Surface-water rights may be harder to obtain

Shortly after adopting a new growth policy Monday, the Flathead County commissioners learned that growth might be a little harder because of a recent water-rights ruling.

The ruling denied a request from a Thompson Falls lumber company to use 250 gallons per minute of river water, because the firm couldn't prove the new appropriation would have no effect on flows through the Noxon Rapids Dam.

Kurt Hafferman, regional manager of the Department of Natural Resources and Conservation's Water Resources office in Kalispell, updated the commissioners on the implications of the ruling during a meeting Monday.

He said the decision pointed out that "somebody has their hands on all the legally available water" in the Clark Fork basin, which includes the Flathead, Missoula and Bitterroot valleys.

Avista Corp., which owns the Noxon dam, also owns water rights totaling 50,000 cubic feet per second.

Given that flows in the Clark Fork River typically only exceed that amount on 16 to 24 days per year, a DNRC hearing examiner concluded that - unless proven otherwise - any new appropriation of surface water in the Clark Fork basin would adversely affect Avista and should therefore be denied.

Hafferman said new surface-water appropriation requests may not be able to meet that standard of review.

"It's highly likely that won't be possible," he said. "Right now, we're proposing to deny the surface-right applications we have."

As for new groundwater appropriations, it's unclear what effect the ruling will have.

Small household wells that produce less than 35 gallons per minute are exempt from the permit review process, Hafferman said. However, "we're not sure if they're exempt from the legal availability standard."

For larger wells, "we'll be asking them to present information that there's no downstream impact," he said. "And they can't do a narrow look at impacts anymore. They're going to have to address legal availability and source of supply along the entire Flathead and Clark Fork, down to Noxon."

That has significant implications for rural subdivision developers.

During the past several months, the Flathead County Planning Board has begun recommending that individual wells be replaced by larger community water systems, primarily because the DNRC and local health officials have said it's better to reduce the number of holes being drilled into the valley's aquifers.

Unlike individual wells, community wells have to go through the permit review process - and even if a permit is secured, it could add months to the overall development process.

"You need to be real careful that subdivision developers have told you how they're going to get their water right," Hafferman told the commissioners.