Notice of Intent
In June 2015, seven individuals (hereinafter referred to as “complainants”) filed a 60 Day Notice of Intent to Sue the Federal Government (“Notice of Intent”) alleging that the Federal Government inappropriately applied a Categorical Exclusion (CE) to this project, which thereby did not take the National Environmental Policy Act (NEPA), the National Oceanic and Atmospheric Agency (NOAA), the National Endangered and Threatened Species Act (NESA), and the Clean Water Act (CWA) regulations into consideration. This Notice of Intent was critical of Latah County for its failure to indicate the proximity of the West Fork of Little Bear Creek (WFLBC) to the trail in its grant applications to the Federal Highway Administration (FHWA) that provides funding for Recreational Trail Projects (RTP). In September 2015 a Supplement to the Notice of Intent was filed. This Supplement cited the possible existence, in BCC, of a federally listed threatened plant species known as Spalding’s catchfly (Silene spaldingii). The original Notice of Intent cited the known existence in the WFLBC of the federally listed threatened anadromous fish species known as steelhead (Oncorhynchus mykiss iredeus).
An Informational Paper on the Latah Trail in Bear Creek Canyon
This paper will set out the Latah Trail Foundation’s (LTF) opinion, based on its historical knowledge and understanding of this matter and the differing positions of the County and the complainants on certain issues related to the BCC project to help readers understand more about Bear Creek Canyon: what it is; where it is; its historical significance; its historical use; its current use; the ownership within the canyon, both historically and current; the specific work that this project will entail; where the funding will come from for this project; and LTF’s understanding of the differing positions of the County and the complainants related to the project in Bear Creek Canyon.
Where and what is Bear Creek Canyon? Bear Creek Canyon is a canyon running southeast from Troy to Kendrick for approximately ten miles, formed by the West Fork of Little Bear Creek. It is removed from the existing highway which more or less parallels it, and occupies a considerably more gradual railroad grade. This creek is the most productive creek in the Potlatch River drainage for steelhead, a federally listed threatened fish species. Bear Creek Canyon was used as a rail corridor from the 1890’s to the 1980’s. There are ten historic rail bridges in this canyon all of which are owned entirely or in part by Latah County. The County owns the right of way along the abandoned rail bed for approximately four miles downstream from the City of Troy’s Waste Water Treatment Plant, which discharges effluent into the creek. The first three miles of these are gravel and the last mile is abandoned rail bed with vegetation growing up through it. This mile has suffered a slump in the hillside encroaching the trail and a wash out that has been repaired. The final approximate 100 yards consists of an old washout that is very rough. It is the LTF’s understanding that the County has no plans to address these last 100 yards unless it acquired the right of way of the entire rail corridor through the canyon; this is not currently under discussion and the private landowner has not communicated any plans to sell. Beyond this point the rail bed is in a checker board pattern of private ownership and County land. The final approximately ¾ mile to Kendrick is owned by Latah County.
What has been the Historical Use of Bear Creek Canyon? Bear Creek Canyon was used by the railroad from the 1890’s to 1980’s. Once the rail line was abandoned by the railroad and a salvage company removed the rail and ties, the former rail bed was used by motorized vehicles, with and without permission. In addition, hikers and cross-country skiers used the rail bed for recreation.
Who Owns the Abandoned Railroad Bed in Bear Creek Canyon? The Moscow-Arrow Junction rail line was owned by the railroad. In 1890 the Spokane and Palouse Railway Company acquired the right-of-way for railroad purposes from Moscow through Troy, Kendrick and Juliaetta to Arrow Junction on the Clearwater River. In 1984, Burlington Northern, the successor owner, formally abandoned railroad use. This was followed by a salvage company and then a real estate overseer, before either reverting to adjacent property owners with reversionary deeds or being acquired by Latah County. Latah County acquired the right of way of some of this land, negotiating with private landowners, for the purpose of extending the Latah Trail through the canyon and perhaps one day linking it with the Ed Corkill Memorial Trail between Kendrick and Juliaetta, however the private landowner has communicated that they are not interested in selling any of their right-of-way, so this goal is unattainable at present.
