INSTREAM FLOW RESERVATIONS 



Introduction 



A water right for instream beneficial use for fish, 

 wildlife, and recreation may be obtained only through the 

 water reservation process. 



Since the implementation of the 1973 Water Use Act, the 

 DFWP has objected to the issuance of water use permits where 

 such permits were thought to adversely affect instream flows 

 necessary to protect fish and wildlife. The DNRC has 

 determined that objections to new water use permits are 

 invalid unless the objector has a water right that would be 

 adversely affected. DNRC has determined that the DFWP has 

 valid objections only on those streams where it has instream 

 flow reservations or Murphy Rights. DFWP has no such 

 reservations in the Clark Fork Basin and has Murphy Rights 

 only on Rock Creek (near Missoula) and the Blackfoot River. 



Water reservations will not make more water occur in 

 streams. They only establish a water use priority date for 

 fish and wildlife relative to other water right uses. They 

 prevent further dewatering through use of the appropriation 

 doctrine "first in time is first in right," and can affect 

 only those water users whose priority dates are later than 

 those of the reservations. The reservations' priority dates 

 are, by law, effective only after the reservations are 

 granted by the Board of Natural Resources. 



Some proponents of instream flow protection have 

 suggested that Montana should recognize the public trust 

 doctrine as part of the state water management policy. In a 

 state that recognizes the doctrine, its agencies, courts, or 

 both, have the authority to reexamine and modify existing 

 water uses to protect public interests. The state, as a 

 trustee of natural resources, has a responsibility to protect 

 public uses whenever feasible. If the doctrine were accepted 

 in Montana, the state would screen and condition all water 

 appropriations on public interest criteria. 



The following sections explain why instream flows are 

 important for the Clark Fork Basin. 



Hvdropower Rights 



The Washington Water Power Company has a water right of 

 50,000 cfs at Noxon Rapids Dam, of which 15,000 cfs is by a 

 provisional water use permit issued in 1976, and 35,000 cfs 

 is by a right filed in 1951. A flow of 50,000 cfs equals 

 more than 36 million AF per year — over twice the average 



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