Policy Change Frees up Flathead Water Rights

By Beacon Staff

The state Department of Natural Resources changed its process for reviewing new water rights applications for the Flathead River and lower Clark Fork basins last month, opening up the possibility for appropriations that have been held up over the past year and a half.

“This particular ruling for exemption in the Flathead is huge,” Sen. Verdell Jackson, R-Kalispell, said. “We’ll hopefully be able to make some progress in terms of the log jam in applicants. There are lots of people who’ve been left in limbo, sometimes after spending thousands of dollars on these applications.”

DNRC’s Kalispell Regional Office hasn’t approved a new water permit application in the two basins – except for small, exempt wells which are less than 35 gallons per minute and 10 acre feet – since December 2006, Regional Manager Terri Eccles said. More than 30 applications, ranging from subdivisions to domestic uses, have stacked up during that time.

The holdup began in 2006 when the DNRC denied a water use permit for Thompson River Lumber Co., a Thompson Falls business that wanted water for a small power plant. The agency said the lumber company couldn’t prove their diversion wouldn’t have an adverse effect on Avista, a senior water rights holder, 40 miles downstream. Avista is a Spokane-based utility service that provides power to Idaho and owns the Noxon River Dam on the lower Clark Fork River.

Following that decision, the Missoula and Kalispell regional offices were instructed to review new water permit applications on a case-by-case basis relative to the Thompson River Lumber Co. ruling.

That directive increased standards for new requests for water appropriations, shifting the guidelines from “measurable effect” to “calculable effect.” Previously, if applicants could show their diversion didn’t significantly change the rate or volume of water available to other water users within the more immediate area, DNRC concluded there was no impact. The Thompson River decision increased that guide to zero impact, and put the onus on applicants to prove they weren’t affecting Avista – even if they were requesting rights for water in the Flathead Valley, more than 100 miles away.

“As an example, say someone wanted a gallon of water out of Flathead or Whitefish Lake, we could assume that same gallon would be missing when the water reached Avista,” Eccles said. “So the applicant would have had to provide some sort of proof that wouldn’t happen.”

It created a hurdle, according to Jackson, that was nearly impossible to clear.

Avista has water rights, dating from the 1950s, which total 50,000 cubic feet per second – more than double the average annual flow of the Clark Fork. Because the Clark Fork typically only exceeds 50,000 cfs 16 to 24 days each year, if Avista asserts its full water right year round, there would be only a few weeks each year for new water appropriations.

Flathead County Commissioners, citing the decision for Avista and other constraints on water, petitioned the DNRC in December to secure federal rights for water stored behind Hungry Horse Dam. Water rights may soon become scarce, they said, so the county needs to secure them now in order to save the opportunity and affordability of future growth.

In early June, though, the DNRC sent a letter to the area regional offices saying the “case-by-case process is not proving to be effective for field staff” and that Avista and the agency had agreed on a new position: “…the TFLC (Thompson Falls Lumber Company decision) is precedent setting, but did not close the basin to further appropriations.”

The case, according to the letter, proved a diversion near the reservoir – the lumber company was within 10 miles of the Noxon Reservoirs upper shores – causes adverse affects. Diversions on the Flathead River and its tributaries upstream of the Flathead Indian Reservation’s boundaries, however, no longer need to be considered relative to the Thompson River case. Impacts here are diminished by stored water behind Kerr Dam and Hungry Horse Dam and in Flathead Lake.

“Essentially, it means we go back to evaluating these applications the way we did before the Avista case,” Eccles said.

The change comes as a relief to applicants who have been held up in the interim, including the city of Kalispell’s Public Works Department. The city has been waiting for about a year for a well on the north side of town near Glacier High School to be approved.

“It’s been a difficult process. We won’t try to convince anybody that we fully understood the reasons for their concern, but at least we understood the process we needed to undergo,” Jim Hansz, Kalispell’s public works director, said. “It made our day, though, when they told us this had changed.”

The additional time and costs from the extended water rights process cost the department a few thousand extra dollars, Hansz said, but didn’t push the total project – a multi-million dollar undertaking that also includes a water tower and almost two miles of pipeline – over budget.

For Jackson, who has long argued that the DNRC’s appropriation of excessive water rights to utilities like Avista is unconstitutional, the recent change was an important victory. He plans to hold a public informational meeting regarding water rights, hopefully with representatives from DNRC, in the coming months.

“It’s really good news for the Flathead,” he said. “I only hope they’ll continue to make more changes like this that do more to make water available for Montana citizens.”

Sen. Verdell Jackson and the Department of Natural Resources and Conservation will host a public forum on water issues Wed., Sept. 17 at 6:30 p.m. at Flathead Valley Community College in the Arts and Technology Building.