Avista is a bad neighbor

Water is plentiful in the Clark Fork Basin, especially in the Flathead. In times past, people have obtained surface water or ground water rights by going through a simple process. During drought, neighbors shared even though a senior water right holder held first claim to water.

Clark Fork Basin residents must realize that their neighbors, children and grandchildren will now be denied new surface water rights because of a recent ruling by The Department of Resources and Conservation (DNRC) in favor of Avista Corporation. The Basin extends from the Flathead River headwaters to Butte, with drainage into the Clark Fork River, which enters Idaho near Noxon. Avista owns two dams on the border: Idaho’s Cabinet Gorge Dam and Montana’s Noxon Rapids Dam.

The DNRC’s ruling against Thompson River Lumber Co. states: “The Objector (Avista) will not receive all 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. The record here shows that Avista will be adversely affected by diminished flows in the amount of the Applicant’s proposed diversion on the days where flows do not exceed 50,000 cfs. The applicant failed to prove by a preponderance of the evidence that prior appropriators will not be adversely affected by the proposed appropriation.” This DNRC adopted ruling will be the standard that new applications must meet until legislative or court action changes it. It’s clear from this ruling that future applicants will be extremely hard-pressed to prove that there’s any water legally available for a new surface water right. I attended the 6-hour hearing and believed at the time that Avista would be unsuccessful in their protest because the Thompson Lumber Co. filed for only 1/2 cubic feet per second (cfs). This mathematical impact is only .001% of Avista’s 50,000 cfs water right. Furthermore, return flow was not considered in the application process. This is equivalent to a $100,000 per year executive claiming he can’t afford to give his destitute neighbor $1.

Water allocation is currently based upon “first-in-time, first-in-right”. This system broke down in 1951 when Washington Water Power (Avista) claimed 35,000cfs for use at Noxon Rapids dam. This amount was almost double the average river flow. Between 1951 and 1974 additional turbines were added to Avista’s dam and additional water rights were granted until the total reached 50,000cfs; 2? times the average flow of the river. DNRC put no restrictions on Avista’s water rights. This action directly contradicted a still applicable 1951 statute: “Any present or future appropriations of water in the watershed [Clark Fork Basin] in the State of Montana for irrigation and domestic use above said [Cabinet Gorge] dam, shall have priority over water for power use at said dam.”(85-1-122MCA). Avista has proven via the Thompson River Lumber ruling that they have legal right to stop a new application for an extremely small water right above their dam. To add insult to injury, starting in 2001, Avista insisted that surface water right certificates issued by DNRC contain a restrictive statement that the water rights are “junior” (subordinated), and subject to a call that they stop using water.

Because of these unfortunate DNRC mistakes, Avista has usurped control of Montana’s Clark Fork Basin surface water. This sorry state of affairs is contrary to Article IX, section 3 of Montana’s Constitution: Montana owns all of the water in its borders for the use of its people. Also, “85-1-101 MCA” is the policy provisions for Montana water resources. These laws have also been violated, especially subsection 4: “The development and utilization of water resources and the efficient, economic distribution thereof are vital to the people in order to protect existing uses and to assure adequate future supplies for domestic, industrial, agricultural and other beneficial uses.”

Senator Verdell Jackson, Kalispell Republican has been engaged in the Clark Fork Basin water rights dispute for eight years.