Open letter to the Montana Department of Natural Resources and Conservation in response to the draft environmental assessment regarding the removal and remediation of Elbow Lake Dam:
Our family is one of over 20 that own a cabin on Elbow Lake. Although we have been owners for only a few years, many families have had cabins on the lake for decades. Our family has come to love this beautiful portion of the Clearwater River watershed. We are devastated by your proposed action.
On page 12, Environmental Assessment Conclusion, you state: “Is an Environmental Impact Statement (EIS) required? No. We conclude, from this review, that the proposed activities would have an overall positive impact on the physical and human environment and will therefore not require the extensive analysis associated with an EIS.”
Your statement, and subsequent conclusion, is “arbitrary and capricious,” which means “doing something according to one's will or caprice and therefore conveying a notion of a tendency to abuse the possession of power.” To imply your actions will have a positive impact on those who have cabins on this wonderful lake is idiocy. Throughout your draft assessment you imply lakefront property is the same as riverfront property. This is a false assumption; the aesthetic, scenic, property value and recreational opportunities of a lake are not proportional to riverfront property. An EIS is definitely warranted.
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On page 3, Project Overview and History, you state: “Although the modified structure was originally authorized by a local permitting entity (Missoula Conservation District, 2006, Natural Streambed and Land Preservation Act '310' permit), this permit was approved 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, so the 310 permit was discontinued.”
To obtain a Montana 310 permit there are many requirements, but two of those requirements are notification of Montana Fish, Wildlife and Parks, and permission from the landowner. The State of Montana is the landowner and you (DNRC) are responsible for administration and management of this property. If the DNRC or Montana FWP had a problem with this permit, they should have made that fact known before the permit was issued — but one thing a 310 permit does not require is water rights! Many projects are undertaken every year on streams and rivers by entities that do not have water rights. All Montana water is owned by the State of Montana; therefore, the cabin owners did have a legal right based upon a valid 310 permit and it should not have been discontinued by DNRC.
Our family (and I am certain most other cabin owners) certainly do not want to involve the Montana taxpayers in an expensive, time-consuming and hurtful lawsuit, so please make a sincere effort to find a way to work with the people who will be the most affected by your proposed action. Please do not implement your proposed decision until other options have been honestly explored.