Some federal, state and local government officials got together with some local fishing outfitters and others in the Bitterroot last week to discuss the issue of removing woody debris from the river. The meeting was organized and hosted by the Bitterroot Conservation District (BCD), the local agency that issues 310 Permits for doing any kind of activity that may disturb or alter the bed and banks of any natural perennially flowing stream. Other participating agencies included Montana Department of Fish, Wildlife and Parks (FWP), Ravalli County Flood Plain Administration, and the Bitterroot National Forest (BNF). All of these agencies have some jurisdictional authority related to the river, albeit a gray area in the law for some, when it comes to the issue of cutting up large logs that may be blocking the waterway.
BCD Supervisor Kent Myers, who hosted the conversation, told the group that they were focusing on the upper West Fork, but that the issue applies to the whole river.
“We all know that there has been an ongoing issue with woody debris manipulation on the West Fork going back a number of years,” he said. “The issue is that this is largely unregulated and unauthorized work that’s being done in the stream and it’s not necessarily being done in a way that is beneficial for the function of the stream and the habitat in the upper West Fork.
“So, we are looking at how we can address this proactively and come up with a way that we can preserve stream function and habitat there and still meet the needs of recreational and commercial users on that stretch,” said Myers. He said after hearing from the various agencies about their own jurisdictional obligations and perspectives as well as from some commercial fishing outfitters and representatives of Trout Unlimited, that they would try and “brainstorm” over the issue and see if they could come up with any answers.
While it is clear that the Bitterroot Conservation District does have direct authority over the actions and requires a 310 Permit before cutting a log up to allow safe boat passage, it has proven to be almost impossible to enforce when someone cuts without one. It is an action that is often undertaken on isolated stretches of the river going unwitnessed. If there is a witness, they must be able to identify the perpetrator. The BCD does not do investigative work. They will visit a site and conduct an inspection in relation to a permitting request. They may also visit the site of a complaint to make an assessment. But the complaint must identify the person who took the actions leading to the complaint. Complaints that are deemed valid must be submitted to the County Attorney’s office for enforcement. Neither the Sheriff’s Office nor FWP have the staff or the time or the resources to patrol the river, especially in the enforcement of a law that is so difficult to apply.
Besides the most common problems of not being able to catch the perpetrators in the act and not being able to get sufficient identification, there is another complicating factor. It is legal to manipulate the woody debris without a permit in an emergency, as long as you get a permit afterward. The law allows you up to 15 days to get the after-the-fact permit.
What constitutes an emergency, however, is not clearly defined, as Howard Eldridge of the BCD pointed out at a recent District meeting. He said, according to the law, “it’s an emergency when there is an ‘immediate threat to life and property,’ but if you were not there at the time, that’s a hard thing to reconstruct a few days or a week later,” he noted.
BCD Supervisor Kent Myers said at the meeting that in his opinion unless a boat is caught in a log jam, it’s hard to say the log jam constitutes an “immediate” threat to life or property that needs to be taken out. It may constitute a danger, but it doesn’t constitute an immediate emergency unless a boat is caught in it.
Myers also said that the District was very interested in trying to respond more quickly to issue when it comes up. He said the long process, sometimes taking two to three weeks, may be one thing that leads to the decision to take unpermitted action. The bottom line is that, even in an emergency, an after-the-fact permit is still required.
According to Ravalli County Flood Plain Administrator Rob Livesay, removing woody debris could come under the jurisdiction of his office and enforcement of the county flood plain regulations, “but it would have to be determined on a case by case basis.”
He said that the Ravalli County Flood Plain Regulations were designed to keep the county in compliance with FEMA and the National Flood and Insurance Protection Act of 1975.
The original regulations allowed the cutting of woody debris on the river, but when the regulations were revised in 2015 they required a permit for it.
“Essentially,” said Livesay, “once you cut something or put something in the flood plain that can become an artificial obstruction, it is classified as fill and requires permitting.” He said if you cut out a log jam and it washes downstream and jams up again, that new log jam is considered an artificial obstruction and comes under the law.
Unlike the 310 Permit issued by the District, however, the Flood Plain Permit is not free and can cost from $150 to $500.
According to Livesay, a naturally occurring hazard was one thing, but a man-made hazard like a large sawn off log would come under the law and the one who cut it would be the responsible party. He added that if the Conservation District actually approved the cutting of a log in the floodplain, the log would have to be removed from the floodplain. If it was left in the floodplain the District could be responsible for creating a hazard in violation of the floodplain regulations.
“But how big does the log have to be?” someone asked. If it’s a 3-inch limb stretching across the river and someone breaks it off, have they violated the law?
