Judge sides with farmers, greenlights plan to build dam bypass for prehistoric fish on Yellowstone River
A federal judge has sided with Eastern Montana farmers in a lawsuit over the protection of dinosaur-era fish species still swimming in the Yellowstone River.
U.S. District Judge Brian Morris greenlighted Lower Yellowstone Irrigation Project plans for a fish bypass channel to accommodate the pallid sturgeon, an endangered, shovel-billed fish that has swam in Yellowstone waters since the days of the dinosaurs. The channel is needed to get the sturgeon around a diversion dam used to deliver water to the district.
“This judge, after three and a half years, had looked over an incredible amount of evidence and had allowed environmental clubs four amended complaints to bring up everything they could think of that was wrong,” said James Brower, Lower Yellowstone Irrigation Project Director. “And after two environmental evaluations — one assessment and one study — and an evaluation of all the evidence, the judge has ruled that this is best option for the fish, while keeping the purpose of the project going."
Environmental groups had sued the district, the U.S. Army Corps of Engineers, Bureau of Reclamation and U.S. Fish and Wildlife Service. Defenders of Wildlife and the Natural Resources Defense Council argued that the bypass channel won’t work and that as a result the pallid sturgeon would be lost. The groups wanted no bypass channel and no diversion dam in the river, arguing that the irrigation district could instead draw water with massive pumps, allowing the sturgeon to swim freely. That $132 million solution was more than double the cost of the project preferred by the district.
Defenders of Wildlife Rockies & Plains representative Aaron Hall said in an email: “We are reviewing the Court’s decision to determine our next steps. We know from a recent poll that more than 8 in 10 likely Montana voters support protecting the pallid sturgeon, with 2 to 1 supporting the pump alternative even with a higher cost. We continue to work on all fronts toward a solution that will restore a free-flowing Yellowstone River for the pallid sturgeon and continue to provide water for the irrigators."
Morris ruled that the federal agencies involved in the project had done their homework proving the fish bypass was the best option.
There are 125 known pallid sturgeon in the Yellowstone. The shovel-snouted fish swim upstream to deposit eggs, which need miles to drift and hatch before reaching the Sacajawea reservoir along the Missouri River in North Dakota. The U.S. Army Corps of Engineers designed the bypass stream as a way for pallid sturgeon to swim around the diversion dam, which is submerged but is nonetheless a challenge to the endangered fish.
The irrigation district stretches between Glendive and Sidney and irrigates 50,000 farm acres. Its existing diversion dam is a century old. Made of wood, it is repaired annually to keep it going for one more season.
The Army Corps plans to replace that wooden dam with a concrete weir and cut a deep fish bypass detour channel six to eight feet deep and 150 feet wide so sturgeon can swim around the weir.
The legal battle has already been to the U.S. Ninth Circuit Court of Appeals and back again. Congress first appropriated money for the diversion dam and bypass project 11 years ago. The delays have more than once nearly cost the project federal funds totaling $59 million.
"I am glad to see the lawsuit by a fringe environmental group be dismissed to allow this critical project to take the next step,” said Sen. Steve Daines, (R-Mont.,) who worked to keep funding for the project on the table while the lawsuit played out. “I look forward to continuing to support the LYIP as things move forward."
Rep. Greg Gianforte, (R-Mont.,) did the same in the House.