Fearing Future Scarcity, County Thirsting for Water Rights

By Keriann Lynch, 1-23-08

Water appropriation is drastically changing in western Montana and, with future use at risk, Flathead County commissioners have moved to secure water rights held by the federal government.

A still-unresolved water compact with the Confederated Salish and Kootenai Tribes will place unknown demands on Flathead water. Growth is a contested factor. And, last year’s decision supporting a hydroelectric utility’s expansive water rights created a high – if not, impossible – hurdle for new applicants.

But, the bottom line, local lawmakers say, is that water rights in the Clark Fork Basin are either going to become scarce, expensive, or both. And if local government can secure available water rights now, they’ll save the opportunity and affordability of future growth.

In December, commissioners signed a resolution urging Montana’s Department of Natural Resources and Conservation to negotiate with the United States Bureau of Reclamation to determine the availability and cost of water stored behind Hungry Horse Dam. A federally owned dam, Hungry Horse still has unclaimed water rights.

Mary Sexton, DNRC’s director, said her agency has already met with the Bureau of Reclamation to begin the process of assessment. Still, Flathead Valley residents shouldn’t expect to see those water rights open up any time soon. “It’ll be a three- to five-year process at the least,” Sexton said.

Sen. Verdell Jackson, R-Kalispell, has long asserted the DNRC hasn’t protected the use of Montana water by Montanans. He denies the claim that growth has had a measurable impact on the water available; charts of annual water peaks and flow show little overall change despite the valley’s booming growth.

The shortage, Jackson said, is the result of the appropriation and interpretation of excessive water rights given to power generation facilities, namely Avista. Avista Corp. is a Spokane-based utility service that provides power to Idaho and owns the Noxon River Dam on the lower Clark Fork River.

“Because DNRC failed to protect the use of Montana water for Montanans, and didn’t put restrictions on permits for companies like Avista, power companies essentially have water rights that exceed the entire flow of our rivers,” Jackson said.

Last year, the DNRC denied a water use permit for Thompson River Lumber Co., a Thompson Falls business that wanted to divert 250 gallons per minute from the Clark Fork to supply a small power plant. The DNRC said the lumber company couldn’t prove their diversion wouldn’t have an adverse effect on Avista, a senior water rights holder, 40 miles downstream.

Like most Western states, Montana water rights are based on a prior appropriation doctrine, meaning those with the oldest water rights have priority on available water. Avista is high on the pecking order. The utility has water rights, dating from the 1950s, which total 50,000 cubic feet per second – more than double the annual flow of the Clark Fork.

The decision increased standards for new requests for water appropriations, shifting the guidelines from “measurable effect” to “calculable effect.” Previously, if it didn’t change the rate or volume of water available to other water users within the area, DNRC concluded there was no impact. The Thompson River decision changed that guide to zero impact.

Because the Clark Fork typically only exceeds 50,000 cfs 16-24 days each year, if Avista asserts its full water right year round, it seems there would be only a few weeks each year for new water appropriations.

Jackson said that could drastically increase the cost of water appropriation, creating a market for water rights where none had existed by forcing new large water users like subdivision developers, municipalities, commercial and industrial businesses and water districts to purchase existing rights to meet future water needs. And, were Avista to challenge those with junior water rights, the Thompson decision could be a basis for removing existing water appropriations.

Sexton pointed to other avenues of gaining water rights, besides new water appropriations – purchasing from a current water right holder, applying for exempt 35-gallon-per-minute wells, mitigating the effects on a senior water rights holder, or pursuing alternative sources like Hungry Horse Dam.

But Jackson is adamant that Montanans shouldn’t have to seek an alternative to new water rights. There’s enough water, he said, it’s just being poorly controlled.

“The county shouldn’t have to look for alternative sources; DNRC should make it so they can use the ones already here,” he said.