CMR Cuts Water Claims
Could Be Good News For Many Water Users; USFWS Responded To Public input
By Samar Fay
Published: Wednesday, February 6th, 2013
Neighbors of the Charles M. Russell Wildlife Refuge at a public meeting last Wednesday, Feb. 1, heard recommendations that they accept a rewritten proposed water rights compact.
Chris Tweeten, chairman of the Montana Reserved Water Rights Compact Commission, told the meeting that in response to public comment, substantial changes have been made that eliminate significant impacts to existing water users in the area. The provision for basin closure and claiming all remaining flow in streams that go through the CMR to Fort Peck Lake were not supported by the public, he said.
The Compact Commission’s counter proposal to the U.S. Fish and Wildlife Service assigns quantified rights on 69 streams, not the original 177 that were claimed, for a four-month period from March 1 to June 30. It strikes out closing the basin, because the needs of the CMR could be met even with possible future water development by others.
All existing water rights are protected and the CMR abandons its 1936 priority date, changing it to the date the compact is adopted. This makes the federal water right junior to all other existing rights.
“There is a lot of security here in entering into this compact,” Tweeten said. “Users know what these rights are and they won’t change. We have knocked them down from what was a very aggressive offer.”
He said the Compact Commission was created by the Legislature in 1979 to negotiate Indian and federal water claims rather than have them taken to court, where individual water users would have to pay to litigate for their rights.
The compact grants the right of one-half or 1 cubic foot per second on 68 named streams draining onto the refuge for instream use to benefit stock, wildlife and wildlife habitat. There is a 70 cfs right in the Musselshell River. The rights begin where the streams cross into the CMR.
On certain stream reaches beyond the CMR boundaries, there will be restrictions on new on-stream impoundments after the compact becomes effective. Certain water rights will not be restricted even in time of water shortage: wells of 35 gallons per minutes or less and stockwater impoundments of less that 15 acre/feet.
Fergus County Commissioner Carl Seilstad said Hertha Lund, the property rights attorney hired by the six counties surrounding the CMR, recommended supporting the amended compact. Seilstad referred to a letter in which she said the compact responded to many complaints, and if it is not approved, the next step is litigation in Water Court, where the CMR would probably file inflated claims and hold to the 1936 date of seniority. The process would be expensive, with an uncertain outcome.
“We believe the 2013 priority date is huge in this deal,” Seilstad said. “We probably got the best deal we could.”
Not everyone was convinced. One man said, “Why would the Compact Commission want to do this? Take water rights outside the CMR boundary? To me it’s a deal with the devil.”
“Whether it’s a good deal or a bad deal is subject to interpretation,” Tweeten replied. “I understand the animosity to the FWS in this area but not dealing with them is not a choice. Claims will be quantified one way or another. We’re working so all you folks don’t have to go to court and fight with the FWS.”
CMR manager Rick Potts said he understands what it’s like “living next to an elephant.”
“I can’t change yesterday. Today can change. There has been 80 years of development since 1936. This compact does no harm to our neighbors. We have the opportunity on the table today to make things a little bit better than they were.”
Leonard Swenson, whose grazing association holds BLM permits in south Valley County, said that a year ago, the compact “looked like a power and control thing by the FWS,” but he feels comfortable with it now.
There was a piece of advice for anyone who has not yet filed for water rights – apply for them now to get a priority date before this compact is adopted.
At the meeting, Valley County Commissioner Dave Pippin registered the county’s opposition to a memorandum of understanding being negotiated between the FWS and the BLM because it did not include coordination with the county. Although the Water Compact Commission says the MOU is not part of the compact, Pippin said it deals with stream flows on the BLM to the CMR and was written “in conjunction” with the compact. In the minutes of a Resource Advisory Council meeting supplied by Pippin to the Courier, CMR manager Potts says the MOU is proposed to recognize the differing missions of the two agencies but to work together for a common goal.
“The overall intent is for no net increase in water use that would affect the refuge’s water supply,” Potts is quoted as saying.
Pippin requested that the MOU be discontinued and FWS and BLM work with the county commissioners to hold public negotiations for an MOU.
After the water compact meeting, Potts said the BLM owns water rights for the grazers. He said he doesn’t see a reduction in AUMs as a result of the MOU. The limit on AUMs is forage, not stockwater, he said.
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