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APA4172
ORDER OF BOARD OF NATURAL RESOURCES ESTABLISHING WATER RESERVATIONS T;-\1111~ OF CONTEi'ITS Order of i-1oard of Natural Resources Establishing Hater Reservations -t1u.."1icipal Reservations -Irrigation Reservations -r..t.ultipurpose l:..eservations -lnstrea~ Reservations FindL~gs Of Fact and Conclusions of Law -City of Livingston -Cic; of Big TLrrber -City of Columbus -City of Laurel -City of Billings -City of Niles City -City of Glendive -Ta.Nn of Broadus -Park Conservation District -Sweet Grass Conservation District -Stillwater Conservation District -Carbon Conservation District -Yellowstone Conservation District -Big Horn Conservation District -Treasure Conservation District -l<oscbud Conservation District -t<orth Custer Conservation District -POY~er River Conservation District -Prarie ConserJation District -Dawson Conservation District -Richland Conservation District -Little Beaver Conservation District -Buffalo Rapids Project -Department of State Lands (9931-r) -Department of State Lands (9933-r) -Department of State Lands (9934-r) -U.S. Bureau of Land Management (12334-0l-r) -U.S. Bureau of Land Hanage:ment (12334-02-r) -Department of Natural Resources ~u.s. Bureau of Reclamation (12330-r42KJ) -U.S. Bureau of Reclamation (l2332-r42K) -U.S. Bureau of Reclamation (l233l-r43Q) -Department of Fish and Game -Department of Health and Envirornental Sciences -North Custer Conservation District (Instrea:m) -U.S. Bureau Land Managanent (l2334-03~r) -!i1u:tley Project gureau Recl&~tion (l2333-r43P) l l 80 86 93 99 106 112 118 124 l3l l38 145 152 159 166 1.73 180 189 194 201 208 215 221 229 237 243 247 251 255 272 278 285 292 346 356 361 366 !~!·:FORE 'i<J lL !;iJ/\i~D 0!·' NATUI0\L R1·:SOlfHCES AND CONSERVATIO~·l OF THE STATE OF ~1NT!u'lll IN 111E . OF APPLICATION FUR 'ZFSERV,iTION OF HATER NO. 1781-r, 6291;-r4:C;1, gt,76-r43BJ, 9942-r43Q, 9646-r43Q, 9'!31-r, 9933-r, 9934-r, 99J5-r43Q.J, 9937-r43Q, 9938-r42H, 9939-r43QJ, 9940-r43B, 991;2-·r42C, 994J-r42J, 9944-r43D, 9945-r42M, 9%6-rl;2?1, 991.7-ri;2M, 991•3-r42M, 9'.149-r'.2H, 995l-r42N, 9952-r43P, 9954-rt,JK, l0003-r42KJ, lOOQL,. r1+3B, lfl005-r42KJ, 10006-r, ll349-r42L&M, 12330-rL;2KT, l2331-r43Q, 12332-rL,ZK, l2J33-rl;3P, NID 12334-!Jl-r through 1213/;-03-r. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER OF BOAlill OF NATUPAL RESOURCES ESTABLISHING W.A.TER RESERVATIONS l'ur:;L~mt to Section 89-890, R.C.t-1. 1947, and further ryursuant to those certain docl.llrcnts entitled Findings of Fact a.rtd Conclusions of Law rrade ,)f. Natural Resources and Conservation (hereinafter Board) in this !lEtter, said docnnrnt:o attached hereto ;md by this reference fully and completely adopted and L<- corporatod herein, the Board hereby gra<'1ts or denies the above-described applications for reservation of water as set forth below: ~fuNICIPAL RESERVATIONS 1. Subject to the conditions stated below in paragraphs Nc. 9 through 24, the J\e>plicant, City of Livingston, pursuant to Application Nc. 9940-r43B, is granted a -iil reservation of water allowing the aopropriation of not oore tlun 4,510 acre-feet of water per with '"'l 1vora; •c diversionary flaw rate of 6. 23 cubic feet of water per second, from the Yellowstone River, to be used for municioal water supply. 2. Subject to the conditions stated below in paragraphs No. 9 through 24, tl1e Apnl , City of Bi~ Timher, pursunnt to Application No. 8476-r43BJ, is trranted a reservation of water allowing the appropriation of not more than 365 acre-feet vJatcr ocr year with ,,;1 .•rJc:L1[''2 diversionary flaw rate of 0. cubic feet of water per second, from the Boulder River, to used for murieipal ~<iter supply. ~;~1 h tn t ;K' conJition;_; sLLiLcd below in paragraphs :'b. 9 through 24, the of , pursua:<t to -r43Q, is granted a reservation of water allowing the appropriation not D:Jre than 883 acre-feet water per year with an avcra;;o diversionary .flow rate of l. 22 cubic feet of vJater per ' second, from the Yellowstone River, to be used for municipal water supply . . Subject to the conditions stated below in paragrapb_s No. 9 through 24, the Applicant, City of Laurel, pursuant to Application No. 9939-r43QJ, is granted a reservation of water all~~g the appropriation of not more tb~ 7,151 acre-feet of water oer year withan avor•ne diversionary flmv rate of 9.88 cubic feet of water per second, from the Yellowstone River, to be used for mmicipal water sup1J1Y. 5. Subject to the conditions ,,.,,r~ri belov; in paragrapl)s No. 9 through 24, the Apolican.t, Gitv of Billings, pursuant to Apolication No. 9646-r, is granted are- servation of '~ater allowin~ the aopropriation of not more than 41,229 acre-feet of water per year •.vith "'' over;::v<:diversionary flow rate of 56.9 cubic feet of water per second, from the Yellowstone River, to be used for municipal '.Yater supply. 6. Subject to the condttions stated bel'YW in paragraphs No, 9 through 24, the Applicant, City of Hiles City, pursuant to Application ~b. 9954-r42K, is gra.'1ted a reservation of water allO\ving the appropriation of not oore than 2,889 acre-feet of . water per year with an 8Vi'r<!':'' diversionary flon' rate of 4. 0 cubic feet of \~ater per seccnd, from the Yellowstone River, to be used for municipal water supply. 7. Subject to the conditions stated bela"' in paragraphs No. 9 through the Applicant, City of Glendive, pursuant to Application No. 9938-r4Z'1, granted a reserv.~ti.on of wi'Jter allowing the npprupriation of not more than 3, 281 acre~feet of warcr oer year of water per , from the tz.n 1c ~i 'Jt'r 1 to be used rnunicioal water supply. ~t Subjt)Ct to the conditions La<:.ec belmJ in para/y&aphs No. 9 through 24, the to 9953-r, is granted a reservation of Hacu: :1l the 'l[lpronriation of not rrore than 605 acre-feet of '.¥ater per year Hithan ~veriHJediversionary flow rate of0.84cubic feet of water per second, from the ~ grotll1'lt~ater, to be used for m.rncipal water supply. 9. The reservations are ordered adopted subject to any fina dete on of prior e.'listing water rights in the source of supply as provided for by Hontana-law. i 10. The reserv.2tions are ordered adopted subject to nal determination of senior water rig!1ts in the source of supply, including but rut limited to any decreed rights of federal or Indian reserved rights, but not subject to any right to appropriate !ill water ~ich may arise from the ~:mri.t applications suspended by the Yellov1stone MOratorium (Section 89-8-103 et ~-, R.C 1947). Purusant to Section 89-8-105(2), R.C.M. 1947, the reservation is a preferred use over ri~~t to appropriate water 4 ~ich my arise from the pennit applications suspended daring the Yellowstone MOratorium. lL The reservant JJEY only appropriate water pursuant to the reservation at such ~ timos when to so approlJriate Hill not adversely affect any senior water right in the s0urcc of supply as set forth in the preceding paragraph. 12. The reservation of the above named municipalities are to have priority and 4 be considered a preferred use over any other water reservation granted by the Board. ':r 13. The reservation is intended to nm concurrently Hith and overlap, rather than :run consecutively Hith, any other right to the use of water claimed by the rcservant but not nerfectcd to the effective date of the adoption of the reservation. 14. l:!'ith:L"l three years of the effective date of the adoption of the reservation, e.<ch reservant shall submit to the Board a tvater conservation pla"l. includi1·1g, but not Iii limited to, the following: a) A listing of those measures rncouragL'lg oont:L'lued water cor.scrvation ~ch Hill be impler::ented by the reserv<mt, includ:L-,g some pla!'!i> or designs for Ill measuril1g devices of the municipality's water system; and A category of user tl; be the reserJ3.flt during an errergency :md Proper docl.l!rentation including data relating to withdra'"l of water, depletion and return flow; and d) Within sLx (6) m::>ntbs of the submission to the :&lard by the reservant of its water conservation plan, the Board shall review t.'le pl&'1 and either approve it or require the reservant to appear at a public hearing before the Board for further consideration of the reservation; and e) Proper legal notice slull be given of any public hearing reviewing the reserv2z1t' s water conservation plan; and pursuant to the M.:lntana Administrative Procedure Act. f) After a public hearing t.l,e Board may extend, mdify or revoke the reservant' s reservation. l5(a) At least sLx (6) m:mths in advance of any change in or expansion of physical plant, the reserv:mt shall suhnit a plan to the Board showing such changed or expanded points of diversion, pumping facilities, comreyance facilities, and storage facilities. (b) IJ?on review of t;1e pl:an submitted by the reservant pursuant to subpar3aoraph (a) above, the Board may, at its discretion, grant, oodify or deny the proposed plan or portion thereof where: (l) Water is not available at the intended point of diversion, or 1he rlan adversely affects prior water rights, or (3) The proDOsed diversion. L~oundment or conveyance, facilities are inadequate, or (4) The pl~~ is incompatible with local and regional pl~<g efforts, or 1ne olan to meet the interests the people of ~fun t:ma , or (6) The pla.'1 fails t:1 1112et the objectives of the reservation, or pl<m 1NVuld not be in com>1Lll1Ce with ocrtinent state or federal laws or environorental standards, or (8) The plcm does not dem:Jnstratc adequate and reasonable water ccnservation rreasures, (c) The Boord TIEY gra.'1t, m:xlify or deny the proposed pla.'1 or a portion thereof within six m:mths after the elate of s~ssion by the reservant, (d) All decisions of the Board are appealable under the provisions t.he Mxltana Administrative Procedure Act. 16. Adequate measuring devices approved the M:ntana Departl!Ent of Natural Resources and Conservation (hereinafter ll'<RC) shall be installed during construction on all reservation diversion, impoundment, conveyance facilities and measurement of return flows. The water diverted, impounded, and/or cCJI'l'\leyed sr.all be measured and recorded daily throughout the life the project. Such records shall be subtr'itted to the Board and~ periodically as requested. 17. Any chmlge in point of .diversion, place of use, • return flrn~, or place - of storage from the plan shall be in accordance wit.h procedures established, Sections 89-892 and 39-893, R.C.M, 1947. No change shall be approved -vJhich does not meet all of the pertinent criteria of Section 89-890, R. 1947, for issuance of an order adopting a reservation. 18. The ~!RC maY with approval of the Board, issue t~r&y permits for the use of reserved water, provided such te:mporary permits are subject to the terms and ~1diti~~ it considers necess~y for the protection of the objectives of the resetv<ltion: (a) Before any temporary nerm:i.ts ar~ granted, proper legal notice must be giwn to the oublic stati."lg rbe request for the temporary pe:rmit for the use of reserved water, the applicant, the mrount of water r<equested, the need for the 1 the ternpc'r~try permit and the length of tire for that oublic interest is being served by 211 iss~~ce of the temporar:' permit. 19. The reservant shall participate in adhere to water management oper::ttions that may be i1:1plernented in the fut:rre by the State Montana. 20. Pursuant to Section 89-890(6), R.C five years of the date of· the reservation, and thereafter at least once every ten years, review the reservation, including, but not limited to, any required interim reports and pla~s, to insure that the objectives of the reservation ere beL'lg met. Where the objectives of the reservation are not being ret, the &:lard may at discretion extend, f!Ddify, or revoke the reservation. Circumstances which may evidence the above include, but are not limited to, the following: (a) Anticipated demand for water for the purpose the reservation has not materialized; s tarM.iards ; . ~ (b) Inadequacy of reservation facilities, (c) NoncamplL~ce toith Montana or federal statutes or env~ronmental (d) l:JcO!!~'atibility with local or regional planning efforts; (e) Use of the reserved water for other than beneficial use as NoncGmPliance with any of the conditions this Order . (::} Al.1y and all liability arising from the reservation is the sole responsibility of the reservant. In orderi.."lg a reservation adopted, t.he Board assumes no liability. 22. Conditions of this order may be ITDdified or thdr,awn by the Board at its discretion should future circumstances warrant. L"l such event notice will be given, and, objections are received, a hearing will be held. ® " h' part o~ t 1s part of this order is invalid, all valid parts remain in effect. effect for all valid application, If 24. Paragraphs 1 t..'u:ough 24, granting and conditioning the. eig.ht lisL2d municipal on the , 1978, so as to provide the eight mur~cipal reservations with first priority of use among the Yellowstone River Basin *~ter reservation. d1airman, l'bitana Board of Natu:fal Resources and OJnservation / RESERVATIONS OF CONSERVATION DISTRIGrS 1\::D STATE AGENCIES 25. Subject tc the conditions ~tated below in paragraor$ No. through Conservation District, pursuant to Application !"='. 10,004-r43B, is gra:1ted a reservation of water allOI<~il''l):; the total appropriation of not more than flCRv rate of 445. q cubic feet: of ~•ater per second, from the Yellow-ston~o River, to be used for the irrigation of anproxinntel y n, 664 acres. 26. Subject to the conditions stated below in paragranhs No, 43 throug."l sa, the reservant, Sweet Grass Conservation District, pursuant to Application No. 9943-r42M, is granted a reservation of water allowing the total anpropriation of not roore tha!l 46,245 acre-feet of water per year with a ma:Kinum diversiona.yr flow rate 3~>3.4 cubic feet of water per second, :from the Yellowstone River tributaries of the YellCJ~VStone River as set forth L~ the aoplication, to be used for the irrigation of approxLuately 15,313 acres. Subject to the conditions stated below in paragraphs No. 43 through 5S, t;'i.l reserv&"lt, Stilho~ater Conservation District, pursuant to Application No. 9935-r4JQJ, is granted a reservation of water allowing the total appropriation of not nm·e thaa 16,755 acre-feet of water per year with a maocim.:l!ll diversionary flow rate of 122.1 cubic feet of water per second, from the YellCJY1Stone and Still- water Rivers and other tributaries of the Yellowstone River as set forth in the Application, to be used for the irrigation of approximately 5, acres. 28. Subject to conditioml stated below paragraphs ~"=', 43 through 58, the reservoot, Carbon Conservation District, pursuant to ADplication 9944-430, is ~ranted a reservation of water allG\~ the total appropriation of not more thim flow rate of 7 cubic feet of water per second, :from the YellCJ~VStone and Clarks Fork Rivers and other tributaries the Yell~"Stone River as set forth irrigation of approxir.ately ,034 acres. 29. Subject to tht:: conditions stated below in paragraphs No, 43 through 58, the reserva'1t, Yellowstone Conservation District, pucsuant to ADplication No. 9949-r4a~, is granted a reservation of water all~<g c~e total appropriation of not oore tha11 57,963 acre-feet of water per year with a max:Ltrum diversionary flCY.v rate of .2 cubic feet of water per second, from the YellovJStane Ri:ver, to be used for the irrigation of approximately 24,335 acres. 30. Subject to the conditions stated below in paragraphs No. 43 through 58, the reservant, Big Hom Conservation District, pursuant to Anplicatian No. 9952-r43P, is granted a reservation of water all~Lng the total appropriation of not mxe than 185 acre-feet of water per year with a diversionary flow rate of 'l cubic feet of water per second, frcrn the Big Hom River, to be used for the irrigation of approximately 9,175 acres. 3L Subject to the conditions stated below in paragraphs No, 43 through 58, the reservant, Treasure Conservation District, pursuant to Application No. l0,003-r421U, is granted a reservation of water allowing t.~ total appropriation of not more than 18,361 acre-feet of water per year with a ma.'<im..mJ diversionary flow rate of 118.6 cubic feet of water per second, frcrn r,'le Yeltowstone and Big Horn Rivers, to be used for the irrigation of approximately 7,035 acres. 32, Subject to the conditions stated below paragraphs No. through 58, the reservant, Rosebud Conservation District, pursuant to Application NO. l0,005-r42KJ, is gr.~ted a reservation of water allowing the total appropriation of not 11nre thiln 87,003 acre-feet of water per year with a diversionary flow rate of 540.7 cubic feet of water per second, fr001 the Yellowstone River a11d ot~r tributaries as set forth in the Application, to be used for the irriga- tion of approldmately 525 acres. • II 33~ Subject to the stated u'-'x~vw in paragraphs No~ 43 through the re;;t<rvant~ North CtLSter Consen.ration Dis , purJuant to Application No~ 9947-r42-m, is granted a reservation of water allowing the total appropriation of not norc than 28,478 acre-feet of water per year~ From the total of this re~ servation, 13,301 acre-feet per year is from the Yellowstone River and 10, acre-feet per year is fran Powder River and tr~ tributaries the Powder River to be used for waterspreading~ 34. Subject to the conditions stated below in paragraphs No~ 43 through 58, the reservant, Powder River Conservation District, pursuant to Application No. 9943-r42J, is granted a reservation of water allowing the total appropriation of rot !IDte than 13,680 acre-feet of water per year from the Powder River mainstem and tributaries as set forth in the Application to be used for waterspreading on ap- proximately 9,120 acres~ 'll1e Powder River Conservation District request of 75,560 acre-feet per vear from Lhe Powder River is denied. 35. Subject to the conditions stated below in paragraphs No~ 43 through 58, the rcservant, Prairie County Conservation District, pursuant to Application tb ~ 9946-r4:Ci'1, is granted a reservation allowing the total appropriation of not rrore than 68,467 acre-feet of water per year. Of the total reservation, the arruunt of watl'r reserved from the Yellowstone River is 68,024 acre-feet per year to be used to irrigate 22,241 acres with a rnximurn diversionary flow rate of 552.7 cfs. Of the total reservation, the aiiDunt of water reserved from the Powder River is 443 acre-feet of water per year to be used for waterspreading of 295 acres. 36~ Subject to the conditions stated below in paragraphs No~ 43 through 58, the r0sorvant~ Dawson CoHnty Conservation District, pursuant to Application No~ is gra."lted a mservation of water allowing the total appropriation not murc than 45, acre-feet of water per year with a diversionary from the Yellar,.:stone River, to he u..';ed for the irrigation of anproxinntely ~127 acres, 37" Subject to the conditions stated below L~ paragraphs No. 43 thro~~ 58, the reservant, Richland County Conservation District, oursuant to Application No. 9945-r42!1, is granted a reservation water allowing the total appropriation of not more than 1+5,620acre-feet of water per year with a maximum diversiona.ry flaw rate of 354.2 cubic feet of water per second, from the Yellovmtone River, to be used for the irrigation of approximately , 710 acres. 38" Subject to the conditions stated below in paragraphs No. 43 throug.'t 58, the reservant, Little Beaver Conservation District, pursuant to Application ll3l;9-r42IR-I, is granted a reservation of water allowing for total appro- priation of not more than 12,773 acre-feet water per year from O'Fallon, Pennel and Cabin Creeks. Of the reservation, 4,273 acre-feet of water per year is to be used for the purpose of irrigation, 6,000 acre-feet of water per year is to be used for the purpose 0f WAterspreading, 1,800 acre-feet of water per year is to be used for stockwatering ponds, and 700 acre-feet per year is to be used for re- creationa1 ponds. 39. Subject to the conditions stated below in paragraphs No, 43 through 58, the reservant, Buffalo Rapids Froject, ptrrsuant to A-pplication No. 6294-r42'1, is· granted a reservation of water allowing the total appropriation of not m:Jre ttk~ 11,997 acre-feet of water per year with a ~xinrurn diversionary flaw rate of I 16.55 cubic feet of water per second, from t.'1e Yellovvstone River, to be used for the irrigation of approximately 3,100 acres located within the Terry Unit Additions, Fallon Unit Additions, and Buffalo Rr.pids Project Additions, as set forth the Findings of Fact and Concluqions Law as adopted the Board. 40. Subject to the conditions stated below i11 ooragraphs No. 43 through the reservant, M:lntana Department of State Lands, pursuant to A,"lplication No. 9931-r, is grantAd a reservation of water allowi.11g the total aoprooriation of not I 1 water per year a naximum diversionary flow ic the YelhMstonc !liver, Hom River, Rock Creek, lliisy Dean Creek, Lodge Creek, for the irrigation of approximately 4,286 acres. Subject to the conditions stated below in paragraphs No. 43 through 53, the reservant, Montana Departm2nt of State Lands, purst!illlt to Application 9933-r, is granted a reservation water all01¥ing the total appropriation of not I!Dre than 25,889.78 acre-feet of water per year with a mailillllm diversionar; flow rate of 185. 2 cubic feet of water per second, from sources specified in Application No. 9933-r, e,'(Clooing the Tongue and Powder Rivers, for the irrigation of approxi- rnately 9, .82 acres. 42. Subject to the cmditions stated below in paragraphs No. 43 through 58, the reservant, Montana Departmmt of State Lands, pu:rstiant to Application No. is granted a reservation of water allowing the total appropriation of nor nnre th.u"' 15,078 acre-feet of water per year frOlll the Yellowstone River, to be used for waterspreading of approximately 10,270 acres of land located in Rosebud, Treasurc>, Sweet Grass, Big Horn, Yellowstone, Richland, Prairie, Dawson, Powder River, and Custer counties. ~ The reservations are ordered adopted subject to any final determination of prior existi11g water rights in the source of supply as provided for by M:mtana law. (:;', \:::::>/The reservations Jre ordered adopted subject to any final determination senior water rights in the source of supply, including but not limited to any decreed ~Dmpdatq 1.1ater which may arise from the permit apPlications suspended by the Yellowstone l'bratoritm (Section 89-8-103 ot seq. , R. C :;c _:on 89-8-105(2), R.C.:1. 1947, the reservation is a prefe=ed use over a.'l.y to appropriate water which may arise from the permit applications suspecded during the Yellowstone Moratorium. 45. The reserva.'l.t may only appropriate v.nter pLrcsua.'1t to the reservation at such times when to so appropriate will r'-.ot adversely affect any senior water right in the sou:rce of supply as set forth in the proceeding paragraph. @ The reservant shall within three years of the effective date of tc'1e adoption of the reservation submit a detailed plan identirjing projects to be developed to the DNRC for approval by the Board. (a) The plan shall include a list of aoconq:Jlishrnents to date, a construction schedule, and a schedule toward putting the reserved water to beneficial use. The plan shall specify the scheduling of economic, engineering, soils, I!Erketing and other studies which mav be necessary. The plan shall specify in detail and show on wps (using 7% minute S.G.S. Quadratic wps, available) the specific projects to be developed. Except upon approval of the Board such projects shall be limited to those proposed in the Application and not rejected in the Findings. The plan shall specify the proposed points of diversion and associated places of use; the rate of diversion and volume of water to be diverted from each point of diversion; the periods of diversion and use; the intended location of diversion; impoundirent; conveyance, and delivery facilities; and prel.i.mirl:lry engineering plan.<; diversion, inq:Jounarent, conveyance, and delivery facilities. 1he prelirninary engineering plans shall be of sufficient detail to show the capacity size, and location of t.l-te diversion, :Lupoundm:a'-.t, convey;Jnce, and delivery facilities. The plm1 submitted shall be consistent with the Application as lilnited or modified by the Findings and with the reservation as hereL~ ordered adopted. The rcservant may not =monee construction of diversion, :ilq:Joundmlmt, conveyance, or delivery works of any portion of the plan, e,xcept a detailed engineering 13~ plan of the pro sed cility to be built at least six months in advance of the proposed construction starting date. (c) Upon review of the plan submitted by the reservant pursuant to subparagra s (a) and (b) above the Board, within six {6) months of submission of pl1ns by the ~servant, may at its discretion approve, modi or deny the proposed plan or a po ion thereof. nditions for denying a plan result from one or more of the following: (1) Water is not available at the intended point of diversion, or (2} The plan adversely affects prior water rights, or {3) T proposed diversion, impoundment, con nee, or delive facili is inadequate, or (4) The plan is incompatible planning efforts, or th local and regional (5) The plan fails to meet the basic interests of the people of Montana, or (6) The plan fails to meet the objectives of the re- servation, or (7) The plan would not be in compliance with pertinent state or federal laws or environmental ~tandards, or (B) The plan proposes use of water which is not beneficial use, or (9) The plan does not demonstrate adequate and reasonalbe water conservation me~sures, or (10) The plan is not reasonable and is speculative, (d) Upon 1 showing of d c~use for an extension of time to submit 1 plan, the Board may extend the time that the reservant has to submit 1 pl~n. but the Bo~rd mroy not extend the time past five years of the effective date of the adoption of the reserv~tlon, ~1~~ (e) Tiuc Board si1J 11 :<llaw the public to COrn:ll81t on the pr•DjX)Sed plan prior to the Board's decision ~ e 'Ihe reservant may only apPropriate Water pursuaJlt to the reservation at such tunes when to so appropriate will not adversely affect any prior water re~ servaticn as adopted by the Board. ~ 48. 'Ihe reservant shall submit to the Board an annual progress re·port on each anniversary date of the effective date the acloption of the rc~ervation. This requireJrent shall continue in effect until tha complete development of the reservation. The annual progress report shall set forth acc~,~lishments taw~rd the complete development of the reservation, a schedule of anticipated progress, and other infornetion as may be prescribed by the Board. Feasibility studies; 4 detailed econ:mics, engineering, envir0!1l!lefltal, and marketing studies; construction and operating plans; water contracts; and any othar studies and plans prepared in conjunction with the reservation projects shall acccmpany the annual progress ~ report submitted next following their c~letion, except that environmental staterents and ot.'1er reports having time limits for review or CC!lmlmt shall be submitted immediately upon their completion. 49. Adequate measuring devices approved by the rnRC shall be installed during construction on all reservation diversion, impoundment, conveyance, and delivery facilities. The water diverted, impounded, conveyed and returned shall be measured and recorded on a regular basis throughout the life of the project. Such records shall be submitted by the reservant to the Board or the DNRC upon request. ~ 50. My change in point of diversion, place of use, use, or place of storage from the plan appro""ed by the Board shall be made accor~ce with the procedures established by Sections 89~892 and 89-893, R.C.M. ~ 1947. The !Rpartmi!nt shall approve or deny the prop::~sed c..~mg,<::, consideration to the requirements of the public interest. No ,,,,, . ., shall be aoorov<&l which does not meet all of the p<ertir.ent criteria of Section 89-890, Iii -1 7' the _i:-:;;;unncc of :m a reservation. The Deparl::rn£nt may provide for a public hearing on any change ii1 pob1t of to and approved by the Board. 51 The DNRC, • . .Jith the approval of tr;e B:Jard, issue t~rary permits use of reserved \~ater, provided such te:rrporary permits are subject to the tems and conditions it considers necessary for the protection of tl1.e obJectives of the reservation. ~ ~ reservant shall participate in and adhere to water management "~r,at may be implemented in th.e future the State of ibntana. 53. Pursuant to 89-890(6), R. 194 7, the Board sJ:.,all periodically, at least once every ten years, review ~he feasibility studies, detailed plans, that the objectives of the reservation are being met. Where the objectives the reservation are not being met, the &lard =y at its discretion ext:and, oodify, or revoke the reservation. (l) Circumstances which may evidence the ab::rve include, but are not limited to, the following: (a) Failure of the demand for water for the purpose of the reservation to materialize; (b) Inadequacy of reservation facilities; (c) N<,ncorrpliancc \vith t·bntar.a or federal statutes for cnvi.ronmcntal sta.'ldards, with local or regional planning efforts; (e) Use of the reserved waters for other than beneficial use as by 1'1:Jntana (f) of this Onier If part of this Order is invalid, all valid parts remain in effecL If pa ~Order is inva1 id in one or more of its applications, the part remains in effect for l valid applications. {2) The i3oJ t'd mJy give not icc and vide a public hearing on whether to extend, modi or revoke a ,·eservatiorL The public hearing wi11 be held pursuant to the procedures of the r1ontana Administrative Procedure AcL 54, The reservations shall be perfected by the respective reservants as set in the foll ng table: Stil hwter Powder River Carbon Richland Custer Sweet Grass Ye 11 ows tone Dawson Big Horn Treasure Park Rosebud ttle Beaver Buffalo Ri!pids ! gation District State lands ~ 9931-r State lands ~ 9933~r State Lands ~ 9934~r 55~ and all liability si of the reservant. orderinq a reservat event notice ll be given, Year 2000 2000 2007 2000 2000 2007 2007 2007 1990 2007 2000 2007 2000 :woo 2000 2000 :woo 2000 the reservation is the sole responsi lity adopted, the Board assumes no liabili ed or with~ In such ng will be held. RESERV.~TI\)i! OF 59. Subject to the conditions stated below in paragraphs No. 59 tb.rough to Application clo, ,. , is granted a re:;ervation of wate:-allowing the total diversion not ~'re than 2,924 acre-feet of water per year with a rnaxLrnan diverisonary floH rate of 12. cubic feet of water per second from O'Fallon Creek, a tributary of the Yellat..rstone River, to be used for the irrigation of approxirrate> 1,992 acres from May through September 15 . 60. Subject to the conditions stated below in paragraphs No. 59 through 75, the reservant, Bureau of Land Management, pursuant to Application No. 12334- 02-r, is granted a reservation of water allowing the total diversion and appropriation 4 of not m:n:e than 17,476 acre-feet of water per year with a rna'<i.TfU!l diverisonary flO'.v rate of 75,76 cfs fr= the Yellmvstone River, to be used for the irrigation of approximately 3,73B acres from ~~v 15 through September 15. ~ The reservations are ordered adopted subject to any final determina on of nrior existing \mter rights in the source of supply as provided for by Vontana law. ® 'Ihe reservations are Ol"dered ·1dopted subject to any fina.l determination senior water rights in the source of supply, including but not limited to any decreed rights or federal or Indian rec;erved rights, but not subject to any right to appropriate water wflich may arise from the permit applications suspended by the duril1g the Yellv""W'Stone Horat_()!"itml.. wttter !Jursuant to the reservatio:-1 not adversely affect &~y senior water u,ht in the source of supply as set forth preceecling paragraph. 64. The rcscrvant shall withir1 three adoption of the reservation sabmit a detailed identifying projects to be developed to the DNRC for apnroval the Board. (a) The shall include a list of accomplishments to date, a cnn:>truction schedule, and a schedule ta.;ard putting the reserved water to beneficial use. The ola.'1 shall specify the scheduling of econcrnic, engineer:L~g. soils, l!!1!rketing and other stadies which may be necessary. The plan shall specif:r in detail and s S. Quadratic maps, if available, the Specific projects to be developed. Except upon approval of the l';;:x>rd such projects shall be limited to those proposed in the Application and not r~j,ccted in the Findil'lgs. The plac"1 shall specify the proposed points ciiversion and associated places of use; the rate of diversion and volume of water to be diverted from each point of diversion; the periods of diversion and usc; th: intended location of diversion; hnpoundme:lt; conveyance, and delivery facilities; and preli~inary cngineeri~g ola'lcs of diversion, impoundment, convey~ ancc, and delivery facilities. Ihe vrelimiiury engineering pla.."1S sh.all be of "':fficient detail to slxM the capadty size, &"1d location of the diversion, irnD<)lJDc1r:1C>r.t, conveyance, and delivery facilities. The pla.< subrr.itted shall be consi:-H::cttt \·:ith the Apoticatio:1 .3S lixnited or rrodified the Findings and ~.;>1. th the a' herein ordered adopted. (b) 'Ihc reservant not cor~cc of the oroposed to be at least six ronths in adv~mce of the ~,.::) U!Jzlll rcvie\v of the p1an :;ubmitted by the reservant pursuant to suil0aragraphs a) dnd (h) above the 13oard, within six (6) months submission of plans by the reservant, may at its scretion approve, modify or t prorosed plan Oi' a portion th~ereoL Conditions for denying a plan may result from one or more of the followmg: (1) Water is not avail e at the intended point of .diveris on, or (2) The plan adversely affects p or water ghts, or ( The proposed diversion, impoundment, conveyance, or delivery facili is inadequate, or (4) The plan is incompatible th local and regional planning efforts, or (5) The plan fails to meet the basic interests of people of Montana, or (6) The an fails to meet the objectives of the reservation, or (7) The olan would not be in compliance with pertinent state or fede1·al l a1~s or en vi romnenta 1 standards, or (3) The plan proposes use of l'iilter which in not a benefi use, or (9) The plan does not demonstrate adequate and reasonable water CP ( 1 0) is speculative d) t a the Boarcl n>1y not extend the time of the adopt ion ot tho rocervation. -~-~ public to comment on the proposed an Ill Tite reservant rn3y only appropriate wntcr pursuqnt to the reservation DnY prior \.,rater reservation as adopted by the Board. ® The rese:rvant shall submit to the Board an annual progress reyort on each anniversary date of the effective date of the adoption of the reservation. This requirement shall continue in effect until the complete develojJirent of the reservation. The annual progress report shall set forth accomplishments toward the complete development of the reservation, a schedule of anticipated progress, and other inform~tion as may be prescribed by the Board. Feasibility studies; detailed economics, engineering, environmental. and marketing studies; construction and operating plans; water contracts; and any other studies and plans prepared in conjunction with the reservation projects shall accompany the annual progress :report stbnitted ne.."<t following their completion, except that envirO!ii!Hltal statem::nts and oth.er reports having time limits for review or com:rent shall be submitted inrnediately upon tr.ei:r completion. 6 7. Adequate m2asu:ring devices approved by the rnRC shall be :installed during construction on all reservation diversion, impoundment, conveyance, and delivery facilities. The water diverted, impounded, conveyed .and returned shall be measured and recorded on a daily basis throughout the life of the project. Such records shall be submitted by the reservant to the Board or the :ooRC upon request. 68. Any chanfCe in point of diversion, place of use, use, or place of storage from the pLm approved by the Board shall be made in accordance with ti1e procc>dures establ Lshed by Sections 89-892 and 89-893, R. C 1947. 1he Department shall approve or deny the proposed change. giving due consideration to requir€'!11El1ts of the public interest, No change shall be approved which does not roc·et 1 the pertinent criteria of Section 89-890, for i::suancc of <11'1 (a; 'the Depa:rtrrcnt may provide a public hearir1g on &ny change in point of diversion, place of use, use or place of storage from the plan submitted ~ to &nd approved by the ooard. 69. Tne DNRC, may with the approval of tr.e Board, issue temporary permits for the use of reserved water, provided such temporary penrits are subject to the term.'< and conditions it considers necessary for the protection of the objectives of the reservation. 70. The reservant shall participate in and adhere to water management operations that may be irnplern:mted in the future by the State of Montcma. lL Pursuant to 89-890(6), R.C 1947, the Board shall periodically, but at least once every ten years, review the feasibilib; studies, detailed plans, environmental statem2nts, and annun.l reservation, including reports, to ensure that the objectives of the reservation are being met. Where the objectives of the reservation are net being met, the Board may at its discretion extend, rrodify or revvke the reservation. (1) Circumstances which rr,ay evidence the above L.>.clude, are not l:im:L:.:ed to, the following: (a) Failure of the ai'liticipated demand for water for the purpose of the reservation to materialize; (b) Inadequacy the reservation facilities; (c) Noncompliooce with M:.lntana or federal stacutes for environmental standards; (d) Incompatibility local or regional plannL.-.g efforts; (e) Use of t..'le reserved waters for other than beneficial use as defined by Montana (f) Noncompliance any of the c0nditions of this Order. The BuJrd may ~rive notice and de for a public hea ng on whether to extend, modify m· revoke a reservation. The public hea ng 11 be held pursuant to the pmcedun:s of the Montana Admi ni s trat ive Procedure Act. 72. reservant shall perfect the reservation by the year or by such extended time period as Ba<H'd in its discretion may designate. Any and all liabili arising from the reservation is the sole responsi~ bility of the reservant. ln ordering a reservation adopted, the Board a~:umes no liability. 74. Unless otherl'lise stated, conditions of this Order may be modified or withdrawn by the Board at its sc 01'1 d future circumstances warrant. ln such event notice 11 be given, and, if objections are received, a hearing 11 be held. 75, If part of this Order is invalid, all id parts remain in effect. lf part of this Order is in id in one or more of its applications, the part remains in effect for all valid appl icat 76. Paragraphs No, 59 through 76, granting and conditi ng twn Federal l gation Reservations, and the three State Agencies', and the Conservation Districts', and Irrigation District Irrigation Reservations, are ordered adopted effective at1J:JJ1_ o'clock _f'._M. on the---'-""'--day , 1978. 76. Subject to the conditions stat:ed below in paragraphs No. 76 through 91, Applicant, Montana Department of llatural Resources and Conservation (Dl'lRC) pursuant to Application No. 9942-r42C, is granted a reservation of 383,000 acre- feet year water allowing the total appr0)1riation of not tll:lre than , 000 acre-feet of water per year, from the Tongue River, to be stored in an enlarged Tongue River Reservoir and to be used for all beneficial uses allowed Montana law. The reservation of the IleYJartrn:'nt of Natural Resources and Conservation is subject to the following: (a) Part of this reservation is to be used to meet the purpose of the Department of State Lands reservation for 1,431 acre-feet per year from the Tongue River (Application 9931-r) and 390 acre-feet per year from the Tongue River (Application 9933-r). (b) Part of this reservation is to be used to meet the request of the Big Horn Conservation District's reservation request for 1,034 acre-feet per year fran the Tongue River (Application 9952-r43P). (c) Pare of this reservation is to be uced to meet the reservation re- quest of the Rosebud Conservation District for 7,144 acre-feet per year from the Tongue River (Application No. l0,005-r42KJ). Part of this reservation is to be used to meet the reservation re- quest of North C~qter Conservation District for 1bngue River (Applie->tion No. 9947-r42M). 897 acre-feet per year from the The Departl11!2nt of Natural Resources is to cause to release an a¥er1~ge of 75 from the reservoir for instream flow purposes below the reservoir. 78. Tho reservation is ordered adopted subject to final determination of prior e..':isting water rights in the source of supply as provided for by Montana 19. 1he reservation is ordered adopted subject to all existing and/or inchue~te senior water rights in the source of supply, including but not l:L"lited to decreed rights or federal or L'"ldian reserved rights, but not subject to any rigi1ts to aporopriate water ·.Nhich may arise from the permit applications suspended by the Yello;~Stooe !i:lratoriurn (SectiO!! 89~8-103 et seq,, R.C 1947). ~ursuant to Section 89-8-105(2), R.C 1947, the reservation is a preferred use over any rigr,t to appropriate \vater which may arise from the permit aPplications suspended during the Yello;~Stone ooratorit.."'l. 80. The reservant m-:~y only appropriate water pursuant to the reservation at such times when to so appropriate will not adversely affect a,y senior right in the source of suoDl y as set forth in the preceding paragraph. BL The reservant shall as soon as practicable, but not !lDre than five (5) years. sul::mit detailed plans to the Board for the Board's aryorovaL (a) The pla"l "ihall include a list of accarplishments to date, construction plans (if available), a construction schedule, and a detailed assessmEnt of specific uses and benefits, The plan shall where awlicable specify i., detail &'ld show on maps (using 7% minute quadratic USGS maps, available) the proposed sources and points of diversion; sites a'ld sizes of facilities; the rate of diversion and volume of wnter to be diverted from each source and ooint of diversion; t."le volLu-nc of storage at each facility; the period of diversion for each diversion; the period of use for each use; the frequency and magnitude of drav.mlin; t."le intended location of diversion, irnpeunclment, and conveyance facilities; and preliminary enginecrL11g p tans of diversion, :irnj::ounck!Ent , and conveyance facilities, - - -4 The reservant shall not comnence construction of diversion, inuoun~nt, or convey:.nce facilities or anv n~h"''"'" oortion of the pla"l except upon approval of the Board. The reservant shall submit a detailed eng:L'1eeri.'1g plan of the proposed project prior to the construction starting date. 'The reaervant shall include in of inscrcam flow reLease:< from L'1 such aiTDunts as shall be set forth L'1 t'1e plan ax1d approved by the Board. Upon reviev the plan submitted pursu:mt to subparagraph (a) , approve , or (c) above, the Boord may at its discretionlrrodify or deny the proposed plan or a portion t.~ereoL Conditions for ng a plan may resu1 t from one or more of the following: (1) Water is rot available at the LTltended diverions for (2) The plan or a.'ly portion thereof adversely affects prior water rights, or The plan or any portion there of is inadequate, or The plan or any portion thereof is inccrnpatible local or regional olanning efforts, or The olcm or any portion thereof fails to rneet the best im:crests of tl1e peopie of '1:lntana, or (6) The plan or any portion thereof fails to rneet the objectives of the reservation, or (;]) "the plan or any portion the:::ecf 'WOUld not be in ccrnpliat-.ce wit:1 perth<ent state or federal laws or environmental standards, or (8) 'J:hQ plan or any portion thereof proposes a use water wilich is not a beneficial use, or (9) p la,< or <L'W thereof does not adc'ql.k1.te and reasonable w;lter conservation measures, {10) fhe p!an 1s not reasonable or 1s spec!llat1\le. (e) Public notice be given of any plans of the reservant, 1'he Board shall provioe for the nublic CO!!ment oo the proposed plan may hold pub 1 i c hearings, 1he rcsel\/ant shall submit to t~1e Board an >'l..,YL.rtual on of the effective date of the of the reservation. 1hill condition shall contLrrJe L'1 effect until corrpletion of the project. The progress report shall set forth accomplishments toward completion of the project, a sc.hedule of a'1ticinated progres;,;, and otc'1er information as rmy be prescribed by the Board. Feasibili~J studies; detailed ec~~ic, engineerLng, envirOfl!!lC!'ltal, and marketin><; studies; construction and operating plans; ,;ater contracts; and any ot.'Er studies a11d pla.'1s prepared L"l conjunction w'ith the re- servation s 1ull accompnav the annual progress report submitted next follc:IW"'..ng their cornpl..,tion, except that =vironmental statements and other reports hav'.ng t:imz limits for review or comnent shall be submitted :im:lediately upon their completion. 33. Adequat:e measuring devices aporoved by the DNRC shall be installed during construction on all reservation facilities. The '.:rater diverted, distributed, and/or :;tored shall be measured and recorded daily throughout the life of the project. Such records shall be submitted to the Boarci or D)JRC unon request. 8/;. Any c.:,ange in wint of diversio::~, place of use, use, quantities of '"ater allocat0d to various use:;, place of storage, distribution facilities, or t:imz and rate of distribution sha.ll be ma<le in accordance wit.'-! sections 89-892 and 89-893, R.C.11. 19L;7. The Board shall approve or deny tbe prooosed change, givL'1g due consideration to the r;2(juircments of tbe public interest. No change shall be approved which does oot rreet all of the pertL'le:lt criteria of Section 89-890, C 1947, for the issua;<ce of a'l or,ler adopting a reservation. (a) Public notices shall give.'! of any request for a change in point of diversion, place of use, use, qUcmtities of water allocated to various uses, or time or rate of distribution. (b) 1hc: do for the to comment on -the requests~ a!!d, hold nublic !learings" 35. The res€:!rvant rruy. for the use of re:>erved •,vater, provided the Board, issue t~Jrary ~~·'""'~~ temporarv :>ermits are subject to t.'J.e terms and ""''"' of the reservation. it neeessary for the orotection of the objectives 86. The reserva'1t shall participate in and adhere to water ma:nagernent operations that ~y be implt.'IDe!ltcd in the the State of l"bntana. 87. Pursua.1t to Section 39-390(6), R.C.K 1947, the Board shall oeriodically, but at least once every ten years, review this reservation, including feagibility studies, detailed ol;ms, enviranmental statemants, a.<rl annual reports, to ensure that objectives of the reservation are being ~ret. Where the objectives of the reservation are not Lcing met, the Board may at its discretion extend, m:Jdify, or revoke the reservation. Circumstances which may evidence the abow include, but are not limited to, the foll~,g: (b) Failure of anticipated demand for water for the purpose of the reservation to materialize; InadL>quacy of reservation facilities; (d) ~mcornpliance with t1ont.ma or federal statutes or environrrental (e) (f) ~.th or region~l ~la.~ing efforts; rese!"Je<l water for other than beneficial use as defined by ~!om::ana (g) NoncumplL:.mce with any of the conditions this Order. (2) Public notice shall be given any. revia,r of the reservation; for the public to COITrrL~t on the the reservation, LL arising reserva,tion is the sole responsi- b the rescrva<t. In ordering a reservation adopted, the Board assumes no 1 i;1hi 89. Conditions of t:>'1is Order may be modified or withdrawn by the Board at its discretion should futt:re circumsta.aces warrant. Lr:~ such event notice will be give<, and, if objections are received, a hearing will be held. 90. If part of this Order is invaE l, all valid parts remain in effect. If part of this Order is invalid in one or more of its applications, ~'1e part rerrains in effect for all valid applicatiOl!S. - ~~·~[I{ J!i!~ RE!;El\V/\[10N~.; !·'OR FEDEPAL AG'E:>!CIES 92, Subject to the conditions stated below in paragraphs No. through 108, S. Bureau of Recl:1ll'.ation, to Application l~. 12330~r42KJ, s granted a reservation water allowing the total appropriation of rot rrore than ,800 acre-feet water per year from the Yellowstone River, to stored in the proposed Cedar Ridge Project ;md to be used for municipal, industrial, re~ creatiooal, and fish and wildlife purposes. 93. Subject to the conditions stated below in paragraphs No, 92 through 108, the Applicant, is ~anted a reservation of 'Mater allowing the total appropriation of oot m:Jre than 539,000 acre-feet of waeer per year from the Yellowstone River, to be stored in the .~sed Sunday Creek P.eservoir and to be used for rnunicipal, industrial, re- creational, and fish and wildlife purposes. 94. SubjL>ct to the conditions stated below in paragraphs No. 92 through 108, the Applicant, U.S. Bureau of Reclamation, pur~uant to 1\polication No. 12331-r43Q, is granted a reservation of water alla.ving the total appropriation of rot m::n:e than 68,700 acre-feet of WFater per year from the Yellowstone River, to be stored in the .pronosed Buffalo Creek Reservoir and to he used for IIDnicipal, industrial, recroatiar~l. and fish and wildlife purposes. 95. '!he reservant, U.S. Bureau of Reclamation, shall seek Congressional auw'l.orizatioo for a feasibility study of the proposed Cedar Ridge Project within Hve years of the effective d1te of adoption of the reservation. 96. The reservation is orior existing water rights in source of supply as provided for by rmtana law. o 7. The reservation is inchoate senior water rig."lts including but noc iimiced to any decreed rights or federal or Indian reserved rights, but not subject to rights to approrriate water which !lEY arise from the permit applications suspended by the Yellowstone !~ratorium (Section 89-8-103 et ~·· R. Pursuant to Section 89-8-105(2). R.CJ'I. 1947, the reservation a preferred use over any right to appropriate water which may arise from the permit applications suspended during the Yellowstone moratoriLwn. 98. The reservEnt may only approoriate water pursUEnt to the reservation at such times when to so appropriate will not adversely affect any senior rig.'1t in the source suoply as set forth in the preceding paragraph. 99. The reservant shall as soon as practicable, but not mre than seven (7) years, submit preliminary plans to the Board for the Board's approval. (a) The plan shall include a list of accomplishments to date, construction pla_~s (if available), a construction schedule, and a detailed assessment of specific uses and benefits. The pla.1 shall where applicable specify in detail and show on maps (using 7% minute quadratic USGS maps, if available) the proposed sources and points of diversion; sites and sizes of facilities; the rate of diversion and volume of water to be diverted from each source and point diversion; the volurJE of storage at each facility; the period of diversion for each diversia,1; the period of use for each use; the frequency and magnitude of 4 • drawdown; the intended location of diversion, impoundment, and conveyance facilities; • and preliminary engineering plans of diversion, impoundment, and conveyance f,1cilities. The reservant shall not C0'11'm2'!'1Ce construction of diversion, imp<Jtll:l(h::nt, or conveyance facilities or any portion of the plan except upon approval of the ooard. reserva'lt shall submit a detailed engineering plan tile proposed project pr·ior to the construction starting date. 1 to thi:: Pt:x1rd an aru1ual progress report on each ar.niversary date of the effective date of the adoption of the reservation. This conditicn shall continue in effect until ~letion of the project. Tne annual progress report shall set forth accomplishments toward completion of ~ie project, a schedule of anticipated progress, and o~ier information as 1!5Y be prescribed by the Board, Feasibility studies; detailed ecooomic, engineering, envirO!lTI!e!ltal, and marketing studies; construction and operating plans; water contracts; and a«f other studies and plans prepared ir1 conjwction with the re- servation shall accornpnay the annual progress report submitted next following their completion, except that envirO!lTI!e!ltal statements and other reports having tilre limits for review or comrent shell be submitted imnediately upon their completion. lOL Adequate measuring devices approved by the lllRC shall be installe~ during constnletion on all reservation facilities. The water diverted, distributed, and/or stored shall be measured and recorded daily throughout the life the project. Such records shall be submitted to the Baerd or OORC upon request. 102. Any change :L."l point of diversion, place of use, use, qoontitiea water allocated to various uses, plaoe of storage, disttibutioo facilities, or time and rate of distribution shall be made in accordance with sections 89-892 and 89-893, R.C.M. 1947. The Board shall approve or deny the proposed change, giving due consideration to the requiremB!'Its of the public interest, N:J change shall he approved which does not 1112et all of the pertL"Je11t criteria of Sectioo 89-890, R.C.M. 1947, for the issuance of an order adopting a reservation, Public notices shall be given of any request for a change in point of diversion, place of use, use, quantities of water allocated to various uses, place storage, distribution facilities or time or rate of distribution. (h) The Board !lhall provide and, may holJ puhlic hearings. the public to comrent on the requests, (c) The reservant slk-Lll include in its plan provision for maintenance of in,;trcwn f1<1.r releases frorn the L'l'll<J.r:;ed reservoir in such arocn.mts as shall _be set forth in the olan and approved by the Board. (d) Upon reviev; of the pla.< sui:Jiritted oursuant to subparagraph (a), approve , or (c) above, the Board may at its discretion/modify or deny the praoosed plan or a DOrtion thereof conditions denying a plan may result from one or more Dt the fol'IOW1ng: I.Jater is not available at the intended diverions for this appropriation, or (2) The plan or any portion thereof adversely affects prior water rights, or (3) The plan or any portion there of is inadequate, or The plan or any portion thereof is incompatible local or regional plamli:rtg efforts, or The plan or any portion thereof fails to meet the best interests of the people of ~tana, or (6) The plan or any portion thereof fails to meet the objectives of the reservation, or The plan or any portion thereof would not be in CO!lpliance with pertinent state or federal laws or emrirotllliental s ta.'1dards , or (8) The plan or a'1y portion thereof proposes a use of water which is not a beneficial use, or f 9~ T.'1e ol~< or anvtpqrtion rh1ereof 1.nn~sePflta€~trate ( ()1 The ;Jian 1s no reasonatl e or r e' • adequate ar;d reasonable water conservation measures, (e) Public notice shall be ~iven of any plans of the reservant. The Board shall provide the pUblic comment on the proposed ?lan prior to the Board's decision, and, may hold p ub li c hear:lngs. issue lt.'l~1porar:-y permits are sUbject:: to tenTI5 and conditions it considers for the of the reservation. 104. The reservant shall participate in a'"ld adhere to water l'!l;!r.agement operatioas that may be irnplernanted in the future the State of Montana. 105. ?ursuant to Section 89-890(6), R. 1947, the Board shall periodically, but at least once every ten years, review reservation, includir~ feasibility studies, detailed plans, environmental statements, end BPnual reports, to ensure that the objectives of tr£ reservation are being met. ~~re the objectives of the reservation are not being met, the Board mey at its discretion extend, m:xlir;, or revoke the reservation. Circumsta."lces which may evidence the above include, but are mt liudted to, the followiP~: (b) Failure of demand for water for the of the reservation to materialize; (c) Inadequacy of reservation facilities; Noncornplia..nce with 'bntana or federal statutes or envirom!E!ltal (e) IncOI'lpatihility with local ar regional pla'111ing efforts; (f) Use of the reservati water for other tbMrn b~1eficial use as de fined hy t1::mtal1a (g) Nooco.up iianco ,,rf th any of the conditions of this Order. review the reservation; ll<x1ru shalt pro \!ide nublic to cooment on the review arising from rese~Btion is the sole responsi- uc.