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Methow Valley News August 12, 1999 Endangered Species Coverage ESA puts Forest Service in bind Agency doesn’t want responsibility without authority by Lee Hicks The agency that manages most land in the Methow basin appears set to "narrowly focus" its role in endangered species issues to avoid being swept into potential endangered species litigation. The Forest Service’s concern, revealed in notes from a July 27 meeting at the Portland regional office, comes as the agency is completing responses to biological opinions for listings of several fish species as endangered under the 1973 Endangered Species Act. Listings by National Marine Fisheries Service and U.S. Fish and Wildlife Service have put the Forest Service in the awkward position of being a "pass through" agency in section 7 consultations under ESA. The agency is responsible for issuing special use permits for irrigators who divert water from streams on Forest Service land. Under the section 7 provisions, the agency must consult with NMFS and USFWS to assure that actions, such as the permits, will not eventually result in further damage to listed species. The Forest Service faces, "being heavily involved in subsequent litigation," if the agency remains a key party in negotiations regarding the biological opinions for several diversions. "The potential is high that the FS will be asked to ‘defend’ a legal record, instream flow studies or conclusions developed by the regulatory agencies," the summary says. Although the Forest Service issues the diversion permits, the meeting summary says that the agency, "may have no funding, congressional direction or statutory authority to regulate," various requirements set by NMFS and USFWS. The Forest Service is concerned that continued use of section 7(d) provisions for federal water diverters, "involve some third-party lawsuit risk/exposure, especially with those permits issued since listing of the steelhead." The Forest Service apparently believes it will have "limited risk" in situations where biological opinions provide for such measures as achieving target flows for streams or installing fish screens, according to the meeting notes by Stuart Woolley of the Okanogan National Forest. But to be on the safe side, the meeting summary says, the agency should involve regional officials in the BO and MOA processes and "stay involved, stay vocal and develop a consistent paper trail." In a visit to the Methow Valley Monday (Aug. 9) interim Okanogan National Forest Supervisor Sonny O’Neal acknowledged that the agency is not in a position to regulate ditches on a continuing basis. The Forest Service sees its role as developing biological information on endangered species for NMFS and USFWS and, "we would expect to get a BO complete with conservation measures and we would pass that along (to the irrigators)," O’Neal said. The agency would not be involved in setting target stream flows for fish, although it would provide "technical information" related to flows and fish. "If NMFS requires a certain flow we’ll just simply pass that through to the irrigators," O’Neal said. He added that the Forest Service does not expect to be in the position of yearly Section 7 consultations prior to issuing permits for ditches to operate. Assuming that the ditches are able to operate under conditions of the biological opinions, "we wouldn’t expect to be dealing with this on an ongoing basis," O’Neal said. The situation in the Methow is complicated by the "special circumstances" of target flows which raise the issue of state-authorized water rights on diversions, O’Neal said. Although the issues could result in litigation, "all of our main objectives should be to aid in the recovery of salmon while acknowledging water rights." O’Neal replaced former supervisor Sam Gehr, who was reassigned to Washington, D. C., and is expected to assume the top post for a consolidated management team for the Okanogan and Wenatchee national forests. Plans to merge the operations should be complete in December, and if approved by the Portland regional office, would be implemented in 2000. As a result the Okanogan headquarters staff of nearly 70 personnel would be cut by about a third to possibly more than half, with the remaining staff assigned to "customer service" and field support. The Methow Valley and Tonasket ranger districts should remain at their current staffing levels, O’Neal said. Opinion | Sports |
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