Montana Water Court PO Box 879 Bozeman, MT 59771-0879 1-800-624-3270 (In-state only) (406) 586-4364 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION WESTSIDE SUBBASIN OF THE BITTERROOT RIVER BASIN (76HF) * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND ) WITHIN THE WESTSIDE SUBBASIN OF THE ) BITTERROOT RIVER DRAINAGE AREA, ) INCLUDING ALL TRIBUTARIES OF THE ) WESTSIDE SUBBASIN OF THE BITTERROOT ) RIVER IN RAVALLI COUNTY, MONTANA ) ________________________________________) FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE WESTSIDE SUBBASIN OF THE BITTERROOT RIVER BASIN (76HF) These Findings of Fact and Conclusions of Law are issued by the Chief Water Judge for inclusion in the Preliminary Decree for the Westside Subbasin of the Bitterroot River Basin (76HF). FINDINGS OF FACT 1. AUTHORITY TO ACT These Findings and Conclusions are issued by the Chief Water Judge as authorized by Mont. Code Ann. 3-7-224(2) and 85-2-231. 2. GENERAL ADJUDICATION OF EXISTING WATER RIGHTS This is a general adjudication of existing water rights. An existing water right is a right to the use of water which would be protected under the law as it existed prior to July 1, 1973. Mont. Code Ann. 85-2-102(9). This action for the adjudication of existing water rights commenced on June 8, 1979 when the Montana Supreme Court issued its Order requiring the filing of statements of claim of existing rights. Certain claims for existing rights were exempt from the filing process but could be voluntarily filed. Mont. Code Ann. 85-2-222 (1979). This decree includes those "exempt" water right claims which were voluntarily filed but does not include those "exempt" water right claims which were not filed. 3. RESERVED WATER RIGHTS This Preliminary Decree does not include any federal reserved or Indian reserved water right claims. All proceedings to adjudicate reserved water rights in this subbasin are suspended pending negotiations on those claims. Mont. Code Ann.  85-2-217. Reserved water right claims will be included in a subsequent preliminary decree either in the form of a water rights compact negotiated and ratified by the appropriate federal agencies or Indian tribes and the State of Montana, or, if negotiations are terminated, in the form of claims for reserved water rights filed in the Water Court. See Mont. Code Ann.  85-2-701 to 704. Any subsequent preliminary decree of reserved water right claims will be subject to an objection period. Mont. Code Ann. 85-2-233. 4. SENIOR WATER RIGHTS Judicial notice is taken of the fact that water rights exist on the Bitterroot River main stem, on its tributaries and in adjoining basins or subbasins which may be senior to some of the rights decreed in this subbasin. Rights decreed herein may be subject to curtailment or cessation during times of water shortage in order to satisfy senior rights on a claimant's own source of supply, on the Bitterroot River main stem, on any tributaries of the Bitterroot River, or in adjoining basins or subbasins. 5. DESCRIPTION OF BASIN There are a total of 3,799 claims for existing rights for irrigation, stockwater, domestic and other uses in this decree. This decree includes all sources of water located within the subbasin west of the Bitterroot River to the Idaho border, and from the southern hydrologic boundary of One Horse Creek (the southern boundary of subbasin 76HB) in the north, to the northern hydrologic boundary of Rock Creek (the northern boundary of subbasin 76HE) in the south. This Decree does not include water right claims diverted directly from the main stem of the Bitterroot River. The boundaries of this subbasin are outlined on the attached map. 6. DECREE ABSTRACTS AND INDEXES In addition to these Findings and Conclusions, this decree consists of six bound volumes of computer-printed abstracts of each individual water right claim decreed in this subbasin. Accompanying the decree is a two volume Index designed to help people research and find water rights included in the decree. The Indexes are composed of the following six sections: - Source Name Index - Owner Name Index - Point of Diversion Index - Priority Date Index - Water Right Claim Identification Number Index - Issue Remarks Index Bound volumes of the Decree and Indexes are located at the Montana Department of Natural Resources and Conservation (DNRC) Water Resources Regional Offices in Missoula, the Clerk of Court for Ravalli County, the DNRC Water Rights Bureau in Helena, and at the Montana Water Court in Bozeman. 7. WATER RIGHT OWNER A water right is decreed in the name of the claimant. If a water right transfer certificate was properly filed and administratively processed prior to December 18, 1997 the Court issued the right in the name of the new owner. If a transfer certificate is properly filed and administratively processed after that date, the new owner's name will appear in any subsequent decree. If a water right is split, the new owner's name will be added to the ownership record but the water right will not usually be split into separate ownerships until after the final decree is issued. Some previously decreed water rights are claimed by more than one person. When the combined flow rate of such claims exceeds the previously decreed flow rate, each claimant is decreed the claimed flow rate, but a "decree exceeded" remark is added to each right noting the conflict. 