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Commissioners to object to Forest Service’s water right applications


By Michael Howell

The Ravalli County Commissioners voted unanimously on Wednesday, February 20 to file an objection to the U.S. Forest Service’s application for instream water rights on Blodgett and Laird Creeks.

Ethan Mace, Surface Water Hydrologist for the Department of Natural Resources and Conservation (DNRC), explained the water right application process to the Board of Commissioners and told them that the new water rights being sought by the Forest Service would be junior to all existing water rights on the creeks, were for a non-consumptive use, and would have no effect downstream of the new claims since the designated stretches of instream flow are located entirely on national forest property.

Mace said that the issuance of water rights in a closed basin was unusual, but in this case it was the result of a negotiated agreement between the state and the U.S. Forest Service. He said that the Forest Service was claiming a federal reserve right to the water dating back either to the formation of the National Forest or at the least to the 1960 Multiple Use Act. He said the Forest Service and the state agreed that if the federal government did give up its claim to the early priority date, the agency would be given the opportunity to apply for instream water rights in the Bitterroot Basin despite the basin closure in effect. These new water rights would have a priority date of the date of application and would be junior to all other existing water rights. He said that establishment of the instream flow rights would have no effect on any future water storage above those reaches.

Mace also told the Commissioners that he was handling the water right applications for DNRC and had made a “preliminary determination” that the applications had met the state’s criteria for issuance before they were released for public review. During the 30-day public review process the department accepts objections to the issuance of the rights. He also noted that in the expedited process underway the criteria being used is limited to questions of whether or not the stream channel is appropriate to Wetted Perimeter Method (WPM) analysis, whether the WPM was applied correctly, whether fish species of concern are actually in the stream or not, and whether there are any water reservoirs proposed or projected in the next the ten years, or ten years after the water basin is opened.

Commissioner Suzy Foss said that the people of Ravalli County were “looking at the perfect opportunity for a dam and reservoir up Blodgett Creek, perhaps to serve the City of Hamilton.”

Mace said that there is a provision to allow the placement of a diversion for a reservoir if there are already substantial plans to put such a reservoir in place. He noted that the department had never seen a reservoir objection to a water right application. But if such an objection was determined to be valid, he noted, DNRC would have the option of issuing the right, modifying it, denying it, or subordinating it. He also noted that an upstream reservoir could be established that would not interfere with the instream flow rights below it.

At a previous meeting with Forest Service officials concerning the water right applications, commission members questioned the appropriateness of using the WPM. Commissioner J.R. Iman presented a record of 22 years of gauge measurements showing, according to his analysis, that Blodgett Creek flows with less than the 31 cfs being requested in the new water rights at least 6 to 7 months out of the year. He accused the Forest Service of trying to claim water that did not exist. He reiterated those concerns at the latest meeting.

Both Mace and FWP fisheries biologist Chris Clancy spoke to those concerns. Mace explained that the WPM was a method of measuring the relationship between water flows and the width of the streambed in order to calculate the minimum and optimum flows for aquatic insect production, the foundation of good fish habitat. It was not based on historical flow rates but on the physical characteristics of the streambed. Clancy elaborated, stating that the WPM should not change over dry or wet years or during high and low flows since it is only a measure of the relationship between water flows and the width of the streambed used to calculate the minimum amount of water needed to cover the streambed and preserve fish habitat.

Mace also noted that the use of the WPM as opposed to any other method was not at the agency’s discretion but was encoded in state law. He suggested that anyone objecting to the use of that method would have to take it up with the legislature.

In the public comment period Ron Pifer said that he was concerned about proposed instream rights pre-empting future claims to water above those fishery sections for mining purposes, especially since private interests are not being given a chance to make water right applications while the basin is closed. He said the Forest Service’s reasons for filing were not clear and their motivations were suspect. He said in the future claims under the Endangered Species Act for fish species in the designated flow areas could pre-empt even senior water rights.

Larry Campbell supported the instream flow rights. He said that although he did not trust the Forest Service either, he distrusted out-of-state corporate interests even more. He said if water rights were obtainable, and the Forest Service did not get them, someone else would.

“I’m more concerned about Las Vegas corporations making claims in our headwaters,” he said.

Keith Kubista said, “Water is life. What’s more important, humans or fish and wildlife?” He urged the commissioners to object to the applications.

Bill LaCroix said that the discussion over these water rights was legitimate but he urged the commissioners not to waste taxpayer time and money on a fruitless objection.

Dan Cox, former Libertarian candidate for the Senate, said that he also believed filing an objection with DNRC would be futile but, he said, it should be done as the first step in a process that would lead to litigation, and if that doesn’t work, to legislation. That could be done by public referendum, he noted.

Michael Helling said that as a soldier in Vietnam he had lived for years in an environment dominated by fear, anger, hostility and polarization. He said on coming home, he longed for something different.

“You set the tone here,” he told the commissioners and he urged them to do the right thing.

Dave Smith, former candidate for County Commissioner, said that there was a lot of hype and a lot of hysteria over the issue. He said he had no problem with the methodology, or with the Forest Service. He said his lack of trust was in the Board of Commissioners looking out for corporate interests instead of the public’s.

Commissioner Foss said that it was the board’s responsibility to look after the interest of the people of the county. She said that the Forest Service talks about collaboration, but when it comes to doing things, “We are the last to know.”

Commission Chairman Jeff Burrows said that he saw inconsistencies that concerned him, such as the question of using “real data” versus using one time data from the WPM. He called the WPM a “bogus” method.

“We’ll see what happens when we try to play God, when we are not,” he said. “We might be helping the fish or we might not.” He said that he believed fish would move up and down the stream with or without the water rights.

Commissioner Iman said, “My objection is simple. It is based on 22 years of data. There is only so much water. The 31 cfs requested does not flow most of the year.” Iman, who possesses a water right on Blodgett Creek, said that he intended to file an objection as an individual.

Commissioner Ron Stoltz said he had quite a few concerns. He said he was in favor of filing an objection but, given the restrictive criteria for objections, it may be of no use.

“It doesn’t look good,” he said.

Stoltz made the motion to file an objection and the motion was approved unanimously.

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