Chapter 1 History and Background

Origin

The 2001 Montana Legislature passed House Bill 397, “An Act Establishing the Clark Fork River Basin Task Force….” The bill, signed into law by Governor Martz, requires the Governor to “[D]esignate an appropriate entity to convene and coordinate a Clark Fork River basin task force to prepare a water management plan for the Clark Fork River basin pursuant to 85-1-203” of the Montana Code Annotated (MCA). See Appendix 1 for a copy of HB 397.

In response to this legislation, on July 2, 2001, Governor Martz asked the Montana Consensus Council (MCC) to “take the lead in organizing, convening, and facilitating a task force to develop a water management plan for the Clark Fork River basin in Montana.” In passing HB 397, the Legislature provided $120,000 to support its implementation beginning in Fiscal Year 2003, which began on July 1, 2002.

HB 397 states that all watersheds and viewpoints within the basin should be adequately represented on the Task Force.

Prior to convening the Task Force, MCC prepared a situation assessment to identify the people and groups concerned about water management in the Clark Fork River basin, understand and document their interests and concerns, and examine how water management issues are now being addressed and how they are likely to be addressed in the future.

Purpose

The purpose of the Task Force, as defined by HB 397, is to prepare a water management plan for the Clark Fork River basin that (1) identifies options to protect the security of water rights; (2) provides for the orderly development of water; and (3) provides for the conservation of water in the future. The water management plan will be submitted to the Legislature and the Governor by September 2004. In the process of developing the water management plan, the Task Force is required to examine existing laws, rules, plans, and other provisions affecting water management in the Clark Fork River basin. The Task Force is also required to provide opportunities for public participation in the development of the water management plan.

Methodology

Convening the Task Force During the situation assessment, MCC developed a list of people and groups concerned about water management in the Clark Fork River basin. Based on that list, and the directive in HB 397 that all watersheds and perspectives in the basin must be represented, MCC invited people and groups to participate on the Task Force. Those interested selected their own representatives to participate on the Task Force. A list of Task Force participants who developed the basin water management plan is shown in Table 1.1. A representative of the City of Missoula participated during 2003 but was forced to withdraw because of time constraints. Representative Verdell Jackson, who sponsored HB 397, served on the Task Force in an ex officio capacity.

Draft Clark Fork River Basin Water Management Plan Chapter 1 Page 1 August 2004 Developing the Management Plan The Task Force met for the first time on July 23, 2002, and met almost monthly another 24 times through adoption of the plan on August 16, 2004. At its second meeting on August 26, 2002, the Task Force adopted ground rules and a work plan to guide its activities in developing the management plan. The ground rules, which are included in Appendix 2, set forth the Task Force participants, their roles and responsibilities, the decision-making process, and procedures for relating to the media and general communications. The ground rules also specified the roles and responsibilities of the two state agencies assisting the Task Force, MCC and the Water Resources Division of the Montana Department of Natural Resources and Conservation (DNRC). MCC was responsible for process support, including meeting facilitation and logistics, meeting summaries, and drafting Task Force documents, including the water management plan. DNRC provided technical information and advice and acted as the project fiscal agent. Consultants were also retained to draft profiles of the basin watersheds (see Chapter 3) and report on the basin’s economic and demographic trends (see Appendix 3).

Development of the management plan began with a series of expert briefings to provide a shared understanding of basin hydrology and water use, Montana water law and the water appropriation process, and existing constraints on basin water management. The Task Force also developed a shared vision of how basin waters should be used and managed (see Chapter 2). The Task Force then identified and discussed issues arising from the three statutory plan mandates and alternatives for addressing them: identify options to protect the security of water rights; provide for the orderly development of water; and provide for the conservation of water in the future (see chapters 6, 7, 8, and 9). Chapter 10 discusses a strategy for overseeing implementation of the plan and for revising it as warranted as basin conditions change. From the alternatives, the Task Force developed the recommendations and conclusions included in Chapter 11.

Public Participation Because they did not see an issue of immediate and compelling public interest, Task Force participants opted not to conduct formal public meetings until after the draft plan (including alternative recommendations to which the public might respond) was written. Throughout plan development, however, individual Task Force members discussed various topics with their constituents. The Task Force also printed a newsletter, Clark Fork River Basin Water Plan News , which discussed the Task Force’s legal mandate and the three mandatory plan topics, protection of the security of water rights; the orderly development of water; and the conservation of water in the future. After the draft of this plan was written and distributed in both summary and complete form via the internet and through paper copies, Task Force members held meetings to solicit oral and written comments during July 2004 in Deer Lodge, Upsata Lake near Ovando, Hamilton, Ronan, Thompson Falls, and Kalispell. The Task Force then revised the draft plan in light of the public comments.

Plan Adoption After considering the oral and written public comments, the Task Force adopted the plan pursuant to its ground rules on August 16, 2004. The decision rule in the ground rules called for participants to seek to make decisions via consensus. They also provide for a fall-back decision rule should consensus prove elusive. The Confederated Salish and Kootenai Tribes declined to sign as accepting the Plan. The Tribes' reason for declining is plainly stated in their letter: "[Clark Fork River] Basin adjudication and subsequent effective water management planning are dependent upon quantification and settlement of Basin reserved water rights. As [...] pointed out above, the Tribes, the United States, and the State of Montana are in the process of negotiating a compact to effect the

Draft Clark Fork River Basin Water Management Plan Chapter 1 Page 2 August 2004 quantification and settlement of Tribal reserved rights. Because of this ongoing process, the Tribes have determined that it would be premature for the Tribes to sign as accepting the Plan. The Tribes have also determined, for the same reasons, that it would be premature for the Tribes to participate in the implementation phase of the Task Force as contemplated in Chapter 10." A copy of the letter from the Tribes explaining their position on plan adoption is included as Appendix 5 below. Because of the Tribes’ position, the plan was adopted by majority vote.

Montana Consensus Council

MCC is an agency of state government attached to the Department of Administration for administrative purposes. It was originally created by Governor Racicot by executive order in 1994 after a group of farmers, ranchers, environmentalists, legislators, and state and federal officials agreed on the need for an ongoing forum to help citizens and officials resolve natural resource disputes. In 2003, MCC was authorized and created statutorily by the Montana Legislature. The mission of MCC is to promote effective natural resource and other public policy through public processes that are inclusive, informed, and deliberative. MCC is impartial and non-partisan; it is not an advocate for any particular interest or outcome.

Draft Clark Fork River Basin Water Management Plan Chapter 1 Page 3 August 2004 Table 1.1 Clark Fork River Basin Task Force

Name Organization Area/Interest Represented

Matt Clifford Clark Fork Pend Oreille Coalition Conservation/ Environment

Elna Darrow Flathead Basin Commission Flathead Lake

Jim Dinsmore Granite Conservation District & Upper Clark Fork Upper Clark Fork River Basin Steering watershed Committee

Holly Franz PPL Montana Hydropower Utilities

Steve Fry Avista Hydropower Utilities

Harvey Hackett Bitter Root Water Forum Bitterroot River watershed

Fred Lurie Blackfoot Challenge Blackfoot River watershed

Eugene Manley Granite County Basin Local Governments

Gail Patton Sanders County Commissioner Basin Local Governments

Bill Slack Joint Board of Control Flathead River watershed below Flathead Lake to the confluence with the Clark Fork River

Marc Spratt Flathead Conservation District Flathead Basin above Flathead Lake

Jay Stuckey Green Mountain Conservation Clark Fork River Watershed below District Flathead River confluence

Phil Tourangeau Confederated Salish and Kootenai Indian Tribes Tribes

Rep. Verdell Jackson Montana House District 79 Legislature Ex Officio Chapter 10 Plan Implementation

Pursuant to direction from Montana statutes, this plan compiles information about basin water resources and raises, discusses, and makes recommendations addressing key basin water issues. The ultimate value of the plan, however, will be determined not by the plan itself, but whether and how it is implemented. This chapter proposes a method for plan implementation. Because conditions in the basin are not static, the Task Force also proposes a means for evaluating and modifying the plan as needed.

Task Force Continuation

This plan was drafted not by a government agency but by the Task Force, which was composed of representatives of a broad range of local basin water interests. The Task Force, rather than a government agency, therefore, has the greatest stake in overseeing implementation of the plan and for maintaining its utility as basin conditions change. To maximize the value of the plan, the mandate of the Task Force should be continued and extended explicitly by the Legislature to include continuing plan implementation oversight and evaluation.

Continuing the Task Force would also have other important benefits. While federal, state, and basin tribal government agencies have water management responsibilities, individual water users have a vested interest in water use that is recognized by the state in granting a property right to use water. The Task Force affords representatives of the local basin water users and their interests (including agriculture, conservation and environmental organizations, hydropower utilities, and Tribal and local governments) the opportunity to work together directly and collaboratively via the plan to influence basin water management. In addition, over the two years during which the plan was developed, Task Force members have communicated directly and developed a shared understanding of basin water resources, legal and management processes, and each other’s values and concerns. Continuing the Task Force would maintain and build upon this shared communication and understanding. Finally, the Task Force can provide a means to coordinate and stimulate activities of the many watershed planning groups focused on specific areas of the basin.

Task Force Budget and Funding

As mentioned in Chapter 1, the Montana Legislature appropriated $120,000 to fund the development of the plan over a two-year period. Continuing the Task Force and requiring it to oversee implementation of the plan as well as its periodic revision would require substantially less funds. Rather than the monthly meetings during the plan development, implementation oversight and plan revision would likely necessitate only quarterly Task Force meetings plus one meeting to convene representatives of all of the basin’s 13 watershed groups. An estimated annual budget totaling about $20,000 to fund the quarterly meetings and the convening of the watershed group representatives is shown in Table 10-1.

Clark Fork River Basin Water Management Plan Chapter 10 Page 1 August 2004 Table 10-1 Clark Fork Task Force Annual Budget

Item CostDetails SubTotal Annual Total

1. Meeting Expenses a. Preparation & facilitation 25 hours @ $75/hour $1,875 b. Task Force expenses Lunch, coffee, room rental @ $200 $200 c. Task Force mileage 1,000 miles @ $.36/mile $360 d. Copies, postage, $50 telephone, etc. e. Four meeting total $9,940

2. Annual Watershed Meeting a. Preparation & facilitation 30 hours @ $75/hour $2,250 b. Meeting expenses Lunch, coffee, room rental @ $200 $250 c. Participant mileage 1,000 miles @ $.36/mile $360 d.Supplies Easel paper, etc. $35 e. Total $2,895

3. Plan Implementation Activities a. Facilitation 60 hours @ $75 $4,500 b. Mileage & per diem 700 miles @ $.375 & meals @ $21.00 $2,684 c. Total $7,184

4. Total $20,019

Plan Implementation Activities The plan conclusions and recommendations are discussed in chapters 6 through 9 and summarized in Chapter 11. These can be categorized as those requiring short-term implementation, primarily action by the State of Montana through the 2005 Legislature and/or DNRC, or long-term implementation by the state and individual water users and water user organizations. Maintaining the Task Force will be important for overseeing and stimulating implementation of both types of recommendations on behalf of basin water interests, but especially for the long-term category. Task Force oversight will be important to stimulate and monitor action on the following topics. • Coordinated water management by local basin watershed groups, water user organizations, and individual water users to assure long-term, sustainable water use. • Negotiations between the State and USBR to contract for a firm block of water storage in Hungry Horse Reservoir to facilitate additional consumptive use of water in the basin. • Completion by the State of a durable and accurate adjudication of basin water rights within a reasonable time frame, such as five years. • Resolution of the status of the Confederated Salish and Kootenai Tribes water rights through negotiation or litigation as rapidly as possible. • Continued research on basin water resources, and especially groundwater. • Continued monitoring of basin stream flow, groundwater, and snow pack.

Clark Fork River Basin Water Management Plan Chapter 10 Page 2 August 2004 Chapter 11 Recommendations and Conclusions

A summary of the recommendations and conclusions listed by Chapter follows.

Chapter 6 - Hydropower Water Rights and Basin Water Use The State of Montana should open discussions with USBR to determine the availability and cost of temporary and long-term contracting options and to determine a quantity of firm storage available from Hungry Horse Reservoir for Montana uses other than hydropower.

Chapter 7 - Options to Protect the Security of Water Rights 7-1 The State of Montana should complete the state-wide adjudication of water rights by: • Establishing a reasonable goal, such as 5 years, for achieving enforceable water rights decrees in the Clark Fork basin. • Providing additional resources for the adjudication process by: – Providing additional funding for the Water Court and DNRC; and – Re-prioritizing DNRC’s existing resources to focus on the adjudication. 7-2 All reasonable efforts should be made to ensure that the adjudication results in durable and accurate water rights. To improve the accuracy of the water rights adjudication the Montana Water Court should formally announce that it will examine claims with DNRC issue remarks to which no objections have been filed and resolve those it finds to be inaccurate. 7-3 The State of Montana and the Confederated Salish and Kootenai Tribes should move as rapidly as possible to resolve the status through negotiation or litigation. 7-4 The Montana Legislature and DNRC should work together to ensure that DNRC has adequate funding and staffing to carry out its water related responsibilities in a prompt and efficient manner. 7-5 The State of Montana should act to reduce the burden on existing water rights holders to protect their rights through: • Direction from the Montana Legislature in an appropriation to DNRC to investigate and enforce water rights. • Direction from the Montana Legislature to DNRC to provide mediators to resolve water right disputes. • Administration by DNRC of a program that trains, selects, and evaluates water commissioners. • Sharing the cost of the water commissioners by all rights holders according to their share of the total basin water rights rather than just those receiving water. 7-6 The Montana Legislature could explicitly authorize a judge to award attorney fees to a private party bringing a successful action for an illegal use of water when diversions are made without a water use permit or existing water right. 7-7 DNRC could rules which it is currently developing rules to establish criteria for objecting to water rights permit and change applications that increase the burden on applicants while reducing the burden on existing rights holders in an expeditious manner.

Chapter 8 - Options for the Orderly Development of Water 8-1 While the adjudication does not determine either the legal or physical availability of water for future appropriations, without completing it, full knowledge of water rights cannot exist, and additional water development may be at risk to future adjudicatory rulings by the Water Court, particularly in the Flathead and Blackfoot sub-basins in which preliminary decrees have not been issued.

Clark Fork River Basin Water Management Plan Chapter 11 Page 1 July 2004 8-2 DNRC should change the water rights permitting requirements and process by requiring an evaluation of cumulative impacts before granting surface or groundwater permits. 8-3 The regulation and management of surface and groundwater should conform to the legal standard that water is a unitary resource by: • Amending the 35 gpm/10 acre-feet exemption to require a permit for groundwater wells that are developed as part of a common project, such as a subdivision. • Development of a legally defensible definition of a hydrologic connection between surface and groundwater. • Requiring applicants for a groundwater permit to provide information demonstrating the nature of the surface-groundwater connection. 8-4 The State of Montana should issue water leases as well as new water right permits to allow new water developments. 8-5 The State of Montana should examine and develop appropriate rules for authorization and management of groundwater augmentation to enhance basin water supplies or recharge groundwater resources as potential management. 8-6 The Legislative Water Policy Committee should be re-established to increase the focus on water issues and water education for legislators. 8-7 The Montana Legislature should appoint interim committees to consider: • The ongoing water rights adjudication; and • Establishing specialized water courts to oversee water administration instead of relying district courts. 8-8 Single- and multi-purpose organizations such as conservancy or irrigation districts that can manage or participate in the management of water quantity could be created when they would be effective at the scale at which the management would occur. 8-9 Individual and water user organizations could provide for water use by existing and future users by: • Examining options for increasing water use through use of high spring flows and snow melt (rain on snow events); • Increasing water storage; • Actively managing return flows; • Continuing to use water leasing and water marketing as management tools; and • Protecting and rehabilitating wetlands through active floodplain and wetland management, bank storage, etc. 8-10 Additional research is needed to: • Evaluate the availability of the basin’s groundwater, its recharge rate, and groundwater-surface water interrelationships. • Define more accurately sub-basin hydrology and water, biological, and economic relationships. • Study water availability to identify places of stress and the impacts of sewer system installations on water quality. 8-11 Ongoing monitoring by of stream flow, groundwater, and snow pack is critical to both research and water management; funding should be provided to state and federal agencies to continue this monitoring.

Chapter 9 - Options for Conserving Water 9-1 Cities and counties could use their zoning and subdivision review powers to: • Protect areas in which surface waters recharge groundwater. • Require water meters in new subdivisions and government-owned water systems. • Promote conservation through adoption of model conservation ordinances that regulate water use during periods of a water distribution shortfall. 9-4 DNRC can help to promote water conservation by

Clark Fork River Basin Water Management Plan Chapter 11 Page 2 July 2004 • Improving its system for handling and managing water data to make the data more accessible to the public. • Requiring measurement of water use for new water permits and change authorizations. • Reaching agreement with DEQ to coordinate information required from groundwater pump tests. 9-3 Pursuant to the mandate of its organic act, the USFS should optimize favorable flow conditions in its management. It should do so. 9-4 Individuals and water user organizations can take additional actions to provide for the long-term, sustainable use of water by: • Measuring water uses and diversions; • Improving water conveyance efficiency; • Managing groundwater provided by irrigation; • Identifying, managing, and protecting areas in which surface waters recharge groundwater; and • Managing the supply side, e.g. using artificial recharge. 9-5 Individuals, organizations, and, where appropriate, government agencies should work together to form sub-basin planning entities which in turn can and should develop and implement drought plans targeted at the objectives of local water users. 9-6 Government agencies and water user organizations should provide long-term, coordinated education for water users, including information about activities that might affect groundwater recharge and quality and the connection between wasting water and wasting electricity. 9-7 Specific research topics that should be pursued include: • The connection between groundwater infiltration and base stream flow; • The connection between the basin vegetation and base flow; • Quantification of water conservation activities; and • The 7-day average low flow in a 10-year period (sometimes known as 7Q10).

Chapter 10 - Plan Implementation 10-1 The Task Force mandate should be continued and explicitly extended by the Legislature to include continuing plan implementation oversight and evaluation. 10-2 The Task Force should be provided an annual budget of $20,000 to carry outs its mandate.

Clark Fork River Basin Water Management Plan Chapter 11 Page 3 July 2004 Chapter 2 Vision of Water Management in the Clark Fork River Basin

Management of water in the Clark Fork River Basin should be based first on understanding the water resource and the factors that affect its use, second on developing a management system based on this understanding, and finally on operating the system to achieve specific goals.

In particular, it is necessary to understand: • The physical availability of surface and groundwater; • The legal availability of water; • Existing water uses; • Emerging needs and interests; • The impact of land and natural resource use on water availability; and • Information needed to improve water management.

The water management system consisting of individual water users, private organizations, and government agencies should: • Reflect the unique needs and interests of individual sub-basins within the context of the basin as a whole; • Build on and integrate existing systems for water rights, land-use planning, the permitting of sanitation systems, and so on; • Recognize the inter-relationships of existing management practices, such as the timing of diversions and return flows and surface-groundwater interactions; • Monitor and evaluate the water management system on an ongoing basis; and • Create a method for continuing to learn more about the water management system and adapting water management strategies based on new information and understanding.

The water management system should then be operated to: • Recognize and protect existing rights; • Manage for multiple uses; • Cooperate during shortages; • Continue water education; and • Protect, conserve, and sustain the water resource.

The vision of understanding the water resource, developing a water management system, and operating the system to achieve the specific goals will guide how this plan answers the three statutory mandates: developing options or strategies to protect the security of water rights and providing for the orderly development and conservation of water.

Clark Fork River Basin Water Management Plan Chapter 2 Page 1 Augst 2004 Chapter 3 Watershed Profiles

Developing a basin management plan requires understanding the nature and characteristics of the basin with which you are working. This chapter of the plan presents profiles of the Clark Fork River basin and each of its six watersheds. The profiles provide information describing the physical availability of water and address issues related to the legal availability of water.

Information presented in this chapter is based on currently available information and data that vary in age, accuracy, and depth. Gaps in information and knowledge discovered during development of the profiles are discussed at the end of this chapter.

Overview of Clark Fork River Basin

The Clark Fork River basin covers most of Montana’s Figure 3-1 portion of the Columbia River basin, which drains the mountains and valleys of Montana west of the Continental Divide. It is a headwaters basin, meaning that almost all of the water leaving the basin originates within the basin.

For the purposes of this plan, the Clark Fork River basin has been divided into six smaller watersheds: Flathead River, Bitterroot River, Blackfoot River, Upper Clark Fork River, Middle Clark Fork River, and Lower Clark Fork River. Each of the watersheds is defined by the USGS gaging station that measures flows at its outlet point. Table 3.1 presents a brief description of each watershed, its sub-basins, and the gaging station used to define its outlet.

Clark Fork Basin Water Management Plan Table 3-1 Watersheds of the Clark Fork River Basin Representative Watershed Description Sub-Basins USGS Gaging Station Flathead River Flathead River above • North-Fork Flathead, 12388700 confluence with Clark Stillwater, Flathead Lake Flathead River at Perma Fork River (76LJ) • Middle Fork Flathead (76I) • South Fork Flathead (76J) • Swan (76IL) • Lower Flathead (76L) Bitterroot River Bitterroot River above • Bitterroot (76H) 12352500 confluence with Clark Bitterroot River near Fork River Missoula

Blackfoot River Blackfoot River above • Blackfoot (76F) 12340000 confluence with Clark Blackfoot River near Fork River Bonner

Upper Clark Fork River Clark Fork River above • Flint-Rock (76E, 76 GJ) 1234550 confluence with • Upper Clark Fork (76G) Clark Fork at Turah, Mt Blackfoot River.

