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Showdown at Icicle Creek

Icicle Creek, during the spring run Credit: RonB1954, Flickr

The U.S. Fish and Wildlife Service has basically been stealing water and killing fish in Icicle Creek, according to a complaint recently filed in federal court by Wild Fish Conservancy and Harriet Bullitt, who owns the Sleeping Lady Mountain Retreat Center on one side of the creek and lives in an old family property on the other. The FWS diverts water from the creek into a 4,000-foot man-made channel ”for various beneficial uses,” the complaint explains, “including to recharge the aquifer that supplies the [Leavenworth National Fish] Hatchery’s groundwater wells, to attract Hatchery fish for broodstock collection, to flush Hatchery smolts, and for flood control.”

Bullitt and WFC (formerly Washington Trout) have sued the FWS, the Bureau of Reclamation, the Interior Department, and the Leavenworth Hatchery, alleging that the agencies have violated state water and fish passage laws, and the federal laws that require compliance with them. The feds have allegedly violated the law by, among other things, “failing to apply for and receive a permit or other authorization for diversions of water from Icicle Creek at the Hatchery’s dam 2,” and “failing to maintain fishways on the Hatchery’s structures, including dams 2 and 5 and the water intake system, in an effective condition and by failing to continuously supply such fishways with sufficient water to freely pass fish.”

Bullitt, who published Pacific Search and Pacific Northwest magazines, and chaired the executive committee of the King Broadcasting Company board, is the last surviving child of King founder Dorothy Bullitt, who bought land beside Icicle Creek in the 1930s. The hatchery is built on land acquired from Dorothy Bullitt. Harriet Bullitt owns some 350 acres beside the creek. She remembers the creek as it was before the hatchery. There were “deep pools. I used to go in under rock overhangs.” Sometimes, in the pools, she would “see great big fish.” There were plenty of fish. “We used to go out and catch trout for breakfast.”

That all changed after the hatchery was built around 1940 to mitigate the destruction of salmon fisheries by Grand Coulee Dam. The hatchery takes in water through a 31-inch pipe located a mile and a half upstream. (It also takes water from Snow Lake, on the main trail to the Enchantments, and from the wells.) The headgate dam diverts water into the man-made channel above the hatchery. Dam 5 can block the creek below the hatchery, sealing off a one-mile stretch of the natural channel. “The Hatchery’s diversion of water . . . significantly dewaters [that] natural channel of Icicle Creek,” the complaint says.

Salmon are placed in holding ponds before they’re released. At one point, these ponds were created by three small dams placed in the partially de-watered channel of the natural creek. In 1979, the hatchery stopped using the ponds, but left the dams. Water got into the old channel only during high-flow periods when it spilled over the headgate.

Deprived of water, Bullitt says, the old natural channel “gradually became more and more of a marsh.” A neighbor, Dick Rieman, recalled in an affidavit for a WFC suit now on appeal: “The original, natural channel of Icicle Creek was choked with sediment that had accumulated behind the abandoned dams and was evolving into a one-mile-long wetland.” As the creek got shallower, Bullitt “kept wondering why they wouldn’t open the gates.” She asked hatchery managers, but “they wouldn”t tell me. . . . they just never opened the gates.”

Rieman co-founded an Icicle Creek Watershed Council to work on getting the gates open and the creek restored. Bullitt soon joined. In 1998, they invited WFC executive director Kurt Beardslee to a meeting. The Watershed Council “was aware that the Hatchery was in violation of the” Endangered Species Act, Rieman recalled. “We also knew the Hatchery was in violation of state law.” However, the council wanted to avoid court. “Council members mistakenly thought that the USFWS would view the restoration of Icicle Creek and opening up 24 miles of main stem Icicle to migrating fish as a high priority.”

They quickly learned otherwise. The hatchery did start letting more water flow into the natural channel around 2001, and letting migratory fish pass upstream some of the time. Removing the vestigial dams from the old channel looked like a no-brainer, but “[f]ollowing . . . meetings in 1997 and 1998 the Watershed Council was informed by the USFWS that there could be toxic metals in the sediment in the historic channel and that this situation could hinder restoring flows to the historic channel. When the toxic metal issue was finally resolved, the USFWS informed the Watershed Council that the abandoned dams and structures in the historic channel had been listed on the National Register of Historic Places and that they could not be removed without obtaining permission from the agency responsible for listing them. After about the fifth reason given by USFWS for why the project could not go forward, the Watershed Council began to recognize a pattern.”

Early in the Bush Administration, “the Icicle Creek Watershed Council proposed that the [hatchery renovation and river restoration] project be divided into three phases. Surprisingly, USFWS agreed. Phase I would remove the three dams . . . After meeting with the Senior Scientific Advisor to Secretary of Interior Gale Norton, it became clear that the government would not fund the removal of its dams.” In 2003, the Icicle Fund, which Bullitt established, gave the Watershed Council $250,000, and the Council removed the dams by itself.

That wasn’t the start of a beautiful friendship. “After the three structures were removed,” Rieman wrote, “the Icicle Creek Watershed Council met with the USFWS to explore writing a Memorandum of Agreement to allow interim fish passage past the hatchery and begin the process of restoring Icicle Creek.. . . After several meetings it became evident that the USFWS was becoming less and less agreeable to the idea of adopting meaningful Icicle Creek restoration and providing meaningful fish passage. It became obvious that USFWS was focused on operating the Hatchery as it had always been operated, that fish passage past the hatchery was not a high priority, and that restoring Icicle Creek was viewed by the Hatchery as actually hindering Hatchery operations. “

At that point, the Council forgot about avoiding litigation. Bullitt recalls that “we called Kurt and said, ‘it’s all yours; if you want to sue, go ahead.'” Beardslee’s organization has sued, settled, and negotiated with the federal government ever since.

