Stream advocates demand FWP answers on water rights enforcement
Laura Lundquist
(Missoula Current) Three organizations have asked the courts to require Montana’s wildlife agency to justify why it’s not using its water rights to keep more water in the upper Beaverhead River for fish.
Last week, Upper Missouri Waterkeeper, Alliance for the Wild Rockies and Save the Bull Trout asked the Lewis and Clark County district court for an injunction to require Montana Fish, Wildlife & Parks to publicly explain why it’s not using its instream flow rights to stop the operators of the Clark Canyon Dam from severely reducing the amount of water released from the Clark Canyon Reservoir.
Due to the ongoing drought in Montana, Clark Canyon Reservoir currently holds only 30% of its capacity, and very little water - around 157 cubic feet per second - is flowing into the reservoir. An Aug. 28 FWP press release said FWP had met with Beaverhead basin irrigators and dam operators, who had said they’d be reducing the amount of water flowing out of the dam to a trickle of 25 cfs starting Sept. 1. So, FWP agreed to close all fishing on the Beaverhead River for about 7 miles from Clark Canyon Dam to the Pipe Organ fishing access site, and several large agricultural producers agreed to stop irrigating on Sept. 1, according to the press release.
Prior to Sept. 1, the dam outflow was 217 cfs, about half of the 400 cfs that has been released in years past, according to Upper Missouri Waterkeeper.
A year ago, the three organizations sued FWP over its lack of enforcement of instream water rights statewide. The case uses the Blackfoot River and the upper Missouri watershed as examples of how FWP has abandoned its responsibility to protect fish when it has the means to do so. While that lawsuit is proceeding, the groups have now filed an emergency motion for the injunction on the Beaverhead River.
The first instream water rights FWP acquired were “Murphy rights” - named for the Montana legislator who carried the bill in 1969 - which were unclaimed water rights on a dozen Montana streams that were given a seniority date of 1970. The Blackfoot, Gallatin, Madison and Smith rivers are a few that have Murphy rights.
In 2008, with the demolition of the Milltown Dam, the state of Montana got the hydropower water right on the Clark Fork River with a seniority date of 1904. That was important because owners of older water rights have priority for water over people with newer water rights. When water is limited, senior water rights holders can “make a call” that requires junior water rights owners to stop using their water until the senior owner gets their full amount of water. This was the oldest right FWP owned up to this point.
On the Beaverhead River, FWP has an instream flow right with a date of June 12, 1931 and a 200 cfs maximum flow rate. That’s older than the 1960s water rights owned by the Bureau of Reclamation for the Clark Canyon Reservoir.
The organizations clarified that they aren’t asking the court to require FWP to make a water rights call to keep the water flowing. They are asking FWP to look at its instream right, determine whether any junior water rights are impairing the right, and then explain “on the record why refusing to act is not detrimental to the Beaverhead fishery, despite FWP’s own science, its own public-trust guidance and the senior status of FWP’s decreed right.”
“FWP has systematically shirked its obligations to enforce the very water rights it owns, which have the potential to mitigate one of the many problems plaguing Southwest Montana’s rivers - low flows. Failing to protect the public trust harms small businesses, recreation, our way of life, and our rights,” said Guy Alsentzer, Upper Missouri Waterkeeper executive director, in a release. “Like other state agencies, FWP continues to ice the public out of decision-making and has failed to explain why it’s not using the tools in the toolbelt to bolster flows and better protect our fisheries - especially in the face of low flows, poor water quality, declining trout populations, and the upcoming spawning season.”
FWP declined to comment due to the ongoing lawsuit.
This isn’t the first time FWP has refused to enforce its water rights. The pivotal example was in June 2021, six months after the Gianforte administration took over, when FWP wanted to make a call on irrigators on the Smith and Shields Rivers. The governor stepped in and required FWP to provide proof that the call would benefit the Smith River. No other water rights owner has to provide proof of benefit in order to make a call.
Montanans protested the governor’s action so he had FWP develop a call protocol, based on several conditions including streamflow, local conditions and whether a basin has a drought response plan or water commissioner. For basins with a response plan or commissioner, FWP is not allowed to make a call. That means FWP won’t enforce its rights on the Blackfoot and Big Hole rivers, even though all drought management plans are voluntary.
The plaintiffs say FWP’s call protocol rule was developed without public input and the use of it is therefore unconstitutional. They point out that Montana water law says if a water-right holder doesn’t use or enforce their right, the right could be considered abandoned and it could be awarded to someone else. Also if other water-right owners had to follow such a protocol, the related industry such as agriculture would fight back.
The Beaverhead River flows out of Clark Canyon Reservoir southwest of Dillon and travels northeast to Twin Bridges where it joins the Ruby River and then the Big Hole River to form the Jefferson River. Not one of the three rivers still contains much water.
Much of the Beaverhead River is still under hoot-owl fishing restrictions due to high water temperatures and low water levels that threaten trout survival. The last 14 miles of the Big Hole River before it joins the Beaverhead is closed to all fishing due to high water temperatures and low streamflow below a threshold of 100 cfs. As of Sept. 1,
the Ruby River contained only 70 cfs of water where it joined the Beaverhead River.
The 7 miles of the upper Beaverhead River normally close for trout spawning season starting Oct. 1 through the third Saturday in May. Fishing guides doubt that trout can successfully spawn with such low flows.
“I am particularly frustrated by the lack of transparency about how and why the government agency with a public instream flow right for hundreds of cubic feet per second in flow has not used such a right when the conditions on the ground would stand to benefit,” said Montana flyfishing outfitter Toby Swank. “The Beaverhead's brown trout population spawn in the fall, and stable flows generally improve spawning and population recruitment in wild trout fisheries. I’m very concerned that the State of Montana is not doing everything within its power to protect our waterways and wild trout fisheries from unreasonable - and preventable - harm.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com