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Montana Water Court Aug £ 3 2005 PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (In-State Only) (406) 586-4364 Montana Water Court Fax: (406) 522-4131

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Montana Water Court Aug £ 3 2005 PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (In-State Only) (406) 586-4364 Montana Water Court Fax: (406) 522-4131 FILED C. Bruce Loble Chief Water Judge Montana Water Court AUg £ 3 2005 PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (In-state only) (406) 586-4364 Montana Water Court Fax: (406) 522-4131 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI RIVER DIVISION *********************************** IN THE MATTER OF THE ADJUDICATION ) CASE NO. WC-2000-02 OF EXISTING AND RESERVED RIGHTS TO ) THE USE OF WATER, BOTH SURFACE AND ) UNDERGROUND, OF THE RED ROCKS ) LAKE NATIONAL WILDLIFE REFUGE OF ) THE STATE OF MONTANA ) FINDINGS OF FACT AND CONCLUSIONS OF LAW APPROVING UNITED STATES FISH AND WILDLIFE SERVICE, RED ROCK LAKES-MONTANA COMPACT THIS MATTER came before the Court on a joint motion of the State of Montana and the United States of America for approval of the United States Fish and Wildlife Service, Red Rock Lakes - Montana Compact, Montana Code Ann. Section 85-20-801 (2004). Based on the submissions of the State and the United States, the Compact and the record in this case, the Court now issues the following: FINDINGS OF FACT General Adjudication of Water Rights 1. In 1979, the State of Montana commenced a comprehensive, general, state-wide adjudication of the rights to the use of water within the State of Montana, including all federal reserved and appropriative water rights, pursuant to Title 85, Chapter 2 of the Montana Code Annotated. Reserved Water Rights Compact Commission Negotiation 2. In 1979, the Montana Legislature stated its intent that the State of Montana attempt to conclude compacts for the equitable division and apportionment of waters between the state and its people and the federal government claiming reserved waters within the state. It established the Reserved Water Rights Compact Commission (Commission) to act on behalf of the governor and the people of Montana as a whole in those negotiations. Sections 85-2-701, -702, and -703 and 2-15- 212; M.C.A 3. In the mid-1980s, the State of Montana, through the Commission, commenced general negotiations with the United States of America, on behalf of the U.S. Fish and Wildlife Service (FWS), (the State and the United States are collectively referred to as the "Settling Parties") for five FWS refuges in Montana that include lands reserved from the public domain, but those negotiations were discontinued due to other priorities. Technical Report Presented to the Montana Reserved Water Rights Compact Commission, dated October 2002, at 10. (Technical Report) In 1996, the Settling Parties resumed negotiation efforts to quantify the reserved water rights associated with the Red Rock Lakes National Wildlife Refuge and Wilderness Area. Id. 4. Red Rock Lakes National Wildlife Refuge includes all lands located in the Centennial Valley in Beaverhead County in the southwestern corner of Montana that were withdrawn and reserved by Executive Orders No. 7023 of April 22, 1935, and 7172 of September 4, 1935, and all additional lands acquired over the years by the United States Fish and Wildlife Service within the boundaries established by those orders. Technical Report at 8-9; Appendix 1. The purpose of the Refuge is: ... to effectuate further the purposes of the Migratory Bird Conservation Act... [and to serve] as a refuge and breeding ground for wild birds and animals. Protection of the breeding grounds of trumpeter swans, as well as the protection of habitat for Arctic Grayling, Westslope Cutthroat Trout, and other endangered, threatened and sensitive species has been the main focus of the Refuge. Technical Report at 9-10. Over the years, the United States has acquired approximately 35,782 acres for the Refuge, which has increased the size of the original Refuge from 9,218 to approximately 45,000 acres. Much of this acquired land carried water rights that were senior to the reservation date of the Refuge.' The Refuge also includes about 15,000 acres of private inholdings within its boundaries, and Refuge managers administer a certain number of grazing and haying permits each year. Technical Report at 9-10. Red Rock Lakes Wilderness Area includes approximately 32,350 acres of land within Red Rock Lakes National Wildlife Refuge designated as wilderness by Public Law 94-557 of October 19, 1976, 16 USC 1132. Public Law 94-557 states that the lands set apart within the Refuge and designated as wilderness are components of the National Wilderness Preservation System and shall be for the purposes of and "administered in accordance with the applicable provisions of the Wilderness Act [78 Stat. 892]." Technical Report at 9; Appendix 2. (Henceforth, the Red Rock Lakes National Wildlife Refuge and Red Rock Lakes Wilderness Area are referred to as the "Refuge"). 