Archive for October, 2010

The U.S. Fish and Wildlife Service has just issued the final designation of critical habitat for bull trout, a threatened species found throughout much of the northwest. The action designates nearly 19,000 miles of streams and 488,000 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana and Nevada.

Bull trout need clean cold water to thrive. Once plentiful, bull trout were found in more than 60% of the Columbia River basin, but are now occurring in less than half their historical range. They were originally listed as a threatened species in 1999.

Critical habitat designations (pdf) provide extra regulatory protection and management considerations for the species. Specific habitat areas are then prioritized for recover actions. Such protections do not affect ownership of land, and do not impose restrictions on non-federal lands (unless related to some action for which federal permits would be required). Overall, nearly 64 % of the designated habitat occurs on federal lands.

The Bush administration proposed habitat protections in 2005 which included less than half the habitat covered under this new designation. The Bush era rules were challenged in Court, and the agency requested a remand in 2009 to re-work the designation, based in part on flaws identified by the Interior Department’s Inspector General.

Bull trout are threatened by poor water quality, habitat degradation and fragmentation, blockage of migratory corridors, past fisheries management, climate change, and non-native invasive species like lake and brook trout.

Like a canary in a coal mine, the sensitive bull trout are an excellent indicator of water quality. Protecting bull trout habitat contributes not only to the species but to water quality throughout their range.

In Idaho, 8772 miles of stream and 170,000 acres of lakes or reservoirs are covered by the designation. In our basin, Coeur d’Alene Lake and the main stem of the Coeur d’Alene River are included. Also designated are the north fork of the Coeur d’Alene River, and the St. Joe River, and most of their tributaries. The Clark Fork and Kootenai Rivers, along with Lake Pend Oreille, Priest Lake, are on the critical habitat list in North Idaho.


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Again this week, candidates for public office in Idaho railed at the federal government over environmental regulation and federal programs, calling upon their familiar “state’s rights” arguments, often invoking the Constitution’s 10th Amendment.  In our region in particular, the Endangered Species Act, the Clean Water Act, and federal lands management are all challenged by much of Idaho’s political leadership as fundamentally trespassing on Idaho’s supposed sovereignty.  These arguments fuel the burgeoning Tea Party movement and form the underpinnings of the Idaho GOP platform.

Constitutionally, however, the arguments are nonsense.

The 10th Amendment states, in its entirety:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But the U.S. Supreme Court, from the very beginning and throughout the years, has held that the 10th Amendment, in its application, is essentially only a “truism.” The Constitution formulates the federal structure by delegating specific enumerated powers to the federal government, and then providing that the federal government may enact laws which are necessary and proper to carry them out. In particular, the commerce clause, the taxing and spending clause, and the necessary and proper clause, when taken together, are quite powerful.

The Supreme Court’s interpretation of the extent of federal power, particularly under the commerce clause, has been called “cooperative federalism.” Generally, if it is within the broad rubric of “regulating commerce .. among the several states,” Congress has the power to either set minimum federal standards to be implemented by the states, or it can simply preempt state law entirely. Because the commerce power is “delegated to the United States by the Constitution,” the 10th Amendment, by its very terms, won’t restrict it.

Idaho has been a reluctant participant in this cooperative federalism. As one of only four states to do so, Idaho has declined to participate in Clean Water Act permitting, instead allowing the EPA to issue water quality permits. Unhappy with federal requirements under the Endangered Species Act, Idaho is now threatening to quit managing wolves. But most states have found it to be more advantageous to be cooperative participants in the Constitution’s federal structure.

Short of seceding from the union, it is unclear what the vocal critics of federal power in Idaho would have us do. It would be nice if all the political sloganeering about the so-called states’ rights in the Constitution could be more consistent with what the Constitution actually says.


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We had some interesting discussions yesterday about our blog posting about Idaho’s water monitoring meltdown. Recall that we wrote:

We know that Idahoans care deeply about water quality. The failure of DEQ to accomplish the very basic minimum requirements of the Clean Water Act should be unacceptable. The legislature, which has zeroed the water monitoring budget for two consecutive years, needs to provide the resources to DEQ to do its work before the U.S. EPA, or a federal court, is forced to step in.

Some of our friends thought that we were (slightly) unfair in calling it a”failure of DEQ” to get the job done, because in fact, DEQ has requested the money for water monitoring in their budget submittals. Instead, our friends suggest, the financing failure belongs to Butch Otter, whose budget leadership is followed by the legislature, and whose budget priorities are decidedly elsewhere.

We wonder if this is a fine point that’s significant, or whether it’s a distinction without a difference. The responsibility for Clean Water Act implementation is squarely with DEQ. It isn’t optional, and Idaho’s state code makes it clear what needs to be done and who needs to do it. But if the Department asks for, but doesn’t get the resources, what is it supposed to do? More to the point, who should Idahoans hold accountable for this mess?

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As required by the Clean Water Act, the Department of Environmental Quality has just issued its draft “Integrated Report” on the state of water quality in the State of Idaho.  The utter failure of Idaho to do necessary water quality monitoring is probably the most glaring finding.

According to the draft report, of  5747 distinct waterways in Idaho, 2108 have insufficient data to determine the threshhold question of whether Clean Water Act standards are being met. That corresponds to 33,523 miles of rivers and 186,677 acres of freshwater lakes that have insufficient monitoring data or any other information on which to determine what measures, if any, are needed to protect those waterways.  The new report seems to show no improvement whatsoever from the 2008 report in which 37% of state waterways had not been assessed. Meanwhile, some 900 waterways — another 16,659 miles of rivers and 208,102 acres of freshwater lakes — are impaired but do not yet have a cleanup plan.

To put it more plainly, more than half of Idaho’s waterways are suffering from Idaho DEQ’s failure to properly administer the Clean Water Act.

But that’s not all. What about the other half? The report indicates that 1,242 waterways are, in fact, impaired and need cleanup actions to restore water quality.  In this category, there are 20,004 miles of rivers and 148,257 acres of freshwater lakes that have an approved TMDL cleanup plan.  But very little in the way of TMDL implementation is evident.

We know that Idahoans care deeply about water quality. The failure of DEQ to accomplish the very basic minimum requirements of the Clean Water Act should be unacceptable. The legislature, which has zeroed the water monitoring budget for two consecutive years, needs to provide the resources to DEQ to do its work before the U.S. EPA, or a federal court, is forced to step in.

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Another weekend, another bunch of stuff to read:

A “heatmap” shows where all the coal comes from — via Plains Justice

Trust for Public Lands publishes its report on City Parks — via NRDC Switchboard

Speaking of city parks, Coeur d’Alene has plenty to brag about — CDA Press

Some amazing Google Earth photos of Florida’s zombie subdivisions and patterns of sprawl — Boston.com

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