1. Water RightsCity of Kalispell Public works Department
Past Office Box 1997, Kalispell, Montana 59903-1997 -Telephone (406)758-7720, Fax (406)758-783I
REPORT TO: Mayor and City Council
FROM.- James C. Hansz, P.E., Director of Public
SUBJECT: Work Session — Water Rights Issues —
MEETING DATE: July 16, 2007
Recently, Councilman Olson asked for a work session to discuss issues related to Water rights
and the potential impacts to cities for their continued ability to serve new customers. Staff and
Mr. Roger Noble representing .Applied Water Consulting Will be available to discuss this subject
and answer questions from members of City Council.
July 16, 2007 Work session Water Rights Discussion.doc
I. Background Information
A. The State of Montana owns all the water in the State, owners of water
rights posses only the right to use some of that water
B. water Rights in Montana are guided by the Doctrine of Prior
Appropriation. That is first in time, is first in right.
C. A. water Right is a Property Right; it runs with the land.
If you own a piece of real estate, and it has a water right on it, when you
sell that real estate, if you don't mention the rights in the conveyance, the
water rights automatically transfer to the buyer of the real estate.
D. Water rights are transferable; water rights can be changed to: 1) a new
place of use totally unrelated to the original real estate; 2) any change in
the purpose; and 3) any point of diversion. A change of water right must
first be approved by the DNRC.
H. Montana water Law
Montana water Use Act became effective July 1, 1973
A. Established adjudication for water rights prior to July 1, 1973.
B. Established a new permitting system for obtaining a water right for
developments after July 1, 1973.
C. An authorization system was established for changing water rights.
D. A centralized record system was established.
E. A system was provided to maintain instream flows.
III, Status of water Rights in the Flathead Basin
A. Compact Negotiations with Confederated Salish and Kootenai Tribes
B. Adjudication. Program
C. Avista Corporation -- Thompson River Lumber Company Final Order
D. Surface Water -- Water Rights
E. groundwater Water Rights
PA153-05 Kalispell Water RightsMater Right Presantativn.doc
Avista Water Rights
Water Right No.
Priority Date
Flow
Volume
(acre-feet/year)
76LJ 125799 00
Febru 20, 1951
35,000 cfs
IOpO,000
76LJ 211889 00
September 01, 1959
5400 cfs
3,909,421
76LJ 4189 00
November 19, 1974
15,000 cfs
TOTAL
55,400 cfs
13,909,421
PA153-05 Kalispell Water RightMater Right Presentaticn.dcc - 2 -
Yearly Average Discharge of Clark Fork at Plains, MT
351000
30,000
25,000
20,000
15,000
10,000
5)000
1900 1920 1940 1960 1980 2000 2020
Year
PAUSGS Gage Station Data\plainsyearly
TV. Summary of Kalispe1 's Water Rights
A. Municipal Supply Sources
B. 2002 Facility Plan Service Area
C. 2007 Facility Plan Updated Service Area
D. Other Water Rights
Water Rights Summary for Municipal Supply Sources
Water Right No.
Source Name
Pumping Rate
(gpm)acre-feet/
Volume
ear
Priority Date
76LJ 45077 00
ArmqU Well
15650
356.00
May 12, 1964
76LJ 30008766
Armory Well
2,305.00
November 26, 2003
76LJ 10756 00
Buffalo Hill Production Well
2,000
3,200.00
December 13, 1976
76LJ 23590 00
Buffalo Hill Test Well
200
322.50
August 26, 1979
76LJ 45076 00
Depot Park Well
1,250
603.30
March 31, 1954
76LJ 3008765
Depot Park Well
11,413.00
November 26, 2003
76LJ 97205 00
Grandview Wells No. 1 & No.2
200
2,515.56
March 13,1996
76LJ 45075 00
Noffsin er Spring
6,200
1,729.00
December 31, 1913
Old School Station Wells
1,000
675.00
TOTAL
14,300
139119.36
PA153-05 Kalispell Water Rights\Water Right Presentation. doc - 4 -
Water Rights Summary for Other Sources
Water Right No.
