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Methow Valley News January 10, 2001 Endangered Species Public funds for the public interest? Publisher's Comment by Lee Hicks Methow Valley now in ESA litigation spotlight Auction will raise $$ for steelhead habitat restoration on Spring Creek Publisher's Comment ~ by Lee Hicks Public funds for the public interest? However viewed, there is quite a bit of cash being put on the table to close out the Arrowleaf transaction. First the Trust for Public Lands paid R. D. Merrill Co. more than $15 million to lessen the erstwhile developer’s pain from ending its resort plans. Then three individual buyers paid TPL about $6.4 million for more than 350 acres of the 1,100 acre site. Now TPL is apparently seeking a way to make up the difference of nearly $9 million that is apparently carried in some form by the lands trust through its own treasury, loans, grants or other sources. One potential source of funding is public wildlife mitigation money from the Northwest Power Planning Council. Another could be federal Interior Department appropriations to the Forest Service. This is where the Arrowleaf site may continue to be a piece of property involving issues of considerable public interest. The lands trust and the state Department of Fish and Wildlife have joined in seeking power council support in the form of public funds generated by the Bonneville Power Administration to mitigate impacts on wildlife from dams and other power industry activities. TPL and state F&W call the stretch of Arrowleaf along the Methow River "pristine" and cite its value for fish habitat. But there is a need for "due diligence" as to whether nearly $4 million sought from the power council would be the best public expenditure with so many other fish priorities in the Methow basin. Water will also not be used for the resort golf course, homes and other amenities—only for a few single-family dwellings. It seems that the Methow basin should get credit for conserving water in this case, especially in view of federal and state demands related to streamflows and endangered fish. Raising these questions is not to argue that TPL should not have the right to buy the property. The lands trust does some good things on behalf of preserving sensitive lands. And TPL kept its promise to guarantee recreation trails access to the site. But, to borrow a phrase voiced by a TPL representative during the hectic days as the sale closed, there are still a lot of "t’s" to be crossed and "i’s" to be dotted with public funds at stake. Footnote The preceding commentary was dictated and written before Vicky Welch’s guest column was submitted. As a long-time leading opponent of a resort at the Arrowleaf site, she speaks with experience from her point of view. The same is true of Doug Devin, an original member of the Early Winters ski resort team, who commented on the TPL purchase in last week’s paper. Also: soon after the News broke the story of the Arrowleaf sale last week, we received a call from an online reader who objected to our publishing the names of individual buyers. The caller (who is not a buyer) accused me personally, as the reporter on the story, of attempting to "intimidate" potential buyers at the property. My reaction was swift and unequivocal—"bull#&%"—an expletive I attempt to reserve for special situations. I explained in a subsequent e-mail to the caller that we would publish all names of the buyers as available, given the extended and very high profile of the Arrowleaf debate. I also called one of the buyers to explain our policy and to note that we usually do not publish addresses, even though all the information is public record. In putting together a complicated story from several computer files, the addresses were cut and pasted into a final version along with the names. Working under a last-minute deadline, the addresses stayed in the story. Two of the buyers' names were readily available in the Seattle phone book. I had a cordial conversation with the buyer that ranged into my opinions on the prospects that a resort could have been built given water and fish issues. Although concerned over the addresses being published, the buyer concluded that (he/she) trusts they "will be considered good neighbors in the community." And we can all hope for the same. Welcome to the Methow! Methow Valley now in ESA litigation spotlight Tice Ranch joins plaintiffs in federal suit by Lee Hicks A new federal lawsuit raises stakes in the legal battle over endangered salmon listings in the Northwest and much of the West Coast by challenging the widespread definition of critical habitat and arguing that economic impacts were not adequately addressed. Filed in U. S. District Court for the District of Columbia, the suit includes among plaintiffs the Tice Ranch south of Twisp, the National Association of Home Builders, the Oregon Building Industry Association and the Kitsap Home Builders Association of Kitsap County. Emphasizing the high level of the litigation, the defendants are former Clinton administration Commerce Secretary Norman Y. Minetta, and the National Oceanic and Atmospheric Administration and its sub-agency, National Marine Fisheries Service, which are under Commerce. Also named is the Pacific Fishery Management Council. Representing the plaintiffs is Seattle-based Perkins & Coie, with offices in D.C. Much of the legal work was developed in the Seattle office, which has represented Okanogan County in its negotiations with NMFS and other agencies on fish and water issues. The law firm is also counseling the county on a potential lawsuit challenging federal actions that affect water rights for local irrigators. In the D.C. suit, the plaintiffs argue that decisions in 2000 regarding salmon and steelhead listings in the Columbia River system and Pacific Ocean habitat violated terms of the 1973 Endangered Species Act. Perhaps the most significant argument is that NMFS and the other agencies designated entire river systems and ocean areas as critical or essential habitat. The plaintiffs say that the ESA, "specifically provides that, ‘[e]xcept in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.’" NMFS and other federal agencies, "have failed to observe procedures and standards required by law, and have, therefore, over-designated critical habitat and EFH (essential fish habitat)," the suit maintains. The court action arises from the Feb. 16, 2000 designation by NMFS of critical habitat for 19 evolutionary significant units (ESUs) for salmon and steelhead throughout 150 basins in California, Idaho, Oregon and Washington. As