Concerns raised over proposed removal of Elbow Lake dam

ELBOW LAKE – Residents on Elbow Lake are facing what they feel is an inevitable decision by the Montana Fish, Wildlife & Parks and Montana Department of Natural Resources and Conservation to remove and remediate the Elbow Lake dam.

While some property owners and lessees feel this will negatively impact the ecosystem, recreation opportunities and property values for years to come, the Draft Environmental Assessment released Sept. 30 proposes the project is necessary to remove the unauthorized, artificial structure in the lower mainstem of the Clearwater River. The proposed alternative in the EA is to remove the dam and restore the streambed to its approximate historic natural condition and elevation.

Comment on the EA will be accepted until Oct. 29.

Elbow Lake History

The Calhoun family purchased property on the north end of Elbow Lake in 1970. Their family has spent the summer there ever since.

Katie Calhoun said the weir (referred to as a dam in the EA) was in place when her family first arrived at Elbow Lake and it was not new. Documents for the Calhoun property indicate that the weir was first in place in the late nineteenth century. In 1970, there were old docks along the shoreline assuming a certain water level.

Calhoun believes the EA's claim that the dam was originally created more than two decades ago greatly understates its longevity.

Many of the residents define the water impoundment structure as a weir, instead of a dam as it is called in the EA, because it allows water to flow over and through it. While all weirs are dams and impound water, dams only allow water passage through a spillway.

According to the EA, in the spring, individuals re-installed displaced rocks and boulders to re-establish the dam to create an enhanced lentic environment.

The dam was originally authorized by the Missoula Conservation District, 2006, Natural Streambed and Land Preservation Act "310" permit. According to the EA, this permit was issued under the assumption that a valid and legal water right existed. When all submitted claims were extinguished (Montana State Water Court, Case 76F-22), it was evident that no valid and appropriate water right was in place that justified maintenance of the structure.

According to the DNRC and FWP, a letter from FWP Water Resource Specialist Mike McLane was sent to the head of the Elbow Lake Homeowners association in 2013. The letter stated that due to the Water Court's finding in 2006 and the adoption of the Water Master's Report in 2013, the Association should not replace this rock weir diversion.

This was followed by the cancellation of the 310 permit by the Missoula County Conservation District due to permit non-compliance since the permittees neglected to remove part of the dam the previous fall, as well as the Water Court's order. Other required permits and authorizations, including the U.S. Army Corps of Engineers 404 permit and DNRC Land Use License, were never obtained.

Calhoun remembers her father Roland presented the Elbow Lake Homeowners Association's position on the importance of the Elbow Lake weir for natural wildlife and recreation and pointed out its longevity at a DNRC meeting in 2016. He presented solutions about how best to maintain the weir and assured those present of the landowners' commitment to adhere to DNRC requirements, obtain necessary permits and volunteer to do the work.

Calhoun said Roland was told he was too late. The decision had already been made to not maintain the weir and everyone on the lake should have received a letter from the DNRC. After talking with several other landowners, Calhoun said no one recalled receiving the letter. There had been no discussion she was aware of about removing the weir.

The Calhouns pursued many avenues to appeal the decision as it was presented at the 2016 meeting. They even hired lawyers to investigate how to legally maintain the weir but came up empty handed. However, they could never get an answer as to why the Water Court ruling in 2006 for Elbow Lake conflicts with the "Water Rights in Montana" report for the Supreme Court published in 2014 by the University of Montana School of Law. The report stated, "Generally, Water Court decrees describe water rights as they existed on or before July 1, 1973, even if those rights are used differently today."

"This is a historic use that has been grandfathered, or was grandfathered in some form or another, consciously or unconsciously," said Calhoun. "Part of our frustration was the lack of collaboration, consideration or communication."

New lessees on the south end of the lake volunteered to knock the dam down, saving the state money with the agreement that they could restack the rocks next summer.