The intent of the law was pretty clear, according to Livesay. You don’t want to create a potential hazard. He said it was a judgment call based on a lot of factors and that’s why it calls for a case by case approach. Ultimately, he called it a “gray area.” His office too, however, requires a violator be identified for any enforcement and usually it is a landowner. In this case it would be the culprit who cut the log.
Both the BCD and the Flood Plain Administrator usually deal with landowners. In the case of the upper West Fork, the largest landowner by far is the public. As West Fork District Ranger Seth Carbonari put it, “We are not a landowner. We are a land manager.” The Forest Service manages the land that is held in the Public Trust. He said that his agency issues special use permits for outfitters to access the river from public land. They maintain some access sites along the river and require permits for launching commercial boats.
“But once they are in the river,” he said, “we don’t have any say.” He said it was designated as critical Bull trout habitat and any agency doing anything in the river should probably consult with USFWS.
Bill Goslin, outfitting permit coordinator for the Forest Service, said that woody debris was mentioned in the agency’s operating plan where it says that “removal of large woody debris is not authorized by this permit.” If the permittee has any questions about removing woody debris, he said, it states they should contact Montana FWP.
FWP fisheries biologist Jason Lindstrom and Bitterroot National Forest fisheries biologist Mike Jakober both said that, in terms of fish habitat, woody debris was an essential ingredient for good fisheries.
“From the fisheries perspective,” said Lindstrom, “my goal is to have the highest quality fish habitat possible and have the river function the way it is supposed to function hydrologically.” He said the situation on the upper West Fork was exacerbated by the endangered status of Bull trout because large woody debris is critical bull trout habitat and maintaining woody debris jams and channel complexity is really important.
Jakober agreed. He said that after examining the area he believed it has been impacted by cutting out of logs.
“The channel is simpler. There is less cover and some of the side channels have been abandoned. We’ve lost complexity,” said Jakober. “We are trading good habitat for worse habitat.”
Lindstrom agreed with Jakober’s assessment, but also said that no one really had a grasp of how big the problem was in terms of the fishery. He said some current fish survey information would confirm how much these changes may have impacted the fish population.
Fishing outfitter Eddie Olwell said that he was a member of Trout Unlimited and on the board of the Bitter Root Water Forum and said he understood the habitat issue and he was against indiscriminate cutting of logs. But he was also very concerned about boating access and safety.
He mentioned the statistics for deaths on the river all related to “strainers” or killer log jams.
“Maybe a complete blockage is an emergency?” he said.
FWP regional fisheries manager Pat Saffel said the agency was in a tough situation.
“We want woody debris in the river and yet we also have concerns about safety,” he said. He said there was currently an incident on Rock Creek where a very large pine tree has blocked the entire creek and does represent a danger to boaters. He said that FWP and the Lolo Forest were in consultation over the issue.
“They don’t quite know what to do,” he said, “I think they are watching our discussions here very closely.” He said something needs to be done but it seems to be either take the thing out or stop the floating. He said in the case of the West Fork, restricting all floating on the upper section was considered as an option and declined. Instead, it was limited to wade fishing only for one day of the week.
Jack Mauer, speaking for Trout Unlimited, called the West Fork “a tight spot” and difficult to navigate. He said it was a narrow window for floating, maybe 2 to 3 weeks, but he didn’t want to give it up. He said the log jams on that stretch were increasing in the last several years but that he didn’t see it as a severe problem.
“If we are going to allow floating” he said, “we need to manage woody debris.”
Christine Brissette, Special Projects Manager for Montana Trout Unlimited, was in agreement.
She said TU wants better habitat for better fishing. She said the West Fork is in pretty good shape now compared to many streams around, but that everyone has recognized a degradational trend and a loss of the ability for the river to self-regulate. She said that log jams were key factors in maintaining good habitat.
“It creates backwaters for spawning and refuge from flood waters,” she said. “We want habitat, but we also want fishing. We want both. There is no easy solution here.”
With the varying perspectives pretty much all laid out, the brainstorming began. Many items were discussed, and many options were considered. One thing a lot of them agreed on was the need for some sort of “reality check” on the situation, like some fish population studies, and survey of the existing woody debris situation.
A series of multi-agency and outfitter floats in the spring was another idea, to identify problems and cooperatively decide on the best solutions. Not surprisingly, “educating the public” about the issue was at the top of the “to do” list.
Also under consideration are potential rule changes that would allow the Conservation District to act more quickly in response to complaints or perhaps, where federal land is involved, using another response approach under a different permitting system.
In the meantime, float on the river at your own risk and if you have to “manage some woody debris,” get a 310 Permit. It really is a requirement, and in Ravalli County it is still free.