Gianforte stopped FWP effort to bolster streamflow, requires protocol

At the start of last summer’s heat waves, Gov. Greg Gianforte barred Montana Fish, Wildlife & Parks from enforcing FWP water rights to keep enough water in two rivers for ecosystem health. Now on the verge of what’s predicted to be another dry summer, some worry about a repeat or the possibility that similar bans could be extended to other rivers.

On July 7, 2021, Gov. Greg Gianforte sent a letter to FWP Director Hank Worsech, preventing FWP from asking junior water rights owners to stop using water on the Smith and Shields rivers in central Montana. The Missoula Current obtained the letter a month ago through an FWP records request.

“Montana is currently experiencing a historic drought, and both the Smith and Shields Rivers are facing historic lows. However, based on the analysis provided by FWP and subsequent discussion, it is apparent that a call would provide questionable, if any, measureable benefit to the resources in question. As such, I am directing FWP to forego a call for water on the Smith and Shields Rivers,” Gianforte wrote.

Under Montana water law, if a river starts to drop low enough to reduce the amount of water someone has a right to, that person or entity can ask people upstream who have newer water rights – junior water-rights owners - to stop using water until the more senior owner gets his full amount. This is known as “making a call.”

Sometimes, streams have run dry as every water user tries to get their share. To counter that, over the past three or four decades, FWP has obtained water rights from the 1970s in order to keep enough water in several rivers to preserve trout and other aquatic organisms.

Last summer’s drought was rough on several of Montana’s rivers, including the Smith and Shields. The Smith River north of White Sulphur Springs has a 56-mile stretch that became so popular that 17 years ago FWP instituted a permit system for May through July when the river is high enough to float. But last year, flows dropped so quickly that people with permits to float the river after mid-June weren’t able to do the trip.

Eighty-two water users on the Smith River and 44 on the Shields River have water rights junior to those of FWP, according to the July 1 memo FWP sent to the governor’s office prior to the governor’s decision. Those numbers don’t include people with stock, domestic or municipal water rights. Eight are mining water rights that the memo said probably weren’t being used.

On June 30, FWP Water Conservation Specialist Andy Brummond was preparing to make a call on 48 junior water rights on the Smith River and 37 on the Shields River. He has made similar calls in past years, according to the memo.

However, this time, the Governor’s office stepped in, wanting to know the names and types of water users that would be affected and asking for proof of how the call would benefit to the stream.

In the July 1 memo, FWP Lands Program manager Bill Schenk used hypothetical situations to explain why FWP staff couldn’t provide hard data showing the benefit of making a water rights call. The situations included the possibilities that other senior users might divert the water FWP called for; that junior users maybe weren’t using their water to begin with so they had nothing to add; or they might not comply with a call.

“Very rarely do we see observe a flow response in a USGS Realtime gauge, and we do not expect to in the Smith or Shields. However, though it is very difficult to quantify, there are likely some localized benefits,” Schenk wrote.

Upon learning of Gianforte’s order and the FWP memo, sportsmen’s groups were concerned, particularly Montana Trout Unlimited. The organization played a large role in the Legislature of the 1990s, advocating for the creation of instream water rights and the authority for FWP to acquire water rights to preserve instream flows.

“It is a dangerous route to go down. If an irrigator makes a call, the government doesn’t ask that irrigator to prove that his call will make a difference on his crop yield. So asking FWP to have an additional burden to prove that a call would have a beneficial effect, that’s creating additional red tape,” said TU spokesman Clayton Elliot. “Making a call on your (water) right is part of making good on your right. It isn’t necessarily something to be avoided or eliminated within the system. The system actually requires it to be successful.”

Pat Byorth, Montana Trout Unlimited water director and FWP commissioner, said FWP wouldn’t be able to show direct cause-and-effect in most cases, because damages to the ecosystem caused by low streamflow are rarely sudden enough to be instantaneous, such as the fish kill due to a fungus in the Yellowstone River.

“(The problem is) more chronic,” Byorth said. “When you have really low flow years, the spawning fish tend to suffer more. Often, you don’t see that response until this time of year after they’ve gone through a winter in really bad shape and die. Then there’s the compounding effect of fewer fish spawning year after year.”

It’s shaping up to be another summer of low streamflow, because this winter hasn’t produced the hoped-for snows that could have pulled Montana out of drought. The mountains that supply the Shields River basin have received only half of their normal snowpack so far. Less snowmelt means rivers will again drop quickly, putting a pinch on aquatic life and human water needs.

Montana water law also says if a water-rights owner doesn’t make use of their water for a period of time, the water right can be considered “abandoned” and the state will sell it to someone else. Some worry that if FWP doesn’t defend its water rights, in the future, some might try to accuse FWP of abandonment. The instream water rights could be lost.

“It must also be pointed out that making call is a way to exercise due diligence in the maintenance of the state’s water rights. That is, in a system that recognizes that rights may be abandoned, it behooves the water right holder to protect those rights,” Schenk wrote in the memo.

Elliot said that’s not likely to happen right away. But as more people flood into the state putting more demand on limited water supplies, and as climate change increases the incidence of drought, allegations of abandonment may increase as people struggle to get water.

“Montanans own those water rights, and to risk them is really a profound statement,” Byorth said. “Are we going to fail to call on all these other rivers?”

Some instream rights aren’t susceptible to a governor’s interference. A few streams, such as the Blackfoot River, have drought management plans that already outline how and when calls are to be made. On a few other streams in western Montana, such as the Clark Fork River, the Confederated Salish and Kootenai Tribes co-own FWP water rights. So the governor can’t prohibit calls without CSKT approval.

For the rest, Gianforte’s letter directed FWP to develop a protocol for “evaluating and issuing calls that make measurable benefits.”

“We need to develop protocols that allow us to make informed, measured decisions with ample data and well in advance of a potential call. I would ask that FWP develop a clear protocol that creates parity during calls and ensure, to the extent practicable, that FWP obtains its objectives when making calls,” Gianforte wrote.

Byorth pointed out that most of the large agricultural producers in the state own senior water rights that go back to the late 1800s. So even when FWP does make a call, it doesn’t affect the bigger, more established farms and ranches.

Recognizing that water-rights owners more senior to FWP might use the water that FWP calls for, decreasing the benefit to the stream, the letter also encouraged the creation of drought management plans for more streams across the state, particularly the Smith and Shields drainages.

Nine months later, rivers are beginning to rise and irrigation season isn’t far off, but FWP has yet to produce its protocol for water rights calls. Elliot said Schenk said a protocol would be published within the next few weeks.

“I look forward to a protocol that is going to include an active dialogue with biologists and stream flow specialists. There’s some good that can come from this. I would hope that the public would have the opportunity to offer some comment and feedback and be involved. I think that sunshine is always the best disinfectant,” Elliot said. “I just don’t want to see more red tape put in front of instream flows and have them treated as a different water right with an additional burden just because they are held in public trust by FWP.”

Contact Laura Lundquist at lundquist@missoulacurrent.com.