P.O. Box 7186 Missoula, MT 59807 (406) 543-0054

P.O. Box 7186 Missoula, MT 59807 (406) 543-0054

28 July 2016

Tiffany Vanosdall

U.S Army Corps of Engineers

Omaha District

Attn: CENWO-PM-AA

1616 Capitol Avenue

Omaha, NE 68102

Dear Ms. Vanosdall:

Thank you for the opportunity to comment on the Corps’ and U.S. Bureau of Reclamation’s (BoR) Draft Environmental Impact Statement (DEIS) for the Lower Yellowstone Intake Diversion Dam Fish Passage Project. Montana Trout Unlimited represents 4,200 conservation-minded anglers, most are native or long-time Montanans who have an abiding interest in the free-flowing character and aquatic community of the Yellowstone River.

We strongly urge the Corps and BoR to refine the technical, biological and economic effects analysis for the “Multiple Pump Alternative,” and to adopt this option as the best solution for accommodating fish passage, recovery of pallid sturgeon and the interests of water users in the Lower Yellowstone Irrigation Project (“the project”). This analysis could include a re-evaluation, or not, of incrementally implementing some of the conservation measures for irrigation infrastructure that the DEIS says is already occurring or planned (DEIS 2-36), and which could potentially reduce pumping costs.

The analysis in the DEIS, the best available science, and certain legal requirements under the National Environmental Policy Act and Endangered Species Act, as well as the congressional authorization under the Water Resource Development Act of 2007 (WRDA 2007), do not support selection of the Dam/Bypass Channel option as the preferred alternative for the Intake Project. The best option for maximizing success for fish passage and recruitment, as the agencies admit in the DEIS, are alternatives that involve an open river and multiple pumps for supplying irrigation water. The use of pumps is common in irrigation, and in fact, it is increasingly replacing gravity-dependent flood irrigation systems throughout Montana and the West, including within the Lower Yellowstone Irrigation Project. The DEIS provides no evidence that the preferred alternative will meet the objective of helping recover endangered pallid sturgeon, nor does it demonstrate that it will improve fish passage for all fish or contribute to ecosystem restoration.

It is quite possible that if implemented the Dam/Bypass Channel option will actually reduce the potential for sturgeon to move upstream, continue to impair potential recruitment of sturgeon (if passage succeeds) by impinging, entraining or damaging eggs and larvae at the headworks and below the new dam, reduce the ability for other species to move above Intake and reduce ecosystem health by largely replacing much of the ecosystem and hydrological function of a four-mile-long natural high-water channel with two-miles of a engineered bypass channel. Essentially, there is some probability that the $60 million invested in the Dam/Bypass Channel alternative could result in making things worse for fish and ecosystem health.

General Comments

The DEIS deliberately ignores the stated purpose and need of the project: recovery of pallid sturgeon in the upper Missouri River Basin. The agencies mistakenly limit the purpose and need to: 1.) improve fish passage for pallid sturgeon and other fish; 2.) continue viable and effective operation of the LYP; and, 3.) contribute to ecosystem restoration (DEIS xxxvi). The agencies claim that their obligation is to “not jeopardize” a species, and that “pallid sturgeon recovery is not within the scope of this project (DEIS xxvi).” That is incorrect.

Because the Corps is investing in a BoR project with the expectation the U.S Fish and Wildlife Service will then relieve it of its recovery obligations in the upper Missouri River Basin, the agency must see this investment as a “recovery” action. In a 2003 Biological Opinion, the U.S. Fish and Wildlife Service (USFWS) concluded that both the Corps’ and the BoR’s activities, including at Fort Peck and at Intake, are already contributing to jeopardy and deemed to be taking pallid sturgeon. That has not changed. The agencies’ obligations go beyond not jeopardizing the species – that is already occurring -- but instead to instigate activities that lead to recovery.

