Montana DNRC

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F ICED \\:"=-3 1 % !n y 9 1990 State of Montana Water Courts IN THE WATER COURTS OF THE STATE OF MONTA CLARK FORK DIVISION - FLINT CREEK BASIN (76 * * * ********** *********** --S IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) 76E-W-119723-00 THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE FLINT CREEK DRAINAGE AREA ) INCLUDING ALL TRIBUTARIES OF THE FLINT ) CREEK IN GRANITE AND DEER LODGE ) COUNTIES, MONTANA. ) ¢ ) CLAIMANT: Montana Department of Natural Resources & Conservation OBJECTOR: Montana Department of Natural Resources & Conservation MASTER'S REPORT FINDINGS OF FACT 1. This claim is an interbasin transfer between the Rock Creek Basin (76E) and the Flint Creek Basin (76GJ). The point of diversion is in Basin 76E and the place of use is in Basin 76GJ. 2. The Montana Department of Natural Resources and Conservation (Department) objected to the priority date, purpose of right, place of use and acres irrigated of its storage claim and to the "no right" remark. 3. At the February 10, 1989 Status Conference, attorney Richard Josephson made an oral motion to add the Flint Creek Water User's Association, as a real party in interest, to all further proceedings. Sarah Bond, attorney for the Department, agreed stating that the Association's interest is by / virtue of its contract to use the water, that the Association was not the owner of this right and that, as such, the parties are not adverse. The motion was granted. 4. On December 22, 1989 the Department filed its East Fork Rock Creek Reservoir Water Storage Brief and the Affidavit of Melvin F. McBeath, hydrographer for the Department. These were served upon the Flint Creek Water User's Association, Esther J. McDonald and their counsel, R. Mark Josephson on December 21, 1989. No response was filed. 5. The Temporary Preliminary Decree states that the purpose of right is irrigation. 6. The purpose of right should be storage. 7. The place of use caption should be changed from "Place of Use for Irrigation" to "Place of Use for Storage." 8. This is an onstream reservoir. Onstream reservoirs are quantified by volume. A flow rate is not required.. 9. The Temporary Preliminary Decree did not quantify the volume of this claim. 10. The volume should be 13,800.00 acre feet. 11. The following remark should be added concerning the flow rate: NO FLOW RATE HAS BEEN DECREED FOR THIS ONSTREAM RESERVOIR 12. As this is a valid claim for storage, the following remark should be removed from the abstract of this claim: THE WATER COURT FINDS NO LEGAL BASIS FOR THIS PURPOSE TO BE CONSIDERED A BENEFICIAL USE OR APPROPRIATION OF WATER. -2- CONCLUSIONS OF LAW I. The Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to Mont. Code Ann. sec. 85-2-233. The Flint Creek Water User's Association and its president Edward Lord were allowed to participate in all future proceedings involving the Department's objection. Upon review of the Affidavit, it appears that it is proper and is accepted by this Court. IV. 89-101 R.C.M. (1933) directs the state water conservation board to develop "...a system of works, in the manner hereinafter provided, for the conservation, development, storage, distribution and utilization of water." 89-121 R.C.M. (1933) states that "...the board shall not be limited to the terms of the statutes of the State of Montana relating to water rights heretofore enacted; but, in addition thereto, may initiate a right to the waters of this state by executing a declaration in writing of the intention to store, divert or control the unappropriated waters of a particular body, stream or source..." (emphasis added). This claim for water of the East Fork Rock Creek Reservoir is for storage water appropriated by the State Water Conservation Board under these statutes. -3- V. This is an onstream reservoir. Onstream reservoirs are quantified by volume. A flow rate is not required. Sec. 85-2-234(6)(b)(ii) Mont. Code. Ann. VI. The changes stated in the Findings of Fact should be made to correct the Temporary Preliminary Decree in the Flint Creek Basin. DATED this 5) day of -4- 41e , 1990. CERTIFICATE OF SERVICE I, Lori M. Burnham, Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail. Sarah Bond, Attorney Dept. of