Middle Clark Fork River Clark fork River from its • Middle Clark Fork (76M) 12354500 confluence with Clark Fork at St. Regis Blackfoot River to confluence with Flathead River Lower Clark Fork River Clark Fork River below • Lower Clark Fork (76N) 12391400 confluence with Flathead Clark Fork below Noxon River. Rapids Dam near Noxon

Physical Availability of Water in the Clark Fork River Basin

Precipitation and Surface Water The Clark Fork River near the Idaho border is the largest stream in Montana. 1 The physical availability of water in the basin is a function of a combination of natural and human factors. Climate and precipitation, geology, local and regional hydrology, and, of course, water use practices all affect the physical availability of water at any given point in the basin and in the basin as a whole.

Naturally, precipitation, geology, and drainage basin size are the major factors that determine the physical availability of water in the basin. The climate in the Clark Fork River basin is strongly influenced by moist air masses from the Pacific Ocean. This condition produces relatively abundant precipitation and mild winters compared to the rest of Montana, with occasional extended cold periods in winter and hot, dry periods in summer. 2 Precipitation in the Upper Clark Fork watershed averages around 28 inches a year, ranging from a low of less than 14 inches per year in the valleys to a high of over 100 inches per year in the mountains. 4

The range in annual precipitation is reflected in the range of annual streamflows. Water leaving the basin is measured by the USGS gage in the Clark Fork River near Noxon. Here, annual streamflows have ranged from a low of 11,380 cfs in 1971 to a high of 31,979 cfs in 1997. 27 Over a 40-year period, the annual flows at this point averaged 20,504 cfs or 14,818,240 acre-feet.

Table 3-2 presents the average annual precipitation, drainage and watershed areas, and average annual streamflow for each watershed within the basin. Streamflows presented for the Lower Clark Fork River watershed represent the flows leaving the Clark Fork River basin.

Clark Fork Basin Water Management Plan Table 3-2 Watershed Precipitation, Area, and Streamflows

Average Average Annual Annual Drainage Watershed Streamflow 27 Watershed Precipitation 31 Area 27 Area USGS Gage (inches) (sq miles) (sq miles) (cfs) (af) (years of record) Flathead River 123887000 37.35 8,795 8,795 11,505 8,314,664 1984-2003 Bitterroot River 12352500 33.23 2,814 2,814 2,193 1,584,881 1990-2003 Blackfoot River 12340000 29.53 2,290 2,290 1,573 1,136,807 1940-2003 Upper Clark Fork River 12354500 28.11 3641 3641 1,206 873,300 1985-2003 Middle Clark Fork River 12354500 28.11 10,709 1,108 7,352 5,313,290 1911-2003 Lower Clark Fork River 12391400 36.79 21,833 2,329 20,504 14,818,240 1961-2000

The mountainous terrain and northern latitude of the basin combine to form snow-dominated precipitation and runoff regimes. This means that the majority of precipitation in the basin falls as snow in winter and early spring, with streamflows peaking in early summer after snowmelt has occurred. Low flows occur in early fall after the dry summer and in late winter before snowmelt has begun.

Natural streamflow patterns are affected by the cumulative impacts of all water uses occurring upstream. In many tributaries and in the upper reaches of the Clark Fork main stem, irrigation can dramatically reduce streamflows in the summer months, sometimes combining with natural factors to nearly deplete smaller streams in dry years. Depending on water use practices and local physical features, return flow from used water, especially flood irrigation, can augment late season natural flows. The construction of reservoirs, which capture part of the spring runoff and then release those waters later in the season, has further modified the basin’s hydrology. Hungry Horse Reservoir and Kerr Dam (Flathead Lake) are the most significant. (The cumulative affect of such reservoirs in the greater Columbia River basin has significantly altered the natural hydrograph. Waters from Montana reservoirs are now currently released early in the season to mitigate these affects.) 3

The Clark Fork River basin is also home to numerous ponds, lakes, and reservoirs. The basin contains 21 reservoirs with capacities greater than 5,000 acre-feet. 4 These reservoirs were constructed to provide water for irrigation, hydropower, and municipal water supply, and for flood control, but they also provide a means of regulating downstream flows. The largest of these are Hungry Horse reservoir on the South Fork Flathead River at almost 3.5 million acre-feet capacity, Flathead Lake on the Flathead River at 1.8 million acre-feet capacity, and Noxon Rapids on the Clark Fork at almost 500,000 acre-feet capacity.

Groundwater Groundwater use within the Clark Fork River basin generally occurs within valleys filled with unconsolidated or poorly consolidated deposits between mountain ranges composed of relatively impermeable bedrock. The deposits in these valleys range from several hundred to several thousand feet thick. The valleys have perennial streams with recent floodplains adjacent to glacial deposits that extend up the mountain fronts. Often these mountain fronts are associated with faults or fault systems. 5

Groundwater supplies in the Clark Fork River basin come from two basic types of aquifers: basin fill aquifers and fractured bedrock aquifers. Basin fill aquifers are typically found in valleys and can

Clark Fork Basin Water Management Plan be either shallow and unconfined or deep and confined. These aquifers range from being very limited in extent and productivity, to highly productive and dependable. Fractured bedrock aquifers generally occur around valley margins and have relatively small water storage capacities with variable and typically low yields. 6

Aquifer water supplies are recharged through the infiltration of water from precipitation, snowmelt, excess irrigation water, canal leakage, surface water streams, and other aquifers. An aquifer’s water supply can be diminished by discharge to streams, evaporation, and withdrawals from pumping.

The largest uses of groundwater in the basin are for irrigation and public water supply, but most water for irrigation comes primarily from surface water sources. Most households in the basin rely on groundwater from wells or springs. 5

Groundwater is growing in importance as a source of water supply in the basin. There are currently records of more than 58,000 wells in the Clark Fork River basin, 40% of which have been installed since 1990. 6 DNRC’s water rights database identifies nearly 67,000 uses of groundwater in the basin. Of these, nearly 56,262 (97%) were developed after 1970. This reflects the changing land use trends, growth, and, to a decree, changes in water right record keeping process. Domestic, urban, and municipal uses—which are year-round rather than seasonal—account for 57% of these groundwater uses.

Surface water – Groundwater Interconnections When surface water and groundwater are hydraulically connected, water can travel between a stream or other surface water body and the surrounding groundwater. For example, in a “losing reach” of a stream, the stream tends to leak water into the groundwater. In a “gaining reach,” groundwater tends to seep into the stream. Aquifers act as natural storage sources that are recharged annually in varying degrees. Except for spring runoff, the majority of water in the streams of western Montana comes from groundwater discharge. Discharge to the streams is controlled by the water pressure or “head” in the aquifer. Reduced head results from withdrawal by wells and reduced recharge. Reduced head in the aquifer results in lower stream flows.

Pumping Water uses can affect natural surface water-groundwater flow patterns in several ways. One way is by pumping water out of an aquifer that is hydraulically connected to a stream. About 40% of the wells in the Clark Fork basin tap into shallow alluvial (basin fill) aquifers and are located within one mile of a stream. For example, most of the wells in the Missoula Valley are developed in a highly productive aquifer that is recharged by the Clark Fork and Bitterroot rivers. Pumping these wells will intercept some of the groundwater that would otherwise discharge from the shallow aquifer to the stream. Depending on the location of a well, if pumping occurs hard or long enough, the water can actually be drawn from the stream and through the shallow aquifer to the well. 29

Return Flows Another way water use can affect surface water-groundwater interconnections is through irrigation return flows. Some portion of the water that is pumped from groundwater or diverted from surface water for irrigation will seep down through the soil profile and into the underlying groundwater. Seepage can occur through the sides and bottoms of irrigation ditches and canals or through the soil profile of irrigated fields. Seepage losses are greater through unlined conveyance systems and with flood-type irrigation systems where application of water in excess of plant consumption is common. Seepage water that makes it way back to a stream through the groundwater is called return flow. Though irrigation diversions reduce streamflows at the point and time of diversion, return flows augment streamflows further downstream and later in the year.

Clark Fork Basin Water Management Plan Though seepage water is considered a loss from the standpoint of the irrigator, this water is not consumed so it is not lost to the basin. Seepage water that stays in the groundwater is available for others to pump. In some aquifer systems, irrigation seepage is an important source of aquifer recharge. Water levels in these aquifers increase during the irrigation seasons and subside again during fall and winter.

Water supply shortages and the desire to increase crop production have led irrigators to take measures to increase irrigation efficiency. Increases in efficiency can be gained through lining ditches and canals, replacing ditches and canals with pipeline, and switching from flood-type to sprinkler-type irrigation systems. Increasing irrigation efficiency results in decreasing water diversions and seepage losses, which in turn decreases irrigation return flows. It is important to note that hydrologists use different definitions of return flows, waste, and seepage than is found in water law. This discussion focuses upon the physical rather than legal relationships.

Existing Appropriations of Water in the Clark Fork River Basin

Within Montana, all waters are owned by the State, but Montanans can acquire a water right that authorizes them to appropriate water to put it to beneficial use. Also, some waters were reserved by the federal government. Chapter 4 provides additional information describing the fundamentals of water rights and the legal framework for water management in Montana. This section presents an overview of existing water appropriations in the Clark Fork River basin.

Clark Fork Basin Water Management Plan Table 3-3 Water Use Appropriations in the Clark Fork River Basin 7 Clark Fork of Columbia Basin, Surface & Ground Water Use From Water Rights Development Dates (Priority Dates) Purposes Purpose code Total Pre 1910 Pre 1950 Post 1910 Post 1950 Post 1970 Unknown Augmentation AG 1 0 0 0 0 0 0 Agricultural Spraying AS 18 1 2 5 4 1 1 Commercial CM 1,933 29 177 1,411 1,263 1,046 4 Domestic DM 38,691 748 3,368 37,847 35,227 31,811 96 Erosion Control EC 2 0 0 2 2 1 0 Flood Control FC 3 1 1 2 2 2 0 Flow Through Fish Pond FF 2 0 1 2 1 1 0 Fire Protection FP 140 32 51 108 89 41 0 Fish Raceways FR 81 26 43 55 38 14 0 Fishery FS 219 16 23 203 196 196 0 Fish and Wildlife FW 1,027 138 315 884 707 572 5 Geothermal GE 39 1 3 38 36 36 0 Geothermal Heating GH 23 0 0 23 23 23 0 Industrial IN 439 96 161 335 270 157 8 Irrigation IR 17,115 7,097 9,849 9,838 7,086 5,218 180 Institutional IS 160 28 58 132 102 68 0 Irrigation – Lawn and garden LG 11,067 67 320 10,996 10,743 10,278 4 Municipal MC 336 36 96 292 232 160 8 Multiple Domestic MD 1,306 12 38 1,294 1,268 1,214 0 Mining MN 482 223 325 258 156 96 1 Navigation NV 2 0 1 2 1 0 0 Other Purposes OP 90 1 1 89 89 88 0 Observation and Testing OT 15 1 2 14 13 8 0 Pollution Abatement PA 12 2 3 10 9 8 0 Power Generation PG 145 29 69 114 74 50 2 Power Generation - Non consumptive PN 6 5 6 1 0 0 0 Recreation RC 611 66 285 543 324 271 2 Storage SG 12 0 9 11 2 0 1 Sale SL 1 0 1 1 0 0 0 Stock water ST 18,500 4,809 8,043 13,600 10,366 8,857 91 Wildlife WI 208 20 195 188 13 12 0 Wildlife & Waterfowl WW 110 2 2 108 108 108 0 Other XO 26 2 3 24 23 15 0 Grand Total 92,822 13,488 23,451 78,430 68,467 60,352 403 Summary Similar Uses Domestic (DM &MD) 39,997 760 3,406 39,141 36,495 33,025 Gen. Municipal (MC, In, IS,CM) 2,868 189 492 2,170 1,867 1,431 Irrigation (IR & LG) 28,182 7,164 10,169 20,834 17,829 15,496 Agricultural all AS,IR,ST 28,200 7,165 10,171 20,839 17,833 15,497 Wildlife (FF,FR,FS,FW,WI,WW) 1,647 202 579 1,440 1,063 903 Power Gen. PG,PN 151 34 75 115 74 50

Clark Fork Basin Water Management Plan As of June of 2004, Montana’s centralized water right records system identified water rights for 92,822 water uses in the Clark Fork River basin. 7 Of these uses, nearly 28% were from surface water sources and 72% from groundwater. Agricultural uses account for over 30% of the total basin water uses. Looking only at surface water uses, 75% are for agricultural purposes, with irrigation representing almost half. A listing of the number of water uses in the basin by water use category and by period of development is presented in Table 3-3.

Diversionary Water Uses Montana recognizes many different beneficial water uses. It is important to note that water right law and water quality law have at first glance similar legal definitions of “beneficial uses,” but in application are considerably different. Historically, Montana water law required all uses to have “control” over the water. Control typically implied the use of a diversion device (head gate). Statutory law and court case law have both refined and expanded these definitions to include instream use and instream flows as a beneficial use for which a water right can be obtained.

Diversionary water uses are those that divert or pump water away from its source and consume all or a portion of the water as part of the beneficial use. Diversionary uses include irrigation, residential or domestic, and municipal uses.

Irrigation Irrigation is the largest consumptive water use in Montana, 8 accounting for 97% of the total estimated water withdrawals and 93% of the total estimated water consumption. 25 About 15% of Montana’s cropland and pastureland is irrigated. Close to 80% of the irrigated acres are in hay and pasture forage. 9 Nearly 40% of all irrigated lands in the Clark Fork River basin are located in the Flathead River watershed. The distribution of irrigated acreage in the Clark Fork River basin is illustrated in Table 3-4.

Data describing the number of irrigated acres across the state varies, sometimes dramatically, with the source of information. According to land cover data provided by NRIS, approximately 262,000 acres within the Clark Fork River basin 10 are irrigated. According to a DNRC report, however, irrigation upstream of Noxon Rapids Dam totaled 358,000 acres in 1950 and 427,000 in 1980. 11 In 1991, the publication “UCAO-Clark Fork/Flathead Basin Irrigated Lands” by the USDA Bureau of Reclamation was released for use in planning process. Developed through the interpretation of satellite imagery, the UCAO report identifies 471,000 acres of irrigated lands in Montana’s Clark Fork basin. These acreages are displayed in the table below. 12 The Task Force has opted to use number of irrigated acres from this report because it is the newest data set consistent with past inventories. The Task Force also recognizes its value and limitations as a planning tool. This data set may over estimate irrigated acreages.

The Montana water right database contains 28,182 water right records for irrigation water use within the basin, including 12,523 from surface water and 15,650 from groundwater. Irrigation accounts for 30% of the total 92,800 water right uses of record. Lawn and garden irrigation accounts for 11,067 developments, including 527 from surface water and 10,540 from groundwater. The remaining 17,115 developments are for traditional agricultural irrigation. A 1998 analysis of DNRC’s water right database identified 149 irrigation water right records (from surface and groundwater sources) that have a diversionary rate greater than 5 cfs. Combined, these 149 water right records assert rights to irrigate a total of 61,188 acres, which is roughly 13% of the total irrigated acreage in the basin. 13

Most irrigation diversions are not measured, so data are not available to determine accurately the

Clark Fork Basin Water Management Plan Chapter 3 Page 7 September 2004 amount of water diverted and consumed by irrigation. However, estimates of irrigation diversions and water consumption can be developed based on estimates of the number of irrigated acres, irrigation consumptive uses, and irrigation efficiencies. For example, we can estimate that if all of the 470,980 irrigated acres in were fully irrigated, roughly 2,116,000 acre-feet of water would be diverted and 1,058,000 acre-feet would be consumed by irrigation in the basin each year. (Annual crop consumption varies geographically and for these calculations ranged from 1.92 acre-feet per acre in Lake County to 2.48 acre-feet per acre in Ravalli County.) The irrigation period of use also varies between basins. Numerous geographic, climatic, and agricultural factors affect when irrigation occurs. On average, the irrigation season begins in mid April and ends in mid September. However, in unusual years some irrigation occurs both earlier and later than these averages. If this water were pumped continuously over a 150-day irrigation season, irrigation water uses would divert 7,115 cfs and consume 3,560 cfs. Irrigation water use, however, is not consistent over the season. Table 3-4 estimates monthly irrigation consumptive water use for each watershed that would occur if all the reported 470,980 irrigated acres in the basin were fully and consistently irrigated.

Table 3-4 Irrigated Acreage and Estimated Irrigation Consumptive Uses

Irrigated Estimated Irrigation Consumptive Uses Lands 10 (acre-feet) Watershed (acres) Total May Jun Jul Aug Sep Flathead 182,800 350,062 13,710 73,425 141,670 108,461 12,491 Bitterroot 93,950 233,153 19,730 52,455 79,858 65,765 15,345 Blackfoot 44.280 108,338 8,118 23,616 37,712 31,217 7,675 Upper Clark Fork 121,000 296,047 22,183 64,533 103,052 85,305 20,973 Lower Clark Fork 28,950 70,831 5,308 215,440 24,656 20,410 5,018 Clark Fork River Basin Total 470,980 1,058,431 69,048 229.469 386,947 311,158 61,503

Irrigation is considered to be a consumptive use of water, but, as described above, only a portion of the water diverted or pumped for irrigation is actually consumed by plants and evaporation. Some of the water diverted or pumped for irrigation returns to the stream directly and relatively quickly as carriage water or surface runoff, and some returns indirectly and more slowly through groundwater as return flows. Though the types and combinations of conveyance and irrigation systems vary dramatically across the basin, roughly 50% of the water diverted for irrigation is consumed by evaporation and evapotranspiration. 14,22 The amount and timing of irrigation water recharging groundwater or returning to streams is significant for water management, but water rights records do not quantify the discrepancy between diversion and consumption. This component of the basin’s water budget has been researched in some portions of the basin both recently and in the 1960s, but has not been examined in many portions of the Clark Fork basin.

Residential and Municipal Although irrigation is the largest user of water in Montana, domestic and municipal water use is increasing and in some sub-basins represents a greater total water use than irrigation. 15 The Montana water rights database includes 42,865 records for municipal uses in the Clark Fork River basin, including domestic, multiple domestic, industrial, institutional, commercial, and similar urban water demands. The majority of communities and individual residences in the basin, about 38,500, use groundwater as their primary source of water. 16 A few, 4,350, rely heavily on surface water sources. Per capita water use varies by season, with most communities using significantly more water in the summer months. Per capita water use varies by community, ranging from approximately 140 gallons per day (gpd) in Lake County up to about 400 gpd in Missoula County. 8

Clark Fork Basin Water Management Plan Chapter 3 Page 8 September 2004 Domestic and municipal water uses are considered consumptive uses, but, as with irrigation, only a portion of the water diverted or pumped is actually consumed. In urban areas, much of the water diverted for domestic and municipal use is returned to surface water as wastewater discharge. In rural areas with no centralized wastewater treatment, much of the supply water is returned to the basin as septic system discharge, a portion of which seeps to underlying aquifers. Systems vary significantly, but roughly 70% of the water diverted for domestic and municipal uses returns to the basin through surface or groundwater.

In Kalispell, approximately 73% of the water pumped for municipal supply from the deep artesian aquifer is discharged to Ashley Creek. Additional water is returned via urban runoff, system leakage, and infiltration from yard irrigation. According to the USGS, 90% of domestic water is returned to the environment.

Non-Diversionary Uses Non-diversionary uses of water are those that use water in the stream channel as part of the beneficial use. In this plan, hydropower is included with instream flows as a non-diversionary use even though dams do divert and control water flows. The volume and flows associated with these non-diversionary uses can significantly limit new diversionary uses in or above the affected stream reach.

Table 3-5 Hydropower Facilities in the Clark Fork River Basin Volume Generation Turbine of Water Hydropower Capacity Capacity per year Facility Location 22 (MW) 22 (cfs) (1,000 ac-ft) Type 22 Hungry Horse South Fork Flathead River 328 8,900 6,443 Storage Kerr Flathead River 180 14,540 10,386 Storage Milltown Clark Fork River 3 2,000 1,448 Run-of-River Thompson Falls Clark Fork River 40 23,420 16,956 Run-of-River Noxon Rapids Clark Fork River 554 50,000 36,200 Storage Cabinet Gorge 1 Clark Fork River 230 36,000 26,064 Run-of-River

1Cabinet Gorge Dam is located in Idaho, but most of the storage capacity provided by the reservoir lies within Montana. Cabinet Gorge’s water rights were specifically subordinated to all present and future upstream water rights in Montana in exchange for the reservoir easement being granted by Montana. (See 85-1-122, MCA.)

Hydropower

There are six major hydropower facilities in Montana’s Clark Fork River basin. The location of these facilities is illustrated in Figure 3-2. A list of the facilities and their capacities is presented in Table 3-5. There are also numerous smaller and privately owned generation units within the Clark Fork basin, many of which provide power for users not connected to the utility transmission grid. DNRC water right records identify a total of 151 basin hydropower water rights. Note that this does not imply 151 different projects since many developments have more than one water right. For example, the Thompson Falls facility operates under 8 separate water rights.