8. SPECIFICS OF EXAMINATION PROCEDURE The Montana Department of Natural Resources and Conservation (DNRC) examined each claim in this subbasin for incomplete or inaccurate information in accordance with the Water Right Claim Examination Rules originally adopted by the Montana Supreme Court on July 7, 1987. These rules were amended by the Supreme Court's Orders of July 13, 1989 and December 18, 1990. The extent of each water right claim is further defined by these Findings of Fact and Conclusions of Law. The specifics of each claim appear in the abstract of the water right. Each abstract of the claimed right should include: (a) The name and mailing address of the owner of the right; (b) The amount of water included in the right (all flow rates and volumes are measured at the point of diversion unless otherwise noted on the abstract); (c) The priority date of the right; (d) The purpose for which the right is used; (e) The place of use and a legal description of the land to which the right is appurtenant; (f) The source of water included in the right; (g) The point of diversion and means of diversion; (h) The inclusive dates during which the water is used each year; (i) Any other information necessary to define the nature and extent of the right. If the claim did not include all the information required by Mont. Code Ann. 85-2-224 and the information was not provided to the DNRC prior to issuance of this decree, the right was decreed within the limits of the information submitted. Remarks were added to the abstracts flagging any unresolved issues. Where a claimant filed two or more water rights on the same claim form, each right was separated and assigned an individual water right number. These additional claims are called "implied claims." 9. MULTIPLE USES OF A WATER RIGHT Historically, when a water right was decreed, a single water right may have been used for several purposes or uses. In this adjudication, the claimants were to file separate claims for each use of the water right. Special cla im forms were used for irrigation, stockwater, domestic use and a catch-all form for all "other uses". As a result of this specific filing, each use of a water right will be decreed separately. Therefore, a water right might be represented by two or more claims for these multiple uses. A remark noting the multiple use of a water right appears whenever an irrigation, stock, domestic and an "other use" claim are for the same right. The use of the right for several purposes does not increase the extent of the right, rather it decrees the right to alternate and interchange the use (purpose) of the water in accord with historical practices. 10. SOURCE NAME Although some sources were claimed under several names, the source is generally designated by the name listed in the most recent United States Geological Survey (U.S.G.S.) quadrangle maps. If the source has not been designated by the U.S.G.S., the source name most commonly recognized in the locality may be used, or the source may be designated as an "Unnamed Tributary of _________" or "Spring, Tributary of _______________." The source for claims associated with lakes and reservoirs is generally decreed under the name of the inflowing stream. If the lake or reservoir has a commonly recognized name, this name is also noted. The Source Name Index of the Decree cross-indexes both the inflowing stream name and the lake or reservoir name for easy identification. When more than one source is claimed for a water right, the Water Court determines the primary source, lists that source in the Decree and notes the secondary source in a remark. Frequently multiple sources actually represent separate water rights for which "implied claims" may be generated. 11. PRIORITY DATE The priority date is decreed as claimed except where it is incomplete or it contradicts the claim's supporting documen- tation. Where a claimed priority date included only a year, or a year and a month, the last day of the year or the last day of the month are decreed as the priority date. Priority dates for groundwater rights after 1961 are reviewed for compliance with the Groundwater Act. If a claim to groundwater after 1961 did not comply with the Groundwater Act, the priority date is decreed as claimed and an issue remark is added noting the problem. 12. GUIDELINES Guidelines were established in the Water Right Claim Examination Rules to aid in the examination of certain claimed flow rates and volumes. These guidelines are merely estimates of reasonable water use. Flow rates and volumes decreed according to these guidelines are not absolute; they are not unchangeable. They are subject to modification to accurately reflect a claimant's water right in its true and historical sense. "The quantity of water which may be claimed lawfully under a prior appropriation is limited to that quantity within the amount claimed which the appropriator has needed, and which within a reasonable time he has actually and economically applied to a beneficial use. . . the principle of beneficial use [being of] paramount importance." Allen v. Petrick, et al. (1924), 69 Mont. 373, 376-77, 222 P. 451, 452 as cited in McDonald v. State 220 Mont. 519, 536, 722 P.2d 598 (1986). There is no exact uniform rule for computing the duty or reasonable quantity of water to be applied for all cases alike. 