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Enviros Threaten Suit Over Salmon by N.S. Nokkentved Times-News, October 8, 2000

TWIN FALLS -- Two environmental groups have threatened to sue farmers, ranchers and public agencies over stream diversions that the groups say violate the federal Endangered Species Act and state law.

The Idaho Watersheds Project and the Committee for Idaho's High Desert last week sent out more than 50 letters, giving 60 days' notice of their intent to sue over water diversions that threaten endangered salmon, steelhead and bull trout in the upper Salmon River watershed.

"For too long, our salmon and steelhead spawning streams have been dewatered, and destroyed by livestock," said Jon Marvel of Hailey, who heads the Watersheds Project. "For these fish to survive, they must have flowing streams and good quality habitat in the upper Salmon basin, and we intend to ensure that happens."

Some water diversions approved by state and federal agencies dry up entire salmon streams; others are operated without required fish screens, the notices say.

The streams are in the upper watershed of the Salmon River and include tributaries to the Salmon in the Sawtooth Valley, the Lemhi, the Pahsimeroi, East Fork of the Salmon and many smaller tributaries, which are considered critical habitat for salmon, steelhead and bull trout.

Gov. Dirk Kempthorne's office - named in one of the notices - still was reviewing the notice with the attorney general's office and had no further comment, Kempthorne spokesman H.D. Palmer said.

Deputy Attorney General Steve Schuster, representing the state Department of Lands, said he still was reviewing the notice as well.

U.S. Bureau of Land Management officials, similarly, still were reviewing the notice. Forest Service officials familiar with the notice were not available Friday.

Kempthorne has promoted salmon recovery efforts that would include land use restrictions and habitat improvements in salmon streams. He opposes recovery efforts that include breaching four federal dams on the Snake River in southeastern Washington.

Most fisheries scientists in the Pacific Northwest, however, say efforts that include breaching the dams would give salmon their best chance at recovery.

In Idaho, much of the available salmon habitat is in wilderness with little room for improvement. But the upper Salmon River watershed includes many tributaries that have been designated as critical salmon habitat under the Endangered Species Act.

With the suit, the two groups hope to raise the profile of surface water mismanagement that affects the listed fish species, Marvel said. They hope federal and state agencies will bring a halt to dewatering, habitat degradation and unscreened diversions in these streams.

"Our litigation is focused on abuses that have violated laws in this hidden landscape for a hundred years," said Pamela Maqrcu, head of the Committee for Idaho's High Desert. "In the past, enforcement priorities on these public and private lands have hit a political brick wall. Illegal practices continue to eliminate habitat, kill imperiled fish, and dewater our streams."

One of those streams is Fourth of July Creek in the Sawtooth National Recreation Area. The creek is mostly dewatered during the summer and fall, the notice says. The diversions in the creek also are operated without fish screens.

Without screens, irrigation diversions may suck endangered fish into irrigation ditches, leaving them to die on fields or stranded in shallow ditches, their reproductive process interrupted or prevented.

In addition, the diversions on Fourth of July Creek physically block passage of the endangered fish, raise water temperature and degrade salmon habitat, the notice says.

Those are violations of the Endangered Species Act's ban on "taking" - meaning killing, harming, harassing or capturing an endangered species, the notice says.

State law says it is illegal to divert water 'without first installing and maintaining a suitable screen or other device to prevent fish from entering' the diversion."

Pat Marcuson, coordinator of the Idaho Department of Fish and Game's screen shop in Salmon, said the agency builds and installs 40 to 50 screens annually.

But the most time-consuming part of the job is getting the required permits from the National Marine Fisheries Service, charged with recovering the endangered salmon. That delay could be the reason some diversions remain unscreened or with inadequate screens.

"The Idaho Code for years has required that adequate fish screens be installed on all diversions to prevent killing fish, but even the Land Board is not actively following the law in this regard," Boise lawyer Laired Lucas said. "The state seems to think it is immune from the Endangered Species Act, and we hope this acts as a wake-up call to encourage them to get serious about protecting Idaho's endangered fish."

Lucas, an attorney with the Land and Water Fund of the Rockies, represents the two groups.

Most of the notice letters name ranchers who divert water on public lands for their cattle, or on private lands to grow livestock forage, said Marvel, long an outspoken critic of livestock grazing on public lands.

Some of the notices also cited serious degradation of riparian and aquatic habitat by livestock grazing.