Clark Fork Basin Water Management Plan Chapter 3 Page 9 September 2004 Figure 3-2 Hydropower Facilities in the Clark Fork River Basin

From Cunningham, A. b., M.L. Bultsma, and R. d. Boyce, 1988. Effects of Future Irrigation Development on Hydroelectric Generation in the Clark Fork River Basin. MSU-Bozeman.

Instream flows Appropriations under the “instream flow” category refer to water that is left in the stream to protect fish, wildlife, recreational uses, aesthetic and scenic values, and water quality. 17 There are four methods of protecting instream flows in Montana: Murphy Rights, water reservations, compacts (treaties), and water leases (see Chapter 4 for more information).

Murphy Rights were established by the Montana legislature in 1969 to provide a mechanism to help protect streamflow amounts necessary for the preservation of fish habitats. Murphy Rights date back to 1970 and protect flows only when senior water rights have been satisfied. There are 5 stream reaches within the Clark Fork River basin with Murphy Rights. 18

As of 1998, 1,647 records specify a fish and wildlife use, but the database does not differentiate between instream use for protection of fisheries, water diverted for fish and wildlife ponds, or water developed for recreational or aesthetic purposes. The majority of these records are for diversionary uses. There are a wide variety of beneficial uses that fall within these categories. They include fish ponds, fish raceways, wildlife water developments, augmented wetlands, wetland mitigation, and waterfowl and wildlife refuges.

Water reservations for instream flow and future uses of water have not been developed in western Montana. Montana law allows most public entities to apply for a water reservation. Water

Clark Fork Basin Water Management Plan Chapter 3 Page 10 September 2004 reservations developed under state law allow the appropriator to claim and protect for future consumptive uses, the protection of instream flows, or protection of lake levels. 19 In both the Yellowstone and Missouri basins, the state has supported and initiated a water reservation process. A similar effort was begun but not completed in the Upper Clark Fork. The process became contentious and was resolved through other mechanisms.

The Montana water rights database also does not indicate if an appropriation has been leased for instream flows. However, recent research identified 20 water leases developed under the private leasing program/changes of use statutes, including 5 in the Clark Fork basin. The Montana Department of Fish, Wildlife and Parks (DFWP) leasing program has negotiated an additional 7 leases in the Clark Fork basin.

The assessment of existing appropriations in the basin is complicated by the unquantified federal reserved water rights that are discussed in Chapter 4. The federal reserved water rights claims of the Confederated Salish and Kootenai Tribes (CSKT) on and potentially off of the Flathead Reservation are of particular significance in the Clark Fork basin. The CSKT claim rights not only on the reservation, but also for fishing and hunting off the reservation (instream flows) everywhere in Montana west of the continental divide. These tribal water rights and hunting and fishing rights are likely to be senior to those to most of the basin’s water uses. In other words, it is conceivable that CSKT may be able to develop and consume additional water at the expense of existing water users, or to commit a greater share of their rights to instream flow protection. When the water rights of CSKT are eventually quantified, they will have an enormous impact on the legal availability of water to present and future water users. 20

The U.S. Forest Service and the State of Montana are currently negotiating the extent of the federal reserved rights associated with national forests as well as mechanisms to protect the interests of private water users. Instream flows appear to be included in these negotiations. At this point, these rights are unquantified.

Water Available for Future Use in the Clark Fork River Basin

Determining how much, if any, water is available for future use from a given local stream or aquifer is addressed by existing water law. To obtain a new water use permit, an applicant must prove that unappropriated water is available from the proposed source at the proposed point of diversion for the new use and that the new use will not adversely affect existing water rights holders with water rights on the proposed source. Though the concept of adverse affect is based on historic case law and is often complex and highly source specific, hydrologic analyses can be used to illustrate how much water is physically available from the proposed source and what the local impact of the new use might be. In response to increasing numbers of conflicts among existing users or objections to new uses, the state can establish some form of basin closure (see Chapter 4).

In recent decades, however, concern has increased that the cumulative impacts of numerous individual upstream water users in a basin have a significant potential to affect downstream water rights, and particularly those held by hydroelectric facilities. 21 Results of basin modeling efforts by Cunningham et al. 22 indicated that for those hydropower facilities with significant reservoir storage (Kerr and Noxon Rapids, for example), increased upstream irrigation led to slightly decreased power production, and that increased flood irrigation decreased energy production to a greater extent than increased sprinkler irrigation. Power generation at run-of-river facilities showed very slight impacts from increasing upstream irrigation and the impacts varied with total amount and system type.

Clark Fork Basin Water Management Plan Chapter 3 Page 11 September 2004 Due to its location and capacity, Noxon Rapids Dam, operated by Avista Corporation under a license from the Federal Energy Regulatory Commission, may pose the greatest single limitation to water available for future use in the Clark Fork River basin. Avista’s water rights for 50,000 cfs of flow at Noxon Rapids are of sufficient size to utilize almost all of the flows leaving the basin.23 Noxon’s most junior priority date is 1974.

Even with this right in place, as of June 2004, 60,352 of the water rights in the basin (approximately 65% of all the recorded water uses in the basin), were issued after 1970. Groundwater sources service most of these rights (56,260). Nearly 5,500 rights utilize surface water. Many of these post- 1970 water uses do not divert a significant amount of water but are likely to be of critical importance to the individual users. Approximately 33,000 post-1970 uses are for domestic purposes, with 31,800 served from groundwater. Assuming they divert about 1.5 acre-feet each annually, total use would be about 50,000 acre-feet. For this period, 157 uses are for industrial purposes. Traditional irrigation accounts for 5,200 of the post-1970 uses, with 73% supplied by groundwater (see Table 3- 3). Of the basin’s roughly 12,000 traditional irrigation water rights, the 9,100 rights that historically both diverted and consumed the greatest quantity of water were developed prior to 1950 and therefore are senior to the Noxon Rapids Dam hydropower rights. Slightly more than half of these irrigation rights (6,850) pre-date 1910 and the Thompson Falls earliest and most senior hydropower right.

One way to determine how much, if any, water might be available for future uses in the basin is to consider how often the flows at Noxon Rapids dam exceed 50,000 cfs . An analysis of flows occurring at the dam conducted by DNRC 24 indicated that, on average, flows at Noxon exceed 50,000 cfs approximately 30 days per year, typically in the months of May and June. In wetter years (those years with flows that are exceeded in 3 out of every 10 years) there is an average of 21,320 cfs available between May 25 and June 17. In drier years (those years with flows that are exceeded in 8 out of every 10 years), no excess water is available. This analysis suggests that though water may be physically available for new uses throughout the basin, water is only legally available in 3 out of every 10 years and then only for a 30-day period in the spring. It also suggests a potential solution to the problem. Development of additional storage capacity would offer additional benefit to Avista and a probable opportunity to amend or forego a call on the river. Figure 3-3 compares the average daily flows of the Clark Fork River below Noxon Rapids Dam to the 50,000 cfs water right claimed by Avista at the dam.

Clark Fork Basin Water Management Plan Chapter 3 Page 12 September 2004 Figure 3-3 Average Daily Flows on the Clark Fork River below Noxon Rapids Dam

50,000 cfs

Projected Demand for Future Water Use Currently, the two greatest uses for water in the basin after hydropower are for irrigation and municipal/domestic purposes. Throughout the basin, trends indicate limited growth potential for new irrigation and increasing demands for municipal and domestic uses in the future.

Irrigation Water Use Data describing historically and currently irrigated acres and irrigation water use in the basin are inconsistent and unreliable. For this reason, it is difficult to make projections regarding demands for future irrigation water use.

Available data indicate that the number of irrigated acres in Montana has increased by around 48,000 acres since 1992, and most of these acres are irrigated by surface water. 25 Analysis of the Montana water rights database indicates that the number of appropriations for irrigation water uses in the Clark Fork River basin increased from 11,405 in 1976 to 12,651 in 1998. This represents in increase in the number of irrigation water uses of about 10% over a 22-year period, or less than 0.5% per year. It is unknown, however, how many of these new appropriations might represent conversions from surface water sources to groundwater sources. Though such conversions are possible through water right changes, it is common in these situations for users to apply for permits for groundwater when their surface water source becomes unreliable.

Unlike residential development, distinct physical constraints limit the potential for increasing the number of irrigated acres in the basin. Most of the irrigable land that can be easily served by gravity diversion in Montana has already been developed; however, it is estimated that an additional 11.5 million acres of land in the state could be irrigated if a supply of water was physically and economically available. 9 Data describing the number of potentially irrigable acres remaining in the Clark Fork River basin are not available.

Clark Fork Basin Water Management Plan Chapter 3 Page 13 September 2004 Though additional irrigable lands may exist in the basin, the trend is toward the conversion of arable land to urban and rural development. The number of acres of agricultural land in Montana converted to urban/rural development increased significantly from 1982 to 1997. Urban and rural development acres were up from approximately 879,000 acres in 1982 to more than 1 million acres in 1997, an increase of almost 15%. More than one-third of the newly developed land was historically native rangeland. Land historically in forest and pasture accounted for almost one-third of the conversion to developed land, followed by a lesser amount of cropland. 25

The report included in Appendix 3 indicates that basin agriculture producers are struggling to survive because costs exceed cash receipts. This fact implies that significant expansion of irrigated acreage is unlikely.

Municipal and Domestic Uses U.S. Census data for 1990 and 2000 26 indicate that the population in the basin has grown at rates between 1% and 3% a year. Overall, the population of the basin has grown from 266,014 in 1990 to 316,188 in 2000, which represents a change of 19% or an average of 2% per year. Growth rates in the basin vary by watershed, with the Bitterroot River and Flathead River watersheds showing the greatest increase, and the Upper Clark Fork River watershed showing the least. Table 3-6 illustrates the change in population over the 1990 to 2000 period. This information is discussed in greater detail in Appendix 3.

Table 3-6 Population in the Clark Fork River Basin for 1990 and 2000

% increase 10-year average Watershed 1990 2000 total annual Flathead River 90,021 111,131 23% 2.35% Upper Clark Fork River 107,708 118,736 10% 1.02% Lower Clark Fork River 7,769 8,811 13% 1.34% Bitterroot River 54,546 70,743 30% 2.97% Blackfoot River 5,970 6,767 13% 1.34% Clark Fork River Basin 266,014 316,188 19% 1.89%

Per capita water use varies dramatically throughout the basin, ranging from a low of under 150 gpd in Lake County to a high of 400 gpd in Missoula County. Assuming an average growth rate of 1.89% per year, the population in the basin would grow to 375,826 people by the year 2020. Using Missoula’s per capita water use as a guide, this 2020 population would use an additional 26,722 acre- feet per year or about 37 cfs. For comparison, 26,722 acre-feet represents less than 0.2% of the average annual flow leaving the basin. These estimates suggest that even with continued population growth and high per capita water use, municipal and domestic water uses do not represent a large pressure on water supplies in the basin overall. Based on historical usage, it is reasonable to assume that the majority of future residential developments will use groundwater to meet their growing water supply demands.

Clark Fork Basin Water Management Plan Chapter 3 Page 14 September 2004 Flathead River Watershed

The Flathead River watershed covers 8,795 square miles of area drained by the Flathead River and its tributaries above its confluence with the Clark Fork River. 27 The lowest point of the watershed is defined by USGS gage 12388700 Flathead River at Perma. 27 This watershed is made up of seven smaller sub-basins: North Fork Flathead, Stillwater, and Flathead Lake (76LJ); Middle Fork Flathead (76I); South Fork Flathead (76J); Swan (76IL); and Lower Flathead (76L) 28 .

The Flathead River watershed is defined by the Flathead River, with Flathead Lake being the most notable surface water body. Major tributaries in the basin include the North, South, and Middle forks of the Flathead River; Swan River; Jocko River; Stillwater River; Whitefish River; and Little Bitterroot River. The watershed is dominated by mountains and forests, but includes approximately 183,800 acres of irrigated lands in the valleys (USBR Remote Sensing Analysis). A map of the watershed is provided in Figure 3-4.

Figure 3-4 Flathead Watershed

Physical Availability of Water in the Flathead River Watershed Precipitation and Surface Water Precipitation in the Flathead is the highest among watersheds in the Clark Fork River basin, averaging over 37 inches per year. Precipitation amounts vary over the watershed, with significantly more precipitation falling in the mountains in the form of snow.

The Flathead River is also the largest tributary of the Clark Fork River, contributing approximately 56% of the flow in the Clark Fork River where it leaves the state. An average of 11,505 cfs (8,314,664 acre-feet) flows out of the Flathead River watershed annually. Average monthly flows at the mouth of the watershed range from a high of 23,060 cfs in June to a low of 8,157 cfs in August. Flows in the Flathead River are regulated by Hungry Horse Dam on the South Fork Flathead River and to a lesser extent by Kerr Dam just south of Flathead Lake. These reservoirs serve to reduce high flows during spring runoff and substantially increase

flows during typically low flow periods. 2 The average monthly flows of the Flathead River at Perma are illustrated in Figure 3-5. Several other small dams and reservoirs on the Swan River and Little Bitterroot River, and 17 reservoirs in the Flathead Irrigation Project affect flows locally.

Clark Fork Basin Water Management Plan Chapter 3 Page 15 September 2004 Figure 3-5 Average Monthly Flows in the Flathead River at Perma

Average Montly Flows Flathead River at Perma

25,000

20,000

15,000

10,000 Average Monthly Flow (cfs) Flow Monthly Average

5,000

0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Month

Groundwater The aquifer systems in the Flathead River watershed are characterized by alluvial aquifers in the valleys with fractured bedrock aquifers at the valley fringes; however, the nature and combination of aquifer systems in each valley varies. The Kalispell Valley, north of Flathead Lake, has productive deep and shallow basin fill aquifers with more limited bedrock aquifers along the valley margins. The Mission Valley, south of Flathead Lake, contains thin, discontinuous basin fill aquifers that are not as productive or extensive as those in the Kalispell Valley. 29

The Montana Bureau of Mines and Geology Ground Water Assessment Program is completing a baseline assessment of the groundwater resources of the Flathead Lake area. This assessment will include information describing the hydrogeologic framework of the area, hydraulic characteristics of the aquifers, and aquifer recharge and discharge characteristics. This program uses wells of opportunity – existing wells – and therefore the assessment has limitations.

Existing Appropriations of Water in the Flathead River Watershed Water rights records as of June 2004 show nearly 32,000 water use appropriations within the Flathead River watershed. The breakdown of appropriations among different water uses is presented in Table 3-7 below.

Clark Fork Basin Water Management Plan Chapter 3 Page 16 September 2004 Table 3-7 Water Use Appropriations: Flathead Watershed Post Surface The vast majority of existing appropriators Purposes Totals 1970 Ground water Water in the watershed are supplied by Agricultural Spraying 6 1 1 5 groundwater (24,000 uses). Surface water Commercial 794 551 686 108 supplies more than 7,600 uses. Of these, Domestic 15762 12113 12984 2,778 2,800 are for traditional irrigation.. As Erosion Control 1 1 1 population in the valleys increase, new uses Flood Control 1 0 1 of groundwater also increase. For example, Flow Through Fish in the populated Flathead Lake sub-basin Pond 1 1 1 (76LJ), the number of residential uses of Fire Protection 26 9 13 13 Fish Raceways 54 11 32 22 water far exceed that for irrigation. Fisheries 93 92 50 43 Diversionary Uses Fish and Wildlife 325 206 129 196 Irrigation Geothermal 17 15 16 1 The Flathead River watershed contains Geothermal Heating 10 10 10 approximately 182,800 irrigated acres, which Industrial 122 61 81 41 represents almost 40% of the irrigated land in Irrigation 4,301 1,700 1,494 2,807 the Clark Fork River basin. Over 115,000 Institutional 15 13 15 Irrigation - lawn and acres lie in Lake County and below Kerr garden 3,781 3,571 3,452 329 Dam. Based on the assumptions presented Municipal 139 71 116 23 above, if all of these acres were fully irrigated, Multiple Domestic 701 660 663 38 then irrigation in the watershed would divert Mining 8 2 5 3 close to 700,000 acre-feet and consume Navigation 2 0 2 350,000 acre-feet of water per year. Spread Other Purposes 26 26 12 14 over the irrigation season, this volume of Observation and Testing 1 1 1 water would translate to a flow of roughly Pollution Abatement 3 2 2 1 2,470 cfs in diversions and consume 1,235 cfs. Power Generation 50 13 9 41 Power Generation Municipal and Residential Nonconsumptive 1 0 1 The Flathead River watershed includes all of Recreation 166 62 58 108 Flathead and Lake counties, the northern Storage 4 0 4 portions of Missoula and Powell counties, and Stockwater 5,289 3,313 4,256 1,033 the eastern portion of Sanders County. Cities Wildlife 2 2 1 1 in the watershed include Whitefish, Columbia Wildlife & Waterfowl 20 20 4 16 Falls, Kalispell, Polson, Evergreen, and Other 6 5 5 1 Ronan. About 111,000 people live in the Total 31,,727 22,532 24,097 7,630 greater Flathead Lake area. All of the major communities (except Whitefish) and most rural residences in the region use groundwater for municipal and domestic water supplies. 29 The deep alluvial aquifers are the most utilized and generally the most productive aquifers in the watershed. However, use of the fractured bedrock aquifers is increasing, corresponding to the increase in residential development at valley fringes. 29 The Montana water rights database indicates 18,234 water rights for municipal and domestic uses. Groundwater sources service 80% (14,545) of these municipal and domestic uses.

Non-Diversionary Uses Hydropower Both Hungry Horse and Kerr dams are located within the Flathead River watershed. Hungry Horse is a USBR facility located on the South Fork Flathead River that is used primarily for flood control and power generation. Kerr Dam, owned by PPL Montana (formerly owned by Montana Power Company), is located on the Flathead River just downstream from Flathead Lake, which serves as its

Clark Fork Basin Water Management Plan Chapter 3 Page 17 September 2004 reservoir. This facility is used for power generation, flood control, and recreation. Both of these facilities provide significant amounts of storage and serve to regulate the flows of the Flathead and Clark Fork rivers, decreasing streamflows during naturally high flow periods and increasing flows during low flow periods. Additional hydropower facilities are located at Bigfork and Big Creek.

Instream Flows DFWP has claimed Murphy Rights on several stream reaches within the Flathead River watershed. The reaches, priority dates, periods, flows, and volumes of these claims are presented in the Tables 3-8 through 3-11. In addition to these Murphy Rights, DFWP may have additional water right claims on selected streams, creeks, ponds, lakes, reservoirs, or swamps in the watershed.

Table 3-8 Murphy Right Claims on the Flathead River (filed under SB 76)

Flow Reach Priority Period (cfs) Flathead Lake to South Fork 12/22/70 8/1 – 4/15 3,500 4/16 – 4/30 6,650 5/1 – 7/15 8,125 7/16 – 7/31 5,402 South Fork to Middle Fork 12/22/70 10/1 – 3/31 1,950 4/1 – 4/15 2,100 4/16 – 4/30 3,597 5/1 – 7/15 5,000 7/16 – 7/31 3,945 8/1 – 9/30 2,100

Table 3-9 Murphy Right Claims on the Middle Fork Flathead River (filed under SB 76)

Flow Reach Priority Period (cfs) Mouth to Bear Creek 12/22/70 8/1– 4/15 850 4/16 – 4/30 1,831 5/1 – 7/15 2,325 7/16 – 7/31 1,904 Bear Creek to Cox Creek 12/22/70 10/1 – 3/31 75 4/1 – 9/30 180

Table 3-10 Murphy Right Claims on the North Fork Flathead River (filed under SB 76)

Flow Reach Priority Period (cfs) Middle Fork to Bowman Creek 12/22/70 10/1 – 3/31 987.5 4/1 – 4/15 1,400 4/16 – 4/30 1,766 5/1 – 7/15 2,625 7/16 – 7/31 2,041 8/1 – 9/30 1,400 Bowman Creek to Border 12/22/70 10/1– 3/31 625 4/1 – 4/15 750 4/16 – 4/30 1,100 5/1 – 7/15 1,500 7/16 – 7/31 1,279 8/1 – 9/30 750

Clark Fork Basin Water Management Plan Chapter 3 Page 18 September 2004 Table 3-11 Murphy Right Claims on the South Fork Flathead River (filed under SB 76)

Flow Reach Priority Period (cfs) Hungry Horse Reservoir to 12/22/70 10/1 – 3/31 600 Powell/Flathead County Line 4/1 – 4/15 700 4/16 – 4/30 1,180 5/1 – 7/15 1,750 7/16 – 7/31 943 8/1 – 9/30 700 Powell/Flathead County Line 12/22/70 4/1 – 9/30 270 to Headwaters 10/1 – 3/31 100

The assessment of existing appropriations in the Flathead River watershed, and indeed the entire Clark Fork River basin, is complicated by the unquantified prior water rights of the Confederated Salish and Kootenai Tribes (CSKT) on and potentially off of the Flathead Reservation. The CSKT claim rights not only on the reservation, but for fishing and hunting off the reservation (instream flows) everywhere in Montana west of the continental divide. Their water rights are senior to those of everyone else in the basin, and that seniority applies to their future as well as past and present uses. In other words, CSKT may want to develop and consume some additional water that could come at the expense of existing water users, or they may desire to commit a greater share of their rights to instream flow protection. Recent Montana Supreme Court decisions extended the Tribes’ right not just to surface water, but also to groundwater. However the water rights of CSKT are eventually quantified, they will have an enormous impact on the legal availability of water to present and future water users. 30

Water Available for Future Use in the Flathead River Watershed Surface Water As with the larger basin, water available for future use in the Flathead River watershed could be dictated by hydropower water rights. The 14,540 cfs turbine capacity at Kerr and the 8,900 cfs turbine capacity at Hungry Horse are of sufficient size to utilize all of the average annual flows of the rivers upon which they are located. The study evaluating the effects of irrigation on hydropower by Cunningham et al. 22 indicated that power generation at facilities with significant storage, such as Kerr and Hungry Horse, is reduced with increasing levels of upstream irrigation. This information suggests that water availability for new surface water development would be limited by existing hydropower water rights in the watershed. This is compounded by limitations presented by Avista’s water rights at Noxon Rapids dam as discussed above. Local water shortages have led to small administrative rule closures in Walker Creek, tributary to the Whitefish River, and Truman Creek, tributary to Ashley Creek.

