USDA Forest Service/Montana RWRCC Agreement
Frequently Asked Questions & Answers
1. What is a federal reserved water right?
A federal reserved water right is created when an Act of Congress or a Presidential Executive Order or Proclamation sets aside federal land from the public domain and reserved for a specified purpose. The amount of water is that necessary to accomplish the specified purpose for which the land was reserved. The water right then carries the priority date of the reservation of the land, even though the water right might not be put to use at that time.
2. What is a “state water reservation”?
A state water reservation is very different from a federal reserved water right. A state water reservation is a water right created under Montana state law for instream flow or to reserve water for future consumptive uses. The State, the United States, or political subdivisions or agencies of the State or United States, can apply for a state water reservation under the procedures set forth in state law. The priority date of a state water reservation is the date of the application. The Montana Department of Fish, Wildlife & Parks (DFWP), Conservation Districts, and municipalities are among the entities that currently hold state water reservations on the Yellowstone, Missouri, and other river systems in Montana.
3. What types of water rights are in the Compact?
In general, there are two types of water rights that the U.S. Forest Service will have recognized in this Compact.One type is federal reserved water rights for consumptive uses. These water rights have relatively early priority dates (early 1900's) but relatively small volumes of water use. These water rights will allow the U.S. Forest Service to conduct administrative functions on National Forest System lands. U.S. Forest Service will also have a reserved water right for emergency fire suppression. Consumptive uses are described in Question 9.
The other type is instream flow water rights. There are 77 streams in the Compact itself for which the U.S. Forest Service will get state-based rights for instream flow. There will also be a process for the U.S. Forest Service to apply for an instream flow by obtaining a state water reservation. In exchange, the U.S. Forest Service has agreed to withdraw its reserved right claims for instream flows in the water adjudication. These state water rights for instream flows will have a priority date of 2007 or later, making them junior to all current water uses. Because the majority of National Forest Service lands are upstream of private lands, the U.S. Forest Service instream flow rights will also help insure flow to downstream senior water users. State-based instream flows are described in Question 10. There is one federal reserved water right for instream flow in the Compact for the South Fork Flathead Wild and Scenic River with a 1976 priority date, based on the date that Congress designated this River part of the Wild and Scenic River System.
4. What is the Reserved Water Rights Compact Commission?
The Reserved Water Rights Compact Commission (Commission) was created by the Montana legislature in 1979 in the same legislation that established the Montana Water Court . The Commission has nine members appointed by the governor, legislature and attorney general. Its sole mission is to negotiate settlements of federal reserved water rights claims with Tribes and federal agencies. This alternative to litigation has produced compacts with five Indian Tribes as well as several federal agencies (National Park Service, Bureau of Land Management, U.S. Fish & Wildlife Service) in Montana . These compacts will be integrated into the final decrees in Montana 's state-wide water adjudication.
5. Who are the parties to this settlement?
The U.S. Forest Service and the State of Montana.
6. What are the benefits to the U.S. Forest Service of completing this Compact?
The U.S. Forest Service needs water to fulfill its congressionally legislated mandates for land management (which include uses for administrative sites), implementation of programs and conservation of water dependent resources. Without a water right the U.S. Forest Service may not be able to use water for these purposes. Like all water rights holders, the U.S. Forest Service wants certainty to provide for the management of its water dependent resources on National Forest System lands. The best way to achieve that certainty is to complete this Compact. The other option available to the U.S. Forest Service is to end these negotiations and begin filing water rights claims to be adjudicated through the Water Court, which would be very expensive and take years, with an unknown outcome. Both the State and the U.S. Forest Service have invested a lot of time and energy in the negotiations. Completing the process, through ratification of the Compact by the Montana legislature and the United States, benefits both parties and ultimately the taxpayer.
7. What are the benefits to the State of Montana of completing this Compact?
The state-wide water adjudication will decree all water rights in Montana (with the exception of small uses that were not required to file). The adjudication includes all water right claims by the Indian tribes and the federal government. Because of the size and scope of National Forest System lands, it is essential that the U.S. Forest Service claims be resolved in order to complete the adjudication. The proposed Compact quantifies all consumptive uses within the National Forest System lands, and provides certainty for all water right holders. In addition, all instream flow claims will be withdrawn from the adjudication and the instream flow water rights for the U.S. Forest Service will have a 2007 or later priority date, making those rights junior to all current water uses in Montana. Litigation of U.S. Forest Service water right claims in other western states has been very time consuming and has cost each state millions of dollars.