Source Name
Pumping Rate
m
Volume
acre-feet/ ear
Priority Date
Purpose
76LJ 104710 00
Ashle Creek
25244
3,620
August 26, 1885
Municipal
76LJ 148840 00
Stillwater River
11200
265
Au ust 31, 1940
Irrigation at Buffalo Hills Golf Course
76LJ 30008767
Stillwater River
1,700
281.75
November 26, 2003
76LJ 45074 00
Stillwater River
4,488
1,100
August 24, 1940
Municipal to augment
Noffs' er Spring
76LJ 460100
Woodland Park
2,693
4,344
August 23, 1973
Municipal
TOTAL
12,325
9,610.75
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V. Water Rights and Annexation
A. Silverbrook Subdivision. — Stillwater River
B. Flathead Village Greens — Stillwater River
C. Glacier Center Townsite -- Stillwater River
D. West View Subdivision -- Stillwater River
E. Valley Ranch -- Stillwater River
F. Starling Subdivision — Groundwater
G. Willow Creek -- Ashley Creek
H. Two Rivers Master plan -- need further research
1. Riverdale Master Plan — need further research
Willow Creep - Ashley Creek
Water Right No.
Priority Date
Flaw
Volume
(acre-feeqear)
76LJ 30880 00
November Z 1, 1980
350 gpm
50
76LJ 103289 00
June 01, 1884
64
76LJ 39788 00
Au st 08, 1896
5.76 cfs
320
76LJ 103290 00
June 01, 1884
155
Sil erbrook -Stillwater River
Water Right No.
Priority Date
Flow
Volume
acre-feet/ ear
76LJ 40583 00
May 21, 1937
5 cfs
312
76LJ 40584 00
November 16, 1949
6 cfs
356.7
Starling Subdivision - Groundwater Well
[76LJ
er Right No. Priority Bate Flow Volume
(acre-feet�yea!)
1484 00 February 4, 1974 800 m 80
1525 00 February 8, 1074 1600 gpm 320
Note: 1 cfs = 450 gpm
P:1153-05 Kalispell Water RightsMater Right PresentationAm - 7 -
General Colloquialisms
• Water runs uphill - toward money
0 whiskey is for drink.in' and water is for fi ghten'
In general, the Flathead Valley is water -rich
PAI53-05 Kalispell Water RightsMatef Right Presentatian.doc - 8 -
DVORTANT FACTS ABOUT THE HISTORY OF WATER RIGHTS IN MONTANA
The prior appropriation doctrine had a close relationship with the development of mining
policies and law. The greatest impetus for the Doctrine came from the customs developed by
miners during the California gold rush.
The Ekstrt Lund Act of 1877 provided for the settlement of Western lands, and provided for
the use of water by prior appropriation, reserving the unused water for future appropriations.
The territoLry of Montana was established on. May.,26,1864, and the enabling act was
approved on February 22, 1889.
Montana's 1889 Constitution (Article III, Section 15) -states that "The use of all waters .. .
and the rights of way over the lands of others, for all ditches ... shall be held a public use."
Montana's 1972 Constitution goes on to (1) recognize existing rights; (2) provide that "the use
of all waters . . . shall be held a public use", (3) provide that "all waters are the property of the
state for the use of its people and are subject to appropriation for beneficial uses as provided by
law", and (4) direct the legislature to provide for administration of centralized and local. records.
The Montana Water Use Act 9U.1973 (Title 85, Chapter 2, Montana Codes Annotated)
provided innovative changes to Montana water law:
1. All water rights existing prior to July 1, 1973 were to be made final through an
adjudication process in state courts.
2. A permit system was established for obtaining water rights for new or additional
water developments.
3. A centralized records system was established. Prior to 1973 water rights were
recorded but not consistently, in county courthouses throughout the state.
4. A system was provided to reserve water for future beneficial uses or to maintain
minimum streamflows.
5. Highly appropriated basins could be partially or totally closed to new
appropriations of water through adoption of an administrative rule.
Senate Bill 76, the Adjudication bill passed by the legislature in 1979, modified the statutes
originally established by the Montana Use Act:
1. Montana was divided into four water divisions and a water court was created to
preside over each for the purpose of adjudicating all existing water rights in a
statewide proceeding.
2. The Deserved water Rights Compact Commission was created to negotiate
compacts with federal agencies and Indian tribes that quantify their federal
reserved water rights in Montana.
3. On June 6th, 1979, the Montana Supreme Court issued an Order requiring every
person to claiming ownership of an existing water right to file a statement of
claim for that right with DNRC no later than January 1, later extended to April
309 1982. Existing water rights not filed on would be presumed abandoned.