•Lu.v of the reservant. In ordering a reservation adopted, the Board assures no liability. !. wnditions of this Order may be rroclified or wit;,'ldrawn by the Board at its dL;cretion should future circumstances wa.rranL In such event notice will be given, and, if objections are received, a hearing will be held. l lj Q Uu. If part of this Order is invalid, all valid parts remain i:r effect. If part of this Order is invalid in one or wre of its applicatL"nS, w'le part remains in affect for all valid applications. 109. Para>:;raphs No. 76 through 109, gr&'lting and conditioning the Bureau of Reclmnation' s ?1ultipurpose reservations , and the Department of Natura 1 Resources and Conservation Dis ct's reservation are ordered adopted effective at tf:z::> o' cl P rt on the I S day of J[);:_..c~J-.vv 1978. t1L~TI1L~-H'I_DW INSTRI:::<\H Rl':SERVATIOllS FOR STATE AGEllCIES . 110. Subject to the conditions stated below in paragraohs ;Jb. 112 through 144, Applicant, tbl.tana Fish and Game Ccmnission, pursuant to Application ;Jb. 17lll~r, is granted minimum-flow instteam reservations as identified in subparagraohs (a) t.~rough (m) below. (a) For the lower Yellowstone River, defir1ed as that portion of the river at Sidney, M:ntana, the M:ntana Fish and Gan12 COmnission is granted an instream reservation at this part of t.'J.e stream equal to the eightieth percentile flow less deoletions, An approximation of the reservation, based on existing streamflow records as measured at the U, S. C'.rological Survey (herein USGS) gauging stations at Sidney, is s:1ov111 in Table 0-L (b) For the Powder River, at its rrout.'l, the M:ntana Fish and Gall12 COmnission is gro.'lted a ninetieth oercentile flow instream reservation. 1m approximation of the reservation, based on existing streamflow records as measured at the USGS gauging stations at Locate, is shown in Table 0-2. For Rosebud Creek, the !:-fontana Fish and Game COmnission is gra11ted the eightieth percentile flaw instream reservation frcn Cottorn1100d Creek to the Yellowstone River. (d) For the Tongue River at the inlet to the present Reservoir, the :nnt.ma Fish and r~ COmnission is granted an instream reservation of 244,799 af/y (Table 0-]a) . (e) For the Tongue River at its mout.~, the Montana Fish and Game CoFrnissicn is graTlted an instrea:m reservation of a minimlml flOi>r of 75 cfs, (Table 0-3b). (f) For Ha,'lgL'1?, Woorn1, Otter, and Pumilkin Creeks, the Mmtana Fish and mut;l o:!' the East Fork to the Tongue River; Otter Creek, fran the muth of Bear -;~nd Pu!!:pkin Creek, fr001 the oout.'-1 of Deer Creek to the 4 1v:1 apormdmation of the reservation is si:lo\vn i.-: Table (h) For the lower middle Yellowstone defined as that part of the granted an i."'!Stre1ll!l reservation at this oobt of the stream reach equal to percentile rn:Jnt.hly low flows less dmletions to t.'lat point. An approxir!a~ tion of th.e reservation, based on existing streamflow records as rneasu.~ed at the USGS gauging station at Miles City shown in Table 0-5. For the middle Yellowstone River defi.,ed as that part of the Yellow- stan.e River at the City of Billings, M:lntana, the M:lntana Fish and Gam2 Cormlission is granted an instream reservation at this part of the stream equal tc 3,914,455 acre-feet per year. 1m approximation the reservation based on USGS gaugmg data at Billings is shown in Table I"!J4',A :1'•! (j For the Clarks Fork Yellaw~tane River, the M:lntana Fish 3L"1d Game ~ission is granted an mstream reservation equal to the ninetiet.!J. percentile m:nthly flat·lS for the rn:Jnths of JarTu.:Jry, Februa._ry, March, , October, Nov- ember &"1d Decer:Der, and an instrea:m reservation equal to the seventieth percentile for the ll'Dnths of June, July, August, and Seoternber. (k) For the following tributaries of the Clarks Fork River the Yellow~ stone, the "tntana Fish and Gam2 Cornoission is granted an instream reservation for the eighty~fifth percentile the flavs of various streams: Creek -Forest boundar; to the Coonev Reservoir ()) Red Lodge Creek ~ Custer National Forest to the Cooney River (4) Clear Creek ~ Headwaters to oouth (5) Dry Creek ~ Headwaters to mouth (6) ~k Creek -Custer Natioral Forest bounc~ to mouth (1) For th<-' Stiil>vater River at its mouth, the rtmtar.a Fish and Game Conndssion is gran~ed an instream reservation for the ninetie~~ percentile fl~v the river. This mno~~ts to 379,795 acre-feet per year. (Table 0-7). (m) For the followL~ tributaries ~~e Stillwater Lhe MOntana Fish and Game C::mnission is granted an instream reservation for the ei~<ty-fifL'l perce.'"ltile of the flows of the various stre&'TIS: (l) C,astle Creek -!1:Juth to 1, feet above Picket Pin Creek Picket Pin Creek -MOuth to m:Juth of Sw= Creek (3) West Fork of Stillwater -Mouth to Castle Creek to Sweet Grass- Stilhvater County line to Tumble Creek (4) Little Rocky Creek -l10uth to Forest Service road #1414 crossing (5) West Fishtail Creek -East Fishtail Creek to Richmond-Kennedy Ditch East Fishtail Creek -West Fishtail Crea~ to its East Fork Fishtail Creek-From tl'le confluence of east and west Fistail Creeks to m:mth (8) West Rosebud Creek -Custer National Forest boundary to Fiddler Creek to JIDuth (9) East P~sebud Creek ~ Custer National Forest boundary to West Rosebud Creek (n) For Bridger Creek from the headi.'aters to tl1e Krone Ditch headgate, and for lo.ver Deer Creek from the headwaters to the Interstate Hip,htvay 90, and for Upper Deer Creek from the headwaters to a point unstream from the Interstate 90 bridge, and for Sweet Grass Creek frOM the Forest Service boundary to the mouth, the H:mt.ma Fish and Game Corrnission is granted 14"1 :instre8lll reservation equal to the til ninetieth percerntile flow of the various strea1113, (o) For the Game C01rnn.ssion granted an ins cream reservation equal to 194,163 acre~ feet of 'vater ~r 'I'::us reservation is shown Table 0~3. the Boulder River at Contact, the ~bntana Fish and Ga::le Coomission is gra..'1ted an instrea..rn reservation equal to ,120 acre-feet water per year. The reservation is shown Table 0-9. (p) For the East Boulder River at its mout.lt, the !1ontana Fish and G!llllP Commission is granted sn u1stream reservation equal to 23 146 acre-feet of water per year with a..'1. approximate m::mthly flcrw rate as shown in Table 0-10. (q) For the \-lest Boulder River at its mJuth, the M:mtsna Fish and Game acre~feet of water oer year ,,ith a"l approximate ~IDnthly flow rate as shown in Table (r) For Big Timber Creek at its mouth, the M:mtana Fish and 06;,~ Commission is granted an instream reservation of 28,267 acre~feet per year with approx:imate monthly flows as shown L< Table 0-12. (s) For the tcibutaries of the Yellowstone River between the Shields and Boulder River listecl below, the Montana Fish and Game Co!mti.ssion is granted an in- stream reservation for the fiftieth flow t.'le months of January, February, r•arch, 1\,'lril, October, November and Dece&Jer, and the ninetieth percentile flow for the ITDnthB of f1qy, June, Jul v, August, and Seoterrber, Mission Crook -ltluth to Little Bear Draw Little Mission Creek ~ Houth to Little Hission Forks (t) For 0~~~~~~~~~~~~i, the Mant~na Fish and Game Commission approximately the. ninetieth percentile flow, ~ich arnDunts to 21,764 acre-feet per year, The approxi1nete monthly flows are shown Table ::J-13, the Shields River near Clvde Park, the M:Jntana and ~ O:Jmnission granted an instream reservation of aporoxirnately the ninetieth Percentile Table 4 Shields River at its mouth, the Board grants ill Fish and G&~ Commission is granted an instream reservation for the fiftieth centile: (1) Smith Creek ~ From nDUth to Bitter Creek Flar:head Creek ~ From =th to ~.Dddy Creek and from Huddy Creek to Cache Creek and frcm Cache Creek to South Fork of Flathead Creek Cottonwood Creek ~ From ~routh to Little Cottonwood Creek and from Little Cottorrwood Creek to Trespass Creek (4) Rock Creek ~ From m::Juth to Forest Service West Boundary in Section 8 and from Forest Service West Boundary in Section 8 to Smeller Creek ' (5) Brackett Creek -From rrouth to Sheep Creek and Sheep Creek to Skunk Creek and Sk"ll!lk Creek to one mile UD oorth, middle and south forks For the followdl1g tributaries of the Yellowstone River, the MbntCP4 Fish and Game Cornmission is granted an instream reservation of the twentieth per- centile of the flow for the m:mths of January, February, March, April, October, Noverrber, and December, and for the fiftieth percentile of the flow for May, June, July, August and September: a) Bear C'reek -From mouth to the rrouth of North Fork of Bear Creek and North Fork of Bear Creek to Fish Creek b) Cinnabar Creek -From mouth to Cottoownod Creek and Cottonwood Creek to Forest Service Boundary at Township 8 South, R~nge 7 >lest, 32 M:Jl Heron Creek -From oouth to Cinnabar Creek m~d Ci11!!'1abm: ·~ Creek to Yellowstone Park boundary d) Cedar f!rcck -From rrouth to ::>econd Fork Cetlar Creek fJil.ci from Second to North e) Tom Hiner C;·eek -From rrouth to Canyon Creek and Canyon Creek to Trail Creek kock (;reek -From m::>uth to Steele Creek g) Big Creek -Frorr mouth to Millfork Creek and Millfork Crea~ to Bark Cabin Creek h) Six Mile Creek -From mouth to the north fork of Six mile Creek i) Fridley Creek -From mouth to Miller Creek and from Miller Creek to Needle Creek j) Eig.'lt Mile Creek -From =uth to Big Draw and Big Draw to North Fork of Eight Mile Creek k) !1ill Creek "' From mouth to the East Fork 1) Trail Creek -From mouth to ~~st Pine Creek and West Pine Creek to the south boundary of Section 35 m) Suce Creek -From m:Juth to L:lst Creek Coke Creek -From rrouth to Mioor .Creek o) Billnun Creek -Fron1 mouth to the mouth of Coke Creek and Coke Creek to Fork South I~'E co::ner ~ Section 20 p) Flesrlll'an Creek -From =uth to PerkL"~S Creek the following Spring Creeks of the uPper Yellowstone River, the !bntana Fish and Ganc Comnission p:nmced an instrea.Tfi reservation for the tenth oercentile flow of the streams for January, February, l1arch, April, October, Novercl:ler and Dcce~rbcr, and for the percentile flow for May, June, July, August and a) Anl1s trom:; C'lelson Spring Cr{!ek m:1uth or origin rronth to origin d) Emigrant Sprin~ Creek -From mouth to origin (x) For the Yellowstone River from Gardiner through Livingston, the • M:1ntana Fish and G::mle Ccmnission is granted an instream reservation at Livingston approximately the tlventieth percentile flat~ for January, February, M:rrch, April, .October, ~ and Decerrber, and for approximately the ninety-fifth percentile 4 flows for May, Jme, July, August and September, plus the dominant discharge. An approximate monthly flow of this reservation is shewn in Table 0-15. hY.wifmjeJ to the conditions stated below in paragraphs 112 through 144, the Applicant, M:ntana Department of Health and EnvirOil!!Elltal Sciences is granted the folla·Jing instream rese!."'Jations for the Yellowstone River: An instream reservation at Sidney, M::Jntana, which is equal to the eightieth percentile of the flow the Yellowstone River less depletions in the Basin a!x:Jve Sidney. The approximate oonthly flows of this reservation are shown in Table 0-1. ~ (b) An instream reservation at Miles City, M:Jntana, ,.mch is equal to the eightieth percentile flow less depletions in the Basin above and including Miles City. The ~pproximate monthly flows of this reservation are shown in Toole (c) M instrcam reservation at Billinr~s, M:ntsna, which is equal to 3,914,455 acre-feet of ~~ater per ye'lr of the Yellowstone River. The approximate monthly flcw~of this reservation are shown in Table 0-6. ~~s&~'"' (d) An instream reservation on the Yellowstone !liver at Livingston, M:lntana, which is equal to aoproxirnately the tlrentieth percentile flew of the Yella.NStone River for .the rnonths of Jantlill:'V, February, M3rch, April, October, ::bvernber ~ m1d Decernher, and eqml to approximately the ninety" fifth percentile flow'S of the Yellowstone !liver for tlae months of Nay, June, July, August and Sept~~ In addition; ~ 0-15. f • cert;:,Ln :;tre""" or n·:1c'""" where rrJnL'T!Uffi~flow instream reservations "'~"l Di1 t;:S or porrions thereof portions thereof jointly. The re:se1:vati<m is ordered adopted subject to I!IDY final determination of prior existing water rights in the source of s;,-pply as provided for by M:Jntana law, 114. The reservation is ordered adopted .subject to all existing and/or inchoate senior water rigjlts in the source of supply, including but not limited to any decreed rigjlts, or federal or Indian reserved rights, but not subject to any right appropriate water l>lhich the Yellowstone M::Jratorium (Secti= 39-8-103 et seq., R.C 1947), Pursuant to Section 89-8-105(2), FL 1947, the reservation is a preferred use CNer any right to appropriate water l>lhicl! may arise from the permit application suspended during the Yellowstone Moratorium The reservation is intended to run concurrently mth and CJVerlap, rathe~ ··,. ··-, than run consecutively mth, any other rip)lt to the L"lStream use of water already possessed by the reservant prior to the effective date the adoption the reservation. 116(a). For those subject streams and reaches Where at least ten cor~ecutive years of standard U.S. Geological SUL-vey (hereinafter USGS) gaugbg records exist, the M:Jntana DeparOll:?nt of Natural Resources and Conservation (hereinafter u'<RC) shall mthin one year of the effective date of the adoption of these min:L."'!lU!ll-flow mstream reservation convert ~~e m:ln~flatv instream reservation quantities into cubic feet of water second and acre-feet perforned upon as many streams, reaches, or portions thereof as practicable, and to be based upon the entire period record. Upc.Jn completion, DNRC shall subrrdt sud! coovers ions to the confirmation the Board. (b) For those subject stre= and sites lacking ten oonsecutive years of and submit to of the effective m.i.nlJl~~.~m-flow instrcam reservation tie;; into cubic feet of water oer second and acre-feet; of water lJer 11D!1th. Eac.l) reservant need cooperate only in that portion _ of the olan which pertains to that reservar!t 's ins tream reservation location. The Board shall approve, l!Ddify, or deny the plan. The plan shall include the following: i (1) A listing of any new strea~gauging stations in the Yellowstone Basin which are essential in obtaLting streamflow data L~ cubic feet of water per second ancl acre-feet of water per m:mth. In d determining mutually beneficial sites, the reservants shall seek technical advice or assistance from the DNRC and the USGS. - The plan shall identify sites for new gauges which are needed, 4 the reach of the stream to which each gauging station applies, the types of gauges to be installed, installation schedules, cost estimates, the agency responsible for operating and maintaining the gauges:, and the agencies which will benefit from the additional gauging records. " l record to be used for each new gauge in the conversion olmL At least ten consecutive years of p.;augi:1g records obtained using st&'"!dard USGS rret:hods and ar;alysis of records using standard USGS rrethods will be acceptable. UrAJn prior aporoval of the Board, differing periods of r;ecord and/or different gauging T"ethods may be used. All gauging data shall be adjusted to 1978 level of ~evelODQent. A listing of stre3ll1s or portions stro&~ where the alternative canversion l!l2thod, hydrologic rnadelL'lg techniques, \rill be used converting minil!um-.fla;,1 :Ltstrea:n reservation quantities L<to cubic feet of \vater per second &'ld acre-feet of water per m:mth. Up"~ approval of the Board, hydrologic m:xieling techniques rnay be used for uneauged streams or sites, or for streams with less than ten consecutive years of record. In developing this portion of the plan, the reservants shall se~< technical assistance and advice from the D!IRC and from the USGS to deterdne appropriate streams and lll2tliDds. The plan shall specify rnodclin~ techniques, the reach of stren.'TI to \.Jhich rouelin.~ w'ill be auplied, schedules, cost es- t ~ agency Ui:!dertaking the rrodel:Ltg f mtd the agencies which will benefit from t!1c rodclinP. results. All rodeling results shall be adjusted to the 1978 level cost =thods of funciing efforts, includ:L>g but not limited to in intent the for various data usen: ood tn:::noses J.rn:n:oval of Board, initiation of. any nortion of the n;i,:iS!.rl-flO'.v in;;r:re= reservation quantity conversion effort, including installation of .:mv dE'sireJ r,au':in:: statioas, mav be accornolished orior to submission of the 117. 1he reservant srHll submit to the &lard an mmual progress report on each anniversary date of the effective date of the adoption of the min:L"1llm-flow instream reservadon. This reguirerent shall contbue in effect until the com- pletion of all work required to be performed in accorcla.'1ce 'l<>ith paragraph ll6, subryaragraphs (b) and (d), of t,his Order. The cmnual progress report shall set for':'1 ocr:f"l!!Plisl~nt tntm.rd completion of such w:Jrk, a schedule of anticioated progrGss, and other information as may be prescribed by the Board. Feasibilitv studie5; detailed econOI!lic, engineering, and environ::rental studies; construction and o~rating plans; contracts; and a."l.y other studies and olans prepared in con- jmction ~"ith the r.L-ri..'TI'Jm-flow L1stream reservation projects shall accOiliDany the m1."1ual progress report submitted next followin~ their completion, except that envito!11laltal statements and other reports having time limits for reviev; or CCll!lli6:1t shsll b~ submitted :immediately upon tl~ir c~letion. llS. /A"1.Y chnnge i:1 use or in olace of use shall be made in accordance ><lith Sections 39-892, and 39-393, R.C 19&7. The Board shall approve or deny the pro,osed dt'h'-?,e, ~iv"..J.l;~ due considerat:ion to the requirements the public interest. --~~~~~ 1-b cha."1.[!.e shaH be :moroved wiJ.J.cn does not re.:t all of the oertine."lt criteria of s~ctiun 1947, for the an order adopting a reservation. (a) Public notice shall be given of <L'1Y change in u<>e or place of use of the reservation (b) 7he !loard sha~l 11llow for :he vublic to roiT!llerlt on 8K!V requests, hearing. not divert or consume any water reserved for in~ stream purposes, except in compliance with all pertinent statutes and rules and upon pt:ior approval of the Board. 'Ihe resenmnt shall participate L'1 and adhere to water llJaYLSgemellt operations that may be implerrented :L.'1 the future by the State of M:Jint<miL Pursuant to Section 89~890(6), .M. 1947, the Board shall periodically, but at least once every ten years, review the reservation, including reports end plans to ensure that the objectives of the reservation are being met. l.Jhere the objectives of the reservation are not being met, the Board may at its discretion extend, m:Jdify, or reVDke the reservation. Circumstances which may evidence the above include, but are not lirrdted to , G~e foll~~: standards; (a) Inadequacy of reservation facilities; (b) Noncompliance with M:ntana or federal statutes or envi:ro!l!!E!ltal Incompatibility with local or regional plantling efforts; (d) Use of the reserved water for other than beneficial use as defined by Mmtana law; (e) Noncompliance any of the conditions of this Order. Any and all liability arising from the reservation is ~e sole responsibility of In ordering a reservation adcpted, the Board assumes no liability. 123. Conditions of this Order may be modified or withdrawn by the Board at its discretion should future circumstances warrant. In such event notice will he given, and, if objections are received, a hearing will be held. ~)If part of this Order is invalid, all VBlid parts remain in effect. If par~this Order invalid in one or more of its apolicatirn:l!l, the part rE!UBins in 125. Mirwu~r flow instream are considered to be put to beneficial the effective date of this Order. M:mth - January February March April May June July August Septe!Wer ' October ~ve!Wer Decenber Total Reservation IN::.!REf\M RESERVATION Yellowstone River at Sidney (807oile Less Depletions t.'lrough Sidney) CFS M/Y 3,738 229,831 327 240,281 6, 416,711 6,808 405, 11,964 735,528 25,140 1,495,644 10,526 647 2,670 164,166 917 6,008 369,377 5,848 347' 920 3 993 245,814 (Av, 7,586 5,492,310 TABLE 0-l • • 4 ' 4 msrREAH RESERVATION Powder River at its MJuth (9a;:J.1c &sed on USGS Data at Locate) Month CFS AF/Y - January .9 1961 February .8 3986 March 291 17,888 April 347 20,643 May 424 064 Jur.e 184 946 July 4303 August 14.5 891 Septanber 8.87 527 October 9.43 579 ~ 6L6 3664 Dec aiDer Total (Av. cfs) 95,201 af/y 1:ABLE 0-2 Tongue River At Inlet tr:> Present Jnd/or Future Reservoir M:Jnth CFS AF/Y ; 41 160 9,836 February 160 8,883 March 200 12,294 .April 200 11,898 May (1-20) 700 27,762 M:1.y (21-31) 1,200 175 ~ June 1,350 80,312 July 360 ,130 August 100 6,147 4 September 100 5,949 October 200 12 ruv~r 200 11,898 ; 4 Decerrher 150 9,221 Total 338 cfs) 244,799 af/y TABLE 0-Ja U!:)Tl'£\H RESERVATION Ton:~;ue Ri\l'er at the Yellowstone (Hinimum 75 cfs at Nouth) CFS 75 4,611 February 75 4,164 March 75 4,611 April 75 4,462 May 75 4, JL""!e 462 July 75 4,611 August 4,611 Septernber 75 4,462 October 75 4,611 November 462 Dec<1!llber 4,611 Total Reservation (Av. 75 cfs) 54,289 af/y TABLE 0-Jb INSTr~\M RESERVATION Bighorn River at its t-'outh Mmch CFS -- J&-:ua:ry 3,300 202,863 • February 3,200 177,679 lmch 4* 245,895 April 3,600 167 l1ay 3,800 233,600 - June 5,200 309,352 Julv (l-20) 3,800 150,710 ~ - July (21-31) 3,200 69,802 August 2,800 ,127 - September 2,600 154,676 4 -October 2,700 165, NoveJ,Ler 3!100 184,421 - Decernbt!t" 3,200 4 716 Total Reservation 3,422 2 ,987 TABLE - Yellt1lvstone River at Miles City (8a7J.le Flow:l L..!ss Depletions th..'"Ough Hiles City) • M:lnth CFS AF/Y -- Jammry 3,829 235,400 Februa:cy 3,998 221,995 March 6,359 390,929 April 5,848 347 '957 May 12,280 754,904 J~ 26,188 1,557,980 July 10,278 631,856 August 3,862 237,415 Sept~r 338 266,682 October 5,849 359, ~ 5,508 327,730 December 4,009 246 Total FBservation (Av, 7,705 cfs) 5,578,89:! af/y TABLE 0-5 Yellwwstanc River at Billings (DFG ::equest Less I.Jep1etions tln:ou,~h Billings) H:nth CFS AF/Y ile Januarv 2,489 153,058 50 February 2,488 138,186 55 :-larch 2,889 177,648 50 April 3,589 213,541 55 ~~y (1-20) 5,143 204,006 } l 85 for May May (21-31) 266, June 17,268 ,708 ' I June (8-30) ,068 869, l 85 for June Julv (1...:20) 10,310 408,904 ) ) 85 for July Julv (21-31) 5,510 120,194 ) Au:;Jst 4,090 251,457 65- September 3,415 203,185 65- October 3,589 220,680 so November 3,489 207,59:.. 50 Deccrnbcr 2,789 171 ,SOl so Total of t1onths 5,312 3,846, Plus Dominant Discharge of 34,507 cfs + 68,430 af/y for one 24-hour period Total Reservation (Av, 5 ,406 cfs) 3, 914, 4:>:.> af ~ TABLE 0-6 M::nth - J~ February March April May June July August Sep~r Octobgr !bvC!Iber De~ Total Reservation Stillwater River at tt:.uth 90/oile Flow i.d'S 200 205 210 560 030 480 480 330 225 (Av. 524 cfs) M/Y 12,294 11,382 12,909 13,385 34,425 ,447 63,318 29,507 555 ,360 385 13,831 ,795 af/y INSTREAN RESERVATION &'>ulder River at Big Tilrber lvnth CFS AF/Y January 80 4,920 February 80 441 March 80 4,920 ~ April 80 760 - May 300 18,445 Jillle 1,690 100,540 • July 490 30,122 August 60 3,690 Septerrber 95 5,650 4 October 130 7,995 -lbverrber 80 4,760 December 80 920 , Total Reservation (Av, 269 cfs) 195,163 af/y TABLE 0-8 - ~roth CFS --- Janu,~cy 50 3,075 February 50 2,875 March 50 3,075 April 2,975 May 9, June 1,080 64,265 July 380 Al.l!,'t!St 10,450 Septenber 110 6,545 Octobec 85 5,225 illoverrber 2,9/5 Decalber 50 Total Reservation (Av, 189 cfs) ,120 TABLE 0-9 Mxu:h Januarv February March April May June July August Septcrd:ler October November December Total Reservation INSTRE/1.'1 RESERVATION E.'Jst Boulder River at M:Juth CFS 15 15 165 50 22 20 15 15 32 cfs TA!lLE 0-10 ~/Y 922 832 922 892 1,229 9,815 3,073 1,352 1,189 1,106 892 922 23,146 af/y 4 1\tnth CFS - Jawm:y 50 3,073 50 2, March 50 3,073 April 50 2,974 May 1,983 May (21-31) 300 543 Jurn! 300 17,847 July (l-20) 300 11,898 July (21-31) 200 4,362 h.lgust 75 4,601 Sep~ 15 4,462 October 75 610 Nove!ltler 60 3,569 Dec€iltler 50 3,073 Total Reservation (Av, 103 cfs) 74,853 af/y INSfHEAM RESERVATIQ~ Big Timber Creek at MJuth ~'both CFS AF/Y -~ January 10 615 February 10 555 March 10 615 April 20 1,190 May 85 5,225 June 180 10,710 July (1-20 100 967 July (21-31) 30 655 August 25 1,535 September 1,190 October l3 800 N::lvenber 10 595 Decerber 10 615 Total Reservation (Av" J9 cfs) 28,267 af/y TABLE 0-12 IN!>1ll.EiiM RESERVATION Shields River ~~ Wilsall (~tely 90% Flows, as per USGS Gauging Station at Wilsall) M.mth CFS M/Y Jammcy 7 February 7 389 Marcil 9 553 April 1,430 May 111 6,824 June 119 7 July 1,660 August 12 137 Sept~ 11 655 October 12 737 ~ 11 655 Dec~ 10 Total Reservation (Av. 30 cfs) 21, ;tt/y TABU: Q-13 INS1T<E/IM RESERVATION Shields River necr Clyde Park (Approximately 90/~le Flows as per USGS Gauging Station at Clyde Park) MJnth CFS AF/Y January 26 1,598 FebruarJ 29 1,610 March 2,704 April (1-15) 93 2, April (16-30) 39 1, May (1-10) 1,645 May (11-20) 137 2, May (21-31) 184 ()12 June 189 3,747 4 June (11-20) 157 3,113 June (21-30) 105 2,082 July 22 352 August 13 800 September lJ 773 October 30 845 ~ . November 27 1,606 Dacenber 31 1,905 Total Reservation 49 cfs) 35,434 af/y ~ TABLE 0- 1 ?blth CFS M/Y APPOOX. % J~ 1,330 81,760 20 Febru:n:y 1, 73, 20 M:!rc'"l 1,350 82,989 20 April 2,490 148, 20 May (1-10) 2,500 49,575 ) ) M:!y (11-20) 1,900 37,677 )95 for M:!y (21-31) 4,700 93,202 ~May Jim£! (l-10} 7,700 152,693 } J Jim£! (11-20) 9,000 178,472 )95 for Jim£! (21-30) 8,000 158,642 !June July (1-10) 5,400 107,083 July (11-20) 3,800 75,355 95 July 2,500 49,575 August (1-10) 1,600 31,728 ) )95 for August (11-31) 2,125 88,492 )August September 1,555 92,508 i 951 ----" October 2,350 144,463 20 Na~r 1,790 106,488 20 wcc!rber 1 91,596 20 ToL.11 of l"bbllhs (Av. 2, 553 cfs) 1,843, 722 af/y Plus Domin.'mt Dischm:ge 18~ cf',~ "'' 36,091 at for one 24-houx Total Re:;exwtion {Av. 2,596 cf;;) l,!'J79,813 af/y pericd J;;'Jl:EJ\!1 !-:E;;EJ-!VA'J'rr ;i.'l:; t·l ll{ l"EDEI{JI.L AGENCIES UJNSER'JATION DISrRICfS Subject to the conditions stased below in paragraphs No, 127 through 144, ' the Applicant, the l'«lrth Custer County Conservation District, pursuant to Applica- tion oo. 9947-r42.'i, is granted an L"!Stream reservation on the Yellowstone River of 4,000 cfs at the Kiru;ey Pumping Station near Miles City. 128. Subject to the conditions stated below in paragranhs oo. 127 through 144, the A!Jplicant, the United States Bureau of Land ManagEr!E1t, pursuant to their Appli-~ cations, is granted min:im.m flow instream reservations as identified in paragraphs (a) through (d) below: (a) For tfle: tributaries of the Little Powder River which inculde Hay Creek, Allison Creek, Dry Creek, Horse Creek, the oorth Fork of Bowers Creek, Bell Creek, Wright Creek, the South Fork of Wright Creek, Ranch Creek, Williams Creek, Prairie Creek, an :instrearn reservation is granted of 1 cfs for each '!"la.ll!ed stream. (b) For the tributaries the Powder River ~ich include Mizpah Creek, $•0ep Crc.>ek, the North Fork of Sheep Creek, the South Fork of Sheep Creek, Horse Creek, Nevers Creek, Locate Creek, Archdale Creek, Snow Creek, Cole Creek, Bolocate Creek, Dislocate Creek, and Ten Mile Creek, an instrearn reservation is granted of 1 cfs for each =:ed stream. (c) For the Little Powder River, an instream reservation of 3 cfs is granted. (d) :.0 instream reservation is granted for too following: the Powder R:L~r. the Tongue River, the Horn River, the Clarks Fork of the Yellowstone P-iver, the Boulder River, Bridger Creek, the Stillwater River, Upper Deer Creek, Crt."ek, • T ordered adootcd subject to lJ~ TI1e reservation is ordered adopted subject to all existing and/or to any decreed rights or federal or Inman reserved rights, but not subj oct to any right to appropriate water which may arise from the permit applic:~icns suspended by the Yellm~stone i'bratorium (Section 89-8-103 et ~·, R. 1947). Pursu~t to Section 89-8-105(2), R. 1947, the reservation is a prefe=ed use over any right to !'!::lp!:C)?J:iate -tar tii1ich m.'iy arise from the permit applicatior~'l su~~~l ~Jring ~~e Ycllowstor£ MOratorium. 131. The n:servant nny only appropriate water pursuant to the reservation at soch ti:!!es •Nhen to so appropriate tvill not adversely affect I!!IIy senior water ri!l:ht in the """n-~<> nf s•..mlv 115 S!!t forth hi the proteed111g "par<~lr~ph. The reservant may only appropriate water pursuant to the reservation at such times when to so appropriate will not adversely affect any prior ~ter reserva- tion as adopted by the Board. 134. The reserva.'1t sh.1ll submit to the Board an annual progress report on each anniversary date of the effective date of d1e adoption of the reservation. 'Ihis re1uiremznt smll cont:i.J:ru£'. in effect rn.til the complete develop~~Ent of the re::;ervacio::l. 'Ihe annual progress report: shall sec forth acc~lishment:s toward t!1e complete develo~'1t of the reservation, a schedule of anticipated progress, and ether ir.for:narion as may be prescribed w'le Board. Feasibility sttldies; detail :.::J (!Ccmomics, envi:ron":Ental, tmd m:1rketing studies ; water contracts; .:md any other studies and plans prepared in conjunction 111ith the reservation projects shall accornpsny the annual progress submitted ne:;;t following their comnletion, except that enviro::llrent:.:!l st.:.u:er:1<2:1t::.; and oc~cr reonrr.:s havin;:; ti::·l.?-liinits for revic;;v or o::mment shall be il'rr.iedlJ.r:ely U;JGn r:heir cC'ITIDlction. ,'u;y change in place of use, use, , submitted to and approved by t.':le Board shall be made in Sections 89-392 and 89-393, R. 1947. The Dcpart::~ent shall approve or deny the proposed change, ghri..ng due consideration to the 1:equiremoots of the public interest. No change shall be approved which does not meet all <lf t.,e pertinent criteria of Sectiwn 89-890, R. l947, for the issuance oi ~Yl crde~ adapting a reservation. provide for a public he:1ring oo any change in for the use of r:::servcd water, provided temporary ~~ts are subject to the te~'> and ccmiition;:; it considers ncccss;:;ry for the protection of the objectives l reports~ to ensure (l) of ;n1ticioat<=d dc'Ciimd for 'dater for the purpose the re~;erv1.'ltion to F.ateria.lize; (b) Inadc'<]uaCj of tt'le reservation facilities; (c) Noncompliance with M:mtana or federal statutes for emriromrental standards; (d) Incompatibility with local or regional planning efforts; (e) Use of the reserved waters for other than benefic:tc:l use as defined by M:mtana law; (f) Noncompliance any of the ccnditions of this Order. the Board may give notice and provide for a public hearing on whether to extend, m:Jdify or rewke a reservation. The public hearing will be held pursuant to the procedures of the Montana Administrative Procedure Act. 140. The rese:rvam: shall perfect the reservation by the year 2000 or by such extended period of t:i.me as the Board in its discretion may designate. 141. ~~ly ;rod all liability arising from the reservation is the sole responsi- bility of the reservant. In ordering a reservation adopted, the Board assumes no liability. 142. Unless othcnvise stated, conditions of this Order may be rrodified or withdrah'!1 by the Board at discretion should future circumstances warrant. In such event notice will be given, and, if objections are received, a hearing will be held, 143. If part of this Order is invalid, all valid parts re!'!llln in effect. If purt of this Order is invalid in one or oorc of aoplications, the oart remains in effec~ all \'a lid applications, 144 a.) Pa!Jgraphs No. 110 through 144, granting and conditioning all instream res~rvations for streams in the Yellowstone River Basin above the moth of the Bighorn at the Ye11owston:! River, excludi the watershed of the Bighorn River, are ordered and adopted effective at "f: !) o'clock ..t1 i~. on the /5 day of i{J. G. .. ,. IJ. ·-, 1978. l44b. Par·agraphs :·lo, 110 through 144, granting and conditioning all ins.tream rescrva ons, for streams m the Yellowstone River Basin below the mouth of the Bi rn River at the Yellowstone River, and including the watershed of the Bighorn River, are ordered and adopted effective at~~~/ o'cl of)~, 19/8, Board of and Conservation i 3EFO:ZE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF ~fONTANA --------------------=---~------------------------------------------ IN THE ~~TTER OF APPLICATION FOR RESERVATION OF WATER NO. 9940-r43B BY THE CITY OF LIVINGSTON ) ) ) FINDINGS OF FACT AND CON~ CLUSIONS OF LA\-1 OF APPLI- CATIOn NO. 9940-r43B -------------------------=-------~--------------------------------- The above-entitled matter came on regularly for hearing starting on or about August 8, 1977, Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly annointed Hear ~xaminer, James Driscoll._ The Apnlicant appeared bv and through its couns<!l of record, Robert Jovick. The }1ontana :>epartment of Natural ~esourccs and Conservation appeared and through its counsel of record, l<ichard Gordon. The Montana Department of Health and Mona Jamison. The Montana Department of Fish and Game a:opeared bv and through its counsel of record, F. ~~oodside 1-1right and Clayton Herron. The fourteen applicant conservation districts appeared by and through their counsel record, Gary Snaeth. The U.S. Department of the Interior appeared by and through its counsel of record, Thomas The City Billings appeared bv through its counsel of record, Calvin Calton. The l~ontana Power Comoany apneared by and through its counsel of record, Robert Woodahl. Intake Water Company aupeared by and through its counsel of record, Loble. Utah International Inc. , aymeared by through its counsel record, Urban Roth. '·!ontana Wildli f~ Federation anpcarcd through its counsel of record~ liam L. ~!adden. \<litnesses were dulv sworn, and oral and documentary evidence was introduced. The Board, having read and fully consi(lered the complete record, makes the following Findings Fact and Conclusions Law relating to the City of Livingston, Appl tion No. 9940-r43B: FINDL"lGS OF FACT 1. The City of Lh'"ingston has applied for a reservation of 15,060 acre- fc:at of water per year (a£/y) ',Jith a m.:Lv;imum diversionary flow rate of 20.8 cubic feet per second (cfs) frcm the Yellcxvsrone River to be used for l!l!lnicipal water SL'flply purposes for the year 2~07 ?inuings Related to the Purpose of the Reservation (89-890(3) (a) 2. The purpose of the reservation is to ensure water availability and .an adequate streamflow for the future needs of the City of Livingston and adjacEnt areas (City of Livingston, narrative at:tachme:nt submitted with Application 9940- r43B, pp. 2 and 3, Tr. VoL 1, Cross of A. T. Kersich, p. 3. It is est~blished to the satisfaction of ~~e Board that a purpose of tl1e reserva.tion has been shown (Finding 2) . Fir1din"s Related to the Need for the Reservation (39-890(3) (b) 4. A reservm:io.1 water is needed because it will secure a priority date for future developments that is earlier than the priority dates such developments would have permits lvere obtained irrrnedi:ltely before construction or use begzn (Draft EIS, Vol. :!. , p. 1). 5. Because of the incressed demands water from agriculture and industry, a reservation of water is needed to insure growth of the of Livingston (City of Li\.~gston.f Vol. I, Cross of Kersich. p. 6. A reservatim Wilter needed. The validit-y of the Citv of LiV'lfli?,StCI!'l' s exist:.n~ filed appropriatioos lm<> not b.;,en proven (T!: VoL 1, Cross p. 5!,). -75- 7. A rcscrmtioo of water is n<.'<.>deci· ·:he Yellcr.;stane River water is the ooly praclh::al S<JUrce m.micipnl WL~tcr available to the City of Livingston (Tr. VoL 1, Croos of Kersich, p. 75). a. A reservation of water needed. A reservation OCiUld be an assur- ance that the City of Livir.gstoo OCIUld have an adequate quantity of water available frcm the Yellowstone River for its !Wl'licipal water supply (City of Livingston, narrative attaclwent sul:mitted with Application No. 9940-r43B, p, 3). 9. The City of Livingston will need an increased water supply in the future. 10. The City of Livingston oan expect an increased population with associated incre::wed water neals (Cil;f of Livingston, rurrrative attaclml!!nt submitted with Ap- plication ~lo. 9940-r43B, p, 11. n1e City of Livingston may adoot a merropolitan water system serv:ing areas adjac::1:nt to t.'le area presently served r-rr. VoL 1, Cross of Kersich, p. 73). Industrial development: which would rely upon the of Livingston for ~~<at& ~'Upply is possible . VoL 1, Cr-oss of Kersich, p, 13. It is establi:;hed to the satisfaction of the Board that the need for a reservation of water has been shown (FirdL~S 4 through Findin1~s Related to ll.Jr.ount of \.Jater Necessarv for t.~e Prn::pose of the Reservation 89~ 390(3)(c)) n.e urbun population in Park County in 1970 was 6,383 (Draft EIS, VoL 15. The estimated ~'nter use for the year 1970 was 1,930 af/y (Draft EIS, VoL I, p. 101). 16. The OOlOUnt of the fo llowin11; p . ~t :."lJbmittoo of Livir~ston's reservatia1 request the year 2007 based en a VoL l, ~rsich, p. 11; City Livingston, narrative attach- ll. The population pro jc.ction is spec-uL-,,_l'Ie (Tr _ '!oL l, Cross of Kersich, pp. 53 and 59). The total .-mJOunt of • . .:at:r for is liberal and rr.ay include sa:!le l, Livin~ston in the year ::om will be lL (finding of Fact 19, Deparor-ent of Natural Resources), 20. The Deoartrnent of clatural Resources ooculation escimace is conservative the Cit;:; of Livingston for the year 2007 is .000 people. 22. The average per capita water use rate in Montana is well CNer 200 gpcd, the 11ontal"a averag.: projected bv Continental Resources is 267 gpcd, and the EPA invento-ry form fur the City of Livingston indicates gpcd (Tr. Vo '-. 1, Cross of Ker~ich. pp. 60. 61 and 62. rcspec~ively). 23. The gallons per capita per day tv:mer use rate of 500 gallons per annual 1 water us~ request is a liberal estimate of projected needs (Tr. Vol. 1, Cross of 1-'""rsich, p. 61). ''-"•r.c,,> use r.'ltcs listed L'1 Findings 22 and 23, 250 gpcd a reasr;:nble :1vcr;rge u:;to race for the City of Livingston for the year 2007. t/ith .'l population ,000 250 gallons per capita day, the City of Livin_gston wi.ll need 6,440 acre-feet per year of W<~ter 2007. A th:Jt would provid0 ,;ufficient -water to !Th.."Et the City of 1/ 1Y•:;tr:n' s projer:tcd requirem£'nts to the 're.-:rr 2007 the difference bel:'ween the ,930 a£/y). Board that the 1!li!OU!'lt of tvater c1ecemmry for !:he reservation to the year 2007 is 510 acre- Findings Related to the Public Interest (89-890(3)(d)) 28. ~lmicipal water use is recognized beneficial use of water under Montana law (Citv of Li~ston. narrative submitted with Application No. 9940-r43B, p. 3). Adoption of a rcserwu:ion for the City of Livi.?Jgston would havt a negligible awirounent:al ~act (Draft: EIS. Vol. I. pp. and 174). 30. Adopticn of a reservation for the Cit:r of Livingstcn would result in of approximatelY percent the flow diver:tc-d by the City of Livim;stoo (Tr. VoL l, Redirect of Kersich, p. 81). 3L Adoption of ,, reservation for the Cit'! Livingston would oot reduce significantlv 1 f:Jnding 30), of Livingston tvould provide econa:nic h>"ith App tication ;~o. 9940-r43B, p. or Board that the reservation the Cit'f Livingston for municipal water suoply use int0rest, and tb.at there will be progress toward accO!rplisl"ilrent of the purpose of the reservation with ressonable diligence in ac- cor donee pliiD (Findings 1 and through 32; City Livingston, lAW L Gruptcr 8, , R. and in particular, Section 89-890, R,C 2. If ordered adopted, a reservation must be ordered adopted in accordance with 8, Tide 89 D '" , illld :mv rules adopted thereunder, 1 "" AD •• "' _.,1e ~ p 11.cant ~ Llvirw:ston, is a political subdivision of the State O:l ibntana and as such "?ncitled to to reserve \vaters within tci.e State of 4 !Dntana ~ R.C. and any rules adopted thereunder. 1\ll pert:inc;nt statutes and the Stute of ~·!ontat.la have ~~en ad- hered to in review of this re~ervation application, both by the t!ontana Departlr.em: of Nat-Jral Resources and Conse:!:'.ration and bv the M:Jntana Board of Natural Resources and Conservation. :"act' an.d specifically based upon any aoplication appearing said Findings, all perti:~ent criteria ddine-3tec irJ Section 89-890, .H. 1947, acd - have hcen n:et ~ smtus of \.;ater rights cleirr.ed by th~ .>1.;"'::' ticnnt or.h:::;: thn,."1 those herein net.;rly applied fer~ nor does anyth.ing found 1Xl the s tatt1s of clai.T~:~d :.;u:c-:.1.~ rights of any other parry except .:.::-::'" to those ri;;hts herein ne'vll y applied for, to the e.':tent necessary to reach a conclusion herein. THE BOARD NATURAL RESOURCES .~ND CONSERVATION .;. STATE OF c!ONTANA ) IN THE HATTER OF Al'FLICAT FOR ) FACT AND CON~ CLUSIONS 0"' LAH OF APPLI~ CATION 1:0. 81+76-r4~BJ RESERVATION OF \lATE::<. NO. 8476~r!,J!lJ ) BY THE CITY OF BIG Tn!BER ) ) The abovc-entit.:lea matter came on regularl:1 for hearing starting on or ab::!at B . ' 1 Lc~ ,~s. 2'1ontana, fore the Boaru or '~atural :teso~.:rczs and Conacrvation ::md its duly appointed Hearing E~:aminer, James DriscolL Apnlicant arm eared by and· through its cou~sel of record, James Tulley. The ~ontana Department Natural servation a!)pear~d by and through counsel of re- cord, Richard Gordon. The Honf:ana Department of Health and Environ- mental Science~ appeared and through its counsel of record, !!ona Jmr:ison. The Nontana Deflartreent of Fish and Game '!noeared bv and through s counsel of record, Clavton Herron. The fourteen applicant conservntion dist apneared bv and through the counsel of record, Carr Spae tl1. Th0 C!. of Billings appeared by and through its counsel of f Cal t Woodahl. sworn, oral and documentary evidence was introduced. read and considered the comol~te record, follvwing Fact and Conclusions of Law relatinr~ to the Ci of B No. S476-r43BJ: 0:::' FACT 1. ':::'he ty of Big Timber has applied for a reservation (af/y) 'tli a maximum diversionary now rate 6.19 cubic per second (cfs) from the Boulder River, a tributary of the Yellowstone River, to be used for municipal water suooly ourposes for the year Z·J00. ' . ' · (Application No. 8476-r43bJ). Find~::C''S ;.zcl:!.l:.·2d t•.J c:h:o Purpose of the Reservation (89-890(3) (a)) 2. The purpose of the reservation is to ensure an adequate rnunic foreseeable future the City of Big Timbe::: (City of Bi:;s Timber, addendum to AmJlication No. 84 76- r43£J. p. L) • J. It i3 est:Z:.Ol::.;i-,.eQ to the sar:isfaction of the Board that a purpose the raservation has been shmm (Finding 2). Fi:-ulin,2;s ~" ted ta the N-:ed for the Rese:::vation (89-890(3) (b)) '~. • ... reservation of wat:er is needed because it will secure a . fucur2 .i~velopments is earl than the prior~ i Jat"s such developmcmts •·muld ':ave if Per!!'its ~:ere obtained before ~on~trucrion or use began (Draft EIS, Vol. I, p. 1), J. A r;.::scrvativn or:· t..:ater is needed bec:1use co~fieti tio!l for L tot:; Basin 1;,~·:1tcr exists (Citv of Big limber, addendum to tion 847CJ~ 3UJ. o. l; Tr. VoL 1, following p. 92, Testi~ of 'Iilli.am L, p. 2). 6. A r,~servatio:-1. of ~rJat:er is needed because it ,,;rould be an OL ., ,., "' would an adequate quantity the Bou1. for the ty Big Timber's l p* O"J Testimony of --e;, t (Tr. VoL ' " ' ~ ~ A rc~e~vatJ0n of water ~ht of Citv of Tinber t water be :mol not presentlv cv of lmDer, addendum to Anolication 'lo, 8476 p' l)' 3, A r~servar: of water 1s needed because local voters vJill construct additional \vater sunoly f11cilities until the expected need materializes (City of Big T:i.mber, tion No, 8476-•:1;1[\,I, nn, l ana 2). 9. T~e City of Big Timber has e~perienced since 1'?70 as evidenced the increase trai courts, individual housing starr::: ;lnd apartment nnits, as >:•ell as b:r the increase of communi tv ~-. 1 .'c.~. ;. , Testimon'' of Oscar Stephens), l J. .ie'lelo[Jment of oil, gas, and metallic minerals in the Ili;; Ti:nber area, .,,hich would lead to further grov7th the City (Citv of '3i.g addendum to Application ·~·he Cit~: of Bi.s Timber can e:--:oect an nonulation \!ai:<:r needs (Tr. Vol. l, following p. 86, Testimony ' . n. :... ; . TiMber ll need an increased vmter sUDf' in the future to meet its expected (Ci '"· l), of Big Timber, No. l:o the satisfaction the Board that the of water has been shown (Findings 4 through 12). (T\,~ -, ·~ !:'Te '. ,_,.· "-_ ... -;_, '-< .... '-' • 1.. Il n. 174; Tr. Vol. I, follov1ing TJ. B6, Testimony 13. of the Citv of TiMber is esr:i~ rna Vol. I_, Testimony of Stephc.ns, ). 16. The amount of <:he Ci ot Bi'; Timber's reservation request is based an ~ desi~n po~ui~Lion ~roj~ctio~ of 3,000 for the vtar 2000 (Cit? of Bi~ Timber. llowit'.i; T.1bb 3 of Zxhibit A submitted with lication :Ju. ·· ·~-r~:~E.1· ~c. ~!o~. I, Cross of Wenzel, p. 95). 1?64 v1as 200 llons p2r capita ~er day ( cd) (Ci.t;r o.L 0i•: Ti:noer, Tabl:2 L;,. of Exhi.jit A submitted with .t\:py>lication No. 347o-rLJBJ). ;:v =.:'r Els :'imber has uti:ized a per c3.pita 'tvater use rate of 1 .-. i\ r-, J.' .J\} 'd 1 ?l~..:s an additional one million gallons per dav for indLstrial uso, ~n calculating its request, (City of Big Timber, t:i.oi1 ;~o. S476-r4JBJ, o. 2), but t:here is insuffi- 19. A 250 g2llon per capita per dav is a reasonable average water UH~ rate for tl12 City of Rig Tl~ber. ted wac~r use in the year 1977 '=J l5 and 1 ULEion llf 3.!100 :.mu an averafle use rate of 250 af/y the 2000 ( t t r.vater t:o meet: - .J - requirements (842 af./ and the exi~ting vmter usage (477 af/y) (Findings a!/y. It is.eatablinhcd to the satisfaction of the Board that 365 af/y is the arnouru: of '.tater nccessarv ournose of the reservation to the yr-;ar (F s Ll·· through 22) . Findings 'telated to t:r.c Public 'nt.0rest (89-890(3) (d)) 24. Adoption of a reservation for the of Big Timber would have a negligible environmencal t (Draft EIS, Vol. I, pD. 173 and 174). the Big Timber would not reduce the flow of the Yellowstone River significantly (Draft EIS. Vol. I, p. 17 26. Adoncion of a reservation for the of Big Timber would contribute to the public heal and safe (Ci of Timber, addendum to Application . 8476-r43BJ, p. 2). Adont:.c:::1 of a rcserv·ation for the City of Bi~ Timber would provide economic benefits and contribute to community nlanning and orderl., o;rm~th and develooment of Big Timber, addendum to Application . 3476 3BJ, p. 2; Tr. Vol. I, following p. 86, Testirnony of S!:eph<!ns, p. 3; Tr. 1 o. 92, Testirnony of Wenzel, p. 2). It is estab shed to sa tis tion the Board that reservation of 365 af/y tram tho Boulder River, a tributary the Yellowstone ~iver, for City of Big Timber for municipal 1o1ater the publ interest, and there will be orogress toward :tccompii;;hmcnt the e of c:u:: reservation able Jiliscnce in :Accordance wi an established plan (Findin11;s 21, r, 1\pnlication fA'lCL!JSIONS OF lAi~ L a13pcer 3, 1947, !Uthorize the adoption 39, R.C.M. 1947, and in particular, Section 89-890, R.C.H. 1!1 the ront:ma Eoard of Natural Resources and Cv"'illlerva- tion nf orders resernn~ \.Jater tn qualified applicants far reservation of water. ordered .'!donced. a reservat:ion JruSt be ordered adopted in accordance with Chapter 8, Title 39, R. C.N. 1947, and any rules adopted thereunder. 3. The Applicant, City oi Big T:i.nber, is a political subdivision of the State of t-'.ontana and as such is entitled to apply to reserve waters within the State of 1947, and tmy rules adopted thereunder. All pertinent: scatutes and rules of the State of Montana have been ad- hered to in review of this rc3•1r1ation application, both by the M:Jntana Department of Natural Resources and Conservacion and by t.t'le M:Jntana Board of Natural Resources and Conservatian, 5. Based U?On the above Findings of Fact. and specifically based upon any ..:ouuldon, limit::tticn, or roodiflcation of the full application appearing in said Findinr,s, all pertinent criteria delineated in Section 89-890, R.C.M. 1947, and any rules adopted thereunder providir~ for the adoption of an order reserving water have been met. by the Applicant other ttun those herein newly applied for. nor does anything found hercirt ·ha:,.rc beari..11:; on the status cl~imed water rights of any other party except 8Dpliod for. to the extent necessary to reach ·'1 conclusion heretn. • • • BEFORE THE BOARD NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTru,A -~----------------------------=-------------------------------------- IN THE MATTER RESERVATION OF BY THE CITY OF APPLICATION FOR WATER NO, 9 7-r43Q COLU1!BUS ) ) ) ) ) FINDINGS FACT AND CON- IONS OF LAW OF APPLI- CATION NO, 9937-r43Q -----~--------------------------------------------------------------- .'!bove.:.entitlcd matt:er came on regularly for hearing starting on or about August 3. 1977, in Billin~s. Montana, before the Montana Board of Natur11.l Resources and Conservation and its duly appointed Applicant appeared by and through its counsel of HeartL The Honcana Department of Natural Resources and Conservation appeared by and through its counsel of ::ecord, Richard Gordon, fhe ?1oncana Department of Health and vironmental Sciences appeared by and through its counsel of record, ~!ona Jamison. The Montana Department of Fish and Game appeared by and through its counsel of record, Clayton Herron. The fourteen applicant conservation districts appeared and through their counsel of record, Gary Spaeth. The City of Billings appeared by and through its counsel of reco~·:l, Calvin Calton. The Nontana Power Company appeared by and through its counsel of record, Robert Woodahl, Witnesses were duly sworn, and oral and documentary evidence was introduced, The Board, having read and ful considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to the Back;p:ound Finding L The Ci Columbus has anplied a reservation of 2606 acre-feet of water per year (sf/ a oaximum diversionary flow rate of 3.6 cubic t ner second (cfs) fr::>m the Yellowstone River to be used for munictpal '"ater supol:' ourooses for th~ (App lie a Cion . 'c19J7 -r Findings Related co the ~urpose of the Reservation (89-890(3)(a)) 2. The purpose of the reservation is to ensure water avail- abilitv and an aci::;nuatc stre:tmflo~c: for the future needs of the City of Colu1ubus (Citv of Columbu:;, narrative attachment submitted with Application :ro. 9937-r4JQ, [L 3). 3. It is established to the sati:;faction of the Board that a purnose of the reservation has been sho•m (Finding 2). FindinEs ~elated to th~:;~Bd fur the Reservation (8D-890(3)(b)) 4. A reserv:1tion of water is needed because it will secure a priority date for future developments that is earlier than the priority dates such developments would have if permits were obtained immediately before'::onstruction or use began (Draft EIS, . I, p. 1). 5. A rescrv:ltior:: for ·~ater is needed. Comoetition for Yellowstone River water, esnecially from irrigated agriculture and industry, ts and is increasing lumbus, narrative attachment submitted Aoplication No. 9937-r43Q, p. 3; Tr. Vol 1, Cross of~-T. Kcrslch, r 116). li. A rcservat needed. City of Columbus's ting fi annropriations for its municipal water suvp has not been proven (Tr. Vol 1 following !L 38, Testi- Kersich, n. 8i. - 7. . . ;f::. Yel tone River water is the onl'? r;rac l, economic source of municipal \Jater labh• to •· o E Co 1 unbus t:"'' of Columbus~ narrative tted 1 t . o937-r430, n. 3). 8, A reservation or ~vat:er 1s needed. "tvould be an assurance that Cil:v o.: water available fror'l Ycl c;cone River for its municiryal ty of Columbus, narrative attachment submitted "lvith a "bedroom com_mtmi to of !lil · r ur: ueoni2 are living in Columbus and working in Billings, The newlv comoleted interstate high1:.•ay makes it onlv a to 40 r.1inute Columbus to Billings (Tr. ' p. 11 l i' C/, c .. 1n 2~--:p~c t an increased population (City ColUr.lbus, narrative attach~cnt sub~it . Vol. 1, to i lotvirtg p. T12stir!'!ony Kcrsich, p. 9; Tr. Val. 1, Cross of Kersich, p. 115). ll. the Citv oE Columbus' munic l W'lter sunp nns industry is nronosed. trial IJator usc, An example is the Timbcnveld Plant (Tr. VoL stimony h, p. 9; City Columbus narr::~tivc clttachrnenc lication ?9 ' p. 3) . 12. i.ndus ~:ti dcve c·:ould use the municipal 1' ill of K.,;rs h, . 114 il!~d 115). Tha ty t estahlished to the satis tion of the Board that tha 13). Finciings Related to A:'!ount or \•later Necessarv for the Puroose of the Reservat::.•.J::. f39-i39:J(3) (o)) 15. 7ha 1975 ponulation of at 1350 (Cit7 of Co , narr:n:ive attachment submitted with Appli.cation p. 2). 16. The :J.mounc ')!: tv of Columbus' reservation request is based on a desi~n ponulation projection of 4,500 in apnroximately the year (Tr. ilol. ~. follm.;ing n. 33, Testimony of Kersich, p. 9; Cit·· •)t Cv!uwbus, narrative attachment submitted with Appli- 17. The average municipal ner capita 'lfJater use rate in the Yel 212 gallons per canita per dav (gpcd) (Draft EIS. ~ol II, D. 4 ). 18. The Environmental [>rotection Agency's figure for the City of Columbu-;' c7a::er Jse ::.::~e is approxinacely 200 g!Jcd (Tr. Vol 1, Cros,; of 19. The Ci of Columbus has utilized a per canita \vater use rate of 5 d calculuting it3 request. (Tr. Vol. 1, following [>. 38. Testimony of Ker J p ~ 3; Cl Columbus, narrative th Application No. 9937-t p ~ 1) . ::'C. The 500 :;ned figure questionable Vol. l. Cross of 17 and 18. 250 gpcd is a reasonable average use rate for the City • Hith a population or 1, 0 and an average use rate of 250 gpcd, the City o·f lu:nbus' estimated •·rater use in the year 197 5 ~aa 379 of/y lFindings :: 1) ' 23. With a population of 4,500 and an average use rate of 250 gpcd, the City of Columbus 1..rould need 1, 262 y in the year (Findings 16 and 21). suffi.cient water to meet the city's projected increased requirements to the year is the difference between the orojected reouirements in 2007 (1,262 af/y) and t:he I (Findings 22 and 23). 25. It i1 cstabl bed to Ia tis faction the Board that SSJ af/y is che amount t:ater ::1ecessary for t:he purpo;;e of the -i reserv11,tion t:o the year :wm (Finciings 15 through 24). findin~s Related to the Public Interest (89-890(J)(d)) .. 26. "!unicinal tvater use is a recognized beneficial use of' lumbu1, narrative attachment submitted wich Application Ho. 9937-r43Q, pp. J and 4). AJvntion of a reservation the City of Columbus would have a negligible enviro!llllcmtal :.mpact (Draft EIS, VoL I, pp. 173 an.! 174}. 23, Adoption Zi reservation for the ty of Columbus would not reduce the fl'lw of llm·Ystone River significantly (Tr. VoL the City ColUlllbus is health rn:esent and future residents 1. 1' p' 38' of 9937- 30. 1\d!::lptioo oi a rcne;::vation for the ~fits and contribute to comrunit:t plar.ninr; of Colll!lbu'l would provide ecc'Oallic orderly growth and development (City CJf Colwtu<~, narrative attac.'l!rel!: SIJ!lmitted with ,\pplicadon No. 9937-r43Q, Tr. Vol. 1, Cross of Kersich, p, 116). 31. It is ®~Jtablished to the satisfnction of the Board that the reservation of 883 a!i/y from the Yell<X~stooe River for the Citv of Colurrbus for m.micipal water !rupp1y use is in the public interest, and th.:!t there will be progress toward. ac-~ ~lishment of 1::00 purpose of the reservation with reasonable dilieence in accord2!nce with the established No. 9937-r43Q ). 1947, <rut:.'IDrize the adoption by the M::lnti!n'i Beard of Nal::IJral Resources m1rl Conserva- tion of orders reserving <qater to qualified auplicents for reservation of water. 2. If ordered ado-~ted. a reservation ~JUSt be ordered adopted in ac=~ with Chapter 8. Title 89, :t,C.R 191.;7, and :my rules adopted tbcramder. 3. The Applicam:, of Columbus, is a political subdivision of the 1947, and any rJ.les adopted t:heramder. 4, All pertin;mt: statutes and rules of the State of M::ntamt have been ad- hered to i.n revie..J of this reservation application, both by the lmtana Dep~t of Narural Resocrr:ces ;md Conservation and by the M::nt::!!