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Emergency Stream Flow For Fisheries Bill Base Stream Flow Law Twenty-five percent of the Average Annual Flow (AAF) of an important fishing stream is the minimum level for protecting the basic life systems naturally occurring in the stream and supporting fisheries. The AAF of a year-round flowing stream is calculated in cubic feet per second (cfs) and measured at stream gauging stations. Government agencies have installed and maintained a system of gauging stations throughout Montana and have bean measuring flows for over 90 years. This stream flow information is easily accessible to the public. In December, 1997, the MT Dept. of Fish, Wildlife & Parks in their latest inventory revealed that 3,714 miles of "important fisheries" are either chronically or periodically dewatered by irrigation each year, leaving stream flows below the point where stream habitat is adequate for fish. Either the fish move out or die. Because native fish pre-date man's diverting of water, it would be constitutional and not a taking of property to allow a minimum of 25% of the AAF to sustain a native fishery in a year-round flowing stream. The Montana Supreme Court on September 24, 2002, delivered a majority opinion that says 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 are valid for fish, wildlife and recreation. The Supreme Court said that these uses can be considered equal with irrigation uses when adjudicating water rights on a river, stream, pond or lake. The ruling reverses the 1988 Bean Lake decision that erroneously set a precedent by implying that the Montana Constitution did not recognize water rights for fish and wildlife. The court ruling legalizes a number of water claims filed by MT Dept. of Fish, Wildlife & Parks in the 1980s, when the Montana Water Court began sorting out pre-1973 water rights. Writing for the Court majority, Justice William Leaphart said Montana "recognizes fish, wildlife and recreation uses as beneficial and valid in-stream and in-lake appropriations of water." The solution to the dewatering problem is to provide some real protection for fisheries without seriously impacting current irrigation uses. The ruling amends the "use it or loose it" water law doctrine, validates the State's claim to water rights for in-stream flows and protects irrigators' right to leave water in streams (that is, not to use up their share) while their water right is still secure. The ruling will be a support for Montana River Action's Emergency Stream Flow for Fisheries Bill in the 2005 Legislature. When a fishery is destroyed by dewatering or thermal pollution, it may take eight years for the aquatic life to naturally reestablish to where a fish can reasonably live in a stream, whereas an irrigator called to cut back on crop irrigation may only have one diminished harvest rather than a total loss for that irrigation season.
Sharing water in drought emergencies to sustain important fisheries, spawning and fish rearing habitats is a fair, acceptable and beneficial use of water. It is in the interest of Montanans to provide the protection of law to fish through a reasonable instream flow of water that is accorded through irrigation water rights under the present first in time, first in right appropriation system. It would be an effective and efficient method of satisfying the public interest in water sharing.
Water Law Water
is a precious and scarce public resource and a valuable common good.
It flows across political and private boundaries and, like the air
we breath, water must remain unpolluted. To retain its purity water
must be protected by municipal, county, state and federal law. The
first water quality law passed in the Montana Legislature was in
1907 as a response to a typhoid epidemic on the Milk River. Sewage
and waste water were being dumped into the rivers and typhoid bacteria
spread through water. Montana is one of the few states in the nation
where rivers flow from the Continental Divide eventually into the
Atlantic, Pacific and Arctic Oceans. It is one of the greatest of
the state’s natural resources as well as a chief attraction
for visitors and tourists. The state has 51,987 miles of year-round
flowing streams. Rivers and streams evolved over eons of time, long before the coming of humans. One who acquires property along these streams does so – presumably -- with knowledge of the values and the hazards that go with it and cognizance of the stream’s natural, seasonal flow and biological life contained within the stream. Water diversion first began in Montana in 1862 when placer gold miners working within mining districts decided how the water was to be divided and the California “prior appropriations doctrine” in allocating water use was adopted. The first user on the stream possessed the earliest priority date and could use the amount of water that his right allowed. Later farmers and ranchers adopted the miners’ “prior appropriations doctrine” in their allocation of water also. Then, in 1908, the court ruled that Indian tribes hold reserved water rights according to their treaty date and have priority over other water rights in the area. The same rule applies to federal government set-asides, whether for National Parks, Forests or Bureau of Land Management. The 1973 Montana Legislature passed the Water Use Act which mandated a general adjudication of all existing water rights in the State. Since then a water use permit process involving 1) filing, 2) public notice, and 3) a public hearing, has replaced the prior appropriations method of obtaining new water rights. Water reservations can also be filed for conservation districts or by towns and cities anticipating future growth and need. Montanans have a constitutional right to a clean and healthful environment. The clean flowing streams of the State belong to the people and are held in trust by the State for the health, safety and use of the people guaranteed in our Constitution. The public trust maintains that the State does not have authority to appropriate water beyond a minimum level needed to protect the aquatic life in our year-round flowing streams. State law says “The public policy is to promote conservation, development and beneficial use of the State’s water resources to secure maximum economic and social prosperity for its citizens, and the water must be protected and conserved to assure adequate supplies for recreation and for wildlife and aquatic values.” Montana State law gives the perspective that the stream system and recreation are important enough to allow sufficient quantities of clean water to be left in the stream. Irrigators who rely on streams for water get it on a first in time, first in right principle with those holding the oldest water rights getting the first withdrawal of water. Water commissioners appointed by State Judges can require junior water right holders to stop diverting water in dry years so those with more senior rights have sufficient water. Most of Montana’s water is legally controlled by ranchers and farmers on the “prior appropriations doctrine” or a first come, first served basis. Three major categories: 1) Claims are rights that were active before the 1973 Legislative Water Adjudication Act; 2) Permits are rights issued since 1973; 3) Reservations reserve water for future uses. Montana Constitution states “All surface, underground, flood and atmospheric waters within the boundaries of the State are the property of the State for the use of its people and are subject to appropriations for beneficial uses as provided by law.” “It is the policy of this State to provide for the wise utilization, development and conservation of the waters of the State for the maximum benefit of its people with the least possible degradation of the natural aquatic ecosystems.” And, “The water resources of the State must be protected and conserved to assure adequate supplies for public recreational purposes and for the conservation of wildlife and aquatic life.” ~ |