Natural Resources 1520 East Sixth Helena, MT 59620 Flint Creek Water Users' Association Ed Lord, President Philipsburg, MT 59858 Esther J. McDonald Drawer A. Philipsburg, MT 59858 R. Mark Josephson Attorney at Law P. 0. Box 1047 Big Timber, MT 59011 DATED this day of Lo Bur Clerk of Court Montan Water Court 1990. Sarah Bond Legal Counsel 1520 East 6th Ave. Helena, MT. 59620 (406) 444-6699 Telephone: COUNSEL FOR THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION FLINT CREEK (76 GJ) * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE FLINT CREEK DRAINAGE AREA, ) INCLUDING ALL TRIBUTARIES OF FLINT ) CREEK IN GRANITE AND DEER LODGE ) COUNTIES, MONTANA ) ) EAST FORK ROCK CREEK RESERVOIR WATER STORAGE BRIEF WATER RIGHTS CLAIM NO. 76GJ-W-119723 * * * * * * * * * * * * * * * * * * * * Comes now the Montana Department of Natural Resources and Conservation (Department) as claimant, and respectfully submits this authority for its storage claims in the East Fork Reservoir. As the Department has no brief or objector's articulated argument to rebut, it is uncertain the quantum of proof the Water Court seeks before it will decree the right as claimed. Therefore, to the extent the Court deems necessary for decree of this right as indicated in the attached affidavit, the Department respectfully reserves its right to supplement this information with further hydrologic and historic information, as well as legal argument. The Department is the successor in interest agency to the State Water Conservation Board, through the Water Resources Board. In the extraordinary session of the 1933, the Montana Legislature adopted Chapter 33, later codified as 89-101 through 89-141 R.C.M. 1947. See, generally, State ex. rel. Normile v. Cooney, 100 Mont. 391 (1935). "It is hereby declared that the public interest, welfare, convenience and necessity require the construction of a system of works, in the manner hereinafter provided, for the conservation, development, storage, distribution and utilization of water." 89-101 R.C.M (1947). These statutes delegated to the Board, as an arm of the state, the authority to build, operate, manage, and maintain a statewide system of water conservation projects. Broadwater-Missouri Water Users' v. Montana Power Company, 139 F.2d. 998 (1944), 50 F.Supp. 4 (1942). The statutory framework included broad authority to construct works, purchase and dispose of property, provide for the issuance of revenue bonds, and appropriate water. This system, an integral part of Montana's agricultural infrastructure and economy today, includes the trans-basin diversion of water diverted, collected and impounded in East Fork Rock Creek Reservoir, and transported by a gravity feed conveyance system to the Flint Creek drainage to the West. There, it is used for irrigation, and other beneficial uses. Within the statutory scheme first created in 1934 are sections establishing certain parameters of the rights created therein for perfection only by the State. These parameters reflect the legislature's conviction that the historic types of water rights already recognized in the state were insufficiently broad to fuel the new system. " In acquiring the rights and administering the terms of this act herein prescribed and established, the board shall not be limited to the terms of the statutes of the state of Montana relating to water rights heretofore enacted; but, in addition thereto, may initiate a right to the waters of this state by executing a declaration in writing of the intention to store, divert or control the unapPropriated waters of a particular body, stream or source, designating and describing in general terms such matters claimed, means of appropriation and location of use, and cause said notice to be filed in the office of the county clerk and recorder of the county where the major portion of the means of diversion or control will be located, which right shall vest in such board on the date of the filing of such declaration.... A certified copy of the record of said declaration shall be received as competent evidence in all courts and deemed to be prima facie proof of all matters therein recited...." Section 89-121 R.C.M. (1947). The nature of a storage right in Montana has been the subject of much debate. Donich v. Johnson, 