>.a Board of Nat!J';;;'al Resow:ces m1rl Corulervatioo. &1:! rules adtJj:Jtcd thee"' Jllder providing far: t.ha adoption of an orcler ~ei:VL'lg water hltve been !lll!t:, • .. .. herein have bearL-,g on in to thos~ these staOJS nor doos anything found of any other party except herein Ue':vly 'lpplied for, to the exr:ent necessary to BEFORE THE BOARD OF NATURAL RESOURCES AN:-CONSERVATION OF THE STATE OF MONTANA ) IN THE ~~TTER OF APPLICATION FOR ) RESERVATION OF WATER NO. 9939-r43QJ ) BY THE CITY OF LAUREL ) ) FINDINGS OF FACT M~D CON- CLUSIONS OF LAW OF APPLI- CATION ~0. 9939-r43QJ --------------------------------------------------------------------- The above-entitled matter cQme on regularly for hearing starting on or about August 8, 1977, in Billings, l1ontana, before the ~lantana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James DriscolL The Applicant appeared by and t~xough its counsel of record, Larry Herman. The ~ontana Department of Natural Resources and Conservation appeared by and through its counsel or record, Richard Gordon. The ~!ontana Department of Health and Environmental Sciences anpeared and through its counsel of record, Uona Jaoison. The Montana Department: of Fish and Game appeared by and through its counsel of r-2cord, Clavton Herron. '!he fourteen applicant conservation districts appeared by and through their counsel of record, Gary Spaeth. The City of Billings appeared by and through its counsel of r':lcord, C4lvin Calton. The t:ma Pm·Yer Company appeared by and through its counsel of record, Robert Woodahl. Witnesses were duly sworn, and oral and documentary evidence was introduced. The Board, having read ;:;nd fully considered the comolete record, makes the following Findings of Fact and lusions of Law relating to Ci of Laurel, Application No, 9'l3'<-r43QJ ' • • .. • - - F!:IDINGS OF FAw L The City of laurel r.as applied for a reservation of 16,330 acre-feet water per yemc (af/y) with a diversionary flow rate of . 25c'ubic feet per secood (cfs) fran the Yellowstone River to be used for municipal water supply pur- the vear Findings Related to the Puroose of the Reserv<!:ion (89-890(3) (a) 2. The purpose oi the reservadoo is to ensure water availability 'l:!ld an adequate :>tteamflow for the <:ut:ure of the Cir-y of Laurel and adjacent areas (City m' Lwrel, narrative attaciJmL>nt submitted with Application 9939-r43J, pp. 2 md 3, Tr, VoL l, Cross o:i ,\ .. T. Kersich, p. 3. It is cstablishcl t3 sdtisfaction of th£: Board that a purpose of the :reserwtion '!us bel!n sho.m (Finding · 4, A reservar1cn :.;ater needeJ because will secure a priority date for future developmrots that: is earlier tlBn priority dates such developments ll>lOUld have if pe:rrnics Wt!re oot:ained Um!ediately before C<:l!11Strueticn or use began (Draft EIS, Vol, p, l). 5. Because of the dco-.:mds for \vater fran agriculture and industry, needed to L'1sure r;ro .. "th of the City laurel (City of A reservatio:~ of t.;ater is needed· t:he validity of the City of Livingston's existing filed appropriations has not been prmm (Tr. . 1, Cross of Kersich, p. 54). 1, A reservation of water needed Yellcwstoru= River water is the only practical source municipal water avnilable to the City of laurel ('rr. Cross 8, A n!ller<~ation of water is needed A reser<~ation 1iiltlUld be em assm:- ooce tl'.at tb;:: Cit:}' of L<rurel wuld ha•1c ;m a~JeqlJa< • ., quantity of 1m!:& available from the Yellowstone River for its municipal water supply (City of Laurel, nerrative attac.'mlent submitted with Application No. 9939-r43QJ, j:L 3). 9, lhe City of Laurel will need an increased water ~'""PlY in the future, 10. The City of Laurel's pooulation is graNing rapidly (City of Laurel, ru~ITative attacli!r.ent submitted wi::h Application No, 9939-r43QJ, p, Tr. VoL 1, Redirect of Kersich, p, 128). lL The City of Laurel is experiencing growth as evidenced by additional subdivision<;, trailer court:s and increased industrial activity (Tr. Vol. I, Testim:Jny of Kerr,ich; narrative at:t:;~cl!ment submitted with Application No. 9939-r43QJ, p. 12. Hew in<.iustrial cievelopment is expected in the City of Laurel in the near future, and such development is likely to need water supplied by the City of Laurel (City of Laurel, nerrative attachrllent submitted with Application No. 9939-r43QJ, p. 13. Tne City of Laurel will need :m increased water supply in the future (city of Laurel, narrative attachment submitted with Application No, 9939-r43QJ, p. 14. is established to the satisfaction of the Board that the need fur a reservation of water has been shown (Findings 4 through Findings Related to Amount of Water Necessary for the Purpose of the Reservation (89-890(3)(c) 15. The populatir..n in the City of L.'!u:rel 1970 was 4,454 (Draft EIS. Vol. I, p. 174). 16. The City of :.aruel' a reservation request • 000 person:i the yesr (City Laurel. based en a projected population na:~:rati1re etta~t submitted with Application ttl. 9939-r43QJ, p. 2; T:c VoL I, follc.wing p. 38, Testim:Jny of Kersich, p. ~sr of porscns sarve:1 bv a water system (Tr. Vol. I, Cross of Kersich, p. 125; ' t '1 ' Face 24). 13. The Oeparor.anc of Natural Resources has esti.mteci the population of t.lte City of Laurel the yea 2000 to be 23.000 peonle. 19, The Depart::!lalt of Natural Resources ' population estmate for the year 2000 for the City of Laurel is conservative and not supported by evidenc0. 20. The average lwnicipal per ec-;pits water use rate in Yellowstone flasiu was 212 gpcd (Draft , VoL IL p. 2L The av&a~e m.nidpa1 per capits water use rat:e 1970 was 193 gpcd (Draft EIS, Vol. II. p. 405). 22. The City of L"lu:rel has utilized a Der capita water use rate gallws Per capica per of Kersich, p. 126). requ~st (Tr. VoL L Cross gpcd is a Laurel for the year ' zt,. 7r.•Jm the <lat'-l ,:.:: ~sem::'!d at ~hese proc::;c;<lirlr;s, a reasonable population :he City of LaurGL peoole. With a population of '30, 000 ar.d an avet:age use rate of 250 gallons per capita p& day, the Cit'; of LaureL lvoold need 8, 400 acre-feet per year of water. ;m ;Ner;:~ge usc rate of 250 gpcd, the City 1970 was 1,249 af/y (Findings 15 and A reservation tb.at 'wiJ<uu provide sufficie,>t tvater to meet City's projected increased requirement::; to •:c·'·"" r<~rements it'1 (j af/y), '~-t Findin;!s Related to the Public Interest \39~390(3) (d) >!unicipal water 15e is a rcco;;nizcd beneficial use of water under ~lantana ~ {City of Lal.!rel, M.."Tative attacl1mslt submitted with Application No. r43QJ, p. 3). Adoption of a rese;:vation of \vFlter for t.'"le Citv of Laurel ";ould have a negligible envirOI:!Ila'ltal impact (Draft EIS. VoL I, pp 173 and 174). 3L Adoption of a reserv:;.cion fo tcacer for the City of laurel would not reduce the flow of tha Yellcwstone River significant:ly (Draft EIS, Vol. l, p. 32. Adopt:i,on of a reservat:ion of '"ater for the Cicv of Laurel would provide public '1ealth benefits tion No. 9939-r43QJ, p. }) . Adoption of a resek~Jation of water for the of Laurel would provide ~oncrnic benefits and contribuce to planning and orderly grcwth and development (Tr. VoL 1, C.::oss of Kcrsich. p. 124, Tr. VoL 1, following p. 38, Luurei., r.arrative attacl:!rrent submitted with Application No. 9939-r43Ql, p. 34. It is escabli3hed to the satisfacricn oi the Board that tha reservation of 7,151 :J.f/y ~rem supply use is in the pwiic interest, mm of Laurel for m.micipal water there will be progress t0111ard ac- ccmplishment of the purpose of reservation ,.Jith reasonable diligence in accordance with ;m established plan (Findin)!s l and 2J .tt'1rough33; Cii:'J of Laurel, Application No. 9939-ri;JO.J). L Cl1.cnpter 8, Ti.tlc 89, 1947, .m1d L~ particular, Section 89-890, R.C.M. the Hontnna llo:1rd ticn of orders res~ng water to qunl ified applicants for rese:rvaticn of water. • • • • .. • - If ordered adopted, a reserv.:1tion l!USt be ordered adopted in accordance 8, Title 89, !C Laurel, sliJdivision State of Montana and as sue.'< is entitled w apolv to reserve waters within the State of 4, All pertinent statutes and rules of the State of Nontana have been oo- heced to in revi<!'N of this reservation application, bow."! by the M:ntana ~a:rt:!!Ent of 5, llased upon the acove Findi1'1gs of F::~cc 1li1d specifically based upon ;:my condition, l:Urit.:1tioo, or oooiiic.:1t:ion of the full application appearing in said L~ Section 39-390, 1947, and applied for, nor does anything found o:r any other parr,r ::xcept in r~latioD. to t:hcse righr:s herein u;c··nY applii!d for, to the extent necessary to reach a conclusion BEFORE THE BOARD OF NATURAL P~SOURCES AND CONSERVATION 0F THE STATE OF IN THE MATTER OF APPLICATION rOR RESERVATION OF WATER NO. 9646 ) ) ) ) ) FINDINGS FACT AND CLUSIO!lS OF LAW ~F APPLI- CATION NO. 9646-r43Q BY THE CITY OF BILLINGS The above-entitled matter came on regularly hearing starting on or about August 8, 1977, in Billings, Montana, before the ~1ontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll._ The Applicant appeared by and, through its counsel of record, Calvin Calton. The Montana Department of Natural :<tesouro~s and Conserv.:1tion appea.rad and through ics counsel of record, Richard Gordon. The !1ontana Department of Health and Environmental Sciences appeared by and through its counsel of re- cord, Nona Jamison. The Montana Department of Fish and Game appeared by .:md through its counsel of record, Clayton Herron. The fourteen applicant conservation districts appeared by and through their counsel of record, Gary Spaeth, The U.S. Department of the Interior appeared by and through ts counsel record, Robert l~oodahL The ~·!ontana Wildlife Federation appeared and through its counsel of record, iam t1adden, Environmental Information Center appeared by and through its counsel of record, liill Leaphart, Jr. tnesses were duly sworn, and oral and documentary evidence was introduced. The Board, having read and fully considered the complete record, llm¥ing f' Conclusions of Law relating to the l r43Q; - • OF FAcr L The City of Billings applied a reservation of 317,456 acre-feet of W<itro: per year with a diversionary flow rate of 1,190 cubic feet per ooccn::l (cfs) frm the Yellowo;tone River to be used for mmicip& W<ittr supply pw:pcses for the yea:: 2070(Applicatioo 9646-r4JQ), !md beneficial usee listed in R.C.M. 89-867(2). Findings Related to the Furoose of the Reservation (89-890(3) {a)) . 2. The purpose of the reservation is to erurure water IM!.ilsbility !md an adequ"lte streamflow for future needs of the City of Billings (City of Billings, Application No. 9646-r<IJQ). 3. It is established to the satisfaction of the Board that a purpose of the reeervatioo has been $l'lal;n (Finding Findin~;s Relaced l:o the Need for the Reservation (89-890(3) (b)) . for futm:~ dcvelop1JE~ts that is earlier !::h.:m the priority detee such ~l~ts would have if pen!lits were obtained :i!lmadiately before coost:ructicn or use began (Draft EIS, Vol. 1. p. 1). 5. A reservation of water is needed. River water ... dsts betl"'en nrunicipalities 11nd the other potential users (Tr. VoL following p. 134, Testimony of Gerald D. Unde=ccd, p. 'TI1l! validity of the City of Billings' filed appropriations fox: it!l llU!l.i<:ipal water supply has mt been proven (Tr. 2 Underwood, p. 7. A reservation of wc~ter is maeded. "<'h~ Yel~tone River ~tex is ~ mly practical, ecmallic source mmidpal water available to !:Tie City of Bil~ {City of BilHr.gs, ApplicatiC!ll l!io. 9646-:r43Q; n.'ll'rad~ at~rlllllmt IIIUI:Di~ mth Applimtloo No. 9646-:r4JQ; 2 ~-RIOd, pp. 18-:1). 8. . ' reservation of water is needed . the an adequate auandcy of water available for its r!!lmidpal vtater supply (Cicy of Billings, Application 9646-r43Q; narrative attachll1ent ool:rnitted with Application No. Tr. 2, I.Jnde:rwood, pp. 18-21). 9. Increased industrial development <lith associated :increased water needs can be expected, based on inquiries frcm potential industries (Tr. 2 am 65). pp. 64 10. The Cicy nf Billings ca."'! expect .::-.n ir..c:::-eased population with associated inc:i:cased wacer needs (Tr. 2 Under.·JOOd, p. 29). 2 Unde:rwood, p. 19). 12. It is established to the satisfaction of the Board that the need for a Findings Related to the ilmount of \.Jatar Necessary for the Pmpose of the Reservation (89-f190(3) (c)). 13. The 1970 pooulation ~he Billings was 61,581 (City of Billings, datil submLted ~vith L':hibi~ 4 of Aoplication No. 9646-r43Q, p. 1). The 1970 pooulation of t.'1e Billings water service area was ,000 (City of Billin~s, data subrnitt"d Exhibit 4 of Application No. 9646-r43Q, p. l). 15. The 1975 pcpubcion of the Clt'j of 13illings was appro:dmately 70,000 (City of Billings, Exhibit 5 of Application No. 9646-r43Q). t~..e BillJ 16. The 1975 population 31,000 (Cit'; of BillL,gs, E::lli!::,it 5 or Application No. 9646-r43Q). The projected populati0n of the City of Billingl> in ~ year 2000 is 131,000 E.ihibit 4 of Application No, 1). projected population of , Billings water service area for the ~, is 164.700 (City of Billings, data slll::lmitted with Exhi!:lit 4 of Application No. 19. A reasooal:l1e population figure t.he Billings water service srea is 164,700 the venr 2000 (Findings 9-11 and 13~13). 20. TI1e Sl!OOOt of the City of Billings resa:vation request is based oo a de- sign population projection for the year 2070 (City of Billings, 4 of Applica- tion 9646-r43n, pp. 1 through 3). The projected population of the City of Billings in the year 2070 is 6l10,000 (city of Billir.gs, data sutmit:ted <·lith Emibit 4 of Application t;_. 9646- r43Q, p. 1). Tne projected population 2070 is 6GO.GCO (Clt"y of Eillin:2;s, data submitted with Exhibit: 4 of Application No, 9646-r43Q, p. Tr. 2 Undernood, pp. 25-48, 71-75). 23. '!Ml City of Ililli..'lgs b~JSed (30/.,) c01u:inw~ncy reservation for industrial develOCl!IElt potantial (Tr, Vol. Cross oi Underwood). The thirT:y p,;rcem: (30%) cortingency for industrial develop.mnt potential is O'pcculative am is 3U?port:ed by insufficient evidence (Tr, Vol. 2; Cross of l.Jnd.er- wood). A reasonable ponulation figure i';,K c.~ Billi.'lgs water service area for the year :woo is 161•, 700 (Department of Natural Resources 19; City of Billings Findin•Y, 18). TI1e pooulation n:o.i the City of Billfr\'Ss is speculative and is not supported evidence . VoL 2, pp. ; Cross of Lndel::wood) 27. Us ina; t:ha population data for the year 2000, it is able to be projected for the year 2010 for N3ter service area. (Application No. 9646-r43Q). •'-'~Y projection 2010 is speculative not ~ by lruifident evidence (Eld'dbit 2 Application No. 9646~r43Q, 3). f i ~!. The population r the y';ar 2010 s n <octed to be 206,000 people for ce area. The avecage daily per capita 'vm::er ccnsurrption rate far t.l,e City of Billi.'1!;S in 1975 was ZlO gallv-ns per capita per day (gpcd) (Tr. VoL 2, Cross of 31. The a:verage municipal per canice wat:ar consumption rate in Yellowstone Cooncy in 1970 was 198 gpcd (Draft EIS, VoL II, p. 405). 32. The avera2;e municipal per carita vJater use rate in 1970 was gpcd (Draft EIS, . IL 405), 33. The City of Billin!Ss has calculated a water use rateof 250 gpcd far the year 2000 (City of Billings, Exhibit 6 of Application 9646-r43Q) . 34. Based on the average use rates listed in Findings through , 250 gpcd is a reasonable average use rate far the .City Billings far the year (Findings 30 through 33). \vith a population of ,000 and an average use rate of 204 gpcd, the ~Vith a \..rater servi,::.e population 206, 000 in 2010 and an average use rate of 250 gallons per capita per day, the City of Billings feet per year of water. need 57,679 acre- 3 7. A res~nmtion that would provide. sufficient water to meet the city's projected increased requirements to ~~e 2010 is the difference between the pro~ requi:n.:roent ,679 af/y) .::mu the <:::isti.'1g water us:1ge (16.450'af/y). 38. · [t is establi.r;hed to the satisfaction of the Beard that 41, af/y is the amount of water necessary for Lhe purpose of tb~ reservation to the Findings ~lated to ~,e Public Interest (89~890(3)(d}). 39. !Ulicipal water use a recognized beneficial use (City of Bil U.J:lll;S. r=rati ve attachnent subwitted with Applicatirn No. 9646- r43Q, p. 40. .i\.OO;Jtion of the reservation \•Jould not significantly re::h!ce the flow of the Yellowstone River 41. A<Lt'lDtiOO of the resermtion w<e<aCJ contribute to provide econ.anic ber:efits to tl1e carmunity of Billings, oorrative 'lttachment submitted with Application No. 9646-r43Q, p. 2). Adoption of a reservation of Billings would contribute to the publi: . n=ative :Jtt:::cb:nent subiJ!:itted with Application No. 9646-r4JQ, p. 2). It is established to satisfaction of the Board that the reservation of 41,229 :u/y from the Yellwv~scone River for the City of Billings for m.micipal water suppbr 1JSe is in of the (Find.L';~s in particular, Section 89-390, R. C .M. uf Natural Resources and Conserva- tion of orcicrs reserving \vat:er to qualified applicants for reservation of water. with Chapter o. Title St.::te 4. All . a reser1ation nust be ordered adopted in accordance 1947, and any rules adooted theramder. of entitl~d to a political subdivision of tel reserve v<aters within the St:1te of and any rules adopted t.~ereunder. :;.catutes and rules of tho State of M:Jnt:ana have bean ad- reservacion a!!plicacioo, both by t.lw lut<ma Departmem: of Fact, and gpecificallv based won anv * « .. " condition, limitation, or rr.odification of the full application appearing in said Find4,gs, all pertinent criteria delineated in Section 89-890, R.C.M. 1947, and &:rJ rules adopted t.~reunrler providing fer t.l:le adoption of an order reserving water have been met. Nothing found herein has bearing upon t:."le status herein have bem:inr,; on the scams of claimed water rights of any other party except in relation to those rights nerein netdy applied for, to WE extent necessary to rooch a conclusion herein. .. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA ---··----·· --"~ •*= ~----~-=-----~---== ~-== -----= ------_____ ... ______ ---~---- IN THE t1A'ITER OF APPLICATION FOR RESERVATION HATER NO. 54 BY THE CITY OF HILES CITY ) ) ) ) ) FINDINGS OF FACT AND CON~ CLUSIONS LAt.l OF APPLI~ CATION NO. 9 '2K -------------------------=---------------=--------------------------- The above~entitled matter came on regularly for hearing starting on or about August 10, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and ita duly appointed Hearing Examiner, James Driscoll. The App~~~~ut appe~red without aid of counsel. The Montana Department of Natural Resources and Conservation appeared by and through its counsel record, Richard Gordon. The Montana Deoartment of Health and Environmental Sciences aopeared by and through ita counsel of record, Mona Jamison, The Montana Department of Fish and Game appeared by and through its counsel record, Clayton Herron and F. v,;oodside Hright. The fourteen applicant conservation ciistricts appeared and through their counsel record, Gary Spaeth. The of Billings appeared by and through ita counsel of record, Calvin Calton. The Montana Power Company appeared by and through its counsel of record, Robert Woodahl. The Intake Water Company aopeared by and through its counsel of record, Henry Loble. tneasea were duly sworn, and oral and documentary evidence wa!l introduced. The Board, having read and fully considered the complete record makes the following Findings of Fact and Conclusions of Law relating to the City of Niles City, Application 9954~r42K: FINDINGS OF FAcr The City of Miles City has applied for a reservation of 21,720 acre-feet of water per year (af/y) with a nmmm diversionary flow rate of 30 cubic feet per socood (cfs) fran the Yellowstone !liver, to be used for municipal water supply £or !:hi; year 2·),)J, (Application No. 9954-r42K), 2. The annual 8!llJIJnt of the City of Miles s water reservation request is based on a projected l!laldllun daily water diversion rather than an average daily water diversion (Tr. Vol. Direct: of Bill Enright, p. 9). Findings Related t:o the Purpose of the Reservation (89-890(3)(a)) 3. The purpose of the r!!servation to ensure water availability for da!Jesltic use, lawn watering, and fire protection needs of the Ci~" of Miles City (City of Miles City, letter submitted with Applic~tion No. 9954-r42K, p. 4. ·It is established to the satisfaction of the Board theta purpose of the reservation has been shown (Finding Findirn>;s Related to the Need for the Reservation (89-890(3) (b) 5. A reservation of water is needed because it will secure a priority date for future developments that is earlier than the priority dates such developments WOi.lld have if permits were obtained imnediately before coost:ructioo or use began (Draft EIS, Vol. I, p. 1). A reservatioo of water is needed. 7he~e . is CCl!l'petitioo for water in the Yellat~tooe BasL"1 which affect the ability of the applicant to obtain a water right by permit in the future (Draft EIS, VoL I, p, 1) . 7, A reservation of water is needed , The YellOWBtone River water is the ooly source of municipal water available to the City Miles City (Tr. Vol, 3, Gross of r:."!right, pp. 1J .:md lt;) , 8. A reservation of water City of Miles City • water plan as the need for such coostrwction and expansion arises (Tr. VoL 3, Cross of Etirlght, p. 9. The City of wo major subC'J.visivr.s and coal and energy <:L.ovelq:;rnents (Tr. VoL 3, Cross of Enright. p. 10). 10. The City of Miles City can expect an increased population with associated increased water needs (City of Miles City, letter submitted '!trlth Application No. 9954-r42K, p. Tr. VoL 3, fr.xect of Enright, pp. 8 & 11. The City of Miles provides ~iiater to residenr.:s outside the city will offer ~!iles Cit::' water se1rv:~.ce to 2,000 persons presently residing within one !l!ile of the city limits of Miles City. 12. The City of Miles City needs an increased water supply for the future (City Niles City, letter su!:rnitted with Applicaticn No. 9954-r42K, p. 13. A reserv.:1tion of ~vater is needed because it would provide water to satisfy demands of present .:1r.d future residents and development (City of Miles City, letter submitted 'dth Application clo, 9954-r42K, p. 1; Tr. 3, Direct of Enright, p. 9) . 14. It is estal.;lishcd to the satisfaction of the Bosrd that the need for a reservation of •rater has been shcr,m . Findings Related to the Amount of Water Necessary for the l:'urpose of the Reservation (89-890(3) (c)) 15. The 1976 peculation of the City Miles City was 9, 700 (Tr. VoL 3, Direct of Enright, p. 16. 'The City Direct 11iles 's reservation request, to approximately the year a population of JLOOO (Tr, 3, and 13; City of ,"d1es City, letter S'Jbmittsd with !loth urb.m in Custer r:otmty decreased in the decade fran 1%0 LO 1970. 111:: countywide population also <lecreased between and 1974 (Draft JUS, VoL !, p. 101). 18. A population projection ,000 for the City of Miles City to the year 19. The Department of Natural Resources has estimated a desir,n population for the City of Miles City for the year 2000 to be 20,000 people (Tr. VoL 3, p. 3). 20. The Departmem:: of Natural Resources' population projection for the City of ~liles City for the year 2000 is based an a study an engineering firm which ZL In planning the se~•age treatment plant, the enginear:ing firm consulted with the City-County P1ann:ing Organization, the Citv Council and the Yellowstone- Tongue Areawide Planning Organization (Department of Natural Resources Finding of Fact 23). A reasonable population estL.ate for the City of ~les City in the year 2000 is 20,000 people. 23. 1he av.:rrage municipal per capita water use rate in the Yellowstone Basin in 1970 was 212 gpcd (Draft EIS, . II, p. 24. The average municipal p.:rr capita Hater use rate in Custer County in 1970 was 215 grcd (Draft EIS, VtJL II, p. 405) . • average per capita water use rate for the City of Miles City is 230 • gpcd (Tr. . 3, Cross of Enright, p. 14). 26. For the year , an average per capita water use rate of approximately 250 gpcd projected for the City of,.,"''""' City (Tr. VoL 3, Cros2 of Enright:, p . • The 630 gallons per capita pEe~: day utilized by the City of Miles City in • ~t:!.ng its reservation is excessive and not supported by evidence. 28. Based en the current average and projected ·..;ater use rates listed in F:L~ings througr . .::6, 250 gpcd is a reasonable average use rate for the City of Miles City for the year 20ll0 . 29. With a population of 9,700 ;md an average use rate of 250 gpcd, the City of Miles City's estimated water use in the year 1976 was 2,721 af/y. With a population of about 20.000 and an average use rate of 250 gpcd, the Cit'; of !1i1es City w:uld need 5,610 af/y in the year 2000. 31. A reservation that would provide sufficient water to meet the city's projected increased requirements to the year 2000 is tha difference be~ the prcr af/y). 32. It i!> established to the satisfaction of the Board that 2,889 af/y is tha ~t: of water necessary for tha purpose of the reservation to the year 2000. Findin¥ Related to the PUblic Interest (39-890(3) (d)) Adoption of a reservation for the of Miles City would have a negligible emriron:nental :L~f!ct (Draft EIS, VoL I, p. 174). 34. At this time~ about percent of the flow diverted for tha City of Miles City is returned to 35. Adoption of a reservation for the City of ~iiles City ~ not reduce t.'le flow of the Yell'J'Aistme River signific1lrltly (Draft EIS, VoL I pp. 173 174; Fi:nd:in~; 36. IWopticm of a reservation for rl1c City of Miles City would contribute i:o the City's facility pL!mn:ing (Cit'J of lliles ticn No. 9954-z42K, p. 1). the Board that the reservation of 2,8B9 from Yellowstone River municipal water supply use is in the public interest, a.'1d that there will be progress toward ac- cornplist=t of the purpose the reservation ,,nth reasonable diligence in accord- ance tnth an established pian (Finding L a, and through 36; City of Hiles City, Application No. 9954-r42K). ~ L Chapter 8, Title 89, R. C.M. 1947, and in particular, Section 89-890, J1. 1947, a:uthod;:e che adoption by the M::lntana Board tion of orders reser:inv; ~~ater to qualified applicants for reservation of water. 2. ordered adopteo, a reservation !lUSt be ordered adopted in accordance with Chapcer 8, Title 89, R. 1947, and any rules adopted thereunder. 3. The Applicant, City of ~tiles City, is a political subdivision of the St.1te of :'::m:ana and as such is entitled to apply to reserve ~.;aters within the State of 1947, and any rules adopted thereunder, 4. All per~inetnt statutes and rules of the State of Montana have been ad- hered to i:1 revi~\v of this reservation application, both by the Montana Departlile!lt of Natural Hcsources and Conse~rvation and by the Hontana Board of Natural Resources and Conservation. 5. Based upon the above Findings of Fact, and specifically based upon any condition, limitation, or modificatiG'fl of ~he f<Jll application appearing in said Findi.VJus, ail pertinent criteri:l delineated in Section 89-890, R.C.M, 1947, and any rules adopted theru1.'lder prov:tding for the adoption of an order reserving '.ater beari.VJP, upon the status of weter rights clai!:Jled by the 1\pplic.:mt ocher c.lun those heroin ""'·'"-v applied for, nor does anything foond cla:iJru=d watar rights of any other percy except 3ttcn to nc.'lv ly aoplied to the extent necessary to • BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF HONTANA -------------------------------------------··------------------------- IN THE UATTER OF APPLICATION FOR RESERVATION OF \\!ATER NO. 9938-r42M BY THE CITY OF GLENDIVE ) ) ) ) ) FINDINGS OF CLUSIONS OF NO. FACT AND CON- LAW OF APPLI- -~·42M --------------------------------------------------------------------- The above-entitled matter came on regularly for hearing starting on or about August 10, 77, in lings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner. v'amcs Dris::~l: ~c::nt aooeared aid of counsel. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The Sciences appeared by and through its counsel record, :1cma Jamison. The Montana Depart- ment of Fish and Game appeared and through its counsel of record, Clayton Herron and F. Woodside ;.;ri ···.:. fyurteen applicant con- servation districts appeared by and :::hrough their counsel of record, Gary Spaeth. The ~1ontana Power Company appeared by and through counsel of -rccord, Robert vloodai1L tnesses were duly sworn, and oral docU!!lcn tar•• evidence was ir:troduced. The Board, having read and fully considered the complete record, makes .~ fn't Findings c Conclus of Law relating to the of Glendive, Appl tion 9938-r42~1: -11 Fif..'DINGS OF FAcr The City of Glendive ·laS applied for a reservation of 12,756.9 acre-feet of water per year , w~th a rniY~ diversionary flow rate of 17.62 cubic feet per second (cfs) from the YellvNStone River to be used for llll.b'1icipal water supply purposes for the year 2'J.J7 (Application No. 993B-r4~1). Findings Related to the Ptnyose of the Reservation (89-890(3)(a)) 2. The purpose of the reservation is to ensure water availability and an adequate streamflow for the future needs of the City of Glendive (City of Glendive, narrative attachment submitted with Application No. 9938-r42.11, p. 3. It is established to the satisfaction of the Board that a purpose of the reservation has been shewn (Findin11; Findings Related to the Need for the Reservarion (89-890(3)(b)) A reservation water is needed because will secure a priority date for future developments that Ls earlier than the priority dates such developments would have if pennits were obtain·::d i::m:;diately before the const:ruction or use began (Draft EIS, Vol. I, p. 1). A reservation of water is needed because competition for Yellovmtone River water, especially from irri;;ated agriculture and coal-related industry, exists of Glendive, na.rrative at::achmenr subrrdtted with Application No. 9938-r42M, p. 3)' 6. A reservation of ~·later needed. Tc~e validity of ~~e of proven (Tr. Vol. l, following p. 38, Testimony A. T. Kersich, p. 5; City of Glendive, narrative attachmant submitted with Applicaticn No. 993S-r42M, p. 1; Tr, Vol. 3, Cross of Kersich, p, 25). A reservation of water needed. Yellowstone River water is the municipal water available to the City of Glendive 1 • 4 of Glendive, narrative attachment submitted with Application No. 9938-r42:M, p. ~; Tr. Vol. 3, Cross of Kersic~. p. &eniro, p. 6). ; Tr. VoL l, following p. 38, Testimony A reservation of water is needed . City of Glendive would have en adequate quantity of water available from the Yellao~Stooe River for its !!!ll11icipal water supply of Glendive, narrative attachrrent submitt:ed wit:h Applicat:ion No. 9938-r4~!, p. 3; VoL 1, follarlng p. 38, Te.o;tim:;ey of Kersich, p. 6). 9. In the future, coal production activity will increase the City of Glendive's water needs (Tr. VoL 1, folludin>?; p. , Testimony of Kersich) . 10. Other business activity, including the construction of a slaughtering plant, will cause an increase demand for water by of Glendive (Tr. VoL 3, TestiMony of Ker3i:r., 11. The City of Glendive can eJq:Ject an increased population with asll'lCiated increased ~mter needs (City of Glendive, narrative attachmalt sul:mlitted with Applica- tion No. 9938-r42H, p. :::, Tr. VoL 3, Cross of Kersich, p. 30; Tr. VoL 1, following p. 38, Testimony of K~rsich, p. 6). 12. The City of Glendive will need an increased water supply in the future (City Glendive, ru:n:r:n:ive attachment submitted wit.h Application No. 9938-r42M, It established to the sati.sfaction of the Eoanl that the need for a reservation of water has been sho:m (Findina;s '• through 8) . Findings ~:elated to /1!!\_"1\\Dt of I.Jater Necessary for the Purpose of the Reservation (89-89J(3)(c)) The popubticn of EIS, Vol. I, p. 174). 15. ~aiDt City Gl._>ndivc in the year 1970 was 6,305 (Draft Glendive's reservation r~t is based on a :s.Jr (Tr VoL l, follv.ring p. Cur.;prehen.slve l~ 3<' outside consultant in 1970 forecasts a low population of 13,400 and a high population of 14,100 for the of Glendive fo:r the year 1990 (City of Glendive, narrative attacl:!ment submitted with Application No. 9938-r42f1. p. Cit:v of Glendive arc dependent on such currently 1.JI:'lknown growth factors as the e.'!:tent of energy development in the region of Glendive, narrative attachrr.ent submitted with Application No. 9938-r42H, p. 4). 18. The desim population projection of the City of Glendive is excessive and speculative and is not suoported by the evidence. population for the of Glendive for the year can be projected to be 18,000 pecple. 20. The average municipal per canita ~~ater use rate in the Yel:l.owstone Basin in 1970 was 212 gpcd (Draft EIS, Vol. II, p. 405). 21. The average municipal per ca!'i::t water use rate in Dawson County 1970 was 179 gpcd (Draft EIS, Vol. II, p. 405). 22. TI1e 500 gallons compute their reservation request per day utilized by the City of Glendive to c::<:ccssive and not supported by evidence. 23. A reasoru:~ble avera;;c 1..rater use rate for the City of Glendive for the year 200 7 is 250 gall0ns per c:1pita per day. 24. \-lith a population of about 18,000 and an average use rate of 250 gpcd, the City of Glendive would need 5,049 af/y the year 2007. 25. a population 6, <md a11 average use rate of 250 gpcd, the of Glendive's est:il!!at:ed water use in the yeJir 1970 was l ,768 af/y. A reservation sufficient water to meet the city's pro- jected increased requirement;:; to the year 2007 is the difference between the pro- ' Jec~cri ::equircmentn in 7 (5,049 II ' ' • It the Board that 3,281 af/y is amount of •mter necess<:t~, for the pUc-pose of the reservation to the year 2007. 28. Mmicioal ~mter use is a !"ecognizcd beneficial use of water under M:ntana liJ.';,~ (City of Glendive. narrati'Je attachment subaitted with Application No. 9938- r42H, p. 4). 29. Adoption a reserv~tion for the of Glendive would have a negligible environmental impact (Dr~ft EIS. I, p. 174), 30. At t.l-Jis . ahout 40 percer:t ~~o diverted for the of (Tr. Vol. 3, Cross of Kersich, p. 32). 31. Adoption of a reservation of Glendive would oot reduce. the flew of the Yellowstone River si;.'tli£icantlv (Draft EIS, VoL I, pp. 173 and 174; Tr. VoL following p. 38, Testimony of Kerskh. p. Adoption of .: reservation d:e ·~ity of Glendive would contribute to the public health (Cit;r o£ Glenclive, n.:rrrative attachment sul:Jmittro with Application No. 9938-r42H, p. 33. Adcnticn ·~[ a reservation for the Cit'J of Glendive would provide economic benefits and contribute to conrnunicy plnnnin~. ~~ orderly growth and development (City Glendive, narr.:u:ive attachment submitted with Application No. 9938-r42H, 3 and 4; 1r. Vol. 3, Cross of Kersich, p. ; Tr. Vol. 1, following p. 38, Testim:Jny of Kersich, p. 6). It is established to satisfaction 3,231 af/v frm the Yellowstone River for the Cit'! Glendive for municipal water supply purposes the public • and that there will be progress oowm:d accCl'llpl.ishment of the of the reservation with reasCJllable diligence in ;u::c~dlnce t?ith an established plm (FindL'1J:;S 1 ;md 28 thr~J~Jfh 33; City of l. cbapter 0, and particuli:lr, Section 89-890, R.C.H, 1947, authorize the zdooc:.:Jl1 the Montana Board of Natural Resourcea and Ccnserva- tion of orders res ervin~ water to qualified applicants for reaervation of water. 2. If ordered adopted, a reservation !ruSt be ordered adopted in accordance with Chapter 8, Title ;:>9, R.C, 1947, and ~•Y rules adopted thereunder. J. The Applicant. of Gle.1di ve. a political subdivision of the State of Mont~~ and as sucn is entitled to apply to reserve waters within the State of , and any rules edopted thereunder. 4. Ali pertinent statutes and rules of the State of Montana have been ad- he:red to in revie-w of this rese-rvation application, both by the N!:ntana Department • Natur:~l Resources and Conservation and by the Montana Board of Natural Resources and • J, Based upon the abo11e Findings cf Fact, and specifically based upon any condition, lir.itation, or modification of the full application appearing said Findings, all pertinent criteria delineated it1 Section 89-890, R. 1947, and any :rules ".!dopted thereunder providing for the adoption of an order :resa:ving water have been met:. o. nothing found herein has bearing upon the status of water rights clai.-red by the 1\ppli"ant otncr than t."lose hereL< newly applied for, nor does anything found herein luve bear~ on the status of da:ilr.ed water :rights of any other party except - in t elation to those b,,,,,ca herein newly applied for, to the extent necessary to a conclusion h<2rei11~ - BEFORE NATURl\.L RESOURCES OF THE STATE IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9953-r42J BY THE TOWN OF BROADUS BOARD CONSERVATION OF MONTANA ) ) ) \ FINDINGS OF CLUSIONS OF CATION NO. AND CON- APPLI~ --------------------------------=------------------------------------ The above-entitled matter carne on regularly for hearing starting on or about Aug us::. ~iJ, 1977, llings, Uontana, before the Montana Consecmtion and its duly appointed Hearing Examiner, J :u;:es ll; the Applicant did not aPpear at the hearing nor was any d = ~est offered. The JoarJ, having read considered the complete record, of Fact ~nd Conclusions of relating to the Tow-n of Broadus, Application No. 9953-r42J: FACT Background Findin~ 1. The Town of Broadus s aoplied for a reservation of 605 acre- feet of water pilr ye:n (af/y) lvith a maximum diversionary rate of 0.84 cubic feet per second (cfs) from ground water to be used for municipal water supply purposes fo:· the year 1995. with Application No. 9953-r42J). r arrative attachment submitted Fin~in~s Pelat"d to the Purpose of the Reservation (89-890(3)(a)) 2. The pur;;osr:; of the reservat a municipal water suoply mercial, industrial, lawn 111atering, ci is to ensure for the To~m of stic, fire protection, com- park and related uses (Town Broadus, Application . 99 ~r42J; Town Broadus, narrative attachment submitted with Application No. 9953 ). 3. It is established to the satisfaction of the Board that a purpose of the reservation has been shown (Finding 2). Findings Related to the Need for the Reservation (89-8 (3) (b)) 4. A reservation of ground water is needed because will secure a priority date for future developments that is earlier than the priority dates such developments would have permits were obtained immediately before construction or use began (Drafts EIS, Vol. 1, p. 1). 5. A reservation of ground water is needed because coal develop- ment in the vacinity of the Town of Broadus increase the town's growch and thus increase the cown_' s need water (Town Broadus, narrative attachment submitted with Application No. 9953 ) . A reservation of ground water is needed because total dissolved solid (TDS) concentrations in surface water in the Tongue and Powder subbasins frequent exceed the upper limit (500 milligrams per liter) for drinking water 1nd ;,;ould thc:r2fore require expensive treatment (Draft EIS, Vol. 11, p. 259). 7. A reservation of ground water needed because municipal and domestic wat;,r users l"ay be forced to find water sources other than surface water (Draft EIS, Vol. 11, p, 9). 8. A reservation p,round water is needed because no municiDali~ ties in the Tougue and Powder subbasins use surface water (Draft EIS, VoL 11, p. 9). 9. A reservation of ground water is needed because the town of Broadus ~.urrently uses ground water and antleipates that its future water (Town of Broadus, nar~ with 1 ~cut ~ 10. It is e~tablished to the satisfact the Board that the need for a reservacic~ of tv:Icer has been Findin!)S Related to the Amount of vlat:er Ilecessarv for the Purnose of 11. The 1::77 porm·lation of the Totm of Broadus is estimated at 800 (Town of Broadus, narrative atto.chment submitted ~1ith \pplica- tion No. 9953-r42J; Draft EIS, Vol. 1, p. 174). 12. Coal development in tne vacini of the Town of Broadus would i?::clude gro"Zvr:h ;:,f the town a concurrent growth in the to~m s water needs (Tcnm of Broadus, nan:C!t attacr~ent submitted with Application No. 9953 ). lJ. The Town of Broadus nrojects its copulation to be 4,000 persons in the year 1995 (To~~ of Broadus, narrative attachment sub- mitted with Application No. 9953~r42J), 14, A Yellowstone Bas ponulation simulation for the 2 prepared :ana Department Community Affairs for the Yello·vs tone lmpac t S projects a population of 4,138 persons for Broadus under a low level of develooment, 6,096 under an intermediate level of development, and 10, under a high level development (Draft EIS, L II, p, 406). An estimate 4,000 nersons for the Broadus year 1995 16. The reasonable and ooss Broadus has a per low (Findings 11 through 14), ta vater use rate of 122 c:tpita ncr (gpcd) (Tov.rn of ment !:ted wi Atmlication No, 9953<c42J), 17. Several years ago, 148 gocd ~vas es timat:ed to be the average resident comrnerc l, attachment submitted ;vith Apolication No. 9 3-r42J, cit Volume r of E. E. Seelye). 18. The average municinal rer capita water use rate in the Yellowstone Basin in 1970 tvas 21::' :;ned (Draft EIS, VoL II, n. 405). 19. A v,va r.e.;: use rate 135 gpcci, '·las used by the Tovm of Broadus in calculating its m1.o::er reservation r::quest (Town of Broadus, narrative attachment submitted with ApPlication 9953 ) . 20. A rcas le avcr3ge water use rate the Town of Broadus for the year l ass~~ing some industrial development will occur in the future and use 'vatE:r from the municipal water supp system, is 250 gpcd (Findings 12 and 16 through 19). 21. With a nopulac of 300 and an average use rate of 250 gpcd, the Tmm of Broadus' osti!'lJted ~·mter use in the year 1077 was 224 af/v (Finci1ngs ll and 20). With a nonulatlon and an everage use rate of 250 g!'cd, the To~m 0f Broadus '"'"ould need l, 122 af/y in the year l995 (Findings 15 and 2 23. A reservation t vJOulJ provide sufficient water to rneet the Tm·m of Rroadus' :n:o j ec the difference lletween the p sed requirements to the year 1995 ected requirements in the year 1995 (1,122 af/v) und the exist W<ltcr u~ (224 af/ (Findings 21 and 22). 24 It is established to the satisfaction of the Board that 898 y is the amount'of water neces ~uroose of the reservation • to the vear (Findings through 23). 25. The To~m of Broz1dus has applied for the reservation of only 605 af/y (Town of Broadus, licati.on No. 53 2J) 26. It is established to the sa tis tion of the Board that 605 is a conservative amount water necessary for the purpose of the reservation to the 1995 (Findings 11 through 27. Adoption of a reservation of ground water for the To~m of Broadus would have a negligible environmental impact (Draft EIS, ~74). VoL I, po. 173 28. Adootion Broadus would not :s reservation of ground water for the Town of rec: ::he flmJ of the Yellowstone River (Draft EIS, Vol. l, n. 174). 29. Adoption of a reservation of ground vJater for the Town of Broadus would help provide anticipated domes , fire protec com!llercial, industrial, I.a1m tvatering, city parks, and related uses ('l'•.l'-'11 of Broadus, narrative attachment subMitted with APPlication 9953-r42J). 30. Adootion of a reservation for the Town of Broadus would provide a future supply of ground water in an area tvhere the develon- mcnt of surface water for municipal purposes is not practical (Find- ings 6 through Q). 31. Adoot of a rcaervation of 605 /y ground water for the Town of Broadus rloes not reserve an excessive amount of tvater (Findings 24 through 26) . 32, It established to satisfaction the Board that the nc:servation 605 af/y of ground wster for the Town of Broadus for in the interest and that there 1 e with an ~stablished olan ;: . 1' tion No, 53-r42J), 1. Chapter 8, Title 89, C.H. 1947 ~ and parti~Jlar, Section 89-890, R.C,M, 1947, D.U~~orize the adoption by Montana Board Natural Resources and Conserva- tion of orders reserv'...nl", waxer co qualified applicants for reservation of water. If ordered a.eapced, a rese:::vacion mJSt be ordered adopted in accordance with Chapter 8, Title 89, R.C. 194 7 , and any n~les adopted thereunder. 3. The Applicant, Town of Broadus. is a political subdivision of the State of Montana and as such is em:it:led to apply to reserve waters within the State of 1947, and any rules adopted thereunder. 4, All pertinent stJtutes a"'ci rules of the State of M:ntana have been adhered to in review of this reservation application, both by ~'le M:ntana Department of Natural P-esoo:rces and Conservation and by the M:ntnna Board of Natural Resources and Conservation. 5. Bnsed upon the above Findings of Fact, and specifically based upon any condition, limitation, or =dificacion of the full application appearing in said Findings, all pertinent c::-iteria delineated i."l Section 89-090, R.C.~1. 1947, and the adoption an order reserving water 6. Nothing found herein bas bearing upon the stutus of water tights claimed by the AppHcant ocher than those herein TIL'Wly applied far:, nor does anything found herein have on the status cf clai."11ec! w<l.tar rights of w:ry other party except , to the extent necessary to reach ·"~ conclusion h<'rein. • - NATURAL RESOURCES AND OF THE STATE or. CO'iSERVATION }!ONTA.'IA -------------------------------=---------=--=------------------------ IN THE t'lATTER OF APPLICATIOH FOR RESERVATION OF ~vATER NO. 10, 004~r43B BY THE PA.'U( CO~~SERVATION DISTRICT ) ) ) ) ) FINDINGS OF FACT AND CON~ CLUSIONS OF LAW OF APPLI- CATION NO. 10,004 r43B The above-entitled matter came on regularly for hearing starting en or about Sentemb~r 6, Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll.-The Applicant appeared by and through its counsel of record, Gary Spaeth. The Montana Department of Natural Resour~es and Conservation appeared by and through its counsel re~ cord, ~ichard Gordon. The ~1ontana Department Fish and Game pea red and through its counsel of record, F, Woodside Wright and Clayton Herron. The Nontana Department of Health and Environmental Sciences anp~ared by ~nd through its counsel of record, Mona Jamison. Witnesses were duly sworn, and oral and documentary evidence was in- troduced. The Board, havin~ road fullv considered the complete record, makes the llowing Finding:; Fact and Conclusions of La;.; relating to the Conservation Dis t ication No. 10,004-r43B: -124~ fiND UlGS OF FACT 1. The Park Conscrvat DisLrict has applied for a reservation of 108, acre-feet of 1vater per year y) with a maximum diversionary flow rate of 752.6 cfs for to be used to irrigate 36,570 C'lcres. the :we rage this request is for a diversion of 2. 96 acre-feet per acre t·Jith a 'llaxi::mm flow rate of 1 cfs per 48. acres. Water is requested from the Yellm..rstone River and the Shields River for thr: ve~r 2007. (Application 10,004-r43B). Findings Related to the Puroose of this Reservation (89-890(3)(a)). 2. The e nf the resc!:"v~u::ion is to insure \vat"'r availabili :md adequate strcamtloH for agricultural needs of the Conservation District (The Park Conservation District Application at page 3. It: established to the satisfaction of the Board tnat a purpose vr 4. .,1 reservation water is needed because it 1 secure a priority t!at:e for tutnn:: deve nts that is earlier than the priority dates such development:; <~oulti have if ncrmits were obtained immediately before construction or use began (Park Conservation District, Application r43B, p. 5). 5. The reservA.tion is needed because there is a proliferating wor demand for· food, wh is dependent on sufficient water avai il i ty (The Park Conservation 6. A reservation is needed w:.Ater in the l tone River sin n[ the Licont to obtain n water r turn. lp promote vntico !Ji.strict at strict Application at page is compe tion for may affect the availability uy permit in the future. This, necessary planning (The Park Conser- estahlis to s£lt:isfaction the Board that the for a reservation of t.rater been shown (Findings 4 and 5). the S. The amount of water :~ecessary for this reservation is the amount required to i te number of acres described in this application that can reasonabl~' be expected to be completed by the Park C.Jnse:rvation District b? the vear (EIS), 9. The f'i!'nnent c.-mncif:'l consiGts of total farm revenue minus all • cost::» except irrigation ·.,~ · ..:r cos;:!.; is the maximum amount a water user could oay le maintaining a profitable operation (Park Conservation District, i\pol ,004-r43B, p 20). 10, The crooning tern bv nercent is 20% for grain and 80% for hav t~ith ;1 maximum oavmenc not stated (The Park Conservation District Anvlicatiun ac pa~e 22). JL for sprinkler irrigation and 55'?, for flood lrri><tion (The Conservation District Aoplication ac o:u;e i2). Gonvevanc•2 losses '·ier:! estimated by formula and included in the diversionary reqtJircncnt needs Park ervation District Ap- rements vJere calculated using recommended consun1pLion 11se r:1te:; i divided by the on-farm efficiency (The Park Conservation s t lication at page 12). t V<llucs for l equals gpm per acre- foot for flood t side~roll sprinklers. In the soils to the lici.;.:ion rate nf svst...::n •. 2 ~~r~ Cons0rvation Jistrict Aoplication 15. ~1c system will ·,1ot ti!eet nraak consumo uses, but us the soil required to meet: cive uses. (The Park Conservation District Apolication a: pa~e 15). 16. Alchow~n c:12 i':u:-;, <.;onsc:rvar:ion District has reque,ted 108,143 acrc-ieet ocr vear to irrigate 36,570 acres, no additional irrigation can be developed '"i ch un ter from the Shields River or southern Park County Conservation District, Application4 Ho. 10,004-r43B. ~-16). 17. The Park Conservation District has no established plan for providim~ the s tora;:e necess the elu;.; 3.iver and vation District. Aoplicuti(>n 1 0 cO. l)f 36 . .\7C! !<.:res to irrigate the acres that '"ould use l tone tributaries (Park Conser- l0,004-r43B, o. 11). 4 r •ihich a reservation has been requested by ::he Park Gon·•ervat i..m District, only 21,664 c::m be considered to have plans sufficic:ru.: c~r; merit a reservat 19 Pari: Co:mtv bv t~1C! be ~1.664 acres. Us irr per acre. and 48.3q :teres acres ectio:I on the e:-:oansion of irrigation in District by the year would t tors of 2.96 acre-feet of water r cts, a reservation of water sufficient d 64,125 acre-feet. to the atis tio:~ ~ the Board that 64,125 is the amount of ~ase~vation to the 7ear -127- c:1Ll? to lie interest. licat at page 7). 22. The lopmt:nt fu~urc irri0ation IJrojects in Park County and benefic revenues (The t Anplication at page 8). cion in Park County declined 7 oercent. A maine re.1.son ,.1;;.•: ·1 lac~; of job oooortunities (Draft EIS, Vol. T, n. The develonc:Jent ot ne'" o•Jnoim; facilities, ditches, canals, sprinkler system.;. ~nd oc~2r divers ll contribute to the economic I District Application at increase income in Park ~ bo for t farmers cviw ;oou LJ Lnst !. che systems and for the local businesses that would enjov Lncr"a» s:~le;; result from the increase in agricul- turai incone. JcH icri ,.:oulJ t~ase the number of both on- and off-f:um jobs <. t S, Vol. I, n. 136). District has an established plan for comp tion of nronosed facilities will put reserved water to Hl ( Comwrvation District, Anplication . 10,004- rldfl). use, individual :md ~•hich to accumu- . to t m::mimum advantage of favor- tur:Jl market, or to lize the most contem- lc in vmter delive systems (Park Con;;ervation l t at page 5), ·I·-' .. ' ~no iJ documented to t de~ree of detail possible (Park Con- servation District) ~9. rcser~a1:io~ s~all be put to use w1thin reasonable diligence and the f) L:tn ,; :1 bona ti0 intent 3nd ility to use the water reserved 3S projected. :J. Jecail u.lo.:lning: of s t oroiects will be ac~ ished through funds marie availabe by the t•lontana Legislature or Park County mill levy. The tment of ·~at;1r.1.l Resou!"'ce~ and Conservation t s Park Conservation Di:Jtrict ll be pro;>;ress tmvard comoletion or con~truct '.; r ·_::e ilities witn reasonable diligence according to an est:1blishcd ryJ~;; ~~ :1 includes the economic feasibility of each is showing the suit- abil L :r.c:.n:ton. and possible sources of funding. 32. .\reservation suff c to irrigate 21,664 acres is in the pubLic interest ' it is reason le to expect that the Park Conser- vation Discrict ~Jill irr1:~nte an Ltional 21,664 acres by the year 2007. co the satisfaction of the Board that the li.'c tcrcst and that there :-Till let ili tv 'lnd ;:~ccomplishment of the our?ose wit!l reasonable dill~ence in ;1ccordance with an established· L 7' oart , Section 89~8. tio:1 bv the Montana Board tion of orders reserving water to qualified oroeren . a reservation must be ordered adopted in accordance \ii th t 89, ;: . C. 11. l 7, and any rules adopted thereunder. 3, The Apnlicant, the Conservat Dis t is a political as such is entitled to apn SUti:! of l·1ontana in accordance 1with Section ry r' ~.~ 1 r ~~ • ·.; • ' ' • .., ted thereunder. 4, All penirwm: :Hatutes ;:md rules of the State of Hontana have been adhered to in th<~ review of reservation Application, both by the r.:.1n:1 Depar:::::Je.lt of :btura t Resources and Conservation and by the ttrvation~ aiHW<:: Findi:v:s of Fact, and specifically based uoon any condir.io~, l taticu, ,)r modification of the full Application aupear ing in ZJi.l all pert teria delineated at Section 7 ' ' t''Jles '!dopted thereunder providing for the ad!'IDtion of a:1 6. fo:md has bearing the status of water rights claimed the Appl other those herein newly applied for. nor does anyt found in bearing on the status of claimed to those rights narcin nowlv uppL r, to t e:u:ont necessary to reach a conclusion BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF !fONTANA --------~-------------------~-----------------------=---------==-----) IN THE !1ATTER OF APPLICATION FOR ) RESERVATION OF WATER NO. 9948-r42M ) BY THE SWEET GRASS CONSERVATION DISTRICT ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LA~ OF APPLI- CATION NO. 9948-r42M -----------------------------------~-=------------------------------- The above-entitled matter came on regularly for hearing starting on or about September 6, 1977, Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll .. The Applicant appeared by and. through its counsel of record, Gary Spaeth. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The Montana Deparcmenc of Fish and Game appeared by and through its counsel of record, F. Woodside Wright and Clayton Herron. The !1ontana Department of Health and Environmental' Sciences appeared by and through its counsel of record, Mona Jamison. Witnesses were duly sworn, and oral and documentary evidence was in- troduced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to the Sweet Grass Conservation District, Application No, 9948-r42H: • FINDNGS OF FACT l. The Sweet Grass Conservation District has applied for a reservation of 55,822 acre-feet of water per year (af/y) with a maximum diversionary flow rate of .7 cubic feet per second (cfs) to be used to irrigate 310 acres. On the average this request is for a diversion of 3.02 acre-feet per acre with a maximum flow rate of 1 cfs per 42.19 acres. Water is requested from the Yellowstone River, Sweet Grass Creek, Big Timber Creek, and other tributaries to the Yellowstone River the yea;: 2007. ( Application No. 9948 Findings Related to the Puroose of this ~eservation (89-890(3)(a)). 2. The purpose the reservation is to insure water and adequate streamflow for the future agricultural needs of the Sweet Grass Conservation District (The Sweet Grass Conservation District Ap- plication at page 4). 3. It is established to the satisfaction of the Board that a purpose of the reservation has been shown (Finding 2). 4. A reservation of water needed because it will secure a priority date for future develonments that is earlier than the priority dates such developments would have if permits were obtained immediately before construction or use began (Sweet Grass Conservation District, Application No. 9943-r42M, p. 5). 5. The reservation is needed because there is a proliferating world-wide demand for food, which is dependent on sufficient water availability (The Sweet Grass Conservation District Application at page 4). 6. A reservation is needed because there is competition for water in the Yellowstone River B3sin which may affect the availability of the Applicant to obtain a water right by permit in the future. This, in turn, will also help promote the necessary planning (The Sweet Grass Conservation District Application at page 5). 7. It is established to the satisfaction of the Board that the need for a reservation of water has been shown (Findings 4 and 5). Findings Related to the Amount of Water Necessary for the Purpose of the Reservation (89-890(3)(c)). 8. The amount of water necessary for this reservation is the • amount required to irrigate the number of acres described in this ap- plication that can reasonably be expected to be completed by the Sweet Grass Conservation District by the year (EIS). 