As of Tuesday, April 26, 2016
Under an old law, Salmon River users – including mining and agricultural interests – will soon have to contend with a permitting process they haven’t faced before.
That’s because – as anyone who attended the jet boat races earlier this month could plainly see – the Salmon River is navigable. The Salmon River has been navigated throughout Idaho’s statehood, with a history of trade and travel on the river stretching back to the late 1800s. The Idaho Supreme Court has long called the Salmon River navigable, including in a ruling by one Judge Budge back in 1915.
At the federal level, the Rivers and Harbors Act of 1899 assigned the power to regulate river navigation to the Secretary of the Army – a power which, under the act, presently extends through the Army Corps of Engineers to almost any activity in, on, above, over, under or adjacent to any navigable river.
While the law isn’t new, it hasn’t been enforced locally to the same degree as other environmental laws. In 1933, the Corps determined the Salmon River was non-navigable for the purposes of the Rivers and Harbors Act. The Coast Guard took the opposing view in 1974 – six years after the Middle Fork Salmon River was designated as one of the original Wild and Scenic Rivers under the 1968 law which has limited development along certain rivers ever since. Little documentation of those earlier navigability decisions still exists.
Therefore, despite its long-standing authority to require permits for many types of river use, the Corps hasn’t regulated the Salmon River as tightly as environmental interests such as the Idaho Conservation League (ICL) would like. In 2014, ICL began to press the agency to start applying the Rivers and Harbors Act – which would extend not only the Section 10 permitting requirements to the river, but also would extend the Endangered Species Act to activities that haven’t been heavily regulated in the past.
ICL’s petition prompted a review by the Corps, which the Lewiston Tribune previously reported will be subject of a decision by the Corps division commander, Brig. Gen. Scott Spellmon, late next month. Permitting changes are expected to take up to a year to implement after the decision.
On April 19, the day the Tribune splashed its report across the top of its front page, Corps representatives informed the Idaho County Commission that the upcoming decision will likely declare the Salmon River navigable. While that would bring the federal government’s position on one question in line with what has been obvious to Idahoans for more than a century, it would also encumber approximately 259 river miles from the City of Salmon down to the Snake River confluence essentially for the first time.
After listening to the Corps’ presentation, Idaho County Commission chairman Jim Chmelik erupted:
“I’m going to make some comments and I want these to go back to our congressional office,” Chmelik said. “You guys [referring to the Corps’ Walla Walla District deputy commander Major Ian Davis, regulatory division chief Kelly Urbanek, other Corps associates in attendance and the agency as a whole] are just here doing your job and I totally respect that and my comments are not directed at you. We deal with NOAA Marine Fisheries, EPA, Fish and Wildlife, Forest Service, BLM, and one more layer of federal bureaucracy is not what we need. We don’t need it. And ICL is an insidious group…Their goal is to get rid of Tim Kaschmitter’s [gravel production] operation on the river, their goal is to get rid of the dredge miners off the river, and…they’ll get rid of jet boaters…I’m sorry to explode about this, but I want that message to be carried loud and clear back to our congressional office, that we are sick and tired of organizations like ICL pulling this crap.”
The Corps has long regulated road work and operations like Kaschmitter’s under the Clean Water Act. The Corps also presently regulates nine navigable waterways in Idaho under the Rivers and Harbors Act, including about 58 miles of the North Fork Clearwater River in the area around Dworshak Reservoir, as well as about 41 miles of the Clearwater River immediately upstream from the Snake River confluence at Lewiston.
“Just like these others are navigable under the Rivers and Harbors Act, the Salmon River should have been designated as navigable 83 years ago,” Idaho Conservation League senior conservation associate Jonathan Oppenheimer said. “In 2011-12, through a series of Freedom of Information Act requests, ICL discovered this oversight and has been working with the Corps to correct the error. As a result of a navigable determination, a more appropriate balance can be struck to protect the Salmon River, which includes additional consideration for salmon, steelhead and bull trout, as well as navigation by floaters, boaters and other river users.”
ICL had previously asked a state agency to deny Kaschmitter’s gravel operation a permit – a request the Idaho Land Board denied in 2012. That year, ICL also battled the land board over a mining permit.
Regulated activities include construction, excavation, dredging, depositing material and “any other work that affects the course, location, condition or capacity of navigable waters.” Urbanek told the commission cattle producers would not be impacted, but those who tap the Salmon River for irrigation could be.