13. RESERVOIRS AND STORAGE OF WATER Historically the Court has found that the right to store water in a reservoir is a storage right separate from a water right and that the actual beneficial use of stored water creates a water right. Disagreement exists in Montana over the precise nature of reservoir storage. The resolution of such a significant issue should not be determined in the general findings of a preliminary decree. The scope and extent of reservoir storage rights probably should be resolved in a future adversarial proceeding in which all interested parties would have an opportunity to participate. Such a hearing might be held in a manner similar to that of the "late claim" case in Cause No. 43B-LC-1 or as part of the proceedings contemplated by the Court in Findings of Fact 10 of its Findings, Conclusions and Order of the Water Court filed on May 26, 1988 in Cause No. WC-88-2 and its August 22, 1988 Order Staying Proceedings in Case 41F-18. Reservoirs and other storage facilities incident to the beneficial use of water are noted on the abstract of a water right for which such facilities are utilized. A flow rate is decreed for offstream reservoirs. This flow rate represents the rate at which water is withdrawn or diverted from the source. The flow rate guideline for offstream reservoir claims is the capacity of the diversion and conveyance system. In most cases, if the claimed flow rate exceeds the guideline and if the accompanying documentation or other data do not substantiate the flow rate, the flow rate is decreed as claimed and an issue remark is added noting the problem. A flow rate is not decreed for onstream reservoirs. A remark is added noting a flow rate has not been decreed for this use from an onstream reservoir. Volume may or may not be quantified for reservoirs depending on the purpose for which the water is stored and used. See the Findings of Fact concerning each purpose for further discussion. 14. IRRIGATION RIGHTS Flow Rate. Direct flow irrigation rights are decreed by flow rate. Flow rate is decreed in gallons per minute (gpm) or in cubic feet per second (cfs) instead of the traditional miner's inches. Mont. Code Ann.  85-2-103. One miner's inch is equivalent to 11.22 gpm; forty miner's inches is equivalent to one cfs. The flow rate of a previously decreed water right is decreed as claimed although miner's inches are converted as described earlier. Flow rates of rights based on a filed notice of appropriation or based on use shall not exceed a reasonable application rate. Based upon information and a recommendation provided by the DNRC, the Water Court finds that a reasonable application rate for direct flow irrigation is 17.00 gpm per acre (1.50 miner's inches per acre). On every claim where the submitted documentation clearly substantiates a flow rate in excess of 17.00 gpm per acre, it was decreed as substantiated. If a flow rate in excess of 17.00 gpm per acre was claimed but not clearly substantiated, the flow rate was reduced to 17.00 gpm per acre and a remark noting the reduction was added to the water right claim abstract. Water spreading and other irrigation systems not susceptible to measurement by flow rate are generally decreed by volume only. Natural subirrigation and natural overflow were not decreed a flow rate or volume, but the right is limited to the amount of water historically used for a beneficial use. A flow rate is decreed for offstream reservoirs but is not decreed for onstream reservoirs. However, if it is determined that the onstream reservoir is not a significant part of the irrigation system, flow rate is decreed and a remark is added noting the system is primarily a direct flow irrigation system. Volume. Volume is not decreed for direct flow irrigation rights unless a volume was established in a prior court judgment or decree, or where the Water Court determines that volume is necessary to adequately administer the particular water right. Mont. Code Ann. 85-2-234(6)(b). Volume is sometimes decreed for rights involving reservoirs. If a reservoir is not a significant part of an irrigation system, volume is not decreed and a remark is added noting the system is primarily a direct flow irrigation system. When volume is decreed, it is in acre-feet per year. An acre-foot of water covers one level acre to a depth of one foot. Period of Use. Because the period of use can vary widely for each individual user, a claimed period of use that is reasonable is accepted unless it contradicts a previously decreed or documented period of use. If a period of use was not designated by the claimant or was not within the appropriate climatic zone guideline, an issue remark was added noting the problem. Place of use. A. Examination of Place of Use. The place of use of the right is designated