9. The payment capacity consists total farm revenue minus all costs except irrigation water costs and is the maximum amount a water user could pay for water while maintaining a profitable operation (Sweet Grass Conservation District, Application No. 9948-rQ/M p. ) . 10. The cropping pattern by percent is 20% for grain and 80% for hay with a maximum capacity not stated (The Sweet Grass Conservation 1 District Application at page 26). 11. A 90% on-farm irrigation efficiency was assumed for sprinkler irrigation and 60% for flood irrigation (The Sweet Grass Conservation District Application at page 13). 12. Conveyance losses were estimated by formula and included in the diversionary requirement needs (The Sweet Grass Conservation District ~ Appl tion at page 12). 13. Peak Diversion requirements were calculated using recommended peak consumption use rates for alfalfa divided by the on-farm efficiency t (The Sweet Grass Con!lervation District Application at page 12). - 14. The calcula values alfalfa equals 9 gpm per acre~foot for flood irrigation and 7 gpm for side-roll sprinklers. In the case of center pivots, the peak rate was reduced to 5.6 to 6 gpm per acre to mere closely match the infiltration rate of heavy soils to the ap- plication rate of system (The Sweet Grass Conservation District Applica- tion at page 12). 15. The system will not meet peak consumptive uses, but using the soil profile as a moisture reservoir, the system is sized somewhat below that required to meet peak consumptive uses (The Sweet Grass Conservation District Application at page 12). 16. Although the Sweet Grass Conservation District has requested 55,922 acre-feet per year to irrigate 18,510 acres, no additional ir- rigation can be developed with water from the requested water sources unless reservoirs are bui to pro•1ide storage on these streams (Sweet Grass Conservation District, Application No. 9948-r42M, pp. 17-18). 17. The Sweet Grass Conservation District has not submitted and has no established plan for providing the storage necessary to irrigate the acres that would use water from the Sweet Grass drainage. 18. Of the 13,510 acres for which a reservation has been requested by the Sweet Grass Conservation District, only to have plans sufficie::1t to merit a reservation. can be considered A reasonable projection on =xt'm1Sion of .u. .... ,.,a:.J.vu in Sv~eet Grass County by the Sweet Grass Conservation District by the year 2007 would be 15,313 acres. ing irrigation factors of 3.02 acre-feet of water acre, and 42.19 acres per cfs, a reservation of water sufficient to irrigate 15,313 acres would be 46,245 acre-feet with a maximum diver- 20. It is established to the satisfaction of the Board that 46,245 af/y with a maximum diversionary flow rate of 363.4 cfs is the amount of water necess the purpose of the reservation to the year Findinos Related to the Public Interest (89-890(3)(d)). 21. The reservation will contribute economically to the public interest (The Sweet Grass Conservation District Application ~t page 8). 22. The development of future irrigation projects in Sweet Grass County and beneficial use of water will create jobs and increase the tax revenues (The Sweet Grass Conservat District Application at page 8). 23. From 1960 to 1970, the rural population in Sweet Grass County declined 9.4 percent. (Draft EIS, Vol. I, p. A major reason was a lack of job opportunities 24. The development of new pumping facilities, ditches, canals, sprinkler systems, and other diversions will contribute to the economic stability of the County (The Sweet Grass Conservation District Applica- tion at page 8). 25. New irrigation would increase income in Sweet Grass County, both for the farmers who would install the s tems and for the local businesses that would enj increased sales resulting from the increase in agricultural income. New irrigation would increase the number of both on-farm and off-farm jobs (Draft EIS, I, p. 156). 26. The Sweet Grass Conservation District has an established plan for completion of the proposed facilities which will put reserved water to use by the year 2007 (Sweet Grass Conservation District, Application No. 9943-r42M). . • 27. Be reserving water for future beneficial use, individual ranchers and farmers have a more favorable timetable in which to ac- cumulate the capital needed to finance, to take maximum advantage of favorable changes in the agricultural market, or to utilize the moat contemporary technology available in water delivery systems (Sweet Grass Conservat District Application at page 24). 28. The plan of the Sweet Grass Conservation District is not speculative and is documented to the highest of detail possib~e (Sweet Grass Conservation District). The reservation shall be put to use within reasonable diligence and the plan includes a bona fide intent and ability to use the water reserved as projected. 30. Detailed planning of district ects will be accomplished through funds made available by the Montana Legislature or Sweet Grass County mill levy. The Department Natural Resources and Conservation's Technical Assistance Program will also be used (The Sweet Grass Conser- vation District Application at page 3). 31. The Board is satisfied there will be progress toward completion of construction of the facilities with reasonable diligence according to an established plan which includes the economic feasibility of each ect, a soils and land classification analysis showing the suitability of lands to sustain irrigation, and possible sources of funding. 32. A reservat sufficient to irrigate 15,313 acres is in the public interest because it is reasonable to expect the the Sweet Grass Conservation District will irrigate an additional 15,313 acres by the year 2000. 33. It is established to the satis of the,Board that the reservation of 46,245 af/y with a maximum diversionary flow rate of 363.4 cfs to be used for is in the publ -136~ interest and that there will be progres~ toward completion of the facility and accomplishment of the ourpose with reasonable diligence in accordance with an established4 plan. CONCLUSIONS LAW 1. Chapter 8, Title 89, R.C.M. 1947, and in particular, Section 89-890, R.C.M. 1947, authorizes the adoption the Montana Board of Natural Resources and Conservation of orders reserving water to qualified applicants for reservations of water. 2. If ordered adopted, a reservation must be ordered adopted in accordance with Chapter 8, thereunder. tle , R.C.M. 1947, and any rules adopted 3. The Appl ant, the Sweet Grass Conservation District, is a political subdivision of the State of Montana and as such is entitled to apply to reserve wate~s within the State of Montana in accordance with Section 89-890, R.C.M. and any rules adopted thereunder. 4. All pertinent statutes and rules of the State of Montana have been adhered to in the review of this reservation Application, both by the Montana Department of Natural Resources and Conservation and by the t-!ontana Board of Natural Resources and Conservation. 5. Based ur:~on the A.bove Findings of Fact, and specifical based upon any condition, limitation, or modification of the full Application appearing in said Findings, all pertinent criteria delineated at Section 89-890, R.C.M. 1947, and any rules adopted thereunder providing for the adoption cE an order reserving water have been met. 6. Nothing found herein has bearing upon the status of water rights claimed by the Applicant other than those herein newly applied for, nor does anything found herein have bearing on the status of claimed water ri~hta of any other party except in relation to those rights herein n~~ly appli for, to the extent necessary to reach a conclusion -137- BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION THE STATE OF MONTANA -~-------------------------------------------------~----------------- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9935-r43QJ BY YriE STILLWATER CONSERVATION DISTRICT ) ) FINDINGS OF FACT AND CON- ) CLUSIONS OF LAW OF APPLI- ) CATION NO. 9935-z43QJ ) --------------------------------------------------------------------- The above-entitled matter carne on regularly for hearing starting on or about September 6, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James ~riscoll.-The Anplicant appeared by an~ through ita counsel of record, Gary Spaeth. The !lantana Department of Natural Resources and Conservation appeared by and through its counsel of re- cord, Richard Gordon. The Montana Department of Fish and Game appeared by and through its counsel of record, F. Woodside Wright and Clay~~n Harron. The Montana Department of Health and Environmental Sciences appeared by and through its counsel record, :t-iona Jamison. lUtnesses were duly sworn, and oral and documentary evidence was introduced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to the Stillwater Conservation District, Application No. 9935-r43QJ: FINDINGSOFFACI' 1~ The Stillwater Conservation District has applied for a reservation of 16,755 acre-feet of water per year (af/y) "">ith a roamrl!llll diversionary flow rate of 122~1 cubic feet per second (cfs) to be used to irrigate 5,290 acres~ On the ~age t.~is request is for a diversion 3~ acre-feet per acre with a ma:mrl!llll flow rate of 1 cfs per ~33 acres~ Water is requested frcm the Yellowstone River and frcm the Stillwater River and other tributaries to the Yellowstone River for the year 2000 (Application flo~ 9935-r43QJ). Findings Related to the Purpose of this Reservation (89-890(3)(a)). 2. The purpose of the reservation is to insm:e water mrailability and adequate streamflow for the future agricultural needs of the Stillwater Conservation District~ (The Stillwater Conservation District Application at page 5) ~ 3. It is established to the satisfaction reservation has been shown (Finding the Board that a purpose of the 4. A reservation of water is needed because it will secure a priority date for future developments that is earlier than the priority dates sucl! developments would have if permits were obtained immediately before cor~truction or use began (Still,~ater Conservation District, Application No. 9935-r43QJ, p. 6). 5. The reservation is needed because there is a proliferating world-wide demand for food, which is dependant on sufficient water availability. (The Stillwater Gonser<aticn District Application at page 6. A reservatioo is needed because there is ccmpetition for water in the Yellcwstone River Basin which may affect the availability of the Applicant to obtain a water ri>lf!t by permit in the future~ This, in tum, will abo help pram:lte the oocessa:ry plmmlng~ (The Stillwater Conservation District Application at page 6) ~ 41 7. It established to the satisfaction of the Board that the water has been ~ (Findings 4 and 5) . for a 8. The <l!JOliDt of water necessary for this reservatirn is the <l!JOliDt required to irrigate the number of acres described :in this applicatirn that cen reasonably be expected to be completed by the Stillwater Callservatirn D:L. trlct by the year 2000 (EIS) . 9. The payment capacity consists of total fazm revenue~ all costa except irrigation water costs and is the all!iJ\l:nt a water user could pay for water Mrlle minta:in:i:ng a profitable operation (Stillwater Ca:lservatioo District, Application No. 9935-r43QJ, p, ·21L 10. The cropping pattern a ma.~ pa~t capacity of $125.00 per acre. (The Stillwater Coose:rvation District Application at page 12). lL A 75% on,..fam irrigation efficiency was assm:ed for Bprinkler irrigation and 55% for flood irrigation. (The Stillwater Callse:rvation District Application at page 12), 12. Conveyance losses were estimated by formula and included in the diversion- ary requirement needs. (The Stillwater Callservatirn District Jl.,.nplication at page Peak diversion requirements were calculated using re,cmmel:ldl=d consumption use rates for alfalfa divided by the on-fam efficiency. (The Stilll~ater Conservation District Application at page 12) " 14. The calrulatt-'Cl values for alfalfa eqW1lls 8 to 9 pex acre-foot far: flood in"igation and 6.5 to 7 for side-roll sprinklers" In case of cmter pivots, the peak rate was reduced to 6 acra to lrol:e closely rnatcll the infiltration rate of hemr;i soils to the CJprlication rate of system. (Tne Stillwater Conservation District Apnlication at page 12). 1he system wi not meet peak olant oonsunptive uses, but u:sing the soil profile as a roisture reservoir, the system is sized somewhat belCii!J that re~ quired to meek peak consumptive uses. (The Stillwater Conservation District AD~ plication at page 12). 16. The diversion requirarent ranges from .59 cfs ner 40 acres to 1.06 cfs per 40 acres wit.'l an annual requirement ranging from 2 acre-feet per acre to 3.60 m:rre-feet per acre for an average of 3. acre-feet per acre with a max:irnum flaw rate of 43.33 acres per 1 cfs. Stillwater Conservation District Aoplication at nage 12). 17. All systems were desi[';ned to operate simultaneously, even on large systems in lieu of a rotation system. ""(The Stillwater Conservation District·Applica- tion at page 12). 18. Using irrigation factors of 3.17 acre-feet per year of water oer acre, and 43. 33 acres per cfs, a reservation of vJater sufficient to irrigate 5, 290 acres wculd be 16,755 acre-feet with a diversionary fla~ of 122.1 cfs. 19. It is established to the satisfaction of the Board that 16,755 acre-feet per ye'lr with a maximum diversionary flm¥ rate of 122.1 cfs is the a."'DU!'lt of water necessary for the purpose of the reservation to the year 2000. FinJL~gs Related to the Public Interest (39-390(3){d)). 1he reservation will contribute ecoranlcally to the public interest. S::ilh.'ater Conservation District: at Page 3), ZL The develonment of future irri;:;ation orojects in Stillwater County and broc:ficiai use of water will create jobs and increase the tm!: reVffi'l:l.les, (The Stillwater Conservation District Application at 8). (The From to 1970, the rural rooulation L"l Stillv;ater County declined 16.2 percent, A major reason wes a lack of opnort:mities (Draft EIS, VoL I, p. 101). The development of new pumping facilities, ditches, canals, sprinkler systems, and other diversions will contribute to the ~c stability of the County. (The Stillwater Conservation District Application at page 8) . New irrigaticn would increase incCUJJ;! Stillwater County, bot~ fox the far!llllrs ~would install the systems and fox the local businesses that would enjoy increased sales resulting frcm the increase in agricultural inccme. New irrigation would increase the of both on-fa:m and off-f1Iml job.:, (Draft EIS, Vol. I, 156). The Stillwater Conservation District has an established plan for ccmpletion of the proposed facilities -which will put reserved water tc use by the year :woo (Stillwater Conservaticn District, Applicatioo No, 9935-r43QJ). 26. By reserving water for future beneficial use, individ!lal ranchers and f=rs haw a m::;re favorable timetable in -which tc aca:m.date the CEpital needed to finance, to take max:i:l!m! advantage of favorable changes in the agricultural market, or to utilize the mst cont~ora.ry tedmology available in water deli "'l<!rY systems. (Stillwater Conservation District Application at pages 5 and 6). 27. The plan of the Stillwater Conservation District is not speculative and is documented tc the highest degree of detail possible, (Stillwater Conservation District). 28. The reservation shall be put to use within reasonable diligence and the plan includes a bar., fide intent ar~ ability to use tha water reserved as projected. 29. Detailed planning of district projects will be acc~lished through funds made available by the Mbntans Legislature or Stillwater mill levy. TOO D<!partmellt of Natural Resources and Conservation's Technical Assistooce Progri!fll will also be used. (The Stillwater Ca:!servation District Applieaticn at page 3). JO. 'lhc is satisfied there be orogress toward cor.pletion of cc~~ struction of the facilities with reasonable diligence according to an established olan which includes the economic fe.'lsibility of each Project, a soils <jlld 1&"1d classification anal?sis shocling the suitability of lands to sustain irrigation, and possbile sources of funding. 31. A reservation sufficient to it-rigate 5,290 acres is in the public interest because it is reasomble to expect that the Stillwater Conservation District will irrigate an additional 5,290 acres by the year 2000. 32. It is established to the satisfaction of the Board that tha reservation of 16,755 af/y with a maximJm diversionary flow rate of 122.1 cfs to be used for irri?,ation is i.,.; the public interest and that there will be progress toward com- oletion of the facility and accomplishment of the purpose with reas011able diligence in accordance with an established plan ... CDNCLUSIOi'IS OF lAW L Chpater 8, Title 89, R.C.l1. 1947, and in particular, Section 89-890, R.C.l1. 191_,7, authorize the adoption by tile a:mt&-,a Board of Natural Resources and Conservation of orders reserving water to qualified applicants for reservation of water. 2. If ordered adopted, a reservation !lUSt be ordered adopted in accordance with Chapter 8, Title 89, R.C.M. 1947, and 1ll'Y rules adopted thereunder. The Applic.:mt, Stillwater Conservation District, is a political sub- division of the State of ~bntana and as such is entitled to apply to reserve water within the State of !1Jntans in accordance with 89-890, R.C 1947, and any rules adopted thereunder. 4. All pertinent statutes and rules of the State of M:Jntana have been adhered to in review of this reservation application, t-oth by the ~bntana Deoort:!!lEnt of Natural Resources and Conservation and by the M:Jntam Board of Natll:ral Resources and Conservatioo. 1 - conditiwt~, limitation, or modification of che full application arpearing in said 1947, and <ii!'lY rules <lldoptOO thereunder prmriding for the adoption an order reserving 6. Nothing found herein has unon the status of water rights clailred by the Applicant ot.'1er than those herein newly applied for, nor doos claimed water rights of any other party except in relation to t'1ose rights herein netvly ~'f'plied for, to the extent necesa~J to reach a CtJOClusian herein. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9944-r43D BY THE CARBON CONSERVATION DISTRICT ) ) ) ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAW 2F APPLI- CATION NO. 9944-r43D ---------------------------------=-------=--------------------~------ The above-entitled matter came on regularly for hearing starting on or about September 6, 1977, in Billings, Montana, before the l1ontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll._. The Applicant appeared by and. through its counsel of record, Gary Spaeth. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of re- cord, aichard Gordon. The Montana Department of Fish and Game appeared by and through its counsel of record, F. Woodside 1-lright and Clayton Herron. The Montana Department of Realth and Environmental Sciences appeared by and through its counsel of record, Hona Jamison. ioiitnesses were .duly sworn, and oral and documentary evidence was introduced. The Board, having read and ful considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to the Carbon Conservation District Application No. 9944-r43D: FTNOINGS OF FACT l. The Carbon Conservation District has applied for a reservation of 47,557 acre-feet water per year with a maximum diversionary flow rate of .2 cubic feet per second fs) to be used to irrigate 21 015 acres. On the average this request for a diversion of 2. acre-feet per acre with a maximum flow rate of 1 cfs per 76.64 acres. Water is requested from the Yellowstone River, Clark Fork River, Rock Creek, Red Lodge Creek, and other tributaries of the Yellowstone River for the year 2007 (Application No, 9944-r42D). Findings Related to the Purpose of this Reservation (89-890(J)(a)), 2. The purpose the reservation is to insure water availability and adequate streamflow for the future agricul needs of the Carbon Conservation District (The Carbon-conservation District Application at page 3. It is established to the satisfaction of the Board that a purpose for the reservation has been shown (Finding 4. A reservation of water is needed because it will secure a priority date for future developments that is earlier than the priority dates such developments would have if permits were obtained immediately before construction or use began (Carbon Conservation District, Applica- tion No. 9944-r4JD). 5. The reservation needed because there a proliferating world-wide demand for food, which is dependent on sufficient water lability (The Carbon 6. A rcservat in the Yellowstone River ion District Application at page needed because there is competition for water in may affect the availability of the Applicant to obtain a water right by permit in the future. This, in turn, "fill abo help promote the necessary planning (Thill Carbon Conser- vat ion trict Application at page 3). 7, It is established to the satisfaction of the Board that the need for a reservation of water ha<J been shown (Findings 4 and Fin~s Related to the Am:Junt of Water Necessary for the Purpose of the Reservation (69-890(3) (c)). a' The i'!lllDU!lt water necessary for this reservation is the ll!OCJ'!lnt required to irrigate the mmt>er of acres described in this application that can reasonably be expected to be completed the Carbon Conservation District by the year (EIS), 9, The payment capacity consists of total farm revenue rn.inus all costs except irrigation water costs and is the J:!lC!ldll'Uil amount a water user could pay for water while maintaining a profitable operation (Carbon Corulervation District, Application No. 9944-r43D, p. 10, The cropping pattern by percent is zn for grail'1 and 4C% for hay' 8% for silage and 23'7. for cash crop in lower re:.iches with a maxim.Jm payment capacity of $185.00 per acre, and 20% for grain and 8G7o for 'hay in both the intet'l!Ediate and higher reaches in the county for a maxi;;um paymant capacity of $125,00 per acre. (The ~bon Conservation District Application at page 24). lL A 75% on-farm irrigation efficiency was assumed for sprinkler irrigation and 55% for flood irrigation. (The Carbon Conserv~tion District Application at page 11). 12. Comreya<'1ce losses were estimated by fo!lllllla and bcluded in the diversion- acy requirement needs. (The Carbon Conservation District Application at page 11). Peak diversion requirements were calculated using recommended peak con- sumntion use r?tes for alfalfa divided by the on-farm efficiency. (The Carbon Conservation District Application at page ll), 14, 'Ihe calculated values for alfalfa equals 7.5 to 3, 9 gprn per acre-foot for flood irrigation end 6 to 7 gpm for side-roll sprinklers. In case of center per acre to roore closely mtch the - Wiltration rate of heavy soils to tl"';e application rate Gonservation District Application at page 11) . sys tan. (The Cxbon 'l'he system will rot meet peak plant consumptive uses, but using the soil profile as a ooist:ure reservoir, the system is sized below that required to meet peak consU!lptive uses. (The Cxbon Conservation District Application at page 16. Ali:h..~ the Ca.rbon Conservation District has requested 47,557 acre-feet per year to irrigate 21,015 acres, no additional irrigation can be dewlopd fran Rock Creek and Red Lodge Creek unless reservoirs are built to provide storage on these streams (Carbon Conservation District, Application No. 9944-r43D). Carbon Conservation District has no escablished plan for providing the storage necessary to irrigate the acres that muld use water from the Rock Creek and Red I.odge Creek drainages (Carbon Conservation District, Application No. 9944- r43D, p. 18, Sufficient water is available from the Yellowstone River and Clarks Fork River to irrigate all acres described in the Apolication that do not propose to take water from the Rock Creek and Red Lodge Creek drainages (Carbon Conservation District, Application . 9944-r43D, pp. 15 through 17). Of the 21, C~crcs for which a reservation has been requested by the Carbon Conservation District, only 16,330 can be considered to have plans sufficient to merit a reservation because 4,635 acres call be developed only if storage is provided and the Application contains no plans for storage for these acres, 20. Of the 330 acres that can be considered to have plans only 10,034 acres m:e considered by the Board to have sufficient plans to warrant a reservation. :ZL A reasonable projection on expansion of irrigation County by the Carboll Conservation District by the year ~d be 10,034 acres. Using water reservation water sufficient to irrig;ate 10,034 acres would be ,676 acre-feet It is established to the satisfaction of the Board that 22,676 af/y is the ~tar necessary for the purpose of the reserifation to the year 23. The reservatbn 1rill contribute economically to the public interest (The !II Carbon Conservation District ,\pplication at page 24. The develoorr.ent of future irrigation projects i.'l Carbon County and beneficial use of water will create jobs and increase the tax revenues (The Carbon Conservation iii District Application at page 25. Frcm 1960 to 1970, the rural population in Carbon County declined 9 percent. A. major reas011 was a lack of job opportunities (Draft EIS, Vol. I, p. 101). 4 26. The development of new pumping facilities, ditches, canals, sprinkler syste11S, a.od other diversions will contribute to t.l)e ec0!1allic stability of the County. (The Carbon Conservation District Application at page 8) . 2 New irrigation 1vould increase incom:; in Carbon County, both for the fa:mers who w;:,uld install the systems and for the local businesses that would enjoy increased sales resulting frcm the increase in agricultural ~. New irrigation would increase the number of beth on-farm ;md off-farm jobs. (Draft EIS, Vol. I, p. 156). 28. The Carbon Conservation District has an established plan for canpletion of the prOPOsed facilities which 1Yill put reserved water to use by the year 2007 (Carbon ~ Conservation District, Application t>b. 99Lf4-r43D). 2 9. By reserving water future oeneficial use, individual ranchers and farmers have a more favorable timetable in ~tdch to accumulate the capital needed to 4 fi.rumce, to ta'<e maximim advantage of favorable ::hanges in the agricultural market, or to utilize the most contemoora:ry tec!m:Jlogy available in water delivery systems. (Csrbon Cbns~tion District Application at page 30, The plem of the C'lrbon Conservation District is oot sp.=a:llatb!e and is docule1too to the highest degrt!e of detail possible, (Carbon Cons~tioo District). 1 31. '!'he reservation shall be put to use within reasonRble diligence and the plan includes a bona fide intent and to use L~e water reserved as projected. 32. Detailed planning of district projects will be acc~lished througP. funds ~mde available by the M:lntsna Legislature or Carron County mill levy. The Departl!IZnt of Natural Reoources and Conservstion' s Technical Assistance Program will also be woo ('!he Camon ~ervation District Application at page 33. The Board is satisfied there will be progress toward carpletion con- struction of the facilities with diligence according to an estaalished plen which :includes the ecOI:IDITiic feasibility of each project, a soils ~md land shorwirag the suitability of lands to sustain irrigation, and clsssification ~•lysis possible sources of fundil'1g. 34. A reservation sufficient to irrigate 10,034 acres is :in th£! public L'ltarest because it is reasooable to expect that me Carbon Conservstion D:istrlct will irrigate an additioml 10,034 acres by the year 2007. 35. It is established tc the satisfaction of the :Board that the reservation of 676 acre-feet par Jear to be used for irrigation is in the public interest and that there will be progress toward ccrrpletion of the facility and accarplishrlalt the purpose with reasonable diligence in accordo-.nce with an established plan. CONCLUSIONS OF LAW L Chapter 8, Title 89, R.C.K 1947, and in particular, Section !'JY<~I:iSIO R.C.i1. 1947, authorizes the adoption by Ll-je M:mtana Board of Natural Resources and Conservation of orders rese~!Lng water to qualified applicants for reservations of water. 2. If ordered adopted, a reservation must be ordered adopted in accordance with Chapter Title 39, R.C.M. , and any rules adopted thereunder. 3. The Applicant, the Carbon Conservation District, is a political subdivision the State of Mmtsna and as such is ·entitled to "''""'' to reserve waters within State adop,red th!inetn:k~r 1,. ~~l pertinu:~t statutes and rules of the Slate of rbntana have been adhered to m the review of this reservation Applicat:wn, both by the rbntana Depart::msnt of • Natural Resources end Conservation end by the !1mtane Board Natural Resources and Conservation. Based upon the above Findings of Fact, and specifically based upon any 41 condition, limitation, or m:Jdification of the full Application appearing in said Findings, all pertinent criteria delineated at Section 89-890, R. 1947, and any rules adopted thereunder r.'W'liding for the adcption of an order reserving water have Ill been met. Nothing found hereb has bearing upon the status of water rights claimed by the Applicant other than those herein newly applied for, nor doea an:yth:ing found hereb have bearing on the status of clai.'1!ed water rights of any other party e..'«:ept in relation to those rights hereL< newly-applied for, to the extent necessary to reach a conclusion herein. -151- .;, - BEFORE THE BOARD NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA ------------------=---------------------=-----=-----------~-----=---- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9949-r42M BY THE YELLOlOSTm~E CONSERVATION DISTRICT ) ) ) ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAW OF APPLI- CATION NO. 9949 r42M ---------------------------------------------------=----------~------ The above-entitled matter came on regularly for hearing starting on or about September 6, 7, in Billings, Montana, before the ~1ontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll.~ The Applicant appeared by and through its counsel of record, Gary Spaeth. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of re- cord, Richard Gordon. The Montana Department of Fish and Game appeared by and through its counsel of record, F. Woods Wright and Clayton Herron. The Montana Department Health and Environmental Sciences appeared by and through its counsel of record, Mona Jamison. Witnesses were duly sworn, and oral and doca~entary evidnece was introduced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to lowstone Conservation District, Application No. 9949-r4ZM: -152- FINDINGS OF FAcr 1. The Yellowstone Conservation District has applied for a reservation of 378.2 cubic feet per second (cfs) to be used to irrigate , 835 acres. On the average this request is for a diversion of 2. acre-feet per acre with a llliDimum flow rate of 1 cfs per 65.67 acres. Water is requested frcrn the Yellc.wstone River for the year 2007 . (Application No. 9949-r42M). Findings Related to the l'u:rpose of this Reservation (89-890(3)(a)). 2. The purpose of the reservation is to insure water availability and adequate streamflow for the future agricultural needs of the Yellowstone Conservation District. (The Yellowstone Conservation District Application at page 4). 3. It b established to the satisfaction of the Board that a purpose of 4. A reservation of water is needed because it will secure a priority date far: future developments that is earlier than the priority dates such developments wuuld howe if permits were obtained illmediately before constructioo or use began (Yellowstone Conservation District, Application No. 9949-rl,ZM:, p. 6). 5. The reservation is needed because there is a proliferating 'WO:!:"ld->vide demand for food, which is dependent en sufficient water availability. (The Yellow- stooe Conservation District Application at page 6). 6. A reservation is needed because there is competition for water in t.'w Yellowstone River BasL~ which may affect ~~e availability of the Applicant to · obtain a water right by permit in future. This, in t:m:n, will also help promote the necessary planning. (The Yellowstone Corulervation District Application at page 5). • - - 7. It established to the satisfaction the Board that the need for a reservation of water has been shown (Findings 4 and 5) . Findings Related to t.~ Allnmt of ~~ater Necessary for the Pu!:pose of the Reservation B. The ~t of water necessary for this reservaticn is the ~t ref.jUired to irrigate the number of acres described in this applicaticn that can reasooably be expected to be carrpleted by the Yellowstane Conservatian District by the year 2007 (EIS) . 9. The pa}'lll6lt capacity cansists of total fam revenue l:ll:i..nus all costs except irrigatian water costs 211d is the llEldliiUll ~t a water user could pay for water while ~Mintaining a profitable operation (Yell&stone Conservation District, Applicatian No. 9949-r4211, p. 23). 10. The cropping pattern percent is 2'F/, for grain and 40% for bay, 87% for silage and 21% in cash crops with a mmdm.m pa)'!Th2!1t capacity of acre. (The YellCJWStone Conservation District Application at page 12). OOper lL A 7'J'!. an-farm irrigatian efficiency was assU!led for sp:dnkler irrigation and 557. for flood irrigatian. (The YellClYIStone Conservation District Applicatio;r, at page 12). 12. Conveya.'1ce losses were estil:l.'lted by formula and included in the diversionary requirement needs. (The Yellowstane Cc;wervation District Application at page Peak diversion requirements were calculated using rec~ peak ccnstl1Jlltion usc rates for alfalfa div'ided the on-farm efficiency. (The YellC'.o~stone Co!wervation District Applicution at page 12) . The calculated values for alfalfa equals 11 gpm per acre-foot for floc~ irrigation qnd 7 for side-roll sprirJ<lere. In th2 case of center pivots, t:ha peak r<~te was reduced to 6 gpm per acre to more dos~Sly ootcll th2 infiltration rate of heav;r soils to the application rate of system. (The Yellowstone • Conservation District Application at page 12). 15. The system oot meet peak plant constc"!lptive uses, but using the soil profile as a !IDisture reservoir, the system is sized scmewhat below that requirod to meet peak constm1ptive uses. (The Yellowstone Conservation District Application at page 12). The diversion requirement ranges from . 53 cfs per 40 acres to l. 00 cfs per 40 acres with an a.-mual requirE!!ll2flt rao<ging frcm 2.23 acre~feet per acre to 3.03 acre-feet per acre for an average of 2. 33 acre-feet per acre with a maxim.Jm flow rate of 65. acres per 1 cfs. (The Yellowstone Conservation District Application at page 13). 17. All systems were designed to operate simultaneously, even on large systems in lieu of a rotation system. (The Yellowstone Conservation District Application at page 12). 13. Using irrigation factors of 2. acre-feet per year of water per acre, and 65.67 acres per cfs, a reservation of water sufficient to irrigate 24,835 acres would be 57,963 acre-feet -vlith a maximum diversionary flew of .2 cfs. 19. It is established to the satisfaction of tha Board that ,963 acre- feet per year w-ith a maximum diversionary flew rate of 37·~. 2 cfs is the amount of water necessary for the purpose of the reservation to~~ year 2007. Findin~s Related to the Public Interest (89-S90(J)(d)). The reservation 1¥ill contribute econcrnically to t.'le public interest. (The Yellowstone Conservation District Application at page 8). 21. The develcpme."'!t and beneficial use of water will create jobs and increase t:ha tax revenues . .. e Yellowstone Conservation District Application at page 8). 22. The development n<=W pumping facilities, ditches, canals, sprinkler systems, and other diversions will contribute to the eCClOI:mlic st!lbility of the County. (The Yellowstone Conservation District Application at oage 8) . 23. New irrigation would increase inccrne in Yellatvstone County, both for the fa:mers who would install the systerr.s and for the local businesses that would enjoy increased sales resulting from the increase in agricultural incaoo. Ne-1 irrigation would increase the l"!!ll:tJer both on-farm and off-farm joc.s. (Draft EIS, Vol. I, p. 156). 24. The Yellowstone Conservation District has an establishe:l plan far canpletion of the proposed f'!cilities whtch will put reserved water to use by the yea:r (Yellowstone Conservation District, Application No. 9949-r42M). 25. By reserving water future beneficial use, individual ranchers and farmers have a more favorable timetable in which to accumulate the capital needed to finemce, to take advantage of favorable changes in the agricultural market, or to utilize the mst contEl7lpOnn:y technology available water delivery systems. (Yellowstone Conservation District Application at page 5). <:6. Tbe plan of the Yellowstone f,onservation District is not speculative and is documented to the hirr,hcst degree nf detail possible. (Yellowstone Conservatirn Distdct). 27. The reservation shall be put to use within reasonable diligence and the plan includes a bona fide intent and ability to use the water reser,red as p-rojected. district projects will be accanplished through funds made available by the Montana Legislature or Yellowstone Coooty mill levy. The Depart!llr:nt of Natural Resources and Conservatioo' s Technical Assistance Pr05;1::am ~!ill also used. (The Yellcwstooe Conservation District Application at page The Board is satisfied t.~ere will be progress toward ca11pletion of construction of the facilities with reasonable •iiligence according to an established plan which includes the economic feasibilit'J of eac:-'1 project, a soils and land classification analysis showing the suitability of lands to sustain irrigation, and possible sources of funding. 30. A reservation sufficient to irrigate 835 acres is in the public interest becwJse it is reasonable to ~~ect that the Yellowstone ~~ervation District will irrigate an additional 24,335 acres by the year 2007. 31 It is established to the satisfaction of the Board that the reservation of 57,963 af/y with a ma'!:imum diversionary flow rate of 378.2 cfs to be used for irrigation is in the public interest and that there will be progress toward completion of the fac1licy and accomplishment of d1e purpose with reasonable dili(;enCe in accordance Hith an established plan. cmcLUSIONS OF IAU 1. Chapter 8, Title 89, R.C.M. 1947, and in particular, Section 89-890, R.C.M. l9L;7, authorize the adoption by w.'1e Montana Board of Natural Resources and Conservation of orders reservi~g water to qualified applicants for reservation of vmter. 2. If ordered adol)ted, a reservation rrust be ordered adopted in accordance ~ with Chapter 8, Title 89, R. M. 1947, and any rules adopted there".mder. 3 The Applicant, Yellowstone Conscrvatioo District, is a political subdivision of ~he State of Montana a.,d as such is entitled to apply to reserve water within t."'e ' and any rules adopted t.~ereunder. 4. All pertinent statutes and roles hered to revit.'W of this reservation application, both by the M:ntana Department ,md Conse!·vation. 5~ !lased upon the aLove Fimlinr~s of Fact, and specifically based upon any condition lLtdtation, or nudification of the full application appearing in said FincULngs, all pertinent c=iteria delineated in Section 89-090, 1947, and my rules adopted thereuruier providing for t.'le adoption of an ord~ reserving water have been met~ 6~ Nothing found herein has bearing upon the status water rights claimed the llpplicnnt ot.'ler than those herein newly applied for, nor ~~ anyt:hing found herein have bearing on the status of claimed water rights of other party except in relation to t.'lose rights herein newly applied extent necessary to reacl1 a conclusion herein, , to the BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA ----=--------------------------------------------------------------== ) m THE !-lATTER OF APPLICATION FOR ) RESERVATION OF WATER NO. 9952-r43P ) BY THE BIG HORN CONSERVATION DISTRICT ) FINDINGS OF FACT AND CON- CLUSIONS OF LAW u: APPLI- CATION NO. 9952-r43P ) -------------------------=--------=------------=--------=-----------= The above-entitled matter came on regularly hearing starting on or about September 6, 1977, in Billings, !1ontana, before the Montana Board o= Natural Resources and Conservation and its duly ap- pointed Hearing Examiner, James D~iscoll. The Applicant appeared by and through its counsel of record, Gary Spaeth. The Montana Department • of Natural Resources and Conservation appeared by and through its counsel' of record, Richard Gordon, The Montana Department of sh and Game appeared by and through its counsel of record, F. Woodside \-/right and Clayton 'Herron. The Montana Department of Health and Environmental Sciences appeared by and through its counsel of record, Mona Jamison. Yitnesses were duly sworn, and oral and docTh~entary evidence was in-~ traduced. The Board, having read and fully considered the com]1lete record, makes the following Findings of Fact and Conclusions of relating to the Big Horn Conservation District Application No. -r43P: FINDINGS OF FACf 1. The Big Horn Conservation District has applied for a reservation of 200 acre-feet water per year (af/y) wit.'l a m.axinun diversionary flew rate of 151 cubic feat per second (cfs) to be use<l"t:o irrigate 9,645 acres. On the average t:hls reqll!i!St is for a diversion of 2. 20 acre-feet per acre with a ma:dnU!l flew rate of 1 cfs per 63. acres. Water is requested from the Big Hom River and the Tongue River for the :1eer .(Application No. 9!:~2-r43P). Findings Related to d,e Puroose of this Reservation (89-890(3)(a)). 2. The purpose of the reservation is to insure >-~ater availability and adequate streamflow for the future agricultural r,eeds of the Big Horn Conservation District. (The Big Hom Conservation District Application at page 3. It is established to the satisfaction of the Eoerd that a purpose of the reservation has been shown (Finding A reservation of water is because will secure a priority date for future developments t:het is earlier 1:.~ the priority dates such developments would have if permits were obtained inmediately before construction or use began (BiG Horn Conservation District, Application No. 9952-r43P. p. 5). 5. The reservation is needed because there is a proliferating world-wide demand fm: fvod, which is dependent on sufficient water availability. (The Big Horn Conservation District Application at page 4) . 6, A reservation is needed because there ccrnpetitioo for water in the YellCIW:btme River Basin which may affect the availability .of the Applicant to obtain a water right by permit in the future. This, in tt...'?!l, will also help promote ~~e necessary pLL~ng. (Tne Big Horn Conservation District Application at page 5). ! . Lt is established to the :;atisfaction L~e Board that the need for a reservation of water has been shown (Findings 4 and 5) . Findings Related to the Amount of Water Necessarv for the Purpose of the Reservation (89-890(3) (c)), 8. The amJUr~t of water necessary for this reservation is the amJUr~t required to irrivate the number of acres described in this application that can reasonably be ~ected to be comoleted by the Big Horn Conservation District by the year 2007 (EIS). 9. The payment capacity consists of total farm revenue mirl1ls all costs except irrigation water costs and is the rmx:imum amJUr~t a water user could pay for water while maintaL'ling a profitable operation (Big Hom Conservation District, Application No. 9952-rl,)P, p. 21). The cropping pattern by percem: .. is 25"/, for grain 56% for hay, 371~ for silar,e and 15% for cash crops in the Bir; Hom River Basin with a ma:idnun paywmt capacity of $200.00 per acre. (The Bi~ Hom Conservation District Application at pa~e 2J) . lL A 7'5;~ an-farm irrigation efficiency was ass1Jl!led for sprinkler irrigation and 55~~ for: flood irrigation. (TI1e Big Hom Conservation District Application at page 10). 12. Conveyance losses were estimated by formula and included in the diversion- ary requirement needs. {The Big Hom Conservation District Application at page 10) . 13. Peak diversion requirGll8!1tS were calculated using recoomended peak consumption use rates alfJlfa divided by the on-farm efficiency. (The Big !lorn Conserv:Jtion District Application at page 10). The cakulated values for alfalfa equals gpm JJer acre-foot for flood irrigation and 7 for side-roll sprinklers. In the case of center pivots, the peak rate was r:&luced to 6 !;'Pffi per acre to more closely mate.~ the - ' - - infiltration rate of heavv soils to the application rate of system. (The Big Hom Conservation District: App1i..:ation at: page 10). 15. The system will not meet pe-ak plant consumptive uses, but using the c soil profile as a ooisture reservoir, the system is sized sCllJeillhat below that required to meet peak coro.sumptive uses. (The Big Hom Cooservaticn District Application at page 10), Hi. The diversion requirement ra.""lgeS frcrn , 54 cfs per 40 acres to ~ 00 cis per 40 acres with an annual requirement ranging frcm 2.09 acre~feet per acre to 85 acre-feet per acre for an average of flow rate of 63J37 acres per 1 cfs. (The at pa;?;e 11), 20 acre~feet per acre with a ma:m!U!I Hom Cc'm!lervation District Application All systems ~>-ere designed to operate sixru1taneous1y, even ro large systems in lieu of a rotation systrnL (The Big Hom Cooservatiro District Application at paGe 10). 18. Using irrigation factors of 2.20 acre-feet per year of water per acre, and 63.37 acres per cfs, a reservation of ~~ter sufficient to irrigate 9,175 acres would be 20,185 acre-feet with a max:Lwm diversionary flow of 143,13 cfs. 19. It is established to the satisfaction of the Board that ,185 acre- feet per year with a rr.ax:imum diversionary flow rate of 143.8. cfs is the al!Dllllt of water necessary for the PUll'OSe of the reservation to the year 2007. 19(n) A reservation water has been granted to the Department of Natural Resources with the cundition that the Department provide the Big &-m1 Coosavatioo. District' a reservation request from the Tongue !liver to the Big Hom C:::r,:-..servatiro District for 1, 034 acre feet per year. 19(b) !12cau•l!1i! of the Department Natural Resources' Reservation in the tO[~~ River and its condit~ons. there is no need for a reservation of axrJ amount water in the River for the Big Horn Conservation District, Fimlings Related to the Public Interest (39-890(3) (d)). 20. The reservation will contribute economically to the public interest. (The Big Horn Conservation District Application at page 7) . The developmrnt of future irrigation projects in Big Hom County and beneficial u..qe of ~.mter will create jobs and increase the tax revenues. (The Big Horn Conservation District, Testi."TTDny of Yugo Nayematsu, Tr. VoL 29) . 22. The development of new pm~ping facilities, ditches, canals, sprinkler systems, and other diversions will contribute to the economic stability of the County, New irri?;ation would increase incc:rne in Big Horn v::runty, both for t.'le farmers who would install the systems and for t.'le local businesses th~t would enjoy increased sales resulting from the-increase agricultural income. New irrigation would increase the ~er both on-farm and off-farm jobs. (Draft EIS, VoL p. The Big Hom Conservation District has rn established plan for c~letion of the proposed faciliti.:;,s which will put reserved water to use by the year 200 7 (Bi~ Horn Conservation District, Application 9952-r43P). 25. By reserving \>Jater for future beneficial uae, individual ranchers and farmers have a more favorable timetable in ~ich to accumulate the capital needed to finance, to take T~~ advant~~e of favorable changes in the agricultural market, or t:o the roost contcidporary technology available in water delivery systerr~. (Big Horn Conservation District f'!Jplication at page 5). • TI1e plan of the Big Hom r..onservation District ·is not spet:ulative and documented to t:he highest degree of detail Horn Conservation District), 27. The reservation shall be put to use within reasonable diligence and the ~ pl<m includes a fide intent 1lrld ability to uae the ~Jater reserved as projected. 28. Detailed plar~ng of district projects be accomplished through funds made available by the Montana Legislature or Big Horn County mill levy. The Deparnnent of Natural Resources and Conservation's Teclmical Assistance Program also be use<L (The Bi" Horn Conservation District Application at page 3) . 1he l"lcard is satisfied u'1ere will be progress toward «'~letion construction of the facilities wic~ reasonable diligence according to an established plan which includes the economic feasibility of each project, a soils anc land classification analysis showing the suitability of lands to sustain irrigation, and possible sources of funding. A reservation sufficient ot irrigate 9,175 acres with water frcm the Big Horn River is in the public interest because is reasonable to expect that the Big Born Conservation District will irrigate an additional 9, the vcar 200 7 acres by 3L It is established to the satisfe~ction t.'le Board that the reservation of 20,135Df/y from the Big Horn River with a diversionary flow rate . 3 cfs to be used for irrigation in t.'le public interest and that there will be progres~ toward completion of the facility and accomplishment of the purpose with n•.asonable diligence in accordance with &"I established plan. It is further established by the Board that a condition of the Department of Natural Resources' reservation of water in the Tongue River is to supply the Horn ConseYVation District 'nth l, acre~fcet and a peak flow rate of cfs to irrigate 470 acres, CONCLUSIONS OF IAH l. Chapter 8, Title 89, R. 1947, and in particular, Section 89-890, R.C.H. 1947, authorize the adoption the Montana Board of Natural !lesow:ces and Conservation gf orders reserving water to qualified applicants for reservation of water. 2. If ordered adopted, a reservation must be ordered adopted in accordance 1947, and any rul.;,s adopted theretmder. The .Applicant, Big Horn Conservation District, a political subdivision of the State of Hontar.a and as such entitled to apply to reserve water witr~, the State of Montana in accord.nce with 89-890, R.C.M. 1947, and any rules adopted thereunder. 4. All pertinent statutes and rules of the State of Hontana have been ad- hered to in review of t.'tis reservation application, both by the M:Jntana Depertment of Natural Resources and Conservation and by the Montana Board of Natural Resources and Conservation. 5. Based upon the above Findings of Fact, specifically based upon any condition, limitation, or modification of the full application appeering in said Findings, all pertinent criteria delineated in Section 39-890, R.C.M. 1947, end any rules adopted thereunder providing for t.he adoption water have bt.'en met. · 6. Nothing found herein has bearing Llpon the status of water rights claimed by the Applicant other the.'> those herein newly applied for, nor does anything found herein have bearing on t11e status of clai.rned \vater rights of any other party except in relation to those rights herein ne\vly applied for, to the extent necessary .to reach a conclusion herein. BEFORE THE BOARD NATURAL RESOURCES AND CONSERVATION OF STATE OF ~10NTANA ----------------------------------=--------------=--------------~---- IN THE ~~TTER OF APPLICATION FOR RESERVATIO!l OF WATER NO. 10, 003-r42KJ BY THE TREASURE CONSERVATION DISTRICT ) ) ) ) ) FINDINGS CLUSIONS TION NO, FACT AND CON- OF LAW OF APPLI- l0,003-r42KJ The above-entitled matter came on regularly for hearing starting on or about September 6, 1977, in Billings Montana, before the Montana Board of Natural Resources and Conservation and its duly a!Jpointed Hearing Examiner, James Driscoll. The Applicant appeared by and through its counsel of record, Gary Spaeth. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The ~fontana Department of Fish and Game appeared by and through its counsel of record, F, Woodside Wright and Clayton Herron. The Montana Department of Health and Environmental Sciences appeared by and through its counsel of record, Mona Jamison, tiitnesses were duly sworn, and oral and documentary evidence ~•as traduced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Lmv relating to the Treasure Conservation District, Application . 10 003-r42KJ: FINDINGS OF FACf l. The TrclSure Conservation District has applied for a reservation of , 978 acre-feet of water per year (af/y) with a. maximum diversionary flow rate cubic feet per second (cfs) to be used to irrigate 7, 645 acres. On the average this request is for a diversion of 2.61 acre-feet per acre with a t:lE!Xi."'Illlll flow rate of 1 cfs per 59.26 acres. Water is requested frcm the Yellavsrnne River, Big llo:m River, Sarpy Creek and Tullock Creek for t\1e year 2000. (Application No. lO,C03-r42KJ). Findings Related to the Purpose of this Reservation (89-890(3)(a)). 2. The purpose of the reservation is to insure water availability ar.d edequate streal'lflow for the future agricultural needs of the Treasure Ccltlservation District. (The Treasure Conservation Dis.trict Application at page 4). 3. It is established to the satisfaction of the Board that a purpose of the reservation has been shCMn (Finding 2) . 4. A reservation of water is needed because it will secure a priority date fm: future developments t.~t is earlier t.~ the priority dates such developments 11 would have if permits were obtained immediately before construction or use began (Treasure Conservation District, Application No. l0,003-r42KJ, p. 5). 5. The reservation is needed because there is a proliferating world-wide demand for food, which is dependent on sufficient -water availability. (The Treasure Conservation District Application at par,e 4). 6. A reservation is needed because there ccmpetition water in the Yellcw1stone River Basin which rr.ay affect the availability of the Applicant to obtain a water right by permit in the future. This, in turn, will also help prcm:Jte the necessary planning. (The Treasure Conservation District Application at page 5), 7. It is established to t.~ satisfaction of the &.ord tb.at the need for a reservation of water lk'ls been shown (Findin~s 4 and 5). Find;inr;s Related to the A!oount of i·later Necessary for the Purpose of the Reservation 8. The 1!ll!O!Eit: of water necessary for this reservation is the 1!ll!O!Eit required to irrigate the number acres described in this application that can reasonably be e:qJected to be caTipleted by the Treasure Conservation District by the year 2000 (EIS). 9. The payment capacity consists of total farm revenue minus all costs except irrigation water costs and is the mm;imum amount a water user could pay for water While r.o~intaining a profiteble operation (Treasure Conservation District, Application !'!o. lO, 001-r42!<J, p. 19) . The cropping pattem by percent is 24% for grain and 59% for hay, 3/,~ for storage and 14~~ for cash crops with a rnax:imtml payment capacity of per acre. (The Treasure Conservation District Application at page 22). 11. A 90% om-farm irrigatioo efficiency was asslii!led for sprinkler irrigation and 60% for flood irri"ation. (The Treasure Conservation District Application at page 11). 12. Conveyance losses were estimated by fol:llllla and included in the diversion- ary requirement needs. (The Treasu:;:e Conservation District Application at page 12). 13. Peak diversion requirements were calculated using recrnrnended peak consumption use rates for alfdfn divided by the on-fm:m efficiency. (The !'rcasure Conservation District Applicati.on at page 14. 'IhO! calculated values for alfalf:1 equals 11 gpm per acre-foot for ::.;11 sprinklers. In the case of center Conservation District A;:rplication at: 11). The system will not meet peak plant consu:!!ptive uses, but using the soil profile as a a>isture reservoir, the system is sized sooaihat below thst required to meet peak consurnDtive uses. (The Treasure CDnservation District Application at page 11). 16. The diversion ·reauirernent ranges fran . 54 cfs per 40 acres to 1 00 per 40 acres with an annual requirement ranging from 2. 39 acre-feet per acre to 3. 26 acre-feet per acre for an average of 2. acre-feet per acre with a mamrrum flow rate of 59. 