Failed Salmon Projects
by Rocky Barker
Protection from ESA prosecution expired in 2001
SALMON -- Bruce Mulkey and his neighbors increased flows and improved spawning habitat to help salmon return to the Lemhi River even before the fish were listed under the Endangered Species Act in 1992.
Their volunteer efforts restored the fish their fathers had saved from the brink of extinction 30 years earlier. But three years ago federal fisheries agencies, the Bonneville Power Administration and Gov. Dirk Kempthorne stepped in offering $8 million to complete five projects and to protect ranchers from prosecution under the Endangered Species Act.
Today, less than $1 million of the $8 million was spent. Four of the five projects weren't completed and the money is gone.
Little additional salmon restoration work has gone forward. The lack of results has left many ranchers more vulnerable to federal prosecution today than they were then.
"The problem is since they arrived, there haven't been many projects done," Mulkey said of the federal and state agencies. "If they had left us alone, we'd have gotten a lot more done."
Regional fish and wildlife officials say the Lemhi case is just a piece of the larger problems surrounding the regional federal salmon plan to offset the harm caused by dams on the Columbia and Snake rivers with other actions. They say BPA has not followed through with its salmon commitments throughout the region.
BPA officials defend their actions and say they have a record of success on many other projects. State officials say they have learned from the mistakes of the last three years and vowed to get results.
"Since we are using electric ratepayers' money, we don't just spend up to budget no matter what," said Steve Wright, BPA Administrator. "We only proceed with and pay for projects that will produce results for salmon."
The federal plan placed the burden on ranchers like Mulkey and other private landowners to improve salmon habitat instead of on federal dam operators, who scientists said were the major limit to salmon survival. Last May 7, U.S. District Judge James Redden in Portland threw out the plan and gave the Bush administration until this June to rewrite it.
The plan, technically called a biological opinion, stated that the federal dams jeopardized the survival of salmon. But it also said a series of actions across the Pacific Northwest, such as habitat-improvement projects on tributaries, more natural hatcheries and harvest limits in the Columbia and Pacific Ocean, could be used to offset the losses salmon sustain at the dams. Redden ruled narrowly that the fisheries service cannot guarantee with certainty that what was ordered will take place.
The case of the Lemhi proves his point.
The volunteer efforts of Mulkey and his neighbors led to the formation of the Upper Salmon River Basin Watershed Project, which had completed dozens of salmon habitat improvement projects since the early 1990s. Three years ago, three dead juvenile salmon were discovered by federal officers on a Lemhi diversion screen. To prevent prosecution under the Endangered Species Act, the ranchers signed an agreement committing to keeping flows in the river and to expand their conservation programs.
The state and federal agencies used the agreement to take a greater role in setting the priorities and signing off on the work that was to be done.
One for five
The five projects announced in 2001 were designed to increase flows in the Lemhi, Salmon and Pahsimeroi rivers and to reconnect tributaries like Hawley Creek near Leadore, historically, one of the easternmost spawning grounds of salmon in the Pacific Northwest. The projects were developed by various state agencies or proposed by landowners seeking federal funding after threats of litigation by the Western Watersheds Project, Jon Marvel's anti-grazing group.
Tying funding to specific projects was a new approach to the way Mulkey and his neighbors in Lemhi had been working prior to the involvement of the state and federal agencies. BPA gave them an annual budget, which the ranchers spent as project opportunities arose. Their priorities were overseen by a technical team that included local biologists for the state and federal agencies responsible for salmon and bull trout, which also are listed as threatened under the Endangered Species Act.
The only project completed was a $475,000 program to remove barriers to fish passage, like the old culverts and irrigation diversions. Design, engineering and permitting development on the other four projects increased spending to nearly a million dollars over the course of the last three years.
BPA officials say the other four projects died because the private landowners pulled out. State and local officials say it's not that simple.
"I think there's a failure to recognize how difficult it is to put together most of these projects," said Bob Loucks, a former University of Idaho extension agent and rancher who has volunteered hundreds of hours to the Lemhi program. "You are dealing with all the landowners on a watershed, you bring all of them together to talk about a multitude of agencies' ideas to solve the problem. Then you work on a consensus on how you're going to do it.''
Had it been completed, another 13 cubic feet per second of water would be running in the Lemhi River today. That's more than twice the amount that was in the river a week ago, when it nearly dried up.
Getting all of the landowners involved on board took a year, said Loucks. A series of misunderstandings between state and federal officials added another year to the approval process.
Then the key property holder, an absentee landowner, became ill and pulled out, Loucks said.
"You've got a lot of time and effort invested in each one of these projects before it ever gets started," he said.
But McFarland lobbied state officials and Kempthorne included the project anyway. Michael Bogert, Kempthorne's chief counsel, said the project was one of several that had been in the works for a while.
"We thought from a very high altitude they would be great candidates," he said.
Reconnecting Hawley Creek with the Lemhi also depended on rebuilding the stream bed across other landowners' property, a channel largely lost after 50 years of no creek. Once that issue was dealt with, Blair Kauer, one of the owners in McFarland Livestock, became ill, further delaying the work.
Then in April of 2003, the Idaho Department of Water Resources issued a notice of violation against McFarland, charging the company with illegally diverting water to irrigate 258 acres for which it had no water right. In a consent agreement signed in September, the state fined the company $500 and allowed it to finish irrigating last season.
McFarland would have to come up with local matching funds. In December, Kauer told officials he wasn't prepared to spend the money at that time.