8. Do other states also negotiate their water rights with the U.S. Forest Service and other federal agencies?
Western states have different approaches to quantifying federal reserved rights. There are other examples where water rights have been successfully negotiated between the U.S. Forest Service and a state. Unfortunately, federal reserved water rights claimed by the U.S. Forest Service have frequently been the focus of expensive litigation. The State of Montana had the foresight to establish a compact commission to negotiate federal reserved water rights in Montana.
9. What is a consumptive water use/right?
A consumptive water use is the beneficial use of water for a purpose that is diverted or withdrawn from the stream, such as irrigation or municipal use.
The U.S. Forest Service federal reserved water rights for consumptive uses are summarized in Table 1 of the proposed Compact. The federal reserved water rights for consumptive uses cover current administrative uses claimed as a federal reserved water right (not stockwater claims for grazing permittees) and future uses for administrative purposes. Examples of these administrative uses include ranger stations, pack animals, tree nurseries, and road watering. These consumptive use rights have relatively early priority dates (early 1900's) but are limited to relatively small volumes of water.
10. What is an in-stream flow use/right?
An instream flow water use is water left in a stream for non-consumptive uses, such as preservation of fish or wildlife habitat.
The proposed Compact provides instream flow water rights for U.S. Forest Service under state law. There are 77 streams in the Compact itself for which the U.S. Forest Service will get state-based instream flow rights upstream from the National Forest boundary. The listing and quantification of these rights are contained in Table 2 of the Compact. The U.S. Forest Service may also apply for state water reservations for additional instream flow rights. All these instream flow rights will have a priority date of 2007 or later, making them junior to current water uses. Because the majority of National Forest Service lands are upstream of private lands, the U.S. Forest Service instream flow rights will help insure flow to downstream senior water users.
11. As a water right holder in Montana, how might this agreement have an impact on me?
In Montana, water rights distribution follows the traditional “first in time, first in right” philosophy. Water rights are fulfilled in priority order. A senior appropriator (the holder of the earlier water right) sees their right fully fulfilled before the next appropriator. All water rights, including those held by the U.S. Forest Service are managed in priority order. As a water right holder, you can examine the consumptive water rights listed in Table 1 and instream flow rights listed in Table 2 to determine if they might affect you.
12. Are the instream flow water rights in the Compact the extent of instream flow water rights that the U.S. Forest Service will ever hold?
No. The compact includes a state water reservation process for the U.S. Forest Service to acquire additional state-based instream flow rights on National Forest System lands.
13. How were the 77 streams designated in the Compact chosen?
Initially, the U.S. Forest Service canvassed all National Forests in Montana to identify high priority streams for fishery values and those with high risk to the resource. A geographically representative sample of approximately 20 streams was proposed for inclusion in the Compact. The U.S. Forest Service made plans to collect data on these 20 streams. Upon further investigation, the parties found that data existed (much of it collected by the DFWP) for a number of these streams as well as many other streams in the State. Late in the negotiations and based in large part on public comment, the Commission agreed to add additional streams to the Compact that had published or reliable data corresponding with streams on National Forest System lands, bringing the total number of streams up to 77. During the 2006 field season, the U.S. Forest Service collected field data for those streams that were included in the initial list of 20 streams for which existing reliable data had not been found.
14. How were the flows for these streams determined? Will this be the process for the U.S. Forest Service for future water reservation applications?
Several data sources were used to formulate the instream flow quantifications contained in the Compact. Information about fish species occurrence was primarily obtained from publications of the DFWP with some reliance of U.S. Forest Service fisheries census reports. Flow data and channel cross section data were mainly obtained from DFWP publications and records and also from data collected in 2006 by U.S. Forest Service crews. The parties have agreed that the wetted perimeter methodology used in these flow calculations is the most appropriate. The same wetted perimeter methodology may be used in calculating flows for future instream flow water reservation applications.