Groundwater A preliminary water use study of the Upper Flathead Basin by RLK Hydro 15 indicated that unappropriated water exists in all four sub-basins within the watershed. The study also found that 98% of existing appropriations, by volume, are for surface water including hydropower, instream flows, and consumptive uses. Future appropriations are likely to emphasize development of groundwater resources. Information collected by MBMG suggests that sufficient water is available to allow for continued development of shallow aquifer systems in the watershed, but that these resources are susceptible to contamination. The deeper aquifers also appear to contain sufficient water for continued development, but they are becoming more vulnerable to drought. 36

Clark Fork Basin Water Management Plan Chapter 3 Page 19 September 2004 Projected Demand for Future Water Use in the Flathead River Watershed Municipal and Residential Population growth in the Flathead area has been significant, averaging 2.4% a year over the past 10 years. The population of the area is currently over 111,000 people and is expected to continue growing into the foreseeable future. If the population continues to grow at its current rate, then the Flathead River watershed will have a population of over 137,000 people by the year 2020. At the relatively high water use rates exhibited in Missoula County (400 gpd), the added population would require an additional 11,677 acre-feet of water per year, which would translate into a flow rate of about 16 cfs. The preliminary water use study by RLK Hydro 15 indicated that future appropriations for residential uses are likely to emphasize development of groundwater resources.

Irrigation The RLK study indicated that all of the potential agricultural soil is located in the Central Flathead River Valley, an area of 270,000 acres. Currently the basin contains approximately 179,000 irrigated acres. The percentage of the remaining un-irrigated agricultural lands that could be logistically or economically irrigated is unknown. The RLK study found that the rate of new appropriations for agriculture have been declining for approximately 20 years. DNRC records indicate that agricultural development, in terms of number of rights being developed, has been in the range of 1,000-2,200 new uses per decade during the period of 1970 to 2004, although size of these appropriation and size of irrigated parcels may be smaller than pre-1970 agriculture developments.

Bitterroot River Watershed Figure 3-6

The Bitterroot watershed covers the 2,814 square miles drained by the Bitterroot River above its confluence with the Clark Fork River. 27 The watershed is formed by the Bitterroot Mountains to the west and the Sapphire Range to the east. The lowest point in the watershed is defined by USGS gage 12352500 on the Bitterroot River near Missoula. 27 This watershed is also identified as Montana Hydrologic Sub- Basin 76H. The Bitterroot River is fed by the West Fork and East Fork above Darby. Painted Rocks Lake and Lake Como are the largest reservoirs in the watershed.

The 60-mile long Bitterroot Valley averages around 7 miles wide and covers an area of about 430 square miles. Running down the middle of the valley is the 1- to 2-mile wide floodplain of the Bitterroot River. Extensive high benches ranging from 3 to 6 miles in width run along the east and west slopes of the valley. 5 A map of the watershed is provided in Figure 3-6.

Physical Availability of Water in the Bitterroot River Watershed Precipitation and Surface Water Precipitation in this watershed averages 33 inches per year, 31 most of it in the form of snowfall, with greater totals in the higher elevation south. 5. Streamflows leaving the Bitterroot River watershed average 2,193 cfs (1,584,881 acre-feet) 27 annually. Average monthly flows range from a high of 8,525 cfs in June to a low of 889 cfs in September. Figure 3-6 shows the average monthly flows in the Bitterroot watershed. Streamflows in the Bitterroot are regulated, in part, by Painted Rocks Lake

Clark Fork Basin Water Management Plan Chapter 3 Page 20 September 2004 and Lake Como. Both reservoirs are designed to supply water for irrigation, but also provide water for instream flows and recreational purposes. 5

Figure 3-6 Average Monthly Flows in the Bitterroot River near Missoula

Average Monthly Flows Bitterroot River near Missoula

9000

8000

7000

6000

5000

4000

AverageMonthly Flow(cfs) 3000

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0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Month

Groundwater The Bitterroot Valley is a granite bedrock basin filled with predominantly tertiary sediments. Major groundwater supplies come from some surficial alluvium aquifers and ancestral river deposits. The east-side benches also have some shallow aquifers that appear to be supplied largely by water leaking from irrigation canals. 29 Groundwater is of great importance in the valley as most of the population relies on wells for drinking water. 5

The productivity of wells in the watershed varies significantly depending on the composition of the source aquifer. The glacial till and glacial-lakebed deposits found west of the Bitterroot River have low productivities, ranging from 7 to 55 gpm. Wells located on the benches, where new residential development has been highest, are also not highly productive. The fractured bedrock along the valley fringes does not present major aquifers. By contrast, wells tapping the permeable sands and gravels near the center of the basin are highly productive. A water supply well for the City of Hamilton, for example, produces 500 gpm. An irrigation well tapping the same deposits yields 900 gpm. 5

Most of the recharge to the water supply aquifers in this watershed appears to come from flood- irrigated field and irrigation canal leakage. 5 This suggest that the loss of irrigation or increasing irrigation efficiencies by lining canals, replacing canals with pipelines, or switching from flood to sprinkler irrigation would have a negative impact to groundwater supplies in much of the watershed.

MBMG’s Ground Water Assessment Program is in the process of developing a baseline assessment of the groundwater resources of the Bitterroot-Lolo area. This assessment will include information describing the hydrogeologic framework of the area, hydraulic characteristics of the aquifers, and aquifer recharge and discharge characteristics.

Clark Fork Basin Water Management Plan Chapter 3 Page 21 September 2004 Existing Appropriations of Water in the Bitterroot River Watershed The Montana water rights database indicates that as of 1998, there were a total of 8,143 water use appropriations issued within the Bitterroot River watershed, which is the greatest number within any watershed in the Clark Fork River basin. The numbers of appropriations by type of water use is presented in Table 3-12. According to the Johnson report,16 the vast majority of water diverted and consumed in this watershed comes from surface water sources and is used for irrigation.

Diversionary Uses Irrigation Table 3-12 Water Appropriations: Bitterroot Groun Sur face The Bitterroot River watershed contains approximately Purposes Total d water Water 94,000 irrigated acres, representing approximately 20% of Commercial 368 356 12 the irrigated acreage in the basin. Based on the Domestic 10,360 10,223 137 assumptions presented in earlier in this chapter, if all of these acres were fully irrigated, then irrigation in this Flood Control 1 1 watershed would divert or pump more than 465,800 Fire Protection 20 11 9 acre-feet and consume 234,000 acre-feet of water per Fish Raceways 10 1 9 year. Spread out over the irrigation season, this volume Fisheries 75 23 52 of water would translate to a flow of roughly 1,570 cfs in Fish and Wildlife 378 143 235 diversions and consume 785 cfs. It is important to note, Geothermal 9 9 however, that competition between water users in the Geothermal Heating 8 8 basin is high, especially on the tributaries. Many Industrial 29 25 4 farmsteads do not receive full service irrigation. A water Irrigation 6,504 1,814 4,690 commissioner is appointed every year on the Bitterroot Institutional 97 56 41 main stem to ensure the deliveries of stored water. Irrigation Through this process, it is not unusual for main stem - lawn and garden 3,726 3,640 86 users to receive less than full service water supply. Municipal 60 47 13 Multiple Domestic 252 248 4 Municipal and Residential Mining 21 1 20 The Bitterroot River watershed covers all of Ravalli Other Purposes 35 28 7 County and a small portion of southern Missoula County. Pollution The valley contains a series of small cities and towns, Abatement 1 1 including Lolo, Florence, Stevensville, Victor, Corvallis, Power Generation 10 10 Power Generation and Hamilton. All together, just over 70,000 people live Nonconsumptive 4 4 8 in the watershed. According to DNRC, the per capita Recreation 164 95 69 water use in this watershed is among the highest in the Storage 4 4 state, averaging 409 gpd in Missoula County and 456 gpd in Ravalli County. About half of the water withdrawn for Sale 1 1 municipal uses comes from groundwater and the other Stockwater 5,897 3,251 2,646 half from surface water sources. If all 70,000 people in Wildlife 7 5 2 Wildlife & the watershed used water at the rate of 430 gpd, then the Waterfowl 52 29 23 municipal water use would total about 33,700 af per year, Other 2 2 which translates in to a flow rate of approximately 47 cfs. Total 28,096 20,016 8,079 DNRC records have nearly 11,200 domestic, multiple domestic, and municipal uses, 98% of which are supplied by groundwater developments.

Non-Diversionary Uses Hydropower

Clark Fork Basin Water Management Plan Chapter 3 Page 22 September 2004 There are no major hydropower facilities in the Bitterroot River watershed. However, like all of the watersheds in the basin, water consumption in the watershed will impact water availability at the downstream hydropower facilities on the Clark Fork River main stem.

Instream Flows DFWP has not claimed Murphy Rights on any stream reaches within the Bitterroot River watershed. DFWP has claims before the Montana Water Court in the statewide adjudication on selected water bodies, and has Painted Rocks and Lake Como water under contract for instream flow. Three small leases have been approved and two are pending on tributaries for instream flow.

Water Available for Future Use in the Bitterroot River Watershed People of the Bitterroot River watershed have been in conflict over water resources since the late 1800s. Changing populations, growth, and development have brought considerable transformation to both the land use and the culture. Such changes have often been divisive. 32

Surface Water About 55% of the runoff in the Bitterroot River occurs in May and June. During summer, withdrawals for irrigation significantly reduce summer streamflows in the Bitterroot River and some of its tributaries. In the northern portion of the watershed, downstream from Hamilton, some stretches routinely approach the minimum flows required to support fisheries. Irrigation return flows, however, tend to augment stream flows in the fall and early winter. 5

Chronic water shortages in the Bitterroot Valley have led to a temporary basin closure. This means that all of the sub-basins within the Bitterroot River watershed are closed to new appropriations and new state water reservations for surface water. Sharrott Creek and Willow Creek, two tributaries of the Bitterroot River, have been closed by administrative rule.

Groundwater The basin fill deposits in the center of the Bitterroot Valley appear to contain considerable groundwater. Studies suggest that up to 21 million acre-feet of water are available in this aquifer. 5

Population growth is greatest on the benches along the fringes of the Bitterroot Valley. The aquifers on the benches are shallow, have low productivities, and appear to be supported by irrigation canal leakage. Changing land use from irrigation to residential use will reduce the need for irrigation canal diversions, which in turn will reduce canal flows and leakage and thus reduce aquifer recharge. This combination will likely lead to increasing conflicts among groundwater users in the valley fringes.

The basin closure in the Bitterroot does not apply to groundwater resources, but the Larson Creek area within the watershed has been designated as Controlled Groundwater Area.

Demand for Future Water Use in the Bitterroot River Watershed Municipal and Residential The population of the Bitterroot Valley has been growing faster than any other watershed in the basin, averaging almost 3% a year over the past 10 years. Much of the population growth has been concentrated on the east and west benches on the sides of the valley. 5 The population of the watershed is currently over 70,000 people and is expected to continue growing into the foreseeable future. If the population continues to grow at its current rate, then the Bitterroot River watershed will have a population of over 91,000 people by the year 2020. At the high use rates exhibited in Missoula County (400 gpd), the added population would require an additional 9,413 acre-feet of water per year, which would translate into a flow rate of about 13 cfs.

Clark Fork Basin Water Management Plan Chapter 3 Page 23 September 2004 Irrigation Irrigation has been the dominant land use in the Bitterroot Valley. More recently, however, the growing population of the valley has led to subdivision and sale of historically irrigated acreages for residential uses. 5 These conversions have not necessarily reduced the lands under irrigation, but the size of the irrigated unit and the crops irrigated have changed. Estimating the projected demand for future water use by irrigation requires knowing the amount of irrigable lands remaining in the watershed. Data describing the irrigation potential of this watershed are not readily available.

Blackfoot River Watershed Figure 3-7

The Blackfoot watershed covers 2,290 square miles drained by the Blackfoot River above its confluence with the Clark Fork River. The lowest point in the watershed is defined by USGS gage 12340000 on the Blackfoot River near Bonner. 27 This watershed is also identified as Montana Hydrologic Sub-Basin 76F. 28 Major tributaries in the basin include the Clearwater River, the North Fork Blackfoot River, Landers Fork, and Nevada Creek. The watershed is also home to numerous ponds and lakes, including Kleinschmidt Lake, Lake Alva, Lake Inez, Seeley Lake, and Salmon Lake. A map of the watershed is provided in Figure 3-7.

Physical Availability of Water in the Blackfoot River Watershed Precipitation and Surface Water Precipitation in this watershed is averages just over 29 inches Figure 3-8 Average Monthly Flows per year, 31 which is slightly in the Blackfoot River near Bonner greater than the average for Average Monthly Flows the basin. Average annual Blackfoot River near Bonner flows leaving the Blackfoot 6000 River watershed are 1,573 cfs (1,136,807 acre-feet), 27 5000 representing less than 10% of the flow in the Clark Fork at 4000 Noxon. Average monthly flows range from a high of 3000

4,950 cfs in June to a low of AverageMonthly(cfs) Flow 2000 556 cfs in January.

Streamflows at the end of the 1000 irrigation season (September) 0 average 675 cfs. The average Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec monthly flows are illustrated Month in Figure 3-8.

Clark Fork Basin Water Management Plan Chapter 3 Page 24 September 2004 Groundwater The Blackfoot watershed is topographically diverse, composed of several regions with different groundwater characteristics. In the lower part of the watershed, unconfined alluvium and glacial outwash are the primary aquifers. Groundwater from these aquifers is generally accessible at shallow depths and at yields ranging from 20 to 25 gpm. Glacial till deposits are extensive throughout in the lower part of the Watershed, but do not represent a major aquifer. Other geologic formations present in the area are capable of producing water, but generally have low productivity values. Wells located in fractured volcanic rock are capable of producing substantial amounts of water, but these highly productive fractures are difficult to locate. Fractured bedrock aquifers are not high yielding, but are usually capable of producing sufficient water for domestic use.

In the upper part of the watershed, shallow course-grained alluvial deposits form the primary aquifer. Alluvium within the tributary valleys tends to be less productive than near the Blackfoot main stem. Bedrock aquifers surrounding the valleys are quite variable in productivity, but some provide sufficient water for domestic use. 5

Groundwater is an important resource in the Blackfoot River watershed because it is the sole or primary source of domestic and municipal water to most of the residents. More than 50% of the 3,500 groundwater uses are for domestic/municipal uses. Groundwater is also being used for lawn and garden irrigation and stock water. Traditional irrigation represents only 5% of the current developments.

Table: 3-13 Water Appropriations: Blackfoot Existing Appropriations of Water in the Ground Surface Blackfoot River Watershed Purposes Total water Water The Montana water rights database indicates a total of Commercial 78 69 9 6,450 water use appropriations in the Blackfoot River Domestic 2,301 1934 367 watershed. Surface water supplies 2,900 of these Fire Protection 12 4 8 appropriations and groundwater nearly 3,600. The Fisheries 7 2 5 numbers of appropriations by water use category is Fish and Wildlife 132 65 67 presented in Table 3-13. Geothermal 1 1 Although stock water represents the greatest number Industrial 18 8 10 of water uses, the vast majority of the water diverted Irrigation 1,126 204 922 and consumed in the watershed is for irrigation, Institutional 6 6 almost all of which comes from surface water Lawn and garden 446 425 21 sources. 16 Municipal 6 4 2 Multiple Domestic 38 36 2 Diversionary Uses Mining 137 25 112 Irrigation Other Purposes 6 3 3 The Blackfoot River watershed contains Observation and Testing 7 2 5 approximately 44,280 irrigated acres. Based on the Power Generation 7 1 6 assumptions presented earlier in this chapter, if all of Recreation 94 12 82 these acres were fully irrigated then irrigation in this Storage 1 1 watershed would divert close to 217,000 acre-feet and Stockwater 1,869 743 1126 consume 80,486 acre-feet of water per year. Spread Wildlife 143 28 115 out over the irrigation season, this volume of water Wildlife & Waterfowl 11 6 5 would translate to a flow of roughly 730 cfs in Other 6 5 1 diversions and 365 cfs consumed. Although to a Total 6452 3583 2869 lesser decree, the Blackfoot is also seeing changing

Clark Fork Basin Water Management Plan Chapter 3 Page 25 September 2004 water user patterns. Of the roughly 450 irrigation water rights for irrigation of lawns and garden, 425 rely on groundwater developments. Four hundred of these lawn and garden developments occurred after January 1970. Only 94 groundwater sources were developed after 1970 to supply traditional irrigation.

Municipal and Residential The Blackfoot River watershed covers portions of Lewis and Clark, Powell, and Missoula counties. Cities and towns in the watershed include Milltown and Lincoln. With a population of less than 6,000 people, the Blackfoot is the least populated watershed in the basin. The Montana water rights database indicates about 2,500 water rights for municipal and domestic uses, just over 2,000 of which are from groundwater.

Non-Diversionary Uses Hydropower There are no major hydropower facilities in the Blackfoot River watershed. The Blackfoot discharges into the Clark Fork River just above Milltown Dam. The small diversion dam near the river mouth behind Stimpson Lumber was used for power generation and other purposes. This dam is scheduled for removal in 2006-2007 as a part of the Super Fund cleanup of Milltown Dam. Milltown Dam is discussed in the Upper Clark Fork River watershed profile.

Instream Flows DFWP has claimed Murphy Rights on two stream reaches within the Blackfoot River watershed. The reaches, priority dates, and period, flow and volume of these claims are presented in Table 3-14. In addition to these Murphy Rights, DFWP may have claims before the Montana Water Court in the statewide adjudication on selected waterbodies.

Table 3-14 Murphy Right Claims on the Blackfoot River (filed under SB 76)

Flow Reach Priority Period (cfs) Mouth to Clearwater River 1/6/71 9/1 – 3/31 650 4/1 – 4/15 700 4/16 – 4/30 1,130 5/1 – 6/30 2,000 7/1 – 7/15 1,532 7/16 – 8/31 700 Mouth to Clearwater River 1/6/71 9/1 – 3/31 360 4/1 – 4/30 500 5/1 – 5/15 837 5/16 – 6/15 1,750 6/16 – 6/30 1,423 7/1 – 7/15 848 7/16 – 8/31 500

Water Available for Future Use in the Blackfoot River Watershed Surface Water Surface water is one of the most important natural resources in the Blackfoot River watershed. The Blackfoot River is classified as a Class I trout stream, and its waters are used extensively for irrigation and for instream uses, including wildlife habitat, fishing, and boating. 5 Upper basin water shortages have led to a permanent closure of the upper Clark Fork River basin, including the entire Blackfoot River watershed. The closure does not apply to stock water or water for storage for beneficial uses.

Clark Fork Basin Water Management Plan Chapter 3 Page 26 September 2004 Groundwater With a sparse population and most irrigators using surface water sources, demand on the groundwater resources in the Blackfoot River watershed has been limited. The basin closure does not apply to groundwater or water for domestic use. However, additional statutory criteria for groundwater appropriations do exist. An applicant proposing a groundwater appropriation in the Blackfoot and upper Clark Fork basin must submit a hydrologic report assessing surface and groundwater interactions. A project with an immediate or direct connection to surface water cannot be approved.

Projected Demand for Future Water Use in the Blackfoot River Watershed Municipal and Residential Population growth in the Blackfoot has averaged 1.3% a year over the past 10 years. If the population of the watershed continues to grow at its current rate, then it will have a population of 7,600 people by the year 2020. At the water use rates exhibited in Missoula County (400 gpd), the added population would require an additional 405 acre-feet of water per year, which would translate into a flow rate of about 1 cfs. Current trends indicate that the source of the additional water would be groundwater.

Irrigation Currently the basin contains approximately 44,280 irrigated acres, almost all of which are irrigated from surface water sources. The projected demand for future water use by irrigation depends, in part, on the amount of irrigable lands remaining in the basin and the frequency of future droughts. Every year since 2000, Blackfoot water users have seen late season curtailment of irrigation and other consumptive uses as stream flows fell below the 700 cfs instream flow water right. These curtailments are an indication of limited surface water supply after runoff, especially in years with low snow pack. Data describing the irrigation potential of this watershed are not readily available.

