Advocates press Corps to keep funding

by Jason Stuart, Ranger-Review

Just above Joe’s Island, on the ‘slough side’ of the Intake diversion dam, a retinue of heavy equipment sits baking in the summer sun, neatly ordered in row upon row like a battalion of soldiers ready to go into battle. But their deployment into battle has been indefinitely delayed, and nearly everyone with a stake in the project – from the contractor to local farmers to congressmen and senators – is waiting with baited breath for the legal dam to break so work on the dam can finally begin, while some of them are continuing to fight with every resource at their disposal to try to prevent what they see as a potential catastrophe.

A lot has happened around the Intake project in the last couple of months, but the saga is far from over. In April, U.S. District Judge Brian Morris finally lifted a nearly two-year-old injunction against the project to replace the existing rock and wood dam with a concrete weir and fish bypass channel from moving forward.

Following that ruling, the U.S. Army Corps of Engineers immediately mobilized the contractor for the project, Ames Construction (the same firm which built the new headworks at Intake a few years ago) and the company began dispatching workers and equipment to the site.

Before they could start work, however, Morris issued another injunction in June on the project requested by the two environmental groups – the Defenders of Wildlife and the Natural Resources Defense Council – which had filed the lawsuit which led to the initial injunction.

The environmentalists are not only challenging that the proposed bypass channel will provide passage around Intake for the endangered pallid sturgeon to move upriver to spawn, but are openly pushing for the complete removal of the Intake structure, even challenging the legality of the continued operation of the diversion dam under the auspices of the Endangered Species Act.

Ames, for their part, is caught in the middle, with their workers and equipment sitting on their hands with nothing to do. What, exactly, the company is doing or plans to do in reaction to the second injunction is a mystery. Ames project manager Dave Pollette said the Corps has requested that the company refrain from making any statements to the media.

Corps spokeswoman Jamie Danesi out of the Omaha District said she couldn’t speak at this time as to what Ames is doing either, like whether or not the company is starting to demobilize out of frustration. Danesi simply noted that the Corps still has “a contract in place” with Ames for the project.

Concerns about the status of that contract in the wake of the second injunction are at the forefront of the minds of Lower Yellowstone Irrigation Project producers. There is a grave concern among all the Intake stakeholders that the Corps will cancel Ames’ contract and then reallocate the nearly $40 million in construction funding for it elsewhere.

“The (LYIP) is doing everything we can with our federal legislators and community leaders and leaders of different federal agencies to encourage the Corps to not cancel the contract for construction, because we are working on a path forward,” said LYIP manager James Brower. “We are encouraging everybody to task your federal representatives with convincing the Corps not to cancel that project.”

For LYIP members, their gravest concern is that if the Corps walks away from the project, the onus will be on them to fund a project to provide pallid sturgeon with a way around Intake. That’s a cost Brower has repeatedly said the irrigation district cannot afford, and he openly fears that such a result would lead to the LYIP’s downfall and unleash a wave of economic ruin that would rock the entire region.

Those same fears are also there for the Buffalo Rapids Irrigation District No. 1, which led that irrigation district to set up a Facebook page earlier this week called “Buffalo Rapids Supports LYIP.”

While Buffalo Rapids irrigators get their water from their own pump system, they too could suffer if the LYIP were to be forced out of existence. Buffalo Rapids treasurer Jill Page noted that if the LYIP goes, then Sidney Sugars likely goes right behind it, which would be a huge blow to Buffalo Rapids producers, many of whom are contracted to grow sugar beets for Sidney Sugars.

As for the Montana and North Dakota congressional delegations, they have already been busy trying to influence the Corps’ decision-making on the matter. The six congressmen and senators from the two states jointly dispatched an official letter to the Corps last week urging them not to cancel the project or reallocate the funding for it.

Furthermore, perhaps not willing to trust the Corps to simply follow their wishes, Montana senators Jon Tester and Steve Daines – both of whom sit on the powerful Senate Appropriations Committee – got language included in the 2018 Energy and Water Development Appropriations Act which would outright forbid the Corps from cancelling the Intake project contract or reallocating the funding for it.

The bill, which was trumpeted as being “bipartisan” in statements from both senators’ offices, passed out of the Appropriations Committee on Thursday and will now head to the Senate floor for a vote sometime in the coming weeks.

“We must ensure that farmers and ranchers in Eastern Montana have access to water to support their operations, while also protecting critical fish habitat,” Tester said in an e-mail statement about the bill’s passage out of committee. “This bill holds the government accountable so it can’t walk away from this important project. I was pleased to work with Republicans and Democrats on this legislation so we can deliver certainty to folks in Eastern Montana.”

“We really do need to move forward with construction of that dam. I think we can have it both ways,” Tester said in a phone interview last week.

Longer-term, other members of Congress are levelling their sights at reforming the Endangered Species Act itself to try to cut back on the amount of litigation which gets generated from it.

On Wednesday, both the House Natural Resources Committee and the Senate Environment and Public Works Committee held hearings on GOP-sponsored bills designed to roll back pieces of the ESA.

However, ESA reform bills like those being pushed by Utah Rep. Rob Bishop, who chairs the House Natural Resources Committee and is a hardline ESA critic, are unlikely to garner anything other than stiff opposition from the other side of the aisle, and many congressional Democrats loudly denounced the bills under discussion at Wednesday’s hearings.

That does not mean, however, that some Democrats are not open to reforming the ESA in some manner to cut down litigation by environmental groups.

Tester may be among that group. During last week’s conference call with Montana reporters, when asked by the Ranger-Review if he would support some kind of reform of the ESA, Tester replied that he would be open to discussing it, though he cautioned Congress would need to be “very careful” in how it went about it.

“I would certainly be more than willing to take a look at (the ESA), but we’d have to be very cautious moving forward,” Tester said. “But of course it could be modified, be made better, be made more effective. I think it’s a fair question, and I think it’s an issue we’re going to be dealing with either this Congress or the next.”