by legal land description. Aerial photographs, Water Resource Surveys, field investigations and data submitted by the claimant are used by the DNRC to examine the claimed place of use. The resources actually used are specified on the DNRC's work sheet which is located in the claim file. The place of use for irrigation is decreed as claimed. If upon examination the land did not appear irrigated or irrigable, a remark was added to the abstract noting the acreage discrepancy. B. Supplemental Water Rights and Place of Use. Several water rights with different priority dates or different sources may be combined to supplement the irrigation requirements of all or part of the same acreage. Each right is limited to the flow rate and place of use of that right. The sum total flow rate of these rights shall not exceed the amount historically used for a beneficial purpose. Point of Diversion and Means of Diversion. The point of diversion and means of diversion are decreed. The point of diversion is specifically designated by legal land description. Secondary points of diversion are noted in a remark when possible or necessary. In many cases, the claim and claimant's map will more specifically define the points of diversion. The means of diversion is reviewed and decreed as claimed unless a different means of diversion is apparent. 15. DOMESTIC RIGHTS Flow Rate. Domestic rights with a claimed flow rate of 35 gpm or less are decreed as claimed. If the claimed flow rate exceeds 35.00 gpm and the accompanying documentation or other data does not substantiate the flow rate, the flow rate is decreed as claimed and an issue remark is added noting the problem. When a flow rate claimed had been previously decreed, the flow rate is not changed. A flow rate is decreed for offstream reservoirs but is not decreed for onstream reservoirs. Volume. The volume guideline for domestic use is 1.00 acre foot per year per household and two acre feet per year per acre of lawn and garden. A volume is decreed for both onstream and offstream reservoirs. Place of Use. Land irrigated as part of the domestic use is decreed as part of the place of use. If a claim for domestic use included irrigation separate from the domestic use, an "implied claim" was generated for the separate irrigation use. Period of Use. The period of use claimed is the period of use decreed. 16. STOCKWATER RIGHTS Volume. Unless otherwise directed by the Water Court, stockwater claims are not decreed a specific volume. The limit of the right is based on a consumptive use of 30 gallons per day per animal unit. An animal unit is described as a cow/calf pair or equivalent. The number of animal units is limited to the reasonable carrying capacity of the area historically serviced by the water source. Such rights are limited to their historical beneficial use. The claimed volume was decreed for all stockwater claims filed by the United States of America which involve pothole lakes and reservoirs pursuant to the August 7, 1987 Order of the late Chief Water Judge W. W. Lessley. Flow Rate. The flow rates for stockwater rights from wells, developed springs, pumps and gravity flow pipelines are governed by the diversion's capacity. If the claimed flow rate exceeds 35 gpm and the accompanying documentation or other data do not substantiate the flow rate, the flow rate is decreed as claimed and an issue remark is added noting the problem. Rights involving stock drinking directly from surface water sources or a ditch system are not decreed a specific flow rate. Although not quantified by flow rate, such rights are limited to their historical beneficial use. When a flow rate claimed had been previously decreed, the flow rate is not changed. A flow rate is decreed for offstream reservoirs but not for onstream reservoirs. Point of Diversion/Place of Use. When a stockwater use is direct from a surface water source, the legal land description for the point of diversion will be the same as that for the place of use. Where there is a ditch, pipeline or offstream storage the legal land description for the point of diversion may differ from that for the place of use. Period of Use. The period of use claimed is the period of use decreed. 17. OTHER USE RIGHTS In this subbasin, water right claims were submitted for the following other uses: commercial, fire protection, fish raceways, fish and wildlife, industrial, institutional, lawn and garden, mining, multiple domestic, municipal and recreation. Flow Rate and Volume. Flow rate and volume are decreed as claimed. If the accompanying documentation or other data does not substantiate the flow rate or volume, an issue remark is added noting the problem. A flow rate is decreed for offstream reservoirs but not for onstream reservoirs. A volume is decreed for both onstream and offstream reservoirs. Other Elements. The remaining elements of "other use" claims are generally treated the same as on irrigation claims. 