Basic water Rights Definitions
Handy Water Equivalents
1 cubic foot ....... 7.48 gallons. . . . . . . 62.4 lbs of water
1 acre-foot ...... 43,560 cubic feet ...... 325,900 gallons
An acre-foot covers one acre of land one foot deep.
1 cubic foot per second (cfs) ....... 448.8 gallons per minute
1 cfs = 40 Mont. statutory miner's inches.
1 cfs .:........ . . . . . . . . . . . . . 646,272 gallons per day
For 24 hours ..................... 1.983 acre-feet
For30 days .. . . .. . . . . . . . . . . . . . . . . . . 59.5 awe -feet
For1 year ....................... 724 acre-feet
t million gallons . . . . . . . . . . . . . . .. . .. . . . 3. P acne -feet
1 million gallons per day (mgd) ...... 1,122 acre-feet per
year
1,000 gallons perminute �m) . . . ■ . . . ■ . . . ■ ■ . . 2.23 c&
1,00o gpm . . . . + . , f * * r . r , * . ' a a .. 4.42 am -fee per &y
An acre --foot supplies a family of 5 for 1 year.
40-nullion acre-feet flow out of Montana in an average year.
Adjudication �- A hearing and settlement by judicial procedure; m the case of .water rights, the
action of settling claims.
Beneficial use - The use of water for the benefit of the appropriator, other persons, or the
public, including but not limited to agricultural (including stock water), domestic, fish
and wildlife, industrial, irrigation, 10n9, mumcipal, power, and recreational uses. A
beneficial use also includes the use of water for leasing under special provisions of MCA
85-2-141.
Clahca - A filing made on an existing (pre -July 1, 1973) water right, in accordance with Senate
Bill 76 (the adjudication statute), and as ordered by the Montana Supreme Court.
Decree - The judgement of a court; an official order or settlement.
As related to Montana water law, a court adjudication of pre -July 1, 1973 existing water
rights mO a particular river basin.
itm_ limin a listing of state -based claims in a particular river basin Erelmiary decree --- a listing of state -based and reserved rights in a particular river
basin.
ELmaI d ry --- A finalized record and adjudication of all rights in a basin, allowing for
sound administration of water rights.
Dote: all decrees subject to hearings and objections before
. water Rights - water rights that originated before July 1, 1973, the effective date
of the Montana water Use Act.
Flow Rate -- How fast water is taken from a source, or how fast it flows past a point (e.g.,
gallons per hour or minute, cubic feet per second, etc.)
Groundwater -- Any water beneath the land surface or beneath the bed of a stream, lake, or
reservoir, and which is not a part of the surface water.
Hydrology - The.science of the behavior of water in the atmosphere, on the earth's surface, and
underground.
Provisional Permit - As issued by DNRC, the right to appropriate water for a post- 1973
beneficial use as indicated in a permit application.
Prior Appropriation Doctrine - A court -decreed legal doctrine; A system of water rights
management which recognizes the priority of water use. That is, an individual's right
to a specific quantity of water depends on when the use began. The first person to use
the water from a source established the first right, the second person could establish the
next right, and so on. During dry years, the person with the first right has the first
chance to use the available right. The holder of the second right (a junior right) would
have the second chance, and so on. The traditional elements of a valid, appropriation are:
INTENT to apply water to a beneficial use
- An actual DIVERSION of water from the natural source
- Application of the water to a BENMCLAL USE within a reasonable tinge
Reserved water fight - A water right created under federal law by a federal reservation of
land in an amount sufficient to meet the purposes of the reservation whether it be for
Indian reservations or for other federal rmrvations of lands. The right is not lost by
non-use and its priority date is the date the land was reserved by federal law.
River Basin or watershed - The area from which water drains to a single point; in a natural
basin, the area (drainage area) contributing flow to a given point on a stream.
Surface Water - water above the surface of the land including, but not limited to, lakes, rivers,
streams, diffused surface water, waste water, flood water, and ponds.
Volume - The amount of water in terms of gallons, acre --feet, cubic feet, or even. 5-gallon-
buckets full.
Water - All water of the state, surface or subsurface, regardless of its character or manner of
occupance, including but not limited to geothermal water, diffuse surface water, and
sewage effluent.
Water Reservation. - A water right granted by the Board of Natural Resources and Conservation
to public entities, on behalf of the public, for existing or future beneficial uses- or to
maintain a nn' m* num flow, level, or duality of water.