Upper Clark Fork River Basin

In December 2011, Governor Schweitzer approved a Final Upper Clark Fork River Basin Long Range Priorities and Fund Allocation Guidance Plan that allocated about $110 million in natural resource damage settlement funds for the restoration of groundwater, aquatic, and terrestrial resources in the Upper Clark Fork River Basin (UCFRB).  That approval triggered the development of a Final Upper Clark Fork River Basin Interim Restoration Process Plan that describes the process the State of Montana used to develop restoration plans and fund restoration projects in the UCFRB using these allocated funds.  This Process Plan is also summarized in a Fact Sheet issued May 2012.  Pursuant to this Process Plan, the State finalized the groundwater, aquatic, and terrestrial restoration plans at the end of 2012 and revised the restoration plans in 2016.

SUMMARY OF THE RESTORATION DEVELOPMENT PROCESS

The Governor makes all final decisions on all restoration plans and associated funding.  Prior to a final decision, draft restoration plans are subject of a 30-day public comment period.  In addition to public comment, the Governor considers recommendations from the Natural Resource Damage Program (NRDP), the UCFRB Advisory Council, and the Trustee Restoration Council.
Aquatic and Terrestrial Restoration PlansSection 5 of Process Plan:

An estimated $65.5 million is initially available for funding of projects that will improve aquatic and terrestrial resources, respectively, and related public recreational services.  In September 2012, the State produced draft aquatic and terrestrial plans.  These draft plans, which were developed in consultation with fish and wildlife biologists, were subsequently the subject of public comment and consideration of the Advisory Council and Trustee Restoration Council prior to final approval by the Governor in January 2013.

In 2016 the State reviewed and revised the 2012 Aquatic and Terrestrial Restoration Plans two years after the Governor’s approval.  These revisions also involved additional solicitations from the public of restoration concept proposals for potential inclusion in revised restoration plans.

To assist with the development of restoration alternatives for these draft restoration plans, the State solicited restoration concept proposals from the public, in recognition of the wealth of knowledge and relationships that other entities can bring to the restoration planning process.  Through this solicitation process, which was first introduced in a February 2012 draft version of the Process Plan, the State requested that interested individuals and entities submit abstracts outlining their ideas for projects that would protect or enhance fishery or wildlife resources in Priority 1 and 2 areas or in the aquatic and terrestrial injured resource areas for which the State made restoration claims, or enhance recreational services associated with these resources, such as fishing, floating, hunting, wildlife viewing, and hiking.  In most cases, those proposals submitted by the public that fit with the State’s guidance in the 2012 Process Plan on encouraged types of projects were incorporated, either partially or fully, into the State’s proposed restoration actions covered in this document.

Abstracts of the 84 public proposals submitted in 2016 and 2016 (or a  Summary Table ) are available for download or upon request from NRDP.

The restoration plans describe how and when the proposed restoration actions will be implemented or further developed and what additional review and approval steps, if any, are needed.  Some actions will be developed and implemented by the State and other actions will be developed and implemented by other entities in partnership with the State in a manner consistent with State procurement requirements.

The following describes the process and schedule the State of Montana will use to update and revise the 2016 Final Upper Clark Fork River Basin Aquatic and Terrestrial Resources Restoration Plans.  The 2018 Restoration Plans update is based on the natural resource damage (NRD) provisions in state and federal superfund law and the requirements of the Final Upper Clark Fork River Basin Interim Restoration Process Plan, May 2012 , the 2012 Restoration Plans approved by Governor Schweitzer in May 2012 and January 2013, respectively, and the 2016 Restoration Plans approved by Governor Bullock in January 2016.

The 2012 Process Plan and the 2012 and 2016 Restoration Plans state that not all of the aquatic or terrestrial restoration actions will be known at the time of the Restoration Plans development and provide that those plans are to be reviewed, updated and revised two years after the Governor’s approval.  The 2016 Restoration Plans, Section 6.0, also indicates the updates to the restoration plans will include a public solicitation of additional conceptual restoration proposals.  The 2012 Process Plan at Section 5.4 describes the process for the review and approval of the updates and revisions to the 2018 Restoration Plans.

