Lawsuit against water diversions on the Sawtooth

Nearly two dozen water diversion projects in central Idaho’s Sawtooth Valley are harming federally protected salmon, steelhead and bull trout, according to the Idaho Conservation League (and this article).

Specifically, the lawsuit says the Forest Service in 2001 prepared environmental documents called Biological Assessments and found most of the 23 diversions are “likely to adversely affect” one or more of the protected species.

Those assessments were sent to Fish and Wildlife and NOAA Fisheries. But in June 2001, NOAA Fisheries notified the Forest Service, according to the lawsuit, that the additional information was needed to begin the consultation. The lawsuit says the Forest Service never followed up with that additional information.

“More than 16 years later, the Forest Service continues to authorize these 23 diversions to be used, operated, and maintained without ESA consultation, even though sockeye salmon, Chinook salmon, steelhead, bull trout, and their habitat have been, are being, and will continue to be harmed by the diversions,” the lawsuit says.

Once an agency decides that a proposed action is likely to adversely affect a listed species it has to formally consult with the appropriate agency (in this case, Fish and Wildlife Service for bull trout and NOAA Fisheries for salmon and steelhead).  If they haven’t done it, it’s kind of an open-and-shut case – one that would be a good candidate for settlement.  Under ESA, there should have been a 60-day notice of intent to sue, which should have led to discussions that might have avoided a lawsuit.  Not sure what happened here.  (If there have been more recent reauthorizations with a finding of “no effect,” that would complicate things.)

4 Comments

  1. This a strange one. Since the Sawtooth National Recreation Area was established in 1972, the FS along with Idaha F&F and National Marine Fisheries Service has been installing and maintaining fish screen so that young anadromous fish can stay in the streams and not be flushed into irrigated meadows. Thousands of dollars have been spent on this effort. I was the Area Superintendent for Projects and Planning from 1978-1989 and was indirectly involved in the effort, that is, the fishery biologist did the contacting and monitoring. Up until reading this, it was my understanding all government outfits were involved and the program was successful. Over time, improvements to fish screens were being made. I don’t know of any diversion that did not have a fish screen if it had salmon or other migrating fish. The adverse affect would be if there were not screen.

    Someone on the SNRA will have to enlighten us as to the problem.

  2. The problem in a word is “flows.” In a few words from the linked article: “The group in the lawsuit said the diversions can lower water levels leading to increased temperatures, reduced oxygen, portions of streams going dry and exposing fish spawning beds, lack of vegetation that provide food and protection from predators, and an increase in susceptibility to disease for the fish.” There’s more…

  3. “Putting more water in streams for fish could be an outcome for some areas, Hayes said, but other solutions include moving diversions to another area on the stream or making sure diversions have fish screens to prevent fish from ending up in irrigated fields.

    Specifically, the lawsuit says the Forest Service in 2001 prepared environmental documents called Biological Assessments and found most of the 23 diversions are “likely to adversely affect” one or more of the protected species.”

    My question is if 17 years ago they thought they were “likely to adversely affect,” we should have evidence as to whether they did affect them by now. How would we tell, since the diversions have apparently been going on a long time?

    It’s interesting that Colorado has probably the most engineered landscapes for water retention and diversion, and maybe because we (mostly) lack endangered species people don’t seem to be litigating? Maybe the “ecological integrity” hook in the new forest plans will work?

    • Don’t get hung up on “likely.” That’s an ESA term of art that is also used when they actually know there is an adverse effect. It might help plaintiffs if they could point to bad things that have happened in the intervening years, and maybe there was relevant monitoring, but there may not be much actual site-specific data.

      Maybe Colorado’s water development has already extinguished a few species. That is part of the rationale for ecological integrity – to conserve all species, including the ones we don’t know about. Of the four species of cutthroat trout native to Colorado, one is extinct (yellowfin), one is listed (greenback) and other two have been petitioned for listing (Colorado River and Rio Grande). From the Forest Service (https://www.fs.fed.us/rm/pubs/rmrs_gtr207.pdf):

      “The magnitude of water development within the range of Colorado River cutthroat trout is staggering. Colorado has over 67,000 points of water diversion on or within 10 km of National Forests and grasslands, and statewide, diversions have legally binding water rights that are 150 times the mean historical runoff for the entire state (Pepin et al. 2002). Although the primary problem associated with water development has been habitat fragmentation, the altered timing and magnitude of flows has also contributed to a lessened capacity to support cutthroat trout populations.”

      The greatest current threat is non-native trout species, but Colorado’s “engineered” water systems have also been suspected of introducing such species to new areas.

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