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Comment sought on proposed Bitterroot River closure rule

By Michael Howell

The Montana Fish and Wildlife Commission is seeking public comment on a proposed biennial rule that would allow the Department of Fish, Wildlife and Parks to temporarily close a portion of the Bitterroot River surrounding the Supply Ditch Diversion Dam to protect public safety. The dam is located on the east branch of the river between the Woodside Fishing Access Site and the Tucker Crossing West Fishing Access Site.
FWP Fisheries Biologist Chris Clancy told a small gathering at a public hearing held at the Forest Service Supervisor’s headquarters in Hamilton last week that high water at the dam creates “a classic drowning machine” where the water flowing over the dam surges back towards the dam in a circular current that can easily trap floaters. He said the dam was not an issue until a few years ago when the main flow of the river turned to the east at a junction in the river just above the dam. At high water the dam can sometimes be impassable when the usual portage route around the dam gets washed out. Close to a dozen accidents are known to have happened at the dam since 2011, including a fatality in 2013 when a six-year-old girl was caught in the current and drowned.
In 2014, FWP closed this section of the river for safety reasons during high water. That closure was contested in court. The litigants claimed that the closure was not necessary and the process used in putting the closure in effect was legally flawed. The lawsuit was settled out of court. One stipulation in the settlement agreement was that the river would be opened by July 10, or as soon as flows are below 4,000 cubic feet per second at the USGS Missoula Gauge.
The proposed Biennial Rule would allow the Department to place a temporary closure on the river over the next two years if danger at the dam is heightened and alternative ways to avoid the dam are difficult or impossible to navigate or while the dam is being repaired. During the 2015 season the conditions did not warrant it, according to Clancy, and no closure was implemented last spring.
Clancy said that one concern about the closure was that it would set a precedent for river closures leading to a rash of closures at dangerous spots on rivers around the state. Clancy said that there was already a precedent for closing rivers due to certain dangerous situations as rivers have been temporarily closed in the past. But, he said, closures are always a last resort and cases are very few and far between.
The local Bitterroot Conservation District has taken a lead position in trying to instigate a permanent fix that might resolve the issue in the long term. Last May the conservation district pledged $10,000 and agreed to waive $10,000 in fees for reconstruction of the dam. FWP pledged $40,000 and $7,500 in in-kind labor for the project. The Supply Ditch company pledged $35,000 and another $15,000 worth of in-kind labor. The District lined up another $125,000 in a grant from the Department of Natural Resources and Conservation. But this is only half the estimated cost of the project which was estimated to cost a total of about $478,000.
According to BCD Supervisor Howard Eldredge, in October the engineering firm Morrison-Maierle was hired for $91,000 to help develop a plan and in November the site was surveyed. He said the survey results would be analyzed over the winter so that by spring a firmer estimate based on site details could be made. If sufficient funds can be raised the project could be completed in the Fall of 2016, or in 2017.
At the public hearing a local fishing guide raised several questions about the proposal including the use of public funds to repair or rebuild a private dam. He also stated that the proposed limits on the closure that would require reopening July 10 or when the USGS Gauge at Missoula reached 4,000 cfs or less did not make sense. He argued that the flows at Missoula are often significantly different than the flows at the dam site and do not necessarily correlate.
Clancy agreed about the potential lack of correlation but said there were no measuring gauges in the vicinity of the dam that could be used during high flows. He said public funds, especially from DNRC, were often used in making dam repairs or improvements. In this case he said FWP could see a value for recreationists in making an improved portage route or a dam that would allow safe passage for floaters.
George Corn, one of the people who sued the agency over its previous closure of the river, spoke against the proposed rule saying that it would “turn the river into a theme park.” He argued that floating the rivers of Montana was inherently dangerous and the public had the right to take such risks in nature. He said the public’s right to recreate on the rivers was not a privilege like a driver’s license, but was a right guaranteed by the constitution. He argued that closure of a river might be justified if the resource itself was in jeopardy of being damaged, but it should not be closed for safety reasons. He said the department should be focusing on education and not regulation in relation to public safety.
FWP will be accepting public comment on the proposed rule through December 18. The full proposal and opportunity to submit comments are available online at fwp.mt.gov by following links to “Submit Public Comments” or can be directed to Sharon Rose, Region 2 FWP, 3201 Spurgin Road, Missoula MT 59804; phone (406) 542-5540; email shrose@mt.gov.

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