Four years ago, WFC asked the U.S. District Court for the Eastern District of Washington to make the FWS stop blocking passage of threatened and endangered bull trout and other fish at the hatchery, to consult NOAA Fisheries and its own biologists about the impacts of hatchery operations on those fish, and to prepare an environmental impact statement on planned hatchery renovation. The court ruled — with little explanation — against WFC, which has appealed to the 9th Circuit.

The government has listed bull trout as a threatened species. Everyone knew there were bull trout in the creek, and everyone knew that bull trout were — or could be — migratory. But the FWS assumed that bull trout weren’t migratory here. Even if the hatchery had never been built, they wouldn’t have been able to pass a boulder field just upstream. The boulders, most of them there naturally, some clearly pushed into the channel during construction of the Icicle Creek road, blocked passage to the upper watershed. The 2002 Federal Register notice that designated critical habitat for the bull trout explained that there were six migratory populations in the Wenatchee River area, and “[t]here is also a resident bull trout population in Icicle Creek above the barrier falls.”

The concept of an impassable “barrier falls” was superficially plausible. It just wasn’t true. As soon as the hatchery let fish travel upstream even part of the year, migratory bull trout appeared above the boulders. In 2007, WFC sent out a Christmas video — available on YouTube — of big bull trout in a plunge pool roughly 10 miles above the boulders. (Biologists assume that trout don’t grow big in little headwaters streams; a big fish has swum in from someplace else.),/p>

A biological opinion on hatchery operation explains that “several migratory-size bull trout were observed during a snorkel survey above the boulder area on September 15, 2002, indicating that this obstacle is passable under some conditions On September 9, 2004, during a brief spot-check of the same area, another migratory-sized bull trout was observed. For these reasons, this area is likely only a barrier to upstream passage of bull trout during certain [low] flow conditions.“

The feds could require enough flow to get fish past the boulders. The hatchery discharges wastes under a Clean Water Act permit that expired in 1979. WFC sued the FWS for discharging wastes without a permit and the EPA for not requiring a permit. Under a settlement, FWS applied for a permit and EPA has issued a draft; it hasn’t issued a final permit because the state Department of Ecology hasn’t yet come up with conditions. Those conditions could include enough flow to get fish upstream.

Mark Hersh of WCF says it’s ironic that Ecology isn’t pushing instream flow. Governor Chris Gregoire was attorney general and Ecology director Jay Manning her assistant when the state won the Elkhorn case, in the United States Supreme Court. The Elkhorn court ruled that the state could impose instream flow minimums. The losing side had argued that Clean Water Act permits applied only to water quality. The Court said the distinction between water quality and water quantity was artificial.

A fish that swims above the hatchery isn’t necessarily home free. A “1999 USFWS Memo identified the potential for migratory bull trout to enter the unscreened Hatchery water intake pipe and stated that ‘screening of the intake pipe and other protective measures to avoid the take of listed species should be a priority,’” WFC says in the case that has been appealed to the 9th Circuit, Nevertheless, it says in both that case and the new one, “the USFWS has failed to install appropriate screens on its water intake. The existing fish screening devices on the hatchery’s water intake system are outdated, inefficient, and do not comply with current federal and state regulatory requirements.”

Beardslee says hatchery officials had assured him that no fish got sucked into the intake pipe. No one had ever seen them in the settling basin where water from the intake winds up. Beardslee says that when he and Hersh had were shown into the basin —which is covered by a big, locked shed — for he first time, they been there only about ten minutes, and the person showing them around was just explaining that no one had ever seen a fish there, when they spotted bull trout swimming right at their feet. “As the words are coming out his mouth — ‘we have never seen a fish . . . ‘ — Mark and I are both pointing down.”

The FWS has re-defined, as well as re-plumbed, the creek. FWS officials have suggested there has been no illegal diversion, because the artificial channel has become the natural one. Last year, the Center for Environmental Law and Policy wrote Ecology that “since at least 2001 USFWS has stated that the artificial canal is the ‘actual’ Icicle Creek and that the natural channel of Icicle Creek is either a subcomponent of the natural system or no longer part of the natural system, and they assert that Ecology has ‘informally’ given them this interpretation on more than one occasion.“

CELP suggested that this “designation of the hatchery’s artificial canal as a natural water course appears to be an attempt to avoid the requirements of the state water code. . . . For many years several interested parties have inquired to Ecology as to why no water right is required for the diversion into the artificial canal. We can find no documents or orders that address, describe and/or justify . . . what Ecology staff have informally described as the change in the natural system.”

Beardslee says the government itself is doing what it sues other people for doing: using unscreened diversions, blocking fish passage. He worries that the federal stimulus package will enable the hatchery to do more of the same. The 70-year-old intake is crumbling, and the Fish and Wildlife Service is eager to replace it. (Why bother? Reasons include the government’s legal obligations to the Yakama Nation, whose members fish in the man-made channel. They do not include economic rationality: The Independent Economic Analysis Board has calculated the cost of each fish actually harvested as $4,800; if the hatchery is renovated, the cost will rise to $7,573.) The Leavenworth, Entiat, and Methow hatcheries have gotten $18.5 million for renovation. The FWS plans to renovate the hatchery first, and restore the stream later. And yet, Beardslee says, the renovation “could be sealing the fate of the river in perpetuity.”

He’s not the only one who worries about it. “We’re afraid,” Rieman says, “they will do their pipeline upgrade and they will forget” about restoring Icicle Creek.

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