77 Mont. 229, 250 Pac.963 (1926), Federal Land Bank v. Morris, 112 Mont. 445, 199 P.2d.1007 (1941), Broadwater-Missouri Water Users' Assoc., supra. Whether the one fill rule is the limit of the right need not here be decided, as the volume of the East Fork Rock Creek Reservoir is greater than the right asserted. That the state water conservation project rights are valid pursuant to the terms of the notices, including the right to appropriate and reclaim seepage, is without cavil. Allendale Irrigation Co. v. State Water Conservation Board, 113 Mont. 436, 127 P.2d. 227 (1942), Holmstrom Land Co, Inc. v. Meagher County Newlan Creek Water District and Ward Paper Box, , 605 P.2d. 1060 Mont. (1979). Given the facts herein, there is no new question of law to decide. The storage right sought is less than the appurtenant water use from the project, less than one filling, and reflects the historic operation of the reservoir and lack of interference with other rights. The Department has enclosed an affidavit from a Departmental expert with personal knowledge of the historic use of this right. Attached is a copy of a reference normally used by those engaged in the business of hydrology and water supply and recognized by experts as authoritative for water supply statistics. The Department does not seek herein to advance a description of a water right other than that supported by historic use. Wheth'er storage pursuant to Sections 89-101-141 R.C.M. (1947) without appurtenant use for any particular period of time is not before the Court. The use of water from this Project has already been decreed in the basin of origin, water right number 76E-W-119732. Here, the Department only seeks the decree rcognition of its right to store water in the Reservoir, as it has historically done, in wet years, for carry-over until the next season. Wherefore, the Department respectfully requests this Court to decree the right 76GJ-W-119723 as indicated in the attached affidavit from Melvin F. McBeath, or to allow the Department further argument and/or evidence presentation herein. Respectfully Submitted this Sarah . Bond, Counsel Department of Natural Resources and Conservation day of December, 1989. Sarah Bond Legal Counsel 1520 East 6th Ave. Helena, MT. 59620 (406) 444-6699 Telephone: COUNSEL FOR THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION FLINT CREEK (76 GJ) * * * * * * * * * * * * * * * * ** IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE FLINT CREEK DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF FLINT CREEK IN GRANITE AND DEER LODGE COUNTIES, MONTANA AFFIDAVIT WATER RIGHT CLAIM NO. 76GJ-W-119723 * * * * * * * * * * * * * * * * * * * * Pursuant to the Rules of Montana Water Court, the Department of Natural Resources and Conservation, as claimant (Department), hereby submits the following affidavit in support of its objection to the above captioned right. I, Melvin F. McBeath, being duly sworn, do hereby depose and state as follows: 1. I am the hydrographer for the Department of Natural Resources and Conservation. I have been so employed for the past twenty-five years. In this capacity I am responsible for water measurement and records of historic water use by state water conservation projects, including the East Fork Rock Creek Reservoir Project. 2. The DNRC has historically stored water throughout each year in the East Fork Rock Creek Reservoir for future irrigation and other beneficial use in the project area. 3. Attached is a copy of page 110 from Surface Water Supply of the United States 1961-1965 showing storage left 13,800 acrefeet of water remaining after the primary irrigation season, for subsequent use in the next season. 4. Based on these records, the DNRC asserts its storage right in this project should be 13,800 acre-feet. Respectfully submitted this Sworn before me this Residing at : 142-45-4/2K, /1--(77 My commission expires:Aq/s/g0 134. /7---day of December, 1989. day of December, 1989. 110 FEND OREILLE RIVER BASIN 12 - 3325. East Fork Rock Creek Reservoir near Philipsburg, NOnt. Location.--Lat 4608 , 00", long 113'23 , 00", in NE11 sec.6, T.4 N., R.14 W. Creek, 14 miles southwest of Philipsburg and at mile 9.7. at dam on East Fork Rock Drainage area.--30.3 sq mi. ILR11272.--Let 4 -6-17nZa quarts 3 miles west Drainage area.