St. Mary Working Group discusses lawsuit, COVID-19

The St. Mary Rehabilitation Working Group met Wednesday virtually due to the coronavirus outbreak and discussed the lawsuit from the Alliance of the Wild Rockies regarding bull trout and updates on federal legislation on the St. Mary Diversion and Milk River Project.

Bureau of Reclamation Montana Area Manager Steve Davies said a lawsuit was filed by the Alliance of the Wild Rockies at District Court in Great Falls.

The lawsuit says the diversion ends up killing species bull trout and asks the courts to order BOR, which administers the diversion, to take steps to protect the threatened species.

“We’re focused on several fronts,” he said. “Number one, … we planned on our all water delivery contracts with our available water supply.”

The St. Mary Diversion was one of the first projects BOR was authorized to build when it was created at the start of the last century, part of the Milk River Project to provide irrigation water to the Milk River.

Before the diversion, which puts water from the St. Mary River into the Milk was completed, the Milk River dried up about 6 out of 10 years.

Users of the system started a push early last decade to find financing to rehabilitate the diversion, which had been band-aided together for decades. Users pay for three-quarters of its operation and maintenance.

Davies said he can’t comment on the lawsuit itself, but BOR is working with the U.S. Department of Justice and is focusing on issues in the lawsuit.

There are specific items in the lawsuit, he added, that the plaintiffs ask the courts to do: 

• Declare that the BOR is violating the Endangered Species Act

• Order BOR to obtain an incidental take permit, which allows an activity that is legal in all other respects, but that results in the “incidental” taking of a listed species.

• Order BOR to immediately implement interim protective measures, putting fish screens in to protect bull trout

• Award plaintiff costs

“What I can share process-wise is that the incidental take statement or permit, as referenced to in this lawsuit, is key to understanding where we are headed,” Davies said, “That requires Reclamation to prepare biological assessment, that’s the impact of operation on bull trout.”

He said, right now, the biological assessment is being finalized, then the U.S. Fish, Wildlife and Parks Service will take the assessment and issue a biological opinion.

“Our goal is to obtain this biological opinion with an incidental take statement as part of that,” he said. “The service can take 135 days for that. They’re actively working several lawsuits. … We may not have a biological opinion and an incidental take assessment until August.”

St. Mary Rehabilitation Working Group Co-Chair Marko Manoukian said he and Milk River Joint Board of Control Representative Jenn Patrick spoke over the phone, in a conference call to Washington, D.C., March 20 about federal legislation.

Patrick said the lawsuit adds some urgency.

“The lawsuit filed for bull trout passage by the Alliance of the Wild Rockies does add a little bit of hurry-up to this, as the replacement of the diversion dam, fish screens and rock ramp to be in compliance with passage are estimated over $40 million,” she said. “A placeholder of the language will be submitted this week to the Energy and Natural Resource Committee, but changes and work with staff and the Blackfeet Tribe on the exact language will be ongoing until (the Water Resources Development Act) passes,” Patrick said. “The situation is very fluid. I imagine many changes will happen in the next month along with things changing daily with COVID-19 stimulus packages and infrastructure bill conversations.”

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.

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

“We continue to work with Sen. Tester and Sen. Daines’s staff to move a 75 percent federal and 25 percent non-federal cost share component forward on the operations and maintenance of the St. Mary system,” Patrick said in an interview after the meeting. “Currently the senators’ staff is working with the majority and the minority staffers on the Energy and Natural Resource committee to draft language or a package to move this forward in the Water Resources Development Act 2020 bill. Right now, the majority and the minority are a little ways off on their approach of how they want the language to appear, but we’re all talking, which is huge.”

She said after the meeting that the majority and minority parties have a difference of opinion on what will pass in the bill and what from the diversion project should be included.

“I don’t have any concerns,” a member from the call who did not identify themselves said. “I think it’s good that we’re looking basically at all the options we have ahead of us. … I have to believe  with all the funding that is going to be probably driven by Washington on the virus, this could possibly push this a little even a little bit further behind, but I think we need to continue our efforts to engage with our congressional delegation and appropriate committees in Congress to at least keep this on the radar regardless of where they end up going and where money goes.” 

Manoukian said the congressional delegation across the board has done well meeting and working the group.

“We just need a little bit of action and hopefully that’s coming soon, at least through the legislative process,” he said.

  The next St. Mary Rehabilitation Working Group meeting is yet to be determined.