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Bean Lake III Decision: The Implications
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Bean Lake III Decision: The Implications
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Last modified
7/15/2010 12:35:09 PM
Creation date
7/9/2010 3:06:43 PM
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Water Supply Protection
Description
RICD
State
CO
MT
Date
1/1/3000
Author
Montana DNRC
Title
Bean Lake III Decision: The Implications
Water Supply Pro - Doc Type
News Article/Press Release
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A - <br />The remaining 192 claims may have been granted new life by the Bean Lake 111 <br />decision. A quick review of 45 of those filed by the DFWP shows that three relatively <br />large rivers are involved, including the Bighorn below Yellowtail Dam, the <br />Beaverhead below Clark Canyon Dam, and the Bitterroot River. In the case of the <br />Bighorn and Beaverhead, the rights may be associated with the creation of the <br />federal dams and are therefore associated with "diversions." In other cases, the <br />DFWP claims appear to be mostly associated with high mountain lakes, fish trap <br />stations, lakes or springs on wildlife management areas, and most of the lakes in the <br />Blackfoot and Clearwater River drainage. These all claim fairly recent priority dates, <br />and therefore have little potential for affecting most senior water rights. Similarly, <br />most of the claims filed by the federal government are for areas on Forest Service <br />land upstream of private lands and diversions. <br />The Bean Lake 111 decision also requires the claimants to prove that these water <br />rights met other requirements. It will not be enough to show that the water was used <br />for fish, wildlife or recreation. The claimant will have to prove there was an actual <br />intent to develop a water right for these purposes. It is a common requirement <br />under the Prior Appropriation Doctrine that other water users would have been <br />provided notice of the intent and the opportunity to seek legal recourse for adverse <br />effects caused by the creation of new water rights. Proving this intent may not be <br />easy. <br />There will be some instances where these instream flow claims will result in some <br />reduction in the amount of water available for some junior water right holders. <br />The Bean Lake 111 decision also provides a very positive benefit for stockmen. For <br />the first time since 1865, the Montana Supreme Court has made a clear statement <br />that stock drinking from a stream establishes a water right without the need for a <br />manmade diversion. Because the adjudication process exempts claims for existing <br />rights for livestock based upon instream flow, the livestock water rights have not been <br />forfeited as have all other unclaimed instream fish, wildlife and recreation uses. <br />The decision may also have implications to future water policy. But this decision <br />does not pose the type of general, statewide threat to the ongoing statewide <br />adjudication, or all existing water rights, as may be feared. We need to keep these <br />facts in context as we attempt to deal with changing and increasing demands for <br />historic, new and varied water uses. <br />
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