Alliance sues over bull trout in St. Mary Diversion

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

Wednesday, Alliance for the Wild Rockies filed a lawsuit over the protection of bull trout requesting fish screens to be put up.

“Bull trout have been listed as ‘Threatened’ under the Endangered Species Act for 20 years, but they are being killed by the hundreds every year due to poor dam design and operation, unscreened diversions into irrigation ditches and river dewatering,” Alliance for the Wild Rockies Executive Director Mike Garrity said in a press release. “To stop the needless slaughter of bull trout, last September the Alliance sent the Bureau of Reclamation a 60-day Notice of Intent to Sue, basically telling the federal government, ‘If you follow the law and take action on this issue in the next 60 days, we won’t have to go to court.’  Unfortunately, the agency has not taken the legally required actions to protect bull trout and so we’re forced to file suit to stop the unnecessary bull trout carnage.

“We had hoped this wouldn’t happen since the Bureau sent us a copy of its letter to the U.S. Fish and Wildlife Service ‘requesting initiation of the Endangered Species Act section 7 consultation for bull trout within the Milk River Project, St. Mary Unit, Montana, and noting ‘Reclamation will be preparing a Biological Assessment for your review as part of this consultation,’” he added in the release. “But it’s now been four months since our 60-day Notice of Intent to Sue expired, giving the Trump administration more than enough time to comply with the law, which it has not done. Since the irrigation season begins in April and runs through September — and the Bureau of Reclamation has ignored repeated requests from the Fish and Wildlife Service to consult with them on how to stop killing bull trout – we’re forced to go to court immediately or face another irrigation season killing hundreds more bull trout.”

Montana State University Phillips County Extension Agent Marko Manoukian, who co-chairs the St. Mary Rehabilitation Working Group with Lt. Gov. Mike Cooney, said the lawsuit comes at the worst possible time.

“Agriculture producers are already under a lot of stress due to low commodity prices and high input costs,” he said this morning. “This legal challenge by Alliance for Wild Rockies will jeopardize two tribal water compacts, eliminate drinking water for 18,000 people and idle 140,000 of irrigated land that produces food for over 1 million people annually.”

Bureau of Reclamation Great Plains Region Administrative Officer Jack Conner said the bureau can’t a comment on pending lawsuits.

U.S. Fish and Wildlife Service did not respond to a request for comment by printing deadline this morning.

FWS Public Affairs Specialist Jennifer Strickland said in December 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 in December.

Conner said in November BOR had sent a letter to FWS asking for consultation on the bull trout.

“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,” Conner said in December.

A dispute more than a century in the making

The St. Mary Diversion and Conveyance Facilities was one of the first projects BOR was authorized to construct and manage 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.

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.

Patchwork repairs have been done to the system over the years, paid for primarily by the users, but the system is in danger of a catastrophic failure.

Irrigators spearheaded creating a group — the St. Mary Rehabilitation Working Group — to find ways to fund fully rehabilitating the system.

Who will pay for fish screens?

Putting up screens and adding diversion canals to protect the bull trout is part of that plan, but members of the rehabilitation group 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.

The Alliance and the Bureau of Reclamation are at odds on who would have to pay for the screens.

Garrity said back in September when the Alliance for the Wild Rockies first threatened to sue that U.S. The Bureau of Reclamation administers the diversion and would have to pay for the fish screens, not the irrigators.

“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.

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.

Conner said in November that 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.

Garrity said he was told by an engineer that a self-cleaning fish screen for this project would probably cost less than $100,000. 

“Congress is about to pass a $2 trillion stimulus bill. I would think the Bureau of Reclamation could find $100,000 for a fish screen somewhere in this extra $2 trillion dollars,” he said. “If not, (U.S. Sen. Steve Daines, R-Mont.,) is not doing his job.  His party controls the Senate and the White House.”

Daines and Sen. Jon Tester, D-Mont., and 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, which is awaiting action in Congress.

Contention continues

The Alliance had said it had withdrawn the intent to sue when it was notified BOR had sent the letter requesting consultation with FWS on the issue. But, at the January monthly meeting of the working group Jeff Baumberger of the U.S. Bureau of Reclamation said that the alliance sent another notice of intent to sue for bull trout passage in the diversion.

The Alliance for the Wild Rockies filed the suit now because it gives the Bureau of Reclamation has 60 days to respond to the complaint, Garrity said, meeting its April deadline it set by the start of the year.