26 acres per 1 cfs. (The Treasure Conservation District Application I ' at page 12). t ~ All syst~ were designed to operate simultaneously, even on large systans in lieu of a rotation svstem. (The Treasure Conservation District Application at page 11) . ~ Using irrigation factors of 2.61 acre-feet per year of water per acre, and .26 acres per cfs, a reservation water sufficient to irrigate 7,035 acres would be 18,361 acre-feet with a maxtmum diversionary flew of 118.6 cfs. 19. It is established to the satisfaction of the Board thst ,361 acre- feet per year \ii.th a rnaxi.'TI!.l!TI diversionary flow rate of 118.6 · ':is is the amount of water necessaty for the purpose of the reservation to the year 2000. Findin~s Related to the Public Interest (39-890(3)(d)). The reservation tvill contribute economically to the public interest. (The Treasure Conservation District Application at page 21. The development future irrigation projects in Tresstu:e County and beneficial use of water 1vill create jobs and increase the tax revenues. (The ~ Treasure Conservation District l'.pplicatirn at page 8). • 22 From 1960 to 1970, the rural ponnlation in Treasure County declined opportunities (Draft EIS, VoL The development of new ptm!ping facilities, dit~'les, syste!'ls, and other diversions will contribute tc the economic stability of the Cminty. Treasure Conservation District Application at page 24. New irrigation l,rould increase inccm:: in Treasure County, both for the farmers ~.no t-lOUld install the s;rst~.s .:md for the local businesses that would enjoy increased sales :resultinp; f:rcn the increase in agricultural inccme. New irrigation would increase the of both on-farm and off-farm jobs. (Draft EIS, Vol. I, p. 156). 25. The Treasure Conservation District has an established plan for ~letion of the proposed facilities which will put reserved water to we by the year 2000 (Treasure Conservation District, Applicat:ion No. 10,003-r42KJ). 26. By resen'ing wat:er for future beneficial use, individual ranchers and fm:mzrs have a more favorable timetable :Ill lfilld1 to acCili!Ulate the capital needed to f:irumce, to tal::e rna~! advantage of favorable changes in the agricultural market, or to utilize the !OOSt contemporary technology available in water delivery systems. (Treasure Conservation District Application at page 27. The plan of the Treasure Conservation District is not speculative and documented to the i1ighest degree of detail possible. (Treasure Ccr!servation District). 28. The reservation shall be put to use within reasonable diligence and the plan includes a bona fide intent and ability to uae the water reserved as projected. 29. Detailed plannL1p, of district projects will be acccnplished through funds available by Montana Lep:islature or Treasure County mill levy. The Departrnznt of Natural P-csources and Conservation's Technical Assistance Prog;ram will also be used. (The Tr'easure Wir'.servation District Application at page 1 30. The Board satisfied there be progress ta•ard ccmpletion of construction of the f~cilities reasonable diligence according tc an established plan which includes the economic feasibility of each project, a soils and land classification analysis showing the suitability of lands to sustain irrigation, and possible sources of funding. 3 L A reservation sufficient to irrip;ate 7, 035 acres is in the pul:: 1 ic District will irrigate an additional 7,035 acres by the year 2000. 32. It is established to the satisfaction of the Board that the reservation of 18,361 a£/y wit:h a rr.a.'<imum diversionary flm rate of 118.6 cfs to be used for irrigation is in the public interest and that there will be progress toward ccrn- pletion of the facility and accomplishment of the p~-pose with reasonable dil~gence in accordance with an established plan. oocause of the necessity of storage and because of the lack of any plans for stora~e, it is not established to the satisfaction of the Board that there is a need for a reservacion of water in Sarpy Creek or Tullock Creek, or that a reservation on these creeks is in the public interest. conusm:~s oF LA'J 1. Chapter 8, Title 89, R.C.M. 1947, and in particular, Section 89-890, R.C 191•7, authorize the adoption by the ~lantana Board of Natural Resources and Conservation of orders reserving water to qualified applica.nts for reservation of water. If o1xicred tJ(k:>ptcd~ a reserv,: must be ordered adopted in accordance with Chapter 8, 1947. and any rules adopted thereunder. 3. The Applicant, of the State of Montana and as is tlcd to anply to reser..re water within the 1947, and any rules • the State of Hom:ana have been ad~ hcred to in review of t.'lis reservation anplication, both by the M:lntana Depart:ment Natural Resources a:rul Conservation a:rul by the tblt:ana Board of Natural Resoorces and ConserJation. 5. Rased upon the above FiOOin;;s of Fact, and specifically based upon <my condition, limitation, or modification of the full application appearing in said Findings, all pertinent criteria del:ineated in Section 89-890, R.C.M. 194:>, and ;my :rules adopted thereunder providing for the adoption of an order reserving water h::we been met. 6. Noth:ing found herein has beariw, upcn the status of water rights claimed by the Applic<IDt other than these herein newly applied for, nor does anything found herein have bearing on the_status of clail:Ed water rights of any other pa:rty except in relation to those rights herein ~ly applied for, to the extent necessary to reach a conclusion herein. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTA!:lA ------------------------------=----------------------------------===- IN THE ~~TTER OF APPLICATION FOR RESERVATION OF WATER NO. 10,005-r42KJ BY THE ROSEBUD COUSERVATION DISTRICT ) ) ) ) ) FINfn;~GS OF FACT AND CON- CLUSIONS OF LAt-1 vF APPLI- NG. 10,005-r42KJ ---------------------------------------------------=----------------- The above-entitled matter came on regularly for hearing starting on or about September 6, 1977, in Billings, Uontana, before the Montana Board of Natural Resources and Conservation and its duly ap- pointed Hearing Examiner, James Driscoll. The Applicant appeared and through its counsel of record, Gary Spaeth. The Montana Depart-4 ment of Natural Resources and Conservation appeared by and through its - counsel of record, Richard Gordon. The Montana Department of Fish and Game appeared by and through its counsel of record, F. Woodside 1 ~lright and Clayton Herron. The ~!ontana Department of Health and Environmental Sciences appeared by and through its counsel of record, ~!ona Jamison. tnesses were duly sworn, and oral and documentary evidence was introudced. The Board, having read and ful considered the complete record, s the following Findings t and Conclusions of Lcnv relating to the Rosebud Conservation District, Application No. 10,005-ri\2KJ: fl!IDlliGS OF FI\Cl' L 1'lv! Rosebud Cl:.mservation Distdct has applied for a res~tiw of 94,129 &:r~fll!:':!t of ~tel: per year (af/y) with a di:versioom:y flow rate of 585 c-.Jbic feet per (cfs) to be used to L~ate ,360 acres. en the .;;werage ehL! ~1: b for: a diwrsioo of 2.52 acre-feet per &:re with a lll!ll!::lm:m flow rats of 1 cfe per 63.86 acres. Water is requested frcm the Yell.cwsto:Je River, Toogue Ri'W!r, ~Creek and Amo!ills Creek for the yee.r :woo. (Application No. lO,OOS~r42KJ). Finding! Related to the l'u:l:'oose of this Reservation (89-890(3)(a)). 2. The ~e of the ree.arvatioo is to imru:re water availability t!!1d DillttiCt, (Tiv! ~ Wrn>~tioo ilis!:;ricl: .Applicadoo at ~ It is established to the sstisfaction of the Ikm'd that <i purpose of the ree.arvation has ~ show!-. ~ 2). A reservation of water is needed beclrulile it will secu:re a priority date for future devel~ts that is em:lier than the priority date!! I!IUCh devel~ts would have if pemits were obtained il!mediately before alflS~tioo or use began (Rosebud Cl:.mservatioo Dist:rict, Application No. 10, 005-r42KJ, 5) . 5. The reservation is needed bec~ruSe there is a proliferating '!!OI'ld-wide daillmd for food, ~ch is dependant on aufficient water IM:dlability. ('rhe Rosebud Conservation District Application at page 4). 6. A reset"'ml:ion is because there ~titfon.for water in the Yellowstone River B&lm ~cl! affect the availability of the Applicant to obtain a water dp,ht by permit in ~ future. This, in rum, will also help pcarote the ~~s~ p!Rm~. ('l:he Rosebud Conserll'<!tion DiiFlttict Applicml:ioo at p~e 5), l3oard t.P.at the need for a reservation of water has been shown (Findings 4 and 5) Findings Related to the Amount of Hater Necessarv for the Purpose of the Reservation 8. The 8!Jl0Uilt of water necessary for this reservation is the amount required to irrigate the number of acres described in this application that can reasonably be expected to be completed by ~~e Rosebud Conservation District by the year 2000 (EIS) . 9. The payment caoacity consists of total farm revenue minus all costs except irrigation water costs and is the maximum a!>JUnt a water user could pay for water While maintaining a profitable operation (Rosebud Conservation District, Application NO. 10,005-r42KJ, p. 22). 10. The cro:::>ping pattern by percent is 1~(, for grain and 65% for hav, 5% for silage and 11% for cash crops in the Yellowstone Basin for a ma:idnurn capacity of $170.00 per acre, and 24/~ for grain, 59% for hay, for silage, and 14% for cash crops in the Tongue River Basin with a ma'ti.uum payment capacity of$186.00 per acre. (The Rosebud Conservation District A,nplication at page 24). 11. A 75% on-farm irrigation efficiency was assUTed for sprinkler irrigation and 55% for flood irrigation. (The Rosebud Conservation District Application at page 11). Conveyance losses were estiwated by formula and included in the diversion-. al:'J requiranent needs. (TI1e Rosebud Cocservation District .4pplication at page 11). 13. Peak diversion nc-quirements were calculated using reccmnended peak consumption use rates for alfalfa divided by the on-fru:m efficiency. (Thl:! Rosebud Conservation District A,ryplica~ion at page 11). 14. The calculatro values for alfalf.::t equals 11 gpm per acre-foot for flood irrip:ation a'1d 7 RPffi side-roll sprL~lers. In ~~e case cf center p.c•vvc,;,, the peak rate was reduced to 5.5 to 6 gpn per acre to more closely mtch the netivv soils to t:hP rate (The Rosebud Conservatioo District Application at page 11). The system will not meet peak plant coos~tive uses, but using the required to l!!eet peak coos~tive uses. (The Rosebud Ccmservatioo District Applicatioo at page 11). The diversioo requirement ranges frcm J~9 cfs per 40 acres to LOO cfs per 40 acres wit.~ an annual requirement ranging frcm 2.15 acre-feet per acre to 26 acre-feet per acre for an average of 2.52 acre-feet per acre with a lllllXil!un flow rate of 63. 86 acres per 1 cis. (The Rosebud Conservation District Application at pap,e 17. All systems were designed to ooerate sim.lltanacu!ily, ellEn on large syste:JS in lieu of a rotation system. (The Rosebud Corlsavation District Application at pa~e 11}. 18. Using irrigation factors of 52 acre-feet per year of water per a,.,..e, and 63.86 acres per cfs, a reservation of water sufficient to irrigate ,525 acres would be 87,003 acre-feet with a lllllXil!un dive:rdonary flaw of 540.7 cis. 19. It is establisl:!t.>d to the satisfaction of the Boord that 87,003 acre- feet per year with a maximum diversionarv flaw rate of .540. 7 cfs is the =t of water necessary for the purpose of the reservation to the year 2000. 19(a) '!l,ero is no watPr available for the proposed irrigation that woold tal<:e water from Rosebud and ~lls Creeks , and Rosebud Corlservation District hes no plans to develop storage on these creeks. (P.osebud Corlservation District, Application N<,. 10,005~r42Kj, pp. 15 and 18), 19(b) It hes no:: been established to the satisfaction of !:he 003rd tl:Ylt there 19(d) Because of the Department of Natural Resources' reservation and its conditions, there is no need for a reservation of any 3IOC'Ul1t of water in the Tongue River for the Rosebud COnservation Districto Findings Related to the Public Interest (89-890(3)(d))o The reservation will contribute economically to the public illteresto (The Rosebud Conservation District Application at page 7) . 21. The develooment of future irrigation projects ill Rosebud County and beneficial use of water will create jobs and increase the tax revenues. (The Rosebud Conservation District Application at page 7) 0 22. Fr001 1960 to 1970, the rural population L"'l Rosebud County declined 5 percento A major reascn 'liaS a lack of job opportunities (Draft EIS, VoL 1, p. 101). -23. The develq:rnent new pt.mpL'!g facilities, ditches, canals, sprinkler systems, and other diversions will contribute to the eccncrnic stability of the County. (The Rosebud Conservation District Applicaticn at page 8) . 24. Hew irrigaticn would increase income ill Rosebud County, both for the fanners who would install the systems and for the local businesses thet ~'OUld enjoy increased sales resulting frcm the increase ill agricultural income. New irrigation would increase t.'1e number of both en-farm and off-farm jobs. (Draft EIS, Vol. I, p. 156). 25. The Rosebud Conservation District has an established plan for completion of the proposed facilities which •vill put reserved water to use by the year 2000 (Rosebud Conservation District, Application No. 10,005-r42KJ). By reserving water for future beneficial use, individual ranchers and farmers have a mare favorable tL~tsble in ~tuch to accumulate the capital needed to to take rr.axir.lllm advants>;e of favorable changes ill t.'f:le agricultural mm:ket, or to utilize the rnosc ccnternpor;rry teol:'>.nology available ill water delivery systems. (Rosebud Conservstion D5.stricr: 0 4 ' 27. The plan of the Rosebud Conser.;ation District not speculative and doc~ted to tlw highest degree District). detail possible. (Rosebud Conservation 28. The reservation shall be put to use.within reasonable diligence and the plan 'Includes s bon!il fide intent and ability to use the water reserved es projected. 29. Detailed planning of district projects will be acccmplished trcough fi..mds m.de mmilable by tOO Montima Legislature or Rosebud County mill levy. The Depart:l!!mt of NE!tu:ral Resources and C:mservaticn' s Technical Assistance Program will also be u.<;ed. (The Rosebud Conservation District Application at psp,e 3). 30, The ~d' is satisfied t!wre will be progress toward ccmpletion of construction of t.'le facilities with reasooable diligence according to an established plan which 'Includes the ec~c feasibility of each project, a soils and lzn? classification analysis showing the suitability of lands to sustain irrigation, 3L A reservation sufficient to irrigate 525 acres is in the public interest t~cause it is reasonable to expect that the Rosebud Conservation District will irrigate an additi.onal acres by the year 2000. 32. It is established to d1e satisfaction of the Board that the reservation of 87,003 sf/y with a max:i:mum diversionary fla<J rate of 540.7 cfs to be used for irrigation is in the public interest and t.'lat: there will oo progress toward completion of the facility and accomplishment an established olan. CONCLUSIONS OF lPM L Chapter 8, Title 89, !LC 1947, and L~ purticJlar, Section 89-890, R. 1947, authorize the adoption by the ~bntana Board of Natural Resources and Conservation of orders reserving water to qualified applicants for reservation of water. 2. If ordered adopted, a reservation must be ordered adopted in accordance with Chapter 3, Tilte 89, R. 1947, and any rules adopted thereunder. The Applicant, Rosebud Coru!ervation District, is a political subdivision of the State of ~fontana and as such is entitled to apply to reserve water within the State of tbntana in accordance with 89~390, R. 1947, and any rules adopted thereunder. All pertinent statutes and rules of the State of MOntana have been ad- hered to in review this reservation application, both by the tbntena Department of Natural Resources and Conservation and by the tbntana Board of Natural Resources and COnservation. 5. Based upon the above Findings of Fact, and specifically based upon any condition, limitation, or modification of the full application appearing in said Findings, all pertinent criteria delineated in Section 89-890, R.C.M. 1947, and any rules adopted thereunder providing for the adoption of an order rese-rving water have been met. 6. Nothinll; found herein has bearing upon the status of water rights clamed by the Applicant other tr.an those herein nEwly applied for, nor does anythin!"; found herein have bearLrtg on the status of clai.med water rights of any other party except in relation to those rights herein newly applied for, to the extent necessary to reach a conclusion herein. I - BEFORE THE BOA.>l,D OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA ---------------------------=-----------------------------------------) 'IN THE MATTE!\ OF APPLICATION FOR ) RESERVATION OF WATER NO. 9947-r42~1 ) BY THE NORTH CUSTER CONSERVATION ) DISTRICT ) ) FINDINGS OF FACT A.~D CON- CLUSIONS OF LAW OF APPLI- CATION NO. 9947-r421't --------------------------------------------------------------------- The above-entitled matter came on regularly for hearing starting on or about September 8, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and ita duly appointed Hearing Examiner, James Driscoll. The Applicant appeared and through its counsel of record, Gary Spaeth. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of re- cord, Richard Gordon. The Uontana Department of Fish and Game ap- peared by and through its counsel of record, R. Woodside Wright and Clayton Herron. The Hontana Department of Health and Environmental Sciences appeared by and through its counsel of record, !!ona Jamison. Utah International, Inc., appeared by and through its counsel of re- cord, Urban Roth. Intake Water Company appeared by and through its counsel of record, Henry Lohle, Witnesses were and documentary evidence was introduced. swo1rn, and oral The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to the North Custer ConseJrvation Di~trict, Application No. 9947-r42M: "lliDl'lCS 0"' FACT . L Table NCCD-1 sumnarizes the recuest for reserved vater made by the ''lrn·rl- Custer Conservation District year 2007 9947-r42l'l, Table 1, on p. and amended Table l). NORTH CL'STER CONSERV.\TION DISTRICT ?.ESERVATION REQl:EST Type ~ IrriFCation or Pull- Service \Jater- fuurce ! Irrigation · snread:ing .Acres Yellowstone River Number of acres to be Irrigated 7 Jtl.O ') 7 /<Nl water ~quest in Acre-:,eet ner year 18,301 0 Mlx:irluJ1 Diversiona..'"V Flow rate in cfs • 123. ,, ::J Tongue !liver I Number cf Acres to be Irrigated 4,605 " l;,E05 I ,, :·later Request :in per year 10,8'?7 I f) t-mtim.m Diversionary FloH rate :in cfs 66.8 I ') I P<:Nider Hainstem I Number of Acres to be Irrigated 26,150 2,585 28,733 ~ater P2quest :in Acre-feet I per year 73, 1.878 :i:lxi.rrum Diversionary flov1 I rate in cfs 566.9 129.3 Powder Tributaries Number of il.cres to ) Irrigated 0 4,200 4, Water Request in Acre-feet per year ~ 300 \J rm:L= Diversionaxy Flov1 rate in cfs 0 420 'M ( Anplication :::o. Totals cfs Hl, 123.4 10,397 66.8 ,358 696.2 300 .,., w::lO 1,3~ 'l'he pu:rpose of the reservation is to insure water availability and 00equate str~ for the future agricultural needs of the North Custer Conservation District. (rh2 North Custer Conservation District Application at page 5). It is established to the satisfaction of the Board that a purpose of the rese!V<Ition has been shown (Finding 2) . Fi.nd:in!l;s Related to the Need for the Reservation (89-890(3) (b)). 4. A reservation of water is needed because it will secure a pric,:i.ty date for future d.ew!lop~Ents that is earlier than the priority dates such d.ew!lOjliYE!lts w:ruld have if permits were obtained :i.l:mlEdiately before oonstruction or use began (North Custer Conservation District, Application 9947-r42M, p. 7). 5. 'l'he reservation is needed because there is a proliferating world-wide demand for food, which is dependent on sufficient water availability ('l'he Nort.~ Custer Corulervatioo District Application at page 6. A reservation is needed because there is caJTpetition for water the Yellowstone River Basin which my affect the availability the Applicant to obtain a water tight by permit in the future. This, turn, will alsc help prG~~Dte the necessary planning ('!he North Custer Conservation District Application at page 7. It is established to the satisfacticn of the Board that the need for a reservation of water has been shown (Findings 4 and Findings Related to the llm:lunt of Water Necessary for the Pw:pose of the Reservation The amount of water necessary for this reservation is the amount required to ir.~gate the number of acres described this applic~tion that CBn reasonably be expocted to be completed by the North Custer Conservation District by the year (EIS). 9. The pt;~jll!l!lfit capacity ccnsists total farm re11er100 all costs ~ept irrigation water costs em:! is thl:! maldxiUli mrount a water user ooW.d pay for water while maintaini."lg a profitable operation (North Custer ~rnservation District, Ap~ plication . 9947-r4211, p. 10. The crO!Jping pattern percent 13% for grah"l and 61% for hay, 8% for silage and for cash crop in the Kinsey area, 19% for grain, 55% for hay, 5% for silage, and for cash crops L'1 the Tongue River Basi."!, and 12% for grain, for hay, 6% for silage, and w;~ for cash crop in the Powder River Basin (North Custer Conservation District Application at p. 12) . 11. A 75% on-farm irrigation efficiency was assU!lEd for sprinkler irrigation and 55'7o for flood irrigation (The North Custer Conservation District Application at p. 12). 12. Conveyance losses were esti.'llSted by fo:rn!!lla and L<cluded in the diversionary t requirements needs (The North Custer Conservation District Application at page 12). 13. Peek Diversion requirements were calculated using recO!mE!lded peak con- sumption use rates for alfalfa divided by the on-farm efficiency (The North Custer 4 Conservation District Application at page 12) . 14. TI1e North Cus;:er Conservation District has requested 10,897 acre-feet per year (af/y) and a peak flow rate of 66.8 cubic feet per second (cfs) of its total 4 applied for arnounr ~o irri~ate 4,605 acres with water from the Tongue River (North Custer Conservation District, Application 9947-r42N, p. 13; Finding 1). 15. Without additior.al storage, sufficient unappropriated water is not avail--41 able to provide the requested water for the expansion of irrigation in the Tongue River Subbasin (Draft EIS, VoL II, p. 265; :~rth Custer Conservation District, Ap~ plication No. 9947~r42M, p. 14). 16. The North ~ster Conservation District has no plans the provision of such needed storage in Tongue River Subbasin (North Custer Conservation District, 1\pplication 9947-r42.'1). 17, Neither individual irrig:ators nor groups of irrigators alone could afford to pay the storDge needed in w'l.e Tongue River Subbasin (Draft EIS, VoL -183- for a reservation of all the UP~ppropriatedwater the Too,.,~ R1 ver in order to provide such needed storage to ali existing and potential water users in the Tongue River Subbasin by enlarging the Depart:llllmt' s existing end presently fully coomitted T~ River Reservoir storage facility (Draft Addendum EIS, p. 15). 19. A condition of the water reservation given to the Department Natural Elesources is that part of the resE'l:'Jation is to be used to satisfy tl>.e request of the North Custer Conservation District from the Tongue River (Order of Bo.:rd) . 20. Unless reservoirs are built and stored water is made available to irrigators, m water is .wailable for additional full-service irrigation in the PCJWder River Subbasin (North Custer Conservation District, Application NJ. 9947-r4~<i, pp. 14 and 15; North Custer Conservation District, Application NJ. 9947-r42M, Addendum NJ. 21. The NJrth Custer Conservation District has oo established plan for pro- viding the storage fli:Cessary to irrigate the acres that ~.;auld use water from the ~Riwr. It has oot b0en escabUshed to ti'.e satisfaction of the Board that reservoirs fur storage will be constructed and therefore the l'loard does oot gr2nt a water re- servation for full-service irrigation from the Powder River. Sufficient water is available from the Yello;;~~Stone River to irrigate the projects that will take water frcm the Yellowstone Riwr (Draft EIS, VoL II, pp. 276 and The North Custer Conservation District has applied a rese.."Vation of 18,301 acre-feet per year frol'l to {Application lb. 9947-r4~1, p. 25. 1:1i1i diwrsion requirement ranges fr= .49 cfs per 4!J acrll!:> to LOO cubic feet !JeT second for 40 acres with an annual requirement ranging from 2.18 acre-feet maximum flow rate of cfs per 60.29 acres (Custer Conservation District Applica- tion at page , and Addendum 1 the 1\r:ended Application) . 26. Using irrigation factors of l.46 acre-feet per acre, a reservation of water frcm the Yellowstone River sufficient to irrigate 7, 440 acres would be 18, 301 acre-feet per year and would be the amount necessa<'f for the purpose of ~~e reserva- tion for the year 2007. 27. The North Custer Conservation District has applied for a water ~eser'Jation from the Powder River and sore of its tributaries for the purpose of ir- rigating 2, 585 acres from water from the Powder ili ver a.'ld 4, ZOO acres from water frcm tributaries of the Pot'lder River by use of watersureading (Application No. 9947- r42M). 28. It is established to the satisfaction of the Board that 1.5 acre-feet per acre is the amount of water necessary to oroperly irrigate acreage by use of water~ spreading. 29. It is established to the satisfaction of the Board that the amount of ~~e water to meet the purpose of the reservation of irrigating by waterspreading tdth water frcm the P01~der River for 2, 535 acres and water from tributaries of the Powder River for 4,200 acres is 10,177 acre~feet per year. 30. It is established to the satisfaction of the Board that the amount of 'vater necessary to ~et the purpose of the reservation is as follows: a) 18,301 acre~ feet per year frOO' the Yellowstone River b) 10,177 acre~ feet year from the Powder River and tributaries of the Powder and tn be used for waterspreading. It is fJrther established by the Board that a condition of the water reservation granted to the Department of Natural Resources for the Tongue River will be to provide the water for the request frOO' the Tongue Ri'l'lar the North Custar r.onse:rvation District of 10,897 for 4.605 acres. ~ 185~ -• • ...;,- Findings Related to the Public Interest (89-890(3)(d)). 32. Th£l reservation 'Hill contribute economically to the public interest ('Ih;! l'brth Custer Wlservation District Application at page 33. '11m ~lopment of future irrigation projects North CUster Cbunty and beneficial use of water will create and increase the tax reven~res ('lh;o North Omter Calservatioo District Application at page 9). 34. Froll 1960 to 1970, the :rural population in llbrth Custer County declined lLS percent. A =jor reason was a lack of job opportunities (Draft EIS, VoL I, p. 101). 35. The development of new p~ing facilities, ditches, caools systems, and other diversions will cootribute to economic stability ('lh;o l'brth Custer Coo.!iervation District Applicatioo at page 9) . 36. New irrigatioo would increase-:inCOIIle in !'brth Custer County, both for the far=rs me would install the systEillS and for the local busim:!sses that would enjoy increased sales resulting from the increase in agricultural incCl!'lle. New irrigation would increase the number both on-farm and off-farm jobs. (Draft EIS, VoL I, p. 156). 37. The !'brth Custer Cmu;ervation District has on established plan com~ pletion of the proposed facilities which will put reserved water to use by the year 2007 (North Custer Conservation District, Application 9947-r42M, pp. m-id 24). 38. By reserving •~ater for future bt,.~ficial use, individusl ranc.'ters and farmers have a more favorable tL~table in which to accumulate the capital nee~d to finance, to .take maximum advantage of favorable changes the agricultural market, or to util:U:e the most contell!!XJrary technology available in water delivery systems. (Nort.'l Custer Conservation District llpplication at pages 5 and 6). 39. The plan of the North Custer Conservation District is rot speculatiVIl! and is docl.illented to the highest degree detsil possible. {I~rth Custer Chnserwtion District). Tnc ~eservation shalL put to use withiit reasonable diligence the plan includes a bona fide intent and abilicf to usa the water reserved as projected. 41. Detailed pl<U>ning of district projects will be accomplished through funds made available the M:lntana Legislature or :·lorth Custer County :mill levy, The Department of Natural Resources and Conservation' s Technical Assistance Program will also be used, (The :lorth Custer Conservation District Application at page 42, The Board is satisfied there will be progress toward completion of con- struction of the facilities with reasonable diligence according to an es~ablished plan which includes t.~e economic feasibility of each project, a soils and land classification analysis showing the suitability of lands to sustain irrigation, and possible sources of funding. It is established to the satisfaction of the Board that the reservatior~ t stated in Finding 30 are in the public interest. CONCLUSIONS OF lAW L Chapter 8, Title 89, R. 1947, and L~ particular, Section 89-890, R,C,M. 1947, aut<iorizes the adoption by the Hontana roard of Natural Resources and Can- servation of orders reservL1g \vater to qualified applicants for reservations of water, z. If ordered adopted, a reservation must be ordered adopted in accordance with Crnpter 3, Title 89, R, :1. 1947, a,~d any rules adopted thereunder. 3. The Applicant, the North Custer Conservation District, is a political subdivision of the State of Montana a'1d as such is antitled to apply to reserve \'i:lters within the State of Montana in accordance with Section 89-890, R.C 1947, and any rules adopted thereunder. 4. pertintnt statutes <md rules of the State of M:Jntana have been adhered to in the reviev this reservation Application, both by the M:Jntana Department of • Natural Resources and Conservation and bv the ~mtana Boord of Natural Resources and ~ 5. Based upon the above Findings of Fact, and specifically based upon any condition, limitation, or mdificaticm of t.'t!e full Aoplication in said Findings, 1.111 ~tinent criteria delineated at Section 89-390, R. 1947, and tm:y rlle!l ac:i."'Pterl thereunder providing for the adofJtion of am order reserving water 00ve been met. 6. ~thing found herci.'1 has bearing upon the status of water rig.'1ts cla:!.mad by the Applicant other t:hlm tll"Jse herein newly applied for, nor does found herein have beari."Jg on the status of damed water rights of any other party ~t in relation to those rights herein newly applied for, to the ~ent ooceasa:ry to re~~ch a conclusion herein. BEFORE THE BOARD NATURAL RESOURCES AND CONSERVATION OF THE STATE OF HONTANA -----------------·---·------------------------------------------------ ) IN THE ~lATTER OF APPLICATION FOR ) RESERVATION OF WATER Im. 9943-r42J ) BY THE POWDER RIVER CONSERVATION ) DISTRICT ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAH OF .'PPLI- CATION NO. 9943-r42J --------------------------------------------------------------------= The above-entitled matter came on regularly hearing starting on or about September 8, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James-Driscoll. The Applicdnt appeared by and through its counsel of record, Gary Spaeth. The ~!ontana Depart~ rnent of Natural Resources a~d Conservation appeared by and through its counsel of record, Richard Gordon. The Montana Department of Fish and Game appeared by and through its counsel of record, F. Woodside Wright and Clayton Herron. The l1ontana Department of Health and Environmental Sciences appeared by and through its counsel of record, Mona Jamison. Utah International, Inc. appeared by and through its counsel of record, Henry Loble. Witnesses were duly sworn, and oral and documentary evidence was introudced. The Board, having read and ful considered the complete record, makes the following Findings of Fact and Conclusions Law relating to the Powder River Conserva District, Application No. -r42J: - FINDINGS OF FAcr for wv1r 2000 as fol 75,560 acre-feet per }'ear with a maxi!Wlll diversionary flow rate 583.2 cfs fran the ~r River .to iM~te 25,245 acres with full- ®ervice i:rrigatioo b) 6,180 acre-feet per year with a diversionary flow rate of 206 cfs f:rrn~ the Powder River to irrigate 4,120 acres by !!ElmB of waterspreading c) 7,500 acre-feet rer year with a diversionary flow rate of 500 cfs frcm Powder River tributaries to irrigate S,ODO acres by !!ElmB of waterspreading (Powder River Comervatioo District, Ap- plication l'b. 9942-r43J, Table 1 and Table 1). Findings Belated to the Purpose of the Beserwtioo (89-890(J)(a)). 2. 1be pmpose of this reservation for the ~ted e.xpareion of ir:rigatioo in Powder River Ootmty by the Powder River Comerwtioo District (Powder River Cooservatioo District, fl...,~licatioo No. 9943- r42J, p. 4). 3. It is established to t:r.e satisfaction reservatioo has been shown (Fir.ding 2). Findings Related to the Need for the Reservation (89-390(3)(b)). A reservation of '{,rater is needed because it 'rill secure a priority date for future developments that is earlier than the priority datea such de11elopments would have if penllits were obtained imr.ediately before construction or use began (Powder River Conservation District, Application ~-9943-r42J, p. 6). A reservation of water is needed because there is c~l:ition for water in the Yellcwstcne &sin ~Mhich may affect right by pa~Aiit in ttw future 9943-r42J) . shown (Findings 4 and 5), FindirH;s Related to the flmount of Water I~ecessar: for the Purpose of the Reservation 7. The Powder River Conservation District has no established plan for viding the storage necess~-v for prooosed full-ser'lice irrigation. 8. It is unlikely that a.'"!y future storage on the P01vder River wi.ll provi.de a substc:ntial q=tity of water for irrigation (Tr. VoL 32, pp. l7 and 18). 9. In tl:-.e Powder ;liver Subbasin, only irrigation by waterspreacling could ex- pand significantly unless inexpensive stored water were made available for irrigation (Draft EIS, Vol. II, p. 278). It has not been established to the satisfaction of the Board that a100unt of water should be reserved for full-serlice irrigation in Powder River County because no water is available or likely to be made available to satisfy the water needs of full-serlice irr:_gation (Findings 7 through 9). lL Sufficierit '~ater is available in the Pov1der River Subbasin to irrigate the watersprcading projects the subbasin (Powder River Conservation District, Appli- cation No. 9943-rl,2J, p. l3) . 12. Of the 34,365 acres for tvhich a reservation has been requested by t.J-,e Powder River Conservation District, only 9,120 c:m be considered to have plans suf- ficient to merit a reservation becauge 25,245 acres can be developed only if storage is provideJ, and the Application contains no olans ~or such storage (Findings l and 7 through ll). 13. A fi&~ro of 105 acre-feet per acre of water is reasonable for waterspreading a'1d is nore t.'Jan the amount required for tvatersoreacling under good management (Ad- Conservation District) 14. is established to the satisfaction of the Board that t.~ 8T!DU!lt water necessary for the puroosc of the reservation of supolying 1.5 acre-feet per acre of mter 9, acres is 13,680 acr.o-feet per year. t , Findincs Related to the ~~iic Interest (39-890(3}(d))~ 15~ Fn:m 1%0 to 1970 the rural population in Powder River County declined 1'5.2 percent. A major reason was a lack of job opportunities (Draft EIS, VoL I, P~ 101). 16, New :lxrl~:;ation wJu1d increase income in Po-.<:ler River County, both for the fa:ml2rs W.w w:Jl.lld install the systems and for the local businesses that would enjoy increased sales resulting frcm the increase in agricultural incorne. New irrigation W:Juld increase the ml!lber of both on-fat'!ll and off-farm jobs (Draft EIS, . I, p. . The Powder River Conservation District has an established plan for c~letion of the proposed facilities for .mich a res€l:Vation granted that will put reserved water to use by the year 2000 (Powder IUver Cons€l:Vation District, Application No. 9943-r42J) . 18. A reservation sufficient to irrigate 9, acres is in the public interest ~e it is reasonable to expect thet the Powder River O:nse:rvation District-will irrigate an additional 9, 120 acres by the year :woo. 19. It b established to the satisfaction of the Board that the reservation of 13,680 af/y to be used for t~~atersrrr~adinl" irrigation is .;.a the public interest and thm: there will be progress ta~ard c~letion of the facility and accomplishment of the purpose with reasonable diligence in accorda.,ce with an established plan (Findings 15 through ll:l). CONCLUSIONS OF lAW L Chapter B, Title 89, R.C.M. 1947, and in particular, Section 89-890, R.C.l1. 191+7, authorizes the adoption by the lmtana Board of Natural Resources and Conservation of orders reserving water to <jualified applicants far reservations of water. If oroor!!ld .adDp;:o;d, :> w~l:.it be order!!ld adopted accordance Chapter 8, Title 89, R. 1947, and any rules adopted theramder. 'Ihe Applicmt, the POW!:k!r River Conservation is a political 11ubdivis:lnn uf tlw State of l-tlntana and as s~X:h entitled to awly to resetw waters within the State of Mont&'"la in accordance 1vi.th Section 89-890, c and any rules adopted thereunder. 4, All pertinent statutes &'!d rules of the State of Montana have been adhered to in the review of this reservation Application, both by the Montana Department of N9.tural Resources and O:Jnservation and the 11Jntana Board of Natural Resources and Conservation. 5. Based upon the above Findings of Fact, and specifically based lJt. m any condition, limitation, or modification of the full Application appearing in said Findings, all pertinent criteria delL~eated at Section 89-890, R.C 1947, and any rules adopted thereunder providing for the adoption of an order reserving water have been met. 6. ~thing fotnd herein has bearir;g upon the status of water rights claimed by the Applicant other than those berein·ne.vly applied for, nor does anything found herein have beari..'""lg on the status of claimed water rights of any other party except in relation to those rights herein newly applied for, to the extent necessary to reach a conclusion herein. 1 - - BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MOllTANA --------------=---~-------------------=------------------------------ ) IN THE !A,ATTER OF APPLICATION FOR ) RESERVATION OF WATER NO. 9946-r4 ) BY THE PRAIRIE CONSERVATION DISTRICT ) ) FINDINGS OF FACT AND CON- CLt:SIONS OF U~v OF APPLI- CATION NO. 99&6-r42H The above-entitled matter came on regularly for hearing starting on or about September 8, 1977, in Billings, Hontana, before the :Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll. The Applicant appeared by and through its counsel of record, Gary Spaeth. The :Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The Montana Department of Fish and Game appeared by and througl: its counsel of record, F. \~oodside Wright and Clayton Herron. The !·lantana Department of Health and Environmental Sciences appeared and through its counsel of record, l1ona Jamison. Witnesses vJere dulv sworn, and oral and documentary evidnece was introduced, The Board, having read and fully considered the complete record, makes the following of Fact and Conclusions of Law relating to Prairie tion District, lication No. 9946~r42M: FI:'ID:WGS OF FACT 1. The Prairie Conservation District hk<s aoplied for a reservation of 68,467 acre-feet of water per year (af/y) 1Yith a~~ diversionary flow rate of 567.5 cubic feet per second (Cfs). Of this ~Dunt, 68,024 acre-feet and a peak diversionary flow of 552.7 cfs are requested for full-service irrigation of 22,241 acres; 443 acre~ feet and a peak flow of 14.8 cfs are requested for 295 acres of waterspreading. All full-service irri~ation would use water fran the Yellowstone River. All vlater- spreading would use water frcm the Powder River. On the average, this request is fur a diversion of 3.04 acre-feet per acre and a maxi:mr~ diversionary flav1 rate of 1 ( 1\polication No. 9946-r42M, Table 1 as amended.). Findinns Related to the l'ur:>ose of this Reservation (39-890(3)(a)). 2. The jpurpose of the reservation is to insure water availability and adequate streamflow for the future agricultural needs of the Prairie Conservation District< (n1e Prairie Conservation Oistrict Application at page 3. It is establi3hed to the satisfaction of the Board that a purpose of the reservation has been shrn~ (Finding 2). 4. A reservation of water is needed because it tnll secure a priority date for future developments Lhat is earlier than the priority dates s~~ developments would have if permits \vere 0b~ained i'Wlediately before construction ar use began (Prairie Conservation District, Application rb. 9946-r42~, o. 6). 5. The reservation needed because there is a proliferating world-wide dea'IDd for , which is dependent on sufficient water availability. (The Prairie Conservation Di:::trict !lpplication :1.t page 4) < 6. A reservation needed because ~,ere is competition water in the Yellowstone River Basin which affect the availability of C,e Applicant to obt'lin a water right by permit in c~ fnture. This, i11 turn, will also help pr0100te the necessary plann:L',a. (The Conservation District Application 7. It is established to the satis the Board th~t the need reservation of water has been shown (Findin~s 4 and 5). 8. !ne am:Jtmt of water necessary this reservation is the arrount required to irrigate the number of acres described L~s application tr~t c&> reasonably be expected to be completed by the vr~1r1P COP~ervation District by the year 2000 (EIS). 9. The payment capacity consists of total farm revenue minus all costs except irrigation water costs and is the maxilr!ilm amotmt a water user could pay for water while maintaining a profitable operation (Prairie Conservation District, Application No. 9946-r42~, p. 24). 10. The cropping pattern percent is 29% for grain and for silage and for cash crops with a maximum payment capacity for hay, 10% $240.00 per acre. (The P:·airie Conservation District Application at page 25). 11. A 75% on-farm irrigation efficiencv w~s assumed for sprinkler irrigation and 55% for flood irrigation. (The Prairie Conser'vation District Application at 12). 12. Conveyance losses were estimated by fo=la and included the diversion~ ary requireno.ent needs. (The Prairie 'Conservation strict Application at page 14). 13. Peak diversion requirements ><ere calculated using recommended peal< co~sumption use rates Con.qervat:ioo alfalfa 14. The caJ.culnted values bv at on~farm efficiency. 14). 11 ~ per acre~fcut for flood irrigation and 8 :;pm for side~roll spril'Jders, L'1 the case of center pivots, the peale rate was reduced to 6.5 gpm per acre to more closely match the to dDDlica:ion rate of svste-n, 9946-r42H, at page 14). 15. The system trill not ~reet peak nbn consum:>ti vc uses, but using the soil · 11 f)rofile as a moisture n:servoir ~ system sized SOI112'vOalt below that required to IJEet pe{!k cooslmlptive uses. (Application 9946-r42!1, at p<ll~e 14). . 16. The diversion ref]uirarent ranges from .58 cfs per 40 acres to LOO cfs per ~ 40 acres with an annual requirema1t raneing from 2.25 acre-feet per acre to 3.07 acre- feet per acre for an average of 3.04 acre-feet per acre wit-h a maximum 1'101v rate of 39.71 acres per l cfs. (Application 9946-r":!M, at page 17. All systems were designed to operate simlltctneously, even on large systems in lieu of a rotacion system. (Apolication 9946-r4L~, at page 14). 18(a)Using irri~ation factors of 3. acre-feet per year of \~ter per acre, and 40.24 acres per cfs, a reservation of water sufficient to irrigate ,241 acres would be 63,024 acre-feet with a ma:rinU!l diversionary flaw of 552.7 cfs tt001 the Yellowstone River. Usi~ a waterspreadin~ factor of 1.5 acre-feet per acre, the amount wacer needed for a reservation from the Powder River for waterspreading 295 acres is 19. It is established to the satisfaction of the Board that 68,024 acre-feet per year with a waxirrun diversionary flow rate of 552.7 cfs is the amount of water necessary for the purnose of the reservation to the year 2000. Findinp,s Related to the ~Jblic Lnterest (39-890(3)(d)). 20. The reservation will contribute economically to the public interest. (Ap- olication 9946-r42t1, at: page 21. The development of future in·is;ation projects in Prairie County and benefi- use of vmter will create and increase the tax reve:ruas. (Application 9946- r42M, at page 3). Frcrn 1960 to 1970, t-he :rural oopulation in Prairie County declined .4 oor- cent. A major reason <r.ls a lack op:!Ortunities (Draft EIS, VoL I, p. 101). -197- Tne de~~lopment n~" facilities, dit~~es, canals, sprinkler svster:ns, and other diversions will contribute to the econcmlc stability of the County, (The Prairie Conservation District Application at page 8). New irrigation would :L<crease inccme' Prairie County, both for the fa1:m2rs would install the system and for c"le local businesses c"lat would' enjoy increased sales resulting from the increase agricultural income, New irrigation would increase the number both on-farm and off-fann jobs, (Draft EIS, VoL I, p. 156). 25. The Prairie Conservation District has a.< established plan for corrpletion of the nrno0s<?d facilities which put reserved water to use by the year 2000 (Prairie Conservation District, Application 9946-r42H). By reserving water for future beneficial use, individual ranchers and farmers have a more favorable timetable in which to ac~-nulate the capital needed to finance, to take advantage of favorable cha.~ges in the agricultural rrarket, or to utilize L!-Je rrost contemponrry tecr.nology available in wat<rr deliVEry systa1~. (Prairie Conservation District Application at pages 5 and 6). 27. The plan of the Prairie Conservation District is not speculative and is documented to the highest degree of detail possible. (Prairie Conservation District). 28. lh; reservation shall be put to use within reasonable diligence and the p lr:ut includes a bona intent and ability to use the 'M'ater reserved as Detailed pl:Jrm:L"lg of district projects be accanplished funds mtlde available by the i"'onlana or Prairie County mill levy. Natural Resources and Conservation's Technical Assistance Pror;r1!!:1 v1ill also be used. (The Prairie Conservation District Application at 30. ·rne Boaru snti3ficd there 'Mill be progress toward completion of con- struction of the faciE::.i~ : ~ ulii;Bnce according to an escablished piart \>ltlich ir.clues the econo.."!'ic feasibility of each project, a soils and land classification analysis showing the suitability la;nds to sustain irrigation, and possible sources of funding. 31. A reservation sufficient to irrigate ,536 acres is in the public interest because it is reasonable to exrect that the Prairie Conservation District: will irrigate an additional ,536 acres by the year 2000. It is established to the satisfaction of the Board that the reservation of af/y t-lith a mxi= diversionary flow rate of .7 cfs to be used for ir- rigatioo. is tl1e public interest and that ~,ere will be progress toward completion of the facility and acc=lisl'l!rent of the purpose mth reasooable diligence in ac- rord:mce ~.nth an established nlan. 33. It is cst:1blished to the satisfaction of the Board that the reservation of • 68,467 acre-feet per vear is for 68,024 acre-feet per year for full-service irrigation from the Yell01~tcne River, and 443 acre-feet oer year from the P01vder River for watersor<>ading. m::n .. USIOtlS OF IAH L Chapter IJ, Title 89, R.C , 1947, a~d in narticular, Section 89-890, R.C.N. 1947, authorize the adoption by the Montana Board of Natural Resources and ..!l Conservation of orders reservi::Jg water to qualified apPlicants for reservation of '~'lktter, 2. ordered ad,.,)oted, a reservation wust be ordered adcoted in accordance 19l, 7, and any rules adopted thereunder. 3. 'Ihe il.pplicmu:, Prairie Conservation District, ·is a rolitical subdivision of t!tc Stat-e Mbnta~la a11d as such is entitled to apoly to reserve ~~ter within 89-890, R. , and any rules adopted lL All pertinent stat"utes a.~d rules of the State of l'bntana have been ad~ to revie~ of this resenmtion "f'""-LLa~>-v.u, both by the l'bntana Department of Nattlral Resom:ces Cnnservadon the ''bntana Board of Natural Resources and Conservation. 5, Based upon t.he above Findings Factt aid specifically based upon any condition, l~itation, or modification of the application appearing said Findings, all pertinent criteria delineated in Section 89-890, !LC.M. 19!7, and any rules adopted thereunder vroviding for the adoption of en order reserving water have been met. 6. l!ot.hinl'; found herein has bearing upon the stat"us of water rights claimed the Applicant other than t-hose herein newlv applied for, nor does anything fO!l!ld herein hmie bearing on the...status of clairned water rights of any other parvr e:'tcept in relation to those rights n~?wly applied for, to the extent n~cessary to reach a conclusion herein. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION , OF THE STATE OF HONTANA ---------------~-------------=----=------------------------==----=--- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9951-r42M BY THE DAWSON CONSERVATION DISTRICT ) ) ) ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAW Ot APPLI- CATION NO. 9951-r42H ----------------------------------=---------------=--=--------------- The above-entitled matter carne on regularly for hearing starting on or about September 6, 77, in Billings, Hontana, before the Montana Board of Natural Resources and Conservation and its duly appointed HearL.--,g Ex.:mtint:·, Jame~ Dris.::vll. Tl1c Applicant appeared by and through its counsel of record, Gary Spaeth. The t·!ontana Department of llatural Resources and Conservation appeared by and through its counsel of re- cord, Richard Gordon. The Hontana Department of Fish and Gaoe ap- peared by and through its counsel of record, R. t~oodside Wright and ~ Clayton Herron. The Montana Department of Health and Environmental Sciences aopeared by and through its counsel of record, Mona Jamison. Witnesses were duly sworn, and oral and documentary evidence was troJuced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of La~1 relating to the Dawson Conservation Dis t, Application No. 995l-r42~~: L The Dawson Conservation District has applied for a reservation 45,855 acre-feet of water per year (af/y) with a rna:ru!Ull diversionary flow rate of 330.8 cubic feet per second (cfs) to he used to irrigate 127 acres. On the average this request is for a diversion of 2. 53 acre-feet per acre with a rna:rillu:n flow :rate of 1 cfs per 54.80 acres. \-later is :requested fr001 the Yella.'Stone River for ':he year 1990. (Application No. 9951-r42:!, Table 1 'lS amended). Findings Rel~ted to t~e Puroose of this Reservatiu-n (39-890(J)(a)). 2. The purpose of the reservation is to insure water availability and adequate streamflow for the future agricultural needs of the Dawson Conservation District. (The Dawson Conservation District Application at page J. It is establis!-.ed to the satisfaction of the Board t:h,at a purpose of the reservation has been sho.vn (Finding 4. A reservation of water is needed because it will secure a priority date far future developments that is earlier than the priority dates such developments would have if permits were obtained immediately before construction or use began (Dawson Conservation District, Appli.cation No. 9951-r42N, p. 5). The reservatio:-t is needed because there is a proliferating world-wide demand for food, Vlhich is dependent on sufficient water availability. (The Dswson Com;ervation District Application at page 4). 6. A reservation is needed because there car;petition for water in the Yellowstone River Basin which roc~y affect the availability the Applicant to obtain a water :ri~ht by penrdt in future. This, in tum, Y.'i.ll also help pranote the necessary planning. (TI1e Dawson Conservation District Application at page 5). 7. It is established to the satisfnction of the Boord that the need for a reservation of water has been shewn (Findings 4 and 5). E!£dings Related to the Amount of Hater NeceSS!!IJ' for the Purpose of the Reservation 3. The am~mt of water necessary for this reservation is the am:JUnt required to irrigate the number of acres described in this application that can reasonably be expected to be carrpleted by the Dawson Conservation Distrk~ by the year 1990 (EIS) . 9. 'Ii1e pa)II!IOmt capacity consists of total farm revar~ minus all costs except irrigation water costs and the lll3.'1:lmum amow.t a water user could pay for water While maintaining a profitable operation (Dawson Conservation District, Application No. 995l-r42M, p. 19). 10. The cropping pattern by percent is 2Wo for grain cmd 38% for hay, 10% for silage and 23% for cash c=ops with a rna:dnun payment capacity acre. (The Dawson Conservation District At-:~plication at page $240.00 per 11. A 257. on-farm irrigation efficiency was assl.!!red for sprinkler irrigation and 55':~ for flood irrigation. (The Dawson Conservation Diatrict Application at page 10). 12. Conveyance losses were estimated formula and included in the di~ersion- ary requirement needs. (The Dawson Conservation District Application at page 12). Peak diversion requirements were calculated using recommended peak consumption use :::~res £'or alfalfa divided by the on-fa<l!! efficiency. ('Ii1e Dal-mon Gcnscrvation District Applicaticn at page 12) The c'lkulated values for alfalfa equals l1 gpn per acre-foot for flood irri~ation and 3 gprn side-roll spr:L'1klers. In the case of center pivots, the pcrlk rate was reduced to 6.5 gpm per acre to more closely match the -4 c,., __ w•u rate of to application rate of system. (The Dawson Conservation District Application at page 12). The system will not meet peak plant ccns!lrnptive uses, but using the soil profile as a moisture reservoir, the system is sized below that required to meet pea.il: consumptive uses. (The Dawson Conservation District Application at page 12). 16. Tire diversion requirement ranges from . 58 cfs per acres to L 00 cfs per acres with an cmnual requirement ranging from 2.25 acre-feet per <ere to 3.07 acre-feet per acre for an average of 2. 53 acre-feet per acre with a flew rate of 30 acres per 1 cfs. (The Dawson Conservation District Application at page 17. All systems "Were designed to operate s:h."lllltaneously, even on large sysca:ns in lieu of a rotation system. (TI-le Dawson Conservation District Application at pnge 12). 18. Using irri~ation factors of 2.53 acre-feet per year of water per acre, and 54. 80 acres per cfs. a reserv:ltion of water sufficient to irrigate 18, acres would be 45,855 acre-feet with a diversionary flN of 330.8 cfs. 19. It established to the satisfaction the Board that ,855 acre- feet per year with a mxdmt ... "!l diversionar:: flN rate of 330.8 d's is the amount of water necessary for the purpose of the reservation to ~~ yc,r 1990. findings Related to the Public Interest (39-890(3)(d)L_ 20. The reservation tvill contribute economically to the public interest. (The Dz~3on Cor~ervation District Application at page 8). 21. The development of future irrigation projects in Dawson County and beneficial use of tvater create jobs and increase the tax reve:rrues. (The Dawson Con.servation District Application at 7) 0 From 1960 to 1970, the rural populatiGn in Dawson declined 5.6 percenr. A Majoc reason ;,;as a lack of job opportunities (Draft EIS, VoL l, p. The dmtelop~rent of ne~c; pumping facilities, ditches, canals, sprinkler systGnS, and other diversions contribute to the economic stability of the Ccmty 0 (The ~en Conservation District Application at page 7) 0 24. New irrigation would increase income i.""! Dawson County, both for the fru:'ll!ers Who would install the systems and for the local businesses thst wuuld enjoy increased sales resulting from the increase agricultural income. New irrigation would increase ths number of both on-farm &"'ld off-farm jobs. (Draft EIS, VoL p. 156). 