Montana Department
of Fish, Wildlife & Parks (MTFW&P) has been a leader in
protecting perennial stream flow in the past. Year-round flowing
streams are increasingly important and a large economic benefit
to communities. We owe it to Montana's future to be a leader once
again.
Purchase
of Water Rights in Perpetuity
In order to satisfy this increasing economic and
intrinsic demand for flowing streams and the values they provide,
water right holders should be allowed to receive and diversify their
income by selling or dedicating their water right in perpetuity to
MTFW&P, while at the same time helping to solve the dewatering
problem.
Water Leasing
Currently, Montana water law allows water right
holders to lease or convert all or a portion of their water right
to instream flow on a temporary basis for up to 30 years, with the
potential for 10-year renewals. Upon termination of the lease, the
water right reverts to its former use. At this time MTFW&P is
not allowed to convert a water right for instream use permanently.
They can lease for short term, but they cannot buy. The leasing program
has worked as an expensive, temporary, short-term fix which only
causes the deferment of the dewatering problem. It is inconsistent
with the long-term goal of keeping fish in streams. Authority to
purchase in perpetuity (willing seller) would be a long-term solution.
Both state and federal Superfund programs, as well as Montana's Natural
Resource Damage Program (Upper Clark Fork) require long-term restoration
of damaged rivers. The temporary water leasing law is inconsistent
with long-term restoration requirements.
Water Law
Water law in the West encourages the maximum diversion
and use of water from our streams. Under current law, if a water
right holder abandons his right, the water becomes available for
appropriation by other diverters. A water right holder can sell his/her
right in perpetuity to another water diverter, but he cannot sell
his right to MTFW&P in perpetuity.
As land use changes and land holdings with senior
water rights are subdivided, we need to ensure that opportunities
to solve Montana's long range dewatering problems are not missed.
Both traditional water users and newcomers buying into lands with
water rights want the option of giving their water back to the stream
and to see it protected there. They would rather continue to divert
their water than abandon their water, as is now required under existing
circumstances.
What is needed is a law allowing water right holders
to sell or dedicate their water rights back to streams for whatever
term they choose, including permanently. It would be helpful to resolve
in-stream flow problems by allowing a water right holder to get financial
assistance in exchange for dedication of his/her right to keep the
stream from severe dewatering.
Tax authorities rule that tax benefits are not
available for donating water rights dedications, if it is not in
perpetuity. Conservation easements can be granted or sold in perpetuity
for tax benefits. Water right holders should also be granted the
right to decide what to do with their property interests and for
how long. It is their water right – it should be their decision.
Communities and participants want long range solutions, not temporary
leasing fixes. States like Washington, Oregon, Wyoming and Colorado
have enacted purchase in perpetuity authority.
Emergency
Stream Flow for Fisheries Bill
- House Bill LC 463 -
The Montana Constitution requires the Legislature to provide adequate
remedies to prevent unreasonable depletion and degradation of minimum
stream flows for important fisheries. There is a legal basis for
protecting important fisheries in times of drought emergencies. It
is in the public interest to perpetuate natural fish resources for
future uses. Flowing streams maintain water quality, contributing
to a clean, healthful environment for citizens Public trust values
determine that 25% of the Average Annual Flow (AAF) in streams is
the minimum needed to maintain basic aquatic life. The AAF is calculated
in cubic feet per second (cfs) and measured at stream gaging stations.
Government agencies have installed and maintained a system of gauging
stations throughout Montana and have been measuring flows for over
90 years. This stream flow information is easily accessible to the
public.
In December, 2003, the MTFW&P 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 MTFW&P 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 lose 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 2007 Legislature.
When a fishery is destroyed by dewatering for 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.
The Emergency Stream
Flow for Fisheries Bill applies to year-round flowing streams listed
on the December 19, 2003 inventory of dewatered streams, which only
includes those streams that support important fisheries, spawning
and fish rearing habitats by MTFW&P.
The Emergency
Stream Flow for Fisheries Bill would take no authority away from
District Judges, Water Courts, Water Commissioners, Water Masters,
ditch companies or ditch riders, or from any legal system that manages
water rights. Authority is rested in their legal judgments to control
all water diversions. When an individual stream reaches a low flow
of 25% of the AAF, then Water Commissioners would begin limiting
water diversions – first in time, first in right – so
that 25% of the AAF remains in the stream to sustain fisheries.
No
additional water management personnel or water measures would be
needed and no new gauging stations be installed. The existing water
right management system will be responsible for assuring that 25%
of the AAF remains in the stream to support fish. This is the stream's
original water right.
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 appropriations
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 laws. 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 river and typhoid bacteria spread through the 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 a 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 also adopted
the miners' "prior appropriations doctrine" in their
allocation of water. 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 lands.
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 streams.
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."
"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." ~
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Gallatin
River at Central Park. Looking down stream from Gallatin
Bridge. Very little flow in river is apparent here.
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