Subordinate Power Generation Water Rights

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December 30, 2004                                          


Dear Legislator:

Water rights issues threaten to stop economic development in the watershed of the Clark Fork River and have implications statewide.  A lasting solution will require legislative action. In this letter, I will explain some issues and present a solution.  While I see this as a statewide problem, my analysis details problems in the Clark Fork Drainage; these same problems are paralleled by similar problems in eastern Montana as well.


WATER SUPPLY PARADOX   In the course of my four years of service on the legislatively funded task force that is addressing the Clark Fork Basin Water Management Plan, I have encountered a paradox with profound implications for domestic, economic and natural resource water use policy in Montana. On the one hand, there is no long term decline or practical shortage of water in the Clark Fork Basin's watershed -- even during droughts we can and do irrigate our fields, supply water to our homes, schools, and industries, generate billions of kilowatt hours of electricity through hydropower dams, and still send vast quantities of fresh water to the mighty Columbia River.  On the other hand, because of an inexplicable and possibly inaccurate interpretation of water rights by power generation facilities, there may be a legal shortage of water that threatens to stop economic development in Western Montana.


BACKGROUND   The Clark Fork drains 22,000 square miles of Montana, discharging an annual average of approximately 20,000 cubic feet per second (13 billion gallons per day) of water at our border with Idaho. Dams to harness the river's power were built at Thompson Falls and Polson by Montana Power early in the twentieth century, and, after World War II, by Washington Water Power (now Avista) at Noxon Rapids and just over the border in Idaho at Cabinet Gorge. Avista's dams are big. At Noxon Rapids, the turbines can handle 50,000 cfs (32.3 billion gallons per day), a level of stream flow that is reached and even exceeded only during the spring run off, which peaks near the beginning of June. Stream flows during the rest of the year are much lower, so running the generators at Noxon Rapids at full power is possible only for short periods.
February 20, 1951, Washington Water Power (Avista) filed a notice of appropriation for a water right of 35,000 cfs with a priority date of 1951. WWP refilled a Statement of Claim in 1982 within the Montana Department of Natural Resources (DNRC) claim filing period to identify existing claims. They claimed a flow that is almost double the 20,000 cfs annual average flow of the Clark Fork River. Avista added generation capacity in 1959, claiming a water right with that priority date and in 1974 requested and was granted an additional permit, all to take advantage of high river flows.  The 1974 Permit capped the cumulative Avista hydropower water rights flow rate at 50,000 cfs but added no additional water volume.  Avista ended up with a water right of 50,000 cfs.  The 50,000 cfs is the peak capacity of the Noxon Rapids dam, but Avista advocates they are allowed to generate at that flow during any time within their period of use. It appears, and Avista claims, that the water right is for 50,000 cfs for 24 hours a day, 365 days a year; which is 36 million acre feet per year, two and one half times the amount of average yearly flow of the Clark Fork River (14 million acre feet per year).  Even when the claim was decreed by the Water Court in the 76N Temporary Preliminary Decree, which lacked a total claimed volume and a general year-around, flow through, non-consumptive use standard was applied and a volume of 29,248,264 acre-feet was calculated. The highest yearly volume of water on record was 21 million acre feet in 1997.  (The United States Geological Survey (USGS) has been measuring river flows for 92 years).  The Clark Fork River exceeds 50,000 cfs only 22 days a year on the average.


In 1951, Montana's legislature enacted 85-1-122 (Montana Code Annotated):


 "The waters of the Clark Fork River may be impounded or restrained within the state of Montana for a distance not exceeding 25 miles from the Idaho-Montana boundary line by a dam [the Cabinet Gorge Dam] located on said river in the state of Idaho and constructed by any person, firm, partnership or corporation authorized to do business in the state of Montana. Any present or future appropriation of water in the watershed in the state of Montana for irrigation and domestic use above said dam shall have priority over water for power use at said dam."