25. The Dawson Conservation District has an established plan for crn!pletion of the proposed facilities which will put reserved water to use by the year 1990 (Dswson Conservation District, Application No. 9951-r42H) 0 26. By reserving water for future beneficial use, individual ranch.ers and farmers have a more favorable timetable in 11:ihich to accu:rwlate t..l-je capital ne£ded to finance, to tal:e max:imum advantage of fa:vorable cllanges in the agricultural market, or to utilize t.~ most contemporary technology a:vailable in water delivery systems. (Dawson Conservation District Application at page 5). 27. The plan of the Dawson Conservation District is not speculative and is docunented to the highest degree of detail possible. District). (Dawson Conservation 28. The reservation shall be put to use within reasonable diligence and the plan includes a bo!'.a fide intent and ability to use the water reserved as projected. the Moot.ana Lepislatu:re or Dawson Ccmty mill levy. The will also oo used. (The Daiiii!Cii'l Conservatioo District Applicatioo at page 3) . I - 30. The Board is satisfied there will be progress t:oward ~letion construction of the facilities witi1 reasonable <iili>;en,ce according to an established plan \ihich includes the ecoocrnic feasibility of each project, a Z>u.u:> and land classification analysis shcwinR the suitability lands to sustain irrigation, and possible sources 31. A reservation sufficient to irrigate 18. acres is in the public interest because it is reasonable to expect that the Ilat.son Conservation )istrict will irrigate an additional 18, acres by the year 1990. 32. It is established to the satisfaction of the Board that the reservation of ar/y with a ma:dnu1 diversionary flow rate of 330.8 cfs to be used for irrigm:ion is in the public intt'!"::>st that there will be progress toward ccmpletioo of the facilit-v and acc<.wplisbment of the purpose with reascrnable diligence in accordance %~~~ an established plan. ffi'lCLUSlONS OF ·--- L Chapter Title 89, R. 1947, and in particular, Section 89-890, C 1947, authorize the ado!)tl.on by the Nont:aKE Board of Natl!ral Resoorces ar1d Conscrvav:ion of orders reservin;; water to qualified applicants for reservation of t,;atcr. 2. If ordered adopted, a reservation must be ordered adopted in accordance wi.th Chap tee:: 8, 89, R.C.M. 1947. ,xnd any rules adopted thereunder. 3. The Applicilllt, Dawson Conservation District, a political subdivi.sion of the State MontdTh'l and as such is entitled to apply to reserve water within the State M. 1947. and <my rules the State hcred to in review of reservation apolication. of NatLtral ResourcL:: .'md Conservation 5, Based upon the above Findings of Fact, and specifically based upon any condition, l:initation, or modification ~~e full anplication appearing in said Findings, all pertinent criteria delineated in Section 89-890, R. 1947, and any rules adonted thereunder providing for the adoption of an order reserving water have been met. 6. Nothing found herein has bearing uoon the status of water right:: cla:imed by the Applicant: otb.er than those herein newly applied far, nor does anything found herein have bearing on the status of claimed water rights of any other party except in relat:ion to those rights harein na•ly applied for, to the extant necessru:y to reach a conclusion het·ein. -207- - BEFORE THE BOAFn OF NATURAL RESOURCES 1\.'I!D CONSERVATIOH THE STATE OF rmNTANA --------------------------------------------=--------~-----===------= IN THE HATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9945-r42H BY THE RIChi.AND CONSERVATION DISTRICT ) ) ) ) ) FINDINGS CLUSIONS CATION ~TO. FACT P.ND LAW OF APPLI- 9945-r42M The above-entitled matter came on regularly for hearing starting on or about September 6, 1978, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly apoointed Hearing Examiner, James Driscoll. Applicant appeared by and through its counsel o{ record, Gary Spaeth. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The ?·fontana Deparl:l!!ent of Fish and Game appeared by and through its counsel of :record, F. Woodside Wright and Clayton Herron. The Montana Department of Health and Environmental Sciences appeared by and through its counsel of record, t~ona Jamison. Witnesses were dulv sworn, and oral and documentarv evidence was introduced, The Board, having read and fully considered the complete record, make~ the following Findings of Fact and Conclusions of Law relating to the Richland Conservation District Application No, 9945-r42M: Fil'IDINGS OF FAGr The Richland Conservation District has applied for a reservation of 45,620 acre-feet of water per year (af/y) with a l'!l1lXim.E diversionary flow rate 2 cubic feet per second (cfs) to be used to irrigate 710 acres. On the average ~~s request is for a diversion of 2.10 acre-feet per acre with a maJdJ:lun flew rate of l cfs per 61. 24 acres. Water is requested frcm the Yellowstone (Application No. 9945-r42M, p. 11). Findings Related to the Purpose of this Reservation (89-890(3)(a)). 2. 1be purpose of the reservation is to insure water availability and adequate streamflow for the future agricultural needs of the Richland Conservation District. (lbe Richland Conservation District Application at page 4). 3. It is established to the satisfaction the Board that a pu:I'!JOl'>e of the reservation has been shown (Findi.nj:!, A reservation of water is needed because it will secure a priority date for future devel~ts that is earlier than the priority dates such developments would have if permits were obtained immediately before construction or use began (Ricl1land Conservation District, Application No. 9945·~~.::.;:, p. 5. The reservation is needed because there is a proliferating world-wide dmand for food, which is dependent on sufficient water availability. (The Richland Conservation District Application at page 5) . 6. A reservation is needed because there is competition water L"l the Yellowstone River Basin which may affect the availability the Applicant to obtain a warer right penni t in the fut:ure. This , in tum, will also help (11;e Richland Conservation District Application at p;~ge 5). 1 7, It established to the satisfaction of the Board t.l,at need a reservation water has been shown (~'indings 4 and Findings Related to the 1\moont of \hter Necessarv for the Purpose of the Reservation ' 8. The <lml\mt of water necessary for this reservation is the mnmt required to irrigate the oomber of acres ooscribed in this application that can reasonably be expected to be CC!l!Pleted by the Ric.l-tland C..~ervation District by the year 2000 (EIS) , 9. 'Ihe pa~t capacity ccmists of total fa:rm :revenue minus costs except ir:rip,atioo water costs and is the max:imum mnmt a water user could pay for water while maintaining a profitable operation (Richland Conservation District, Application No. 9945-r42M, p. 19), 10. The aopping pattern by pe:rcenl:' is for grain and 4fJk far hay, 107. for silage and 23% far cash craps with a max:imum payment capacity acre. (The Richland Conservation District Application at page 21). $240.00 per lL A 7'5'1. oo-f&m irrigation efficiency was assuned sprinkler irrigation and 551', for flood ir:rir;ation. (The Richland Coooenration District Application at page 10). Conveyance loss;:!s were estimated by formula and included in the diversion- ary requirGIIOOt needs. (The Richland Conservation District Application at page 10). 13. Peak diversion requirements -re calculated using recannended peak consur.~ption use rates for alfalfa divided by the on-farm efficiency. (1'he Richland Conservation Dl.strict Application at page 10) . 14. '!'hE calculated values for alfalfa equals per acre-foot for piV'Ots. the !'€ak rRte was rrouced to 5 to 6 infiltration rate of heavy soils to the application rate of system. ('The Richland Conservation District Application at page 10). ~ 15. The system ':lill not meet pl<mt consumptive uses, but usir.g the soil profile as a moisture reservoir, the system is sized s~t below that required to meet peak consumptive uses. ('The Richland Conservation District Application at page 10). 16. The diversion requirer:e1t ranges frcm .58 cfs per 40 acres to ~ 00 cfs per 40 acres with an annual requirement ranging frcm 2. 00 acre-feet per acre to · flOW" rate of 6L24 acres per 1 cfs. (The Ric.ltland Conservation District Application at page 11). 4 17. All systems v1ere designed to operate simultanecusly, wen on large systems in lieu of a rotation system. (The Richland Conservation Dist:dct Application at page 10) . ~ 13. Using irrigation factors of 2.10 acre-feet per year of water per acre, and 61.24 acres per cfs, a re5ervation of water sufficient to irrigate 21,710 acres would be 45,620 acre-feet with a JmXimum diversionary fla;; 354.2 cfs. 19. It is established to the satisfaction of the Board that 45,620 acre- feet per year with a maximum diversionsrv flow rate of . 2 cfs is the am::runt of water necessal:'J for the purpose of the reservation to the year 2000. Findings Related to the Public Interest (89-890(3)(d)) The reservation will contribute econmdcally to the public interest, (The Richland Conservation District ~ryplication at . The devel<Jf'rEnt of future irrigation projects in llichl<md County and beneficial use of water 1dll create jobs and increase the tax reverrues. ('The Richbnd Consenation District Application at page 7) . ~ 22. ~"rem 1960 to the rural poj:<u1at:loo in Ric.hland County declined 10.9 percent. A major reason wns a lack job oppcrrunities (Draft EIS, VoL 23. The development of new pU!!!pinp; facilities, ditches, canals, soririkler systems, and other diversions will contribute to the economic stability 0f the County. (The Richland Conservation District Al:Jplication at page 7) . 24. New irrigation would increase incane in Richland County, both for the farners "'no would install the svsterns and tl,e local businesses thst would enjoy increased sales resulting Frcm the in agricultural inccm<o. New irrigatioo would increase the m.mber of both on~fm:rn and off~fanu jobs. (Draft EIS, Vol. I, p. 156). 25. The Richland Conservation Dic.trict r.as an pl:m for com~ pletion of t!'le proposed facilities t<lhich will put reserved water to use by the year 2000 (Richland Conservation District, Applicatirn lb. 9945-r42H). By reservinl; water for future benl:lficial use, individual ranchers and which to accumulate the capital needed to finance, to take !l'ax:L'TIWI advantaee of favorable cha"Wes in the agricultural nm:ket, or to utilize the most c011ternporary technology available in water delivery systems. (Richland Conservation District Application at page The plan of the Richland District not speculative and is documented to the highest degree o:f detail possible. (Richland Conservation District). 2iL The reservation shall be put to use ">i thin reasonable diligence ;md the plan includes a bona fide intent abiiity to use the water reserved as projected. 29. Detailed planning district projects will be accanplished through funds mode available Mont:JJ:m LegisL:lture or Richland County mill lew The Oepar~t of Natm:al Res=ccs and Conservation's Technical Assistance l!Tcg<:il!ll will also be wed. ~ Richlnnd Conservatioo District Application at page J). 111e Iloard is sar.L>fkd there uiU be pmr;ress t<llvard canpletian of construction of reasonable diligence according to an estQ~lished plan which includes the ecuncrnic feasibilitv of each project, a "'"'· ... " and land classification analysis sh<o'Wing the suitability and possible sources of fundin~. lands to sustain irrigation, A reservation sufficient to irri<,ate , 710 acres is the public interest because it is reasonable to e.'q)ect that the Richland Consenration District will irri~ate an additional 21,710 acres by the year 2000. 32. It is established to the satisfacr:ion of the Board that the reservation of ,620 af/y with a EU':irun diversionary flow rate of . 2 cis to be used for irrigatwn is in the public interest and that t.l-)ere will be progress toward completion of t.~e facility and accomplishment of the purpose ~lith reasonable diligence in accon:Lc-mc.., '"-'-"'' .. m es CO!·lCLUSIONS OF L'\!v L Chapter tl, Title 89, R. 191•7, and in particular, Section 39-890, R. C .M. 1947, authorize the adoption by the ~lantana Board of Natural Resources and Conservation of orders reserving water to qualified applicants for reservation of water~ 2. rf ordered adopted, a reservation must be ordered adopted in accordance with Chapter 8, ·~·i::le 39, R.C 1947, and any rules adopted thereunder. 3. The Applicant, Richland Conservation District, is a political subdivision of the St11te of :bntana and as such is entitled to apply to reserve water 1h'it:hin th0 State of !·fontana in accordance with 39-890, R. adopted thereunder. 1947, a."!d any rules All pertinent statutes !:Illes of the State of llont:arlJa have been ad- hered to in review of this reservation application, bot.~ by the !bl.tana Dep;n:t:ment ii!a=al Resources .and CGnservation. Conservation .and bv ~21 t-bntana Board of Nat:ural P.esources • • , 5. !lased unon t.'le atxlve finclinp,s of Fact, and specifically based upon any condition, limitation, or rJOdification of the full application appearing in said Finl.iinf>;s, all pertinent criteria delineated in Section 39-390, R.C.M. 1947, and any n1les adopted thereuncler pravidi!'.g for the adoption of an order reserving water have been met. :'&:Jthl~ found herein has bearing upon the status of water rights claimed by the Applicant other than those herein nedy applied for, oor u.:es anythi~ found herein have bearing on the status of claimed water rights of any other party except in relation to those rights herein newly applied for, to the extent necessary to reach a conclusion herein. BEFORE THE BOARD OF UATURAL RESOURCES AND CONSERVATION OF THE STATE OF NONTANA -------~---------------------------------==-----~--------=-------===-) IN THE MATTER OF APPLICATION FOR ) RESERVATION OF l~ATER NO. 11349-rl•2L&"! ) BY THE LITTLE BEAVER CONSERVATION ) DISTRICT FOR IRRIGATION AND STOCK ) ~ATERING ) ) FINDINGS OF FACT i.ND CON- CLUSIONS OF LAH OF APPLI- CATION NO. ll349-r42L&~ ----------------------------=---------------------------------------- The above-entitled matter came on regularly for hearing on or about September 9, 1977, in Billings, ~1ontana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll. The Applicant appeared by and through its counsel of record, Gary Spaeth, and its legal intern of recor'd, Bob Phillips, The :!'font an<~-Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The Hontana Department of Health and Environmental Sciences appeared by and through its counsel of record, Mona Jamison. The ~ontana Department of Fish and Game appeared by and through its ~ counsel of record, F. "Toodside T.Yright and Clayton Herron. Intake Water Company appeared by and through its oounsel of record, Henry Loble. Witnesses were duly sworn, and oral and documentary evidence 4 was introudced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating ~ to that part of Little Beaver Conservation District Application No. ll349~r42L&~ dealing with irrigation and s watering. L 1be Little Beaver Conse:rvation District has applied for a reservation of 6,566 acre-feet of water per year (af/y) to be used to irrigate 5,300 acres of alfalfa, 12,000 acre-feet to be ooed for 000 acres of wat:erspra!!.ding, lllld 3,600 acre-feet to be used foc 900 stock ponds. No floor rates were requested. Water is requested from O'Fallon, Pennel, and Cabin creeks. Tl:le Little ~ Conservation District has also applied for a reservation of 1,400 acre-feet of water per year (af/y) frcm 0' Fallon Creek and Cabin Creek \tribu- taries of the Yelloorstone !liver) and Panel Creek (a tributary of O'Fallon Creek) for recreaticn !lild wildlife ponds in Fallon County. 1be Appliciant has not identified the locations or siu:s of the sl::Ockwater ponds, or recreation pam nor has it specified the ~ts of water requested frrn~ each of the three !Wili'Cei!l mm:d for the year 2027. (Application No. ll349- r4ZU.'O. Findings Related to the Purpose of the Reservation (89-890(J)(a)). 2. 1be purpose of this reservation is to ansure that water will be available Fallon County by the Little Beaver Conservation District and to secure a water supply for future recreation and wildlife pam in Fallon County (Little Beaver Conservation District, Applicatim No. 11349-r42I&1, pp. 2 th:!:ough 6). 3. It is established to the satisfaction of the "-··-"' that: a purpcllila of the reservation has bean shown (Finding 2) . Findings Related to the Need for the Reservation (89-890(3) (b)). 4. A reservation of water is ~ it: will secure a priority date for future dsvelopm!!nts that is ear liGr than t:h2 dates such d~elopm!!ntS ~d have if permits wzre :i!m!l!d:laooly OOfOE\!l CODSI::n!ctia:; or use began (Little Canservstion District, Application No, 11349-r42UM, p, 3). 5. A reservation of water is needed because there is carpetition for water :in the Yellowstone Basin which IMY affect the ability of the Applicant to obtain a water right permit in the future (Little Beaver Conservation District, Application No. ll349-r42LSM, p. 3). A reservation of water is needed because, at this time, only one body water is !lllfficiently large to provide flatwater recreation :in a ~rulticounty area which includes Fallon County (Tr. VoL 24, p. 65 ) . 7. It is established to the satisfaction of the Board that the need for a reservation of water in s001e 3lOOU!'It hss been shown (Findings 5, and 8) . Findings Related to the Amount of Water Necessary for the Purpose of the Reservation (G9-890(3)(c)). Because the Draft EIS projectsd levels of irrigation development only through the year 2000 and because no systematic basin-wide projections have been 111 1!18:ie beyond the year 2000, any projections beyond the year 2000 are speculative (Draft EIS, Vol. II, p. 241) .. 9. The a:mount of water necessary for this reservation is the arrount that , can reasonably be expected to be developed and put to use by the Little Beaver Conservation District by the year 2000 (Finding 8) . 10. The Little Beaver Conservation District does not plan to put all of the water applied for to use before 2027 (Little Beaver Ccriservation District, Application No. 11349-r42L&~. 11. It is established to the satisfaction of the Board that the 8l!Dl!nt of water necess&y for the purpose of insuring that watff will oo available for the expected ~ion of irrigation and stockwater ponds in Fallon Colmty by the Little Be~ Ccriservation District is 12,073 acre-foot per year. Of this ,073 ~ acre-feet per year, 4,273 acre-feet per year is for full-service irrigation, 6,000 acre-feet per year is for stock- -21 Sewn recreaticn ponds are planned to be COI'ISt:ructed :In Fallon County within the next 30 years {little l!e;~oc Conservation District, Application No. 11349-r42L&M, p. 6). 13. The average strn:age capacity of pl~ f',.atwat:er recreation facilities :In Fallon County No. 11349-r4ZUiM). 100 acre-feet: (Little l!e1a'II'Eoc Conservation District:, Application is established to the satisfaction of the Board that: the amount: water necesssocy for the purpose of securing a water supply frn: future recreation and wildlife ponds :In Fallon County is 700 acre-feet per year. Findings Related to the Public Interest (89-890(3)(d)). 15. New irrigation would increase :Income Fallon County, both for the f=s who w;ruld :Install the systems and for the local businesses that would enjoy increased sales resulting frcm the increase in agrirultw:al income. New irrigatioo woold increase the ~r of both on-fam jobs and off-farm jobs (Draft EIS, Vol. I, P. 156; Draft Addendtm EIS, pp. 45 and -46). 16, Urban populations and nonsgrirultural water users such as mmicipal water US€' hwe been increasing in the Yellowstone Basin snd are projected to continue increasing. Scme growing tavns such as Sidney have not applied fer a water reservation 8Ild may r.ave to depend upon water availability through pe:rnrl.ts for the future exp8I!Sion of water use (Draft EIS, Vol. I, pp. 101 and 174), 17. The tittle Beaver Conservation District has 811 established plan for ccmpletion of the proposed facilities which will put reserved water to use by the year 2000 (Little ~ Conservation District, ilpplicatioo No. 11349- r42LSM). 1!!, A r~atioo of Cbmiervation District will pm: this amount ro a beneficial US<l by the year 20Cl0 (Findings 11 and 17). 19. It established to the satisfaction of the Board that the reservation of af/y for irrigation and stockwater ?JrFOSes in the public interest and that there will be progress toward completion of the facility and accomplishment of the purpose with reasonable diligence accordance with an established plan Findings through 18) . 20. The existing flatwater pond provides such public benefits as picnicking, sw:ix!ming, boating, and fishing opportunities (Tr. VoL following p, 65, Testimony of Thielen, p. 3). 2L The existing flat'nater DOOd orovides such public benefits as cover for wildlife and habitat for fish VoL following p. , Test:im:lny of Thielen, p. The adootion of an order reserving water will rreke possible the CIJ'I'IIlt:r~Jction of additional ponds to provide increased opportunity far such public benefits (Little Beaver Conservstion District, Application No. ll349- r42L5M, p. 6; Findings 20 a'1d 21) . Recreation ponds provide significant public benefits and will continue to be d€!!!lilllded and used (Tr. VoL p. , Testi=ly of Irvine, p. 24. It is established to the satisfaction the Board that the reservation of 700 af/y of wat:er for recreation and wildlife poods Fallon County in the public interest (Findings 20 through The public interest requires that specific locations, sources, am:Junts, and plans for the proposed :recreation ponds be supplied so that other water users in the basin may knew the status of the reservatioo and the arrount of water available for appropriation (FL'ldings thrcug.ll 24; Little Boo~~& Consexvatioo District, Application No. 11349~:r42L5M). OF lAW Title 89, R. 1947, and in particular, Section 89~890, R.C.M. 1947, 1ruthorize tire adoption by the Montana Board of ~tu:ra1 Resources of water. If ordered adapted, a reservation llll.!St be ordered adopted in accordance with Chapter 8, Title 89, R. 1947, and any rules adopted thereunder. 3. The Applicant, the Little Beaver Conservation District, is a political subdivision of the State of M:mta:na and as such is entitled to apply to reserve waters within tire State Monl:am in accordance with 89-890, R. 1947, and any rules adopted thereunder. All pert:inent statutes and nties of the State of 1-bntana have been ad- hered to in review of this reservation applicatioo, both the M:mta:M Departlrl2llt of Natu:ral Resources and Conservation and by the <lantana Beard of Natu:ral Resources and Conservatioo. Based upon the above Findings of Fact, and specifically based upon any conditioo, lirrdtation, or modification t.'-le full application appearing in said Findings, all pertinent criteris delineated in Sectioo 89-890, R.CJ·t 1947, and any rules adopted thereunder providing for the adoption of an order reserving ' water have been met, Nothing found herein has bearing upon t.'le status of water rights cls:ixned by the Applicant other than t.l:ose herein newly applied for, nor does anything found herein have bearing on the stat~JS of water rights of any other party except relation to those rights herem newly app~ for, to the extent oocessmy to Jrii!ach a c011Clusion herein~ BEFORE THE BOARD NATURAL RESOURCES A."lil CONSERVATION OF THE STATE OF MONTANA -------------------------=------------=----~------------------------- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 62 BY THE BUFFALO RAPIDS PROJECT ) ) ) ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAI-1 OF , \"PLI- CATION NO. 6294-r42H -----------------------------------=----~-----~-------------=-------- The above-entitled matter came on regularly for hearing starting on or about September 9, 1977, in Billings, Montana, before the Hontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll,-The Applicant appeared without benefit of counsel. The Montana Department of Natural Resources and Conservation appeared by at•d through its counsel of record, Richard Gordon. The Montana Department of Health and Environmental Sciences appeared by and through its counsel of record, Mona Jamison, The Montana Department of Fish and Game appeared by and through its counsel of record, F. l-?oodside Wright and Clayton Herron. Witnesses were duly sworn, and oral and documentary evidnece was introduced. The Board, having read and fully considered the complete record, makes the following 2indings Fact and Conclusions of Law relating to the Buffalo Rapids Project, Application No. 6294-r42M • 1 FI!IDINGS OF FAcr L The Buffalo Ranicis Proiect reservatioa request is sl.lm!m"ized in Table TABlE BRP-1 BUFFALO RAPIDS RESERVATION REQUEST to be Acre-Feet Diversion Irrigated per Yeer (cfs) Cracker Box 1,470 6,734 9. Stipek 3,840 14,861 20. Marsh 3, 12 345 17.04 Haley 2,372 180 12.67 Colgate 760 2,941 4.06 Saugus-Cal yoso 450 1,742 2.40 Be.'rlnd Glendive Canal 500 250 .33 Terry BB-lch 17,354 43,385 59.87 Terry !hit Additions 1, 5,031 6.94 Fallon !hit Additions 800 3,096 4. Buffalo Rapids Project Additions 1 000 870 TOTAL 41,306 17L72 The ~t of water requested for these lands totals 124,435 ac:re-feet of water year (af/y) with a !!Wd!m.m diversionary flow rate of 17L cubic feet second It t\IBS asslll:ll2d in detel:lllini,"'!g water requirE!1Erlts that 3. acre-feet are needed for each acre supplied by a canal system and 2.5 acre-feet par acre are needed for sprit1kler irrigation. The roa:mrum diversionary flov1 rate was calculated by m.dtiplying t.'le volurre requirEilE!lts per acre .00138. Due to an arithmetical error in this application, the total peak cfs requisted in the application is 166.7 cfs rather than l7L cfs, 'Which is the siEil of the requests for each area. All water is requested to be reserved from the Yellow-stone River (Buffalo Rapids Project, Application No. 6294-r42l:1) . Findings Related tc the Purpose of ~~Reservation (89-890(3)(a)). '!he pw:pose of this reservatim is to mstEa that water will be rvailGlble for the expected expansion of irrigation It is established to the satisfaction the Board c~t a ~lL~ose of the reservation has be~1 shown (Findin!!; :!) . F~~s Related to the ~~ed for che Reservation (89-890(3)(b)). 4. A reservation of l,'ater is needed because it will secure a priority date for future develop!!BltS that is earlier than the oriority dates such developm:mts 1 l<iOUld have if petmits were obtained :in:m2diately before const=tion or use bega.< (Buffalo Ra!Jids Project, Aoolication No. 6294-r42H, o. 5. A reservation of water is needed because chere is competition for water ~ in the Yellowstoo.e Basin vtlic!:l may affect the ability of the A!Jplicant to obtain a water ri9'1t: by peroit 1.:1 the fucure (Buffalo Rapids Project, Aoplication 6294-r42M, p. 2). 6. It is established to the satisfaction of the Board that the need for a :reservation of water has been shown (Findings 4 5) Findings Related to t."'e Am:mnt of Water Necessarv for the Furrlose of the Reservation ~ (89-890(3)(c)). 7. Cracker Box Unit. There has been no attE!!iJt to evaluate the feasibility or desirability of this project. The Application CL'111tains only cost estimates for this project, with no discussion of econullic or social benefits that '~uld be attributable to this project (Buffalo Rapids Project, APplication No. 6294-r4ZM, p. 58). , - 8. Stioek Unit. There has been no ettE!!iJt to evaluate the economic feasibility ~4 or the PUblic benefits of this project. · The Application contains a discussion only of the engi.'1eerL"'g features and costs this unit (Buffalo Ranids Project, Applica- t:l.on No. 6294-r42H, 58) . been no attempt to evaluate any irrigation benefits of this unit. Altoough the Applicati~ i."'!dicates that repayment could be acccmolished within 40 years, the fractiro of costs that are to be repaid and the :remainder that is to be soosidizecl are not discussed (Buffalo Rapids Project, Application No. 6294- r42!i, p. 54). Fallon Unit Additions. These lands are an addition to the existin~:>; Fallon Unit which was CO!!"Oleted b 1948 (Buffalo Rapids Project, Aoolication ~. 6294-r42M, 1). Buffalo Rapids Project Additions. T:.'!ese la:1ds are currently nonirrigated and lie am:mg t.~ lands currently served oroject '·later (Suffab Rapids Project, Application No. 6294-r42:1, p. 1). 18. Because the Draft Environ:r:a1tal Irnoact StateMeat (EIS) projecLod levels of irrigation development through the year 200:::1 and because no systematic basit<-wide projections have been made beyond the year 2000, any orojections beyond the year 2000 are speculative (Draft EIS, Vol. II, p. 241). 19. 'Ihe possibility of construction of prooosed projects which have been de- monstrated to be econoMicallv infeasible or i~ch no economic feasibility has been dam:lru;trated is highly ur,certain. A reservation of water for such projects t.ould be speculative because it is likely that 1Jrojects for which costs exceed re- venues and benefits will not be built by ti1e year 2000 (Findin!'s 7 through 14 and 18). 20. :b water shculd be resel:Ved for projects which are dem:mstrab1y infeasible. Demonstrably infeasible projects include t~~ Colgate Unit, the Terry Bench Unit, and thz lands bet'lmd Glendive Canal (Fmdmgs 11, 13, and 19). 21. water should be reserved for ~rojects for which economic feasibility has not been dem:mstrated. Projects m this category inclUJ:!e the Stipek Unit, the Marsh Unit, and the Haley Unit (Findmgs 8 throup.,h 10 end 19). ~b water should be reserved fo~ projects that are better developed privately than as a part of Buffalo Rapids Project. The Saugus-Calypso Lnit in this category (Finding 12). 23. Pl:'opoood projects t.lo)at lie within the boundaries of existing soccessful projects are de:!vnstrably economically feasible, and -reservation of water for such projects should be made (Findings 15 through 17). • - Toe aJrol.IDt of ;~ter necessary L'le pu.';)Ose of the reservation is the ~t necessary to nrc d.::rnnstrably econOMic"!lly feasible mld ~ich are likely to be constructed by the year 20~. Der:Dnstrablv feasible jects i:m::luded in tt'1is Application and the aiiDunts of water reouired for Table BRP-2. Project Terry lhit Additicns Fallen lhit Additions Buffalo Raoids Project Additi~ TOTAL TABLE BRP-2 Acres to be Irrigated 1,300 800 (Buffalo Rapids Project, Aoplicaticn Ho. 6294-r42H, p. and 23). Acre-Feet oer Year 5,031 3,096 Peak Diversion (cfs) Findings 15 throup)l 17 It is established to the satisfaction of the Board that 11,997 af/y with a ma:d.nun diversionary flow rate of 16. cfs is the amount of water necess~~ for the purpose of the reservation to the year 200() and is sufficient to irrigate the 3,100 acres whic.'l are additi~ to Ten:y Unit, Fallon Unit, and Buffalo Raoids Project (Findings 7 throi.Jf.,h Findh1~s Related to the ?Jblic Interest (39-890{3)(d)), 26. Reservation of water for additional irrigation which is not lill:ely to be mstl:llled by the ye= are junior to the reservation would have a less reliable water supply as a result (O!:aft EIS, Vol, p. 256). permit holders, These junior De:rmit holders will i1'1clude future irrigators who develop with a permit rather than with reserved 1-~ater and municipalities whic.h have 28. It is oot in the public interest to grant a reservation for the follow:!ng projects because is likely that the reserved water \,:ould not be put to a beneficial~ use and would, since unused, inpose costs on junior pe:rn:lt holders: Cracker Box Stipek ?-Iarsh Hal£ey (Findings 1 t~up)l 14 and 26-27). Colgate Saugus-Calypso Eclrind Glendive Qmal Terry Bench It is in the public interest that water be reserved for land which is part of the existing successful projects that have by their continued operation deronstrate~ ~c feasibility and social desirability. Sufficient water should be reserved for the additior~ to the Terry Unit, the Fallon Unit, end the Buffalo Rapids Project Additions (Findings 23 through 25), 30. The Buffalo Raoids Project has an established plan for CCJilllletion of the proposed facilities which will put reserved water to use by the year 2000 (Buffalo Rapids Project, Aoplication ~. 6294-r42VQ. , 31. A reservation sufficient to irrigate 3,100 acres is the public interest because it is reasonable to expect that the Buffalo Rapids Project will irrigate these acres by the year 2000 (Finding 30). It is established to the satisfaction of the Board that the reservation 11, af/y with a 1113Xi:num diversionary flow rate of 16. to be used to irrigate additions to Terry, Fallon, end Buffalo Rapids Units is in the public interest and that there will be progress toward completion of the facility end accomplishment of """''"" with reasonable diligence i..'1 accordsooe with en established plan (Findi:ngs~ ~ L Qlaryter 3, Title 39, C.,. 1947, and 1941, aut."lorizes the aoontion by t:le M:lntana Board of ilatural Resources &'1d Conserva~ of orders rese~'1~ water to qualified auolicants for reservations of water. 2, If ordered adooted, a reservation must be ordered adooted L'1 accordance with Chapter 8, Title , R.C 1947, a"ld any rules adopted thereunder, 3. 1he Applicant, Buffalo Raoids Project, is a ]JOlitical subdivision of the State of M::ntana and as such is entitled to apply to reserve ,.mters 1vithin the State of ~tana in accordance tvith Section 89-390, C.M. 1947, and any :rules adopted there.:n:ler. All pertinent stat".Jtes and rules of the State of !tlntana have been adhered to il'l the review of this reservation Application, both by the M:Jntana De:Jru:brent of Natural Ileoourcas and Conservation and Conservation. 5. Based upon t!12 above Fil·J.di."lgs Fact, and snecifically based upon &'l.y condition, linitation or m:xlificaticn of the full Applicaticn appearing in said Findi.'1gs, all pertinent criteria delineated in Section 89-890, C 19/+7, a'1d any rules adopted thereunder providing for the adoption of an order reservi.ag water have been met. l~t.'ling found herein ha, bearin~ upon the status of water rights clailred by the Applicant other than t."lose herei11 nEWly aJJPlied for, nor roes anything found herei\'1 ll.ZMl bearL,g on the status of claimed water :df,hts of l?iny ot.'ler narty except relation to those rights herein P~ly applied for, to the ~ent necessary to reach a ocnclusion herein. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA ----------=-----------------------=-----~---------=--=--===--=--==--- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9931-r BY THE MONTA.~A DEPART}mNT OF STATE LANDS ) ) ) ) ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAW GF APPLI- CATION NO. 9931-r --------------------------------------------------==----------------- The above-entitled matter came on regularly for hearing starting on or about August 10, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll.~ The Applicant appeared by and through its counsel of record, John Norht and David Woodgard. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon, Tha Montana Da- partment of Health and Environmental iances appaared by and through its counsel of record, Mona Jamison. The Montana Department of Fish and Game appeared by and through its counsal of racord, F. l~oodside Wright and Clayton Harron. The fourtaan applicant consarvation dis- tricts appaarad by and through their counsel of record, Gary Spaeth. Utah International, Inc., appeared by and through its counsel of re- 1 cord, Urban Roth. The Montana Power Company appaared by and through - its counsel of record, Robert Woodahl .. Intake Water Company appaarad by and through and the Federation counsel of record, Henry Lobla. Trout Unlimited Fly Fishermen appeared by and through their ., couneel of record, James Goetz. Witnesses were duly sworn, and oral and documentary evidence was introduced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to the Montana Department of State Lands, Application No, 9931-r: FINDINGS OF FACT 1. TI1e }lantana Department of State Lands has applied for a reservation of • 21, acre-feet of water per year (af/y) with a maxirru:n diversionary flow rate of 143.64 cubic feet per second (cfs) ir. order to provide water for full-service irrir;ation of 7,143 acres in Park, Sweet Grass, Carbon, Big Hom, Yellowstone, 1 Treasure, Rosebud, Custer, Prairie, Dawson, end Richl=d counties. Proposed diversions are from the Yellowstone, Powder, Tongue, and Big Hom rive-s and small tributaries of the Yellows tone River (Montana Department of State Lands, Application No. 9931-r, pp. 3 through 5). Findings Related to the Puxpose of the Reservation (89-890(3)(a)). 2. The purpose of this reservation is to ensure that water will be available for the expansion of irrigation an land managed by the Montana Department of State Lands (Montana Department of State Lands, Application No. 9931-r, p. 1) . -- 3. It is established to the satisfaction of the Board that a purpose of t the reservation has been shown (Finding 2). Findings Related to the Need for the Reservation (89-890(3)(b)). 4. A reservation of water is needed because it will secure a priority date for future development that is earlier than the priority dates such developments _ would have if permits were obtained irrmediately before construction or use began (Draft EIS, Vol. I, p. 1) . 5. A reservation of water is needed because there is competition for water in the Yellowstone Basin wch may affect the ability of the Appli08nt to obtain a water right by permit in the future (1-bnta:na Depart:ment Application No. 9931-r, p. State Lands. 6. The Resource Development Bureau of the Department of State Lands fully intends to develop all the irrigable school trust land :L."1 t.~ Yellowstone Ri:ver 4 Basin ~ich is suitable for full service irrigation trr. VoL 3, pp. 7. Unoor the current budget limitatiOM, it will take a years to develop the irrig<!ble school trust land in the Yellowstone Rives: Basin (Tr, Vol, 3, pp, 36-37), nesded to :Insure the availability of water in the YellC!!oll>tcne River Basin to develop scllool trust lands which camot be d!!lveloped in the nesr future due to the above buDget limitations (Tr. VoL 3, p. 48). 9. It is est<!blished to the satisfaction of the Boord that t:l:le n£!ed far a reservation of water in scme I'.IIOOUI'It has been shown (Findings 4 and 5) . F:l.ndings Related to the Aloount of Water ~sary far t:l:le ~ of t:l:le Re~tioo (89-890(3)(c)). 10. This Application requests water for 39 separate projects which are identified by project nmi:lers (Hl;ntmla ~t of State La:nds, Application No. 9931-r, pp. 3 through 11. Al!:hough no significant irrigatioo devel~t can OCCUl:' in the Tongue River Subb&l:!n unless new storage is dell'eloped, the ~t of State Lands requested a reservation for four projects that would use the Tcr.gue River Rese..-voir (Draft EIS, VoL p. and Depart!'!!Bnt of State Lands Application, p, 3). 12. However, no significant additional irrigation d!!lvel~t cart occur in the Tongue River Subbasin unless m:w storage is developed (Draft EIS, VoL II, p. 244). for storage in the T~ River Subbasin, 14, The ~t~ma Department of Natural Res=~ <md Caooavation has ~~pplied for a rese!"mtioo of all the unappropristed water in the Tongue River in arda' to p~ web nsedl!d storagtii! to ml erJ.st:!ng and poterntial water mar!! m the T~ Rives: Subbasin by presently fullv caMWitted Tongue River Reservoir storage facility (Draft Add~ndum EIS, p. . '· 15). 15. A major purpose of the Montana Department of Natural Resources and COnservation reservation is to provide the storage necessary for additional irrigation water in the Tongue River Subbasin (Draft Addendum EIS, p. 15). • 16. With the e;;;pansion of the existing state-owned llll1tipurpose reservoir on the Tongue River, there will be sufficient storage for the am:mnt t:f water requested fran the Tongue River by the Department of State Lands in Application ~ 9931-r. 17. The Department of Natural Resources has been granted a reservation for storage of 450,000 acre-feet per year of water frcm the Tongue River subject to the condition that part of the reservation be U$ed to meet the request of the Department of State Lands in Application 9931-r for 1 31 acre- feet per year from the Tongue River (Board Findings of Fact -Department of Natural Resources and Conservation 56). • 18. Projects 6, 7, and 8 of the Department of State Lands Application were with· draw11 by the Department of State Lands from the Application (Department qf 1 State Lands Finding of Fact 19. Project 6, 7, and 8 were projects that needed water from the Powder River. 20. There is no need for a water reservation fran the Powder River for the Department of State Lands in Application 9931-r. 2L Seven tracts (project nos. • 11, 12, 18, 19, 27 and 42) of the Department _ of State Lands Application have less than a one-to-one cost benefit ratio and are not econcmical1y feasible (Department of State Lands Application, 9931-r). 22. Of the projects which were finally identified by the Department of State Lands as being projects in need of water reservations, only considered as economically feasible end not part of the TOl:lgl:ie River Subbasin (Findings 16, 17 and 21). 23, The pa~t capacity consists total revenue minus all costs, except irrigation ~tater costs, and is the maximum amount an investor could pay for in:igatioo water l<lhile maintaining a profitable operation (Montana Department of State Lands, Application No, 9931-r, p. 8). For all projects in this .<\pplication, the payment capacity for t.'1e investments required by the·~bntana Department of State Lands is $46,32 per acre and the payment capacity for the investments required by the lessees state lands is $57, 76 per acre (Montana Department of State Lands, Applicat' on No, 9931-r, p, 10), 25, Projects 10, 13 throup,h 17, 20 through 26, and through 41 are ecooanically feasible and have an adequate 'Water supply. It is reasCJMble that the l'!Dnl:mla Department of State Lands will irrigate the projects proposed in the Application which are ecmamcally ~easible and fer which water is available. Such projects total 286 acres 1l!}d need 12,858 ttt/y wit.'! a maximum diversionary flow rate of 136.11 cfs (Monl:m'la Departmsnt of State Lands, Application No, 9931- r; Findings 7 through 18) . 26. The Department's plan is to begin construction of the projects in the near future but it =t ca!lplete construction fer a :!1l.l!!iler of years since it ill funded on a yearly basis and receives enough m:JOOY in a single year to construct only a few projects. The Department intends to develop all the projects by the year 2000. The target date which has been set is Decs!lber, 2000 (Applica- tion No. 9931-r). 27. is established to the satisfaction of the Board that 12,858 af/y and a~ diversionsry flow rate of 86.11 cfs is the a:munt of water necessary fer the pu:rpooe of the reservation to the year 2000 from the lowstone and Big Hom Rivers, 28. It is further established by the Board that a condition of the reservation of water grented to the Departmmt of Natural Resources is that part of the reservation request in Application 9931-r for 1 ,431 frcm the Tongue !liver Rerenmir. Findings Related to the Public Interest (89-890(3)(d)). acre-feet pet year I 29. A reservation of 12,858 af/y and a max:Um.m diversionary flow rate of I 86.11 cfs is in the public interest because it is reasonable to expect that the Montana Department of State Lands will put the water to beneficial li-e from the Yellowstone and Big rn Rivers {Application No. 9931-r}. 30. The Resource Development Bureau's budget allows only a limited number of projects to be canpleted each year on a state-wide basis (Tr, Vol. 3, p. 36- 37). I 31. It is established to the satisfaction of the Board that the reservation of 12,858 af/y a~ a~ diversionary flow rate of 86.11 cfs is in the public interest and that there will be progress towsrd ca:!lpletion of the facility I and accorrplishment of the purpose with reasonable diligence in accordance with an established plan (Findings 29 and 30) . CONCLUSIONS OF IA\-1 L Chapter 8, Title 89, R.C.M. 1947, 211.d in particular, Section 89-890, R. C.M. 1947, authorize the adoption by the ~1ontsna Board of Natural Resources and Conservation of orders reserving water to qualified applicants fer reservation of water. 2. If ordered adopted, a reservation must be ordered acLnpte:l in accordance with Chapter 13, Ti e 89, C.M, 1947. and any rules adopted t.~ereunder. The !lpplicant, Montana Department of State Lands, is an agency the State of Montana and as such is entitled to apply to reserve waters wit..'rln the State of Mbntana in accordance with Section 89-890, R.C 1947, any :rules • • 4. All pertinent statutes and rules of the State of Montana r~ve been ad- hered to il'l review of this reservation application, both by the :i.ID.tana Depart:roent of Natural Resources and Conservation and by the Montana Board of Natural Resources and Conservation. Based upon the above Fi.."ld:ings Fact, and specifically based upon any condition, limitation, or modification the full application appearing in said Findings, all pertinent criteria delineated in Section 89-890, R.C.M. 1947, and any rules adopted thereunder providing for the adoption of an order reserving water have been met. 6. Nothing found herein has upon the status of ~.ater rights claimed by the Applicant other the..-. those herein newly applied for. nor does anythinr, fa.md herein have bearing on t!Je status of claimed water rights of any other party except il'l relation to those rights herein TIP<•''~' apr H.ed for, to the extent necessary to reach a corn::lusion herein. BEFORE THE BOARD OF NATURAL RESOl'RCES AND CO:'!SERVATION OF THE STATE OF MmiTANA IN THE MATTER OF APPLICATION FOR RESERVATION OF \·lATER NO. 9933-r BY THE MONTANA DEPARTM":NT IJF STATE LANDS ) ) ) ) ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAH GF APPLI- CATION NO. 9933-r --------------------------------------------------------------------- The above-entitled matter came on regularly for hearing starting on or about August 10, 1 7, in Billings, Montana, before the Hontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll.-The Applicant appeared by and through its counsel of record, John North and David Woodgerd. The ~lantana Department of Natural Resources and Conservation a?peared by and through its counsel of record, Richard Gordon. The Montana Department of r:ealth and Environmental Sciences appeared by and through its counsel of record, Nona Jamison. The Uontana Department of Fish and Game appeared by and through its counsel of record, Garr Spaeth. • 1 Jll Utah International, Inc., appeared by and through its counsel of re- cord, Urban Roth. The Montana Power Company appeared by and through its counsel of record, Robert Woodahl. Intake Water Company appeared by and through its counsel of record, Henry Loble, Trout Unlimited and the Federation of Fly Fishermen appeared by and through their counsel of record, James Goetz. l<litnesses were duly S\-lOrn, and oral and documentary evidence was introduced. The Board, having read and fully considered the complete record, makes the following Findinp;s of Fact and Conclusions of Law relating to the btana Depart:l!l1mt of State Lands, Application No. 9933-:r: ~?".7~ F'INOU!GS OF FAcr The Montana Depar!.m!mt of State Lands has applied a reservation of 30,898 acre-feet of water per year (af/y) with a maldmum diversionary flCM rate of 03 cubic feet per second (cfs) in order to irrigate ,875.62 acres of land which adjoin and are part of irrigation projects for which oonservation districts have also requested a reservation of water (1-tmtana Departrrent of State Limds, Application 9933-r, p, 1) . Findings Related to the Purpose of the Reservatioo (89-890(3) (a)) . 2, The purpose of this reservation is to ensure that water will be available foe the expansion of irrigation oo land !lmlaged by the Montana Departl11Emt of State L!mds (1-tmtana Deparnnent of State L!mds, Application N::l, 9933-r, p. 2), 3. It is established to the satisfacticn of the Board that a purpose of the reserwtion has been shown (Finrung- Finding!! Related to the Need foe the Reservation (89-890(3) (b)) , 4. A reservation of water is beca~Se it will secure a priority date for future devel~t that is earlier !::han the priority dates such developr!Ellts 1o!OUld have if permits were obtained inmediately before ronsttu.ctioo or use began (Draft EIS, Vol. I, p. 5. A reservation of water is needed because there is ca:apetitioo for water in the YellCMStooe Basin which may affect the ability of the Applicant to obtain a water right by penoit in the future (1-tmtana D=;partment of State Lands, Application No, 9933-r, p. 1). 6. The Resource Devel~t Bureau of the !)apartment State L!mds fully intends to develop all the irrigable school ttust in the YellCMStone River Ballin ~il:h is suitable for full service irrigation (Tr, Vol. 3, pp. tbier the current budget limitations it will take a of years to develop the irrigahlli.l scln:Jl ttust the Yellowstone Riwr Basin (Tr. Vol. 3, pp. 36-37). 8. Application for Reservation No. 99J3-r is needed to insure the avail- ability of water in the Yellowstone River I\asin to develop school oust lands which cannot be developed in the near future due to the above budget lirr.:itations (Tr. VoL 48) . It established to the satisfaction of the Board that the need for a reservation of water in sane am:llmt has been shown (Findings 4 and 5) , Findings Related to the Amount of Water Necessary for the Purpose of the Reservation (89-890(3)(c)). 10. The Department of State Lands has requested a water reservation of 4,618 acre-feet per year frOM the Powder River to be used to irrigate 1,508 acres (Departl:lalt of State Lands, Application 9933-r), lL No significant additional irrigation developn:Ent can occur i..r1 the Powder Subbasin unless storage is developed (Draft EIS, VoL II, p. 248). 12. The M:mtana Department of State Lands has submitted no plans for development of the needed storage for the Powder River Subbasin. 13. Because of the lack of stcrage and because of no future plans for storage a reservation for 4,613 acre-feet per year from the Powder River will not be granted to the Department of State Lands (Draft EIS, VoL II, p. 248). 14. The Department of State Lands has requested a watei:: reservation of 390 acre-feet per year from the Tongue River to be used to irrigate 130 acres (Department of State Lands, Application No. 9933-r). 15. No significant additional irrigation developl'!alt can oc= in the Tongue Subbasin unless new storage is developed (Draft EIS, Vol. II, p. 244). The M:lntana Department of State Lands has submitted no plans for devel~t of the needed storage the Tongue River Subbasin (Draft Vol. II, p. 248), Resources a~d ~10Servation has been granted a reservation which would develop storage for all of unappropriated water in the Tongue River order to effectively store and manage the L•creased reservoir capacity that would be realized enlarging the existing Tongue River facility (Board Finding 56, Application 9942-r42C), 13, A condition of the Deparonent of Natural Resources water reservation of 450,000 acre-feet per year of water frcrn t.!)e Tongue River is that part of the reservation be used to m:!et the request of the Deparonent of State Lands in Application 9933-r for 390 acre-feet per year for ica tio:t r-;gt_._z -r42C) . 19, Application No. 9933-r requires diversion facilities which will be constructed according to the plans of the Conservation Districts and the rules and regulations adopted by the !loard of-Land Camrl.ssicners (Application No, 9933-r, pp. 2 through 4), 20. 'I'he Department's plan is to begin construction of the projects in the years since it is funded on a yearly besis and receives enough IID!ley in a single year to construct only a few projects. The Department intends to develop all the projects by the year 2000 (Application No. 9933-r). Since the school trust lands in Application 9933-r will be included in projects developed by the Conservation Districts, infCll::!ll!l.tion as to classification and economic feasibility is contained in the Conservation District ApplicatiO!lll and is rot repeated Biehl). this Application (Testimony of Randall It is established to the satisfaction of the Bo!!rd that 25, af/y with a ma:W!Ul! diversionary fkw rate of 185.2 cfs is the aoount of water ~cassa:cy for irr:l.",at:L~ 9, acres from water of' Findin~s Related to the ~.IDlic Interest (89-690(3)(d)). New irrigation will increase incorre in the region, bot..i-1 for t..he farm2rs that will install the systell'.s and for the businesses that will enjoy increased sales resulting from the increase in agricultural income. New irrigation will increase bot..'! the number of on-farm and off-farm jobs (Draft EIS, VeL I, p. 156). 24. Apolication No. 9933-r is in t':le public interest because it will benefit agriculture and the general economy of the state (Application :'b. 9933-r, p. 2). 25. Application ~b. 9933-r is in the PUblic interest because it will allow . . the developm:mt of State of Montana school trust land in t..'le Yell01~tone River Basin whic.'l will increase revenues to schools of M:mtana (Application No. 9933-r, o. 2) t 26. A reservation of 25,889. 78 af/y and a maximJrn flaw rate of 185.2 cfs for irrigating 9,236 acres is in the public interest because it is reasonable to expect that the !mtana DepartiTEnt of State Lands ~'ill put this '<Jatar to beneficial use (!-mtana DepartiTEnt of State Lands, Application ~b. 9933-r) . 27. It is established to the satisfaction of the Board that the reservation ~ of 25,889. 78 af/y and a maximtm flow rate of 185.2 cfs for i=igation of 9, 236 acres i is in the public li1terest and that tl~re will be progress tOloJard completion of the facility and acccrnolishment of the purpose of the reservation >lliw'l. reasonable diligence L& accordance with an established pla• (Findings 8 throuv;h 2J). OJNCLl.JSIONS OF lAW 1. Chapter 8, Title 89, R.C.H. 1947, and in particular, Section 89-890, R. 1947, authorize w'1e adootion the 1·bntana Board of Natural. Resources and Conservation of orders reserving water to qualified applicants for rese~ation of 11.rater. 2. If ordered adopted, a reservation must be ordered adopted accordance with Ch!roter 8, Title 89, C.M. 1947, &'"!d any rules adopted thereunder. 3. The Applicant, r'lontax--m Depar::::ment State Lands. an agency of State of Mantmm anrl as such is entitled to apply to reserve waters within the State ~tam in accordance with Section 89-890, R.C.M. 1947, and any rules ~ted the:r~. 4. All pertinent statutes rules of the State of Montana have been ad- hered to in review of this reaervatioo applicatioo, both by the Montana Department of Natm:al Resources and Corlservatian and by the l'bntana Board of !'!at.,rral Resources and Conservatioo. Based upon the al:Jove Findings of Fact, and specifically based upon any ccnditia:~, limitation, or mdificatia:~ of tl>.e full applicatioo appearing in said Findings, all pertinent criteria delineated Sectioo 89-890, R.C.~t 1947, and !JD1 rules !ldopt.ed tiler~ providing frn: the adoption of an order reaerving water heM! been !l!l:t. 6. Nothing f!:!l.md herein has bearing upon the status of water rights claimed by the Applicant other than those hereit·t '11£!Wly applied frn:, nor does other party except in relation to those rights herein '11£!Wly applied for, 1:0 the extent necessary tc reach a conclusi<oo herein. