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Montana State Capitol

Instream Flows for Dewatered Important Fisheries

Summary of proposed bill

The Bill is a remedy for the dewatering of 4,739 miles of Important Fisheries that are identified by “Montana State Fish, Wildlife & Parks Dewatering Concern Areas” list that is periodically updated. The Bill requires 25 % of the Average Annual Flow to remain in streams, in periods of low water to protect important fisheries. According to Montana State Fish, Wildlife & Parks, dewatering means, “a reduction in stream flow below the point where there is not enough water to maintain fish.” Fish must therefore move out or die.

 

Montana Constitution

The sweet, clean flowing waters of Montana are a public interest resource, the same as clean air. The Bill is in compliance with our Montana Constitution which states: “Public trust interests and private property interests are constitutionally protected, and when in competition must be reconciled,” to protect important fisheries. The Bill is a fair and efficient method to share water for important fisheries without having an impact on irrigators.

 

Existing law recognizes fish have a valid beneficial need for instream appropriation of water, and important fisheries have a basic right to a shared adequate flow. There is a legal basis for protecting important fisheries. On September 24, 2002 the Montana Supreme Court ruled “Montana law prior to 1973 does not require a diversion for a beneficially valid appropriation of water.” This means that State claims to water rights for necessary instream flows can be considered equal with irrigation uses when adjudicating water rights on a stream or lake. This reverses the destructive 1988 Bean Lake decision. Judge Leapart said “Montana recognizes fish and wildlife and recreation uses are beneficial and valid instream appropriations of water.”

 

Public Trust

The Bill is based on the public trust, Common Law Doctrine, which has established our North American Model of fish and wildlife management. It is a contract of scientific, ethical, economic and social values set into an operating code of principles that guide fisheries management. There is no specific statutory authority that allows dewatering of Important Fisheries. Therefore dewatering is a violation of the State of Montana’s public trust responsibilities.

 

This Bill is a fair and efficient sharing of water without impacting irrigators. Irrigators use 97.6% of all diverted water. No money for instream flow will be paid to Water Right Holders, to sustain 25% of the Average Annual Flow of water. Important fisheries listed will have a superior right that is limited to 25% of the stream’s Average Annual Flow.

 

Public trust has been reaffirmed in the stream access laws, bridge access court decisions and other legislation, Supreme Court rulings and attorney generals’ actions as they apply to public owned streams. Adequate stream flows are vital to Montana’s tourist industry. Many streams are public thoroughfares for float and wade fishing and scientific research, affirming public trust.

 

No additional personnel, gauging stations, or water diversion structures need to be installed to manage, administer or enforce the provision of this Bill. The on-the-ground, working irrigation rights system of District Judges who appoint Water Masters, Water Commissioners, Ditch Riders, Ditch Corporations, Ditch Companies, irrigators, and all legally elected or appointed people, will continue to do the day- to-day operations. They shall continue to control all water distributions and would be responsible to retain 25 percent of the Average Annual Flow where important fisheries are about to be dewatered.

 

Montana State Department of Natural Resources and Conservation (DNRC) as well as the Montana State Department of Fish, Wildlife & Parks will have no responsibility on the ground for managing, administering or enforcing this Bill, because the on-the-ground, existing irrigation systems will do this work. ~

 

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