Upper Clark Fork River Watershed Figure 3-9

The Upper Clark Fork River watershed shown in Figure 3-9 covers 3,641 square miles. The lowest point in the watershed is defined by USGS gage 12334550 Clark Fork River at Turah. 27 This watershed is made up of three smaller hydrologic sub- basins: the Upper Clark Fork (76G) above Missoula, Flint Creek (76E), and Rock Creek (76GJ). 28 Major tributaries in the basin include Flint Creek, Rock Creek, Little Blackfoot River, and Warm Springs Creek .

Physical Availability of Water in the Upper Clark Fork River Watershed Precipitation and Surface Water Average annual flows leaving the Upper Clark Fork River watershed are 1,206 cfs (873,300 acre-feet), representing about 35% of the flow in the Clark Fork River at Noxon. Average monthly flows range from a high of 7,090 cfs in June to a low of 271 cfs in February.

Clark Fork Basin Water Management Plan Chapter 3 Page 27 September 2004 Groundwater Like much of the basin, the groundwater systems in the upper Clark Fork River watershed are generally characterized by a combination of basin fill aquifers on the valley floor with fractured bedrock aquifers at the valley fringes. In the upper Clark Fork valley, basin fill aquifer systems provide domestic water to almost all area residents, including the municipal supplies for Anaconda and Deer Lodge.

A study of irrigation return flows conducted by DNRC in the Flint Creek area 33 found that deep percolation from irrigation filled and maintained high water levels in the aquifer throughout the irrigation season. Groundwater levels drop after the irrigation season, reaching annual lows in winter. Return flow traveling through the aquifers was greatest during fall, but continued throughout winter. The timing of the return flow varies depending on the characteristic of the underlying aquifer. In full shallow aquifers, return flow occurs quickly and may be available to downstream irrigators almost immediately. In aquifers with greater storage capacity, return flow does not benefit the stream until later in fall, after the irrigation season. MBMG’s Ground Water Assessment Program is in the process of developing a Table 3-16 Appropriations: Upper Clark Fork baseline assessment of the groundwater resources of the Basin Upper Clark Fork area. This assessment will include Ground Surface information describing the hydrogeologic framework of the Purpose Total Water Water area, hydraulic characteristics of the aquifers, and aquifer Agricultural Spraying 1 1 recharge and discharge characteristics. Commercial 204 195 9 Domestic 4008 3852 156 Flow Through Fish Existing Appropriations of Water in the Upper Clark Pond 1 1 Fork River Watershed Fire Protection 15 10 5 There are a total of just over 12,000 water use Fish Raceways 10 3 7 appropriations issued within the Upper Clark Fork River Fisheries 11 5 6 watershed. Some 7,800 hundred use groundwater supplies Fish and Wildlife 80 14 66 and nearly 4,300 rely upon surface water. The number of Geothermal 2 2 appropriations among water uses is presented in Table 3- Geothermal Heating 3 3 16. Traditional irrigation supplied by surface water sources Industrial 126 63 63 accounts for nearly 3,000 water uses, and Irrigation 2955 644 2311 domestic/municipal uses supplied by groundwater sources Institutional 11 10 1 for just over 3,000 uses. Irrigation - lawn and garden 1092 1073 19 Diversionary Uses Municipal 40 28 12 Irrigation Multiple Domestic 77 74 3 The watershed includes approximately 121,000 irrigated Mining 204 61 143 acres, which represent less than 25% of the total irrigated Other Purposes 9 6 3 acres in the basin. While most of the water supply for Observation and Testing 4 4 irrigation comes from surface water sources, groundwater Pollution Abatement 7 7 supplies much of the irrigated acreage within the Missoula Power Generation 14 14 valley. Based on the assumptions presented earlier in this Power Generation - chapter, if all of these acres were fully irrigated, then Non consumptive 1 1 irrigation in this watershed would divert nearly 592,900 Recreation 54 35 19 acre-feet and consume close to 296,450 acre-feet of water Storage 3 3 per year. Spread out over the irrigation season, this volume Stockwater 3096 1682 1414 of water would translate to a flow of roughly 1,990 cfs in Wildlife 55 23 32 diversions and 996 cfs consumed. Wildlife & Waterfowl 12 9 3 Other 6 5 1 Municipal and Residential Total 12,101 7,803 4,298

Clark Fork Basin Water Management Plan Chapter 3 Page 28 September 2004 The upper Clark Fork River watershed covers parts of Silver Bow, Deer Lodge, Powell, and Missoula counties, and all of Granite County. The largest cities in the watershed include Philipsburg, Deer Lodge, Anaconda, and Butte. The population totaled close to 58,000 people in the year 2002. Most communities in the watershed, including Missoula, derive their municipal water supply from groundwater. The exceptions are Butte and Philipsburg, which use surface water sources for their municipal water supplies.

Non-Diversionary Uses Hydropower Georgetown Lake was constructed as a hydropower facility and still has a water right for that purpose. However, it is not in operation and no longer has an active Federal Energy Regulatory Commission license. Ownership has been transferred to Granite County, which is pursuing a renewed license.

Instream Flows DFWP has claimed Murphy Rights on two stream reaches within the upper Clark Fork River watershed. The reaches, priority dates, and period, flow, and volume of these claims are presented in Table 3-17. In addition to these Murphy Rights, DFWP may have claims before the Montana Water Court in the statewide adjudication on selected water bodies.

Table 3-17 Murphy Right Claims on Rock Creek (filed under SB 76)

Flow Reach Priority Period (cfs) Ranch Creek to Mouth 1/6/71 7/16– 4/30 250 5/1 – 5/15 454 5/16 – 5/31 975 6/1 – 6/15 926 6/16 - 6/30 766 7/1 – 7/15 382 Confluence of West Fork 1/7/71 7/16 – 4/30 150 and Middle Fork to Ranch Creek 5/1 – 5/15 454 5/16 – 5/31 975 6/1 – 6/15 926 6/16 - 6/30 766 7/1 – 7/15 382

Water Available for Future Use in the Upper Clark Fork River Watershed Surface Water Local water shortages have led to a permanent basin closure of the upper Clark Fork River basin above Milltown Dam. The Deer Lodge and Flint Creek valleys are intensely irrigated and water supplies are often limited. Historic stream reach decrees have controlled operations, especially during low water years, in these portions of the basin for decades. This watershed has several moderate-sized and many small storage reservoirs dedicated primarily to supplemental irrigation. The general consensus among basin residents is that storage of high spring surface flows may provide future water supplies.

Groundwater The basin fill aquifers are generally productive and considered to contain abundant water. Return flows and artificial recharge driven by irrigation frequently have a significant role in groundwater supplies, especially in the tertiary sediments of Flint Creek and in the Deer Lodge area. The Rock Creek valley floor is narrow and constrained. The alluvial aquifer that underlies it is the primary

Clark Fork Basin Water Management Plan Chapter 3 Page 29 September 2004 source of water for most new developments, but its extent is limited. Local water quality problems have led to the designation of Warm Springs Ponds and Rocker groundwater areas as Controlled Groundwater Areas.

Projected Demand for Future Water Use in the Upper Clark Fork River Watershed Municipal and Residential Population growth in the upper Clark Fork River watershed has averaged about 1% a year over the past 10 years, with some areas growing at significantly higher rates. If the population continues to grow at its current rate, then the Upper Clark Fork River watershed will have a population of almost 68,000 people by the year 2020. At the water use rates exhibited in Missoula County (400 gpd), the added population would require an additional 3,113 acre-feet of water per year, which would translate into a flow rate of about 5 cfs.

Irrigation Currently, the basin contains approximately 121,000 irrigated acres. The projected demand for future water use by irrigation depends, in part, on the amount of irrigable lands remaining in the basin and on the ability to store surface supplies or find hydrological unconnected groundwater. Water transfers, i.e., moving water to more productive lands, likely will be used for most new irrigation developments. Data describing the irrigation potential of this watershed is not readily available. Figure 3-10 Middle Clark Fork River Watershed

The Middle Clark Fork River watershed encompasses 1,108 square miles. The lowest point in the watershed is defined by USGS gage 12354500 Clark Fork River at St. Regis. 27 This watershed is made up of a single hydrologic sub-basin—the middle Clark Fork.. 28 The basin is formed by the confluence of the Blackfoot, Upper Clark Fork, and Bitterroot Rivers. Major tributaries in the basin include the St. Regis River and Ninemile Creek.

Physical Availability of Water in the Middle Clark Fork River Watershed Precipitation and Surface Water The high mountains on the west side of the watershed tend to form a rain shadow, the result of which is that precipitation in this watershed is the lowest in the Clark Fork River basin, averaging 28 inches per year. Average annual flows leaving the Middle Clark Fork River watershed are 7,352 cfs ( 5,212,290 acre-feet), representing about 35% of the flow in the Clark Fork at Noxon. Average monthly flows range from a high of 22,370 cfs in June to a low of 3,048 cfs in September. The average monthly flows are illustrated in Figure 3-11.

Groundwater As is the case in the Upper Clark Fork River watershed, the groundwater systems in the Middle Clark Fork River watershed are generally characterized by a combination of basin fill aquifers on the valley floor with fractured bedrock aquifers at the valley fringes. The productivity of wells in this

Clark Fork Basin Water Management Plan Chapter 3 Page 30 September 2004 area ranges from 70 to 2,400 gpm. Wells in the bedrock are typically less productive but are generally sufficient to provide water for domestic use. Selected wells completed in bedrock aquifers are highly productive, with yields of 750 gpm. 5

With reported yields as high as 2,300 gpm, the Missoula Valley contains one of the most prolific alluvial aquifers in the world. This aquifer provides water to most of the area residents, the Smurfit- Stone paper mill in Frenchtown, and thousands of acres of irrigation. It has been estimated that basin fill in the southern part of the valley contains about 8 million acre-feet of water. The sand and gravel aquifer underlying the City of Missoula has been designated a Sole-Source Aquifer by the USEPA. Close to 10 billion gallons are pumped from this aquifer each year. Mountain Water Company alone pumps up to 46 million gpd. By contrast, wells completed in the tertiary sediment and fractured bedrock at the valley fringes are of much lower productivity and are typically limited to domestic or stock water supply. 5

Figure 3-11 Average Monthly Flows in the Clark Fork River at St. Regis

Average Monthly Flows Clark Fork River at St. Regis

25,000

20,000

15,000

10,000 AveageMonthly Flow(cfs)

5,000

0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Month

MBMG’s Ground Water Assessment Program has developed a baseline assessment of the groundwater resources for most of the middle Clark Fork area while working on the Bitterroot Basin. This assessment includes information describing the hydrogeologic framework of the area, hydraulic characteristics of the aquifers, and aquifer recharge and discharge characteristics.

Existing Appropriations of Water in the Middle Clark Fork River Watershed DNRC water rights records as of June 2004 include more than 10,000 water use appropriations issued within the Middle Clark Fork River watershed. Roughly 8,000 appropriations are supplied by groundwater and 2,000 by surface water. The number of appropriations by water uses is presented in Table 3-18 below.

Clark Fork Basin Water Management Plan Chapter 3 Page 31 September 2004 Irrigation has the greatest number of water rights and is the greatest consumer of water in the basin, the vast majority of which comes from surface water sources. 16

Diversionary Uses Irrigation This watershed contains approximately 16,800 irrigated acres, representing nearly 8% of the total irrigated acres in the basin. Most of the water supply for irrigation comes from surface water sources. Within the Missoula Valley, groundwater supplies most of the lawn and garden irrigation acreage. Four irrigation districts—Missoula, Hellgate, Orchard Homes, and Frenchtown—still service the Missoula Valley with active headgate and distribution systems. Based on the assumptions presented earlier in this chapter, if all of these acres were fully irrigated then irrigation in this watershed would divert nearly 82,320 acre-feet and consume close to 41,160 acre-feet of water per year. Spread out over the irrigation season, this volume of water would translate to a diversionary flow of roughly 280 cfs and 140 cfs consumed.

Table 3-18 Municipal and Residential The Middle Clark Fork River watershed covers parts of Ground Surface Missoula and Mineral counties. The largest cities in the Purpose Total Water Water Augmentation 1 1 watershed are Superior and Missoula. The population Agricultural in the watershed is the largest in the basin, totaling Spraying 2 1 1 close to 105,000 people in the year 2000. Most Commercial 401 387 14 communities in the watershed, including Missoula, Domestic 4242 4088 154 derive most of their municipal water supplies from Fire Protection 45 31 14 groundwater. Fish Raceways 3 1 2 Fisheries 21 8 13 Non-Diversionary Uses Fish and Wildlife 59 31 28 Hydropower Geothermal 10 10 Milltown Dam, owned and operated by Northwestern Geothermal Heating 2 2 Energy (formerly MPC), is the only major hydropower Industrial 109 94 15 facility in the watershed. Milltown is a run-of-the river Irrigation 1652 689 963 dam with a turbine capacity of 2,000 cfs, which is less Institutional 27 23 4 Irrigation - lawn and than the average annual flow of the Clark Fork River at garden 1483 1458 25 that point. Flows at this dam are affected by water uses Municipal 78 61 17 in the both the Upper Clark Fork River and Blackfoot Multiple Domestic 168 165 3 River watersheds. However, due to the long-term Mining 105 8 97 accumulation of mine-contaminated sediments behind Other Purposes 11 9 2 the dam, USEPA has recommended removing both the Pollution Abatement 1 1 contaminated sediments and the dam by 2006-2007. Power Generation 28 11 17 The clean-up plan includes restoring the river to Recreation 104 27 77 emulate natural conditions. Stockwater 1503 1072 431 Wildlife & Waterfowl 4 4 Instream Flows Other 5 4 1 DFWP has not claimed any Murphy Rights in the Grand Total 10,064 8,186 1,878 Middle Clark Fork River watershed. Small instream flow leases have been established in the Ninemile Drainage.

Clark Fork Basin Water Management Plan Chapter 3 Page 32 September 2004 Water Available for Future Use in the Middle Clark Fork River Watershed Surface Water Several tributaries to the Clark Fork River have been closed to most new surface water righter via administrative rule, including Grant, Houle, and Sixmile creeks. Tributaries within this basin are typically small and heavily appropriated, especially near Missoula. Many of these tributaries, such as Grant, LaValle, and O’Keefe creeks, also lose considerable flow as they move across the valley fill. The Clark Fork mainsteam has several large irrigation diversions in the Missoula valley, but these rarely cause allocation concerns for other uses. Below Missoula, the river becomes entrenched so that lift and pumping costs limit irrigation. Also, the valley floor is narrow, with a limited amount of potentially irrigable lands. Surface water supplies are either locally limited or constrained by downstream water demands—primarily hydropower.

Groundwater The basin fill aquifers are productive and considered to contain abundant water. Population growth, however, is increasing in the valley fringes where tertiary sediments and bedrock fractures must be used as water sources. Increasingly, residents are reporting inadequate water supply from these aquifers for domestic use. 5 Local water shortages or water quality problems have led to the designation of Hayes Creek as Controlled Groundwater Area. Local geology also limits groundwater development. Glaciated and faulted tributary valleys, such as Ninemile and Sixmile, can be extremely variable in their groundwater supplies. The glacial deposits are characterized by silts and clays with poor permeability inter-fingered with water-yielding fine-grain sediments.

Projected Demand for Future Water Use in the Middle Clark Fork River Watershed Municipal and Residential Population growth in the Middle Clark Fork River watershed has averaged about 30% during the 1990s, with some areas growing at significantly higher rates. If the population continues to grow at its current rate, then the Middle Clark Fork River watershed will have a population of almost 136,000 people by the year 2020. At the water use rates exhibited in Missoula County (400 gpd), the added population would require an additional 14,000 acre-feet of water per year, which would translate into a flow rate of about 19 cfs.

Irrigation Currently the basin contains approximately 16,800 irrigated acres. The projected demand for future water use by irrigation dep demands. Data describing the irrigation potential of this watershed are not readily available.

Lower Clark Fork Watershed Lower Clark Fork River Watershed

The Lower Clark Fork River watershed is the most downstream watershed within the Clark Fork River basin before the river leaves Montana at the Idaho border. The lowest point of the watershed is defined by USGS gage 12391400 on the Clark Fork River below Noxon Rapids Dam near Noxon. 27 The watershed covers an area of 2,329 square miles, but at this point the Clark Fork River drains a total area of 21,833 square miles. This watershed is also identified as Montana Hydrologic sub-basin 76N. 34

Clark Fork Basin Water Management Plan Chapter 3 Page 33 September 2004 Major tributaries in the watershed include Thompson Figure 3-12 River, Prospect Creek, Trout Creek, and Bull River. This watershed is also home to a series of reservoirs formed by dams on the Clark Fork main stem. A map of the watershed is provided in Figure 3-12.

Physical Availability of Water in the Lower Clark Fork River Watershed Precipitation and Surface Water The relatively low elevation and western location of this watershed combine to amplify the humidifying effect of the Pacific air masses. The result is that precipitation in this watershed is the second highest in the Clark Fork River basin, averaging 36.79 inches per year. Average annual flows leaving the Lower Clark Fork River watershed are 20,504 cfs (14,818,240 acre-feet). The accretion of flows within the Lower Clark Fork watershed contribute 1.19 million acre-feet to the total outflow, after the contribution of the Flathead and Upper Clark Fork are deducted. This converts to an average annual flow of 1,644 cfs (and does not include Bull River, as the gage is located upstream of its confluence with the Clark Fork). Flows in the Lower Clark Fork are regulated by Kerr and Hungry Horse dams upstream in the Flathead River watershed, and by Thompson Falls, Noxon Rapids, and Cabinet Gorge dams on the Clark Fork River main stem. 5 Average monthly flows range from a high of 50,190 cfs in June to a low of 10,270 cfs in September. The average monthly flows are illustrated in Figure 3-13.

Figure 3-13 Average Monthly Flows in the Clark Fork River below Noxon Rapids Dam

Average Montly Flows Clark Fork River below Noxon Rapids Dam

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50,000

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30,000

Aveage Montly Flow (cfs) 20,000

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0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Month

Groundwater Groundwater is an important resource in this watershed, supplying the domestic needs of almost all area residents, including municipal supplies for Thompson Falls, Trout Creek, Noxon, and Huron. The aquifer systems for these supplies are comprised of glacial deposits underlain and surrounded by bedrock. The glacial deposits are characterized by silts and clays with poor permeability inter-

Clark Fork Basin Water Management Plan Chapter 3 Page 34 September 2004 fingered with water-yielding fine-grain sediments. Productivity of wells in these aquifers can be as high as 1,500 gpm. Wells located near the river are hydraulically connected to the river and are affected by reservoir operations. Fractured bedrock aquifers in the valley fringes are of limited productivity, but can be used for domestic water supplies.5

Existing Appropriations of Water in the Lower Clark Fork River Watershed A total of 4,380 water use appropriations have been issued within the Lower Clark Fork River watershed. The number of appropriations among water uses is presented in Table 3-19.

Domestic/municipal uses represent 50% of the total water rights in this basin. The largest number of surface water rights is for irrigation, and irrigation consumes the most water of any use in this Watershed. Power generation uses by far the most water by flow and volume.

Diversionary Uses Irrigation The Lower Clark Fork River watershed contains nearly 12,150 acres of irrigated land. Based on the assumptions presented earlier in this chapter, if all of these acres were fully irrigated then irrigation in this watershed would divert close to 56,000 acre-feet and consume 25,500 acre-feet of water per year. Spread out over the irrigation season, this volume of water would translate to a flow of roughly 170 cfs in diversions and less than 85 cfs consumed.

Municipal and Residential Table 3-19

Ground Surface The Lower Clark Fork River watershed is located entirely Purpose All Water Water within Sanders County. Thompson Falls is the largest city in Agricultural Spraying 9 7 2 the watershed. The 2000 census indicates that 7,769 people Commercial 88 76 12 live within this watershed. Most of the water supply for Domestic 2018 1748 270 municipal uses comes from groundwater, but about 20% Erosion Control 1 1 8 comes from surface water sources. Flood Control 1 1 Fire Protection 22 8 14 Non-Diversionary Uses Fish Raceways 4 3 1 Hydropower Fisheries 12 3 9 The Lower Clark Fork River watershed is home to the Fish and Wildlife 53 8 45 Thompson Falls and Noxon Rapids dams and most of the Industrial 35 15 20 reservoir behind the Cabinet Gorge Dam, which lies across the Irrigation 577 265 312 border in Idaho. The Thompson Falls dam, owned by PPL Institutional 4 4 Montana, is a run-of-the-river facility and has a turbine capacity Irrigation - lawn less than the average annual flow of the river. Avista and garden 539 492 47 Municipal 13 10 3 Corporation owns Noxon Rapids and Cabinet Gorge dams. Multiple Flows from Noxon Rapids Dam immediately enter Cabinet Domestic 70 68 2 Gorge reservoir. 2 Cabinet Gorge generates power and serves as Mining 7 3 4 a re-regulation reservoir for flows leaving Noxon. Other Purposes 3 3 Observation and Testing 3 2 1 Noxon Rapids and Cabinet Gorge dams have relatively recent Power water rights, but Noxon Rapids, with a turbine capacity of Generation 36 3 33 50,000 cfs, is of sufficient size to utilize almost all river flows Recreation 29 4 25 that occur at the site.35 In addition, as of 1998, Montana water Stockwater 846 572 274 Wildlife 1 1 right records indicated that 7,805 (30%) of the 26,274 surface Wildlife & water uses in the Clark Fork River basin are junior to the Waterfowl 11 5 6 earliest (1951) water right at Noxon Rapids Dam. Some 3,125 Other Purposes 1 1 Total 4383 3298 1085

Clark Fork Basin Water Management Plan Chapter 3 Page 35 September 2004 (12%) uses are junior to the latest (1974) Noxon Rapids water right. The uses with junior rights include 2,518 (32%) municipal, domestic, and other in-city uses, and 1,268 (16%) stock water uses.