Since the Governor’s approval of the 2012 Restoration Plans, the State along with its partners have worked on implementing key elements of these plans.  See UCFRB Restoration Fund Annual Report, November 2017 for the most up to date summary of activities and documents that have been prepared to implement and prioritize the restoration actions outlined in the plans.  The State proposes to continue the implementation of these restoration actions, which have already been prioritized, and integrate eligible, new restoration action concepts with these actions.  In addition, the State proposes several edits/modifications to the 2016 Restoration Plans that the State believes are necessary clarifications and will improve projects implementation.  These modifications along with any other changes will be compiled and subject to a 30-day public comment period.

The State does not propose any changes to the fundamental structure of the 2016 Restoration Plans (allocations or priority areas). The State proposes to work within the existing budget amounts for all the resource areas shown in Table 6-1 of the 2016 Restoration Plans and allocate the Restoration Fund interest earned since 2012 subject to the 2012 Process Plan (approximately $8 million to aquatic resources and $3 million to terrestrial resources).  The 2018 update is only for the aquatic and terrestrial restoration resources services; the groundwater resources are addressed in restoration plans approved by the Governor for Butte Silver Bow and Anaconda Deer Lodge counties and are not subject to the revision previsions of the 2012 Process Plan or the 2012 and 2016 Restoration Plans.  The State proposes that new recreation-dominant projects, such as those listed in Section 5 of the 2012 Restoration Plans be eligible for funding, although the funding amount to be allocated is uncertain.

It is important to recognize in 2018 the 2011 Aquatic Prioritization Plan were updated and the following tributaries were added as Priority 1 or 2 streams: Gold Creek, O’Neil Creek, Trout Creek, Rock Creek and Basin Creek above the Basin Creek reservoir. Also included in the update, Dempsey Creek is now in a Priority 3 stream and is no longer considered eligible for projects.

Process for Public Solicitation

The process for updating the 2016 Restoration Plans to the 2018 Restoration Plans is specific to aquatic and terrestrial resource priority areas within the Upper Clark Fork River Basin (UCFRB) and projects with recreation component associated with aquatic and terrestrial Priority 1 and 2 areas or int he aquatic and terrestrial injured resource areas for which the State made restoration claims, with a focus on restored or remediated areas; Section 5 of the 2012 Process Plan describes this process.  Sections 5.1 and 5.2 of the 2012 Process Plan identify the fund allocations and project location restrictions specific to these priority areas, respectively.  Section 5.3 describes the plan development process, including the public solicitation of restoration action concepts.  Additional guidance is provided in Section 5.3 on the types of aquatic and terrestrial restoration projects to be included in the restoration plans.

As recognized in the development of the 2012 Restoration Plans, there is a wealth of knowledge and relationships that other entities can bring to the restoration planning process.  As part of the 2018 Restoration Plans, the State will once again be soliciting from the public, including governmental entities, restoration action concepts that would coordinate or integrate with the 2016 Restoration Plans planning, project implementation, or prioritization as well as protect or enhance fishery or wildlife resources in Priority 1 and 2 areas or in the aquatic and terrestrial injured resource areas for which the State made restoration claims. The State is also soliciting for projects with recreation component associated with aquatic and terrestrial Priority 1 and 2 areas or in the aquatic and terrestrial injured resource areas for which the State made restoration claims, with a focus on restored or remediated areas.

For consideration as part of the 2018 Restoration Plans Update process, interested individuals and entities must complete the 2018 Proposed Restoration Action Concept Abstract Form. The State will also consider proposals by the public, including governmental entities, for revisions to the aquatic and terrestrial plans, including proposals that will improve the implementation of restoration actions that are already included in those Restoration Plans. Restoration action concepts may include the identification of partners whose assistance and cooperation may be helpful or necessary during implementation of a restoration alternative.  Projects included in the 2012 and 2016 Restoration Plans do not need to re-submit their abstracts. The due date for both abstract submittals and proposals is Friday, July 6, 2018.

Integration of Additional Restoration Proposals into the 2012 Restoration Plans

The State will carefully consider incorporating these restoration action concepts submitted by the public, along with State-generated restoration action concepts, in the 2018 Restoration Plans.  Using the legal and policy criteria specified in Section 6 of the 2016 Process Plan and the recent work completed with the implementation of the 2012 Restoration Plans (see list of documents below), the State will evaluate all proposals to determine what actions to include in the 2015 Update. In addition, some, but not all components of a restoration action concept could be included.  This criteria analysis will meet the substantive requirements of the federal NRD law and regulations.  The State may enlist consultant assistance in preparing the 2018 Restoration Plans Update, including cost estimates. The Draft 2018 Restoration Plans will also include a summary of all the restoration action concepts submitted as part of this solicitation and indicate why proposals were not included.

