NAVIGABILITY DETERMINATION 4-25-16 LMS
The US Army Corps of Engineers is likely to soon join the US Coast Guard and the state of Idaho in designating the Salmon River a navigable waterway. A delegation from the Corps met with the Lemhi County Commissioners Monday April 25 to explain reasons behind the reclassification.
Corps of Engineers Regulatory Division Chief Kelly Urbanek recapped the river’s history of navigability and what brought on the requested change.
She said that in 2014 the Corps received a petition from the Idaho Conservation League (ICL) asking the agency to reconsider its ‘non-navigable’ determination on the Salmon River.
According to the ICL petition, due to the Corps’ 1933 memo that decreed the Salmon River to be non-navigable, the river is “… not receiving the federal regulatory protections it should be afforded.” The petition also maintains that because of the non-navigable determination, which limits some of the Corps authority over the river, instream projects are taking place,”…without being reviewed by the Corps to ensure compliance with RHA (Rivers and Harbors Act) and without ESA (Endangered Species Act) consultation.” The ICL organization has used the river’s extensive written history as proof of its navigability status.
Upon receipt of the ICL petition the Corps was tasked with finding the historical paper trail. Urbanek said they were unable to find the 1931 report on which the 1933 non-navigable determination was made. They did find a 1979 memo that alluded to the Corps studying the river again under Section 10 of the Rivers and Harbors Act.
She said they talked with the report’s author and based on his recollection the 1979 report determined the Salmon was a navigable river. No one has any idea as to why the Corps does not have that report or why the Corps did not act on it in 1979. The state determined the Salmon River navigable in 1980. The Coast Guard made the same determination in 1984.
Urbanek said because the Corps has no documentation from 1979, and therefore no documented rationale behind the previous non-navigable determination, the agency was asked to conduct a new study which has confirmed the river is navigable beginning at its Snake River confluence and continuing 259 miles upstream to just beyond the City of Salmon. Urbanek said the study also included talking to the other federal agencies involved with the Salmon River regarding what they are doing in terms of the Endangered Species Act, their program involvements and their authority over activities on the river.
The report was submitted to General Scott A. Spellmon, Commander of the Army Corps of Engineers Northwest Division. The final navigability determination decision now rests with the Division Commander who is expected to make an official announcement in May.
The concern of local residents already beleaguered with many layers of federal regulations is, of course, the effects of this change. According to Urbanek, in the past the Corps has been highly involved in permitting activities under the Clean Water Act such as discharge of rip rap or fill materials. Under section 404 of the Clean Water Act the Corps has not been subject to imposing regulations on irrigation water diversions, pure excavation or cabling over the river.
Urbanek said, “What this change means is that those activities would be regulated, but under section 10 of the Rivers and Harbors Act, so it’s a different authority.” She said the Corps processes applications pretty much the same as the other authorities but the navigable determination will trigger the Corps’ need to demonstrate compliance with the ESA, the National Environmental Policy Act (NEPA), cultural resources, consultation and coordination with the tribes when issuing permits. Urbanek said, “It brings some changes for some things that hadn’t required permits in the past.” Those changes are what have prompted the Corps personnel to visit with officials and it will schedule public meetings when the determination is actually finalized.
Urbanek assured the County Commissioners that under the Corps authority it has no ability to affect associated water rights and no authority to say where the point of diversion is or isn’t. She predicts there will probably be no big impacts to irrigators and said the Corps may develop a general permit for a range of activities, such as maintenance of diversion structures, and that perhaps the Corps will address screening if there are no screens. She added that rafts and jet boats are not under Corps authority and that Outfitters will not be affected. Urbanek said the general term for Corps authority is ‘in, under or over navigable water.’
Rob Brochu is a Project Manager and biologist based in the Idaho Falls office of the Army Corps of Engineers for the past 20 years. He said the operation and management of the levies within the Corps system along this reach of river will not change. He foresees a general permit will be developed that covers contingencies already discussed and negotiated in the permit development process. He said there is an economic caveat already in place under section 10 which covers actions taken in the event of emergencies. A section 10 permit will be required for activities no longer exempted by the Corps.
Road and Bridge Supervisor Kerrie Cheney and department Office Manager Jay Davis were concerned about how long it will take to get the new permits. They indicated the county department’s working relationship with the Idaho Falls Corps personnel Brochu and Project Manager James Joyner has always been excellent. Their concern is the added work load to the two men plus what the new layer of authority will mean to the permitting process. Brochu said as the Corps works through the implementation logistics of the new requirements and process it will continue to work closely with the Lemhi County Road and Bridge Department.
In summary up until now the Salmon River was not defined as navigable under section 10 of the Rivers and Harbors Act therefore no Clean Water Act permits were required by the Army Corps of Engineers. The change to ‘navigable’ activates Section 10 authority on the river and the Corps will now have to require CWA permits.
The remaining questions include; for what activities will permits now be required, who will be required to have permits not required before and who will now have to have the added layer of Endangered Species Act consultations which have not been required in the past?
Urbanek said there will be a public notice of General Spellmon’s ruling. When the Corps officially determines the river is ‘navigable,’ meetings will be scheduled to answer questions from ranchers and other members of the public.
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