defined by NMFS the habitat areas are "excessive, unduly vague, not justified as essential to conserve the listed species and not based upon a required analysis of economic impacts," the plaintiffs say. Also challenged is NMFS approval on Sept. 27, 2000 of an amendment to the Pacific Fishery Management Plan submitted by the Pacific Fishery Management Council. The plan defines essential fish habitat throughout current and historical ranges of Pacific salmon. Similar to critical habitat, the suit says the EFH designation is excessive and vague. NMFS' actions in naming such large areas, including, "connected non-habitat," was a result of trying to "avoid the necessary work of determining what areas are actually occupied by, and essential to, the conservation of the listed salmon and steelhead," the suit claims. By ignoring economic impacts, NMFS failed to, "consider omission of areas where the costs of designation and regulation outweigh the benefits of protection." Instead, the federal fish agency concluded that by designating very large areas, there would be few additional economic impacts resulting from the listing. That assessment failed to include comparative costs and benefits of the habitat listings, the suit says, adding that the, "conclusion defies common sense" because the river basins include major urban areas, hydropower systems, "high-value irrigated agriculture, major ports and inland waterways." As a plaintiff, the suit identifies the Tice Ranch as "a family-owned small business" in the Beaver Creek basin that raises, buys and sells livestock and, "is heavily dependent on land and water rights for grazing and watering. The ranch’s adjudicated Washington state water right, under which water was diverted from Beaver Creek for nearly 80 years, was jeopardized by the February of 2000 critical habitat designation for the Columbia Basin, the suit says. Anadramous fish had been blocked by a highway fill and undersized culvert installed by Washington state, the plaintiffs contend. But in the summer of 2000, the state Department of Transportation rebuilt a bridge and put in a larger culvert to aid fish passage. As a result, Beaver Creek "appears" to have become, after the fact, part of the critical habitat even though the stream was not passable by fish at the time it was designated, the suit states. Business and other activities are being threatened, prevented or delayed at "great cost" including lost market value of property and potential exposure to "third-party citizen suits alleging unlawful take" related to impacts on listed fish, the suit concludes. For relief the plaintiffs ask that habitat rules be vacated and enjoined until NMFS, "designates critical habitat in compliance with law." The lawsuit follows a number of recent or ongoing federal court cases involving the ESA, including several which have successfully challenged decisions by federal agencies. A recent federal court decision in New Mexico, the Middle Rio Grande Conservancy District v. (Interior Secretary Bruce) Babbit reversed a critical habitat designation for the Rio Grande silvery minnow. That decision, an apparent precedent for the new salmon suit, involved designation of the entire middle Rio Grande as the minnow’s habitat. The ruling also concluded that the economic impact analysis was inadequate. Auction will raise money for steelhead habitat restoration on Spring Creek By John Hanron Sixty-two years ago, Spring Creek, just outside Winthrop, was used extensively by steelhead and salmon for spawning. But when the Winthrop National Fish Hatchery was constructed along the creek in 1940, the naturally meandering stream was straightened to provide an outlet from the hatchery to the Methow River, just 850 feet away. Most of the gravel and submerged logs in the upper 600 feet were cleaned out, leaving a largely sandy bottom devoid of gravel, rocks and logs that anadromous fish look for when spawning. Last spring, more than 40 steelhead were spawning in the lower 200 feet of the creek, according to a proposal developed by the Methow Valley Fly Fishers and the Methow Conservancy. In 1996, the hatchery released 142,000 steelhead smolts into the river, and now that they are returning to spawn, the available spawning habitat in Spring Creek is inadequate, according to Dennis, president of the fly fisher club. The habitat plan would triple the number of available spawning sites in the creek by laying up to 200 cubic yards of clean gravel, along with root wads and rock and log obstructions in the upper stretch of the stream. The new material would create six to eight spawning riffles, each 20 to 25 feet long. The project, expected to take a couple of weeks to complete, is planned for next July. State Department of Fish and Wildlife biologist Bob Jateff has completed a biological assessment of the proposal. In it, he points out that besides creating more spawning habitat, the addition of underwater cover would create better habitat for juveniles coming out of the hatchery. It would also create tempting habitat for migrating spring Chinook salmon, who use the creek to access the hatchery upon return from the ocean. To raise the estimated $9,500 needed for the project, the Methow Valley Fly Fishers and the Methow Conservancy are hosting an auction/dessert potluck Saturday (Jan. 13) from 7-10 p.m. at the Methow Valley Senior Center in Twisp. For more information contact Dennis at 996-2784. by Lee Hicks The negotiations for an endangered fish and water agreement in the Methow basin are in a holding pattern while local officials consider issues related to a potential county water rights lawsuit. The Methow basin watershed planning unit will meet Wednesday night (Jan. 10) to discuss the next steps as federal officials have suggested another meeting in late January or early February. The last talks were Nov. 27. Adding urgency to the situation is a drastically low snowpack and actions by National Marine Fisheries Service to establish stream "target flows" for irrigators affected by Section 7 consultation provisions of the Endangered Species Act. Those targets for irrigators who divert water from federal land could set the stage for tighter water restrictions on private ditches, subject to Section 9 of the ESA, and expose private users to "third-party" citizen lawsuits. The planning unit called off a tentative Dec. 6 negotiating session in order to review ways to align the planning unit’s strategy with the Okanogan County commissioners’ potential legal action challenging federal decisions. Opinion | Sports |
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