Instream Flows DFWP has claimed no Murphy Rights within the Lower Clark Fork River Watershed. DFWP may have claims before the Montana Water Court in the statewide adjudication on selected water bodies.

Water Available for Future Use in the Lower Clark Fork River Watershed Surface Water As with the larger basin, water availability in the Lower Clark Fork River watershed could be dictated by hydropower water rights at Noxon Rapids Dam.

Groundwater With sparse population and few irrigators using groundwater, there appears to be little pressure on the groundwater resources of this watershed.

Projected Demand for Future Water Use in the Lower Clark Fork River Watershed Municipal and Residential Population growth in the Lower Clark Fork River watershed area has averaged 1.3% a year over the past 10 years. The population of the area is currently just over 8,800 people. If the population continues to grow at its current rate, then the watershed will have a population of over almost 10,000 people by the year 2020. At the water use rates exhibited in Missoula County (400 gpd), the added population would require an additional 530 acre-feet of water per year, which would translate into a flow rate of about 1 cfs.

Irrigation Currently, the watershed contains few irrigated acres. The projected demand for future water use by irrigation depends, in part, on the amount of irrigable lands remaining in the basin. Data describing the irrigation potential of this watershed are not readily available.

Gaps in Information and Knowledge

The purpose of this water management plan is to (1) identify options to protect the security of water rights; (2) provide for the orderly development of water; and (3) provide for the conservation of water in the future. Though these tasks are largely a matter of policy, addressing them requires a foundation of information and knowledge describing the complex interactions among existing and potential future water uses and the water supplies they both tap and affect.

This section describes some of the gaps in information and knowledge encountered during the development of the watershed profile and the additional information and knowledge that would be useful to build the foundation for future basin planning and management efforts.

Physical Availability of Water Precipitation and Surface Water Precipitation data by sub-basin are readily accessible on-line through the NRIS Interactive Mapper system. Streamflow data are readily accessible on-line through the USGS.

Groundwater Information describing the groundwater resources in the basin is only available for selected locations. It tends to focus on geologic development, with limited information available describing

Clark Fork Basin Water Management Plan Chapter 3 Page 36 September 2004 sustainable yields, flow patterns, influence of existing water users, and other information needed for the purposes of watershed planning and management.

MBMG continues to conduct studies and long-term monitoring programs in many areas of the basin. However, many of the monitoring sites are private wells, rendering their data less reliable. These wells were constructed for a purpose other than groundwater monitoring, and access to them is dependent on the voluntary participation of the well owner. MBMG says that insufficient data characterizing the volume, quantity, and flow patterns of the state’s groundwater is hampering efforts to properly manage, protect, and develop groundwater resources. 29 MGMB would like to develop a groundwater monitoring infrastructure that contains dedicated monitoring wells with permanent access located in areas and at depths to best monitor and study the basins aquifers. 36

It would also be useful if MBMG and others could evaluate the groundwater hydraulics of those aquifers underlying irrigated areas to better understand return flow patterns and quantities. Planning efforts would also benefit from estimates of sustainable yields from aquifers that are currently used. All information collected and developed should be made available on-line, perhaps by coordinating the effort of MBMG and NRIS.

Surface water – Groundwater Interconnections Awareness is increasing that surface-groundwater interconnections are an important component of water management. These interactions need to be understood in order to evaluate water availability for new wells and the potential impacts of improving irrigation efficiency. Understanding the surface water-groundwater interconnection will require describing groundwater hydraulics for those aquifers affected by wells and irrigation. This understanding will likely require extensive field work and modeling efforts. Each watershed contains different combinations of aquifer systems, so the work would need to be repeated for each sub-basin, focusing on those areas with the greatest usage or potential impact.

Existing Appropriations of Water Information describing existing appropriations of water represents the most significant gap in information and knowledge required for basin planning and management. The Montana water rights database currently contains information describing the water source type and name, location of the point of diversion, the type of water right, the purpose of use, the claimed flow rate and volume, the maximum irrigated acres (if applicable), the priority date, and the owner name. At this point, the adjudication process has not been completed anywhere in the basin and the information in the database varies in the level of review it has had. Most of the data have not been field verified. As a whole it cannot be considered to be accurate, consistent, and reliable. For these reasons, the water rights database is of limited use for evaluating existing water use and future water availability. For example, although it is possible to add up the numbers of water uses under each water use category for a given basin, it is not possible to accurately add up the total flow and volume of all existing water rights for a given period of use within a basin.

Some of the other challenges faced when using the database include the following: • The claimed flows, volumes, and acreages are assumed to be exaggerated guesses. • The majority of irrigation diversions are not measured or recorded. • Data entry for such items as priority date, use codes, and flow units has not been consistent over the years. • Period-of-use data are not accessible online and are not in a format that allows for data manipulation. • A single point of diversion (POD) is likely to represent more than one place of use (POU).

Clark Fork Basin Water Management Plan Chapter 3 Page 37 September 2004 • A single place of use may have more than one point of diversion. • Multiple PODs are not cross-referenced. • Irrigation efficiencies and return flows are not addressed in any way. • Water leases are not identified. • Instream flows for protection of native fisheries are not differentiated from diversions for private fish ponds developed for aesthetic and recreational uses. • The database is not set up to allow for the type of queries needed for basin management without tremendous effort and extensive knowledge of the history of the database. • The database is not yet fully connected to a GIS system. This represents a significant limitation to the usefulness of the data. • Data describing historical water conflicts and objection to new water use permit applications are not readily available.

Basin water planning and management requires the ability to answer questions regarding the data contained in the Montana water rights database. To do this, information contained in the database would need to be verified and re-organized. The data need to be accessible electronically and online. The data need to be input or encoded to allow for sorts or queries. Any comments or special circumstances associated with the use should be included in a standardized fashion. Ideally, the database would be tied to GIS or other system that allows for spatial data manipulation. It should be possible to combine information from the database with other information such as streamflow data, to conduct modeling.

Diversionary Water Uses Irrigation Irrigation represents the single greatest consumptive use of water in the basin, yet data describing irrigated acreages, diversions, and consumptive uses of water by irrigators are inconsistent and unreliable. The correlation between flows, volumes, and acreages listed in the water rights database and actual flows, volumes, and acres irrigated is also unknown or inconsistent. Most irrigation diversion and water use estimates are based on combining estimates of numbers of irrigated acres with assumptions regarding irrigation scheduling, efficiencies, consumptive use, and surface and groundwater return flow timing and patterns. The combination of estimates and assumptions yields information that is of limited usefulness.

Gaps in irrigation information include the following: • Data describing the numbers of historically and currently irrigated acres are not readily accessible. • Data that are available vary widely depending on the source. These data are not connected to a GIS system. • Data describing remaining irrigable acres are not readily available. • Most water diversions for irrigation are not measured, so the largest consumptive use of water in the basin can only be estimated

Completion of the adjudication process would provide information describing the maximum entitlement but not actual water use associated with the irrigated acres and diversionary flows and volumes. Additional information would need to be collected to describe irrigation conveyance and application systems and to estimate irrigation efficiencies. Estimating return flows would require collection of information describing soils, groundwater systems, and groundwater hydraulics in those areas where irrigation occurs.

Clark Fork Basin Water Management Plan Chapter 3 Page 38 September 2004 Residential and Municipal Most large municipal diversions are measured. Many individual domestic uses are not measured. For the purposes of basin water management and planning, it is probably adequate to combine numbers of uses with estimates of per-capita or per-household consumption to estimate historical and current uses in this category.

Diversionary Uses Hydropower Information is available describing the claimed and actual water use by hydropower facilities in the basin.

Instream flows Information describing instream flow uses are not readily accessible. Water leases are not identified in the water rights database.

Water Available for Future Use Water availability involves more than hydrology. Legal and policy questions must also be addressed. The prior appropriation doctrine that underlies Montana’s water right system will determine if water is available for additional appropriations. From a policy perspective, one must decide ‘how much water should be left behind’ as well as ‘how much water is still there.’

Resolving issues involving water availability at a local level will require completing the adjudication process or, at a minimum, completing the examination process on all existing claims. This information will allow existing water use claims to be compared to existing water supplies to get a sense of the actual level of appropriation of existing water supplies and then to evaluate water availability on a local level.

Water managers have come to recognize that water availability is no longer a local issue only. Cumulative impacts of numerous upstream water users can have significant impact to downstream water users. This issue is highlighted by the realization that virtually any new water user in the basin may have a negative impact to the water rights held by Avista Corporation at Noxon Rapids Dam. This situation may be true for senior water rights holders located throughout the basin.

Ideally, a GIS-based model (containing verified water use information) would be developed and used to illustrate and evaluate the impacts of and interactions among existing water uses and water supplies, then answer a series of what-if questions addressing potential future water uses. The information developed by such a model would also help in developing more objective policy and procedures regarding adverse impacts.

Projected Demand for Future Water Use Irrigation Water Use Planning for future uses would require knowledge of how much more irrigable land exists in each watershed throughout the basin and predictions regarding the potential for currently irrigated lands to be developed for residential use.

Municipal and Domestic Uses Existing population projection techniques can be used to estimate the number of new residential and domestic uses that might occur in the basin. It will be important, however, to also predict where these new residential developments might occur and what sources of water may be available to them.

Clark Fork Basin Water Management Plan Chapter 3 Page 39 September 2004 Recommendations for Closing the Gaps

Closing the information and knowledge gaps discussed above will require data collection and manipulation efforts, policy changes, additional studies, and, ideally, extensive modeling efforts. Below are lists of recommendations for closing the gaps.

It is strongly recommended that all data collection, development, and updating efforts result in databases that are connected to GIS-systems that are readily accessed and queried online through NRIS.

Montana Water Rights Database The first priority would be to verify and re-organize the water rights database, including: • Complete the examination process for all water rights claims; • Standardize all data entries and modify formats as necessary to allow for data queries and manipulation; and • Update the information contained in “Montana Water Use in 1980.”

Other Water Rights Issues • Encourage all water use diversions to be measured. • Require measurement of flow and volume of diversions for all new water right permits and changes. • Develop a policy and objective basis for evaluating adverse impact. • Develop a policy and objective basis for evaluating water availability. • Develop a policy for addressing return flows. Irrigation return flow are most important, but other consumptive uses also generate returns (municipal wastewater for example).

NRIS As stated above, it is strongly recommended that all data collection, development, and updating efforts result in databases that are connected to GIS systems that are readily accessed and queried online through NRIS. NRIS is valuable tool for accessing information needed for water management in Montana, but development of the watershed profiles illustrated some deficiencies in the system. Some of these deficiencies can be addressed by the following: • Greatly increase server capacity; and • Increase query capabilities for existing and future databases. For example, allow a user to develop customized search areas.

Studies The administration of surface water is understood, but groundwater is less controlled, defined, and understood. Acquiring more data regarding groundwater is crucial to future water management. In addition to data collection efforts, it is recommended that studies be conducted in each sub-basin or watershed to address the following: • Develop a groundwater monitoring infrastructure that contains dedicated monitoring wells. • Evaluate groundwater hydraulics for those aquifers in irrigated areas to better understand return flow patterns and quantities. This information could be part of the groundwater assessments being conducted by MBMG. • Estimate sustainable yields from aquifers that are currently used. This information could be part of the groundwater assessments being conducted by MBMG. • Make all information available on-line. Coordinate efforts of MBMG and NRIS.

Clark Fork Basin Water Management Plan Chapter 3 Page 40 September 2004 References

1 DNRC 1988. Draft EIS for Water Reservation Applications in the Upper Clark Fork Basin. Helena, MT. 2 FERC, 2000. Final EIS Cabinet Gorge and Noxon Rapids hydroelectric Projects, Idaho and Montana. Washington, D. C. 3 National Research Council of the National Academies, March 31, 2004 “Managing the Columbia River: Instream Flows, Water Withdrawals and Salmon Survival.” 4 DNRC, 1976. The Framework Report, Volume One. MT DNRC Water Resources Division. Helena, MT 5 Kendy, Eloise. 1996. Geographic, Geologic, and Hydrologic Summaries of Intermontaine Basins of the Northern Rocky Mountains, Montana. USGS Water-Resources Investigation Report 96- 4025. Helena, MT 6 Ground Water and Wells in the Clark Fork River Basin. Tom Patton and John LaFave. Montana Bureau of Mines and Geology Ground-Water Assessment Program. (Power Point presentation) 7 McLane, Mike. 1999. Development of Water Uses in the Clark Fork of the Columbia River Basin. DRNC. Helena, MT 8 DNRC, 1986. Montana Water Use in 1980. 9 NRCS – Montana. State of the Land – Water Resources (http://www.mt.nrcs.usda.gov/technical/sol/waterres.html) 10 University of Montana Wildlife Spatial Analysis Laboratory. (early 1990s) Landsat images converted to a land cover data set ( http://nris.state.mt.us/nsdi/nris/gap90.html) 11 1980 Level Modified Streamflow 1928 -1978 by Depletions Task Force Columbia River Water Management Group (1983) as cited in March 5, 1998, ? Draft Conditions on Washington Water Power’s FERC License at Noxon Rapids, by DNRC, Water Resources Division. 12 USDA Bureau of Reclamation, Bosie, 1997, “UCAO-Clark Fork / Flathead Basin Irrigated Lands. An interpretation of Landsat date developed between 1988 and 1991. 13 Totaling the 166 records displayed on the report Clark Fork Basin Water Rights Greater than 5 cfs & Junior to Noxon Rapids Dam - Sorted by Basin by Priority (June 2, 1998) shows is 67,852 acres, however, there is significant double counting of irrigated acres with inclusion of several reservoir records and change of use authorizations. 14 Merlin Nelson, NRCS, Bozeman, Montana Per. comm. 15 Spratt, Marc. 2003. Upper Flathead Basin Preliminary Water Use Study, Flathead County, Montana. Prepared for Flathead Conservation District by RLK Hydro, Inc. Kalispell, MT 16 Johnson, Howard E. and Carole Schmidt, 1988. Clark Fork Basin Project Status Report and Action Plan. Clark Fork Basin Project, Office of the Governor, Helena, MT 17 Protecting Instream Flows in Montana. Case Study based on a brief report by the Montana Consensus Council (http://www.policyconsensus.org/casestudies/pdfs/MT_streams.pdf) 18 Montana River Action (MRA). Murphy Water Rights (http://www.montanariveraction.org/murphy-water-rights.html) 19 Montana Code annotated 85-2-316 (2003) 20 Curt Martin, DNRC. Per. comm.. 21 McLane, M. 1999. A Proposal to Resolve Current and Future Water Allocation Issues in the Clark Fork River Basin. Prepared for the Negotiation team representing the State of Montana and Avista Corporation. October 15, 1999. 22 Cunningham, A. B., M.L. Bultsma, and R. D. Boyce, 1988. Effects of Future Irrigation Development on Hydroelectric Generation in the Clark Fork River Basin. MSU-Bozeman. 23 U.S. Bureau of Reclamation, 1988. Effects of Future Irrigation Development on Hydroelectric Generation in the Basin 24 Holnbeck, S.R., 1988. Investigation of Water Availability for Clark Fork Basin above Noxon

Clark Fork Basin Water Management Plan Chapter 3 Page 41 September 2004 Rapids Dam. DNRC, Helena, MT 25 NRCS-Montana. Highlights of the 1997 National Resources Inventory (http://www.mt.nrcs.usda.gov/technical/nri/mthighlt.html) 26 NRIS Interactive Mapper (http://nris.state.mt.us/mapper/ReportsASP) 27 USGS Water Resources on-line Data. (http://waterdata.usgs.gov/mt/nwis/annual/) 28 Maps of Montana. Montana Hydrologic Sub-basins. (http://nris.state.mt.us/nsdi/nris/subbasin.gif ) 29 Patton, Thomas, Larry Smith, John LaFave, MBMG. 2002. Ground-Water Resources of the Flathead, Lake Area: Flathead, Lake, Sanders, and Missoula Counties, Montana. Information Pamphlet No. 4. Butte, MT. 30 Curt Martin, DNRC. Per. comm.. 31 Montana NRIS on-line Interactive Map Builder. (http://nris.state.mt.us/mapper/) 32 Montana Watersheds, Watersheds and Landscapes, Bitterroot Water Forum. (http://water.montana.edu/Watersheds/groups/details.asp?groupID=3) 33 Voeller, Terry and Kirk Waren, DNRC, 1997. Flint Creek Return Flow Study. Montana Bureau of Mines and Geology Open File Report 364. 34 Maps of Montana. Montana Hydrologic Sub-basins. (http://nris.state.mt.us/nsdi/nris/subbasin.gif) 35 U.S. Bureau of Reclamation, 1988. Effects of Future Irrigation Development on Hydroelectric Generation in the Basin 36 LaFave, John. 2003 Montana Bureau of Mines and Geology. Personal communication.

Clark Fork Basin Water Management Plan Chapter 3 Page 42 September 2004 Chapter 4 The Legal Framework for Water Management

The Fundamentals of Water Rights

Article IX Section 3(1) of the Montana Constitution provides, “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 appropriation for beneficial uses as provided by law.” Thus while ownership of water remains with the state, Montanans can acquire a water right pursuant to state law which authorizes them to appropriate water to put it to use. The legal framework for water rights is referred to as the prior appropriation doctrine, which includes two general rules expressed by the following easy-to-remember axioms: “first in time, first in right” and “use it or lose it.”

“First in time, first in right” relates to the priority date of a water right. The priority date refers to the date on which the water was first put to beneficial use. The earlier the priority date, the better the water right. A senior water right holder with an earlier priority date is entitled to use the full amount of his or her water right before any junior water right holder can use any water. In times of shortage, the senior water right can take all of the available water.

“Use it or lose it” refers to the requirement to use water beneficially. For example, if someone has the right to divert water for irrigation but is haying and does not currently need the water for beneficial use, he or she cannot continue to divert the water but must leave it in the stream for use by junior water rights holders. When water is no longer put to a beneficial use, the right to use it can be lost or abandoned. Ten years of non-use is the statutory trigger required for the issue of abandonment of a water right to arise in an administrative review. Beneficial use is the “basis, measure, and limit” of a water right. In other words, if someone claims a water right for 10 cubic feet per second (cfs) but has historically used only 7 cfs, that person’s water right is only for the 7 cfs put to beneficial use.

While the basic rules of Montana water law are fairly simple, their actual application often becomes complicated. This section does not attempt to explain all of the nuances of Montana water law. A few selected topics with particular application to the Clark Fork River Basin are described below.

The 1973 Water Use Act

Prior to 1973, a water right could be acquired in one of two ways: by putting water to a beneficial use or by posting a notice of intent to use water and filing the notice with the county clerk. No written record existed for rights acquired the first way, the so-called use rights. Without written records, Montana struggled to develop a mechanism to administer the development of new water rights. In 1972 this issue was still not resolved, so the framers of 1972 Constitution included in Article IX Section 3 (4) a directive to the legislature to “…provide for the administration, control and regulation of water rights and…(to)…establish a system of centralized records….” In response, the 1973 Legislature passed the Montana Water Use Act. In addition to establishing a centralized record system for water rights, this Act: • Required that all water rights existing prior to July 1, 1973, must be finalized through a statewide water rights adjudication in state courts; • Established a permit system for obtaining water rights for new or additional water rights; • Established criteria for the issuance of new water right permit; and

Clark Fork River Basin Water Management Plan Chapter 4 Page 1 August 2004 • Established an authorization system for changing water rights.

Since the passage of the 1973 Water Use Act, a person cannot receive a new right to use water without first applying for and receiving a water use permit from DNRC. Before DNRC can issue a water use permit, the applicant must prove, among other things, that unappropriated water is available for the new use and the new use will not adversely affect existing water rights. Additional public interest criteria and in some cases legislative approval are required for appropriations of 4,000 or more acre-feet per year or 5.5 or more cubic feet per second. In 1993, the Legislature integrated water quality into the permit process. If a water quality issue is raised by an existing water right holder, the Montana Department of Environmental Quality, a local Water Quality District, or, in certain instances, the holder of a Montana Pollution Discharge Elimination System permit, the applicant must prove that water quality concerns do not exist or can be mitigated.

Basin Closure

A basin closure essentially predetermines these issues and declares that no water is legally available for new uses, and therefore precludes DNRC from issuing new water use permits. It does not, however, affect the ability to change existing water rights. Basin closures are designed to protect existing water right holders by prohibiting new junior water uses and by eliminating the need to spend time and money objecting to proposed new uses on streams which are already over appropriated. 1 Basin closures may be established through one of three mechanisms: a petition and hearing to close a basin by administrative rule, by legislative action, or as a result of negotiation of reserved water rights compacts. A basin closure also does not have to apply to all water uses. For example, the current basin closure in the upper Clark Fork basin does not apply to groundwater, water for domestic use, stock water, or water for storage for beneficial uses.

