Ruling creates high hurdle for water users

Decision by state makes proving legal availability more difficult

The water is right there, flowing abundantly through the valley. You can touch it and drink it and scoop it up in a bucket.

It's physically available … but can you prove it's legally available?

That's essentially the dilemma facing municipalities, developers, water districts and other large water users throughout the Clark Fork River drainage, after a recent ruling by the Montana Department of Natural Resources and Conservation.

The ruling denied a water use permit for Thompson River Lumber Co., a Thompson Falls firm that wanted to take 250 gallons per minute - 0.6 cubic feet per second - from the Clark Fork to use for a small power generation plant.

The water amounted to less than a hundredth of 1 percent of the average flow rate in the river - an amount so small it can't be detected by even the most accurate flow gauge.

Nevertheless, the DNRC hearing examiner concluded that the lumber company hadn't met the burden of proof: It hadn't demonstrated that a senior water-right holder 40 miles downstream would be unaffected by the diversion.

"The applicant has proven that water is physically available … [but] hasn't proven that water is legally available [and] hasn't proven that the rights of prior appropriators will not be adversely affected," the examiner noted in the ruling.

The prior appropriator in question, and the only one who objected to Thompson River's request, was Avista Corp., a Spokane-based utility that owns the Noxon Rapids Dam and water rights dating from the 1950s for a total flow rate of 50,000 cubic feet per second.

The full impact of the ruling still is being sorted out and remains highly uncertain.

By some estimates, it's a blip, a legal decision that adds more rigor and detail to the current water-appropriations process, but that won't stop all development in the Clark Fork basin. By other estimates, it's a legal fiasco that will burden new water users with unnecessary delays and higher costs, and that "fixes" a problem without evidence that a problem exists.

Kurt Hafferman, regional director of the DNRC's Water Resources office in Kalispell, said the ruling hasn't closed the basin, which includes the Flathead, Clark Fork and Bitterroot river valleys.

"We're still accepting applications for both surface and groundwater," Hafferman said. "The Kalispell office had five or six pending applications that weren't issued before the ruling was made. I've asked for legal decisions on them. Right now, we're going to have to deal with this on a case-by-case basis."

The department still is trying to figure out how to comply with the Thompson River ruling, but it seems clear that applications for new water appropriations will face a tougher standard that prior requests.

"The decision does indicate that there will be a higher hurdle for future applications," Hafferman said. "Legal availability is going to be the number one issue. Applicants are going to have to come in with a lot more evidence that water is legally available."

Under Montana law, anyone who wants to divert surface or groundwater must demonstrate that the appropriation won't have an adverse effect on neighbors.

Historically, Hafferman said, that meant looking three to five miles upstream and downstream. If there was no measurable effect on any other water users within that area, if it didn't change the rate or volume of water available to them, then the agency concluded that there was no impact.

In short, "legal availability" was directly linked to "measurable effect."

However, the Thompson River ruling - which was upheld upon appeal by a second DNRC examiner - established a new standard for legal availability. Instead of measurable effect, it now appears to mean zero impact.

"In the situation at hand," according to the ruling, "the evidence is that Avista will not be able to look at their gauge and know that river flows have been reduced by 250 gpm. [But] that doesn't mean Avista is not adversely affected. At flows less than 50,000 cfs, Avista would be short 250 gpm when the applicant's pump is running. Avista would be short 250 gpm in all but 16-24 days per year."

Avista's water right is more than double the average annual flow rate of the Clark Fork. It's so huge that typically the flow exceeds 50,000 cfs for only 16 to 24 days in the spring - which means it can't exercise it's full water right the other 341-349 days of the year.

Consequently, the Thompson River decision seems to conclude that any new appropriations in the Clark Fork basin would necessarily curtail the company's ability to generate power and therefore would be illegal.

Hafferman was at a loss when asked how any new appropriator could avoid that standard and prove zero impact.

"We don't know," he said. "Maybe they'll have to take a more basinwide look at availability. That's why we're going to have to consider applications on a case-by-case basis."

On the Web: The Thompson River Lumber Co. ruling (No. 30010429-76N) is available on the DNRC Web site at www.dnrc.mt.gov/wrd/water_rts/hearing_info/hearing_orders/cases/cases_10220900-30014080.asp

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com