more than 1,100 square miles of estuarine habitat and almost 400,000 square miles of marine habitat based on the potential economic impact of designating those areas as critical habitat.

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