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County objection to USFS water right application rejected


By Michael Howell

Ravalli County’s objection to a U.S. Forest Service application for an in-stream flow water right on Boulder Creek has been rejected by the state Department of Natural Resources. The agency states in its notice of deficiency that the county has failed to provide any facts indicating a personal, particularized, and concrete injury to the property, water rights and interests of the county and has provided no facts explaining why one or more of the criteria cannot be met. The agency claims that no existing water rights will be affected since the new rights are non-consumptive, apply only on forest land and will be junior to all existing water rights in the Bitterroot River Basin.

The Boulder Creek water right application is the latest in a string of applications being made by the Forest Service for in-stream flows on the Bitterroot National Forest as part of an agreement with the state reached in 2007. The deal, made between the Forest Service and the state legislature, allows the agency to make the water right applications even though the Bitterroot Basin has been closed to any new water right appropriations by any other entities.

The county commissioners were late in getting involved in the ongoing series of applications because public notices from the agency were posted at the Clerk and Recorder’s office and went unnoticed by them as the first few applications came up for public review. Since becoming aware of the process they have filed objections to applications on Blodgett Creek, Nelson Creek and Lost Horse Creek. All those objections were also found to be deficient on the same grounds.

At the request of a few individuals, the commissioners have engaged the services of a Wyoming law firm to get help in honing an objection to the water right applications that might meet the legal requirements. A fund was established to accept private donations to engage the law firm and Terry Ryan donated $1,500 which covers the retainer fee. The law firm did begin some preliminary work on the issue in early December for no charge but did not progress far enough to be involved in the current objection on the Boulder Creek application.

Ravalli County Commissioners insist that the county should have standing and the fact that they do not possess a water right should not be a factor. They also disagree with the state compact which allows the federal government to appropriate water in a closed basin where the citizens cannot. The commission has also objected to the method used to calculate the amount of flows being requested because the stream does not carry that amount of water all year round.

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