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Methow Valley News November 1, 2000 Endangered Species Fish and water talks resume Litigation could complicate agreement by Lee Hicks The Methow basin planning unit was set to resume negotiations with state and federal agencies this Thursday (Nov. 2) with the added tension of support for a potential county lawsuit over Endangered Species Act enforcement issues. The renewed talks also come just days before the first-year anniversary of a volatile public meeting in Twisp in which most of more than 400 people voiced opposition to a proposed fish and water agreement that had been debated for much of 1999. Many issues are the same. But a key difference this year is that the local effort has been led by the planning unit, created under state watershed planning legislation. Going into this week’s talks, the planning unit holds firm that more data regarding such issues as the effect of irrigation on aquifer recharge and streamflows is needed before water use is severely curtailed. However, National Marine Fisheries Service and US Fish and Wildlife Service maintain that setting "target flows" for basin streams is the "best available science," a requirement of the ESA to protect steelhead and spring chinook salmon, listed as endangered, and bull trout listed as threatened. Last year the federal agencies pushed for a voluntary conservation plan indexed to "proportionate share" contributions. Under the concept, participating irrigators and others would give up water rights in proportion to other participants to meet streamflow targets set in the 1999 proposed pact. The voluntary plan is now known as a "stream enhancement plan" in this year’s negotiations. But, local negotiators resist the idea of setting specific streamflow goals until several studies are completed. The most significant data gathering effort is a project led by the U.S. Geological Survey which will involve establishing stream monitoring gauges to measure effects of irrigation on aquifer recharge and stream-flows. Without an interim agreement, including a commitment to eventually develop a basin habitat conservation plan, NMFS has said it cannot offer protection from enforcement under the ESA. Even with an agreement, the fish agency will only offer "prosecutorial discretion" in considering potential ESA infractions. The habitat conservation plan, or HCP, is backed by NMFS as the only way to provide long-term guarantees to water users diverting on private property. Apart from the private diversions, covered under Section 9 of the ESA, Section 7 irrigators using water from Forest Service land thus far are not included in the proposed agreement. Wolf Creek Reclamation District, Early Winters Ditch Co. and Skyline Ditch Co. have all come under restriction of the ESA through "biological opinions" setting target flows for affected streams. Wolf Creek has begun negotiating an HCP with NMFS and USFWS. Early Winters, however, has become the focus of the potential county litigation over the ESA. The ditch was forced to shut down by the Forest Service, under terms of the NMFS biological opinion, earlier than the date of its water right. Skyline has not operated for two seasons as work to line the ditch with pipe and replace its headgate proceeds. The Section 9 diversions are not directly subject to biological opinions issued for ditches under Section 7, which requires the Forest Service, NMFS and USFWS to consult on potential impacts to fish. But there is some concern that the streamflows set for the Chewuch, from which Skyline diverts, would also apply to the Section 9 Fulton and Chewuch ditches. NMFS is using a combination of data to extrapolate its ideal "ESA flows" which replaces the term target flows, for optimum fish conditions. One method is "instream flow incremental methodology," or IFIM, which uses computer models applied to portions of streams to predict optimum fish habitat. Some critics of IFIM say it makes assumptions for entire basins using smaller stream segments. In the Methow basin, the 1992 Caldwell & Catterson study used IFIM to extrapolate habitat conditions for the Chewuch drainage. IFIM data is lacking for the Methow River and most tributaries, but NMFS officials have said they consider it a useful tool throughout the basin—perhaps indicating future direction of basin studies. A lawsuit by the county over water rights issues has become more of a possibility after citizen members of the Methow basin planning unit and the Okanogan County Citizens Coalition, representing 22 groups, voiced their support for litigation. County commissioners had asked representatives of the county’s land-use ordinance committee to survey public sentiment. The citizen members of the planning unit are not directly involved in negotiating the ESA agreement with federal and state agencies. The committee was set up to advise the county on the land-use measure, which requires federal and state agencies to consult with the county on actions affecting local "custom and culture." But county commission chairman Dave Schulz has said the ordinance is only a "vehicle" to bring the ESA issues under consideration. Any litigation, Schulz said last week, would likely be directed specifically at loss of water rights related to enforcement of the Endangered Species Act. Opinion | Sports |
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