Lawsuit still threatening St. Mary Diversion
January 23, 2020
The Alliance for the Wild Rockies is still ready to shut off a primary source of water in the Milk River.
Jeff Baumberger of the U.S. Bureau of Reclamation, which oversees operations of the St. Mary Diversion and Conveyance Works, said Wednesday during a meeting of the St. Mary Rehabilitation Working Group that the alliance sent another notice of intent to sue for bull trout passage in the diversion.
The diversion and conveyance, completed more than a century ago to provide water for irrigation in the Milk River Valley, is in an area with bull trout, a threatened species.
It starts on the edge of Glacier National Park where Sherburne Dam stores water, which is released to flow into the St. Mary River, then is diverted into a 29-mile system that includes canals, siphons and drop structures to transfer it to the Milk River.
Nearly 20 years ago, irrigators, representatives of communities that use the Milk River for municipal waters and people who use the river and reservoirs on it for conservation started an effort to rehabilitate the system, which had been Band-Aided together for years.
The irrigators in the Milk River are the primary source of funding for the project, along with the towns that use the water, and are responsible for about 75 percent of its operation, maintenance and repair costs.
A proposal now in Congress sponsored by Montana Sens. Jon Tester and Steve Daines would reverse that ratio, with the federal government picking up about 75 percent of the expense.
U.S. Fish and Wildlife Service and BOR have joint responsibility for wildlife, like the bull trout, in areas where both operate, and the initial planning for rehabilitation of the divergence, into which bull trout also are diverted, includes using fish screens and canals to keep the bull trout in the St. Mary River.
So far, the screens have not been installed.
The Alliance filed a notice of intent to sue last fall, saying unless BOR works with FWS and installs the fish screens to prevent the fish from going into the diversion, it would sue.
The Alliance later said it had withdrawn the intent to sue when it was notified BOR would work with FWS on the issue.
But St. Mary Rehabilitation Working Group Co-Chair and Montana State University Phillips County Extension Agent Marko Manoukian said during Wednesday's meeting that Friday, Jan. 10, he and congressional staff members were on a conference call with the Bureau of Reclamation and U.S. Fish and Wildlife Service, which included an update that the Alliance for the Wild Rockies told both organizations that "if they can't come up with a take permit and a fish screen by April 1, they may ask to shut the water off."
"I think the BOR, I don't know about the FWS, but the BOR is taking that threat serious," he said. "Obviously, we aren't going to have fish screens by April 1, so we're going to have to work through some things."
He added that now the BOR is going to have to do something with the diversion structure because that is where the bull trout go down into the conveyance structure.
"Since I have been here for 17 years, it's always been known (bull trout going into to diversion) was an issue, and the BOR has tried to do different things to mitigate it as we moved along, but everybody thought there wouldn't be a legal challenge," Manoukian said. "The BOR is not being sued, they are being told they could be sued, and so they got to meet certain things by April."
He said it's a crap shoot and they will all see what happens in April and what files.
It has implications for both the Blackfeet and Fort Belknap water compacts, he added.
"It's going to affect both compacts if the water is shut off, just the way it is," he said. "The last two years, '17-'18, the only water in June was St. Mary's water flowing through the system. There was no Milk River, so it was pretty big."
Baumberger said that Sept. 26, The Alliance for the Wild Rockies sent the BOR and FWS a letter saying, "If you don't consult in 60-days and do some corrective actions up on the St. Mary's we are going to sue you."
He said that on Nov. 22 the FWS and BOR sent a letter back to the Alliance that BOR have initiated consultation with the FWS.
But by Dec. 4 the BOR and FWS received another letter from the Alliance, Baumberger said, saying that if both groups don't have their consultations done and corrective actions completed by April the Alliance still plans to sue.
"That is in front of us. That's right in our face," he said. "There is no way we can get that fixed by April. It just can't happen. We are talking two- to three-year construction period alone, if we do the corrective action that we planned for up until this period in time."
He added that the groups have done designs for work on St. Mary's over the past 20 years with building fish ladders and screens and so on.
"Those are big fixes," he said. "In 2014, the estimated cost was $40 million and it's probably going to be more than that five to six years later, so it's definitely going to be more. So those are big costs and it's a big project, so how are we moving forward?"
He said a biological assessment is in the works by BOR that will then be submitted to FWS and sometime this year the FWS will provide a biological opinion.
That biological opinion will say whether the bull trout species is being affected in a jeopardy or non-jeopardy sense, Baumberger added.
Milk River Watershed Alliance Phillips Conservation District representative Jeff Pattison said everyone has to work together to fix the problems.
"We're all in this thing together right?" he asked. "Our group is basically five conservation districts along the Hi-Line, so we've got five counties, Glacier, Hill, Blaine, Phillips and Valley and we've been working with the Natural Resources Conservation Service on different projects as far as irrigation goes and to preserve, protect and enhance the livability and livelihood of the whole watershed on the Milk River.".
He said the working group is now faced with concerns about the diversion dam failing and what that would look like not only the Hi-Line, but Montana as well.
"The thought process was OK, the infrastructures and the dams and structures, turnouts, ditches and stuff are all very valid and important and part of the deal. But the core value thought is, without the diversion going and the water coming down there, it's all forgotten," he said. "The state of Montana and the federal government have invested billions of dollars into all of these irrigation funds that comes down there. Can you imagine what would happen if your land, valued in the thousand dollars as irrigated ground, to then (be) worth half that because six out of 10 years you aren't going to have water there?"
He added that it affects a lot more than just towns and irrigators. It also affects farmers, municipalities, sports and recreation and more.
"Maybe we can combine some money and resources and make more of a concerted push to get something going here," Pattison said.
He said the Milk River Watershed Alliance is looking for a St. Mary Project/Watershed Coordinator not only on a local level, but a federal level.
He provided document that listed the position's purpose along with duties, responsibilities and tasks.
"(The) coordinator is an advocate for improving natural resource conditions of the Milk River Basin through outreach, planning and project initiatives that meet the goals under the general direction of the Milk River Watershed Executive Board," the document said. " The coordinator works closely with the chairman and the executive board and committees to conduct tours, and to provide educational material and workshops relevant to the watershed."
"We need to work together," Pattison said.
He used an example from a Dr. Suess book, "Horton Hears a Who," where every voice counts and he said, "In reality that's where we are at. I think it needs every voice to make this project work, so the tribal action, the cities and everybody else, they need to come together because it's not an easy project to get done. But it's something I feel strongly and passionately that this is something that can get done, but we need to all work together and everybody's voice to work this thing out."
He said the Milk River Watershed Alliance has worked with Montana Association of Conservation Districts in getting the resolution in Congress to reverse the funding which would make the federal government responsible for paying 73.96 percent of the total cost for the replacement of the diversion dam and the water users paying for the remaining 26.04 percent.
"Basically, the stars are aligning, things are coming together, and I think there's some energy as long as we are willing to give a little and go together and become one voice, that's the whole thing," Pattison said. "The bottom line is, we need each other and everybody has to contribute something.
"We all have everything at stake on this whole Hi-Line, so we gotta get that funding switch and then get started with the diversion, get the water coming back down again," he added.
Fort Belknap Indian Community President Andy Werk said Fort Belknap Indian Reservation would like to help with funding.
"We want to help," he said. "We are interested."
The next St. Mary Rehabilitation Working Group meeting is set for Monday, Feb. 24, at 10 a.m. at Bear Paw Development Corp.