LYIP Continues Fight Over Maintenance Costs Of Fish Bypass

In November 2023, a delegation from the Lower Yellowstone Irrigation Project visited Washington, DC, to personally advocate for the preservation of our local communities, including farmers in the Yellowstone Valley, and nationwide. Making the trip were LYIP general manager James Brower and his wife, Stacey; Mark Iverson, Montana Irrigation District president; and Todd Cayko, North Dakota Irrigation District vice-president.

The issue at hand is the cost of maintaining the newly constructed fish bypass, which is not owned by the irrigation district but is in need of massive repairs, and will always need maintenance. LYIP has always had to repay the cost of the irrigation infrastructure, including the initial construction of the irrigation facilities. The bypass, however, is not a part of the irrigation infrastructure and does not affect irrigation in any way.

It was built by the U.S. Army Corps of Engineers (Corps) to help mitigate the effects of their dams on the Missouri River and comply with preserving the pallid sturgeon under the Endangered Species Act (ESA). It is located on Bureau of Reclamation land, not private land, and was built without an agreement from LYIP. The irrigation project predates the bypass by almost 120 years, and the ESA is not retroactive. LYIP has neither the equipment, nor the dollars, required to maintain the fish bypass, nor is it their responsibility.

The irrigation project is lobbying Congress to ensure the fish bypass is correctly classified as a separate endangered species project or that Congress make a permanent determination that any dollars spent on the Federal Endangered Species Fish Bypass are not reimbursable by the irrigation districts.

With the invaluable assistance of Drew Lesofski, LYIP's lobbyist in DC, the group attained access to various wings of the capitol and were safely escorted in and out, something that was difficult due to ongoing demonstrations and parts of the building being sealed off from the public. They were also able to meet with all of the Montana representatives and their staffers, as well as, staffers from North Dakota Senators Cramer and Hoeven and Representative Armstrong.

Meetings started off with Montana Coffee with Senators Tester and Daines, Representatives Rosendale and Zinke, and their staff. "It's open to everyone from Montana," Brower stated. "It was really great. We were able to get contact information and actually visit with the Montana representatives and their staffers, who are hugely important, in a casual atmosphere."

Individual meetings followed, starting with Senator Daines and his staff. Both were very helpful according to Brower. Representative Rosendale was next. He had actually drafted language in a bill through the Natural Resources committee to have the Corps provide funding for Fish Bypass maintenance. However, that language was removed since it required money and it was determined that it was not germane to the Natural Resources bill being considered in the House at the time. The proposed bill will be going through the Senate and, with the full support of Senator Tester who is a senior legislator and on the powerful Appropriations Committee, the bill should pass. Without House support, however, neither a determination on responsibility nor funding for bypass maintenance has been resolved.

The following day, important meetings with Senator Tester and his staff as well as the Western Caucus and the Senate Appropriations Committee staff took place. Most senators were headed home for the weekend by that time but Brower said the group was very pleased that Senator Tester made time to visit with them before they left. He said Senator Tester and Representative Rosendale were very supportive, as were all the congressmen they met with.

Brower explained that the Western Caucus meeting was critical since it is a bipartisan group of senators from all the western states. LYIP was able to explain the importance of the irrigation project, not just to farmers; but also to cities, towns, and businesses.

Everyone they met seemed excited to meet actual real people from Montana, especially those who live along the Yellowstone, and treated them very well according to Brower. The presence of Stacey Brower was also valuable as she was able to represent the Montana families the delegates are sworn to protect and present a woman's point of view. Making personal connections with staffers was important since they would be the ones drafting actual legislation. Brower was impressed with how attentive those staffers were, asking detailed questions, and paying attention to the issues that were being discussed.

"The whole purpose of the trip was to point out that the Bureau of Reclamation and the Corps never got any agreement from the irrigation district to maintain or be financially responsible for the fish bypass. The bypass has nothing to do with irrigation; it is not inside the irrigation district boundaries, but on Bureau land. Without maintenance, the bypass will stop passing endangered species. It will erode wider and become shallower, it will become a swamp instead of a safe passage for the fish. Or it could wash out and the river could move away from the dam, the head works, and the canal; drying up the entire valley," Brower stated emphatically. "The irrigation district does not have any equipment large enough to maintain the bypass, the Corps does," he added.

LYIP strongly encourages everyone to contact their congressmen and urge them to pass language that maintenance and repair costs will not be reimbursable by the irrigators. That language does not require appropriations, making that bill easier to pass with bi-partisan support. It was suggested by the Senate Appropriations staff that the 2024 Water Resource Development bill they are currently working on would probably be the best place to insert language like 'Fish bypass expenses are not reimbursable by the irrigation districts'. This language would protect not just LYIP irrigators, but all the drinking wells in our valley including the cities' wells.

In Montana, contact Senators Tester and Daines and Representatives Rosendale and Zinke. In North Dakota, contact Senators Cramer and Hoeven and Representatives Armstrong to ask for their active support of the LYIP amendment.