City of Troy, Montana DNRC
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IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION KOOTENAI RIVER BASIN (76D) ************** * ***** IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE KOOTENAI RIVER DRAINAGE INCLUDING ALL TRIBUTARIES OF THE KOOTENAI RIVER IN FLATHEAD AND LINCOLN COUNTIES, MONTANA. ) ) ) ) ) ) ) ) ) CASE NO. 76D-79 Claim 76D-W-100479-00 CLAIMANT: City of Troy OBJECTOR: Mt. Dept. of Natural Resources & Conservation MASTER'S REPORT Pursuant to Title 85, Chapter 2, MCA 1979, this case was submitted on briefs to the Water Master Linda Hickman. STATEMENT OF THE CASE Claim 76D-W-100479-00 was filed by the City of Troy for municipal water. The flow rate claimed by the City was 18 cubic feet per second. The volume claimed was 13,140 acre feet per year. The claim was based on a filed notice of appropriation dated October 27, 1923. The volume and flow rate for claim 76D-W-100479-00 were objected to by the Department of Natural Resources & Conservation. The basis for the objection was that the City of Troy does not use the amount of water claimed nor does it's distribution system have the capacity to carry that amount of water. The Department sent two sets of interrogatories to the City of Troy, which were answered. Based on the interrogatories and answers, an engineer with the Department came to the conclusion that "the City should claim a volume of 365 acre feet per year for municipal use. The maximum flow rate should equal 4.5 cubic feet per second based on the hydraulic capacity of the system." The Departmeat states the issue to be decided as: "The real issue in this case is not the present needs of the City of Troy, rather it is the claimed right by the City of Troy to water which it has not historically used and put to beneficial use." The City states the issue as: "The primary issue is not whether the City of Troy is currently putting to actual use the decreed amount of 18 cfs, but rather whether the 18 cfs claimed by the City of Troy is within the historical definition of beneficial use as applied under the Montana Water Law pursuant to July 1, 1973." The Department's argument is that the rule stated in Galahan vs. Lewis, 105 Mt. 294, 72 P.2d 1018 (1937) should be controlling here as well. The rules- is: ...in determining a water right the appropriator's needs and facilities, if equal, measure the extent of the appropriation, but if needs exceed the capacity of the means of diversion, the capacity of the means of diversion measures the extent of the water right." The Department lists several ways for the City to be assured of needed water in the future above its present system's capacity. The City's argument is that because it has a duty under Montana law to secure and promote the general public health and welfare; furnish reasonable and adequate services and facilities; and supply water to all those within the boundaries of the municipality, together with any adjacent to water lines extending beyond the city limits, it should be granted water in excess of its facilities capacity. The City itself asserts that part oh its water right claim is related to the City's potential for development and consequential demand for increased water. l. FINDINGS OF FACT I. Claim 76D-W-100479-00 was filed by the City of Troy for municipal water. The volume and flow rate were objected to by the Department of Natural Resources & Conservation. The parties agree that the City of Troy now puts to beneficial use a flow rate of about ¢2 cubic feet per second of water and a volume of 365 acre feet per year. IV. The capacity of the City of Troy's water system is 4.5 cubic feet per second. CONCLUSIONS OF LAW I. The Water Court has jurisdiction to review all -3- objections to temporary preliminary decrees pursuant to 85-2-233, Montana Code Annotated. The Water Court has jurisdiction to make clerical corrections pursuant to Water Court Rule 4. In determining the amount of an appropriation of water, the appropriator's needs and his facilities for conveying the water to the place of its use, if equal, measure the extent of his appropriation; if his needs exceed the capacity of his ditch then its Capacity measures the extent of his right. Galahan et al. v. Lewis, et al, 105 Mt. 294, 297, 72 P.2d 1018 (1937). IV. The flow rate for 76D-W-100479-00 shall be 2 cubic feet per second. The volume shall be 365 acre feet per year. DATED this ,ROV1-- day of , 1987. ORDER After review of the Master's Report, it is ORDERED, that the following changes be made to the Preliminary Decree