By Michael Howell
The Bitterroot Conservation District (BCD), which issues 310 Permits for work done on the bed and banks of natural perennially flowing streams, has scheduled a hearing to decide whether a pond located near the North Fork of Rye Creek is within their jurisdiction or not. The BCD has claimed jurisdiction over the North Fork of Rye Creek but denies that it has jurisdiction over a pond located near the existing channel of the creek.
The pond is located on property owned by Kelly and Tom Jolley. Problems began following the issuance of a 310 Permit to the Jolleys back in 2006 and extended to 2008 to “remove sediment created by the 2000 fires from an existing pond” and “install a sediment trap.”
In April of 2008 down stream water users Jeffrey and Nancy Ince and Leonard Skarvan filed complaints with the BCD over the issuance of the permit and the work done. They claimed that the project actually involved the diversion of the creek out of the existing channel at the time into an adjacent branching channel in order to clean out an in-stream pond. In the process a headgate was installed in the original channel to divert water into the pond from out of the newly relocated channel. They claimed the headgate was illegal because the Jolleys did not have a surface water right for diverting water from the creek.
Right after that, they claim, the DNRC sent a letter to the Jolleys informing them that they had exceeded the scope of the 310 Permit and that the headgate was illegal and must be removed. The Jolleys were advised to obtain another 310 Permit for the remedial work of removing the headgate and restoring the stream bank. Additionally, the DNRC letter informed the Jolleys that the pond was located in what was likely an old meander of the creek and was susceptible to being “captured” by the creek in the future.
In August the BCD informed the Jolleys that another 310 Permit would be required to remove the headgate and restore the bank where fill had been placed. Another complaint was filed by the downstream neighbors in September 2008, but following an inspection by the BCD the complaint was denied. A second 310 Permit was issued in October 2008 to remove the headgate and repair the bank and remove the fill taken from the pond and place it outside the floodplain. This work was completed.
In 2010 the complainants had an engineering firm analyze aerial photos from 1954 to 2009. According to that report the creek has migrated back and forth between the two channels over that time and that as recently as 2004 no pond was evident and the main channel was flowing through the current pond area. They point out that the Jolleys original 310 Permit application showed the stream flowing through the pond. Another complaint was filed in 2011 but this time the complaint was denied because the pond, now separated from the creek with no inlet, was not under the BCD’s jurisdiction which only pertains to natural perennially flowing streams.
As a result the complainants have now filed a petition for a declaratory ruling on the issues. They want the BCD to determine, based on the original 310 Permit submitted by the Jolleys, aerial photos and the accompanying engineering report, and the reports from the DNRC, that the pond is located in the meander belt of the North Fork of Rye Creek, that the pond is within an actual recent historical channel of the creek and should be classified as an in-stream pond, and that the 2006 310 Permit should not have been issued. Complainants want the BCD to compel the Jolleys to remove the illegal in-stream pond and allow the creek to find and alter its own course within the meander belt.
At the BCD’s November 8, 2011 meeting, Don MacIntyre, an attorney employed by the Montana Soil and Water Conservation Districts, stated that the hearing which the BCD is preparing to hold will only address the one issue of whether or not the pond is within its jurisdiction. He said the request to revoke the two 310 Permits would not be considered as part of the hearing.
An attorney for the petitioners, Colleen Dowdall, disagreed with MacIntyre’s conclusions and indicated that if the hearing did not address all the issues requested that an appeal would likely be made to District Court.
The public hearing is scheduled to be conducted on February 21, 2012 in Darby at the City Hall and is limited to the issue of whether the BCD has jurisdiction over the pond or not. The decision will be based upon the written information submitted by all interested parties. Information that was submitted is available for viewing at the Darby Library and rebuttal information will be accepted and this material will also be available at the library beginning February 14. Library hours are Monday, Tuesday, Thursday, and Friday from 10 a.m. to 6 p.m. and Saturday from 10 a.m. to 2 p.m.