Fourteen areas in the Clark Fork have basin closures, the details of which vary. These closures include: • The temporary Bitterroot basin closure passed by the legislature in 1999 (85-2-344, MCA). • The permanent closure of the upper Clark Fork River basin, defined as the river and all tributaries including the Big Blackfoot River above Milltown Dan, passed by the Legislature in 1995 (see 85-2-335 through 85-2-337, MCA). • The closure of Glacier National Park established pursuant to the compact with the National Park Service. • The seven small administrative rule closures of: – Grant Creek, a tributary of the Clark Fork River; – Houle Creek, a tributary of the Clark Fork River; – Sixmile Creek, a tributary of the Clark Fork River;

1 Section 85-2-319(2) MCA provides that a petition for a basin closure “…must allege facts showing that throughout or at certain times of the year or for certain beneficial uses: (a) there are no unappropriated waters in the source of supply; (b) the rights of prior appropriators will be adversely affected; (c) further uses will interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved; or (d) in the case of a petition filed by the department of environmental quality: (i) the water quality of an appropriator will be adversely affected by the issuance of permits; (ii) further use will not be substantially in accordance with the classification of water set for the source of supply pursuant to 75-5-301 (1); or (iii) the ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will be adversely affected by the issuance of permits.”

Clark Fork River Basin Water Management Plan Chapter 4 Page 2 August 2004 – Sharrott Creek, a tributary of the Bitterroot River; – Willow Creek, a tributary of the Bitterroot River; – Walker Creek, a tributary of the Whitefish River; and – Truman Creek, a tributary to Ashley Creek in the Flathead. • The four small controlled groundwater areas of: – Hayes Creek watershed groundwater area near Missoula; – Larson Creek watershed groundwater area near Stevensville; – Warm Springs pond groundwater area near Deer Lodge; and – Rocker groundwater area near Butte.

Federal Reserved Water Rights

Federal reserved water rights were created by United States Supreme Court when it ruled on the Winters Case, Winters v. United States (206 U.S. §564 [1908]), which involved a Fort Belknap Indian Reservation water claim. In the Winters decision, the Supreme Court held that when Congress or the President sets aside land out of the public domain for a specific federal purpose, such as an Indian reservation, national park, national forest, or a military reservation, a quantity of water is reserved that is necessary to fulfill that specific federal purpose. A federal reserved water right has a priority date as of the date the land was withdrawn and the reservation was created. The right cannot be lost through non-use. In 1952, the United States Congress passed the MacCarran Act (43 U.S.C. § 666), which subjected federal water rights to state water right law, including adjudications.

In 1979, the Legislature created the Montana Reserved Water Rights Compact Commission (Compact Commission) and assigned it the job of negotiating agreements with federal agencies and tribes holding reserved water rights. The agreement must quantify the reserved water right. The resulting agreement must be signed by the negotiating parties, the appropriate federal officials, pass through the Montana Legislature (and the U.S. Congress, in some cases), and go to the Water Court for incorporation into a final decree for the specific water basins involved.

Tribal Water Rights

The Compact Commission and the Confederated Salish and Kootenai Tribes (Tribes) are presently negotiating a compact that would quantify the Tribes’ water right. The Tribes have taken the position that they have two types of water rights. The first is reserved rights tied to the purpose of their reservation, which was to provide a tribal homeland. The priority date of the reserved rights would be July 16, 1855, the date of the Hell Gate Treaty that created the reservation. The second type of water rights is pre-treaty aboriginal rights. The aboriginal rights are claimed as non- consumptive rights both on and off of the reservation tied to hunting, fishing, pasturage, and timber. In the negotiations, the Tribes are also claiming ownership of all waters that arise on or under or flow through their reservation. The Tribes also define water resources as a unitary resource for management purposes. Neither the ownership claim nor the unitary management position has been accepted by the Compact Commission.

Changes to Existing Water Rights

Montana water law has always allowed changes to be made to existing water rights and water rights to be severed from the land. Water rights were traded, sold, and moved even as Montana became a state. Historically, such changes occurred without review. When harm occurred as a result of a change, affected parties resolved their concerns in court. The administrative system created in the Montana Water Use Act included provisions to review certain modifications and changes to existing

Clark Fork River Basin Water Management Plan Chapter 4 Page 3 August 2004 water rights.

Since 1973, all changes to existing water rights (permits or claims) must be pre-approved by DNRC. Before a change can occur, the applicant who is proposing to change an existing water right must prove that other water rights holders would not be adversely affected. If objections are filed against a proposed change, DNRC holds a contested case hearing before deciding whether to authorize the change. DNRC’s decision can be appealed to the District Court and then to the Montana Supreme Court.

Changes are statutorily defined and not all modifications to an existing right are subject to administrative review. The most common example of a water right change is moving a water right’s point of diversion. Others include a change in the place of use, the purpose of use, or the place of storage. Another example may occur if irrigated farm land is subdivided and the appurtenant water right is severed and sold to a neighboring irrigator. This example involves changes in the place of use and perhaps the point of diversion or place of storage. Before authorizing these changes, DNRC must determine whether the proposed change would increase the amount of water historically consumed by the water right. Because a water right is limited by its historic use, any expansion of the amount of water diverted and uses cannot be considered a “change” to an existing water right. The expansion of use requires a new water right. To make this determination, DNRC considers such features of the water use as the amount of water historically diverted, the efficiency of the means of water delivery and of the irrigation system, the amount of water consumed by the crop, and the amount of return flow. DNRC calculates both historic water consumption and the expected consumption under the proposed change. If the proposed change would consume more water, it must be denied. The applicant has the burden of proving to DNRC that consumption would not increase and no other water rights would be adversely affected. DNRC’s administrative rules for water rights changes prevent the conversion of non-consumptive rights to consumptive rights. For example, a hydropower use right cannot be changed to a municipal use right.

Instream Flows

Most water rights involve water uses that divert water from streams for consumptive uses. 2 However, instream, non-diversionary uses can be protected using a number of different methods, including a Murphy Right, appropriating water instream to benefit a fishery, a temporary conversion of an existing consumptive right, and a water reservation. The first method, referred to as a Murphy Right, was created with the passage of legislation sponsored by Representative James Murphy in 1969. This legislation allowed the Montana Department of Fish, Wildlife and Parks (DFWP) to appropriate water on 12 Blue Ribbon trout streams. In the Clark Fork River Basin, DFWP has Murphy Rights on the mainstem of the Blackfoot River from its mouth to the mouth of its North Fork, on the mainstem of Rock Creek from its mouth to the junction of its east and west forks, on the mainstem of the Flathead River from the South Fork to Flathead Lake and from the South Fork to the Middle Fork, from the mouth of the Middle Fork of the Flathead to Cox Creek, on the North Fork of the Flathead from the Middle Fork to the Canadian border, and on the South Fork of the Flathead from Hungry Horse Reservoir to its headwaters. The priority date for these Murphy Rights is January 1971. The amount of water claimed by DFWP for these rights depends on the time of year and largely follows the streamflow hydrograph.

2 A hydropower water right is a diversionary but non-consumptive use of water.

Clark Fork River Basin Water Management Plan Chapter 4 Page 4 August 2004 The second method for protecting instream, non-diversionary uses is a traditional water right. In its recent Bean Lake III decision, the Montana Supreme Court ruled that fish, wildlife, and recreation are beneficial uses of water and that a water right may be obtained for them with or without a diversion.

The third method, the temporary conversion of an existing consumptive right, can occur in one of three ways. A holder of a consumptive water right may lease all or a portion of that right to DFWP to benefit a fishery, or lease the right to another party on behalf of a fishery, or convert the right to an instream use without a lease, again to benefit a fishery. DFWP leases are restricted to 20 designated streams. Most leases can last no more than 10 years, renewable once for an additional 10 years. If, however, the leased water is made available through the development of a water conservation or storage project, the lease can last 20 years. Before a lease can take effect, it must go through the change process, and the applicant must prove that other water rights holders would not be adversely affected by the change. If a lease is approved, DFWP or the other party holding the lease can protect the full amount of the leased water right to its point of diversion, but downstream from the point of diversion the lease holder can only protect the amount of water which was historically consumed.

The fourth method is a water reservation. The State of Montana, any of its political subdivisions, or the U.S. government and any of its agencies may reserve water to maintain instream flows to protect water quality as well as the fishery. To date, instream flow water reservations have been granted in the Yellowstone River basin and in the upper Missouri River basin above Fort Peck Dam. DFWP applied for an instream flow water reservation for the upper Clark Fork River basin, but the reservation application was suspended when the Legislature closed this basin.

Adjudication

All water rights with a priority date before July 1, 1973, except for some domestic groundwater and stockwater rights, are currently being adjudicated by the Montana Water Court. The adjudication involves a number of different stages, including the filing of water right claims, examination of those claims by DNRC, the issuance of a temporary preliminary decree followed by the filing of objections and the holding of hearings, the issuance of a preliminary decree followed by another round of objections and hearings, and the issuance of a final decree.

The adjudication began with the filing of claims for pre-July 1, 1973, water rights. All water right claims were to be filed by April 30, 1982. The 1993 Legislature set a new deadline, July 1, 1996, for the filing of additional water right claims. Any water right claim filed after April 30, 1982, is subject to special restrictive rules. If a water right claim was not filed by July 1, 1996, the water right was forfeited for water put to beneficial use prior to 1973.

After the water right claims are filed, the next stage in the adjudication is examination. In this stage, DNRC reviews or verifies each water right claim and indicates any perceived problems on the claim as an issue remark. For example, DNRC may indicate that a claim includes more acres than appear to be actually irrigated historically.

After examination, the Water Court combines the water right claims and DNRC’s examination comments into a preliminary decree. The preliminary decree includes all of the water rights in a basin except federal and tribal reserved water rights, which may be excluded. Water rights in the decrees may specify the rate of flow, a total volume of flow, the period in which water can be used, and other

Clark Fork River Basin Water Management Plan Chapter 4 Page 5 August 2004 conditions. After the issuance of a temporary preliminary decree, a period for filing objections against the various water right claims is provided. This objection period is followed by a period in which counter objections may be filed. If a water user wishes to participate in the adjudication of a particular claim without formally objecting, she or he may file a notice of intent to appear. After the deadline expires for filing objections and notices of intent to appear, the Water Court begins to resolve the various objections. If an objection cannot be resolved between the parties, the Water Court will hold a hearing and rule on the validity of the contested water right.

While the adjudication is proceeding in the Water Court, the State of Montana, through the Compact Commission, is attempting to negotiate the extent of federal and tribal reserved water rights with the federal government and the tribes. At some point, either through successful negotiation or through litigation in the event that negotiation fails, the federal and tribal reserved water rights will be included in a preliminary decree. Objections can then be filed against water right claims contained in the preliminary decree. Notices of intent to appear can also be filed. After the objections and notices of intent to appear are filed, the Water Court will once again proceed to resolve the objections through hearings, if necessary. Once all of the objections to the preliminary decree are resolved, a final decree is issued and the adjudication is complete.

The following table shows the status of the adjudication each of Clark Fork River basin subdivisions.

Basin Code Description Status 76G Upper Clark Fork TPD 76F Blackfoot No Decree 76GJ Flint Creek TPD 76 E Rock Creek TPD 76M Lower Clark Fork River to Paradise TPD 76HD Bitterroot Upper Eastside No Decree 76HC Bitterroot Eastside Middle No Decree 76HA Bitterroot River Corridor No Decree 76HB Lower Bitterroot River TPD 7676 u T 76HE Upper Bitterroot River TPD 76HF Bitterroot River West Side Preliminary Decree 76I Middle Fork of the Flathead River TPD 76J South Fork of the Flathead River TPD 76K Swan TPD 76L Lower Flathead No Decree 76LJ Flathead Lake No Decree

Clark Fork River Basin Water Management Plan Chapter 4 Page 6 August 2004 Basin Code Description Status 76N Clark Fork River below the No Decree confluence with the Flathead

Note that in the table TPD stands for Temporary Preliminary Decree. Because all of the basin’s tribal and federal water rights have not been resolved, no final decrees have been issued in the Clark Fork River basin.

At this time, the Compact Commission is negotiating federal and tribal reserved water rights in the upper Clark Fork River basin. Negotiations are underway with the U.S. Forest Service (USFS) and the Confederated Salish and Kootenai Tribes. The current deadline for completion of the Compact Commission’s negotiations is July 1, 2009. This deadline may or may not be extended. Due to the complication of federal and tribal reserved water rights, many years may be required before any preliminary decrees are issued in the upper Clark Fork River basin.

Enforcement of Water Rights

As stated above, one of the basic rules of the prior appropriation doctrine that governs water rights in Montana is “first in time, first in right.” A senior water right user with an earlier priority date is entitled to be fully satisfied before any junior water right user can appropriate water. In times of water shortage, the senior water right holder can take all of the water. As a result, the priority date is usually the most important part of a water right.

Despite the value of an early priority date, enforcing the priority of a water right is not always easy. In Montana, enforcement is generally the responsibility of the individual water right holder. If any type of legal action has to be filed or a water commissioner has to be hired, the individual water right holders must pay the costs.

One method to enforce water rights is the appointment of a water commissioner. A water commissioner can only be appointed on decreed streams, usually those streams which were decreed by district courts in the early 1900s. Some tributaries in the Clark Fork River basin have been decreed and have water commissioners appointed every year. A water commissioner distributes water according to the priorities in the decree. A water commissioner is usually appointed by the district judge at the request of a petition signed by the water users. The cost of the water commissioner is paid by the water users pro rata based on the amount of water they use.

The mainstem of the Clark Fork River and many of its tributaries have not been decreed. Without decree, a water commissioner cannot be appointed. Once the Water Court has resolved all of the objections to a temporary preliminary or preliminary decree in the adjudication process, a water commissioner can be appointed to distribute water in accordance with that decree.

Enforcing a non-decreed water right is generally more difficult than a decreed water right. Both types of rights may be enforced through one of three methods. One method is to make a call on a junior water right holder. A call is made by instructing the junior user to stop taking water so that the water can be used by a senior user. Many water rights are enforced through voluntary compliance with calls made by senior users. If, however, a call is made and the junior water user

Clark Fork River Basin Water Management Plan Chapter 4 Page 7 August 2004 refuses to stop using water, the senior user can to go to court and seek an injunction ordering the junior user to stop taking water. During the court proceeding, the junior right holder has the opportunity to prove that the call would be futile, i.e., that its enforcement would not result in water for use by the senior right holder. This can be an expensive, time-consuming process.

Another enforcement method is to seek enforcement by DNRC. Before contacting DNRC for enforcement, the senior water user must make a call on the junior users. If a junior user refuses to honor the call, the senior user should document this through photographs or other methods. The senior user can then contact DNRC, and the agency will first attempt to obtain voluntary compliance. If the junior user does not voluntarily comply within three working days, DNRC can request a court to impose a $1,000 penalty per day for each day that the violation continues.

Disagreements regarding water use may also be resolved by a water mediator. Water mediators can be appointed at the discretion by a district court, upon the request of the governor, or by petition of at least 15 percent of the owners of the affected water rights. A water mediator has no authority to impose a settlement on the parties, but may assist the parties in agreeing how water is to be used. If no agreement is reached, the parties are free to pursue any other means of enforcing their water rights.

Clark Fork River Basin Water Management Plan Chapter 4 Page 8 July 2004 Chapter 5 Legal and Regulatory Constraints to Water Management

The ability to manage water in the Clark Fork River Basin is determined, at least in part, by a number of existing legal and regulatory requirements, commitments, and proposals in addition to individual water rights. This chapter provides an overview of these constraints that affect the entire basin and its individual sub-basins. Chapter 6, which follows, discusses potential constraints arising from the hydropower water associated with dams in the lower basin. A bibliography for additional information is also included.

Clark Fork Basin

Constraints that affect the entire basin include: • Off-Reservation Reserved and Aboriginal Water Right Claims by the Confederated Salish and Kootenai Tribes - In the Tribes’ proposed compact to the Compact Commission, the Tribes claim, “off-reservation reserved and aboriginal consumptive and non-consumptive water rights that are derived from their time immemorial use and habitation of a vast aboriginal territory in Montana and elsewhere.” This includes the waters of western Montana and, according to the Tribes, is based in part on the Hell Gate Treaty of 1855. • Federal Reserved Water Rights - The U.S. Forest Service claims reserved water rights for channel maintenance flows for those watercourses on Forest Service lands in the state. The Reserved Water Rights Compact Commission is negotiating these claims • Bull Trout - Bull trout are the only fish and wildlife species in the basin currently listed under the Endangered Species Act that have implications for basin water management. Bull trout are listed as threatened. This designation requires special consideration under federal actions that may impact the survival and viability of the species. Unless a water management activity has a federal nexus, i.e., it involves federal funding or requires a federal permit, the activity is less likely to be affected by the bull trout listing. If a federal nexus exists, then the federal funding or permitting agency is required to consult with the U.S. Fish and Wildlife Service regarding possible impacts to bull trout and implications for the recovery plan and/or critical habitat designation. For example, many river or stream related projects (such as those in or near a perennial stream or river which require a 310 permit from a conservation district) require a 404 permit from the U.S. Army Corps of Engineers. A 404 permit would trigger the consultation requirement. • Water Quality and TMDLs - Pursuant to state law (75-5-703 MCA), Total Maximum Daily Load targets (TMDLs) have to be developed by the Montana Department of Environmental Quality (DEQ) with help from local watershed groups and approved by the U.S. Environmental Protection Agency for those streams and rivers that have been identified as impaired under the Clean Water Act. Stream dewatering does not constitute a direct impairment requiring development of a TMDL. Water quantity may be an indirect issue, however, because it affects dilution of pollutants that cause water quality standard violations, including temperatures that inhibit cold water fisheries. The Clark Fork River and most of its tributaries have some type of water quality impairment. TMDLs have already been calculated for the Clark Fork mainstem and Flathead Lake. DEQ is working with local watershed groups to define sources of pollution and calculate TMDL targets for the other impaired tributaries. Development and implementation of mitigating strategies to reach the targets will follow. The federal court has set a finite time frame for DEQ to develop and obtain EPA approval for TMDL implementation plans. • Pacific Northwest Coordination Agreement - The Pacific Northwest Coordination Agreement is a contract for planned operation among the 16 major operating utilities with hydropower

Clark Fork River Basin Water Management Plan Chapter 5 Page 1 August 2004 facilities in the Columbia River drainage. The agreement provides operational guarantees that ensure the usability of storage under the Columbia River Treaty between the United States and Canada to downstream generating plants and specifies the restoration of pre-treaty capabilities to certain plants under certain conditions. In short, it tries to optimize the production power from the system as a whole. The operation of the basin dams with storage (Hungry Horse, Kerr, and Noxon Rapids dams), is affected by the agreement. • Downstream Water Users - Water can be allocated between states via an interstate compact, equitable apportionment litigation between the states in the U.S. Supreme Court, or by Congressional apportionment. No compact providing for water allocation exists among the states of the Columbia River basin, no allocation has resulted from litigation, and there has been no Congressional apportionment. This means that Montana water users in the Clark Fork basin are not currently at risk to claims by downstream state water rights holders. One of the original justifications for initiating the statewide adjudication of pre-1973 water rights was to position Montana favorably in the event of future claims by downstream states. As basin water use grows, an apportionment of some sort between the states may occur.

Lower Clark Fork Sub-basin

The constraints that affect water management and use in the lower sub-basin (the area between the Montana-Idaho boundary and the confluence of the Flathead and Clark Fork rivers) include: • Thompson Falls Dam – The Federal Energy Regulatory Commission (FERC) license requires 6,000 cfs continuous minimum outflow or the inflow, whichever is less. • Noxon Rapids Dam - The FERC license establishes as general operating limits that the Noxon Rapids project maintain a maximum forebay elevation of 2,331.0 feet, a minimum forebay elevation of 2,327.0 feet from May 15 through September 30, a minimum forebay elevation of 2,321.0 feet from October 1 through May 14, and a maximum forebay draft rate of 2 feet per day (net) and 5 feet per week (net). • Cabinet Gorge Dam - The FERC license establishes as general operating limits that the Cabinet Gorge project maintain a maximum forebay elevation of 2,175.0 feet, a minimum forebay elevation of 2,168.0 feet, and a total minimum total project discharge 5,000 cfs.

Middle Clark Fork Sub-basin

The constraints that affect water management and use in the middle sub-basin (the area between the confluence of the Flathead and Clark Fork rivers and Milltown Dam) include: • Milltown Dam and Superfund Site - A number of heavy metal problems exist because of this dam, and the issue is how to deal with them. The dam and its reservoir are part of the Clark Fork Superfund site. EPA has decided that the dam and contaminated sediments in the reservoir will be removed by 2006 or 2007. Once the dam is removed, the water rights associated with the generation of hydropower at Milltown Dam will have to be changed to another use or they will be lost due to abandonment.

