Water law overrides fish needs
By The Associated Press
http://www.billingsgazette.com/index.php?s.../local/fish.inc
GREAT FALLS (AP) – A state agency has ruled that a Hutterite colony can irrigate from the Marias River in years to come without regard for the biological needs of fish in the river.
The river’s water should be allocated at levels set by water-use law, not based on the biological needs of fish, the Department of Natural Resources and Conservation decided.
The decision, issued last week by Jack Stults, administrator of DNRC’s Water Rights Division, granted a water-use permit to the Sunny Brook Hutterite Colony to irrigate 957 acres of alfalfa and barley that it will develop in four or five years.
The Department of Fish, Wildlife and Parks had requested the colony not be given the water unless flows adequately protected fish habitat and were 71.5 cubic feet per second (cfs) more than what is reserved for the wildlife department under state water laws. With current flows at about 360 cfs because of the dry spring, the water for the colony would not have been available this year.
“We were limited by a reservation process and statute,” said Rebecca Dockter-Engstrom, a FWP attorney. “We realize that amount is our legal right, but that legal right couldn’t take into account the biological studies we have available to us.”
The DNRC also decided that a bill passed by the 2001 Legislature altering the state’s environmental protection act confirms that long-standing laws about water allocation take precedence over environmental assessments based on the Montana Environmental Policy Act.
“I’m quite relieved,” said Dave Schmidt, a senior water rights specialist for Water Rights Solutions Inc. of Helena, who testified on behalf of the colony. “Basically, the doctrine remains intact.”
A hearings officer had recommended granting the irrigation permit to the colony in March. However, the colony wouldn’t have been able to use the water because of conditions, mostly the result of the Montana Environmental Protection Act, that increased the necessary minimum water flows.
Greg Duncan, an attorney representing the colony, argued that the March decision gave the FWP an illegal water right and took advantage of environmental protection laws.
“This case clarifies the rules and statutes,” Duncan said. “One agency can’t get in there and tie up a system.”
Dockter-Engstrom said the gap between the legal reservation and biological need has existed for some time. The decision doesn’t necessarily erode MEPA’s effectiveness, and a District Court appeal isn’t likely.
Bill Gardner, FWP fisheries biologist, said he is disappointed in the decision. The consequences will be subtle, he said. Higher flows are needed for smaller fish to mature. For example, there wouldn’t necessarily be a fish kill, but in the long run, perhaps fewer fish.
The Fish, Wildlife and Parks Department can reserve half of the river’s mean annual flow, 488.5 cubic feet a second. But relying on an environmental review, the March decision set a condition that flows would have to be 560 cfs before the colony could pump the 16 cfs it wanted. The 560 cfs was set at the recommendation of fisheries biologists who said the 30 species of fish in the river need the higher flows.
