FWP seeking comment on proposed river closure rule

Montana Fish, Wildlife & Parks (FWP) is seeking public comment on a proposed rule that outlines the circumstances under which FWP could temporarily close a portion of the Bitterroot River surrounding the Supply Ditch Diversion Dam for public safety.
The proposed annual rule would allow FWP to close all or a portion of a nearly five mile stretch of the Bitterroot River between Woodside and Tucker Fishing Access Sites when danger at the Supply Ditch Diversion is heightened and alternative ways to avoid the dam (such as walking boats around or taking the river’s West channel) are difficult or impossible to navigate.
The department would be required to reopen the Bitterroot River as soon as the flows fall below 4000 cubic feet per second at the USGS Missoula Gauge or July 10, whichever occurs earliest.
The Supply Ditch Diversion creates dangerous currents that have caused a number of boating accidents over the past several years, including a fatality in 2013. During high flows, fast currents make it very difficult for floaters to stop and carry boats around the dam.
The diversion has been in place for many years, but it was not much of a concern until the past several years when the river shifted to the East channel of the Bitterroot, forcing boaters to float the channel containing the dam.
The proposed rule is intended to serve as an interim solution while FWP and other stakeholders raise funds to complete a modification of the diversion that would allow floaters to safely pass over the structure and irrigators to receive their water. FWP hopes that modifications could begin in spring 2016.
The proposed rule basically sets into law the mediated resolution of a lawsuit filed against FWP last spring when it closed the river under “emergency” authority. Former County Attorney George Corn and Missoula attorney Jack Conners sued the agency at the time, arguing that it was a misuse of “emergency” powers that also involved invocation of rules governing state parks and not rivers. They denied that a state of emergency existed and argued the situation was one of a long identified hazard among many that make floating the river a risky affair. They argued it is not only a risk people enjoy taking, it is a right guaranteed by the constitution and state law.
Corn said he is very disappointed that the agency waited until just before high water to begin the public process to take comment on the new rule. He called the fact that they are asking for comments “just a sham.” But he is also encouraging everyone to make a comment.
Corn said despite the poor timing and the short notice given for the FWP Commission meeting last week it is important for people to comment because the new rule sets a very bad precedent.
“It gives the agency the authority to define what risks a person can take in outdoor recreation,” said Corn. He said rules are needed on the rivers of Montana to protect the resource, but to prevent people from exercising their right to recreate because the agency has decided it’s too risky goes against everything Montana stands for and is known for around the country.
“The Montana outdoors is not a theme park,” said Corn. He said people come from all over to take risks skiing, boating and rock climbing in Montana and for the agency to start making the decision that some things are too risky is very alarming,” he said.
He said there are many other ways to handle the dangerous dam situation but the agency is not pursuing them.
Corn said education and proper warning was a good alternative that works well in most other cases. He said education and proper warnings were used by other agencies, such as the Forest Service and Bureau of Land Management, and the state should follow those examples. He called the new rule “an insidious erosion of people’s constitutional rights.”
The rule proposal and opportunity to submit comments is available online at fwp.mt.gov by following links under “Submit Public Comments” or can be directed to Sharon Rose Region 2 FWP, 3201 Spurgin Rd., Missoula 59804; phone 406-542-5540; email shrose@mt.gov. Comments must be received by 5 p.m. on March 9, 2015.