Clark Fork River bull trout at heart of new lawsuit against EPA; Silver Bow Creek in the mix

Clark Fork River bull trout at heart of new lawsuit against EPA; Silver Bow Creek in the mix

Source: Helena Independent Record
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Susan Dunlap susan.dunlap@mtstandard.com

BUTTE — Threatened bull trout in the Clark Fork River are at the heart of a lawsuit a Montana environmental group filed against the Environmental Protection Agency this week.

The Missoula-based Alliance for the Wild Rockies sued the EPA in U.S. District Court in Missoula Tuesday, claiming the agency has disregarded the Endangered Species Act for bull trout by failing to consult the U.S. Fish and Wildlife Service on its Superfund cleanup activities upstream of the Clark Fork in and around Butte.

The U.S. Fish and Wildlife Service designated the upper Clark Fork River as critical habitat for bull trout in 2010.

But with Warm Springs Ponds acting as settling ponds for any sediment coming from Silver Bow Creek, some experts say it’s unlikely that metals contamination left from upper Silver Bow Creek cleanup issues could be affecting the Clark Fork River below the ponds.

The ponds and Silver Bow Creek are not part of the designated bull trout critical habitat, but because they are upstream, Michael Garrity, the alliance’s executive director, says the EPA’s consultation with Fish and Wildlife is needed.

Fish, Wildlife and Parks fisheries biologist Jason Lindstrom said it’s unlikely metals from Silver Bow Creek would reach the Clark Fork because of Warm Springs Ponds.

“That was one of the reasons the ponds were left in place,” Lindstrom said. “It’s very unlikely they (metals from Silver Bow Creek) would have any measurable impact on critical bull trout habitat.”

The Clark Fork River does have its own metals problem. Heavy metals mining and smelting waste washed downstream during the 1908 flood and left significant deposits along the Clark Fork River. The Montana Department of Environmental Quality is the lead agency on removing that waste.

DEQ spokesperson Kristi Ponozzo said DEQ has been in consultation with Fish and Wildlife Service over bull trout habitat in its Clark Fork cleanup process.

Alliance for the Wild Rockies filed a Freedom of Information Act request from the EPA in March asking to see documentation that had passed between the EPA and U.S. Fish and Wildlife Service over bull trout in the Silver Bow Creek/Butte Superfund site and downstream, in the Clark Fork River. The EPA responded to the Freedom of Information Act request Monday, stating there is no documentation between the agencies on bull trout for those particular sites listed in the request.

But the agency says it is addressing bull trout habitat.

EPA officials declined to comment on the suit, citing the pending litigation. But the EPA provided a letter the agency sent to Alliance for the Wild Rockies to The Montana Standard. The letter states that the EPA will conduct an assessment on bull trout critical habitat in the upper Clark Fork in the spring and summer of 2017.

Garrity said his group is suing the EPA “to make sure they do it.”

Garrity says once the EPA does an assessment on bull trout in the upper Clark Fork River, the public can see if the agency is in compliance with laws protecting the threatened species.

U.S. Fish and Wildlife Service fisheries biologist Dan Brewer said it’s up to each federal agency to decide if it needs to consult with Fish and Wildlife Service on critical habitat issues.

“All federal agencies comply with federal acts, but (USFWS) doesn’t make that determination for EPA. EPA makes that determination,” said Brewer.

Lindstrom said it’s rare to see bull trout in the Clark Fork River, particularly the upper Clark Fork. Problems for bull trout in the Clark Fork include low flows, habitat and competition from rainbow trout in addition to metals contamination.

“Bull trout are cold-water fish. Flows and temperature are the worst above Deer Lodge because it is more heavily impacted by irrigation withdrawal,” said Lindstrom.

Garrity calls bull trout “the canary in the coal mine when it comes to water quality.” Lindstrom agrees, saying that bull trout are a species that “require really high water quality.”

“They don’t handle degradation of any sort very well,” said Lindstrom.

“When temperatures start pushing the water to very warm levels, you’re not going to find them,” said Lindstrom.

“Bull trout need very clean, cold, complex, and connected waterways in order to survive, and Butte sits at the very headwaters of the mighty Columbia River,” Garrity said. “You can’t bring endangered species back from the brink of extinction without a plan.”

The one place where bull trout can regularly be found in the upper Clark Fork watershed is Warm Springs Creek, near Anaconda.

No area within Anaconda’s Superfund site, which is separate from Silver Bow Creek/Butte Superfund site, was listed in Alliance for the Wild Rockies’ Freedom of Information Act request, nor was it named in the lawsuit. Garrity said that was an oversight and his lawyer would modify the legal complaint to include it.

But Brewer said Fish and Wildlife Service is consulting with the EPA on Warm Springs Creek cleanup for bull trout habitat.

The state has plans to do its own work on Warm Springs Creek to improve habitat for bull trout and to improve passage areas for the fish, said state environmental science specialist Pat Cunneen. That work, depending on permitting, could start either in fall 2017 or spring 2018, said the state’s restoration program chief Doug Martin.

Martin said the state hopes to begin work on the bull trout habitat in Warm Springs Creek as early as this summer.

“Obviously the people of Butte want a full cleanup, not merely pulling a vegetative cover over the toxic wastes,” Garrity said. “We stand with them in their efforts to attain that goal.”