-- Records available. --October 1939 to September 1965 (seasonal records only for most years 1946-60, 1964). Records for October 1955 to April 1956, published in WSP 1446, have been found to be unreliable and should not be used. May to August 1948 scattered daily contents, published in WSP 1080. fiecords avallabl Oage.--Elevations determined at or near end of month by hand levels from reference points. Datum of gage is at mean sea level (levels by Montana Water Conservation Board. Gagp.--Digital r to Apr. 30, 1 Apr. 30, 1942 (erent datum. datum. Extremes.--Maximums and minimums (contents in acre-ft, elevation in feet) for March 1960 to September 1965 are contained in the following table: Average dischara Minimum obgerved Maximum observed Mantua' Date Contents ' Contents Elevation Date 6,022.5 a 5,400 Aug. 31, 1960 6.055.5 a 16,040 June 15. 1960 1960 0 6.050.0 Aug. 31 to Sept. 14 June 20. 1961 12,910 1962 1.520 6,003.5 14,880 6,052'.5 Oct. 16, 1961 June 30, 1962 1962 6,024.0 5,780 16,440 6,056.5 Oct. 1. 1962 June 30. 1963 1963 6,026.5 6,450 6,055.5 Oct. 1, 1963 June 30. 1964 1964 36,040 6.027.0 6,580 1, 1965 6.055.5 May 36,040 June 30. July 31 1966 2 Not previously published. 1939-65: Maximum con ante observed, in excess of 16,000 acre-ft when reservoir was full and spilling at timee in several years; no storage Sept. 1, 1955, Aug. 31 to Sept. 14, 1961. Extremed..,-Maxim: lister year Remarke.--Reservoir is formed by earthfill dam with concrete spillway completed in 19371 storage began in 1936. Usable contents, 16,040 acre-ft at elevation 6,055.5 ft. Dead etorage unknown. Water is used for irrigation and recreation. Figures given herein represent usable contents. CooPeration.--Records furniahed by Montana Water Conservation Board. Annual 15 4 Int* ars. se. Isal May 27, 1060 138 may Al. 1001 OW gar. 27, 1962 Apr. 4, 1111 Apr. 15, 1942 Mes 10, ISIS May 24, 1962 Water Ysar And. ¢ Sob. Aug. 1911 1902 ¢ Illnisia6 46117 Corrections.--In WSP 1736, the month-end contents for May 1958 Is listed in error; It should be 14,100 acre-ft. MONTR-END COMMTS, IN ACRE-FEET, WATER TEARS 1951-58, 1960-65 JAN. FEB. 1951 1952 1951 1244 1955 . . . - 1956 1957 1958 . . - - 1960 NOV. DEC. MAR. . 10,430 APR. MAY JUNE JULY AUO. ... 16,000 16,000 14,710 7,660 10,330 16,000 13,330 13,710 11,480 15,800 9,530 11,280 9,680 11,750 6,290 6,640 0 14,460 14,100 14.520 14,900 16,060 12,220 11,120 15,630 6,090 5,780 10,860 3,850 1,690 5,100 10,160 14,450 14,410 9,250 5,400 4,900 6,860 7, 60 ¢ 8,290 8,960 a 9,630 a 10,030 12, 150 a a 2,810 3,860 ¢ 4,490 5,020 5,780 9,220 6,450 7,860 8,750 9,370 10,010 10,650 11,310 ¢ 12,700 a 15,500 1945 A11.610 5 12,850 n 13,200 n 12.850 p 12,150 0 10,160 ¢ 6,580 c 7,860 a InLernoleted on bream or readsnwe imade weekl y or fan fn.-moat r. b Estimated. c Figure of contents on first day of following month. Note.--Flgures prior to water year 1961 not previously published. 1961 1962 1963 1964 5,910 2,020 7,000 - 2999-66: in use), free Creek lteserrt from divermic 2,620 _ - . . . OCT. 22I I Sackwater Ira Revisions.--WSP 1316: Drainage area. See also Records available. um - 211 224 10; SEPT. 8,900 4,250 4,320 Remarks. -Recor record, whist ale 13,910 b0 S 761 5,400 5,710 14.890 5 11,220 c 7,280 7,140 6,450 16,440 14,490 16,040 4 15,600 6 13,700 S 11,500 16,040 16,040 c 14,800 c 13.800 SO 11 12 12 14 10 111 If 11 19 20 21 22 23 24 21 16 16 36 37 as a9 Is 31 10114 14161 644 802 16 28 ' 16 17 417 14.1 IS 10 167 184, VS 16604 TM; re te616 101 22.7 it01.-11° rf. 46121 CERTIFICATE OF SERVICE I, Tanya Mazzucola, hereby certify that I mailed a true and correct copy of the foregoing AFFIDAVIT AND BRIEF to each of the persons at their addresses as shown below by placing said copies in envelopes, securely sealed, with postage thereon prepaid, and thereafter depositing them in the United States Mail at Helena, Montana. DATED this 2:4/ day of December, 1989. a-z) Tonya Maz ucola Administrative Assistant Department of Natural Resources and Conservation 1520 East Sixth Avenue 59620 Helena, MT Flint Creek Water Users' Association Ed Lord, President Phillipsburg, MT 59858 Esther J. McDonald Drawer A Phillipsburg, MT 59858 R. Mark Josephson P.O. Box 1047 Big Timber, MT 59011

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