Upper Clark Fork River Sub-basin

The upper Clark Fork River sub-basin extends from Milltown Dam to the headwaters of the Clark Fork River, including the Blackfoot and Little Blackfoot Rivers and Rock Creek. Constraints that affect water management and use in this area include:

Clark Fork River Basin Water Management Plan Chapter 5 Page 2 August 2004 • Basin Closure - (MCA. 85-2- 336 & 337) This closure applies to new surface water permits but exempts water for stock use and applications for stored water, groundwater, and power generation at existing hydroelectric dams. Individuals desiring to appropriate groundwater must demonstrate that the appropriation would not be substantially or directly connected to the surface waters of the Clark Fork. • Superfund Designation and Natural Resource Damage Suit - Four sites have been designated as superfund sites within the river corridor. These designations affect restoration and water conservation projects. No flow requirements exist associated with these sites. • Murphy Water Rights - DFWP has claimed instream flow water rights on two streams in this sub-basin, Rock Creek and the Blackfoot River. The right on Rock Creek exists from its mouth to its headwaters. The priority date is 1971 and the flows range from 150 cfs to 926 cfs. On the Blackfoot River, the right extends from its mouth to the confluence with the North Fork of the Blackfoot River. The priority date is 1971 and the flows range from 360 cfs to 2,000 cfs. A drought management plan has been developed and implemented on a voluntarily basis to try to meet these flows during drought.

Flathead River Sub-basin

The Flathead sub-basin includes all of the Flathead River drainage. Constraints here include: • Kerr Dam - The FERC license requires that spring refill of Flathead Lake begin when the U.S. Army Corps of Engineers decides that the threat of flooding has passed and should reach 2,890 feet by Memorial Day. The lake level must be maintained at or near full pool, 2,893 feet elevation, from June 15 through September. The lake can be drafted to its maximum 10 feet through the winter. Also, pursuant to the FERC license, minimum discharge from the dam cannot drop below 3,200 cfs from July 1 to April 15. Beginning on April 16, discharge can be increased and reach a rate 12,700 cfs by mid-May. The flow rate must be ramped back down to the base flow by July 30. In March 2002, pursuant to its FERC license, PPL Montana filed an interim drought management plan with the U.S. Department of Interior (DOI). DOI has not yet acted on the plan • Endangered Species Releases from Hungry Horse Dam - Under the Endangered Species Act (ESA), Hungry Horse Dam is required to provide instream releases for local bull trout populations in the lower South Fork and Flathead rivers and releases in July and August for anadromous salmon species downstream of Grand Coulee Dam. These flows are bypassed through Flathead Lake and Kerr Dam. Operations must maintain a 400-900 cfs minimum flow below Hungry Horse Dam 1 and 3,500 cfs in the main stem of the river. 2 During a drought year, pursuant to the voluntary agreement with the state, the Bureau of Reclamation (USBR), which operates Hungry Horse Dam, can reduce the 3,500 cfs on the main stem to 3,200 cfs. Since the

1 According to the Columbia River Fish and Wildlife Program adopted by the Northwest Power and Conservation Council, the minimum flow is determined based on the January final volume runoff forecast for Hungry Horse Reservoir for the period of April 1 to August 31. When the April- through-August forecast is greater than 1,790 thousand acre-feet (KAF), the minimum flow shall be 900 cfs. When the forecast is less than 1,190 KAF, the minimum flow may be reduced to 400 cfs. When the forecast is between 1,190 and 1,790 KAF, the minimum flow shall be linearly interpolated between 400 and 900 cfs. 2 The program provides that Hungry Horse Dam discharge must maintain the established minimum flow of 3,500 cfs at Columbia Falls. However, in the event of a flood emergency (when river stage at Columbia Falls reaches 13 feet), the minimum flow in the South Fork can be reduced to the physical minimum (approximately 145 cfs).

Clark Fork River Basin Water Management Plan Chapter 5 Page 3 August 2004 1995 ESA biological opinion for Columbia River salmon, the top 25 feet of reservoir storage is available for salmon flows. All constraints are combined in integrated rule curves that are used to govern operation. Pursuant to the 2002 Biological Opinion issued by the National Marine Fisheries Service, USBR releases approximately 4,000 cfs from the dam in the months of July and August and has increased flows in June over prior operating rules (USBR, 2002). • Water Quality – An interim TMDL has been identified for Flathead Lake and approved by the Flathead Basin Commission, EPA, and DEQ. The TMDL includes targets intended to curb large algal blooms in the lake based on lowering nutrient pollution from the upper Flathead basin to the 1976 level. As a part of the Flathead Lake TMDL Implementation Plan, the sources of pollution have been identified and the percentages of reduction for each pollution category have been determined. The Flathead Basin Commission is using a voluntary strategy to reduce these pollution sources. • On-Reservation Reserved and Aboriginal Water Right Claims by the Confederate Salish and Kootenai Tribes - The Tribes are claiming all the water on and under the reservation as tribal water and that all the water on the reservation is to be administered and managed by the Tribes. • Wild and Scenic River Designations - The North Fork, Middle Fork, and South Fork of the Flathead River are designated as “recreation” and “scenic” for those stretches outside of wilderness areas, and those within wilderness areas are designated as “wild.” This federal designation precludes the development of water storage projects on these rivers and certain developments within the river corridor. • Murphy Water Rights - The Flathead River and the three forks of the Flathead have instream flow water right claims for fish and wildlife. For example, DFWP has claimed instream flow rights ranging from 75 cfs to 2,325 cfs on the Middle Fork of the Flathead River depending on season and river stretch, 100 to 270 cfs on the South Fork and 2,100 to 5,000 cfs on the mainstem of the Flathead River into Flathead Lake. • Glacier National Park Compact - A compact has been finalized with the National Park Service for Glacier National Park (GNP). 3 Key provisions of this compact include: – The United States has a priority date of May 11, 1910, for reserved water rights described in this compact. – A reserved water right for current and future consumptive use for the purposes of GNP. – Instream flow on various streams in the amount of the entire flow of the streams, less any United States’ consumptive use rights described in this compact, and less state-recognized water rights appurtenant to non-federal land within the boundaries of GNP with a priority date before January 1, 1993. This reserved water right ends at the point the stream exits the reserved land of GNP. – The state retained the right to permit new consumptive uses up to specified amounts on the North and Middle forks of the Flathead River. – This compact treats surface and groundwater as a unitary resource.

Bitterroot River Basin

The constraints in the Bitterroot River sub-basin include: • Basin Closure. (85-2-344 MCA.) The sub-basin is closed to all new water use permits except water from groundwater, appropriations for municipal water supply, and impoundments with a capacity of 50 acre-feet or larger. The closure will remain in effect until two years after an enforceable and administrable water rights degree is in place.

3 See 85-2-702 MCA.

Clark Fork River Basin Water Management Plan Chapter 5 Page 4 August 2004 • Painted Rocks and Lake Como Water Contracts. Beginning in 1958, DFWP has purchased water from Painted Rocks to supplement flows in dewatered stretches of the Bitterroot River. 4 DFWP funded an increase in the height of the Como Lake Dam, and in return received annually 3,000 acre feet, i.e., 50 cfs for 30 days, of flow to benefit the fishery. • Instream Flow Claim . DFWP has claimed instream flow water rights for the Bitterroot River from its mouth with the Clark Fork to the junction of the East and West forks of the Bitterroot River. The priority date is 1970 and the flows range from 350 cfs to 15,000 cfs. The recent Bean Lake Decision by the State Supreme Court may validate these water right claims.

Bibliography

For further information on the water management constraints discussed above see: • Biological Opinion, Reinitiation of Consultation on Operation of the Federal Columbia River Power System, Including the Juvenile Fish Transportation Program, and 19 Bureau of Reclamation Projects in the Columbia Basin, National Marine Fisheries Service Northwestern Region, December 2000. • Bull Trout Proposed Critical Habitat and Draft Recovery Plan, U.S. Fish and Wildlife Service, November 2002. • Clark Fork River Operable Unit Record of Decision, EPA Region 8, 10 West 15 th St., Suite 300, Helena, MT 59626, April 2004. • Clark Fork River Voluntary Nutrient Reduction Program, Tri-State Water Quality Council, 307 North 2 nd Ave., Suite 12, Sandpoint, Idaho, 83864, August 1998. • Hell Gate Treaty of 1855, see http://www.lakecodirect.com/archives/hellgate_treaty.html. • Milltown Reservoir Revised Proposed Plan, Milltown Reservoir Sediments Operable Unit, EPA Region 8, 10 West 15 th St., Suite 300, Helena, MT 59626, May 2004. • Nutrient Management Plan and Total Maximum Daily Load for Flathead Lake, Montana, Montana Department of Environmental Quality, December 2001. • Pacific Northwest Coordination Agreement, Administered by the Northwest Power Pool, 26 SW Salmon Suite 400, Portland, Oregon 97204.

4 The Montana Department of Fish, Wildlife and Parks holds two contracts for Painted Rocks water. The first was negotiated in 1958 and provides for 5,000 acre-feet of water annually for the useful life of the project. The second is a 10-year contract that expires on September 30, 2004, for an additional 10,000 acre-feet of water annually.

Clark Fork River Basin Water Management Plan Chapter 5 Page 5 August 2004 Chapter 6 Hydropower Water Rights and Basin Water Use

Pursuant to HB 397, the Clark Fork River Basin Task Force must identify options to protect the security of water rights and provide for the orderly development and conservation of water in the future. These three tasks are addressed individually in chapters 7, 8, and 9, respectively. This chapter explores a critical issue potentially affecting present and future water use in the entire basin. As noted in chapter 3, the hydropower water rights for the Noxon Rapids Dam located at the bottom of the Montana portion of the Clark Fork River basin near the Idaho border may pose a limitation on the water available for future use in the basin. Avista’s water rights, which total 50,000 cfs, are sufficient to utilize almost all of the flows leaving the basin. Clark Fork River flows greater than 50,000 cfs occur only 6-8% of the time over the entire 90 year period of record. Flows greater than 50,000 cfs generally occur 22 days in May and June of wetter years . This suggests that surface water (and groundwater connected to surface water) is legally available for future appropriation in the basin only during the period when Avista’s water rights are filled. Also, all water rights junior to Avista’s rights and the hydropower rights at two PPL Montana dams at Kerr and Thompson Falls appear to be at risk much of the time.

Before accepting these two suggestions as conclusions, the Task Force examined the basin’s hydrology and the status of Avista’s and PPL Montana’s hydropower water rights and their legal implications. As explained below, the Task Force concluded that Avista’s and PPL Montana’s water rights likely do pose a constraint on future basin water development and a risk to water use based on water rights junior to the hydropower rights. Given this fact, the Task Force identified potential strategies to allow both future basin water development and use by junior rights holders.

Avista Water Rights

Avista installed turbines at the Noxon Rapids Dam in 1951, 1959, and 1976. The hydropower water rights associated with the turbines are: $ 1951 - 35,000 cfs with a priority date of February 20, 1951; $ 1959 - 5,400 cfs with a priority date of April 3, 1959; and $ 1976 - 15,000 cfs with a priority date of November 19, 1974.

The 1951 and 1959 rights were confirmed in an August 27, 1986, decree issued by Montana Water Judge Holter. The 1986 decree is subject to an additional objection period before the issuance of a final decree by the Montana Water Court. Avista obtained the 1976 rights through the Montana Water Use Act water right permitting process and the associated public notice and administrative review. About 30% of the water rights by number in the basin are junior to Avista’s 1976 rights.

PPL Montana Water Rights

Kerr Dam - PPL Montana owns two water rights for the production of hydroelectricity at Kerr Dam. One right is for the amount of water necessary to fill the storage reservoir at any time. The second right is based on the capacity of the turbines and is for 14,540 cfs for power generation. The priority date for both water rights is April 3, 1920. These rights have not yet been adjudicated by the Montana Water Court. According to flow records, PPL Montana’s rights at Kerr are filled only during the high-flow periods of high spring runoff. In 5 of 30 years, the Kerr rights are not filled at any time. In 11 of 30 years, the Kerr rights are filled 32 days or less. On average, the Kerr rights are filled only 56 days per year.

Clark Fork River Basin Water Management Plan Chapter 6 Page 1 August 2004 Thompson Falls Dam - PPL Montana owns eight water rights for the production of hydroelectricity at Thompson Falls Dam. Three of the rights, 76N-W-094415-00, 76N-W-211941-00, and 76N-W- 211942-00, are for storage and can be used to draft and refill the reservoir for the purpose of providing daily shaping of power in response to demand.

The remaining five water rights are for flows through the turbines. Those rights are: Water Right # Flow Rate Priority Date 76N-W-094414-00 1,250 cfs March 31, 1905 76N-W-211938-00 2,000 cfs January 29, 1906 76N-W-211939-00 5,000 cfs December 3, 1906 76N-W-211940-00 2,870 cfs June 29, 1909 76N-P-081517-00 12,300 cfs May 13, 1992

The 1905, 1906, and 1909 rights were confirmed by an order issued by Judge Holter on October 20, 1986. A permit for the 1992 right was issued pursuant to the Montana Water Use Act.

According to flow records, prior to 1972, PPL Montana’s water rights at Thompson Falls were generally satisfied throughout most of the irrigation season except during portions of August and September. Based on the 21-year period from 1971 through 1991, PPL Montana’s water rights at Thompson Falls were filled 294 days per year. After 1992, PPL Montana’s rights have been satisfied only during the high flow periods of spring runoff. From 1993 through 2000, on average, PPL Montana’s rights at Thompson Falls were filled 93 days per year.

River Flow and the Avista Water Rights

The Task Force examined Clark Fork river flows over various averaging periods before and after Avista completed Noxon Rapids Dam. The analysis, which is included in Appendix 4, compared flows averaged over annual, monthly, and hourly periods for the most recent 10 years of record and for two 45-year periods (from 1911-1955 and 1956-2000) for three locations upstream of the dam. The analysis found that over all three averaging periods, the flows for the most recent 10 years of record and for the 45 years from 1956-2000 were higher than occurred in 1911-1955, the 45 years representing the approximate period prior to the Noxon Rapids Dam. Some Task Force participants concluded from this analysis that the flow data do not show any evidence that the water supply for the Noxon Rapids Dam has been or is being negatively impacted by water development in the basin. Another daily analysis, also included in Appendix 4, reached a different conclusion, namely, that during some months daily average flows have decreased over the last 45 years.

Legal Significance of the Hydropower Water Rights for Present and Future Basin Water Use

Given the analysis just described, the Task Force consulted with Tim Hall, chief legal counsel for the Montana Department of Natural Resources and Conservation (DNRC), concerning the implications of hydropower water rights. Under the prior appropriation doctrine that governs water rights in Montana, a water rights holder, including a utility holding hydropower water rights, has the right to make a call on a junior user to cease using water whenever its senior water right is unfilled. Because Montana has a unitary water rights system, the call can be made on both surface and groundwater. Junior water rights holders have the opportunity to argue that the call would be futile because the actual incremental flow increase at the turbines would be insignificant. The counsel advised, however, that as long as Avista or PPL Montana can show on a “calculation” basis that the water

Clark Fork River Basin Water Management Plan Chapter 6 Page 2 August 2004 used by a junior would increase flow at its hydropower turbines, a call is likely to be upheld by a judge. In the counsel’s opinion, except during periods when Avista’s or PPL Montana’s rights are filled, it is unlikely that surface water and possibly groundwater connected to surface water is legally available in the basin for future appropriation, but applicants have the right to try to prove that it is.

Specifically, with respect to Avista’s and PPL Montana’s water rights, this may mean: • Except during periods of high spring runoff (57 days per year on average), water is not likely to be available for appropriation in the Flathead River basin above Kerr Dam, and any appropriation with a priority date junior to April 3, 1920, is potentially subject to a call by PPL Montana. • Except during periods of high spring runoff (93 days per year on average), water is not likely to be available for appropriation in the Clark Fork River basin above Thompson Falls Dam, and any appropriation with a priority date junior to May 13, 1992, is potentially subject to a call by PPL Montana. • Except during the 22 days during May and June in 3 years out of 10, water is not likely to be available for appropriation in the Clark Fork River basin, and any appropriation with a priority date junior to November 19, 1974, is potentially subject to a call by Avista.

It is important to note, however, that neither Avista nor PPL Montana has exercised their right to make a call on a junior water rights holder to cease using water, and until June 2004, neither had objected to a new water right permit application. In June 2004, Avista for the first time objected to an application for a new surface water right permit. No one can predict with certainty whether or when the utilities might choose to make a call or object to a new water right permit. As the adjudication is completed and all of the water rights in the Clark Fork basin are tied together in one water right decree, the process of making a call will be made easier.

Strategies to Allow Additional Basin Water Development and to Protect Junior Users

Assuming that the basin’s hydropower rights present a real constraint on the issuance of new water rights and on junior water users, several options exist that could provide for future water use and protect the junior uses. The Task Force identified the following options and discussed their advantages and disadvantages.

Challenge the Hydropower Water Rights - Some water users may believe that the hydropower water rights were issued in error. As noted above, the hydropower rights at the Noxon Rapids Dam and at Thompson Falls Dam have been confirmed by District Court Judge Holter, whereas the Kerr Dam rights have not yet been adjudicated. Because the final water right decree for the Clark Fork River basin has not yet been issued by the Water Court, opportunity still exists to object to all of these rights. While no one can predict with certainty how the Water Court will rule, it does not appear likely that the hydropower rights will be determined to be invalid.

Water Marketing - If no more new water rights are available in the basin, water could be re- allocated by individuals or political subdivisions purchasing and converting existing water rights to new uses or by leasing existing water rights. Even if new water rights are available, water right purchases and/or leases may occur because any new economic activity dependent on water use probably could not be based on the basin’s most junior water right. The risk that such a junior right would be interrupted would be high. An advantage of water marketing is that it is a well understood activity. Disadvantages include the possible unavailability of water rights for purchase or lease

Clark Fork River Basin Water Management Plan Chapter 6 Page 3 August 2004 and/or the price that would be necessary to do so. Also, some water rights, such as irrigation rights that might be available for purchase or lease, would not provide the year-round water use that some users require. Modifying an existing right by changing the location of the diversion and/or type or place of use would also require obtaining authorization from DNRC. As discussed in Chapter 4, obtaining a change associated with a water right purchase or lease would require a showing that existing rights holders would not be adversely affected.

Basin Closure - Over-appropriated basins can be closed to the issuance of new water rights. The advantage of a closure is that it would eliminate the need for existing water rights holders, including hydropower right holders, to object to new water rights permits or to enforce the priority of their rights against new junior users. To obtain water for new uses, water users would have to rely on water marketing, contracting for stored water, or condemning existing rights. Another disadvantage of basin closure is that it would not provide protection for existing water users with rights junior to the hydropower rights from water rights calls.

Condemnation of Existing Rights - Municipalities may condemn existing water rights for public purposes. Condemnation would result in the payment of fair market value for any rights condemned. The state might also provide the condemnation opportunity if the state had condemnation authority. This authority has not been established. The advantage of condemnation is that it affords the opportunity for additional water use if the water marketing, USBR contracting, and other options fail. The disadvantage is that condemnation is by definition an unwilling transaction involving litigation. Also, condemnation would not expand the amount of water available for use—the conditions of the water right condemned, including the rate and volume, would remain unchanged.

Subordination of Hydropower Rights - As discussed in Chapter 4, water rights are presently allocated strictly on a first in time, first in right basis. No beneficial use has a higher priority than any other. The state could move away from this allocation and require hydropower rights to be subordinated to other water users and thereby eliminate the opportunity for hydropower water right holders both to make call on junior users and to object to new water right permits. The Montana Legislature required a subordination of the hydropower rights at the Cabinet Gorge Dam when it was built. However, because the hydropower rights at Noxon Rapids Dam, which is located immediately upstream of the Cabinet Gorge Dam, were not subordinated, the Cabinet Gorge subordination had no practical effect on Montana water users in the Clark Fork River basin. In addition to changing the way water has been allocated, a subordination of hydropower rights at other basin hydrogenerating facilities may require payment by the state to the utilities for the subordinated rights, probably through a condemnation action.

Store More Peak Runoff In the Ground - During periods when the hydropower water rights are filled, water could be stored in the ground for later use. An advantage of such storage is that it is much cheaper than new dams. A potential disadvantage is that the state currently lacks the legal ability to regulate groundwater storage, and, depending on the location, also lacks the necessary information to actively manage groundwater.

Contracting for Water from Hungry Horse Reservoir - Hungry Horse Reservoir was constructed and is operated by USBR “(f)or the purpose of irrigation and reclamation of arid lands, for controlling flood, improving navigation, regulating the flow of the South Fork of the Flathead River, for the generation of electric energy and for other beneficial uses primarily in the State of Montana,

Clark Fork River Basin Water Management Plan Chapter 6 Page 4 August 2004 but also for downstream uses.” Under certain circumstances, public entities such as irrigation districts and state and local governments and individuals can contract for water stored in the reservoir. In its water rights claim filed with the Montana Water Court, USBR claimed 3,500,000 acre-feet of storage for future sales, although no such contracts have been issued to date. According to USBR, the steps necessary to enter into contracts include: • Public participation in negotiations and decision-making; • Addressing the environmental aspects in compliance with the National Environmental Policy Act of 1969; • Identifying the available water supply; • Performing a financial analysis of the water users’ ability to pay for irrigation water; and • Determining the irrigation water charge (this includes the water users’ repayment ability and an allocation to irrigators of an appropriate portion of the project construction costs).

The operation of Hungry Horse Reservoir is subject to a biological opinion issued by the National Marine Fisheries Service as a result of the listing of Columbia basin anadromous fish stocks pursuant to the Endangered Species Act. This may mean that the top 20 feet of reservoir storage is allocated to anadromous fish. The fish constraint may limit the availability of water for contracts for consumptive uses.

While Montana has not been active in seeking contracts for use of Hungry Horse water, other states