1. The goal of the “Streamflow For Important Fisheries Bill 2011” is to share the streamflows
with irrigators who dewater 4,739 miles of important fisheries in Montana each year, according to the
Montana Department of Fish Wildlife & Parks (FWP) dewatered streams list.
2. The list is a result of research on 423 streams by fishery biologists. Additional research on 288 stream segments revealed that 25 percent of a dewatered stream’s Average Annual Flow (AAF) is sufficient to
sustain a natural fishery.
3. Important fisheries that are dewatered shall require a superior water right of 25 percent of the AAF that
will be retained in the stream to support its fishery.
4. The fishery gets 25 percent; irrigators get 75% of the AAF. Irrigators currently take 97.6 percent of
diverted water in Montana, while 2.4 percent is used by industry, municipalities, power generators and
rural subdivisions.
5. The legislation applies only to those important fisheries listed in the FWP dewatered streams list. FWP
states: “Dewatering refers to a reduction in streamflow below the point where stream habitat is adequate
for fish.” Fish either move out or die.
6. AAF is derived from stream gauge volume data in Cubic Feet Per Second (CFS) gathered for over the
past 107 years by the U.S. Geological Survey (USGS), readily available to the public. AAF is measured
on gauged streams and estimated on ungauged streams.
7. The Streamflow For Important Fisheries Bill 2011 will be administered and enforced by the
local, on-the-ground, existing water rights management system of District Judges, Water Courts, Water
Commissioners, Water Masters, ditch corporations, ditch companies, ditch riders or the local legally
elected or appointed water management system. They shall continue to control all water diversions and
shall be responsible to retaining 25 percent of the dewatered streams’ AAF when the important fishery is
dewatered below the mark of 25 percent of the AAF, during drought emergencies. The Department of
Natural Resources & Conservation (DNRC) and FWP will have no responsibility for enforcement. The
local, on-the-ground, water management system will have all the authority to manage this system.
8. No additional water management personnel will be needed to meet the requirements of this bill. No
additional water measurement personnel or additional water diversion structures nor any new gauging
stations need be installed to sustain 25 percent of the AAF, which is the important fishery superior water
right managed by the local, on-the-ground system.
9. Neither DNRC or FWP shall be involved or responsible for any on-the-ground regulation or enforcement
of the requirements of this bill.
10. No money shall be paid to irrigation permit holders if they are required to allow water to be retained in
important fisheries to maintain a flow of 25 percent of the AAF during drought emergencies.
11. Dewatering a stream to the point of warming is a public health hazard, causing thermal pollution, huge
algae growth and low levels of dissolved oxygen. Stagnant water kills beneficial aquatic life and
increases the numbers of biting insects. It requires eight years for a fishery to be reestablished following
severe dewatering while an irrigator will only loose part of his crop with dewatering for that year.
12. All irrigation water right holders shall be called upon to give equally in order to maintain 25 percent of
the AAF to protect dewatered important fisheries.
Part II
Public Trust Law
1. The bill is based on the public trust, which is the common law doctrine that established our North
American Model of fish and wildlife management. The bill is a fair, efficient method of sharing water
without seriously having an impact on irrigators. The model is a contract of scientific, ethical,
economic and social values set into an operating code of principals that guide fisheries
management.
2. There is a legal basis for protecting important fisheries in drought emergencies.
3. There is no statutory authority permitting the dewatering of Montana’s important fisheries.
Therefore, it is a violation of the states public trust responsibilities to tolerate dewatering of a
stream.
4. The Montana legislature has a constitutional responsibility to legislate for a clean and healthful
environment, protect water quality and to guard public trust principles.
5. Existing law recognizes fish have a valid beneficial need for instream appropriations of water, and
important fisheries have a basic right to a shared adequate flow. A water right is a permit to use, but
not to own as material property.
6. It is the duty of the legislature of 2011 to provide real legislative protection of important fisheries
that mandates a sharing of 25 percent of the Average Annual Flow (AAF) with irrigators who would
then receive 75 percent of the AAF instead of 100 percent.
7. The sweet, clean flowing waters of Montana are a public-owned resource—the same as clean air
and must not be owned like private property.
8. The public trust interest and private property interest are constitutionally protected and, when in
competition, must be reconciled to avoid the annual 4,739 miles of dewatered important fisheries,
listed on Montana State Fish Wildlife & Parks (FWP) dewatered streams list.
9. On September 24, 2002, the Montana Supreme Court a reached a majority opinion, saying, “Montana law prior to 1973 does not require a diversion for a valid appropriation of water.” This
means that State claims to water rights for instream flows can be considered equal with irrigation
uses when adjudication water rights on a stream or lake. This reverses the destructive 1988 Bean
Lake decision which wrongly said that the Montana Constitution did not recognize water rights for
fish and wildlife. Justice William Leaphart said, “Montana recognizes fish, wildlife and recreation
uses are beneficial and are valid instream appropriations of water.”
10. Public Trust has been reaffirmed in the stream access laws, bridge access court suit decisions,
handed down through legislation, supreme court actions and attorney generals rulings as it applies
to Montana’s public-owned streams.
11. Sport fishing adds $730 billion to our national economy annually. Adequate streamflows are vital
to maintain Montana’s famous fishing industry and would protect water rights to assure legal
delivery to crops and livestock.
12. If 25 percent of streamflows for important fisheries are not reserved at this time, there is a danger
when federal takings of our water is diverted to arid southwestern urban centers, there will be very
little water left for irrigation, fish and wildlife, and we will all be the losers.
13. Many of Montana’s streams are public thoroughfares for float or wade fishing and scientific
research all affirming the public trust as it applies to the streams and rivers.
14. The Montana Constitution in Article IX states, “All surface, underground, flood and atmospheric
waters are the property of the State for the use of its people.”
Joe Gutkoski
President, Montana River Action
MontanaRiverAction.org
406-587-9181
