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For the week of May 23 through May 29, 2001

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

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."


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