Below are documents that may assist applicants in preparing the required abstract:

Whether a project proposal effectuates the restoration goals specified in the 2018 Aquatic and 2011 Terrestrial Prioritization Plans will be a major factor in the State’s decisions about what projects are included in the 2018 Restoration Plans for further development and implementation.  Attachments 5-2 and 5-3 of the 2012 Process Plan provide additional guidance about the types of aquatic and terrestrial restoration projects, respectively, that are most likely to cost-effectively address restoration needs in priority areas.

The identification of priority areas to focus future restoration efforts in the UCFRB has and will continue to greatly contribute to meeting restoration goals and obtaining the greatest resource benefit from the dollars spent.  Both aquatic and terrestrial prioritization documents emphasize, however, that identifying areas to focus fishery and wildlife protection and enhancement efforts does not constitute any predetermination of the merits of funding a particular project.  A proposed project in a priority area may or may not be a worthwhile funding prospect, depending on whether it appropriately and cost-effectively addresses the factors that adversely affect or limit the aquatic or terrestrial resources in that particular area.

Review and Approval Processes and Public Participation

Similar to the 2012 Restoration Plans, the 2018 Restoration Plans will be produced pursuant to the 2012 Process Plan and generally be subject of the same review and approval steps that were previously used.  The 2018 Restoration Plans will be subject of a public comment period of at least 30 days and consideration by the Upper Clark Fork River Basin Advisory Council (Advisory Council) and the Trustee Restoration Council (TRC).  Following consideration of public input and the recommendations of these two councils, the Governor will make the final decision on the 2018 Restoration Plans.

This review and approval process provides multiple opportunities for meaningful public participation.  The public has the opportunity to provide public comments on the draft revisions during the designated comment period, and also at the meetings of the Advisory Council and TRC at which these revisions are considered.  Input from the Advisory Council also serves as an avenue of public input.  Opportunity for public input will also occur prior to issuance of the 2018 Restoration Plans through the State’s planned public solicitation of aquatic and terrestrial restoration action concepts.

Future Restoration Plan Revisions and Updates

The State proposes that the AC, TRC, and Governor consider whether or not another revision is necessary two years after the Governor’s approval of the 2018 Restoration Plans. The 2012 Restoration Plans took several months to establish contracts and the required administrative tasks necessary to initiate work.  The State and its partners are currently in the process of implementing many of the restoration actions included in the 2012 and 2016 Restoration Plans.  A review after four years is proposed based on the status of implementation of these restoration actions. The frequency of later reviews/revisions can be addressed in subsequent plans.  The revisions to the restoration plans could include a public solicitation of conceptual restoration proposals.

Background on Prioritization

In 2008, the State of Montana concluded its 25-year natural resource damage litigation against ARCO for injuries to the natural resources in the Upper Clark Fork River Basin (UCFRB). These injuries were caused by the release of hazardous substances from historic mining and mineral processing operations in the Basin.

The litigation resulted in three settlements covered by court-approved consent decrees that provided a total of about $231 million in natural resource damages to restore the Basin’s natural resources.

  • About half of these damages are earmarked for restoration of specific injured areas.
  • The other half can be used to restore or replace injured natural resources and lost services throughout the Basin.

For more background on these settlements, see Lawsuit History and Settlements.

In conjunction with the completion of litigation, the State conducted assessments of the fishery and wildlife habitat and populations in the UCFRB that can be used to prioritize restoration of these resources. The following assessment documents and study plans are associated with this prioritization effort:

The State used the results of these assessments to produce draft aquatic and terrestrial resource prioritization plans in 2010 that were subject of public comment and finalized in December 2011.  The priority areas identified in these two prioritization plans will be the focus of future restoration efforts, pursuant to a fund allocation guidance plan approved by the Governor in December 2011 and an interim restoration process plan drafted in February 2012.  Following are links to these four documents.

Update of the 2011 Prioritization of Areas in the UCFRB for Fishery Enhancement (Aquatic Prioritization Plan)

The 2018 update to the Aquatic Prioritization Plan was completed in January.

Restoration Planning Guidance

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