Planned bull trout lawsuit concerns St. Mary Diversion

An attempt to rehabilitate the 100-year-old system that supplies much of the water to the Milk River may be facing a legal setback.

Alliance for the Wild Rockies plans to file a lawsuit over the threatened species bull trout in the management of the St Mary Diversion.

Alliance for the Wild Rockies Executive Director Mike Garrity said bull trout are being killed by the hundreds every year due to poor dam design, unscreened diversions into irrigation ditches and river dewatering.

"Seeking to remedy this extremely poor management, on Sept. 26 we sent a 60-day Notice of Intent to Sue to the Trump administration's U.S. Department of Interior," he said. "We want them to put up screens where the irrigation ditch leaves the stream to keep bull trout and other fish from going into the irrigation ditch because when they go in there they get stranded and die."

Putting up screens and adding diversion canals to protect the bull trout is part of a plan to rehabilitate the diversion system, but members of a group working on that project are concerned rushing things due to a lawsuit could cause problems and greatly increase the expense to people in the Milk River Valley who use the water.

St. Mary Rehabilitation Working Group Co-Chair and Montana State University Phillips County Extension Agent Marko Manoukian said this could cause the irrigators to pay a high cost to put these screens in place. He suggested that if the Alliance for the Wild Rockies want to speed up getting the fish screens in place, they pay for it.

Garrity said U.S. Bureau of Reclamation administers the diversion and would have to pay for the fish screens, not the irrigators.

But Bureau of Reclamation Great Plains Region Administrative Officer Jack Conner disagreed.

Conner said the cost of rehabilitating the dam and other work including adding the fish screens and a bypass to put the fish back into the St. Mary River was estimated at about $42 million.

Under the operation of the diversion, the users — primarily irrigators but also municipalities like Havre, Chinook and Harlem are responsible for 73.96 percent of the cost of operating and maintaining the St. Mary Diversion facilities.

He said that a bill being considered in Congress could reverse that, making 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.

But Manoukian said he is concerned that the law suit will do more than cost extra to the users.

"As I understand it, the risk is that they could stop the flow of water into the St. Mary Canal and that would result in the Milk River being dry 6 out 10 years and would shut water off to 140,000 irrigated acres below Fresno Dam," Manoukian said.  

Providing water to the Milk River Valley

At the start of the last century, the U.S. Bureau of Reclamations was created primarily to address water scarcity in the West. One of the first projects authorized for the BOR was the Milk River Project to provide irrigation water to Milk River Valley farmers and ranchers.

Using construction equipment often drawn by horses, a 29-mile system of dams, dykes, canals and 8-foot tall metal siphons that suck water over the Hudson Bay-Missouri River divide was completed, transferring water into the north fork of the Milk River which runs into Canada and then back down into Montana. The diversion is part of the Milk River Project, a BOR irrigation project that includes Fresno Reservoir, Nelson Reservoir by Malta and other dams, dykes and reservoirs.

The diversion starts on Lake Sherburne in Glacier National Park, where Sherburne Dam was built to store water primarily for irrigation in the Milk River Valley.

Water from Lake Sherburne flows through Swift Current Creek into the St. Mary River below Lower St. Mary Lake. The diversion dam then transfers the water from Lake Sherburne into the 29-mile system that conveys the water across the Blackfeet Indian Reservation into the North Fork of the Milk River.

The North Fork of the Milk River flows into Canada until it returns into Montana north of Rudyard and Hingham.

As an irrigation project, the funding for its operation and maintenance comes primarily from its users - mostly the irrigators in the Milk River Valley. The fees paid for the water used pays for the system.

Every year, much of the water from the Milk River is water from the diversion. Before the diversion was completed, in about 6 of every 10 years, the river dried up by the fall.

During drought years, as much as 90 percent of the water that flows through the Milk River comes from the diversion.

Conner said the system is fully functioning for the moment.

"There are no indicators that it is failing," he said. "The dam itself right now is going through normal operations of maintenance that includes monitoring that area, they divert the water to allow access to the structure and then go back in to make any repairs to the gates, so right now it's in a maintenance phase at this point in time."

But if the system does fail, it will severely limit water in the Milk River Valley, for irrigators - the diversion supplies water to some 140,000 acres of irrigated land in Hill, Blaine, Phillips and Valley counties - recreationists and the communities that use it for their municipal water supply.

"From an economic standpoint, there's a reason we call the Milk River the 'Lifeline of the Hi-Line.' It provides communities across the Hi-Line drinking water and there's thousands of people in Havre, Chinook, Harlem, Fort Belknap that receive their drinking water from the Milk River," said Bear Paw Development Corp. Executive Director Paul Tuss, a member of the St. Mary Rehabilitation Working Group.

But the aging infrastructure needs major rehabilitation.

"The diversion unit there at St. Mary's is made up of two different structures, (the) headworks which regulates the water to the Milk River canal and the other is the actual diversion dam itself," Conner said. "Both of those structures are over 100 years old, so you can imagine the life-expectancy for those structures is at it's limit. Obviously, those structures need to be rebuilt and that's the main issue there is that the age of the life cycle has been met."

Over time, irrigators realized they can't afford to fix the system by themselves, so they have been trying to find ways to get it repaired.