Because Noxon dam is located within the aforesaid 25 mile impoundment authorized by 85-1-122 MCA, it therefore stands to reason that conditions placed upon the Cabinet Gorge dam may also apply to the Noxon Rapids dam.   


PROBLEM   Since DNRC neglected to put restrictions or other detail on Avista’s claimed water rights, Avista has insisted that they have a year-around right to water use at 50,000cfs and when they are not getting that amount they can:


  1. Make a call on the junior water users (those who have received a water right after 1951).  There are about 26,000 surface water rights in the Basin of which 8,000 are junior to Avista’s most senior right and about one third of the junior water rights are municipal.
  2. Contest applications for new water rights (surface and ground water).
  3. Lobby the State Legislature to close the entire Clark Fork River Basin to new water rights (extends from the Flathead to Butte).


The USGS stream flow data were available to both the State of Montana and Washington Water Power (Avista) at the time of the Noxon dam's design, construction and upgrades.  The data clearly documented the river's limits.   It was reasonable and desirable that Avista be given the right to run all the water that reaches their dam through their turbines as run-of-the-river hydro generation.  However, their water claim seems to have no restrictions and is much greater than the historical flow of the river.  In strict first in time, first in right, policy, this situation may give Avista the power to stop people with junior water rights  (after 1951)  from using water up stream, stop the applications for new water rights permits, and then because of the shortage they have created sell water up stream.  They then can use that same water which they have sold to generate electricity when it eventually reaches the dam.  This type of speculation was not the intent of their non-consumptive hydropower water rights when they were issued.


SOLUTIONS   In 2001, I carried HB397 which funded the Clark Fork River Management Plan which has just been completed and is available through the DNRC web site:  Avista Corporation agreed to participate in the development of the plan instead of seeking a basin closure to new surface water rights during the 2001 session.  It is much better for their public image if they can attain their goals through a public process rather than direct confrontation.  In spite of the fact that I had provided data (analysis attached) showing that consumptive use of the river over the last 45 years by humans -- our friends and neighbors -- has had no measurable impact on the water available to Avista to generate electricity, Avista in June of 2004 contested a new water right application by the Thompson Fall Cogeneration Plant and tried unsuccessfully to add a basin closure to all new water rights (surface and ground water) to the Clark Fork River Management Plan.



Avista's disappointing behavior, my service on the task force, and the state's past oversights have led me to conclude that deficiencies in Montana's statutes regarding power generation water rights must be clarified or corrected. I therefore have asked for the preparation of a bill draft providing that power generation water rights are subordinate in priority date to all other water rights in Montana.  In the case of Avista, this action will have no adverse impact on Avista’s capacity to generate electricity because water depletion by humans is so small in comparison to the 14.2 million acre feet of average flow of the Clark Fork that it presently cannot be measured.  In fact, the average flow of the Clark Fork River for the 45 years before Avista’s dams were built was 13.9 million acre feet; for the 45 years after the dams were built, the average was 14.7 million acre feet (USGS data).  This is an increase of about 800,000 acre feet. Avista will also have the flexibility to figure out how they can use the approximately 671 thousand acre feet of water to generate electricity they are now spilling each year.


Similar instances of hydropower water rights challenging other potential users can be found on the east of the Rockies, where new applications are being contested.  Hence, this is a state wide issue that demands attention of all legislators.  One of our State’s most valuable resources is in danger of being controlled by a few corporations for their benefit, rather than the benefit of the citizens of the state.  Our ability to promote development and growth throughout the state of Montana is at stake.
I invite you to join with me in moving this legislation. We have a responsibility to correct past mistakes and use water to the best benefit of all of the citizens of Montana as stated in our Constitution and state law.  Power generation non consumptive water rights should make use of the water available in the river when it reaches the dam and nothing more.




Rep. Verdell Jackson                

555 Wagner Lane

Kalispell, MT  59901

To see the data click on the topic below:
Data is from the year 1911 to 2000.

Clark Fork River Flow at Plains

Clark Fork River Flow At St Regis

Clark Fork River Flow At Polson

Historical Flow Analysis