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA IN THE :U..TTER OF APPLICATION FOR RESERVATION OF ~lATER NO. 9934-r BY THE MONTANA DEPARTMENT OF STATE LANDS ) ) ) ) ) ) FINDINGS OF FACT '\ND CON- CLUSIONS OF LAW OF APPLI- CATION NO. 9934-r The above-entitled matter came on regular for hearing starting on or about August 10, 77, in Billings, Montana, before the Hontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll, The Applicant appeared by and through its counsel of record, John North and David Woodgerd, The Montana Department of Natural Resources and Gonservation appeared by and through its counsel of record, Richard Gordon, The Montana Department of Health and Environmental Sciences appeared by and through ~ its counsel of record, Mona Jamison. The Hontana Department of Fish and Game appeared 'J~· .:md through its counsel of record, F, Hoodsite and Clayton Herron. The fourteen applicant conservation districts appeared by and through their counsel of record, Gary Spaeth, Utah International, Inc., appeared by and through its counsel of record, Ur!:nm Roth, The Montana Pcmer Conpany appeared by and through its counsel of record, Robert Woodahl. Intake Water Company appeared by and through its counsel of record, Henry Loble. Trout Unlimited and the Federation of Fly Fishermen appeared by and through their counsel of record, James Goetz, Witnesses were duly sworn, and oral documentary evidence was introduced. II The Board, having read and fully considered the com~lete record, makes the following Findings of Fact and Cone ions of Law realting to the ll:ontana Department State Lands, Application No. 99 -r: FDllJU!GS OF FACT L The Montana Department of State Lsnds has aoplied for a reservation of 15,073 acre-feet of '"ater per year (af/v) in order to irrigate 10,270 acres by watersprea~. No maximlm flow rate !:>.as been requested. Diversions are requested frcm !U!Ii'!rOUS ttibutaries of the Yellowstone River and would be located in Roseburl, Treasure, Sweet Grass, Big Horn, Yellowstone, Richland, Prairie, Dawson, Powder River, and Custer counties <M:mtana Department of State Lends, Application No. 9934-r, pp. 2 through 17), Findings Related to the Purpose of the Reservation (89-890(3)(a)), 2. The purpose of this :reservation is to ensure thst ;.ate:r will be available for the expansion of irrigation oo land llllm.aged the Monta:re l:l€part:!l!ent of State Lands (M:Jntana Department of State Lsnds, Application No. 9934-r, p. 1) . 3. It is established to the satisfaction of the Board that a purpose of the reservation has been shown (Finding Findings Related to the Need for the Reservation (89-890(3)(b)). The Resource Development Bureau fully intends to develop all the irrigable school trust l.ar.d in the Yellowstone River Basin which is suitable for water spreading irrigation (Tr. Vol. 3. pp. and 37). 5. Under the current budget limitations, it will take a of years to develop the irrif,able school !:rust land in the Yellcw.,tooe River Basin (Tr. Vol. 3. pp. 36 and 6. llpr;Jlication for !Reservation No. 9934-r is nea:!ed to insure the availability of water in the Yellowstone River to develop ttust ~ which cannot be developed in the near future due to the above budget limitations (Tr. Vol. 3, pp. 23 and 24). 7. It is established to the satisfaction of the Board that a need for the reservation has been shown. to the Amount of Water Necess for the se of the Reservation 8. The reservation of water requested by the Department of St~ ~e Lands will be used for waterspreading irrigation. 9. !l1e amount of water necessary for water spreading irrigation of school trust land is 15,078 acre-feet based on 10,270 new acres of school trust la~d being - feasible for water spreading irrigation projects and approximately 1.5 acre-feet as ~ the amount of water needed per acre per year to adequately supply a water spreading irrigation project (Application No. 9934-r, pp. 3 through 8). 10. It has been established to c~e satisfaction of the Board that 15,078 acre-! feet to be used to waterspread irrigate 10,270 new acres is the amount necessary for the purpose of the reservation to the year 2000. Findings Related to the Public Interest (89-890(3)(d)). 11. There are many State Lands that can be put to nnre profitable use in the future by use of proper irrigation. 1 12. If State Lands are properly irrigated and crops are grown, it will be in _t the public interest in that there will be a better return of profits from these State Lands. It has been established to the satisfaction of the Board that 15,078 acre-~ to be used to water spread irrigate 10.270 new acres is in the public interest. CXJNCUJSIONS OF LA\.J 1. Chapter 8, Title 89, R.C.M. 1947, ~d in particular, Section 89-890 R.C.M. I 1947, authorize the adoption by the N::mtana Board ~l::llral Resources and C?nservaffc of orders rese:rving t~ter to qwlified for reservation of water. 2. If ordered adopted, a reservation llllJSt be ordered aclooted :4'"1 accordance with Chapter 8, Title 89, R.C.M. 1947, and any rules adopted thereunder. an agency of the State of M:Jntana and as such is entitled to apply to reserve waters within the State of M:Jntana in accordance with Section 89~890, J:L 1947, and any rules adopted ther~r. All perti.nent statutes and rules of the State of M:Jntana r.ave been adhered to in the revie"' of this reservation Application, both by the MJntana ~part:ment of and Conservation. 5. Based upon the above Findings of Fact, and specifically based upon any condition, limitation, or =dification of the full Application appearing :in said Findings, all pertinent criteds delineated at Section 89~890, R.C.M. 1947, and any rules adopted thereunder providing for the adoption of an order reserving .,~tar have been m;:t. N:Jthing found herein lms bearing upon the status water rights clamed by the Applicant other than those herein newly applied for, mr does anything found herein have bearing on the status of claimed water rights of any other party except in relation to those rights herein newly applied for, to the extent necessary to reach a conclusion herein. ' BEFORE THE BOA~D OF NATURAL RESOURCES AND CONSERVATION OF TEE STATE OF HONTANA --------=--------------===9~---------------=---------=-----=-=------== IN THE MATTER OF APPLICATION FOR RESERVATIOtl OF \JATER NO. 12334-01-r BY THE UNITED STATES BUREAU OF LAND liANAGE:fE~lT ) ) ) \ J ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAW JF APPLI- CATION NO. 12334-01-r --------------------------------------------------------------------- The above-entitled matter came on regularly for hearing starting on or about September 21, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, JamesDrisco The Applicant appeared by and through i'::s counsel of record, Thomas GaL The Hontana Depart .. ment of Natural Resources and Conservation aopeared by and through its counsel of record, Richard Gordon. The Montana Department of Health and Environmental Sciences appeared by and through its counsel of record, Hona Jamison. The .Hontana Department of Fish and Game appeared bv and through its counsel of record, F. Woodside Wright and 4 Clayton Herron. The fourteen applicant conservation districts appeared , ~. by and through their counsel record, Gary Spaeth. Utah Interantional Inc., appeared by and through its counsel of record, Urban Roth. In- take tJater Company appeared by and through its counsel of record, ~ Henry Loble. Witnesses were duly S'VYOrn, and oral and documentary evidence was introduced. The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating FL'IDINGS OF FAGr The S. Bureau of Land ~ement has applied for a reservation of 2924. &:Jre-feet of water per yeert: with an average diversionary flow rate of 287 cubic feet per seo.."'!ld {cfs) frau O'Fallon Creek, a tributary to the Yellwstone River, to be used to provide waterspreading irrigation of 1,992 acres. \·later WJUld be diverted between May 15 and September 15. In order to divert <',924.25 acre-feet during this period, a contiillJIJUS diversich. of the requested 12.287 cfs ~ld be necessary S. Bln:eau of Land ~fazlagement, Application No. 12JJ4.-0l-r, p. Findings Related to t.'le Purpose of the Reservation {89-890(3) (a)). 2. The purpose of this reservation is to ensure that water will be available for the expected expansion of irrlY~tion on fediilral by the Bureau of L!!i1d Uanagall!l!llt (U.S. Bureau of Lmd Hanaga:oont, Application l'b. 12334-01-r, p. 3. It is established to the satisfaction of the Board that a purpose of the reservation has been shown (Finding 2) . Findings Related to the Need for the Reservation (89-390(3)(b)). With substantial increases in agricultural production that could be realized by use of irrigation water in the Yellowstone River Basin, there is a need for a reservation of water in 5. A reservation of water is needed because it will secure a priority date for future developments that is earlier the priority dates such developments would have if permi.ts were :immediately before const:n!Ction or use begm. 6. A resei:Vation is bscause there CO!!petition for water 'Which affect tbJ! ooility of the ApplicmJt to obtain a water by the future. 7, It is established to the of the Board L~t the need for a reservation of water has been shmvrL Findings Related to the llrrount of Water Necessarv for the Purpose of the Reservation (89-890(3)(c))o 8 0 Bureau of Land ?'fan.ageroent intends to irrigate l, 992 new acres of land with tvaterspreading irrigation between May 15 and September 15, with water from O'Fallon Creek (Bureau of Land r1magernent' s Prooosed Findings of Fact) o 9 0 It is established to the satisfactio::t of the Board that the arrount of water necessarv for the purpose the reserJation Ln O'Fallon Creek for the Lalld : 'a.'Egemsl.t is 2, 924 acre-feet per year · FindLngs Related to the ~Jblic Interest (89-890(3)(d)). 100 Na~ irrigation will increase income in the Yellowstone River Basin, both for local fru:m::rs and the local businesses (Draft EIS, VoL I, po 6). lL Net~ irrigation will create =h needed jobs (Draft E:::s, VoL I, p. 6). 12. A reservation sufficient to irrigate 1,992 acres is in the public L'1tercst because of the economic and agricultural consequences. !3. It is established to the satisfaction of the Board that the reservation of 2,924 aore-feet per year with 2.'1 average diversionary flow rate of 12.287 is in • • the public L'1terest and trat there tvill be progress toward completion of the facility- and accomplishment established pla.'1. the purpose tvith reasorable diligence in accordance with an • • U\.W 1. O!apter 8, Title 89, R.C.M. 1947, &ad in particular, Section 89-890, and Conservation of orders resercving water to qualified applicants for reservations of ~ter. 2. If ordered adopted, a reservation l!USt be ordered adopted :ln accordanc<i! with Chapter 8, Title 89, R. C.M. 1947, and any rules adopted thereunder. 3. The Applicant is entitled to apply to reserve waters within the State of MOntana in accordance with Section 89-890, R.C.M. 1947, and any rules adopted All pertinent statutes and rules of the State of l'bntana have been ad- hered to in the review of this reservation Application, both by the !>bntana l:lepartment of !t!uturcal Resources and Conservetion and Resources and Conservation, · 5. &sed upon the above FU'l.diings of Fact, and specifically based upon 81:1Y condition, limitation, or !Wdification of the full Application appeering in said Findings, all pertinent criteria delineated at Section 89-890, R.C.M. 1947, and any rules adopted thereunder providing for the adoption of an order reserving water have been met, 6, Nothing found herein has ~ing upon t:P,;;; status of vmter rights claimed by the Applicant other than those .herein newly applied for, nor does anything found in relation to those tights herein newly applioo for, to the extent necesaa:ey to reach a cooclusim herein. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA --------=--------------------------------------------=------------==- IN THE HATTER OF APPLICATION FOR RESERVATION OF HATER NO, 12334-02-r BY THE L~ITED STATES BUREAU OF LAND HANAGEMENT ) ) FINDINGS OF FACT <\ND CON- ) CLUSIONS OF LAW OF APPLI- ' CATION NO. 12334-02-r ) ) --------------------------------------------------------------------- The above-entitled matter came on regularly for hearing starting on or about September 21, 1977, in Billings, Montana, bafore the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll. The Applicant appeared by and through its counsel of record, Thomas Gai. The Montana De- partment of Natural Resources and Conservation appeared cy and through its counsel of record, Richard Gordon. The Montana Department of Health and Environmental Sciences appeared by and through its counsel of record, Hona Jamison. The Montana Department of Fish and Game appeared by and through its counsel of record, F. t•loodsi te Wright and • 1 Clayton Herro~. The fourteen applicant conservation districts appeared' by and through their counsel of record, Gary Spaeth. Utah Internationa Inc., appeared by and through its counsel record, Urban Roth. In- take Water Company appeared by and through its counsel of record, ~ Henry Loble. Witnesses were duly sworn, and oral and documentary evidence was introduced. The Board, having read and fully considered the complete record, makes the following Findings Fact and lusions of Law relating -251- 17,476 acre-f~t of water per year (l'lf/y) rate of 76 cubic feet (cis) from the Yell~ tone River, to be used to provide acres. t~ater would be divErted between May 15 and Sept~ 15. In order to divezt 17,476 acre-feet during this p~riod, a ocnt:l.m.!oos diversion of the requested 75.76 cfs wruld be necessary (U.S. Bw:eau Findings Related to the I'u..yose of the Reservation (89-890(3) (a)). for the expected e><pansim of irrlg~J~ticn on federal lends by ~"he S. Bureau of Lm1rl Maru!gelll!rlt (U.S. Bureau of :tand MaMgarent, Application No. 12334-02-r, p. l).p. 3. It is established to the satisfaction the Board that a purpose of the reseJ::Vation has been show!:! (Finding 2) . Findings Related to the Need for the Reservation (89-890(3) (b)). 4. Hith substantial increases in agricultural production that could be realized by use of irrigation 1?i<lter in the Yellowstone River Basin, there is a need for a reservation of water in the Yellowstone River. 5. A reservation of water is needed because it 'vill secure a priority date for future develq:mimts that is earlier than the priority dates such developments wruld have if permits were obtained :i.!mlediately before coruJtruction or use beg.m, 6. A reservatioo is nseded because there is carpetition for -ter which lr<'!Y affect the ability furure. 7. It is established to the satisfaction of the Board that the need for a reservation of water has been shown. FindinRs Related to the Amount of ~later illecessa.-v for the Purpose of the Reservation 89-890(3)(c)). 8. The Bureau of Land Manageme.-"!t intends to irrigate 8, 738 nav acres of land with full service irrir,ation between Nay 15 1md Septec'ber , with wa~er from t.he YellOf,jStone River (Bureau of Land Management's Prooosed Fi.'"ldings of Fact). It is established to the satisfaction of the Board that the total amount of water necessary for the purpose of the reservar:ion in the YellciVJStone River the Bureau of Land Management is ,476 acre-feet total version per year trith a average diversionary flow rate of 75. 76 Findings Related to the Public InteresE-(89-890{3)(d)). 10. ~ irrigation trill increase income in the Yellowstone River Basin, both fur the local fanners end the local businesses (Draft EIS, VoL I, o. 6). lL ~Ia~ irrigation will create much needed jobs (Draft EIS, VoL I, p. 12. A reservation sufficient to irrigate 8, acres is in the public interest because of the economic and agricultural cor.sequences. 13. It is established to the satisfaction of the Board that the reservation of 17,4 76 acre-feet per year trith an average diversionary flow rate of 75.76 is in the public interest and that there will be progress toward CC!:!Dletion of the facilit) and acc~lishment of the pUl:1J()se with reasonable diligence in accordance with an established plan. -253- • • OF LAW 1. Chapter 8, Title 89, R.C.M. 1947, a.&d in particular, Section 89-890, R.C.M. 1947, authorizes the adoption by the MOntana Board of Natural Resources and Conservatioo of orders reserving water to qualified applicsnts for reservations of water. 2. If orde:l:li!d adopted, a reservation m~JSt be ordered adopted in accordance with Chapter 8, Title 89, R. 1947, and any :rules adopted thereuru:!er. 3. The Applicant 11> entitled to apply to reserve waters within the Stste of Mmtana in ~e with Section 89-890, R.C.M. 1947 and any rules adopted ~. the State hered to in the ravia.~ of this reservatian Application, both by the MJntana Oep;n-!J~i!:nt of Na~.~tm:al ~ces and Conservation and by the Mmtana lloo.rd Natural ~ces and Consenatioo. 5. IW!ed upcn the al:love Findings of Fact, and specifically based upon any condition, limitation, or mdification of the full Application appearing in said Findings, all pertinent criteria delinested at Section 89-890, R.C , and any rules adopted thereuru:!er provid:lng for the adoption of an order reserving water have been m2t. 6. Nothing found herein has bearing upoo the stat!Js of water rights clair!led the Applicant other than these herein newly applied for, mr does anything found herein have bearing on the stet!Js of cl&imed water rights of emy other party !ll«!ept in relation to thc~ rights herein newly &pplied for, to the extent necess&ry to reach a ~lw:l.oo herein~ BEFORE THE BOARD NATURAL RESOURCES AND CONSERVATJ:ON OF THE STATE OF ~!ONTANA -----------------=------------------------------------=---~------~-- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 9942-r42C BY THE HONTANA DEPAR~lENT OF !JATURAL RESOURCES AND CONSERVATION ) ) ) ) ) ) FINDINGS OF FArT ft.ND CON- CLUSIONS OF LAW OF APPLI- CATION NO. 9942-r42C --------------------------=------------------------------------------ The above-entitled matter came on regularly for hearing starting on or about August 11, 1977, in Billings, ~icntana, before the Hontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll: The Applicant appeared by and through its counsel of record, Richard Gordon. The Montana Department of Health and Environmental Sciences appeared by and through its counsel of record, Nona Jamison. The Montana Department of Fish and Game appeared by and through its counsel of record, F. Woodsite Wright and Clayton Herron. The fourteen applicant conservation districts appeared by and through their counsel of record, Gary Spaeth. The Montana Power Company appeared by and through its counsel of record, Robert Woodahl. Witnesses were duly sworn, and oral and documentary evidence was introduced. The Board, having read and fully considered the comp te record, n•akes the following Findings of Fact and Conclusions of Law relating to the Department of Natural Resources and Conservation, Application 9942-r42C: • • FINDINGS OF FAcr 1. The~t Natural Resources and Conservatirn has applied for the ressvatirn of a storage ri>!;ht of up to 450,000 acre-feet of water per year (af/y) fr001 the Toogoo River for enlarging the existing Tongue River Reservoir. This is an increase of 383,000 af/y over the r (Application No. 9942-r42C). Findings Related to the Purpose of the Reservation (89-890(3)(a)). 2. The prir.m:y purpose of this reservation is to reserve water for the future ~ion of 1m existing state-owned r.ultipurpose reservoir rn the Toogue River (Tr. Vol. 4, folle~iing p. 140, Testim:Jny of Orrin Ferris, p. 3. A pm:pose of this reservation is to ensu:re thst the water supply of the T~ River Subbasin 'WOUld be ~M~ilable for future needs, uses, and purposes (M:mtaM ~l:ll'lli!l'lt of Natural P.esources and Conservatirn, Applicatirn No. A pm:pose of this reservatirn is to make water available L.-, the Tongue River Subbasin for all beneficial uses recognized by la~iJ a,-,d at a price all can afford to pay (Tr. Vol. following p. 140, Test:lm?ny of Ferris, p. 2). 5. A purpose of this reservation is to provide a reasonable allocation of water a!!I'JI1g beneficial users, although there are many factors that will ult:ilnately determine an exact allocatirn of water from the project (Tr. VoL p. 140, Testim:Jny of Ferris, p. follcwi118 6. A purpose of this reservation is to protect uses such as irrigated agri- culture which cannot afford to pay the cost full cost of maintairlil:lg existing water devel~t (Tr. VoL p. 142). G'r!)ss of Ferris , 7. A pm:pose of this resezvation is to ensu:re that water is available fer an p. 85). 8. A purpose of this reservation, as envisioned, is to provide water for full t irrigation of l3, additional acres of irrigable land (Tr. VoL 4, follwing p. 99, Testimony of Gary Fritz, p. 9. Maintenance of instream flows is one of the potential uses for which the -t reservation request >vas nade (l'!ontana Department of Natural Re3ources and Conservation, Application No. 9942-r42C; Tr. Vol. Redirect of Bondy, p. 98). 10. A purpose of this reservation is to seoure a priority date for the use of ~ the applied-for water that is earlier than the priority date such use would have if a perndt were obtained imnediately before construction or use began (Tr. VoL 4, following p. 131, Test:im.Jny of Keith Corrigall, p. 2; M:Jntana Department Resources and Conservation, Application No. 9942-r42C). Natural lL It is established to the satisfaction of the Board that the purpose of the reservation has been shown (Findings 2 through 10) . Findings of Fact Related to Need for the Reservation (89-890(3) (b)) . 12. The reservation of water is needed because there is c~etition for - Yellowstone Basin water ~lhich may affect the ability of the Applicant to obtain a -4 water right by pennit in the future (l'!ontana Department of Nal:tl:l:al Resources and Conservation, attachment suhnitted with Application No, 9942-r42C, p. 13. The reservation of water is needed because it wi.ll secure a priority date 4 for the project th::~t is earlier tll0!1 the priority date the project wot!ld have if a permit o;.rere obtained im:nediately before construction or use began (Draft EIS, VoL I, p. 14. The reservation water is needed because there is a need for development of more irrigation water in the TCJ11RUe River Subbasin (Tr, Vol Test~y of Fritz, p, following p. 99, 15. ~ rese..-vation of water is needed because the lll1ljor water supply problem in the T~ Rive:r Subbasin is lack of adequate storege (Montana ~artl!lfmt of I N.mtural Resoorces, Application No. 9942-r42C, supplemental information of Msy 5, -~ 1977' p. 3)' for irrigation f'ro!ll erlst:l.ng :rouxces (Tr. VoL 4, following p. 99, Testim::Jny of Fritz, p. 2). 17. the reservation of 'Water is re.i!&:!d bee<ruse tire yield of the existing reservoir is fully ccm:rl.tted (Tr. VoL following p. 140, Testimony of F~-ris, p. 2). followinf, p. 99, Testimony of Fritz, p. 19. the resavation of 'Water is needed because it provides adequate water for <m intemediate level of irrir,atioo dew!loprne11t at a price irrigators c.;m afford (Tr, VoL 4, following p. 99, Test:lmooy of Fritz, pp. 5 through 20. the resavation of water is ~ because nearly ,000 potentially ir- dp,able acres are located within one-half mile of the T~ River and less thrm 50 feet in elevation .!'l!xM; the river, and th2 project coold provide new full-service i.rrigation to a large portion of these potentially irrigable acres (Tr. VoL following p. 99, Testiroey of Fritz, p . . 21. The reservation of 'Water is needed becaus"' the proposed projoct will protoct the mst:i.ng project's 'Water users frcrn possible loss of the project (Tr. Vol. follM.ng p. 140, Testi!!n:iy of Ferris, p. 4). The reservation of wat:er is needed because the existing projoct needs <2Xtensive repairs midi MJUld be too ~ive for existinp; users (Tr, Vol. 4, following p. 140, Testimny of Ferri!l, p. 4). The reserwt!on of water b ~ because failure of ths ex!sti:ng Tongoo follow:Wg Tne reservation of water is needed because, ~dthout extensive repair to t the e:dsting project, rruch of the irrigation now present in the Tongue River Subbasin will be lost (Tr. Vol. 4, Cross Fritz, p. 102). 25. The reservation of water is needed because operation of the existing t reserlll)ir is already constrained to reduce the use of the deteriorating spillway (Tr. Vol following p. 140, Testimony of Ferris, p. 26. The reservation of water is needed because replacing the existL;g spillway iii WQ~Jld be toe expensive for present users (Tr. . 4, following p. 81, Testimony of lilondy' p' 38). The reservation of water is needed because the existing spillway is too t smll to safely pass floods that are known to be possible in the Tongue River Subbasin- (Tr. following p. Bl, TestLcuny Bondy, pp. 34 through 28. The reservation of water is needed because, although financing the repairs 4 would be impossible for existing users, financing the repairs and the construction of a larger structure would be possible because the additional storage could be sold at a price high enough to pay for a substantial amount of the costs (Tr. Vol. 4, ~ following p. 31, Testimony of Bondy, p. 38; Tr. Vol. 4, Cross of Bondy, p. 85). 29. The reservation of water is needed because, in addition to the enlarged spillway associated with the proposed project, many other features would be in~ _4 corporated to make the darn safe (Montana. Department of Natural Resources and Con- servation, Application No. 9942 -r42C; Tr. VoL 4, following p. 81, Testinpny of Bondy, pp. 15 throupp 19). 30. The reservation of water is needed because, although the cost to merely provide an adequate spillway for the existL~ dam at its present capacity is follcv.'ing p. 81, Testilrony of Bondy, p. 2), the oost to acre-feet provirled by the existing reservoir) varies fr,~ $33,890,000 for raising the reseTIIOir directly to t.~ ma:m:un elevation to $40,131,000 if t:l1e dam is raised in stages after first building a spillway at the existing elevation (Tr. foll.OO.rlg p, 81, Testim:Jny of Boody, pp. 2 7 and 38) . 31. The reservation there are ~ous constraints to its :imllediate development; development of the project by a water use permit WJUld have to be i.'lll!ediate (Tr. VoL following p. 140, Testiloony of Ferris, pp. 3 and 4). The reservation of water is needed because there are ll'i!!!lY strippable coal rese:I:'W!il near the Tongue River ReseTIIOir (Draft EIS, VoL I, p. 39), and the cost of lm!d acquisition will decrease significantly when coal near the reservoir has been mined (Tr. VoL following p. 131, Testim::Jny of Corrigall, p. 33. It is established to the satisfaction of the !loard that the need for the re~tioo of water has been l!ha.li'l (Findings 12 through Findings Related to Amount of Water tiecessary for the J?urpose of the Reservation (89-890(3) (c)) . 34. An am11.1a1l average of 187,080 acre-feet is diverted frcm Tongue River for irrigation; 87,930 acre-feet of that is depleted (Draft EIS, Vol. I, p. lOS). 35. The existi11g Tonp,ue River ReseTIIOir, seven miles oort:hesst of Decker, now provides 67,000 acre-feet of stcrage, 40,000 of 'Which is firm annual yield (Draft EIS, VoL I, p. 108; 'r.r. Vol. 4, following p. 81, Testimony of Boody, p. 36. A :reservation of a storage right of up to 450,000 acre-feet of water per yem: woold fully develop M::nt<ma' s share of the Tongue River and \1!0Uld provide a rese:rvob: with a fixm annual yield of 112,000 acre-feet (Tr. Vol. follcwing p. 81, Teetimcny of Brody, pp. 3 and 15) . 37. ~ioo of 450,0l"'O acr~feet of storage ~lly coold provide 72 the reservoir (}f.ontana Departnent of Natural Resources and Conservation, Application No, 9942~r42C; Tr. VoL following p. 81 Test:L~y of Bondy, p. 24; Tr. Vol. 4, Cross of , p. 106 and 107; Tr, VoL '•, follCN:ing p. 140, Test:L~y of Ferris, p. 6). 38. The resolution of exi::;ting constraints on development of the Tongue River could increase or decrease the ar:ount of lvater available to M::mtana for 1evelopment, but considering all reasonable possibilities, ~~e 450,000 acre-foot reservation is adequate and necessary {Tr. VoL following p. 140, Testimony Ferr:Ls, pp. 5 and 6). 39. An adequate economic feasibility analysis for the proposed development, based upon sound engineering and user cost est:L-nates, has been submitted (Tr. VoL Cross of Ferris, p. 143; Tr. VoL 4, foll.otving p. 81, Test~"'lY Bondy, pp. 39 and 40; Tr. VoL 4, following p. 99, Testimony of Fritz, pp. 3 through 10; Tr, VoL 4, following p. 131, Testimony of Corrigall, pp. 4 throu~h 10). 40. Costs for irrigation, assuming the use of center-pivot sprinklers and in- eluding initial costs end annual operating costs, '!~."ere calculated for each parcel of irrigable land (Tr. VoL 4, following p. 99, Testimony of Fritz, p. 4). 41. Of the prooosed additional firm annual yield, it is envisioned by the Applicant that 29,250 af/y would be allocated to agriculture for irrigation (Tr. Vol. 4, foll~~ng p. 99, Testimony of Fritz, p. 6). 42. Of the proposed additional firm annual , it is envisioned the Applicant that ,750 af/y would be allocated to industry in order to meet the pr~- ject cost (Tr. Vol. following p. 99, Testimony of Fritz, p. 6; Tr. VoL follCNJ'Lng p. lJl, Test:ia:Jny of Corrigall, pp, 3 through 320,000 acre-feet of new storage would be required to provide this total of 60,000 acre-feet of firm annual yield for new uae (Tr. VoL 4, following Ill • • Further economic feasibiliv; studies dictate increasing or decreasing the amount of w.:~ter to be made available for indus trial sales (Tr. VoL 4, Cross p. The fim ;;umual yield estir.lates are conservative and are based upon a conservative allocation under the Yellowstone Ccq:lact, a reserved Indian water right ass~tion, an ass~tion of prior rights :L.> Montana and \.Jyoming, and a severedrOO!?,ht condition (Tr. VoL 4, following j). 81, Test:L.'liJ!lY of Bondy, pp. through 30). Further resolution Indian rights ~;md the Yellowstone Cc!!ipact ~ld allow for better water supply estimates and a =e accurate size estimate of a reservoir to provide a given firm annual yield (Tr. Vol. 4, following p. 81, Testimcny of Bondy, p. 42) . . The Department of State Lands has requested a water reservation 1,431 acre-feet per year fra~~ the Tongue River (Depa:r1::l::!ent of State Lands, Application 9931-r); and a water reservation request of 390 acre-feet per year fra~~ the Tongue River to be used for irrigation of state-owned lands (Department of State Lands, Application 9933-r). 48. Although no significar,t additional irrigation development can occur in the Tongue River Subbasin unless new storage is developed, the }fontana Depa:rt:ment of State Lands Application includes no plans for development of storage in the Tongue River Subbasin (Draft EIS, VoL II, p. 9933-r). and Applications 9931-r end 49. \>lith the expcmsion of the e1tisting state-owned multipurpose reservoir on the T~ River, there be sufficient storage for t:l:E am::lU!lt of 'JJater requested frail the Tongue Rivsr by the ~U!!erlt of State L1mds in Application 9931-r ~Application 9933-r. 50. The folla;ving Conservation Districts have requested a water reservation from the Tongue River to irri~ate agricultural lands: a) Bio Horn Conservation District has requested a reservation o£"'1,034 acre-feet per year fran the Tongue River (Application No. 9952-r43P), Rosebud Conservation District has requested a reservation of 7,144 acre-feet per year fran the Tongue River (Application No. 10,005-r42KJ). c) North Custer Conservation District has requested 10,897 acre- feet per year fran the Tongue River (Application No, 9947-r4~1). 51. Although no significant additional irrigation develc:;;Jlglt can occur in the Tongue River Subbasin unless new storage is developed, the Big Horn, Rosebud, and North Custer Conservation Districts' Applications include no plans for developnent of storage in the Tongue River Subbasin (Draft EIS, Vol. II, p. 244, -and Applications 9952-r43P, 10,0J5-r42KJ a,,d 9947-r~. 52. With the expansioo of the existing state-owned multipurpose reservoir oo the Tongue River, there will be sufficient storage for the am:runt water requested fran the Tongue River by the Big Hom, Rosebud, and North Custer CcnseTVation Districts. 53. The averap;e annual rnin:L'"!Ull flows in the Tongue River at Miles City is approximately 30 cfs (Draft EIS, Vol. II, p. 358). 54. The flow of the Tongue River at Niles City has been zero (Tr. VoL Recross of Fritz, p. 128). 55. In order to maintain a flow in the Tongue River and cont bute to the i reservation of the Departn~nt of Fish and Game beluw the proposed ti~ purpose reservoir on the Tongue ver, it is necessary the Department Natur~l Resources to cause to sass an average of 75 cfs from the Reservoir. • It is established to the satisfaction of the Board that a storage right of up to 450, af/y 'Which is to include all existing .;.1ater rights is ths =unt of water necessary for the purpose the reservation at least to the year 2000, Howe~r, this reservation is subject to the following: a) Part of this reservation is to be used to meet t.~e request of the Deoartment of State Lands reservation reauest for 1,431 acre-feet per year from the TongJe River (Application 9931-r) and 390 acre-feet oer year from the Tongue Riv~r (Application 9933-r). b) Part of this reservation is to he used to meet the request of the Big PDrn Conservation District's reservation request for 1 ,034 acre-feet per year from the Tongue River (Application 9952-r43P). c) Part of this reservation is to be used to meet the reservation request of the Rosebud Conservation District for 7,144 acre- feet per year from the Tongue River (4'1Jlication No. l0,005- r42KJ). d) Part of this reservation is to be used to meet the reservation request of North Custer Conservation District for 10,897 acre- feet per year from the Tongue River (Application No. 9947-r42M). e) The Department of Natural Resources is to cause to release an average of 75 cfs fram the Reservation in order that for ths instream reservation in the Tongue River of the Department of Fish and Ga!re to be met, Findings Related to the Public Interest (89-890(3)(d)). 58. The existing project will have to be abandoned unless it is repaired, but an expanded project would increase benefits now realized by the public, such as a good fishery and agricultural use (Tr, VoL following p. 99, Testimony of Fritz, 9; Tr. VoL 59. Est:i.nates of the extent existing rights have been taken into account in the analysis of the proposed project, and such existing rir,hts would be protecta.d by ths proposed project (Tr. VoL following p. 81, Test:i.m:Jny of Bondy, p. 26). 60. ~ Wot'llMitioo provided on plans for consttuction of the diversion ~~ ~ spplicatian facilities and the maos of the location of potential ~le ~ to !::e served by the project contain sufficient detail to adequately 61. Prtwte develq:ment of the proposed project would lfr-ely ~ -~ult in single- ~ dew~t, selli.ng water to the hir.hest bidder (Tr. VoL 4, following p. 140, TeBtimony of Ferris, p. 6). 62. ~tion of water by the State would result in a plan to optimize tb!! public beMfit (Tr. Vol. following p. 1110, Testim:;ny Ferris, p. 6). 63. Pmlic interest has been served by many projects developed by the M:inti!M ~t of Natural !'.esources -~ Conservation and its predecessors (Tr. Vol. foll.o.ri.ng p. 140, Testim:ny of Ferris, p. 41 4 64. 1."he ~ed project w:ruld provide water to all T~ River Subbasin water_ users at a prlce they can afford (Tr. Vol. Test:l.mony of Ferris, p. 6) . 65. ~ resavation can provide a substantial amoont of additiooal stored water for use in the Toogue River Subbasin at a cost only marginally greater then I'!Wt, in aey event, be ~tded to repair this existing facility at its present storage capacity (Tr. Vol. 4, following p. 81, Testim:;ny of Bondy, pp. 2 and 38). 66. 1."he pr.opo;~ed ~im of the project woold produce tmt benefits to the economy and the emir~t (Tr. p. 6). follcwinf, p. 99, Testimony of Fritz, 67. The ~ foosibility of the propooed project lw; been da!lowltt&ted by~ ~~tim ©fa recmnais~e-level bem!fit/rost evahmtia! {Mooit!&.i'lll ~ of ~tm'sl ~~ 500 ~tion, Awlicstiro fob. 9942-r42C), 6$, leea111e ~1~ of the propceed project w:mld ~ oos~, the project ~ ~Uy \~ht ('n, Vol. 4, foll~ p. 131, Teat:!m:my of Corrigal, p. 4). - . I.J'ater from the proposed project can be made available :ill sufficient quantities and at a reasonable cost to both agriculture and industry (Tr. VoL 4, following p. 140, Testimony of Ferris, p. 7). 70. The economic w.alysis of the be.'lefits and costs concerning the project is sound (Tr. VoL 4, Cross Corrigall, 140). 7L Additional storage can be provided either by raising the existing dam or by building a new dam downstream (Tr. VoL Boody, p. following p. 81, Te.'<timony Additional storage can be provided at the existing dam site by con~ structing the dam at its mmdnm1 elevation diractly or by raising the to successively higher elevations in stages by using gates after first building a spillway at the existing elevation (Tr. VoL 4, follow'ing p. 81, Testimony of Boody' p. 38). 73. The mineral fuel resCJU:~:ces of the Yellowstone Basin are extensive and ~rtant (Draft EIS, VoL L p. 74. The largest coal mine the Yellowstone Basin is adjacent to the Tongue River Reservoir (Draft EIS, , I, p, 98), 75. Staged raising of the reservoir could begin soon, keeping the reservoir level below the coal mines until mining near the reservoir is c~lete (Tr, VoL following p. 81, Test:lloony of Bondy, pp. 39 and 41) . 76. Staged raising !:he reservoir 1i¥0tlld reduce acquisition costs and land rights conflicts (Tr. follvNing p. 11.0, Testimony of F~-ris, p, 3). , The M:mtana Depm:t:ll!>mt of Natural Resources and O:::nserwtion is now conducting studies to est:i.!ru!,te !:he fe.asibilit'j of hydroelectric generatL"lg facilities to its projects Vol, following p. 81, Tes~t of p. 41). to pursue the addition of hydroelectric generation at the VoL 4, p. 140, Testirnony of Ferris, p, 7), Hydroelectric generation is feasible for the enlarged reservoir (Tr. VoL following p. 81, Testimony of Bondy, p. 41; Tr. VoL 4, Cross of Bondy, 80. I'm ideal time to add generatL"'lg facilities would be during expansion ·of the project (Tr. VoL 4, following p. 140, Test:lmony of Ferris, p. 81. A 6-mega:watt power plant could be constructed to produce 21 million kilowatt-hours of electricity per year (Tr. Vol. of Bondy, p. 92). Cross 82. Revenue for hydropower sales could used for repairs end improvements oo this <!00 other state water projects (Tr. VoL 4, Cross of Bondy, p. 95). 83. Private water development :in the Tongue River Subbasin would cost up oo $50.00 per acre-foot (Tr. VoL 4, following p. 99, Test:lmony Fritz, p. 3). 84. Differential pricing of water is an accepted method of merketing water, and by subsidizing irrigation, differential pricing results in an econcrnic benefit to the state (Tr. Vol. 4, Cross of Fritz, p. 122). 85. Irrigation would be economically feasible with the proprJSed project (Tr. VoL 4, following p. 99, Test:lmony of Fritz, pp. 6 through 10; Tr. Vol 4, Cross of Fritz, p. 102). 86. Water frcm the existing reservoir provides full or supplemental irrigation for nearly 17,000 acres (Tr. Vol. 4, follo;nng p. 99, Test:lmony of Fritz, p. 8). 87. Most of the existing irrigation using water frcm the Tongue River Cross Fritz, p. 102). 88. All of the lands proposed to be :irrigated are suitable for :irrigation (Tr. VoL 4, following p. 99, Test:fmnny of Fritz, p. 8), and no 3 Mill. bri!en included in tlw project (M:>ntana Deparl::l:!lent of Natural F!e!lou:rces <!00 Come:rvation, .1\pplicstioo No. 9942~r42C). - 89. The Montana Depart:ment of Health ani Envir0!1!!lefital Sciences did not apply for a reservation of watar for quality purposes in the Tongue River Sub~ basin (Tr. . 4. followin~ p. 81, Testimony Bondy, p. 40). The Tongue River !>.a::; been dry in the past at Miles ~cross of Fritz, p. 128), water quality can (Tr. VoL 4, adequately considered development of the proposed project (Tr. VoL l;, Cross of Ferris, pp. 152 through 155)' 92. Water could be allocated from the proposed project for tmpraving water quality and alleviating existing water quality problems (Tr, Vol. 4, ~direct of Fritz, p, 127; Tr, VoL Recross of Fritz, p. 129). 93. Any eroount of the new water s~ly provided by the proposed project could oo allocated to water quality, as the public interest dictates (Tr, Vol, 4, Cross of Ferris, p. 148), Increases in total dissolved solids (TDS), if any, caused paneled project ere unlikely to damage crops (Tr, VoL 4, Cross and 125)' Frtiz, pp, 124 95, The Tongue River Subbasin has &'1 especially productive fishery (Draft EIS, Vol, I, p. 75). The Tongue River Reservoir provides a warm-water fishery for walleye, northern pike, smallm::Juth bass, and crappies (Draft EIS, VoL I, p, 76), 97. The Tongue River provides on the li!Ost diverse sport fisheries the state (Draft EIS, Vol. I, p, 75), The Tongt!e River Reseri!Dir is a heavily used sco<Jrce of "-aried recreation (Draft EIS, VoL I, p. 50) , 99, Increasing the size :recreation en.d fish and wildlife benefits of the existing :reservoir (Tr, VoL Cross of Fritz, p, 108), 100. As the public interest dictates, fish and wildlife maintenance can be adequately cG'l'ISidered in development of the proposed project (Tr. VoL 4, Cross of Fritz, pp. 111 and 112; Tr. Vol. Cross of Ferris, p. lOL The existing reservoir and the proposed enlarged reservoir provide the benefit waterf<=Ml and fish habitat maintenance (Tr. VoL 4, following p. 81, Testimony of Fritz, p. 9). 102. l'iithout the existing project, irrigation carried out with existing ill water rights would dewater m.JCh of the Tongue River mst years, thereby greatly reducing instteam benefits (Tr. VoL 4, foll(Ming p. 140, Testim:my of Ferris, p. 103. The existing reservoir provides good habitat for several species fish which thrive in the reservoir; they should oont:i.nue to do well i.."l the ~reservoir (Tr. Vol. following p. 99, Testim:my of Fritz, p. 104. No endangered species have been identified that would be harmed by an enlarged Tongue River Reservoir (Draft EIS, . I, p. 79). 105. The purchase of storage in the enlarged reservoir for maintenance of fish m.d wildlife habitat in the subbasin ;rould be possbile if the reservation were granted (Tr. VoL Cross of Ferris, p. 145). 106. The planning process of the expanded Tongue River Project has been going on since 1967 (Tr. VoL 4, following p. 81, Testimony of Bondy, p. 40). 107. The Montana Depart:ment of Natural Resources and Conservation has done a substantial arncu:nt of work on the expansion of the Tongue River Project, including: a) A water supply study b) Preliminary design of several altsrnatiw of ~'l!llditlg the project Eall'lallic feasibility studies Pr•~limilrJm':y electrification studies The }bntruJa Legislature SU!JDCn:ted the Tongue Rhrer Project proposed expansion through sev-eral actions including: a) Funding for construction of ~~e Tor~ River Dam in the late 1930's b) Funding for a'llarp,ement studies i11 tl1e late 1960's c) Fundin11 for further enlm·gemerlt studies in 1975 DirectL-,g the i·bntana DeDartrnent of Natural Resources m1d Conservation to enter negotiations with potential users of with the Indians (Tr. VoL follow:ing p, , Testim:Jny of Bondy, 1'· 41; Tr. VoL 4, following p. 140, Testimony Ferris, p, 8), 109. The ~1Jnta'1a Legislature is likely to prov'icle further direction in 1979 in the devel~t of the Testimony of l'cndy, p. 41). River Project . VoL 4, folloo:ing o. 81, 110. The proposed project confo=s to d~e pu.u.c:y of this State and the PtJJ:pOSe of the Water Use Act: to encourage the v.'ise use of the State's water resources by making them available for aooropriation consistent with the Water Use Act and provide for the '>'lise State for the rna:m:un benefit: of its people least possible degradation the natural aquatic ecosystems (Tr. 4, Cross of Bondy, p. 88). 111. It is established to satisfaction of tr~ that the reservation of a storaga ri&ht of uo to 450,000 to include all existing water rig.hts, cmd is subject to the conditions mentioned in Finding is in the oublic interest and thst there be progress toward ccrrpletion the facility and ac<::o!l"'lislhm!S1t of the ourpose within a reasonable t:iJ:Jl2 in accordance vlith an es- tablislled plan. This reservation is ,000 a f t (F "rl' o. new s orage. HL Hlgs 58 through 109; f~ntana Clepa rtment of Natura 1 Reso;;rces and Conservation, lip- CO.'IICUJSIONS OF IAH Chaoter 8, Title 89, R,C.M. 1947, &,din particular, Section 89-890, R.C.M. 1947, authorize the adoption by the Hont:ana Board of Natural Resources ~ Conservation of orders reserving water to qualified applicants for reservation of water. 2. If ordered adopted, a reservation rrust be ordered adopted in accordance with Chapter 3, Tilte 89, R. C.M, 1947, and any rules adopted thereunder. 3, The Applicant, the M::ntana Department of Natural Resources and Conservation,_ is m agency of the State of Montana and as such is entitled to apply to reserve waters within the State of Montana in accordance with 39-890, R.C 1947 and any rules adopted thereunder. 4. All pertinent statutes ~ rules of the State of Montana have been ad- hered tc inrevis<~ of this reservation application, both by the M:ntana Depart::mcnt of Natural Resources ~ Conservation and by the Montana Board of Natural Resources ~ Conservation. 5. Based upon the above Findings of Fact, all pertinent criteria delinested at Section 89-890, R.C.H. 1947, and any rules adopted there1.mder providing for the adoption of an order reservinE; water have been met. 6. Nothing found herein has bearing u;on the status of water rights claimed by the Applicant other than those herein newly applied for, nor does anything fC\md herein have bearing on the status of cl.aimed water rights of any other party ~t in relation to those rights herein newly applied for, to the extmt necessary to reach a conclusion herein. II BEFORE TF~ BOARD OF NATURAL RESOURCES AND CONSERVATIOll OF THE STATE OF ~iONTANA ------~---------------=====-------==---------=--------===-==---- IN THE MATTER OF APPLICATION FOR RESERVATION OF \-lATER NO~ 330-r42KJ BY THE U ~ S. BUREAU OF RECLM!ll.TION ) ) ) ) ) FINDINGS CLUSIONS OF CATION NO~ FAC'~' AND CON- LAIV OF APPLI- 30~r42KJ --------------------~------------=-==----==------------=----------=-- The above-entitled matter came on regularly for hearing on or about August , 1977, in Billings, Montana, before ~1ontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll. The Applicant appeared and through its counsel of record, Thomas Gai~ The Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon, The Montana Department of Health and Environ~ mental Sciences appeared by and through its counsel of record, Mona Jamison. The Nontana Department of Fish and Game appeared by and through its counsel of record, F. Woodsite Wright and Clayton Herron. The fourteen applicant conservation districts appeared by and through their counsel of record, Gary Spaeth~ Utah International, Inc,, ap- peered by and through counsel of record, Urban Roth. The l·lontana Power Company appeared by and through its counsel of record, Robert Woodahl~ Intake Water Company appeared by and through its counsel of record, Henry Loble. Witnesues were duly sworn, and oral and documentar} evidence was introudced, The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of La>·l relating to the U.S~ Bureau of Ree ion, Application No. 330-r42KJ, for FL'IDINGS OF FAcr L The S. Bureau of Reclamation has ~-;plied for the reservation of 121,800 acre-feet of water per year (af/y) fran the Yellowstone River for storage in the proposed Cedar Ridge reservoir to be used for municipal, industrial, recreation, and fish and wildlife purposes S. Bureau of Reclamation, Application NO. 12330-r42Kj). 2. The reservoir, with a capacity of 144,000 acre-feet, would irnmdate 5,030 acres on the north side of the Yellowstone River on Starved to Death Creek, a tributary of the Yellowstone River, in Treasure and Rosebud Counties about 16 miles norl':hwest of Forsyth (U.S. Bureau of Reclamation, Application No. 12330-r42KJ; 4 Draft Addendun EIS, ~-lap 1, following p. Findings Related to the Purpose of the .Reservation (89-890(3) (a)). 3. The purpose of the reservation request is to divert and store water 4 for release during critical ~ flCM periods VoL , following p. Testimony of Derwood Mercer, p. 4. The released water would replace or atlgillel:lt flows used for municipal, industrial, recreation, water quality, aquatic resource maintenance, irrigation, sanitation, and fish and 1-dldlife purposes (Tr. VoL 18, following p. Testimony of Mercer, p. 12). 5. The purposes and uses ere sil'!'.ilar for all three U.S. Bureau of Reclemation proposed offstream storage projects along t.'le Yellowstone River (Tr. VoL 19, Cross of Mercer, p. 10; Tr. VoL 18, following p. 179, Testimony of Mercer, pp. 7 and 10). 6. It is established to the satisfaction the !3om:d that a purpose of the rroe!:Vation ~ hem shown (Findings 3 through 5) . ~ Related ro the Need for the Reservation (89-890(3) (b)) . •· -273~ storage the other applicants Cross 11ercer, pp. 10 and 51) . IL Certain reservation requests of other applicants are granted herein (See "Order," , 1 through 9. It establish-Ad to satisfaction the Board that a need has been shown for the reservation of w-ater to stored in Cedar Ridge Reservoir in Treasure and Rosebud Counties (Findings 7 and 8) . Findings Related tc the ~"'mt of Water Necessary for the Purpose of the Reservation {39-890(3)(c)). 10. The Application for a maldriUll a.'l:'lua1 need of 121,800 acre-feet of water frcm the Yellowstone River to be stored in a."l offstream reservoir (U.S. Bureau of Reclamation, Application No. 12330-r42KJ). required every year (Tr, VoL 19, Test:!m::;ny 12. The offstream reservoir would v•'JVJcu"' storage so t.'w.t water could be returned to the river for irrigation uses, lllllnicipal uses and industrial uses (Tr. 19, Test:Lvnony of Mercer), 13. Hith an offstn:>an resenoir, the ins:tr13am flews could be regulated so as to protect water quality and recreational use a.'1d and wildlife use (Tr, 19, Testimony of 11ercer). 14. Water would be pUTlped fran the river during periods of GKcess flov.'S returned to t.he river durinp, months VoL 19, Testimony of Mercer). 15. The anticipated increase in energy~related depletions projected tor the Mid~ and ~r Yellowstone subbasins under the inlta:me:!ULte level of development by the year 16. The anticipated increase in irrigation depletiona projected the the lewl of development by the year 2000 is 83,840 af/y (Draft EIS, Vol. II, p. 239). 17. The total anticipated increase in depletions projected for the Mid~ and ~ Yellowstone subbasins under the L>te:rmediate level of development for these two uses by the year 2000 is 159,330 qf/y (Findings 15 and 16) . 18. A pw:pose of the reservation is to provide stored water for uses such as those clisucssed above in Findings 12 • 1 3 , 14 a 11 d 15 ( Vol. 18, 1 owi p. 179, Testim:my of Mercer, Fincl:ing 4) . 19. It is established to the satisfaction of the Board that the applied~ for 121,800 af/y of water a reasonable ll!!!OU!lt of water necessary for the purpose of the reservation (Findings 15 through 18) . 20. It is further established by the Board that the Bureau Reclamation may only withdraw water fran the Yellowstone River daring Findings Related to the Public Interest ~39-890(3)(d)). 21. Stored water 1NOUld be released fran the proposed project to aug,rnent flews during critical summer periods (Tr. Vol. 18, following p. 179, Testimony of Mercer, p. 12). 22. Stored water would be available frcm the proposed project for new diversionary uses (Tr. Vol. 18, following p. 179, TestL~y of Mercer, p. 121). 23. Possible effects of the proposed project en the eccsystem include establishnent of a rnultispecies wa:rm-water fishery, introduction of ~WSkrat into the erea, and attraction of migratory waterfowl (Draft Addendw-. EIS, pp. 34 mid mld flatwater recreation and fishLY'lg opportl.!nities muld be ~ (Draft Mdendt.m EIS, pp, 36 and 38), ~275~ - - 25. It is established to the Boarcl that ~;.-...,e reservat:ion of 12L800 a£/y frcrn the Yellowstone River for storage at the Cedar Ridge site in Treasure and Rosebud counties tt.at there will be progress toward accomplishment of the purpose with reasonable diligence accordance with an established plan r42l<J). Reclarration, Application' 12330~ 26. T!1e public interest requires that specific design, construction, and and probable allocations of water to various beneficial uses be supplied so t..l-Jat other water users :in the basi.n may know t:.l-te status the proposed Cedar Ridge Project and the amount of "-'ater availsble for appropriation (Application No. r42l<J). OF 1. Chapter 8, Title 89, R.C.M. 1947, in particulsr, Section 89-890, R. 1947, authorizes the adoption the 1-bntana Board of Natural Resources and Conservation of orders reserving water to of water. a reservatian rrrust ordered adopted in accordcunce with Ch..apter Title 89J 3. The Applicant, Bureau States Montana in accordance thereunder. 4. All pertL'"!ent statutes 1947, and rules adopted thereunder. Reclamationt an agency of the United to reserve waters wit:.l-Jin t.'1e State of c , and any rules adopted State of tb1ts:ar l-.ave been adhared to in the review of t..llls re:setvati<m apiJ:c.c<.:C<~.o.&ur!, both by the ~bntana Natural R!esources end by the rb:ttsl:Ja Bc:ard of 5. Based man the above Findings of Fact, and specifically based upon any • o:mditioo, lici.tatirn, or modification of t.lJ.e full applicatirn appearing in said F:irdil:lgS, all pertinent criteria delineated at Sectirn 39-890, CJ1. 1947, and any rules adopted thereunder providing for the adoption of a\'1 order reserving water have been met. rlotl1ing found herein has bearing 11p<.-"'11 the status of water rights claimed by the Applicant other than those herein newly applied for, nor does anything found ~ herein have bearing on the status of cla:ir.led water rights of any other \)arty e:tcept in relation to those rights herein newly applied for, to the extent necessary to reach a =lmiiro herein. NATURAL RESOURCES THE STATE OF MONTANA IN THE ~ATTER OF APPLICATION FOR RESERVATION OF WATER NO. 2 BY THE U.S. BUREAU OF RECLA11ATION The above-entitled matter came on ) ) ) ) ) OF FACT AND CON- CLUSIONS LA\~ ,w APPLI- CATION ~ 123 -r42K for hearing on or about August 31, 1977, llings. Montana, before the Montana Board of Natural Resources and Conservation and s duly appointed Hearing Examiner, James Driscoll. The t by and through its counsel of record, Thomas Gai. The Montana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The Montana Deoartment Health and Envir- onmental Sciences appeared counsel record, Mona Jamison" The Montana Department Fi Game appeared and through its counsel of record, F. ide Wright and Clayton Herron. their counsel of , Gary Spaeth. Utah International, Inc"• ap- peared by and through its counsel f Urban th" The Hontena Co~pany appeared by its counsel record, Robert ~Joodahl. Intake I.Jater by through its counsel of record, Henry ~able, Witnesses were duly sworn, and oral and documentar~ evidence was introduced. The Board, read considered the complete record, the ' 1 Fact of Law relating to the U.S. Bureau of Reclamation, Application Sunday Creek offetream storage: 2 • - • FLtiDINGS OF FACf 539,0C{) acre-feet of water per year (af/y) the proposed Sunday Creek reservoir to the reservation of the Yellowstone River for storage mJ:riicipal, industrial, recreation, and fish and h~ldlife purposes ,S, Bureau of Reclamation, Application No. 12J32-r42K), 2, The reservoir, with a capacity of , 700 acres on the north side of the Yell01ostone River Custer COIJnty near the Miles airport 12332-r42K). Findings Related to the Purpose of the Reservation (89-890(3)(a)), 3, The purpose of the reservation request is to divert store water for release during critical summer flow periods Vol, 18, following p, 179, Testim:Jny Derwood Hercer, p, 12) , industrial, recreation, tvater quality, aquatic resource lnainter.ance, irrigation, sanitation, and fish and wildlife purposes , 18, follcwn_ng p, 179, Testimony of }!ercer, p, 12), 5, The purposes and uses are similar for trxee S, Bureau of Reclamation ' proposed offstream storage projects along the Yellowstone River (Tr, VoL Cross of !1ercer, p. 10; Tr, VoL 18, toll(JWing p, 179, Test:im:Jny of }!ercer, pp, 7 and 10). 6. It is established to ~~e reservation has been shown llltorage projects dC!'ends on 1:.~ level of water reservation requests granted to 41 the other applicants (Tr. VoL 19, Croslll of !1ercer, pp. 10 and 51L 8, Certain reservation requests of other applicants llre granted herein (See "Order," 'I 1 through 96) . 9. It b establishOO to the satisfaction been shoiin for the reservation of water to be stcred in Sunday Cree.lc Reservoir in Custer County (Findings 7 and 8). Fi.nding!! Related to the lmvunt of Water Necessary for the Pm:pose of the Reservation (89-890(3)(c)). • 10. The Application is for a maxim.m ~1 need of 539,000 acre-feet of 41 water ~ the Yellowstone River to be stored in an offstream :rese:;:voir (U.S, ~ of Reclamation, Application !~. 12332-r42K). lL Amrual flow data shows that the annual need ~d not be required wery yesr (Tr. Vol. 19, Test:im:;ny of Mercar). 