18. UNRESOLVED FACTUAL AND LEGAL ISSUES The objection period provides an opportunity for all the parties in this decree proceeding to raise any issue which needs to be resolved. Any issues may be reviewed by the Water Court on its own motion. See In re "On Motion of the Water Court", Case WC-92-3, Order and Memorandum dated February 8, 1995. Unresolved factual and legal issues have been noted by remarks on the individual claim abstracts. The Issue Remarks Index combines all these remarks and is arranged numerically by water right claim number. Searching the Issue Remarks Index by water right claim number will identify all issue remarks that are noted on the individual claim abstracts. Water users within this subbasin and other interested persons will be mailed a Notice of Entry of Preliminary Decree and Notice of Availability contemporaneously with the filing of these Findings and Conclusions. This "Notice of Availability" explains the objection process and sets a deadline for filing objections with the Montana Water Court. If a water right claim receives no objection and is not reviewed by the Water Court on its own motion, it may remain unchanged and be entered in the final decree. In addition, this decree, as modified after objections and hearings, will be enforce-able in accordance with Montana Code Ann.  85-2-231 and 85-2-406. 19. TERMINATED CLAIMS Three hundred (300) water right claims were withdrawn by the claimants and terminated in this subbasin. An abstract of each of these terminated claims is found in the bound volumes of the computer-printed abstracts. They are listed in the decree indexes described in Finding 6. A terminated claim is identified by the letter "O" rather than the letter "W" in the water right code preceding the claim identification number. 20. LATE CLAIMS The Montana Supreme Court ordered the deadline for filing claims of existing water rights as 5 :00 PM on April 30, 1982. Claims filed after this time and date were forfeited. See Matter of the Adjudication of Yellowstone River Water Rights, 253 Mont. 167, 832 P.2d 1210 (1992). One hundred eighty-four claims were filed after 5:00 PM on April 30, 1982 and are included in this decree. In 1993, Montana enacted legislation providing for the conditional remission of the forfeiture of certain existing right claims. See Montana Code Ann.  85-2-221(3). Any remission of forfeiture is conditioned upon the claimant meeting the requirements set by the Montana Legislature. One hundred seventy-nine of the claims filed after April 30, 1982 have been assigned one of two levels of subordination. To identify the level of subordination, the "W" water right code preceding the claim identification number of each late claim was changed to an "A" or "B" code and appropriate issue remarks automatically attach to the claim. Claims identified as "A" claims are those which were postmarked or executed on or before April 30, 1982, and received by the DNRC on or before May 7, 1982. There are 34 "A" claims in this decree. These "postmark" claims carry the following subordination remark: CLAIM FILED LATE [DATE]. THIS CLAIM IS SUBORDINATE TO ALL FEDERAL AND INDIAN RESERVED WATER RIGHTS. All other claims filed with the DNRC after April 30, 1982 but on or before July 1, 1996, except voluntarily filed "exempt" claims, will be identified as "B" claims. There are 145 "B" claims in this decree. These "non-postmark" claims carry the following subordination and issue remarks: CLAIM FILED LATE [DATE]. THIS CLAIM IS SUBORDINATE TO ALL FEDERAL AND INDIAN RESERVED WATER RIGHTS AND ALL VALID TIMELY FILED CLAIMS BASED ON STATE LAW. CLAIM FILED LATE [DATE]. IN ADDITION TO BEING SUBORDINATE TO ALL FEDERAL AND INDIAN RESERVED RIGHTS AND ALL VALID TIMELY FILED CLAIMS BASED ON STATE LAW, THIS CLAIM MAY ALSO BE SUBORDINATE TO CERTAIN PERMITS AND RESERVATIONS OF WATER. SEE SECTION 85-2-221 MONTANA CODE ANNOTATED. Five claims were filed after April 30, 1982, that appear to be exempt claims voluntarily filed pursuant to  85-2-222 MCA. These claims carry the following issue remark: CLAIM FILED [DATE]. THIS CLAIM APPEARS TO BE AN EXEMPT RIGHT VOLUNTARILY FILED UNDER SECTION 85-2-222 MONTANA CODE ANNOTATED. The Water Court has established a "late claim" procedure it follows with respect to claims filed after April 30, 1982. See Order Setting Late Claim Administrative Costs and Expenses filed September 24, 1997; letter of instructions to Robert G. Arrington, Adjudication Program Manager of the Department of Natural Resources and Conservation dated December 1, 1997; and Order Establishing Water Court Procedure on Late Claims filed December 8, 1997. Based on these Findings of Fact, the Chief Water Judge makes the following: CONCLUSIONS OF LAW I The Montana Water Court has jurisdiction to enter a Preliminary Decree for the Westside Bitterroot River (76HF) pursuant to Mont. Code Ann. Title 85, Chapter 2. II These Findings of Fact, Conclusions of Law and Abstracts define the nature and extent of each claimed existing water right under Montana law in the Westside Bitterroot River (76HF) and comprise a Preliminary Decree in accordance with Mont. Code Ann. 85-2-231 and Rule I.II(7) of the Water Right Claims Examination Rules adopted by the Montana Supreme Court. DATED this 14th day of January, 1998. ______________________________ C. Bruce Loble Chief Water Judge Montana Water Court P. O. Box 879 Bozeman, MT 59771-0879