The Roundup -

The Long Road To LYIP Victory

 

August 22, 2018 | View PDF

Pictured is LYIP manager James Brower (right) showing a map of the irrigated lands to North Dakota Lieutenant Governor Brent Sanford (left) and McKenzie County Economic Development Coordinator Daniel Stenberg (middle) on September 21, 2017, during the court case battles.

It's been a long and frustrating road for the Lower Yellowstone Irrigation Project and federal agencies attempting to save the endangered pallid sturgeon while maintaining reliable irrigation water for the area farmers who use the Intake Diversion Dam.

However, at every step of the way, the community became more and more determined to fight those who seemed intent on destroying our livelihoods along the Lower Yellowstone and Missouri rivers. Never before had federal agencies seen hundreds of people from all walks of life show up for public hearings, and the district court room in Great Falls could not begin to hold all the people who attended those hearings, with more and more showing up every time. Private, public and government entities stepped up to provide buses, fuel and food for the trips. A sea of yellow T-shirts with "Support the Bypass. Save the Farmers" appeared at the only public hearing in Billings, held there at the request of the plaintiffs to facilitate travel, where only seven of them showed up.

The Bureau of Reclamation began addressing endangered species issues associated with the operation and maintenance of the LYIP in the 1990s when the pallid sturgeon was placed on the endangered species list. In 2005, Reclamation and the US Army Corps of Engineers, along with the US Fish and Wildlife Service, the State of Montana and the Nature Conservancy signed a Memorandum of Understanding to collaboratively address the LYIP pallid sturgeon issue. Since then, the Bureau and Corps, in consultation with the Service, have been partners in developing and analyzing pallid sturgeon alternatives for the Intake Diversion Dam.

The Corps and Bureau issued a Final Environmental Assessment for the dam modification project in April 2010. In the EA, a new screened head works (subsequently constructed and put into operation in 2012) and rock ramp were selected for implementation. The screens prevent sturgeon larvae and other fish from entering the irrigation canals. Then project manager Jerry Nypen, and board of control chairman Richard Cayko worked with the federal agencies to ensure that the new screens and head gates would adequately protect the fish. They learned about some of the intricate details involved with the system, including turbulence and suction, and making sure the elevation was right for the weir to feed the canal. A trip to California to study a project there provided valuable knowledge. The project requires extra expense for maintenance with the Bureau covering some of the costs. According to Cayko, the gates are running at 55% now and more can be opened on short notice.

On February 1, 2012, LYIP hired James Brower as project manager, thrusting him in the middle of what would prove to be a very long fight to save the irrigation water and the pallid sturgeon.

After the screens and head works were completed, the federal agencies determined that their initial plan to expand the rocking system was unworkable since the stacked rocks would impede larval drifts. Studies continued and a new plan was developed in 2013 with the fish bypass and concrete replacement weir as the best alternative for pallid sturgeon survival and the irrigation district. There would no longer be a need for the annual rocking of the weir. A FONSI (Finding Of No Significant Impact) was issued by the agencies.

After public meetings in Glendive, Sidney and Billings, where hundreds of people showed up in support of the project and only a handful against, a supplemental EA was issued in April 2015, addressing changes in the project. It presented new information related to improving fish passage regarding cost effectiveness of the rock ramp and pallid sturgeon use of side channels. The supplemental EA identified a bypass channel as the preferred alternative.

In the meantime, the Defenders of Wildlife and the Natural Resources Defense Council (plaintiffs) filed a lawsuit in February 2015 alleging Endangered Species Act violations, later amended to include a challenge of the adequacy of the agencies' NEPA process. Judge Morris would allow the plaintiffs to amend their complaint four times over the course of the next three years. The first of four hearings was held in U.S. District Court in front of Judge Brian Morris on August 27, 2015. More than 20 local people made the six-hour bus trip to Great Falls while hundreds filed declarations of support.

The Corps awarded the contract for construction of the fish bypass and concrete weir on August 31, 2015. On September 4, the district court granted the plaintiffs' motion for an injunction, halting the project.

On April 5, 2017, a second hearing was held in Great Falls, after the agencies had completed an additional Environmental Impact Study and Biological Opinion and concluded, again, that the bypass and concrete weir were the best alternative for the project.

"You guys don't want pumps," stated Barry Rakes, from Fallon, MT at the Glendive meeting on April 23, 2016. Rakes is the president of the Buffalo Rapids Irrigation District that supplies water for the Fallon and Terry area farmers. Rakes described many of the issues with the pumping system they use. Not only are the pumps expensive to use but they are not reliable, a fact that is hurting the farmers in Fallon and Terry this year. At the Billings meeting Rakes explained, "You can lose an entire crop before the pumps are fixed and running again."

On April 19, the injunction was lifted. Construction could finally begin. Approximately one million dollars were spent preparing ground, bringing in phone and power lines, signing three-year leases on apartments, and bringing in large equipment from Colorado. Then the government decided to halt the project because of high water due to the spring rise.

The plaintiffs filed a motion for a second injunction on May 4, 2017. The hearing was held on June 19, attended by hundreds of people from the LYIP area. The injunction was back on July 5.

The agencies and LYIP appealed the injunction to the 9th Circuit Court of Appeals resulting in a huge victory on April 4, 2018, when the court issued a scathing review of Judge Morris's decisions and lifted the injunction.

On April 19, 2018, hundreds of local people again made the trip to Great Falls for the final court appearance. On July 20, Judge Morris issued a summary judgment, ruling in favor of the Intake Diversion Project and allowing construction to begin. LYIP said that their attorney, after carefully reviewing the ruling by Morris, stated that the plaintiffs have no grounds to file another appeal unless the project is not completed in the same configuration that underwent the NEPA review and ESA consultation.

The Corps is now accepting bids on the project with construction expected to start this fall while water levels are low.

 

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