Threat of St. Mary bull trout lawsuit resolved with planned consultations

A notice of intent to sue over a threatened species in the Rocky Mountains that concerned people trying to rehabilitate the Lifeline of the Hi-Line has been resolved, with two federal agencies saying they will consult with each other about how to handle bull trout in the St. Mary Diversion.

Alliance for the Wild Rockies in September filed a Notice of Intent to sue the Trump Administration's Department of Interior for the purpose of protecting bull trout in the management of the St. Mary Diversion.

Alliance for the Wild Rockies Executive Director Mike Garrity said the U.S. Bureau of Reclamation, which manages the diversion, part of the Milk River Project irrigation system, agreed to formally consult with and seek a biological opinion from the U.S. Fish and Wildlife Service addressing bull trout fatalities in St. Mary Diversion Dam and canal.

"Since they are doing what we asked them to do, we will not sue," he said. "The consultation was long overdue. It is unfortunate that it took the threat of a federal lawsuit to get the federal agencies to follow the law, but we commend them for finally agreeing to follow the law and thus alleviating the need for time-consuming litigation."

A representative of Fish and Wildlife Service said the agency cannot comment on lawsuits, but they will continue to work with BOR on the bull trout and other issues.

"We don't have any comment on (the intent to sue)," U.S. Fish and Wildlife Service Public Affairs Specialist Jennifer Strickland said.

Strickland said the U.S. Fish and Wildlife Service had been in contact with the BOR before the Notice of Intent, having general coordination meetings about the bull trout and other species.

"We have overlapping management authorities for not only bull trout, but also for pallid sturgeon," she said.

Strickland said Fish and Wildlife meets with BOR on wildlife issues, last holding a meeting Nov. 6 that was not related to bull trout.

Bureau of Reclamation Great Plains Region Administrative Officer Jack Conner said BOR requested additional consultation after the notice was filed.

"The most recent information that we have is that we had a joint letter that was put out on Sept. 26, responding to the Notice of Intent to Sue that was followed up with a letter on Nov. 18, where Reclamation was requesting consultation on bull trout recovery through the U.S. Fish and Wildlife Service," Conner said. "By initiating that, it'll set the tone for future communications for us to roll forward with getting a biological assessment together and then eventually giving that to the U.S. Fish and Wildlife Service for the biological check-in."

The St. Mary Diversion and Conveyance Facilities was one of the first projects BOR was authorized to construct and managed when it was created at the start of the last century. It is part of the Milk River Project, an irrigation project used to provide water to agricultural producers in the Milk River. It has turned into more, providing water to municipalities like Havre, Chinook and Harlem and recreational opportunities in the Milk River and in reservoirs created as part of the project like Fresno Reservoir west of Havre and Nelson Reservoir near Malta.

The diversion stores water behind Sherburne Dam on Swiftcurrent Creek, built between 1914 and 1919 on the edge of Glacier National Park. A dike constructed in 1915 diverts water from Swiftcurrent and Boulder creeks into Lower St. Mary Lake.

A diversion dam built in 1910 sends water into a 29-mile system of canals, metal siphons and drop structures that transfer the water across the Blackfeet Indian Reservation over the Hudson Bay-Missouri River drainage divide and into the North Fork of the Milk River, which then flows into Canada and joins the south fork of the river before returning to Montana north of Hingham.

The system is called the Lifeline of the Hi-Line because it provides much of the water flowing through the Milk River, which would dry up in the fall about six of 10 years before the diversion was created.

In a typical year, the diversion provides 40 percent to 60 percent of the water that flows through the Milk; in drought years it provides as much as 90 percent of the water in the river.

The system is primarily paid for by its users, mostly the irrigators who use water from the river on their crops and the towns that use the river for their water source.

The aging system has been Band-Aided together for years, leading to Milk River irrigators to spearhead a drive to rehabilitate the diversion.

The St. Mary Rehabilitation Working Group was created in 2003 to provide input to the Montana governor's office on an appropriate strategy for rehabilitating the diversion system. Its first meeting Nov. 18, 2003, was intended set in motion a process through which representatives from the state of Montana, federal government, Tribal governments and Milk River basin water users could work together to seek congressional authorization and funding to rehabilitate and modernize the system.

Representatives of that group said they were concerned that the Alliance for the Wild Rockies notice of intent to sue could derail the project, and could significantly increase the cost to the users of rehabilitating the system.

But Garrity said Alliance for the Wild Rockies initiated the action to protect the threatened species. He said bull trout are being killed by the hundreds every year due to poor dam design, unscreened diversions into irrigation ditches and river dewatering.

"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," he said.

He added that The Alliance for the Wild Rockies asked the Bureau of Reclamation to consult with the U.S. Fish and Wildlife Service on how not to take or kill bull trout.

Fish and Wildlife Service has conducted counts that show the bull trout population in the St. Mary River is stable, and a representative of the working group said Fish and Wildlife told him bull trout in St. Mary River 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.

Putting up screens and adding diversion canals to protect the bull trout is part of the plan to rehabilitate the diversion system, but members of the rehabilitation group said rushing things could cause problems and greatly increase the expense to people in the Milk River Valley who use the water.

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 are responsible for 73.96 percent of the cost of operating and maintaining the St. Mary Diversion facilities.

U.S. Sens. Jon Tester, D-Mont., Steve Daines, R-Mont., and Rep. Greg Gianforte, R-Mont., are sponsoring a bill in Congress reversing this percentage where the federal government would be responsible for the 73.96 percent the total cost for the replacement of the diversion dam and the water users paying for the remaining 26.04 percent. 

The users of the system were concerned that if a lawsuit rushed the construction, it could add about $10 million to their expenses in the rehabilitation of the diversion.

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Havre Daily News managing editor Tim Leeds contributed to this report.