The state created a task force to work on the project in  November 2003, to bring attention to the age of the St. Mary Diversion and need for rehabilitation. 

The intent of the working group was to bring together residents  from the state government, Milk River water users, and federal and tribal governments to seek congressional authorization and federal funding.

The group consists of 16 members who are representatives of county government, economic development, municipalities, Blackfeet Tribe, irrigation and more, with the state's lieutenant governor acting as a co-chair.

The members of Montana's congressional delegation are involved in the effort, introducing the bill to shift the costs of rehabilitation that Conner mentioned.

Sens. Jon Tester, D-Mont., and Steve Daines, R-Mont., and Rep. Greg Gianforte, R-Mont., introduced in May the St. Mary's Reinvestment Act to shift the funding for operations and maintenance of the system so the federal government would pay about 75 percent of the cost for the upgrades.

Tester spokesperson Roy Lowenstein said a hearing was held on the Senate bill earlier this year.

"Sen. Tester is now working with Bureau of Reclamation to hammer out technical fixes that could be incorporated into a markup of the legislation," Lowenstein said. "The senator is also working to see if it can get it included in the upcoming Water Resources Development Act, which should be a large package of water infrastructure proposals."

Daines spokesperson Julia Doyle said he also is still working on the issue.

"Steve remains engaged with stakeholders on a path forward," she said.

A statement from Gianforte spokesperson Travis Hall said the congressman also is continuing the effort.

"Greg will continue working to move the St. Mary's Reinvestment Act forward so that critical improvements can be made without putting the burden on folks in north-central Montana," Hall said. "As his bill moves through the legislative process, Greg will also work to find other means to ensure needed investments can be made."

Bull trout in the diversion

Manoukian said that the U.S. Fish and Wildlife Service told him and the working group that bull trout in St. Mary's are doing very well and have the best population compared to the rest of the range of bull trout in the Rocky Mountain Front, even with the operations of the St Mary's Diversion structure.

U.S. Fish and Wildlife Service provided information about the bull trout from the St. Mary Recovery Unit Implementation Plan for Bull Trout. Studies cited by FWS say bull trout populations in the Saint Mary River core area is considered stable.  

A 2015 Fish and Wildlife Service report says counts of the fish in long-term bull trout spawning sites - redd counts- are used to assess the status of bull trout populations. The redd counts in Boulder Creek show relatively high levels of bull trout, although the counts in Kennedy Creek "are less robust," the report says.

Alliance wants faster action

Plans to help preserve and increase the bull trout population near the diversion are in the works, part of the planned rehabilitation.

U.S. Fish and Wildlife Service Public Affairs Specialist Jennifer M. Koches said that though no fish screens are in place on the existing Saint Mary Diversion, they are part of the plan for the future.  

"The current 30 percent design that was modeled by Bureau of Reclamation at their facility in Denver includes a screen and bypass that would return entrained fish to the Saint Mary River downstream of the dam," she said. 

But the Alliance for the Wild Rockies is not willing to wait.

The Alliance for the Wild Rockies 60-day notice says, "The U.S. Fish and Wildlife Service and U.S. Bureau of Reclamation are agencies within the Department of the Interior and they both have a statutory duty to take active steps to protect endangered species."

"The whole purpose of the 60-day notice is so they have to respond within 60-days, so bull trout has been listed under the Endangered Species Act since the early '90s, so they've had almost 30 years to do this, so they need to hurry up and get it done," Garrity said. "They have 60 days to do it and if they don't we are going to file a suit. It is very simple and inexpensive solution to put up these self-cleaning screens."

Garrity added that putting up these screens is an easy solution and the screens are commonly found on irrigation ditches throughout the west

"We aren't asking for a lot and we sent them a 60-day notice and we hope that in 60 days they agree to do that and then we won't have to sue them," he said.

The Fish and Wildlife Service agency said it does not comment on matters pertaining to pending or ongoing litigation.

Members of the working group said protecting the bull trout is part of the rehabilitation plan and any delays due to lawsuits are counterproductive.

"The protection of bull trout by the U.S. Fish and Wildlife and all others involved is part of the process that we are looking at on the repair and replacement of the St. Mary Canal and its outlet structures," Havre Public Works Director and Working Group member Dave Peterson said. "The new design of the outlet works will provide protection for the bull trout."

Tuss said rehabilitation of the diversion is crucial for this area, and also said protecting the bull trout is part of the planning process.

"It is entirely unacceptable to simply stop the flow of water from the St. Mary basin into the Milk River basin. It would literally be the end of the Hi-Line as we know it. But having said that, throughout the process of working on solutions to rehabilitate the St. Mary infrastructure, we have always been cognizant of the environmental ramifications of the bull trout as an endangered species. We are concerned about that and certainly the federal government is too," Tuss said. "As we design the new infrastructure to lead us to reconstruct the infrastructure that was constructed 100 years ago, the design has always been incredibly sensitive to make sure we don't do damage to the bull trout population."

Working Group Co-Chair Lt. Gov. Mike Cooney said any delay in rehabilitation by the lawsuit would be counterproductive for in the bull trout.

"Now is the time to pass federal legislation to address the cost-share formula and appropriate funding so that construction of the diversion works can move forward," Lt. Gov. Mike Cooney said. "Completing the diversion works would address the issue of fish passage, the key issue in the AWR lawsuit."