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Last modified
7/14/2009 5:01:47 PM
Creation date
5/20/2009 1:33:22 PM
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UCREFRP
UCREFRP Catalog Number
8283
Author
Silk, N., J. McDonald and R. Wigington.
Title
Turning Instream Flow Water Rights Upside Down.
USFW Year
n.d.
USFW - Doc Type
Boulder, CO\
Copyright Material
YES
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<br />between 1 and 5% ofthe streamflow (Mont. Code Ann. ~ 85-20-401, Art. III, Sec. C. G.). <br />The consumptive use buffer includes existing water rights and an increment for future <br />water development. Further, the compact subordinates the federal right--whose priority <br />goes back to 1872 for Yellowstone and 1910 for Glacier--to existing uses as of 1993, the <br />date of the compact (Mont. Code Ann. S 85-20-401, Art. III, Sec. C. G.). The <br />consumptive buffer, as defined here, is essentially a reservation of water for present and <br />estimated future development. <br /> <br />One stream in Yellowstone National Park called for special attention. The <br />federally reserved water right for Soda Butte Creek consisted of an upside-down instream <br />flow water right for peak flow protection, minus a 5% development buffer (similar to <br />other streams in the park), and a conventional instream flow water right for base flow <br />protection (Amman et al. 1995). The base flow component was not subordinated to most <br />existing uses, retaining its 1872 priority date, thereby leaving open the possibility of a <br />conflict with existing water users during low flow months. Fortunately, the existing <br />water use in the basin occurs mainly in high flow months, minimizing the potential <br />conflict. <br /> <br />As part of the first compact, the NPS and the State of Montana negotiated a <br />similar settlement for the waters of the Big Hole National Battlefield but with a few <br />different features. The parties agreed to split the right seasonally so that a conventional <br />constant instream flow water right of 10 cfs was established in the wintertime, while the <br />summer right was quantified as all the flows of the creek minus 5% to accommodate <br />existing and future water development (Mont. Code Ann. ~ 85-20-401, Art. III, Sec. <br />A(3)). Because the creek is currently appropriated beyond the 5%, the agreement <br />effectively prohibits future development by dedicating all the unappropriated water to <br />instream flow (C. Pettee, personal communication). <br /> <br />At the Big Horn Canyon National Recreation Area, the NPS made no claim to a <br />reserved right for the water in the reservoir at the recreation area, but did establish an <br />upside-down instream flow water right for the tributaries feeding the reservoir (Mont. <br />Code Ann. ~ 85-20-401, Art. III, Sec. B). At the Little Big Horn National Monument, the <br />NPS made the decision to quantify a conventional instream flow water right for both base <br />and peak flows and not to subordinate its 1946 priority date (Mont. Code Ann. S 85-20- <br />401, Art. III, Sec. E). This decision may have clarified the amount of peak flows left for <br />development by Indian interests in a proposed reservoir upstream (C. Pettee, personal <br />communication). <br /> <br />National Parks v. National Forests. A Colorado water judge confirmed a federal <br />reserved right for all the unappropriated flows on the eastside of Rocky Mountain <br />National Park, without subordinating its senior priority date (Decision, December 29, <br />1993, Case No. W-8439-76, Water Division 1). This state court found that the purpose of <br />a natural park was "the preservation of the natural conditions and scenic beauties" so as <br />to leave them unimpaired for future generations, and that this purpose could be met only <br />by reserving all of the water within the park that was unappropriated on the date that the <br />park was established. The court implied that all unappropriated, natural flows was the <br /> <br />11 <br />
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