"We are part of a new guard both my brother and myself and our neighbors," said Greg Browning who purchased lease property in 2017. "We are really serious about helping with this and coming up with a compromise [since the old guard did not comply with the permits]."

According to DNRC Clearwater Unit Manger Kristen Baker-Dickenson and FWP Fisheries Biologist Ladd Knotek, the dam was left to naturally degrade. However, individuals continued to reconstruct the dam annually. Both agencies have known about the reconstruction of the dam since 2014 and have repeatedly attempted to informally resolve the situation by removing sections of the dam.

"Our efforts to discourage reconstruction have been unsuccessful," wrote Baker-Dickenson and Knotek in a joint response to the Pathfinder. "The structure is an illegal water impoundment. The DNRC and FWP do not want to be complicit in allowing this illegal activity on state-owned property and accommodate inconsistent river/water management and permitting."

Property owners and lessees received a letter dated June 21, 2019 informing them that DNRC and FWP will be removing the dam in the fall of 2019. Reasons cited included impeding the migration of native fish including bull trout; illegally impounding water to the detriment of downstream water right holders; lack of authorization and permitting requirements and trespass to State Trust Land administered by DNRC.

"This caught us off guard," said Calhoun. "Maybe we are naive and we don't understand this process but we had hired local experts to look into it. The opacity of the process really took us by surprise."

"Lori and I were surprised to receive this notification without any discussion between the stakeholders and the State Agencies involved," wrote Jon Watson, visitor for more than 40 years and lease holder since 2001. "For many years the lease holders have been good stewards of the area, believing that we had the support of DNRC." 

The DNRC and FWP addressed questions and concerns in another letter dated Sept. 3. The draft EA was released Sept. 30 with dam removal listed as the preferred alternative of the agencies.

The cost is expected to range between $3,000-$5,000 that will be covered by DNRC, FWP and grants. The work is expected to take less than a day this fall.

Opposition and response

Browning and his brother Brian purchased a cabin in 2017 on the south end of Elbow Lake on leased DNRC land.

"This was an absolute dream come true," said Browning. "We found the perfect property for us. We are in the process of purchasing the land from the DNRC."

When they purchased the property there was no mention of the lake being returned to what Browning called, "a babbling brook, as some old-time neighbors described what it looked like when their parents were young."

According to the EA, the removal of the structure is expected to reduce the water level up to four feet for up to a half mile upstream of the dam and flooding of peripheral riparian zones and wetland areas would be reduced. Although project proponents acknowledge minor site-specific and species-specific environmental benefits, the primary rationale for retention of the structure involves enhanced social amenities. Unfortunately, these amenities are not associated with a valid water right or aligned with natural resource management direction for responsible agencies.

"The reality for us is we will no longer be able to traverse up to the larger portions of the lake, fish and enjoy the lake," said Browning.

The Sept. 3 letter stated that recent real estate assessments associated with the residential lease sale program note that the waterfront is river frontage and not lake frontage due to the impermanent and unauthorized nature of the cobble dam. However, residents pointed out that all documentation, including old maps and current lease agreements, refer to the waterbody as "Elbow Lake."

"By removing the weir they are completely changing the characteristics of the property. I'm really worried about our property values," said Browning.

Watson feels property values will suffer because the lake will be inaccessible for those on the south end.

"There is no discussion in the EA regarding reduced revenues to the School Trust Fund caused by lower property values and corresponding lower lease fees," wrote Watson. "I see several checked boxes in the EA that indicate that mitigation is possible, but what is missing is specific mitigation proposals."

Browning said contrary to the photos of the dam that the DNRC and FWP included in the EA, the weir is about a third that size and his children rode standup paddleboards over it and others rafted over it all summer.

"The difference between having some water and no water is a really big difference," said Calhoun. "If they take this away, there won't be any recreational floating or you are going to have to carry your raft, tubes or kayaks."

