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1539 Eleventh Ave. Helena, MT 59601
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USDA Forest Service Compact

85-20-1401 MCA

The water compact between the State of Montana and the U.S. Forest Service took more than 25 years to negotiate. It was approved by the Montana Legislature and signed by Governor Brian Schweitzer and the appropriate Federal agencies on April 17, 2007. This compact recognizes reserved water rights for the U.S. Forest Service for administrative and emergency firefighting needs, and instream flows for the South Fork Flathead Wild and Scenic River. The compact also establishes a process under Montana law to create state-based water rights for instream flow on the National Forest System lands. The Montana Water Court issued a final decree for this compact in October 2012 (Case # WC-2007-03).

Compact Summary

Federal Reserved Water Rights:

  • Recognizes a reserved water right to divert water for the Forest Service for administrative uses (such as for ranger stations, pack stock, road watering) and for emergency fire suppression. Priority date is date of the creation of the National Forest or as specified.
  • Recognizes an instream flow right for the South Fork Flathead Wild and Scenic River. Though the priority date is October 12, 1976, the date this river was designated by Congress, the U.S. has agreed to subordinate its right to state-based rights senior to the effective date of this Compact (4/17/2007).

Instream Flows under State Law:

  • Creates, in the Compact, instream flow water rights under state law for 77 streams and one in-place water right for a fen (wetland) all located on National Forest System lands. All of these water rights will have a priority date of 2007.
  • Establishes a process that the Forest Service may use in the future to apply for additional instream flows under state law on other streams throughout the National Forest System lands in Montana. Priority date will be the date of application.
  • In exchange for water rights created and the means of acquiring instream flows under state law, the Forest Service will withdraw all of its existing or possible claims for reserved water rights for instream flows in the ongoing water adjudication.

As part of the overall agreement, the parties have agreed to seek changes to state law that:

  • Continues the ability of the Forest Service to object in the Water Court to any water right claim on or crossing National Forest System lands that adversely affects Forest Service interests.
  • Coordinates state and federal permitting processes.
  • Allows a change of use from an appropriation to divert or withdraw water on land owned by the Forest Service above or immediately adjacent to the National Forest boundary to an instream flow. This is primarily intended to allow the Forest Service to change irrigation and other rights to instream flow on land that it might acquire in the future.

This Compact settles all federal reserved water rights of the Forest Service. The Forest Service has other water use claims based on state law that are in the adjudication process and are not part of this agreement (for example, campgrounds are not “specific purposes” for which forest service land was originally reserved).

Public Input
All negotiating sessions were noticed and open to the public. In the fall of 2006, public meetings were held in 17 communities. Meetings with interested individuals and groups were held. A web site was created. Written comments via mail or e-mail were encouraged. All comments on this Compact were considered by the negotiating teams.


Compact Appendices

Appendix 1 - Administrative Uses

Appendix 2 - Water Right Claims to be Dismissed / New Water Right Numbers

Appendix 3 - Water Reservation Application for Instream Flow Form