Water use now an issue for lawyers

'We have a complex system that makes sharing possible'

For 96 years, the river gauge at Plains has recorded the ups and downs of the Clark Fork River.

Some years it's a little higher, some years a little lower. Over time, it all averages out.

Throughout the entire record period, the mean annual flow rate is 19,478 cubic feet per second, according to data from the U.S. Geological Survey. When considered in 10-year increments, there is not a lot of variation in that: From 1911 to 1919, the mean was 20,656 cfs per year. From 1940-1949, it was 17,562 cfs. During the 1990s, which included several drought years, the mean flow was 19,869 cfs.

To a hydrologist, that's about as close to flat-line as it can get. Taking normal climate variations into account, there doesn't appear to be a noticeable trend in how much water flows down the river - which means 80 years of development, human consumption and water use in the Flathead, Missoula and Bitterroot valleys has had essentially no impact.

It's as if people were never here.

And that's what makes the recent ruling in a Thompson Falls water rights case so frustrating to some folks: Despite evidence that millions of gallons are being appropriated each year with no measurable effect on river flows, the ruling could conceivably prevent someone from sucking an extra gallon or two out of the North Fork of the Flathead because of concerns that it might reduce the amount of water flowing through the generators at Noxon Rapids Dam, more than 200 miles downstream.

The ruling, which was issued by a Montana Department of Natural Resources and Conservation hearing examiner in December, denied a water use permit for the Thompson River Lumber Co.

The company wanted to take 250 gallons per minute or 0.6 cubic feet per second from the Clark Fork River to use for a small power generation plant.

An objection was filed by Avista Corp., which owns the Noxon dam about 40 miles downstream from where Thompson River's plant was going to go. The utility also owns a water right to 50,000 cubic feet per second - an enormous flow rate that's typically only exceeded on 16 to 24 days per year.

Historically, the DNRC approved water use permits that had no measurable effect on nearby residents - meaning anyone within about five miles.

If new appropriations didn't reduce the rate or volume of water available to people within that area, then they were deemed to have no impact and the water was legally available for use.

With the Thompson Falls ruling, however, a DNRC hearing examiner basically ditched the "measurable" standard - as well as the distance standard - and replaced it with a calculable standard. Although it's still unclear exactly how the agency will implement the decision, it appears that applicants throughout the entire Clark Fork basin may now have to prove that their proposed appropriation has zero impact on water flows at the Noxon dam.

"In the situation at hand," the ruling noted, "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."

Marc Spratt, a Kalispell hydrogeologist and a member of the Clark Fork Basin Task Force, said the gauge at Plains "is the textbook example of the difference between 'measurable effect' and 'calculable effect.'"

Although it's easy to see that taking a extra gallon of water out of the North Fork has no measurable impact on Noxon or the Plains gauge, trying to prove zero impact becomes a difficult and expensive proposition.

"To prove legal availability, there now has to be zero impact on Noxon - and there's no limit on the number of decimal points used in the calculation," Spratt said.

That standard doesn't take into account the full complexity of the hydrological system, he said. The Flathead, for example, has three huge storage systems - Hungry Horse Reservoir, Flathead Lake and the valley's deep artesian aquifer - which clearly modify how much water goes downstream and when.

"But we pretend they don't exist," Spratt said. "We also don't count return flow, even though Kalispell pumps roughly 2 million gallons a day and puts 73 percent of it right back in the river. Water has always been a shared resource, and we have a complex system that makes sharing possible. But to assess [the impact on Noxon], we pretend that the drainage is a cement-lined ditch because we have no scientific information or basin-specific studies that say otherwise."

In short, instead of treating water appropriations as an issue for hydrologists, the Thompson River decision turned it into an issue for lawyers.

"There's about 15 million acre-feet per year of water available in the Clark Fork basin, and our best guess as to the total consumptive flow is about 500,000 acre-feet [or 3 percent]," Spratt said. "We see no impact from that over the whole, 96-year record at Plains. It seems like the only problem we have right now is a legal one."

Although it's easy to look at Avista as the 50,000 cfs gorilla in this matter, the legal dilemma regarding water availability in the Clark Fork basin doesn't end with the utility.

The traditional water laws adopted in Montana and throughout the West ignored physical availability and only considered who had priority to use the water that was there. That approach worked fine when the area was sparsely settled, but it created the potential for future conflicts once the population boomed.

Kurt Hafferman, regional director of DNRC's Water Resources office in Kalispell, said the amount of water that's been legally appropriated in the Clark Fork basin currently totals 212,000 cfs - meaning all users combined have a right to almost 11 times the average annual flow of the Clark Fork River.

"And that's just surface water," Hafferman said. "It doesn't include groundwater, and it doesn't include any appropriations in the upper Clark Fork or in the Flathead drainage above Kerr Dam."

The still-unresolved water compact with the Confederated Salish and Kootenai Tribes is another looming issue that will place additional demands on Flathead River water, and the full impact of a recently drafted compact with the U.S. Forest Service remains to be seen.

In other words, even if Avista went away tomorrow, there's still a legal Gordian knot out there that could someday tie up the entire basin.

It's unclear at this point how much of the 212,000 cfs is really being used, primarily because the state is just starting to verify the permits. A highly unpopular $20 adjudication fee imposed on permit holders by the 2005 Legislature was specifically intended to speed up this process by allowing DNRC to hire enough people to get the job done.

Spratt said hydrological studies of the Clark Fork basin also are needed so regulators know exactly how much water is available, how much is used and how much remains for future users.

"I don't think the sky has fallen [as a result of the Thompson River Lumber decision], but there's a lot of potential for collateral damage," he said.

For example, if the ruling ends up forcing large water users to mitigate potential impacts on Noxon, it could create a market for agricultural water rights - offering farmers big bucks to shut their irrigation valves off so the water can be used for new subdivisions.

"The average price for water rights in Helena is $1,500 per acre-foot," Spratt said. "In the Rockies, it's $4,000. That would make a 40-acre irrigation right worth about $400,000 - and most irrigation rights in the Flathead are larger than 40 acres. It's all speculation and unquantified at this point, but I think this ruling could become another incentive to push agriculture out of the valley."

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