by Sherry Devlin, the Missoulian
Lawsuit stops work on pipeline replacement
Arguing that there was too little environmental review or public notice, environmentalists won a court order on Friday stopping the Yellowstone Pipe Line Co. from excavating a 6-foot-deep trench across the Clark Fork River at Turah.
State District Court Judge Jeffrey Sherlock signed the temporary restraining order nixing YPL’s plans to put heavy machinery in the river next week and replace a 500-foot-long section of its aging petroleum pipeline.
Sherlock scheduled a Nov. 16 hearing on the complaint, filed by the Clark Fork-Pend Oreille Coalition, Alliance for the Wild Rockies and Friends of the Wild Swan against the state Department of Environmental Quality and YPL.
“Montanans really do deserve to have some public input on this process,” said Tracy Stone-Manning, executive director of the Clark Fork Coalition. “This is the state’s largest river (by volume), and they want to dig a trench across it. That is not routine work. There should be some public review.”
“This is bull trout habitat and a Superfund cleanup site,” added Mike Bader, executive director of Alliance for the Wild Rockies. “I’m shocked that the state didn’t think this was a big enough deal to warrant a public process.”
At issue is Yellowstone’s plan to replace a section of the pipeline that is vulnerable to damage by scouring. Because the river channel has shifted since the pipeline was built in 1954, the pipe is now too close to the surface. YPL wants to fix the problem by digging a new trench across the river, not far from the Turah Bridge.
YPL proposed – and state and federal regulators approved – a “wet excavation” that would put machinery in the water while the river was flowing, rather than diverting water around the site. The trenching was to involve the removal of more than 2,200 cubic yards of sediment and gravel.
“We followed all the proper procedures and have all the necessary permits,” said Chuck Uselmann, YPL’s project engineer. “We feel like we have all our ducks in a row. We dotted all our i’s and crossed all our t’s.”
The temporary restraining order was a “complete surprise,” Uselmann said. “It is an unnecessary and unwarranted delay.”
YPL applied for and received permits for the river work from the Missoula County Conservation District, Missoula County, U.S. Army Corps of Engineers, Montana Department of Environmental Quality and the state Department of Natural Resources and Conservation.
Work on the river banks began two weeks ago. Work in the river was to have started on Tuesday.
Uselmann said the public was notified of the project in a legal advertisement published in the Missoulian last July. There was time then, he said, for public comment.
“Now, at the 11th hour, a group is claiming that they didn’t read the paper and see the comment period,” he said. “I can tell you that YPL is very confused why environmental groups want to shut down a project that has gone through a very complete permitting and public comment period.”
Because, answered the environmentalists, there was no real effort to notify the public and there was not nearly enough environmental assessment.
The trenching will churn up “a considerable amount of sediment” which will degrade fish habitat and the river environment, the groups said in their complaint. Sediments in the Clark Fork are particularly troubling because they contain concentrations of heavy metals which accumulated during years of mining and smelting upstream.
According to the complaint, state regulators made no attempt to write an environmental assessment or environmental impact statement analyzing alternatives other than digging a new trench, as required by the Montana Environmental Policy Act. There was no review of the project’s potential degradation of water quality, as required by the Montana Water Quality Act.
Ignoring those requirements is unconstitutional — in light of a ruling this week by the state Supreme Court, the environmentalists said.
Montana citizens have a right to a “clean and healthful environment,” the Supreme Court said. It is a fundamental constitutional guarantee. It is also, the court said, “anticipatory and preventative. Our Constitution does not require dead fish floating on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.”
The complaint filed Friday against YPL and the state likely will be the first test of the new high court ruling, Stone-Manning said. “It seems clear cut. There is no denying that this work would release a massive plume of sediment and damage the river.”
Bader said environmental groups only learned about the project because of a citizen’s tip. “It is difficult for citizens to protect their rights when they don’t know what is proposed,” he said. “The state of Montana is responsible for the welfare of the fish in that river, as a matter of law, and they are shirking that responsibility, as a matter of fact.”
