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Advocacy Update - Icicle Creek Restoration

An update on our Icicle Creek advocacy work

Icicle Creek 1If you’ve paid the slightest attention to Wild Fish Conservancy’s past advocacy efforts, you probably know that we have been working for over a decade to improve passage and habitat on Icicle Creek in Chelan County.  The Leavenworth National Fish Hatchery has outdated structures in the stream inhibiting fish passage but has made some operational improvements that help. 

Some of those were made in response to the “persuasive” nature of lawsuits.  Beginning in 2005, we filed a number of lawsuits under the Endangered Species Act, two under the Clean Water Act and one under the Reclamation Act.  Our goals are 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.  Our past Wild Fish Journals and Wild Fish Runs cover how most of those suits were settled or decided.  

The lawsuits got the government's attention and a few improvements in conditions on Icicle Creek were made. The LNFH increased natural stream flow into a one-mile reach of the historical channel of Icicle Creek directly adjacent to the hatchery. 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.

The lawsuits also triggered long series of discussions Icicle Creek 2with the federal government, sometimes with all the “stakeholders,” other times in more formal settlement negotiations between the litigants.  WFC has invested tremendous resources in talking through these issues rather than having them decided by judges.  

But sometimes talking doesn’t work.  Our most recent ESA case was lost at the US District Court level but ultimately reversed by the US Court of Appeals for the Ninth Circuit in 2010.  That victory was accentuated when the LNFH made further operational changes that improve passage for bull trout at exactly the time of year they need to migrate past the hatchery.  Nonetheless, the infrastructure at the LNFH needs to be improved.  

In 2010, WFC and a local resident filed a federal lawsuit 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 recharge the aquifer that serves its groundwater wells. Unfortunately, this occurs during times of low stream flow, and the LNFH insists on this right to dewater Icicle Creek to serve hatchery fish.  The US District Court ruled against WFC, and upon our appeal to the Ninth Circuit, settlement negotiations resumed.  Those failed, and in autumn 2012 the appeal went forward.  We have agreed to delay moving forward on the second Clean Water Act suit (over the “Section 401 certification”) pending studies that will evaluate the feasibility for the LNFH to divert some of their own raceway water for aquifer recharge, obviating the need for them to divert Icicle Creek during low flows.

For more information about our efforts to restore Icicle Creek, visit Icicle Creek Restoration

Article by Mark Hersh, Water Quality Specialist, Wild Fish Conservancy

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