While the Sept. 3 DNRC and FWP letter stated that effects associated with changing water levels will not be analyzed as they are the result of a ruling by the water court and are beyond the scope of proposed activities, many residents feel the potential impacts to the environment are downplayed or not addressed.

"It is surprising that the EA states that an up to four foot drop in water level will only create a minor impact without any scientific supporting evidence," wrote Watson. "We find it unbelievable that two state agencies charged with land and resource management propose draining significant wetlands without a thorough, unbiased environmental review."

Calhoun questioned what historical benchmark DNRC and FWP propose to restore.

"There has been an whole ecosystem that has build up [including] otters, beavers, ducks and loons in the wetlands [in the last half century]," said Calhoun who has noticed a decline in ducks, loons and crawfish since the weir has not been maintained. "Those will go away because the wetlands will completely dry out."

The EA recognized a mixed impact on wildlife. The larger, deeper water body benefits some waterfowl, beaver and fish species while shorebirds, amphibians and other species may benefit from shallower wetlands.

Calhouns said the number of fish has decreased very visibly since the weir hasn't been maintained.

"We used to have schools of minnows and large groups of fish in the evening, and those have largely gone away as the water temperature has increased," said Calhoun.

Knotek said the deeper water with less flow velocity favors illegally introduced northern pike and smallmouth bass. They are species of greatest concern in this context because of their ability to reproduce prolifically, expand in distribution and affect many other aquatic species via predation and competition.

"Overall, FWP considers unmodified, natural riverine habitat to be the preferred and most beneficial state for this river reach," stated the EA.

FWP specifically highlighted the importance of the lower Clearwater River as a major connective corridor for fish between the Blackfoot River and the upper Clearwater Basin. More recent information, including bull trout genetic assignment results (Knotek et al 2016), confirmed the importance of connectivity for bull trout and other salmonid species migrating within the greater Blackfoot watershed. The dam can threaten this connectivity for upstream migrants and undermine positive efforts to enhance native and wild fisheries.

Knotek said improving connectivity has been a large-scale, coordinated effort in the Clearwater for over a decade with substantial investment. All other impoundment structures in the Chain of Lakes have permits and legal water rights or have been removed. The irrigation diversion dam just above Highway 200 has legal water rights and permits. Knotek said FWP and partners are working with the irrigators to relocate, mitigate and ultimately remove it.

The EA recognizes that several neighboring state lessees and local property owners object to removing the dam. However, it reports perceived overall public controversy is low and it is listed as a minor impact that can be mitigated.

"That is easy to say when it isn't your family," said Browning who was offended by this categorization. "That is the problem, no one looks at what is the impact to humans. When did people stop mattering?"

Browning continued, "What we are hoping for and what our community is hoping for is a reasonable compromise. Why can't we work through this and make it a win-win for everybody? We will get the permits and do what we need to do. We just want to keep Elbow Lake with water in it."

Watson wrote that the agencies are making a policy decision, at the staff level, through their actions. These policies have ramifications and set precedent throughout the region and state for other areas with similar operations and similar wildlife and environmental  impacts.

"The people of Montana, not just Elbow Lake or Seeley Lake, should demand transparency of our state government agencies.  Actions like this do not lead to trust building - it erodes trust and does not showcase good faith in bringing everyone to the table to have a robust conversation about the impacts and possibilities," wrote Watson. "It's clear that these state agencies have an agenda and one outcome they want to see and would prefer to have that agenda pushed through quickly with little or no input from the impacted stakeholders."

The Draft EA is available at http://fwp.mt.gov/news/publicNotices/environmentalAssessments/restorationAndRehab/pn_0174.html. Comments can be made on the website, emailed to Sharon Rose at shrose@mt.gov or mailed to 3201 Spurgin Road, Missoula, MT 59804. Comments must be received by FWP no later than Oct. 29. For more information pertaining to this proposal, please contact Knotek at 406-542-5506 or Iknotek@mt.gov or Baker-Dickinson at 406-244-2381 or kbaker@mt.gov.