Kearns and Sons RS Aesthetics

Commissioners object to another Forest Service water right request


By Michael Howell

Last Tuesday, August 6, the Ravalli County Commissioners decided to file an objection to the water right application being made by the U.S. Forest Service on Nelson Creek, a tributary to the Nez Perce up the West Fork of the Bitterroot. The water right is for in-stream flows on the creek to maintain fisheries on forest land. The non-consumptive water right would end at the Forest Service boundary and be junior to any current irrigation water rights off the creek.

In a special compact agreement with the state of Montana made in 2007, the Forest Service was allowed to make in-stream flow water right claims on streams as they traverse forest land in an effort to protect fisheries for species of special concern like Westslope Cutthroat trout and Bull trout. The agreement allows the Forest Service to make these claims even in basins that have been closed to any further water right applications, like the Bitterroot.

The process of acquiring the water rights in the Bitterroot went unnoticed by the County Commissioners until applications were made on Blodgett and Laird Creeks this past winter. The Commissioners objected to those water right applications but the objections were denied by the DNRC, primarily due to the requirement that objectors must have a water right on the stream in question.

Commissioner J.R. Iman, who possesses a water right off of Blodgett Creek, said at last week’s meeting that he would have sued personally over the denial of the objections to the Blodgett claims except that he didn’t have the $30,000 to do it.

The Commissioners’ current objections to the application on Nelson Creek mirror the objections made to the Blodgett Creek claims. They include an objection to having to pay a $25 fee to object, an objection to the process itself which allows the federal government to make water right applications in a closed basin where private individuals are prohibited from applying, and a continuing objection to the use of the Wetted Perimeter Method (WPM), a method used to calculate the amount of water being claimed in the process.

The Commissioners concede that there is little hope in challenging the use of the WPM in calculating the claim amounts because the state law adopted to allow the water right claims specifically establishes the use of the WPM. The Commissioners continue to insist that this gives the Forest Service a claim to more water than is actually in the creek most of the time.

Iman said that he was able to get a stipulation added to the Blodgett Creek water right that it was based on a mechanical method and not on actual water flows. He suggested they try and do the same in all succeeding water rights being sought on the forest.

Iman also wondered, since the county’s objections have to do mainly with questions about the process of awarding the rights and those objections were already a matter of record, if they needed to continue to file objections on every application. The Forest Service has plans to apply for rights on other streams in the valley including Bertie Lord, Deer, Lost Horse, Lavene, Boulder and Bear Creeks as well. Deputy County Attorney Howard Recht said that if the county did not file a timely objection to the particular water right in question it would jeopardize their chances to seek any legal remedy later.

The Commissioners decided unanimously to file an objection to the Nelson Creek water right application.


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