There is a new hearing date for the intake diversion dam’s summary hearing in U.S. District Court in Great Falls.

Judge Brian Morris has granted a one-week extension to Defenders of Wildlife, so that the environmental group can prepare a response to a recent court ruling. The ruling vacated a preliminary injunction against construction of a fish bypass project, which was proposed by federal agencies to make a submerged weir near Glendive, Montana more fish friendly.

Defenders had requested a two-month delay to respond to the appeal court’s ruling, but defendants and intervenors requested that the delay be no more than two weeks.

The hearing for the matter is now set for 1:30 p.m. April 26 in Great Falls before Morris.

Lower Yellowstone Irrigation Project Manager James Brower said it is still just as important as ever that community members attend the rescheduled hearing for summary judgement on Defenders of Wildlife’s amended complaint.

In it, Defenders contend that continued operation of the intake diversion and Fort Peck dams both violate the Endangered Species Act. The group calls for the judge to rule that operation of the Intake Diversion Dam must cease immediately and be removed, to save the endangered pallid sturgeon.

The hearing is for a summary judgement on their contention, and will be a decisive moment in the future of the Lower Yellowstone Irrigation Project and the 58,000 acres of cropland it serves.

LYIP provides water to 36,000 acres of farmland in Montana and 18,000 acres in North Dakota every year.

“This hearing is even more important than the previous two,” Brower has said previously. “Because this time, the environmental clubs, the plaintiffs, are bringing up every complaint there is about the existing weir and our operations, claiming they are a violation of law that needs to be stopped by the judge.”

The precedents that could be set were Defenders to win the case against the small Montana irrigation dam could be felt in communities across the nation, wherever dams are being used to control flooding or provide irrigation, and thus have potential for an adverse impact on fish or wildlife. This could also include Lake Sakakawea, which researchers have said has an oxygen deficient environment at its entry point that kills pallid sturgeon before they are old enough to survive it.

Pallid sturgeon were listed as endangered in 1990, and efforts began soon after to determine what would work to help the species survive.

Researchers hoped that a fish bypass at the Glendive Diversion Dam would help those pallid sturgeon that seek to spawn in the Yellowstone, by providing them an easier way to get past the weir than presently exists. A successful fish passage would give pallid sturgeon a lot more time to mature as they drift downstream, so that they might be able to survive entry into Lake Sakakawea.

Years of study and collaborative efforts on the problem culminated in a $57 million fish bypass, proposed by the Bureau of Reclamation and U.S. Army Corps of Engineers. The agencies say the bypass would be designed with the swimming abilities and known habits of pallid sturgeon in mind.

The project ran aground, however, when Defenders of Wildlife filed a suit to block its construction in 2015, contending that the project required a more extensive environmental study, one that would include analysis of their preferred alternative, an open river with multiple pumps to deliver water instead.

Agencies prepared the required additional study, as ordered by the courts. That study included the multiple pumping option preferred by Defenders of Wildlife, but ultimately concluded that the only practical solution is the fish bypass project.

Multiple pumps would cost $450 million to install, the federal agencies’ analysis found, and would include increased operating and maintenance costs as well. Many area farmers have suggested that would mean pumping isn’t economically viable over the long-term.

Defenders have since contended that the federal agencies had to find the multiple pumping option they favor as impractical to choose the fish bypass option, and claimed they did not. They sought a second preliminary injunction against the case on that basis while their amended complaint, alleging that the operation of Intake itself is illegal, was reviewed.

An appeals court, however, disagreed with that line of reasoning, saying that the record reflects that the agencies found the only practical option was the fish bypass.

The appeals court also determined that the lower court erred on several other points of law and vacated the preliminary injunction ahead of the hearing for summary judgement. That could have cleared the way for construction to begin — but the contracts for the project have already been cancelled. Funding for the project is still secure, however, according to Sen. Daines office.


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