Flathead residents regain water rights

One small step by Verdell Jackson may be one giant leap for Flathead County.

A June 9 memo from the Department of Natural Resources and Conservation has effectively reopened the opportunity for Flathead County residents to obtain water rights.

"This is a major breakthrough for Flathead County," Jackson said.

Jackson, who represents Senate District 5, has been battling for years to overturn what he calls excessive water rights given to Avista Corp.

Avista is a Spokane-based utility company that serves Idaho. The company also owns the Noxon River Dam on the lower Clark Fork River.

In 1951, the state gave Avista water rights on the Clark Fork River in the amount of 50,000 cubic feet per second. That amounts to 2.5 times the average annual flow of the river. Avista's water-right volume is 29 million acre feet per year. The largest volume on record for one year is 21 million acre feet.

The water right created a situation that made Flathead County residents junior water users because the Flathead Valley is part of the Clark Fork Basin.

In 2006 the state denied an application for water rights to the Thompson River Lumber Company. The lumber company asked for a 250-gallon per minute water right, which equates to 400 acre feet per year - or one one-hundred thousandth of a percent of Avista's water right.

According to Jackson, the decision set a precedent that made homeowners meet an impossible standard of "no adverse impact" on Avista's water rights.

The hearing examiner for the Thompson Falls case stated that if the application were approved Avista would not "receive all the water to which they are entitled at times when the flows in the Clark Fork River do not exceed 50,000 cfs. Flows exceed 50,000 cfs only 16-24 days per year."

Since December 2006, no additional water rights have been granted to Flathead County residents except for wells with smaller water flows. The Thompson Falls decision shut down water rights in the Flathead.

"People are being lied to," Jackson said. "People are saying water is scarce, but it isn't. There are 22.4 million gallons per minute going through Avista. We only have one million people in Montana. That gives you an idea of the volume of water we're talking about. We can't impact that."

Jackson, in his request for an audit of the state agency, said that 42 projects, ranging from major subdivisions to lawn-watering requests were in limbo. This, he said, is unconstitutional.

Montana law specifically states that "any present or future appropriations of water in the watershed in the state of Montana for irrigation and domestic use above said dam shall have priority over water use for power use at said dam."

"What happened with the hearing was that if Avista wasn't getting 50,000 cfs, there isn't water left," Jackson said. "If someone has the whole source, the water laws don't work. Whoever gets there first with the biggest bucket gets it all. I don't think that's fair or constitutional."

Jackson's long and vocal campaign may have been a factor for discussions between Avista and the state to keep the lower Clark Fork and Flathead River basins open to appropriations.

The reason these two basins remain open is because of Kerr Dam and the Hungry Horse Dam. Flathead Lake and the Hungry Horse Reservoir act as massive storage facilities. The dams also ensure that flows at Noxon Rapids are managed except during flooding.

Flathead Lake and the reservoir act as mitigating effects. Impacts attributed to new diversions upstream of the confluence of the Clark Fork and Flathead rivers are diminished by the storage.

The state memo sent out by John Tubbs, the administrator of the water resources division, notes that regional offices should limit their use of the Thompson River Lumber Company as precedent.

Tubbs proclaimed that the Flathead River and its tributaries upstream of the Flathead Indian Reservation boundary are open for water appropriation.

"I think it's a big decision, especially for the Flathead area," Terry Eccles, the Department of Natural Resources and Conversation Kalispell regional office manager, said. "It allows people to submit applications with a good chance of obtaining a permit."

Eccles said that the applications that had been on hold are starting to be issued.

"The decision based on the TRLC (Thompson River Lumber Company) put everything above the Avista diversions on hold because the water was not available due to that senior water right," Eccles said.

Although the basin is open again, obtaining a water right is a lengthy process. Eccles said his office is now carefully reviewing water rights issued prior to 1973 and said that people living in the county should double-check their water right permits.

Jackson, although happy with what he perceives as a personal victory, said he isn't done with his Avista battle.

"Although I live in the Flathead, I'm concerned that everyone should be treated fairly," Jackson said. "We need to be consistent with Montana law. I still contend that [the state] should not have given the water right for the entire river. It's just the first step, I think."

Reporter Michael Richeson may be reached at 758-4459 or by e-mail at mricheson@dailyinterlake.com