State must protect water rights

A ridiculous situation has developed regarding water rights upstream from the Noxon Rapids Dam on the Clark Fork River, all the way to the Flathead Valley.

It's one of those situations that leaves a person dumbfounded and wondering, "How can this be?"

A recent ruling by the Montana Department of Natural Resources and Conservation has perversely put the burden of proof on those who apply for water rights in the basin to demonstrate that a senior water user has not been adversely affected. In denying a measly 250 gallons per minute from the Clark Fork River for a small power generation plant, DNRC said the applicants could not prove that their tiny request would not have a calculable impact on the largest water-right holder in the basin, Avista Corp.

Avista, a Spokane-based company, protested the application, claiming it would adversely impact its 50,000 cubic feet per second water right at Noxon Rapids Dam.

If it can't be proved that 250 gallons per minute would not put a dent in Avista's huge water right, then DNRC is basically saying that new seekers of water rights need not apply. The bar has been set so extremely high that their task is virtually insurmountable.

The economic implications of this are chilling, grabbing the full attention of municipalities, developers, water districts and others.

A knee-jerk reaction to the situation is to level a broadside at Avista for being a bad neighbor. Certainly, if the company thinks the potential outcome and long-term economic implications of its protest are reasonable and justified, then it is being a horrible neighbor.

But that's the knee-jerk reaction. Our ire in this matter is mainly directed at the Montana Department of Natural Resources and Conservation. Who does this agency work for, anyway? Is it the people of Montana, or a Washington utility that sells power to Idaho?

Sen. Verdell Jackson, R-Kalispell, has long asserted that the state of Montana - the DNRC - has fallen far short of aggressively protecting the use of Montana water by Montanans.

For starters, he contends the state erred badly decades ago when it granted Avista a 50,000 cfs water right on a river with an average flow of just 20,000 cfs.

Jackson also argues that the state Constitution plainly asserts a domestic water use priority. Article IX, Section 3: "All surface, underground, flood and atmospheric waters within the boundaries of the state are the property of the state for the use of its people, subject to appropriation for beneficial uses as provided by law."

The DNRC needs to be advocating for domestic and irrigation water use as a priority. Jackson says it's a matter worthy of a legal fight, and we are inclined to agree with him.

The burden of proof needs to be switched back to Avista - in court, if necessary. The company should be required to show how it would be adversely affected by a 250 gallon per minute water right.

Remember the average flow of 20,000 cfs? According to Jackson's research, that flow has not changed in 90 years, despite exponential population growth and increased water use. And the reason is "return flows" from consumption to groundwater and back to river systems that lead to the Clark Fork. Jackson contends that Avista's power generation and the company's financial returns have never been hindered, despite decades of increased upstream water use.

For that reason, it's hard to see how Avista could prove harm from new upstream water uses like the one that was denied. This shouldn't be a position for Jackson or the Daily Inter Lake to argue. It should be vigorously argued by the Department of Natural Resources and Conservation, the Montana attorney general and Gov. Brian Schweitzer himself.