The USFWS amplifies the importance of recovery when it states in the DEIS that “the value of restoring the Yellowstone River as a natural migratory route for sturgeon and making the middle Yellowstone function as the spawning and nursery grounds for pallids cannot be overstated (pg xxvii).” Further, the congressional authorization for the Corps relative to this project, the Water Resources Development Act of 2007 (WRDA 2007) authorized spending from the Missouri River Recovery and Mitigation Program, which the Corps’ website for the program says involves “actions being taken pursuant to the 2000 biological opinion, amended in 2003…” In order to avoid jeopardy, which the USFS has deemed has been occurring for years, and which was the purpose of the original EIS for this project, expenditures of this program need to lead to recovery, not simply “improve fish passage for pallid sturgeon and other native fish.” It is also worth noting that the court in Defenders of Wildlife, 15-cv-GF-BMM, docket #73 at 12 directed the agencies to include an analysis of the potential effects of the Intake Project on recovery of pallid sturgeon. Simply avoiding jeopardy, when it is already occurring, is not sufficient.

The DEIS is heavily biased in favor of the preferred alternative. Descriptions of the Dam/Bypass Channel option are subjectively positive and/or assume that that alternative will be selected. Descriptions of the other alternatives, especially the open river alternatives, are presented as subjectively negative. This bias was also evident during public meetings when the agencies displayed PowerPoint presentations on the alternatives that implied landowners within the Lower Yellowstone Irrigation Project would be liable for all O&M costs associated with the proposed alternatives on a per acre basis. These displays showed huge expenses for landowners. The DEIS, however, does not state that increased O and M or construction costs would have to be borne by water users. In fact, the DEIS portrays those costs as part of the overall project alternative costs to be borne by the agencies.

Dam/Bypass Channel Alternative

The proposed post-project monitoring and assessment are inadequate. MTU criticized the monitoring proposed in the previous EIS for being conducted for only eight years, which in terms of producing a subsequent population of reproducing individuals is insufficient for determining successful spawning and recruitment. The current DEIS still commits to only an eight-year monitoring effort. Furthermore, the DEIS acknowledges that monitoring of the preferred alternative might show that the bypass channel fails to pass fish sufficiently. “The design of the bypass channel is based on the best available science, but as there is not a similar precedent, there are still uncertainties about the ultimate effectiveness in providing pallid sturgeon passage. Therefore, the recommended reasonable and prudent measure (RPA) to minimize effects was to implement a monitoring and adaptive management plan that would document the performance of the replacement weir and bypass channel and take measures to improve its success if the performance did not meet desired criteria (5-4).”

The agencies admit in many places in the DEIS that the Dam/Bypass Channel alternative could very well not work for fish passage. But the DEIS also indicates that if this occurs the agencies can adaptively manage the bypass system to improve it. However, the DEIS doesn’t identify exactly what criteria they will use to determine success, what the adaptive management steps would be, who would implement them, and at what cost. If there are improvements that could help later, why not simply employ them at inception? Because of the admitted uncertainty involved in the Dam/Bypass Channel option, the agencies have an obligation to disclose in the DEIS what steps would be taken, what they will cost and who will be responsible for improving performance.

The Dam/Bypass Channel will require regular maintenance, including costs associated with channel stabilization, repairing the inlet and outlet, debris removal, the possible rebuilding of the trolley system or vehicular access atop the new concrete dam, etc. But the DEIS is silent on who will be responsible for these obligations, who will pay for them, and what they could cost over the projected life of the dam and bypass. These future costs are not included in the O&M budget for this alternative. They should be identified. Further, determination of costs for the open river and pumping alternatives should, as with all alternatives, be subjected to an independent peer review. The results of that review should be made available to the public before an alternative is selected. It is unclear to us, for example, how some of the costs of the pumping options were determined and whether they are reasonable. For example, it is not clear that all the pumps will be needed. Curiously, the cost of the Dam/Bypass Channel option does not include a cost for design. Though this has apparently already been paid for, it is still a cost that should be attributed to this alternative, much as it is for the open-river alternatives. This is an example of the cost bias used to make the Bypass Channel appear cheaper than it is (pg. 2-98).

