A recent court ruling could result in improvements to habitat for salmon, steelhead and bull trout in the Sawtooth Valley.

In January 2018, the Idaho Conservation League filed a lawsuit in federal District Court in Idaho over the Forest Service’s alleged failure to protect the fish from impacts associated with 20 water diversions in the valley. Bryan Hurlbutt, staff attorney with Advocates for the West, which represented the ICL in the lawsuit, said six of the diversions are on the Salmon River between Smiley Creek and Stanley, and the other 14 are on tributaries that flow in from the east side, including Champion, Fourth of July and Fisher creeks.

After hearing arguments on the ICL’s motion for summary judgment on June 4, Judge B. Lynn Winmill issued a ruling Monday in favor of the conservation organization’s claim that the Endangered Species Act requires the U.S. Forest Service to consult with federal fisheries scientists before issuing permits to irrigators to divert water.

The ICL pointed out that many of the ditches that deliver the water are a century old and unlined, resulting in unnecessary loss of water for both fish and water users. According to Winmill’s ruling, the ditches also pull in fish, often injuring or killing them.

The ruling contained a recent history of the issue. It noted that following a 1994 study of diversions in the Sawtooth National Recreation Area, Forest Service hydrologist and Anadromous Fish Program Coordinator Mark Moulton wrote a memo discussing the diversions’ effects on listed fish. Moulton concluded that diversions were “by far, the most significant effect on designated critical habitat within the [S]NRA.” He warned that without addressing diversions, the Forest Service “must anticipate continued decline in our aquatic species and their habitats,” describing the effects as “catastrophic.”

Following Moulton’s memo, SNRA Area Ranger Paul Ries notified the ranchers and farmers diverting water that they needed to apply for a ditch bill easement or special-use permit from the Forest Service. The agency found that 17 diversions harmed fish by limiting downstream flows and that imposing bypass flow requirements in the diversions’ plans of operation would be necessary.

In 2000, the Forest Service had still not reached decisions on the pending applications, prompting environmental groups to serve it with a notice of intent to sue under the Endangered Species Act for failing to engage in consultations with the National Marine Fisheries Service and the Fish and Wildlife Service. In 2001, the Forest Service provided a biological assessment to the two wildlife agencies, requesting consultation.

However, the ruling noted, by the early 2000s, efforts to consult had ground to a halt because of “unresolved disputes between the Forest Service and the regulatory agencies,” according to acting Regional Forester Jack Troyer, suggesting that the fisheries agencies were demanding too much information to initiate consultation.

“Since then, the Forest Service has dropped the ball and we don’t exactly know what all these diversions are doing,” Hurlbutt said in an interview. “It could be that the upgrades to these diversions are enough and things are doing well.”

He said the federal fisheries agencies should be able to determine changes that have occurred to the streams and fish populations since the mid-1990s, and recommend changes to the diversion points and structures as well as a monitoring plan.

“We’re very pleased with the judge’s decision and look forward to working with the Forest Service to find a solution,” ICL Executive Director Justin Hayes said in a press release.

In an interview, Sawtooth National Forest spokeswoman Julie Thomas said that in response to the court ruling, the Forest Service is working on a process for issuing diversion permits to the irrigators.

Email the writer: gmoore@mtexpress.com

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