What is the Current Use of the Rail Bed in Bear Creek Canyon? The County-owned land in Bear Creek Canyon along the former rail bed is currently open to the public for non-motorized use. Motor vehicles are prohibited from using the land with exceptions made for County maintenance, Idaho State Fish and Game research, emergency vehicles, and adjacent landowners with special permits to access their land. The current section of the Latah Trail in BCC is suitable for hikers and mountain bikers. It is not suitable for wheelchairs, most strollers, people with mobility issues, small children, road bikes, the elderly, in-line skates or skateboards. The section of the rail bed that is privately owned is closed to the public. This section is clearly marked, via signage at its north end approximately four miles southeast of the Troy Waste Water Treatment Plant.
What is the Latah County’s Latah Trail Bear Creek Canyon Section Improvement Project? It is proposed that the first three miles of gravel southeast of the City of Troy’s Waste Water Treatment Plant be graded, compacted and paved with asphalt. The County will seek competitive bids for this work. All legal requirements as directed by State and Federal authorities will be adhered to. Best practices, adhering to the Environmental Protection Agency’s (EPA) Storm Water Prevention Plan will be utilized to protect the environment, which may include coir logs and other practices to mitigate run-off from the work site. Hodge and Associates has been consulted to study and make recommendations pertaining to those trail sections that may need engineering. This includes the hillside slump encroaching on a section of trail past the three mile mark. This area may require a safety rail to protect small children from falling down slope. Existing culverts will be cleaned out and or modified as deemed necessary.
At approximately two miles, an existing picnic pavilion will be made ADA accessible. A vault toilet will be placed where it is most feasible to do so, potentially near the picnic pavilion. Refuse receptacles that are bear resistant will be situated, possibly near the picnic pavilion, to discourage littering. Occasionally a bench will be situated along the trail to invite users to sit and observe nature without harming the adjacent plant life.
Informative and educational signage will be erected to provide historical, cultural and environmental information. This may include but is not limited to information on the life cycle of threatened steelhead, possible bird and mammal sightings, which may include turkey, deer, elk, black bear, moose, otter, cougar, coyote and chipmunks. Signage will also be established to alert users to respect the environment, to not wander off the trail and to keep humans and dogs out of the creek. Dogs must be on leash and under the owner’s control at all times. Dog waste shall be packed out by the owner. It will be posted that the trail is for non-motorized human powered use. Signs will also remind users to be respectful of private property rights and to respect No Trespassing signs. No Fishing signs will be posted along the trail.
The work will not be completed in one work event but will be completed as funding is secured. The work timeline will take into consideration steelhead spawning times and will begin after such spawning times, which usually conclude by the end of June. Work will not occur during such time as fire restrictions would prohibit.
How will the Project be Funded?
A Federal Highway Administration RTP grant for $98,000-with a match of $37,500 from the Latah Trail Foundation- has been approved. This grant is administered through the Idaho State Parks and Recreation Department.
A second Federal Highway Administration RTP grant for $67,500-with a match of $22,500 from the Latah Trail Foundation-has been applied for.
The Latah Trail Foundation has been awarded an Inland Northwest Community Foundation Strategic Community Grant for $30,000-with a match of $5,000 from the Latah Trail Foundation.
The Latah Trail Foundation is a 501(c)(3) non-profit organization eligible to receive tax-deductible private donations from individuals, groups and foundations and to apply for private and public grants with the objective of improving this publicly-owned linear park for non-motorized transportation and recreation.
Summary of LTF’s understanding of the issues raised by complainants related to of this BCC Latah Trail Improvement Project and LTF’s opinion and response to these issues based upon its understanding of the County’s position:
1) Paving the trail with asphalt.
Position of complainants: Complainants assert that paving the trail with asphalt may have a negative impact on the environment as well as a negative aesthetic impact for current users. They argue that the equipment used to grade and apply the asphalt surface may damage plants, may increase the potential of silt runoff into the creek, may increase the potential of petro compounds from the vehicles themselves of leaking out and getting into the creek, all having the potential to harm the fishery by increasing the chemical load and turbidity of the water. The black asphalt will act as a heat sink in the summer contributing to higher temperatures in the canyon.
