Public sounds off on proposed Trestle Creek development

By Soncirey Mitchell
Reader Staff

Officials, developers and members of the public gathered Sept. 6 for a public hearing regarding the Idaho Club’s permit request for a community dock at Trestle Creek. The Idaho Office of Administrative Hearings — represented by Deputy Chief Administrative Hearing Officer Leslie Hayes — oversaw the proceedings on behalf of the Idaho Department of Lands. The development’s risk to wildlife, specifically the bull trout population, and the loss of waterfront currently enjoyed by the public, were the primary concerns of both governmental and public testimony.

As of Sept. 1, officials had received 1,070 written public comments — 233 of which were from repeat commenters — and it was estimated that at the time of the meeting the number was closer to 1,300. The deadline for public comment is Friday, Sept. 15. As of the start of the meeting, 107 members of the public indicated the desire to testify.

Deputy Attorney General JJ Winters, serving as legal counsel for IDL, called the first witnesses against the proposal, after which Jeremy Grimm, of Whisky Rock Planning + Consulting, testified on behalf of Valiant Idaho LLC, Rock Chalk Lenders LLC and Valiant Idaho II. 

Both sides were given 30 minutes to present their case before the issue was opened to public comment.

Trestle Creek. Courtesy photo.

The Trestle Creek development explained

This isn’t the first time the Idaho Club has fronted a development around Trestle Creek. The current iteration of the proposal includes five residential lots and a community dock with 105 boat slips. Grimm’s presentation included a map of the initial 2008 plan, which included 13 townhouses and 83 condominium units and was significantly more “intensive” compared to the current proposal.

“[C]ontinued private property ownership is considered — and the adverse impacts on that — is considered one of the most important factors in determining whether to issue an encroachment permit,” Grimm said, citing Idaho Code 58-1306. 

As private property, the land adjacent to Trestle Creek can be legally developed by the Idaho Club without a permit from the Department of Lands, providing that they do not build the proposed dock.

“So the owner has a vested right; this is private property, this is America,” Grimm added. 

He did not comment on whether the land will be developed if the dock permit is ultimately denied.

“There is public comment concern that it will develop the mouth of Trestle Creek, but nothing could be further from the truth. The development is in excess of 150 feet from Trestle Creek,” Grimm said, pointing to the small peninsula north of Trestle Creek that would separate the docks from the mouth of the waterway.

In response, Idaho Conservation League North Idaho Director Brad Smith testified that Bonner County requires a 75-foot setback; however, the Idaho Club requested and was granted a variance from that condition.

“So, if the developer sought and obtained a variance from the normal county 75-foot setback, then why are they stating that there’s a 150-foot setback?” said Smith, adding that U.S. Forest Service logging operations utilize a 300-foot setback, and the effects of harvesting timber are not nearly as permanent as the Idaho Club’s proposal.

Concerns regarding the biological opinion

Approval of the community dock permit is contingent on a biological opinion issued by the U.S. Fish and Wildlife Service, which is meant to certify that the project complies with the Endangered Species Act and will not harm the bull trout population, which is listed as a threatened species in all of its known habitats, including Idaho, Montana, Nevada, Oregon and Washington.

“[A]ccording to testimony from Idaho Fish and Game, [Trestle Creek] is one of the most prominent bull trout streams in all of the Northern Rockies,” said Mike Ahmer, IDL lands resource supervisor for the Mica Supervisory Area, based in Coeur d’Alene.

The 2022 biological opinion was the basis for the majority of Grimm’s testimony; however, that document was rescinded last October following litigation against the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers by the Idaho Conservation League and the Center for Biological Diversity.

The lawsuit alleged that the biological opinion did not fulfill the requirements of the Endangered Species Act in several areas: it did not provide a lawful cumulative effects analysis that took into account the effects of the entire project or its implementation, and, according to the complaint, it “improperly relied on mitigation measures that are not reasonably certain to occur or even described.” 

Plaintiffs voluntarily dismissed the lawsuit without a ruling after the opinion was rescinded.

“It is my understanding that that biological opinion is outdated and not appropriate to be used or to be referenced,” said Ahmer. 

He went on to argue that the opinion was based on an older version of the proposal that included a full-time marina manager to minimize the impact of pollution, a boat cleanout station and a boat launch where all incoming watercrafts could be inspected to prevent the spread of invasive species — three elements that are no longer part of the proposal. 

“It was mentioned in the applicant’s statement that the Department of Lands recommended they remove the boat cleanout station and I have no memory or recollection of that at all,” said Ahmer.

Representatives from the Panhandle Health District echoed this concern, stating that the current proposal to manage wastewater and sewage did not match the proposal in the district’s records.

Chantilly Higbee, surface water compliance officer for the Idaho Department of Environmental Quality, also testified against the development citing water quality concerns, and underscored that both the biological opinion and the Corps of Engineers permit regulating fill material released into waters were both rescinded.

Grimm said that the 2022 biological opinion was “based on the best scientific and commercial data available,” using language from the document itself. He argued that, according to the biological opinion, the proposed community dock would not impact the bull trout population, and ultimately had the potential to help the fish.

That claim stemmed mostly from the developers’ plan to remove the North Branch Outlet, a culvert that diverts water into the old marina north of Trestle Creek. Grimm, again citing the biological opinion, alleged that during spring floods juvenile bull trout are carried through the culvert into the warm, shallow water of the marina — what he dubbed the “kill zone” — where they fall victim to predators like bass. 

Developers propose additional restoration projects to the riparian areas on both branches of Trestle Creek on the Idaho Club’s property.

Smith said that the “North Branch restoration is being oversold.”

“If you’ve ever seen the North Branch, it’s like two-feet wide. I don’t think bull trout are using it; if they are, where’s the evidence?” he added.

Future Rulings

Ahmer advised that developers will need to work with the Corps, U.S. Fish and Wildlife and the DEQ to reobtain approvals and produce a new biological opinion.

“The Department of Lands is tasked with regulating encroachments, per the Lake Protection Act and Idaho Code 58-1306,” he said. “Our concern is that we grant or deny this permit within our statutory authority.” 

The department can’t consider the upland issues — such as increased traffic on Highway 200 or impacts on neighboring trailer parks — under the aforementioned codes; however, it was suggested that the Public Trust Doctrine might extend their jurisdiction in this matter. According to Idaho statutes, the doctrine gives the Idaho State Board of Land Commissioners the ability to “approve, modify or reject all activities involving the alienation or encumbrance of the beds of navigable waters” in an effort to protect public resources. Legal counsel will explore this avenue further in their written remarks.

Both parties must submit their written closing statements by Friday, Sept. 22, after which the Idaho Office of Administrative Hearings will issue a recommended decision to the Idaho Department of Lands director within two to three weeks. The final ruling will be made on or before Monday, Oct. 23.