The determination that the Dam/Bypass Channel alternative will pass pallid sturgeon is based solely on scant lab studies of pallid sturgeon (mostly juveniles) and their ability to maintain upstream swimming velocities in 9-11’ long flumes. The DEIS admits there is no real-world evidence of pallid sturgeon or related shovelnose sturgeon using engineered bypass structures: “There are still many uncertainties over whether a majority of pallid sturgeon would actually pass through the bypass channel as there are no other examples of similar natural-type channels designed for non-jumping benthic fish (4-169).” Yet the agencies with limited evidence are willing to invest an estimated $60 million in an alternative with an admitted high degree of uncertainty for success. The agencies are basically opting for faith-based fishery science.

There are real world indications, however, that point to how risky the assumptions for success are. If the agencies believe this 2-mile long engineered channel, which will carry only 15 percent or less of the discharge of the Yellowstone River, will be sufficient for passing enough sturgeon (and other species) upstream with enough frequency to enable recovery (or avoid jeopardy), then it would seem that more sturgeon would have used the existing natural high-water channel more frequently over the years. However, upstream passage at Intake in the natural high-water channel has been documented only in a single recent year, when flows exceeded 45,000 cfs, an uncommon event. This is a pretty good indication that sturgeon species, though they might occasionally use a natural side channel under conditions with above average flows, they don’t, however, have a strong proclivity for navigating side channels. Further, discharge velocity and depth are only two of the many nuanced values that contribute to successful upstream movement. Also important are overhead cover, turbidity, temperature, chemistry, time of day, channel geometry, substrate (especially for benthic species), presence of predators, human disturbance, ability to locate entrances (and be comfortable with them), and other values. None of these have been evaluated in determining the probability of success.

Given the admitted high degree of uncertainty for upstream movement of pallids under the Dam/Bypass Channel Option, this alternative should only be implemented if it doesn’t include the new, concrete-capped diversion dam. This would save money for investment in an open-river alternative if the bypass proves inadequate. Building the new dam before it has been established that the bypass passes sturgeon and other species in adequate numbers and in the appropriate frequency could be unnecessarily costly. If the agencies ultimately select the Dam/ Bypass Channel Option, they should first produce a binding agreement that ensures they will adhere to biologically sound monitoring and assessment that is developed by an independent biological review team -- as well as commit to being responsible for implementing an alternative that is based on the best science available and with the highest degree of scientific certainty. The agencies must remain accountable if the preferred alternative is selected and fails to contribute to pallid sturgeon recovery in the upper Missouri River basin.

The Dam/Bypass Channel Option would eliminate surface flows into the natural side channel, filling much of it with excavated material from the bypass construction. The natural side channel currently includes 4.5 miles of riparian habitat and has provided some upstream fish passage. Further, it also likely provides rearing and security habitat for some species. According to the DEIS the Dam/Bypass Channel Option would transform the lower reach of the natural side channel into a “backwater channel,” with potential for providing false attraction to upstream migrating fish. Left undisclosed in the DEIS are other biological implications of this significant modification, as well as how it affects recreational usage of John’s Island (4-43). The DEIS admits to significant modifications: “The filling of the upper section of the existing side channel would result in the loss of the existing riverine habitat in that area, including woody riparian and wetland, as well as adjacent terrestrial habitats reliant on existing hydrology. The lower section of the existing side channel would become a backwater with a largely reduced frequency of inundation relative to current conditions. This would cause changes to vegetation, and the conversion and degradation of existing habitat in and adjacent to the channel (4-145).” However, the document does not thoroughly disclose what the impacts of this would be on fish, wildlife and recreation.

The DEIS states that, “Fish passage would be 100% during all flows for the bypass channel, modified side channel, and dam removal alternatives because suitable depths and velocities are available across a wide range of flows (pg. 6, Appendix D).” The DEIS, however, does not disclose a complete analysis of the expected discharges in the modified side channel or bypass channel at different river stage when coupled with irrigation demands. It is not apparent therefore that the bypass channel or modified side channel would indeed have adequate depth for fish passage. Left unstated is what occurs during extreme drought years when limited water is available to accommodate both fish passage and irrigation. It is reasonable to presume that the senior water right of irrigators will trump any water right for instream flows, such as FWP’s instream flow reservation. It cannot be concluded then that flows will be available at all times for fish passage.