History of WFC’s Work To Restore Icicle Creek
After years of delay and broken promises, we filed suit under the ESA and the CWA in June 2005 (LNFH ESA Complaint;LNFH CWA Complaint). Our goals were the restoration of fish passage and other ecological functions in the natural stream channel, and the end of illegal water diversions from, and effluent discharges into, Icicle Creek.
The lawsuits got the government's attention and a few improvements in conditions on Icicle Creek were made. USFWS increased natural stream flow into a one-mile reach of the historical channel of Icicle Creek directly adjacent to the LNFH. The restored flow is triggering the restoration of habitats gone fallow from years of isolation and represents one of the first steps in the restoration of the ecology of the Icicle Creek basin (read more in the 2006 Washington Trout Report article).
In 2006, the government agreed to issue a final wastewater discharge permit by November 30, 2006 (NDPES Comments). EPA prepared a permit in November 2006, but before such a permit can be finalized, the Washington Department of Ecology usually imposes “conditions” on the permit, outlining provisions for maintaining adequate fish passage, instream flows, and other state water-quality standards. This process is called “Clean Water Act certification” (draft certification is available here). WFC had already made extensive comments to Ecology on the "certification" before it was issued, and then later during the public comment period (Section 401 Comments). In 2010, the certification was appealed by WFC and the Center for Environmental Law and Policy (link to appeal).
Discussions on restoration of Icicle Creek and infrastructure needs of the Hatchery between all stakeholders began in the summer of 2006 and continued through 2009. In late 2009, the LNFH and Reclamation proposed removing the “headgate” dam and replacing it with another structure with a fish ladder. This proposal disregarded the latest science and experience with “passive” structures that could mimic a natural stream channel for fish passage and deliver water to the canal as needed while reserving the lowest natural stream flows for fish and aquatic life (rather than aquifer recharge). The proposal was withdrawn.
Our ESA case was lost at the District Court level but ultimately reversed by the US Court of Appeals for the Ninth Circuit in 2010. The upshot is that the LNFH made further operational changes that improve passage for bull trout at exactly the time of year they need to migrate past the LNFH. But the infrastructure at the LNFH needs to be improved.
In 2010, WFC and a local resident filed suit over the LNFH’s continued diversion of Icicle Creek into the hatchery “canal” without a valid water right. The LNFH does this in order to charge the aquifer that serves its groundwater wells. Unfortunately, this occurs during times of critical stream flow, and the LNFH insists on diverting even more Icicle Creek water to serve hatchery fish. The US District Court ruled against WFC and our co-plaintiff and upon our appeal to the Ninth Circuit, settlement negotiations resumed (this case as well as the appeal of the Section 401 certification). Those failed and in autumn 2012, the appeal went forward (we and the government did agree to postpone the Section 401 appeal).