LTF’s position: Paving the trail will decrease the risk of silt run-off by capping the gravel and decreasing the area of exposed soil. The County will adhere to the EPA’s Storm Water Prevention Plan to reduce and eliminate the risk of chemical and silt run-off from the project site along the riparian zones. While it is clear that asphalt, exposed to direct sunlight, will heat up and heat the air temperature immediately over the asphalt, it is unclear if it would affect the overall canyon temperature. It is believed that the warmer air temperature over the asphalt would quickly cool once it moved over the cooler vegetation area alongside the trail.
2) Paving the trail with asphalt.
Position of complainants: Complainants argue that asphalt may harm the fishery because petrochemicals will leach out of the asphalt when it rains.
LTF’s position: A University of Florida study has shown that leaching of petrol chemicals in runoff from asphalt roadways and parking lots is a result of vehicular use, i.e., rubber from the tires and exhaust from the engines and liquids dripping out of parked vehicles that imbed in the asphalt and then run off when it rains, not from the asphalt itself. “Leaching Characteristics of Asphalt Road Waste”, University of Florida, June 1998, Timothy G. Townsend.
In addition, the County located evidence that asphalt is used to line the rearing ponds for steelhead and salmon in the Oregon and Washington State Fish Hatcheries and that the Metropolitan Water District of Southern California has used asphalt to line their drinking water reservoirs for over four decades. Therefore, the County does not believe that pavement of an asphalt surfaced trail will harm the fishery in the West Fork of Little Bear Creek.
3) Alternatives to asphalt paving.
Position of complainants: Complainants allege that an alternative paving material should be considered and that in early 2015 it was brought to the County’s attention that alternative paving materials, such as PolyPavement and GreenPave exist.
LTF’s position: The County researched and examined the proprietary PolyPavement and GreenPave. The County determined that they were inferior to asphalt in durability and life span. In some instances the materials were not sufficiently tested in our climate over a sufficiently long period to warrant their use in the Canyon. BCC is not suitable for such extensive use of experimental material. The testing of experimental materials should occur in more accessible areas until their viability in our climate is proven.
4) By extending the paved section of the Latah Trail into Bear Creek Canyon the canyon will experience increased use by people.
Position of complainants: Complainants argue that by extending the paved section of the Latah Trail into Bear Creek Canyon more people will use the trail in the canyon and the presence of more users may have a negative impact on the existing environment. In addition, complainants assert that more people using the canyon will detract from the feeling of remoteness that current users and adjacent landowners enjoy.
LTF’s position: By extending the paved section of the Latah Trail into Bear Creek Canyon more people will experience the canyon and its environment and these positive experiences will encourage trail users to value the canyon for their own enjoyment as well as the enjoyment of others. Trail users will be more motivated to preserve the intrinsic quality of nature. They will be more motivated to walk, bike and wheel in order to experience the canyon. In addition, exercise improves health, reduces healthcare costs, relieves stress, lessens one’s feeling of isolation and engages people socially. Canyon visitors will be more apt to speak up if they see misuse of the trail in order to preserve their own experiences and those of others. Trail users will become more knowledgeable about the natural environment including the existence and needs of the local steelhead population and how human activity can aid or detract from this fishery.
5) Effects of increased human activity in the canyon.
Position of complainants: Complainants allege that increased human activity in the canyon will harm the pristine aspect of the canyon.
LTF’s position: Human activity brought the railroad through the canyon in the 1890’s which led to an agricultural economic boom for the region as the railroad made it possible to get more product to market faster and economically more efficient than before. When the railroad abandoned the line and the rails and ties were removed in the 1980’s, it left behind not a pristine landscape but rather ten historic train bridges and a rail bed topped with rock and gravel. The canyon was then used by unauthorized individuals in a variety of ways, including, shooting, partying and motorized vehicular use, as well as hiking and cross-country skiing. By improving the County linear park that currently exists in the BCC, this mostly unauthorized historic ad hoc use will be lessened and enforcement authorized to prevent violations of misuse.
6) Effects to water quality in the creek.
Position of complainants: Complainants believe that construction and maintenance of a paved trail may harm the water quality and thereby harm steelhead, a threatened species.
LTF’s position: Every effort will be made to safe guard and minimize any negative impacts of construction and maintenance of a paved trail. All laws as dictated by Federal and State government agencies will be followed. The main reason that the West Fork of Little Bear Creek is the most productive steelhead system in the Potlatch River drainage is that there is more water in the creek for a longer period of time further into late summer than in its neighboring creeks. In addition, the water that is there in late summer is colder than the water in neighboring creeks.
