Chinook spawn in illegally dug stream
Illegal stream channel pits ESA against EPA
"To my knowledge, it’s a question that’s never
come up with the Endangered Species Act, at least not for salmon."
Brian Gorman, NMFS spokesman
By GREG STAHL
Express Staff Writer
If the Environmental Protection Agency (EPA) has its way,
several Chinook salmon spawning nests in the upper Salmon River near
Stanley could be buried by dry earth.
At issue is a 300-foot-long, man-made stream channel that
was illegally dug in 1997 by part-time Obsidian resident John Simpson.
The Army Corps of Engineers immediately asked Simpson to
fill the illegal channel, but he refused. The case was then referred to
the EPA as is standard practice when the Corps fails to achieve
compliance.
Until last fall, the issue was fairly cut and dry: Simpson
would probably be ordered by a court to return the site to its original
state, and pay federal fines. That was before Chinook salmon—a federally
protected endangered species—began spawning in the new channel.
What has resulted could be a precedent-setting case
pitting the Endangered Species Act against a federal agency that’s
charged with protecting the environment.
"To my knowledge, it’s a question that’s never
come up with the Endangered Species Act, at least not for salmon,"
National Marine Fisheries Service spokesman Brian Gorman said.
According to consulting fisheries biologist Karen Kuzis,
who was hired by Simpson to make a case for keeping the channel, "The
interpretation is now a matter of professional opinion."
"It depends on who you want to believe," she
said. "He did not get a permit to connect the channels, but it has
nice habitat," adding that "if there weren’t fish in the
channel, someone probably wouldn’t be paying me to make a case."
Reports of why Simpson dug the channel vary. EPA assistant
regional council Mark Ryan said he was told Simpson dug it to reduce
mosquito breeding habitat near his home.
Kuzis said had she been asked for an opinion when the
channel was first dug, she may have recommended returning the site to its
original state.
"I’ve seen a lot of stream work that does more harm
than good," she said. "Somehow over time this site has turned
into nice habitat."
According to Kuzis’ report on the site, the newly dug
channel has widened from three feet, when Simpson first excavated it, to
between 15 and 20 feet.
And that’s precisely one of the EPA’s concerns.
Unintended consequences often result from illegal stream
work, Ryan said.
The EPA fears the entire stream—a side channel of the
Salmon River—could eventually begin flowing through Simpson’s new
channel.
"He’s diverting approximately one third of the side
channel’s flow onto his property already," Ryan said. "We’re
concerned that the side channel could eventually take all of (the Salmon
spur’s) flow."
Despite creation of new Chinook spawning habitat, Ryan
said the EPA will pursue all available avenues that would result in
reclamation of the site.
"Especially in endangered species habitat, we really
don’t want people mucking in the rivers," Ryan said.
The EPA filed an administrative complaint, which
established fines, and a restoration order in September 2000. When Simpson
ignored the filings, the EPA turned to litigation.
The case has been referred to the U.S. Department of
Justice to be tried in U.S. District Court in Boise, but the department
has not yet filed a complaint with the court.
Meanwhile, Ryan said negotiations are ongoing to achieve a
settlement agreement, which, if successful, could pan out in the next
month.
Ryan would not disclose any of the terms discussed in the
settlement negotiations, nor would he discuss any of the specifics
involved in the pending litigation.
On the seemingly sticky issue of endangered species
spawning in the channel and the species’ protection under the Endangered
Species Act, Ryan said simply that his agency is "clearly working
with (NMFS) up front."
Any reclamation the EPA would require on the site would
occur after young salmon—called smolts—hatch in the spring and before
adult Chinook return in the fall, Ryan said.
NMFS biologists also declined to comment on the case due
to pending litigation.
Gorman concluded: "I think we need to just wait and
see what transpires."