of Existing Water Rights in the Kootenai River Basin. I. The flow rate for 76D-W-100479-00 is 2 cubic feet per second. The volume is 365 acre feet per year. DATED this day of Tim D. Hall, Attorney Dept. of Natural Resources 1520 East Sixth Helena, MT 59620 Mark Fennessy Attorney at Law 505 Mineral Avenue Libby, MT 59923 MEMORANDUM The Montana Water Court was charged to adjudicate all water rights which were in existence before July 1, 1973. The final decrees of the Court are to reflect the manner in which those rights were being used prior to July 1, 1973. An "existing right" means a right to the use of water which would be protected under the law as it existed prior to July'l, 1973. 85-2-102(7) MCA. Because of this legislative mandate the Court had to appAy pre-1973 law in determing the amount of water that was to be granted to the City of Troy. In no way does the Court's decision reflect either what has happened in Troy since July 1, 1973, nor what may occur in Troy in the future. There are alternative methods of insuring an adequate future water supply open to the City of Troy. Water Master BASIN 760 ABSTRACT OF WATER RIGHT RATER RIGHT NUMBER 760 -W-100479-00 OWNERS: TROY, CITY OF DRAWER S TROY MT 59935 PRIORITY DATE: OCT 27, 1923 2.00 CFS FLOW RATE: VOLUME: 365.00 ACRE FEET PER YEAR SOURCE: OBRIEN CREEK PURPOSE jusEI: MUNICIPAL PERIOD OF USE: JAN 1 TO DEC 31 POINTS OF DIVERSION AND MEANS OF DIVERSION: LOT BLK 2TR SEC SEC 1- 174P RGE COUNTY NENENW RESERVOIR AT NENENW 17 31N 34W HEADGATE 17 31N 34W LINCOLN NAME: TROY CITY PLACE OF USE FOR MUNICIPAL _ ACRES LOT BLK QTR § E- E § Ec . 001 002 003 W2 TwP 'TOT" COUNTY 12 31N 34W LINCOLN 13 31N 34W LINCOLN 18 31N 34W LINCOLN REMARKS: SEE GENERAL FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR FURTHER DELINEATION OF THIS RIGHT. PAGE 12 IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION - KOOTENAI RIVER BASIN IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE KOOTENAI RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE KOOTENAI RIVER IN FLATHEAD AND LINCOLN COUNTIES, MONTANA. ) ) ) ) ) ) ) Jilti 24 1985 2/ ¢ . 3 7 pf-,-) CASE NO. 76D-79 PREHEARING CONFERENCE STATEMENT OF CITY OF TROY Pursualrt to Order of the Water Master in Case No. 76D-79, Claimant, CITY OF TROY submits to the Court and parties in interest the following prehearing conference statement: WITNESSES 1. Roger Kensler -- Mayor, November, 1983, through January, 2. James Winslow -- Mayor,. May, 1956, through April 30, 1986. 1.963. 3. Melvin Price -- Maintenance Foreman. The testimony of the witnesses enumerated above will be offered to establish the quantity of water historically applied to beneficial use by the Claimant as well as the flow rates historically used and needed to supply the water system for the City of Troy, Montana. The City of Troy reserves the right to add additional witnesses to this list after further preparation for hearing or discovery and upon proper notice to all parties. Page 1 EXHIBITS 1. Notice of Appropriation by M. F. Gossweiller, dated October 27, 1923, recorded at Book 25, Page 364, records of Lincoln County, Montana. All of the exhibits enumerated above will be offered to establish the quantity of water historially applied to beneficial use by the Claimant as well as the flow rates historically used and needed to supply the water system for the City of Troy, Montana. The City of Troy reserves the right to add additional exhibits to this list after further preparation for hearing or discovery and upon proper notice to all parties. MEMORANDUM The City of Troy will prove the quantity of water which it has historically applied to beneficial uses pursuant to the appropriation and claim which is subject hereof as well as flow rates it has historically used and requires to supply the municipal water system of Troy, Montana. Unknown expert . witnesses will be provided, if necessary, to prove the volume and flow rate for the water system. DATED this 17th day of January, 1985. FENN KER & ALLEN a A orne /ty of Troy 505 Mineral venue Libby, Mont na 59923 Page 2 Certificate of Service I, Petra M. Williams, one of the secretaries of the law firm of FENNESSY, CROCKER & ALLEN, do hereby certify that on the 17th day of January, 1985, I served a copy of the foregoing document in the above case by mailing a copy thereof, first class postage prepaid, to Mr. Tim D. Hall, Department of Natural Resources and Conservatioe, 32 South Ewing, Helena, Montana, 59620. cj A 4 .4 . 42 - ¢ 2J°1-60/XTIO1 Petra M. Williams Page 3
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