Sep 082015

A federal judge agreed with environmental groups that the Army Corps of Engineers and Bureau of Reclamation did not adequately study the impacts to endangered pallid sturgeon before deciding to move forward with building a concrete dam and bypass channel along the Yellowstone River (Defenders of Wildlife v. U.S. Army Corps of Engineers, 15-14-GF-BMM, D. Mont.).

Said U.S. District Judge Brian Morris in his order, issued Sept. 4:

"Federal Defendants’ argument presumes that pallid sturgeon will successfully navigate the bypass channel and successfully spawn upriver. As noted above, however, Federal Defendants have failed to conduct any analysis on the efficacy of the bypass channel at accomplishing this goal. Under these circumstances, the prudent approach requires a careful consideration of the environmental impacts before proceeding with the Project. The balance of the hardships and the public interest tip in favor of an injunction. This injunction will ensure that Federal Defendants consider all potential impacts of the Project before construction begins. This analysis will ensure that the Federal Defendants understand the impacts on pallid sturgeon and can address these impacts appropriately."

The groups suing are Defenders of Wildlife and the Natural Resources Defense Council.


From the "background" portion of the order:  "The United States Fish and Wildlife Service (FWS) listed pallid sturgeon as endangered in 1990. 55 Fed. Reg. 36, 641. The Missouri River between the Fort Peck Dam and Lake Sakakawea contains the largest wild pallid sturgeon population. Fewer than 125 wild pallid sturgeons remain and the population appears in decline. (BOR 560; BOR 2216). The presence of the Fork Peck Dam on the Missouri River and the Intake Dam on the Yellowstone River account, in large part, for this decline. (BOR 567-572). The Intake Dam sits approximately 70 miles upriver from the confluence of the Yellowstone River and the Missouri River. These two barriers prevent the pallid sturgeon from swimming far enough upriver to spawn successfully."

"The United States Bureau of Reclamation (Bureau) intends to spend $59 million to replace the existing wood and rock weir at Intake Dam with a concrete weir in order to ensure continued irrigation water to the 56,800 acres currently serviced by Intake Dam."

"Defenders’ challenge arises largely from their claim that Federal Defendants have failed to comply with NEPA. Defenders argue that the new weir will continue to harm pallid sturgeon and that Federal Defendants have not conducted sufficient
analysis to determine whether the bypass channel will mitigate this harm. Defenders contend that the EA failed to include sufficient analysis and, alternatively, that federal law required that they prepare an Environmental Impact Statement (“EIS”) due to the fact that the Project will continue to cause significant impacts to the pallid sturgeon."

More coverage

Judge expects to make ruling by Sept. 8 regarding irrigation project (by Mike Francingues, Sidney Herald, 8/30/15)

NY Times op-ed (by Chris Hunter, former chief of fisheries for the Montana Department of Fish, Wildlife and Parks, 9/3/15)

Judge blocks lower Yellowstone dam over fish worries  by Matthew Brown, Associated Press (9/8/15)

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