5. Members of the Commission Negotiating Team were Senator Chuck Swysgood, Senator Bea McCarthy, Bob Thoft, Chris Tweeten, Rep. Sam Rose, and Rep. Emily Swanson. They were supported by a Commission staff that included Barbara Cosens, legal counsel; Dave Amman and Stan Jones, hydrologists; Craig Bacino, geographer and GIS specialist; Bill Greiman, agricultural engineer; Susan Cottingham, staff director, and Joan Specking, historian and technical team leader. Technical Report at 10. Members of the FWS Negotiating Team were Cheryl Williss, Chief of the Water Resources Division, FWS Mountain-Prairie Region; Dave Schmidt and Jana Varner, FWS hydrologists; John Chaffin, legal counsel, U.S. Department of the Interior Solicitor's Office in Montana; Dave Gehlert, legal counsel, U.S. Department of Justice, Washington D.C. and Jim DuBois, legal counsel, U.S. Department of Justice, Denver. Id. 6. In September of 1996, the FWS presented a proposal to the Commission in which it offered to subordinate most of its water rights to the existing water rights of other users as finally decreed by the Water Court in exchange for (1) protection of all its existing diversions to maintain 1 The Water rights acquired by FWS went back to 1888 and were senior to all other upstream irrigation claims. FWS claims on Odell Creek were senior to all other upstream irrigation claims. FWS claims on Odell Creek were senior to the only irrigation user on that stream. FWS had four water right claims on Tom Creek, one with a date of 1898, which was senior to the only private irrigation user on that stream. Technical Report at 11 and Appendix 4. its Refuge wetlands, including minimum flows of 15 cfs in Red Rock Creek, 11 cfs in Odell Creek, and 1.4 cfs in Tom Creek; (2) right to change the use of existing state based water rights appurtenant to any lands it acquires in the future; (3) permanent basin closure of Red Rock Creek and all its tributaries above the Refuge; and (4) maintenance of existing lake levels on the Refuge. Technical Report at 11 and Appendix 3, citing Letter to Commission negotiating Chair Rep. Emily Swanson from Cheryl Willis, FWS, September 16, 1996, and Summary of Minutes of July 15, 1997 Negotiating Session, Helena, MT. The Commission's primary concern during negotiations was the protection of existing water users in the basin. Existing water users expressed concern about (1) the legal basis for the FWS change of use from irrigation to instream flows and habitat maintenance; (2) the impact on shallow aquifers and sediment rates downstream, particularly on Odell Creek, if FWS discontinues using water rights for irrigation; (3) the impact minimum stream flows would have on availability of stock water and hay production during dry years; (4) how FWS would maintain and enforce minimum flows during dry years; and (5) maintaining their ability to make changes in existing ground water uses and to develop large groundwater wells in the future.2 Technical Report at 11, 16, 25, and 26. 7. It was determined during the negotiation and public notice period that, generally, water users downstream from the Refuge would not be adversely affected by the proposed Compact, because the Refuge was seeking to preserve or enhance stream flow, which would preserve or enhance flows for downstream users. To mitigate some downstream users' concern with the impact discontinued irrigation could have on shallow aquifers and the sedimentation rate of Odell Creek, the FWS agreed to continue to set aside 3,000 acre-feet at 25 cfs for irrigation in that area. Compact at Art. H.A.l; Technical Report at 17. To mitigate the impact on stock permittees on the Refuge, the FWS agreed to subordinate its minimum flow water rights to all upstream domestic and instream stock uses, including stock tanks installed to replace instream stock watering, and assisted some ranchers in finding grants for improvements to their stock watering systems. Compact at Art. HB.2.b.; Technical Report at 26-27. 2 Due to the nature of the topography and geology in the basin, it was agreed that most groundwater likely resides in underlying gravels and is connected to the surface water, and therefore any large groundwater development would probably have a direct impact on stream flow. Technical Report at 25. To mitigate the impact of minimum stream flows on upstream junior water uses, among other things, the FWS agreed to negotiate voluntary cooperative agreements with claimants on Red Rock, Odell, and Tom Creeks, that would allow FWS minimum flow needs to be met during dry years, in return for subordination of their water rights as set forth in the Compact, and its agreement not to object in the Water Court to claims voluntarily reduced through the use of such cooperative agreements. Compact at Art. H.B.2.b.; Compact at Art. in.C.l; Technical Report at 18, 20. To mitigate the impact of the groundwater well restrictions on water users in the basin, the FWS agreed to permit wells over 35 gpm, or a total appropriation of more than 10 afy, if the Department of Natural Resources and Conservation (DNRC) determines that the groundwater is not hydrologically connected to surface water upstream from the Refuge.
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