Both of these conditions are excellent for steelhead. These positive conditions for steelhead are present in the West Fork of Little Bear Creek because the City of Troy’s Waste Water Treatment Plant discharges effluent into the creek. The volume of water in the aeration pools, at the treatment plant, keep the water cool and the temperature of the water at discharge is in the ideal range for steelhead habitation. In late summer, approximately six kilometers (about 3.73 miles) downstream from the treatment plant the creek is continuously wetted. The West Fork of Little Bear Creek is not a perennial stream with continuous flow downstream of this point, but rather a series of disconnected pools. Without the discharge of effluent into the creek system the wetted area would be much less, thus diminishing fish habitat. Reference: published research conducted in 2009 and 2010 by Dr. Erin Brooks, University of Idaho Fish Biologist. Ecohydrological analysis of Steelhead (Oncorhynchus mykiss) habitat in an effluent dependent stream in the Pacific Northwest, USA, (Wiley Online Library, published 2013, R. Sanchez-Murillo, E.S. Brooks, L. Sampson, J. Boll and F. Wilhem.
7) Effect of increased human activity in BCC.
Position of complainants: Complainants assert that increased human activity in BCC may increase the risk of fire in the canyon.
LTF’s position: Having a hard surfaced trail ten feet wide will allow the Troy Volunteer Fire Department to access the canyon with its smaller fire fighting vehicles enabling it to address a fire in the canyon more swiftly. This will also aid the County in its management for fire protection. Additionally, more eyes in the canyon will increase the potential of someone spotting a fire and alerting the fire department. Furthermore, a hard surface trail will make it easier for emergency vehicles to get to an injured person in the canyon in the event of someone needing help.
8) Effect on the federally listed threatened plant known as Spalding’s catchfly (Silene spaldingii).
Position of complainants: Complainants believe that paving the trail may have a negative effect on this plant.
LTF’s position: Palouse Conservation Environmental Institute (PCEI) has conducted studies looking for Spalding catchfly since 2002 in Bear Creek Canyon and has not found it existing there. Botanist and University of Idaho Stillinger Herbarium Director and Curator (Retired) Pamela G. Brunsfeld has stated “Silene spaldingii, like all rare plants, has very specific habitat needs that do not exist along the narrow rail bed itself. Based on our experience (and my own experience as a professional botanist the past 40 years) we believe that if the plant does exist in Bear Creek Canyon it would occur on the grassy slopes of the neighboring private lands.”
9) Signs, benches, picnic shelters, trash cans, toilets, and defined pavement width.
Position of complainants: Complainants argue that such amenities will detract from the aesthetic quality of the canyon.
LTF’s position: Such amenities will encourage trail users to respect the environment by providing appropriate methods to dispose of waste and encourage trail users to respect the rights of adjacent landowners by providing a clearly defined trail and appropriate signage.
10) Maintenance of an asphalt surface trail.
Position of complainants: Complainants argue that an asphalt surface will require routine use of county vehicles to clean toilets, empty trash bins, spray chemicals for weed abatement, and apply sealant to cracks to maintain a safe trail experience for all users.
LTF’s position: Routine use of county vehicles will be required whether the trail surface is gravel or asphalt to clean toilets and empty trash bins. Since the County is required by law to address invasive plant species and this is done most cost effectively through chemical application, asphalt paving will reduce the surface area of weed growth, thus requiring less chemical applications.
11) Economic benefits to local communities.
LT’s position: Paving farther into BCC will allow more people to enjoy this beautiful canyon. BCC will become a destination for recreation that will pull Latah Trail users through Troy to access the canyon section of the trail. Currently, Tim Bickford, owner of the Filling Station, says that in the warmer months his business increases by 25%. He attributes this to an influx of trail users. More people bicycling through Troy will provide more potential customers to Troy businesses, especially cafes and convenience stores. In addition, the hard surfaced trail in BCC will help entice RV users to stay overnight in the proposed Troy RV Park and access the beautiful BCC section of the Latah Trail. When trails connect communities with each other and with points of interest more people use them.