Kauer did not return calls on this story.
Some in compliance
On April 21, the Idaho Department of Water Resources wrote McFarland advising the firm its diversion was illegal. It ordered the company to modify it by Oct. 16.
Kauer and the other landowners who backed out of projects now could face prosecution from the National Marine Fisheries Serv
ice, the agency charged with protecting salmon, or the U.S. Fish and Wildlife Service, with responsibility for bull trout. Craig Taber, a Fish and Wildlife special agent, said the test for prosecution is high. But the growing administrative record of ranchers unwilling to fix problems even with federal assistance makes such cases easier. Investigations of irrigation practices in the Upper Salmon Basin are continuing, said Eric Morgan, special agent for the NMFS.
"If the federal agencies think they can get more conservation through enforcement than cooperation, they are wrong," said Russell Knight, Upper Snake River Basin Watershed Project coordinator.
The ranchers are vulnerable to prosecution because the 2001 agreement with the federal agencies and the state expired. State and federal officials are currently involved in negotiations for another short-term agreement. But David Mabe, NMFS Idaho habitat director, said the answer for both salmon and the ranchers is to develop a long-term conservation agreement for the entire Upper Salmon that meets the requirements of the Endangered Species Act.
Ranchers who committed to taking the steps necessary to help salmon and bull trout — reconnecting tributaries, screening diversions, reducing water use — would be considered in compliance with the Endangered Species Act, said James Caswell, director of the Idaho Office of Species Conservation, which is leading the state in negotiations. Those who don't would be on their own to meet federal law.
Mulkey started the Lemhi salmon restoration program in the late 1980s. The Lemhi River is the first place Lewis and Clark saw salmon in rivers and is considered one of the most productive drainages for the fish in the entire Columbia River Basin.
But a dam blocked off the river until 1957. Once the dam was removed, ranchers, including Mulkey's father, screened their irrigation diversions so the fish would not be left dry in their fields. By the 1960s, nearly 4,000 salmon returned.
But the building of the final five of eight dams between the Lemhi and the Pacific on the Snake and Columbia rivers sent the salmon into a steep decline. Only a handful of fish were returning in the 1980s. In 1988, Mulkey's dad, Doyle, died.
"I got to thinking about how much he liked chasing those big fish," Mulkey said. "I thought, it's too bad my sons don't get to fish for salmon like I did."
Mulkey convinced other ranchers in the irrigation district to work together on a plan to help salmon. At the heart of the plan was farmers turning off their diversions briefly when the salmon were migrating. They had a plan in place by 1991, a year before salmon were protected by the Endangered Species Act. The ranchers also organized the Model Watershed Project through the Lemhi County Soil Conservation District, which attracted BPA funding for screening and habitat projects.
By 2001, they had expanded to cover the entire Upper Salmon Basin from Panther Creek to the headwaters of the Salmon river near Stanley. They had eliminated 17 diversions in the Lemhi river and three diversions in its largest tributary, Hayden Creek, through consolidation. The program also had replaced 65 outdated screens on diversions, built salmon passage devices, installed 31 miles of fence to protect spawning areas and reconnected three tributaries.
They also helped convince the Idaho Legislature to approve a minimum stream flow on the Lemhi and set up a water bank so farmers could lease their water to help fish. Salmon runs have improved, but much of the new habitat remains vacant because of the dams on the Snake and Columbia, said R.J. Smith, another Lemhi rancher.
"We have way more pristine habitat than we have fish to fill it," Smith said.
BPA's new red tape
Since 2001, the accomplishments have been few — some fences here, some screens there and improved water management. The cause, Loucks said, is increased red tape. All of the federal agencies, and for a while the state, had to sign off on every project.
Then last year BPA instituted a new review process for projects it funds, setting back work an entire year, Loucks said.
BPA sells power from 30 federal dams in the four Northwest states. From proceeds, it funds fish and wildlife programs in the region, like the Upper Salmon Basin project. It has suffered from revenue shortages since the electricity crisis of 2001.
Loucks said some of the added red tape is tied to BPA's financial situation. "BPA changed the rules because they didn't want to spend any money," he said.
BPA Administrator Wright said BPA's test is whether a project helps salmon.
"BPA offered to pay for projects that were ready to be implemented," he said.
Robert Austin, BPA deputy director for fish and wildlife, said the added review was necessary to ensure the projects it was funding would fit within the requirements of the biological opinion, an added concern after Redden's rejection of the plan.
The $8 million BPA offered to the state for the Upper Salmon in 2001 was part of a special $18 million salmon funding program that came from its power budget, not from its fish and wildlife funds. BPA officials said 14 of the 19 projects it committed to with those funds were completed. The agency still spent $12.2 million of the $18 million, Austin said.
However, a database of BPA projects developed by the Columbia Basin Fish and Wildlife Authority, which represents state and tribal fish and wildlife agencies in the Pacific Northwest, showed BPA only spent $6.8 million of the funds.
"It's clear at the end of this process the BPA spent far less than what was originally planned," said Rod Sando, CBFWA executive director.
Bogert, Kempthorne's chief counsel, said the five projects looked like a good fit for salmon and the ranchers when they first chose them.
"We thought we had a pretty good package," Bogert said.
But he and officials throughout the state agencies have learned from the process that was put together quickly after the regional salmon plan was approved. Already state officials are considering beefing up local staffing for the Upper Salmon project and allowing the local group to set the priorities to take advantage of opportunities that develop.
"Can we do better?" Bogert said. "We are going to do it better."
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