15. What percent of streams within National Forest System lands are quantified in the proposed Compact?
The U.S. Forest Service identified approximately 750 streams in these negotiations. However, more than 500 of these streams are located on National Forest System lands where the United States owns virtually all the lands (96% or more) and has significant control over resource development. The 77 streams in the Compact represent streams with varied ownership patterns.
The instream flows created in the Compact are intended to be a representative sample of instream flow needs throughout National Forest System lands. The U.S. Forest Service may apply for additional instream flows under the state water reservation process available to the U.S. Forest Service through the Compact. The U.S. Forest Service has publicly stated that the agency will seek to work with interested groups and individuals in prioritizing streams to seek state water reservations to establish additional instream flows. It is important to remember that this Compact is part of a legal proceeding and is settlement of litigation. If these issues were litigated, the U.S. Forest Service would be required to prove up any claims to instream flows in the Water Court . In other states vast amounts of technical information was produced at great expense in an attempt to quantify instream flows (for fewer than 77 streams). The amount of technical information and cost involved in the state water reservation process is much less than litigation, but a scientific basis for establishing needed stream flows is a necessary step in creating a legally protectable water right under Montana's appropriation system of water laws.
16. Is groundwater addressed in the Compact?
The U.S. Forest Service will be able to apply to the State in the future for water reservations for water uses from a groundwater source. For illustration purposes, the Compact creates one “in-situ” (in-place) groundwater right for Shoofly Meadows near Missoula.
17. Will the public be notified for any future water use by the U.S. Forest Service that is not identified as a specific right in this Compact?
Yes. The Compact includes notification requirements for Dispersed Administrative Uses (except for small uses). In addition, the procedure that the U.S. Forest Service would follow to apply for state water reservations for additional instream flow rights requires public review and opportunity for objection.
18. Why is the only federal reserved right for instream flow on the South Fork Flathead River?
Congress has designated the South Fork Flathead River as a Wild and Scenic river in 1976. The State and U.S. Forest Service have agreed that this designation establishes a federal reserved water right for instream flows. The State of Montana has recognized federal reserved water rights for other wild and scenic rivers in Montana on lands within the jurisdiction of other federal agencies.
19. Does the U.S. Forest Service have the ability to object to other water rights holders, in other words have “standing,” in the state adjudication process?
Yes. The U.S. Forest Service currently has the ability to object in the state adjudication process and will continue to have the ability to object to water uses on National Forest System lands under the Compact.
20. How will the agreement affect the ability of a citizen to get a water development permit on U.S. Forest Service administered land? What would be the process for that permitting?
Any new use that diverts water on or across National Forest Service lands requires a Special Use Permit from the U.S. Forest Service. This Compact synchronizes the U.S. Forest Service permitting process and the State of Montana process for obtaining a new water use permit, providing greater procedural clarity for water users when both types of permits are necessary. Under the synchronized process, the parties call “sequencing,” applicants are required to show proof of federal authorization before their Montana water use application will be considered correct and complete.
21. What happens to U.S. Forest Service reserved water rights if U.S. Forest Service administered land is traded or sold?
Reserved water rights are only associated with reservation lands. If a parcel passes from federal ownership, the federal reserved water right is extinguished.
22. What happens to the water right if the U.S. Forest Service acquires private land through land trade or purchase?
Under the terms of this agreement, the parties will propose a new provision of state law to allow the U.S. Forest Service to apply to the Department of Natural Resources and Conservation to change an acquired consumptive use right to a permanent instream flow. As with any change proceeding, existing water users will be able to object if they believe they will be impacted by the change. This provision of state law will only apply to lands acquired by U.S. Forest Service that are within or immediately adjacent to current National Forest System lands.
23. How will this settlement affect stockwater claims?
The proposed Compact only settles claims by the U.S. Forest Service for federal reserved water rights - which do not include claims for stockwater for grazing permittees. The U.S. Forest Service has filed many, many claims for stockwater in the Montana Water Court . These claims are based on state law, just as stockwater claims filed by individuals. This proposed Compact does not address the validity or ownership of any stockwater claim. These issues of adjudication must be addressed in the Water Court.
24. What are the next steps once public comment is received?
The parties are asking for public comment to be submitted by November 15, 2006. A negotiating session will be held on November 20 th in Helena at the Capitol building to discuss all comments and potential changes to the Compact. The goal is to introduce the settlement in the 2007 legislature.