12, The offstream reservoir would provide stcrage so that water could be returned to the river for irrigation uses, mmidpal uses and :l.ndustrial uses -. (Tr, Vol. 19, Testirn:my of Mercer) , 13. With an offstream reseiVOir, the instrearn flews could be ragulated so as to protect water quality _and recreaticnsl use for fish and wildlife use (Tr. ~ VoL 19, Tea~ of Mercer) , 14. Water would be punped frC!ll the river during periods of excess flews and re~ to the river during oonths of lc:w flO!il$ (Tr. VoL 19, Testiloony of 41 Mercer). 15. The antidpat:OO increase in energy-related depletiom projected for d1!f.l Mid-."md ~ Yella~l:ol:le subbasins under the intet'l!ll!diate lewll of devslcpmmt ~ d1!f.l ~ 2000 it; 75,490 ef/y (Dreft EIS, Vol. II, p. 230). 16. 'I'M I'!J'lticipat:OO increase in irrigatio;:; depletiom :projected for the Mid-and ~ Yel~tom subOO,sim under the intennediate level of development • by the vear 2000 (Draft EIS, and Lower Yella,•stone subbasL'ls under the L'lte:rmediate level of developmer1t for these two uses by the 2000 is 1 18. A purpose of reservation is to provide stored water uses suc.}j as ~~ose disucssed above in Findings 12, 13. 14 and 15 ( Vol~ 18, following P~ 179, Testiloony of Hercer, p. FL""!dir.g 4). It eEtablished to the satisfaction the Board that the applied- for 539,000 af/y of water is a reasOP.able amount of water necessac-y for the purpose of the reservation (FL'ld:lngs 15 throug.'J 18) . 20. It is further established by the that the Bureau of Reclal:J'ation wy only withdraw water from the Yellowstone River during high flows. Findings Related to the Public Interest (89~890(3)(d)). 21. Stored water would be released frcm the proposed project to atll~!nt flows during critical Stm11el: periods ~ VoL 13, following P~ , Testimony of Mercer, p. 12). Stored water would be available from the proposed project for new' diversionary uses (Tr. Vol. 18, following p. 179, Testimony Mercer, p. 121). 23. Possible effects of the proposed project on the ecosystem include establishment of a =ltispecies ws:rm~water fishery, introduction of muskrat: L'1to attraction of migratory waterfowl (Draft M:ier!dum EIS, pp. Increased number of waterfowl could benefit hunters and sightseers, and fla~#ater recreation Addendtm EIS, pp and 38)' 25. It is established to the sfaction of the Board that the reservation 539 ,OO!l from the Yellowstone River storage at the Sunday Creek site in Custer Co1unt.v near the Miles City airport is in public interest and that there 11 be progress toward accomplishment of the purpose with reasonable ligence in accordance than established plan (Bureau Reclamation, Appli on No. 1 ri!2K). 26. The public interest requires that specific design, construction, and operating plans; economic, social, and environmental analysis; time schedules; and probable locations of water to various beneficial uses be supplied so that other water users in the basin may know the status of the prcposed Sunday Creek Project and the amount of water available for appropriation (Application No. 12332-r42K). CONCLUSIONS OF lAW L Chapter 8, tle 89, R.C M. 1947, and in particular, Section 89-890, R.C.M. 1947, autho zes the adoption by the f·lontana Board of Natural Resources and Conservation of orders reserving water to qual i ed applicants for reser·:ations of water. If ordered adopted, a reservation must be ordered adopted in accordance with Chapter B, Title 89, R.C.I~. 1947, and any rules adopted thereunder. The Applicant, U.S. Bureau of Reclamation, an agency of the State of Montana, is entitled to apply to reserve waters thin the State of Montana in accordance th Section 89-890, R.C.M. 1947, and any es adopted thereunder. 4. All pertinent statutes and rules of the State Montana have been ad- hered to in the review this reservation Appl i on, both Natural Resources and Conservation and the Montana Board the Montana Department Natural Resources , 5. Based upon the above Findings, and fica ly based upon any condition, limitation, or modification of the 1 Application appea ng in said ngs, all pertinent teria delineated at Section 89~890, R.C.M" 1947, and any rules adopted thereunder providing for the adoption of an order reserving water have been met. 6, Nothing found herein has bea ng upon status of water ghts aimed the Applicant other than those herein newly applied for, nor does herein have bearing on the status of cl med water ghts of any other ng found except in relation to those rights herein newly applied for, to extent necessary reach a concl herein. BEFORE THE BOARD OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA --------------------------------==-=-----=------=---------~---------- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. l233l-r43Q BY THE U.S. BUREAU OF RECLA11ATION ) ) ) ) ) FINDINGS OF FACT \ND CLUSIONS OF LAl-J OF APPLI- CATION NO. 12331 r43Q --------------------------------------------------------------------- Th~ above-entitled matter came on regularly for hearing on or about August 31, 1977, _in Billings, llontana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll. The App~icant appeared by and through its counsel of record, Thomas GaL The C!ontana Department of Natural Resources and Conservation appeared by and through its counsel of re- cord, Richard Gordon. The r~ontana Department of Health and Environ- mental Sciences appeared by and through its counsel of record, Mona -4 Jamison. The Montana Department of Fish and Game appeared by and through its counsel of record, F. Hoodside lvright and Clayton Herron. The fourteen applicant conservation districts appeared by and through ~ their counsel of record, Gary Spaeth, Utah International, Inc., ap- peared by and through its counsel of record, Urban Roth, The !'lantana -- Power Company appeared by and through its counsel of record, Robert 4 Woodahl. Intake Water Company appeared and through its counsel of record, Henry Loble. Witnesses were duly sworn, and oral and documentar The Board, having read and fully considered the complete record, makes the following Findings of Fact and Conclusions of Law relating to U.S. Bureau of Reclamation, Application Buffalo Creek offstream storage: l-r43Q, for FINDINGS OF FACf The U.S. Bureau of Reclamation has applied for the reservation of 68,700 acre-feet of water per year (af/y) frcm the YellekJStone River for storage :in the proposed Buffalo Creek reservoir to be used for m.micipal, industrial, recreation, and fish and wildlife purposes S. Bureau of Reclamation, Application NO. 12331-r430). 2. "I."he reservoir, with a capacity of 115,000 acre-feet, would :intmdate 2,660 acres on the north side of the YellekJStone River :in Yellowstone County near the town of Custer S. Bureau of Reclamation, Application No. l2331-r43Q). Findings Related to the Rurpose of the Reservation (89-890(3)(a)). 3. The purpose of the resavation request is to divert and store water for release during critical S1.lllill€r flow periods (Tr. Vol. 18, follOiWJg p. 179, Testimony of Derw::lod Mercer, p. 12). 4. The released water would replace or a~t flekJS used for municipal, industrial, recreation, water quality, aquatic resouh:e maintenance, irrigation, sanitation, and fish and wildlife purposes (Tr. VoL 18, follOiWJg p. 179, Testimony of Mercer, p. 12). 5. The purposes and uses are similar for all three U.S. Bureau of Reclamation proposed offstream storage projects along the YellekJStone River (Tr. Vol. 19, Cross of Mercer, p. 10; Tr. Vol. 18, following p. 179, Testim:Jny of l1ercer, pp. 7 and 10). 6. It is established to the satisfaction of the Board that a purpose the reservation has heen shown (Findings 3 through 5). Findines Related to t.l-te Need for the Reservation (89-890(3) (b)). 7. The need for each of the three U.S. Bureau of Rec~tion offstre<m:J 4 sl:orage projects on !:.~ level of water reservation requests granted to the o~ ~licantll (T!:, VoL 19, Cross of !1ercer, pp. 10 end 51) . I:L Certain reservation ri!!Qtlell ts (S.X "Order," ' 1 tbrough 96) . other applicants are granted herein 9. It is !!Stablished Ito thE satisfaction of t,"le lloard that e need has been shown for t.c"le reservation of t,J'Qter to be stored in Buffalo Creek Reservoir in Yell.w!:itone County (Fi.ndinp,s 7 and 8). findings Related to the ~t of 'W.ater Ne<::essary for the Purpose of the Reservation (S9-890(3)(c)), 10. The Applic:atioo is for a mal!:im:m ml'!'lUal need of 63, acre-feet of water fnm the Yellowstone River to be stored :in an offstream reservoir (U.S. ~of Reclm!lation, Application No, 12J31-r430). 11. Ai'!m.!a1 flow data sb:Mi that the s:n:rrual 'ii'Ol.lldnotbe required every year (T!:. Vol. 19, Testi.mmy of :iercer), 12. The offstrear.~ reservoir would provide storage so that water be returned to the river for irrigatioo uses, rll!micipal uses and w.dustrial uses (T!:. VoL 19, Test:ina!y of Mercer), 13. i.jith an offstreal!l reservoir, the ins !:ream flews could be regulated so as to protect ~,J'Qter quality and recreational use and fish and wildlife use (Tr. VoL 19, Tii!st:l!!laiY of Mercer). 14. \later '!iruld be frOl!l the river duri."1g periods of excess flews and returned to the river during !lli:mtha of low flews (Tr. Vol. 19, Testiloony of !"lercer). 15. '~.'he mticipated increese in energy-related depletions proj~t~ for the Mid-and ~r Yellows~ !ltlbbaa:ins the intermed:iat® level of dwelopment by the year 200J b 75,490 af/y (Draft EIS, VoL II, 230). 16. The ~ticipated increass in irrigation depletions projected for the l.fid~ la'll!!r Yellcws~ whbesi!M the 1~1 of d!!"velopment by the year 2000 is 83,840 af/y(Draft EIS, VoL II, p. The total anticipated increase in depletions projected for the Mid- e.nd Lolier YellCJWStone subbasins under the intenllediate level of development for tlu!se ~uses by the yesr 2000 is 159,330 af/y (Findings 15 and 16), A purpose of the reservation is to provide stored water for uses such as those disucssed above in Findings 12, 13, 14 and 15 ( . Vol. 18, following p. 179, Testb!!ony of Hercer, p. 12; Finding 4) , 19. It is established to the satisfaction of the Board that the applied- for 63,700 af/y of water is a reasonable amount of water oocessary for the purpose of the reservation (Findings 15 throug.~ 18) . 20. It is further established by the Board that the Bureau Reclamation Findings Related to the Public Interest (89-890(3)(d)). 21. Stored water would be released from the proposed project to augment flClWS during critical soome:r psriods (T:r. Vol. 18, following 179, Test:im:my of Uen:er. p. 12) . 22. Stored water would be available frcm. the proposed project for new diversionary uses (Tr. Vol. 18, following p. 179, Testimony of Mercer, p. 121). 23. Possible effects of th<: proposed project on the ecosysten include establishllmt of a rrultispecies wm:m-water fishery, introduction of tr~.~Skrat into the area, and attraction of migratory w'Clterfowl (Draft Adde!:xlum EIS, pp. and 37). 24. Increased ~ of waterfwl oculd benefit hunters l.lnd sightseers, and flstwater recreation and fishing opportl.mities would be ~ (Draft Alkllmdwl EIS, pp. 36 and JS) , 4 25. It is established to the s faction of the Board thi'lt the reservation 68,700 af/y from the Yellowstone River for storage at the Buffalo Creek site in Yellowstone County is in the public interest and that there will be progress toward accoMPlishment of the purpose with reasonable diligence in accordance with an established pli!n (Burei!u of Reclamation, Application No. 1 -r43Q). 26. The public interest requires that speci design, construction, oper~ting plans; economic, social, and environmental an~l s, time schedules and probable allocations of water to various benefi uses be supplied so that other water users in the basin may know the status of the proposed Buffalo Project and the amount of water avail~ble for appropriation (Application No. l2331- r43Q)' CONCLUSIONS OF LAW 1. Chapter a, Title 89, R.C. 1j47, and particular, on 89-890, R.C.M. 1947, authorizes the adoption by the Montana Board of Natural Resources and Conservation of orders reserving water to qualified applicants w<~ter, reservation of 2. If ordered adopted, a reservation must be ordered adopted in accordance th Chapter 8, Title 89, R.C,M. 1947, and any es adopted thereunder. 3. The Applicant, U.S. Bureau of Reclamation, is an agency of the United States and as such is entitled to apply to reserve thin the State of Montana in accordance with Section 89-890, R.C.M. 1947, and rules adopted thereunder. 4, All pertinent statutes and rules of the State of Montana have been ad- hered to in the review of this reservation Application, both by the Montana Department of Natural Resources and Conservation and by the Montana Board of Natural Resources and tonserv~ti~. 5. Based upon the above Findings Fact, and specifically based upon any condition, limit~tion or modification of the 1 Appli on appearing in Findings, ~11 pertinent criteria delineated at Section 89-890, R.C.M. 1947, and any l'!!les adopted thereunder providing for the adcption of an order res;er'ving water have been met. 6. Nothing found herein has bearing upon the status of water ghts claimed by the Applicant other than those herein newly applied nor does a,:ything found here1n h1ve bearing on the status of claimed water ghts of any other pa except in relation to those rights herein applied for, the extent necessary to • BEFORE THE BOAfuD OF NATURAL RESOURCES A!!D CONSERVATION OF TI:-!E STATE OF MONTANA ---------------------------------------------=-------=-=-------~---==- IN THE ~TIER OF APPLICATION FOR RESERVATION OF WATER NO. 1781-r BY THE MONTANA FISH AND GAME COM!USSION ) ) ) ) ) ) FINDINGS OF FACT ANCJ CLUSIONS OF LAW OF \?PLI- CATION NO. 1781-r ----------------------------------------------------------~--=-------- The above-entitled matter came on regularly for hearing on or about Augu,;~t 17, 1977, in Billings, !'fontana, before the Hontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, Jame$ Driscoll. The Applicant appeared by and through its counsel of record, F, Woodside Wright and Clayton Herron. The l!ontana Department of Natural Resources and Conservation appeared by and through its counsel of record, Richard Gordon. The fourteen applicant conser- vation districts appeared by and through their counsel record, Gary Soaeth. The City of Billings appeared by and through its counsel of record, Calvin Calton. Utah International, Inc., appeared by and through its counsel of record, Urban Roth. The Intake l•later Company appeared by and through its counsel of record, Henry Loble and Boyd Henderson. The Montana Power Company appeared by and through its counsel of record, Robert WoodahL The r1ontana Water Developmi'!nt Association appeared without benefit of counsel. The Great Western Sugar Company appeared by and through its counsel of record, Richard McCann, Trout unlimite~ ~d the Federation of Fly Fishermen appeared by and through thdz cows®l of record, James Goetz, The Montana Wildlife Federation appeared by and through its counsel record, !limn Hadden. The Environmental Information Center appeared by and through its counsel lliarn Leaphart. tnesses Here duly sworn, and oral and documentary evidence ,,·as introduced. t The Board, having read and ful considered the complete record, makes the following Findings of Fact and Conclusions of Lu·s relating to the l-funtana Fish and Game Commission, Apulication No. 1781-r: - - FINDINGS OF FACT l. reaches of the Yellowstone River and certain of its major tributaries for which an instream reservation of water has been applied for by the Montana Fish and Game Commission are shown Map 1 (Draft EIS, Vol. I, p. 181). 2, The Department of Fish and Game has appl for an instream reservation on many of the streams the Yellowstone River Basin, including a request for an instream reservation in the Yellowstone River (Montana Fish and Game Commission, Application No. 1781-r). 3, Fish and Game has made lawful, proper and timely application for reservation of water, to maintain flows, levels, or qualities water thereof, in the Yellowstone River Basin, including the reaches and tributaries thereof, as follows: UPPER YELLOWSTONE BASIN (Town of Gardiner to mouth of Boulder River) Armstrong Spring Creek Bear Creek Big Creek Billman Creek Brackett Creek Cedar Creek Cinnabar Creek Coke Creek Eight Mile Creek Emigrant Spring Creek Flathe&d Creek Fle;;;hrnan C..:eek Fridley Creek Little Mission Creek l~ld Spring Creek Mill Creek ;~elson Spring Creek Rock Creek (Shields Drainage) Rock Creek (of the Yellowstone) Shields River Sixmile Creek Smith Creek Sua! Creek Tcm Miner Creek Trail Creek Yellowsl::One River Ciain Cl:!.:mnel, ~ to Boolder River) MIDI)IE YELlll-ISIOOE BASIN (Boulder River to Bigb::lm River) Mid-Big T:l.J:lber Creek Lower Big Timber Creek Upper Bllle!Water Creek !1iddle Bllle!Water Creek Lower Bllle!Water Creek Bridger Creek lloolder River (Sweet Grass County} Boulder River (Sweet Grass and Park Camties) Boulder River (Sweet Grass County) Upper Butcller Creek ~r wtcle: Creek Castls Creek (Stillweter C~t:y) • - - - c~ r• Yel~~ ti~ ~ ~ ~ 'hUm lbiOW !U.'llll!!r ~~ ~~ ~ ,...,, , ti~ ~ ~ C!lmty) ftft.dl ~ (kiU.wr Q~mty) ._ ftlhhU. C d (kU~ta C!lmty) U.~...., ~ (ltUJnnw C!lmty) ~~~ ~ ~ Cuh (kUatw ad ~t Grau ~) IUIIJU-..c t •••n• • 1 iiii*Cr • IU!III:d ~. '-lliJclk er.k '-IUt lllu!!Nd ~ V.t liol!blli Cndt ~ V.t lllaebud Ct-Nk &!,p Q:efk - Sd.lhatw tiWl' (Sd.lHtw C!lmty) ~~Cng~ ~ ~ Gmr!i Cndt ~~~ ~ 1ht hliJdfi" !tiWl' ~t r• StU~ ti~ (Still-~ ~) VEt ,_ ltilbwwr !ti'llll!!r (~ ~ ~) ~u-~ ~Wl~~~ 1'el~~ !ti~ ~ a-1. bider :ti~ m ~ ii~) e~ Bighorn !liver Otter Creek Powder !liver ~Creek Yellrn~tooo River (Big Hom River to !1ontana-North Dakota State Line (Exh. DfG 1781-r pii & iii). 4. 'I':!e Department of Health and Envir~ta1 Sciences has also applied fa: an im!tream reservation for waters in the Yellrn,jStane Rive:;: (Department of Health and Emrircmental Sci~, Application No. 10003-r). 5. Although the purpose, !:l1e need and the public interest of each of these reservation requests differ, the granting of ooe instream reservation would insure the other stste agency an im!tream reservation. ~ 6. Because the purpose, the need and the public interest for a Fish and (',ame im!trecm reservation throughout the entire Yellrn.n;tane River Basin are basically the same, t.l<te Board, as hereinafter set forth, adopts general Findings of Fact relating to these elernmt!! of water reservations as ~ted by R.C.M. 89-390. Filldinp;s Related to the Purpose of Instream Reservations of Haters in Streams of the Yel~tane River Basin (69-890(3)(a)). 7. ~ purpose of the res~tion is to ensore thet waters are cwailab1e !t ~ is an ~t and 'll'iab1e fishery 1-1, ;md qoolity of water 1781-r, p. 1 ~ 3). in t~ Yellcimtooe River Basin (Tr. Vol. 18, Te!ltisfX!:J of Halt~, p. 2) - • -- 9. A pm:pos.e of the :irlsttem~ reservation being OOil.lght by the DeparO"i'lalt of Fil'lh m1!d ~ u to maintain the abundant IIDd viable fishery IIDd aquatic ~tm ~tmt the YellJ:MiltoM River Bru>in (Application lb. 1781-r). 10. A pm:poss of the r~tion is to provide fish and wildlife h!lbitat !!uffic:ient ro ~tuata the diverse species c~ising t-he various natural Mbitata (K:mtam Fish m ~ Camdssion, Application lb. 1781-r). 11. A pw:pose of the r~tioo is tc help maintain water quality (M::ntarJ.a Fish and~ ('.ozissioo, 1\pplicatioo tlo. 1781-r, 12. A pm:pose of the re~tioo is to ccnttibute to a clean and healthful ~~Fish and~ ~ssioo, Application Iio. 1781-r, p. 3). 13. It is established to the ~>atisfac:tion of the Boord that the pw:pooe of m wtrema ~atioo of wai:enl of ~-streams in tha Yell.owstone River Basin hmi been sOO!m. Findings Related to the Need of lnmtteam ~ervatiool!l of Waters in Streams of the Ye1~1:01111! River Buin (89-390(3) (b)). 14. Instrea:~~ r~tioos are necessary fer chamel flushing IIDd the nmn- t~ of the clwmels (Tr. Vol. 18, Tootill!!.:!iny of Rsiclmuth). 15. Imlttema r~tioos are necessary to control aquatic plant growth . m to maintain aquatic and wildlife species mrl the fishery of the Basin (Application 1781-r, pP. 1 i::M'oogh 3). 16. There b a public nood for the purposes of p!'Xl'dding fbh and wildlife h!lbitat wffident ro ~W!!te the diVEXse l!lpi!!Cies ~sing this natural resoorce at ~b ~able to cw:rmtly existing lewis. 'There b a nood for the :m~tioos of waters of the YellOWllltoos River 11M ita td.ootaYies foc r~ticr~al ~ wcli ~ be oot by the r~atloo of fli:MI ~md by Fish ~ G!!ml!. le. The need for reser~rations of water in each stream reach requested by Fish and ~ is to provide for continued preser~ration of fish and wildlife habitat sufficient to perpetuate the several and many species found in each streml! reach at currently e.'l:isting levels; to provide water~based and water- related recreation for residents of this stste and tourists and other transients ~ to this stste; to provide Fish and r~ standing to represent the public's interest in fish and wildlife and recreation When future applications for water use pemits in the stream reaches are being considered (MJntans Fish and Game ill 19. It is established to the satisfaction of the Board that the need for Findinge Related to the Public Interest,.vf Instream Reservations for the Waters in the Streams of the Yellowstone River Basin (89-890(3)(d)). ~ 20. The Fish and Game's application for reservations of water in the Yellowstooe River Basin represents the public interest in preserving, protecting and enhancing the envirorment (Fish and Game Proposed Finding 75). 21. The application of the Fish and Game is in the public interest in that it provides aesthetically pleasing surroundings, and that it preserves fishing waters in their natural existing state (Fish and Game Proposed F:i.ncling 75). 22. The inst:ream reservation is in the public interest in that it protects and preserves fish habitat, preserves recreational sites and ensures perpetuation 1 .t of nan-game wildlife in the existing ecosystem (Fish and Proposed Finding t 75). 23. The instream reser~ratian is in the public interest in that it will: a) cootinue the perpetu01tion of the fish and wildlife resources; b) coot:i.noo perpetuation of lh! fish emd wildlife resources for wn:ent ~ future utilization by lh! public; c) ll!l1!linta:in water q~mlity -299- 24. It is established to the satisfaction the Board that t.'1e public interest for imtream reservations of the waters in the streams of the Yellowstone Findings Related to t.~e A"TIOunt necessary for the Purpose of the Reservation of \-lat&s of the Strea:ns of the YellOi·Jstone River Basin (89-890(3) (c)). Instream Reservation of the Yellowstone River at Sidney, Nontana 25. The fish species present in this part of the Yellowstone River are sturgeon, paddlefish, ~e, trout, minnow, sucker, catfish, perch and dr..m. gvld."'y'<!!. sunfish, The resident and migratory Wildlife species present in this part of the stream are loons, grebes, pelicans, conoorants, swans, geese, ducks, vultures, haWks, eagles, falcons, herons, cranes,-coots, avocets, plovers, sandpipers, snipes, gulls, terns, owls, I:I!agpies, crows and other birds and nule dear, white- tailed deer, beavers, minks, muskrats and river otters (Departl:!lent of Fish and Game, Application ib. 1781-r' em. pp. 231 through 233). 27. A reservation of imtream water will protect nesting and production, migrations, incubations and receiving of the various species (Department of Fish and Game, Application No. 1781-r, em. 1, pp. 234 and 235). 28. An adequate imtream flow will provide arrqJle food supply, adequate habitat area and suitable water quality for all the fishery and wildlife species of this part of the Yellowstone River (Tr. VoL 13, pp. 195 and 196). It is established to the satisfaction of the Board that the amount of water necessary for the purpose of the instream reservation of the Yellowstone River at Sidney is a · ~--- CFS PERCENTILE January 3, 738 229,831 Feb:ruary 4 ' 240,281 !'larch 6,778 416,711 April 6,808 ,031 May 11,964 735,528 June 25,140 1,495,644 July 10,526 647,090 August 2,670 164,166 Septent>er 3, 194,917 October 6,008 369,377 ~r 5,848 347,920 Decent>er 3,998 245,814 AVerage f,ESO cfs 5,4!12,310 af/y Im!ttear~~ Reservation of Powder River 30. The Department of Fish and Game has requested an instteam reservation on the Powder River from its mout:.!1 at the Yellowstone River to the Wyoming border (Department of Fish and fk.le, Application 1731-::). 31. Evaluations of t.~ flow requirerrents for the Pavder River were based on Northern Great Plains Resource Program estimates, United States Gauging Data, and 1 • were verified by field observations and measurerrents (Department of Fish and Game, Jl Applicat:l.oo No. 1718-r, em. 1, p. Tr. VoL 26, Redirect of Rehwinkel; Depart- l!!alt of Fish and Game, Application :<o. em. 28; Tr. VoL 213, p. 16, Testim:::ny of Rehwinkal). t 32. SiWJ.ificant reduction in flOWB of the Powder River "WOuld detrimentally affect the habitat of beaver and other fuxbearars because the number and size of is~ and ~awl bars would be reduced and the stt~ w:rohology ,4001d change II frool a brei~ to a -der:L'1g stream having less habitat for these animals (Exh. 33. Resident fish species present the Powder River inc the sturgeon chub and sauger, shovelnose sturgeon and channel catfish (Exh. DFG-1781-r-1, p. 21 220). Flows are required by the sh species of the Powder River for passage, spawning and rearin~ (DFG-1781-r, -222). 35. It is established to the satisfaction of the Board that the amount necessary for the purpose of the instream reservation waters in the Powder River is the ninetieth percentile flow. This reservation amounts to 95,201 acre-feet per year with a monthly breakdown as follows: CFS AF/Y January 31.9 1961 February 71.8 3986 March 291 17,888 April 347 20, May 424 26,064 June 184 10,946 July 70 4303 August 14.5 891 September 8.87 7 October 9. 579 November 61.6 3664 December 61 3749 Average 131 c fs 9520 a Instream Reservation of Yell01vstone River at Niles Citv 36. The fish species oresent L~ t~is part of the stream are trout, whitefish, catfish, sauger, walleve, ling, and cra':loie (DFG-1781-r, Sx.~. 1, p. 183). 37. The resident ai!d tvildlife ni~atory species present in this part of th!! Yellowstone River are beaver, l!USkrat, marten, mink, raccoon, pheasant, white-tailed deer, ducks, rap tors, bald ea;:;les, Canadian geese, heron, swa."JS, and cranes (DFG-1731-r, ~,. 1, p. 183). 38. A reservatipn will ensure proper spawning, incubation and rearing for the fishery of t.us part of tl1e YelloHstone River (DFG-1781-r, Exh. l, p. 184). It is established to the satisfaction of tl1e Board tllat the amount of water necessary for the instream reservation of th!! Yellowstone River at Miles City, 1-bltana, is the ei$tieth Percentile flow of the Yellowstone Hiver less th!! riepletiOM of other t.ater reservati;ns on the Yellovmtone River Basin above 11!.1es City. This instrean reservation amo=ts to 6, 499,936 acre-feet per year Jan.uar:-r February M<!r.;:h April May June July August Sept~r CFS 3$329 3,993 6,359 848 ,280 26,183 10,278 3,862 4,333 AF/Y 235,400 221,995 390,929 347,957 754,904 1,557,980 631,856 266,682 - October December Average 40. The lb"itana Department given an instream flc:rw reservation of the Deparl::!l!E'l'lt of Fish and Gam2. CFS 5, c af/y as 41. L"l sane mJnths the instream reservation established by the "'"'"rtl exceeds the request of the Deoartment of fish and Ccarne. reservation instre.am fl01..r for the Fish .:md Ga.-ne is onlv for ~he amount requested and it is oot to exceed that am:Junt. Instream Reservation of Ton;:;ua River The Deoartment of and fu-ne has requested an instream reservation to River (Fish a.•d Gam2 Application No. Evaluations of tne Tongue River's are based on water t~erature data, depth and velocity criteria for &'1d incubation flo..vs , water surface profile progra'll 3Jld 'vetted perimeter m2thod (Depart:ment of aY~d Game, Application of Elser). . 1731-r, pike, sauger, walleye, l, 45. Flows are required by the various and passage (D~l781-r, ~~. l, pp. 202-209), on the Too.gue River (Order). ~1rough 208; Tr. VoL TestimJny are bass. for has been granted a reservation 47. The Department of Natural Resources' reservation is based on Department's intention of building a dam on the Tongue River (Dej:)artment of Natural Resources, Appl tion No. 9942-r42C). 48. The Department of :Jatural Resources was granted a reservation on the Tongue River with a condition that an average of 75 cfs be to the released from the dam in order to contribute/ instream reservation of the Fish and Game (Order). 49. It is established to the satisfaction of the Board that the amount of water necessary for the purpose of the Department of Fish . and Game's reservation on the Tongue River from the Wyoming border to the Tongue River reservoir is ,799 acre-feet per year with a monthly breakdown as follows: CFS AF/Y January 160 9,836 February 160 8,883 !1arch 200 12,294 April 200 11,898 Hay (l-20) 700 27,762 Hay (21-31) l' 200 26,175 June 1,350 80, July 360 ,130 August 100 6, September 100 5,949 October 200 12, November 200 11,893 December 150 9,221 Average 338 cfs 244,799 af/y -305- • - - -- - - the Board that water necessary for the ~JrPQse the Fish &"ld 's instre&~ reservation !!Duth of River an averageflow of 75 cfs at the oouth, This reservation aFDunts to with a m:nthly breakcbtvn as folla,.;s: Janmry FebrJru:Y March l13.y June July October Decenber Average CFS 75 75 75 75 75 75 75 75 lnstream Reservations for Hanp,i."lg \brml Creek SL Evaluations of the flow requirem:nts and streamflow monitoring (DFG-17Sl~r, 4,164 611 4,462 4,611 4~462 611 4,611 611 4,462 4611 54,299 52. T:'1e species orese.'1t in !i.aJ1~.ng \:,lorri!n C:r''""k are bass, sauger, nke 56), 53. An instream reservation is needed for passage, spawning and 4 rearing of the fishery (DFG~l78l~r, Exh" 1, p. 211). 54. It is established to the satisfaction of the Board that the amount of water necessary the purpose of the instream reservation ,on Hanging Woman Creek is the histor minimum monthly flow derived from the United States Gauging Station records. Instream Reservation in Otter Creek 55. Evaluations of the flow requirements for Otter Cre~k are based on the United States Guaging Station gauging records and field observations of fishery (DFG~l78l~r, Exh. 1, p. 215). 56. The fish species present in Otter Creek are crappie, bass, pike and catfish (DFG~l78l-r, Exh. 1, pp. 212~215). • 57. An instream reservat is needed for passage, spawning and -. rearing of the fishery (DFG-1781-r, Exh. 1, p. 211). 58. It is established to the satisfaction of the Board that the amount of water necessary for the purpose of the instream reservation on Otter Creek is the historic minimum monthly flow derived from the United States Gauging Station records. Instream Reservation in Pumpkin Creek 59. Evaluations for the flow requirements for Pumpkin Creek are based on the United States Gauging Station gauging data, ld obser- vations and observations of stream flow records (DFG~l781-r, Exh. 1, 4 p. 217). 60. The fish species present in Pumpkin Creek are catfish, , sauger, and crappie (DFG~l78l~r, Exh. 1, p. 217). 61. An instream reservation is needed for passage, spawning and re~ring the fishery (DFG~l781-r, Exh. J, p. 218). 62~ It is established to satisfac Board the amount of water necessary for the purpose of the instream reservation on Pumpkin Creek is the historic minimum monthly derived from the United States Gauging Station records. Instream Reservation for Rosebud Creek 63. Evaluations of the Rosebud flow are based on studies, field studies, migrant fish trapp United Sta~e Gauging Station stream discharge data (DFG~l ~r, Exh. 1, pp. 199~ ) ~ 64. Fish species present in Rosebud Creek are sauger, pike, catfish and burbot (DFG-l78l~r, Exh. 1, P~ 224). 65. An instream flow is needed in Rosebud Creek in order to protect the passage, spawning and rearing of fishery (DFG~l78l~r, Exh. l, pp. 226). 66. It is established to the satisfaction of the Board that amount of water needed for the purpose of the instream reservation Rosebud Creek is the eightieth percentile flow of Rosebud Creek from Cotton·:Jood Creek to the Yellowstone River. It is further established by the Board that the Department of Fish and Game must supp U~S.G.S, or other data in order that the exact flow for this reservation may be determined. 67. Evaluat the f are ed on the United States parison of data at stations 1, pp. 188 and 191)~ 68. The fish species crappie, bass, trout, pike, sauger 190). -308~ of Bighorn Station gauging data and com~ the river (DFG~l78l~r, Exh~ River are catfish, (DFG~l78l~r, .Exh. 1, p. The wildlife suedes present in the Bi)?",horn River area are beaver, maslcrat, mink, rae=, fox, squi=el, deer, coyote, slunk, bcbcat, ducks, osprey and bald eagle (D!'G-1781-r, Exh. l, p. 187). An instream flow is needed to transonrt G~e yearly accumulation of sedir.lmt and control 'reed g:rcwth, and to mveep ::;ravel bars free of some vegetation which aids the Ca."Jadian geese in nesting activities (DFG-1781-r, Exh. 1, p. 186). 7L An instream flov1 is needed to provide the fishery with migratory passage, spawning, i."""Cubation and rearing (DFG-1781-r, Exh. 1, 188). Althou<>.)l t..~e Depart:!!lent of Fish and rane has applied for water for an • instream water reservation at two different locations on the Bighorn 'liver, the Board is giving the Deoartm:nt of Fish j!nd Game one bstream reservation in the - 73. It is establisi·!ed to the satisfaction of the &Jar<i thet t.'le am:Junt of water necessary for the ?UJ:POSe of an instrea~ reservation for the Bighorn River at the !!Uuth is 2,477, 987 acre-feet ner year h>ith a m:mthly breakdolvn as follows: , CFS AF/Y January 3,300 202,863 February 3,200 177,679 J March 245,895 April 3,600 214,167 May 3,300 ,600 ~ June 5,200 309,352 .- . July (1-20) 3,300 150,710 July (21-31) 200 69,802 4 August September October November December Average CFS 2, 2,600 2,7 165,979 184,421 Although the Department of Game has requested an instream reservation in the Yellowstone River at the mouth of the Bighorn River, but not including the Bighorn River, it the Board's judgment that the instream reservation s d be granted the Yellowstone River at Billings, Montana, judgment on the availabl U,S,G,S. records at Billings s and also the instream reservation in Ye lowstone for Department Health and Environmental Sciences. 75. Evaluations of the flow requirement for this part of Yellow1tone River were based on the U"S, S. data, 1781-r, Exh" 1, pp. 177, 183), 76, Fish species present this part of the Yellowstone lude trout, tefish, catfish, sauger, walleye, ling and crappie 77. Wildlife prasent in t the llowstone 1 beaver, muskrat, marten, , raccoon, pheasant, deer, raptors, bald eagles, geese, heron, swans and cranes (DFG-1 -r, Exh, 78, An instream flow needed of Yellot4Stone River for spawning, incubation and 1, p' 184)" 79. It is established to the satisfac~ion of the Board that the ernount nece:>sacy for the oorpose of the instrec:m reservation of t.ry_e Yellowstone River at 5illingG, MOntana, is 3,846,025 acre-feet oer year ~lus the db~JL~ent discharge of 68 acre-feet for a total instre1ll'l reservation of 3,914,455 af/y. This quantity is the oro• s request less de!>letious throug;h as follows: CFS January 2,489 Febr.Jary 2,C.88 !·larch 2,389 April 3,5139 ~'lay (l-20) 5, ~lay (21-31) 12,224 June (1-17,268 June (8-30) 19,068 July (1-20) 10,310 July (21-31) 5,510 AugJSt 4,090 Septenber 3,415 October 3,589 !'bvernber 3,489 . Tne monthly breakdown is ru/Y 153,053 138,136 177, 213,541 204,()J6 266,658 239,703 869,707 408,904 120,194 251,457 203,185 220,680 207,592 APPROX. % tile 55 50 55 ) 85 ) ) 85 l ) 75 ) 65 65 50 50 for May for June July December 2 789 50 AlloUilge 5,312 3, 80. '!he i:nstream reservation of the Department of Fish and Gm1e in the Ydl~tone Rl:wr at Billings, Montana, is for the sarre water as that reserved for the ~t of Health and Eillviroomental Sciences. Imtre~~m l<e~tioo far ClarlG Fork River reservation in the Clarks lL-ae to BlueoJater Creek and from Blua~ater Cr'eek River (Ap?lication 1781-r), state to D.re rrcuth 32. Evaluations of flow requiremL>nts entire stream were ba,sed on water discharge !1B3Sure!!El1ts, !~ater professional perso11nel and fisheries data CO>llectlcn and 115; DFG-1781-r, Exh. 7, pp. l-48) 83. Fish species present in t.'le Clarks River of the Yellowstone include trout, \.Jhitefish and sauger (D:FG-1781-r, Exl1. 1, o, Wildlife ,;necies present in the area the Clarks Fork YellO'wstona include heaver, rruskrat, raccoon and otter (D:FG-1781-r, E:il't'L 1, 85. J\n inscrearn floH needed for spawning, incubation and rearing purooses (DFG-1781-r, Exh. 1, 113). water needed for P~~se of the instrearr, reservation in the Clarks the Yellowstone frcm the l,ycmL&g-!bltana border to t:he m:mt.'1 of the River is the ninetieti1 perce."ltile of flow of Clarks River for the rronths of Ja.-auarv, February, Anrilt and the seventiech oercentile of the flow rrrmths of June, July, August ffi"lri Se!'te!!ber 87. FlcM data were not available to thst the Depar~•t af data or ot.~er acceptable October, Clarks Fork and it and December for the Rn;1rrl s re.sex:va.ti<Jn by use U.S G, S. Instrearn Reservations for Certain Tributaries of the Clar~ Fork of the Yellowstone the following tributaries of the Clarks Fork of the Yellowstone: a) Butcher Creek -Headwaters to West uutcher Creek to mouth b) Willow Creek -Forest boundary to the Cooney Reservoir c) Red Lodge Creek -Custer National Forest to the Cooney River d) Clear Creek -Headt<Faters to mouth Dry Creek -Headwaters to mouth Rock Creek -Custer National Forest boundary to mouth g) Sage Creek -Headwaters to Crow Reservation h) Bluewater Creek -Head\vaters to mouth 89. Evaluations of the various flow requirements of these streams included, but were not limited to, water discharge measurements, judgment of qualified personnel, fisheries data collection and measure- ments of channel physical parameters (DFG-1781-r, Exh. 1, pp. 1-48). 90. The fish species present in these streams include brook, rainbow, brown, cutthroat trout, and whitefish (DFG-1781-r, Exh. 1). 91. The wildlife species present in these streams include beaver, mink, muskrat, and raccoon (DFG-1781-r, Exh. 1). 92. An instream flow is necessary ~n these streams for spawning, incubation and rearing purposes (DFG-178 r, Exh. 1). 93. It is established to the satisfaction of the Board that the amount of water necessary for the purpose of the tream reservation of the streams named in Finding 88 is the eighty-fifth percentile of the flow of the various streams, but the instream reservation not to exceed the various requests of the Department of Fish and Game. 94. Flow data '·J~ere not available to the Board and it is intent that the Department of Fish and Game document the reservation by use of U,S,G.S. data or other acceptable data. ,~~~t for Instream Reservation L, Stillwater River The Depari:::!!Bit of Fish a."'ld C'.aiTJe has requested an L"JStreal'l reserJation for the Stillwater River from rrouth to the nm·th end of Sioux Cnarlie Li>l<:e (Applicatiro 1781-r). 96, In gra'1ting the ins trecm reservation for the Stillwater River, the Board will grant on:a instream reservation at the mouth, 97, Evaluations of thz flow requirel'a1ts for this strea'll reach are based on U.S.G.S. gau~ing data, l01~ flow photog:raohy, fish populatiro and life history data obtained by electrofishing (DFG-1731-r, Exh. l, pp. 153-157). 93. The fish species present in the Stillwater ~vet include brown and rainbow trout, and whitefish (DFG-1781-r, Exh. 1, pp. 153-157). 99. The wildlife species present include beaver, muskrat. m:lnk. racooon. bald eagles and otter (DFG-1781-r, Exh.-1, pp. 153-157). 100. !m instream flow is necessary for sp<;:wning incubatiro and rearing P1.JJ:1l0Ses (DFG-1781-r, op. 154-153). 101. It is established to the satisfaction of the Board that the am:Junt of water necessary for the purpose of the instream reservation of the Stillwater River is aporo:x:imately the n:L"letieth percentile fl~ of the river, and 1l!IDunts to 3/9,795 acre-feet per year with the following monthly breakdown: January Februsry March CFS 200 205 210 560 AF/Y ,294 11,382 12,909 ,385 34,425 CFS June 2,075 July 1,030 August 480 September 480 October 380 November 2 December ~ Average 524 Amount for Instream Reservations of Tributaries y 29, 23' 360 13' 385. 13' 831 379,795 of Stillwater River 102. The Department of Fish and Game has applied for instream reservations in the following tributaries of the Stillwater River: a) Castle Creek -Mouth to 1,500 feet above Picket Pin Creek b) Picket Pin Creek -Mout~ to mouth of Swamp Creek c) West Fork of Stillwater -Mouth to Castle Creek to Sweetgrass· Stillwater County line to Tumble Creek d) Little Rocky Creek -Mouth to Forest Service road crossing e) 11est Fishtail Creek -East Fishtail Creek to Richmond- Kennedy Ditch East Fishtail Creek -West Fishtail Creek to its East Fork g) Fishtail Creek -From the confluence of east and west Fishtail Creeks to mouth h) West Rosebud Creek -Custer National Forest boundary to Fiddler Creek to mouth i) East Rosebud Creek -Custer National Forest boundary to West Rosebud Creek lOJ. Evaluations of the vcrious streams listed in Finding 102, and the flow requirements were based, but not limited to, wate~ surface profile programs, U,S.G.S. flow data, Fish Gauging ta ~ low photography, spawning redd veloci measurementsj populat 178l~r, Exh. 1). and 1 history data obtained by t:ro 104. The fish species present in these streams lude trout, brook trout, cutthroat, 1781-r, Exh. l). 105. The ldlife species muskrat, mink, raccoon and bald 106. An instream reservation is in e streams beaver, e streams because of spawning, incubation and rearing purposes (DFG~l781-r, ' 1). 107. It is established to the amount of \~ater needed for the pur];Jose the Board that instream reservation the tributaries of the Stillwater River is the eighty- of the flow of the above listed is not to exceed the various requests Game. l Flow daca~ce not intent that the Department of use of U.S,G.S. data or other and Up?er Deer Creek 109. The Department of Fish lab reservation in Bridger headgate, and Lower Deer from and Highway 90 and Upper Deer Creek from from I-90 bridge (App 0 l ~31 to the tream res the Department of Fish Board and document the reservat le data. applied for an instream to the Krone Ditch to Interstate headwaters to a point upstream 1 Evaluations of flow requirements for these two streams were based on water discharge measurements and photographs, fish data t collections and judgments of professional personnel (DFG-1781-r, Exh. 1 , pp , 131 and 111. The game species present in both of these streams include cutthroat, rainbow, brown and brook trout (DFG-1781-r, Exh. 1, pp. 93 and 131 ;md 163). 112. The wildlife species present in the areas of the two streams are beaver, muskrat, mink and raccoon (DFG-1781-r, Exh. 1, pp. 93, 131 and 163). 113. An instream flow is needed for maintenance flows in Bridger t "' • Creek and for incubation, spawning and rearing purposes in both streams - (DFG-1781-r, Exh. l, pp, 93, 131 a~d 163). 114. It is established to the satisfaction of the Board that the 41 amount of water necessary for the purpose of the instream res~rvation in Bridger Creek from the headwaters to the Krone Ditch headgate and Lower Deer Creek from the headwaters to Interstate Highway 90 and Upper Deer Creek from the headwaters to a point upstream from I-90 bridge is the ninetieth percentile of the flow of these streams and these instream reservations are subject to all reservations previously granted t~ Conservation Districts. 115. Flow data was not available to the Board and it is their intent that the Department of Fish and Game document the reservation by use of IJ.S.G.S. data or other acceptable data. Amount for the Instream Reservation of Sweet Grass Creek 116. The Department of Fish and Game has applied for an instream reiHorvatioti on Sweet Grass Creek from the Forest Service boundary to Lake Adam diversion and from Lake Adam diversion to the mouth (Ap- ~lication No~ 1781-r). .... 4 -- 117. Evaluations of the flow rements for Sweet ss ware based on water discharge measurements, racords, fishery data collections s judgment 1781~ r, Exh. 1, pp, 159-161). lH.L The species found s brook and brown trout, and mountain 1~ pp. 159-161), 119. The resident wildlife species found the area Grass Creak are beaver, muskrat, mink and raccoon 178 r, pp, 159-161). 120, An in stream f1mv is neaded to maintain the populat after irrigation withdrawls also passage, spawning, and rearing purposes (DFG-1781-r, Exh. l, pp, 159-), 121, It is established to the amount necessary for the purpose of an Grass Creek from the Forest Service ninet th percenti flow of the stream~ faction the Board reservacion to the mouth is the 122, Flow data v>er<" not avai to it is res use of U,S,G,S, data or o data, of Ins 123, The Department an trearn reservation in the River West l:loulder and from the West to the Falls Creek and the 1 to of Creek (Application ' 17 ~r)' 1 1 Boul at and the Boulder at Contact as the po the res -31 125. Evaluations of the flow :requirarents for the Boulder River are based oo fishery data collection, S. S. fl0\:-7 data, 10\:q flow pbotcgraphy, and life 95-99; Tr. VoL 16, ~· 53-i:IO). The fish species present in the Boulder River include brown and brook trout, rlW!bow and l'!DU'Iltain whitefish (DFG-1781-r, E.m. 1, P?· 95-99). 127. Tne resident ~d1dlife species oresent include beaver, rruskrat, mink <in!:! r~ (DFG-1731-r, E.'tll. 1, pp. 95-99). 128. An ir.stream fla~ is necessary for soaNninq;, incubation and rearing ~es (DFG-1781-r, Eld1. l, pp. 95-99). 129. It is established tc the satisfaction of the Board that t.'le am:mnt necessary for the instream reservation of the and Gain;: of the Boulder River ·Timber ~ at Big/is 195,163 acre-fest~ year mth a Y~Dr~thly breakdown as follows: CFS AF/Y Januacy 80 920 Febr..m-y 80 4,441 t·tlrch 80 920 April 80 4, 760 May 300 18,445 June 1,690 100,540 July 490 30,122 A!Jgmt 60 3, Sept~ 95 5,650 Ol::to~ 130 7,995 ~r 80 760 ~ 80 4,920 Aver<!~ . 26() 195,163 It water necessary for the nurpose of tP£ Gam:! in the Boulder River at Contact is breakdown as follaws: January February ~ril June July August Septe!±ler Octo bar December Average of Cert:ain The U:mtana Depart:nlent of reservation for the follo,vL'1g East (Application E:,raluations of 1, 50 so to 3,075 2, 3,075 2,975 64,265 ,365 2,975 per Boulder River: and the amount a rro1r~tzll y flaw' data, lC!!!<~ flot>~ ;:>hoto;::raohy and life :1istory data (DFG-1781-r, Ex.'l. 1, pp, 119 and165; Tr. VoL 16, pp. 53-30 a."'ld Tr. VoL 17, op. 1-48). 133. The fish species present in these streams include brOYn, brook, cutt:h:root and rainbow trout and rrountai."'l whitefish (DFG-1781-r, Ex.'"!. 1, pp. 119 &"'!d 165). 134. The wildlife species present in the areas of t."tese streams i."'lclude beaver, mi11k, =krat and raccoon (DFG-1731-r, Ex.'"!. 1, pp. 119 and 165). 135. An :!nstream flrn·l is needed for spat~, incubation and rea.. ing purposes {DFG-1781-r, ~~-1, pp. 120 and 166). 136. It is established to the satisfaction of t.'le Board t.'Jat t.'le arrount of v.mter necessary for the ouroose of the :!nstteam reservation for the Depa:rtment of Fish and Gam= L"l the East Boulder River at its m:.ru.th is , 146 acre-feet per yem: with a mmthly breakdown as follows: CFS AF/Y January 15 '922 Febr.my 15 832 March 15 922 April 15 892 May 20 1,229 June 165 9,815 July 50 3,073 August 352 Septellber 20 1,189 October 18 1, Novellber 892 ~r 15 Average • . • . -• • .A . Ill -· • It is established to the water necessary to meet of reservation in the 11est i3oulc1..er Riv-er at in February March Anril June (1-20) (21-31) July (1-20) July (21-31) AU,!!;ust Sent ember October L,gtream Reservation The Denart:::rr~ent Timber Creek ~#amp Creek to the Yell~wstone 300 200 75 139. Evaluations of the flow requirE!llents is 2~974 6,543 llr898 362 4 ' 4,610 3' 5159 3 073 74,853 oer th.is stream tvere based en electrofishL'lg dsta, photographs cncl fishe= observations (DFG~l pp, l, brook ttoot, and roc;untain ~Nhitefish (DFG-1781-r, Em. 1, pp. 83, 85), 14L h wildlife species present in the area of this strElffill include besver, pp. 83-35), 142, lin wtream flow is necessary in Big T:i!rber Creek L"'l t.'tst it is necessary to maintain a portion of t:1::! e.:dsting fish and aquatic life a:nd to rn.: ;ntain -ter quality tc sustain trout population (DFG-1781-r, Exh. 1, pp, 83-85). 143. An instream flow is necessary for incubation, rear:1ng and spawning purposes (DFG-1781-r, Exh, l, p. 86). It is established tc the satisfaction of the Board that the am:Joot 41 necessary for the purpose of the instrElffill reservation in Big Til:it>er Creek at its CFS M/Y Jam.m:y 10 615 February 10 555 ~mch 10 615 April 20 1,190 May 85 5,225 June 180 10,710 J-:dy (1-20) 100 3,967 July (21-31) 30 655 - August September October November December Average Instream Reservations of Tr Between Shields and Boulder River 145. The Department of fish reservation for ttle Mission Creek crs 25 l3 10 595 has reques an tream to tt Mission Forks and Mission Creek from the mouth to Spring Creek Soring Creek to ttle Bear Draw (Appl ion No. 1 146. The basis for calculating flow requirements for these streams Classification" (DFG-1781-r, Exh. 147. The fish species present brown, rainbow, rainbow-cutthroat (DFG~1731-r, Exh. 1, pp, 49, 56). 148. The wildlife ies present fishery and necess Ribbon Stream these streams cut trout and streams beaver, muskrat, mink, marten, otter, ducks and bald eagles 178 1, pp. 5 149. An instream f is neces passage~ tment of trout (DFG~l78 -r, ) 0 150. It is established to the of amount necessary for tream reservations for Miss Creek at its tle Miss Creek at its mouth the ftieth f of the stream from January 1 through April 30 and October l through December 31 and the ninetieth percentile flow of these streams t from l'tay 1 through Se?tember 31. The dominent: discharge for each of these streams is also reserved. 151. Flow data was not available to the Board and it is their intent that the Deoartment of Fish and Game document the reservation by use of U.S.G.S. data or other acceptable data. Amount for Instream Reservation of Shields River 152. The Department of Fish and Game has requested an instream reservations in the s:~ields River from che mouth to Lodgt:pole Creek (Application No. 1751-r). 153. Evaluations of the flm• requirements for the Shields River are bal!led on U.:i.G.S. data (DFG-1781-r, Exh. l, p. 63). 154. The fi:;h soecies present in the Shields !:tiver include cutthroat, rainbow, brown trout and whitefish (DFG-1781-r, Exh. l, p. 63). 155. The wildlife species present in the Shields River include beaver, muskrat, mink, marten, otter, ducks, blue heron and bald eagles (DFG-1781-r, Exh. 1, p. 63). 156. An instream flow in necessary to allow potential spawning of cutthroat, rainbow and brown trout and whitefish from the lower reach of the Shields River and the Yellowstone River. 157. It is established to the satisfaction of the Board that the amo1mt necessary for the purpose of the instream reservation in the Shields !Uvll!r from t:he mouth to Lodgepole C1reek is eppro:d~:Mtely the ninetieth percentile flow of the Shields River. lSB. ~ecauee the Board does not have complete flow data of the ~ Shields River at the mouth it can only set forth the monthly breakdown of the instrsam reservation of the Shields River at Elk Creek near ~ 4 - - ' \ ;u Cott instream reservati cf Sl1ields River at Elk near Wilsa l is 21;764 acre t oer ear with a month brcakdo\ .. rn as March April !lav June July August September October November December Average tream reservation Park is ,4 acre=feet llows: !larch April (1~15) April ( (1~ ) l y 7 430 7 339 9 553 24 l, 41 6,8 1 7} 27 1,660 12 737 1r 655 12 737 11 6 River at Cottonwood near a monthly as CFS 26 1,5 29 2.704 93 1,160 1 7 2,716 1 4' 2 June (l-10) Jun<e (11-20) Junl!! (21-30) July August September October November December Average 159. Flow data were not CFS 189 157 105 22 13 13 30 27 31 40 cfs available to the intent that the Department of Fish_and Game for the Shields River at mouth - 3,113 2,082 1,352 800 1,845 1,606 1,905 35,434 Board and a fly it is their 90th percentile document the/reservation /by use of U.S.G.S. data or other acceptable data. This missing data were for the Shields River ut the mouth. Amount for Instream Reservations for Streams in Shields River Drainage 160. The Department of Fish and Game has applied for instream reservations for the following streams in the Shields River Drainage: a) Smith Creek -From mouth to Bitter Creek b) Flathead Creek -From mouth to :,1uddy Creek and from Muddy Creek to Cache Creek and from Cache Creek to South Fork ~ of Flathead Creek c) Cottonwood Creek -From mouth to Little Cottonwood Creek and from Li tt Cottonwood Creek to Trespass Creek d) Rock Creek -From mouth to Forest Service t-lest Boundary in Section 8 and from Forest Service t-lest Boundary in Section 8 to Smeller Creek e) Brackett Creek -From mouth to Sheep Creek and Sheep Creek to Skunk Creek and Skunk Creek to one mile up north, middle and south forks (Application No. 178l~r)~ 16L luat of flows of these streams were on "!Hue-Ribbon Stream Class icat (DFG-1781-r, Exh. 1, pp. -66). 162. The fish species present in 1 these streams inc cutthroat, brmm and brook trout, rainbow and whitefi ( Exh, 1, pp. 32, 38, 163. spec present streams muskrat, mink, marten, otter, ducks ba l, pp. • 38, 44, 59, 66). 164. Instream flow is neces e streams. to spaw~ing of cutthroat, brown and brook trout and te Shields River (DFG~l781~r, Exh. l, pp. \ } . 165. It is established to the the Board amount necessary for the purpose Qf tream reservat following streams is the th percentile flows of the streams: a) Smith Creek ~ From mouth to tter Creek b) Flathead Creek ~ From mouth to South Fork of Flathead Creek c) Cottomvood Creek ~ From mouth to Trespasa Creek d) Rock Creek -From mouth to Smeller Creek e) Brackett Creek ~ mouth to one mile up north, and south forks, 1 lable to Board and it is the Department of Fish document the reservat use of U.S.G.S. data or other acceptable data. Yellowstone River 167. The Department of has requested an tream r2servation tributaries the ugper tone a) Bear Creek -From mouth to the mouth of North Fork of Bear Creek and North Fork of Bear Creek to Fish Creek b) Cinnabar Creek -From mouth to Cottonwood Creek and Cottonwood Creek to Forest Service boundary at Township 8 South, Range 7 East, Section 32 c) &bl Heron Creek -From mouth to Cinnabar Creek and Cinnabar Creek to Yellowstone Park boundary d) Cedar Creek -From mouth to Second Fork of Cedar Creek and from Second Fork to North Fork e) Tom Miner Creek -From mouth to Canyon Creek and Canyon Creek to Trail Creek f) Rock Creek -From mouth to Steele Creek g) Big Creek -From mouth to to Bark Cabin Creek llfork Creek and Millfork Creek h) Six !1ile Creek -From mouth to the north fork of Six Mile Creek i) Fridley Creek -From mouth to Hiller Creek and from Miller -4 Creek to Needle Creek j) Eight Mile Creek -From mouth to Big Draw and Big Draw to North Fork of Eight Mile Creek Mill Creek -From mouth to the East Fork 1) Trail Creek -From mouth to West Pine Creek and West Pine Creek to the south boundary of Section 35 rn) Suce Creek -From mouth to Lost Creek n) Coke Creek -From mouth to Minor Creek 0) Billman Creek -From mouth to the mouth of Coke Creek and 4 Coke Creek to Fork South of NE corner, Section 20 ~) Fleshman Creek -From mouth to Perkins Creek (A~plication No, 1781- - Evaluations the stream lis bat;ed on l), 1690 The fish species 36, 56, 68, 61, 27, 65, 47, 41, ' 67, 170. The wildlife species found in areas of the above rr.arter:, otter, and bald eagles 6:5, 61, 51, 71, 67, 37, passage, trout, and vihitefish vihich may rrigrete from the Yellowstone River 34, 68, 61, ' 47, 41, 51, 71, 67, , and 29) 0 172. It is established to the satisfaction the Board t.'Jat the amount necessary for iru!tream reservations for t:0J; streai"..s and u'teir ~entieth oercentile of t.~e flow Januarv 1 1 October 1 throU&'1 Decewer flCNl 1 through Septerller 30. Flow were not available to the Board it is thP Board's L1tent the Deoartrnent Gwe document by use of UoS. So data or other acceptable datao Amount Yellowstone River 173. The Department of Fish and foll~tg tributaries ~) Armstrong Spring Creek -From mouth to origin b) Nelson Spring Creek -From mouth to origin c) McDonald Spring Creek -From mouth to the norther boundary of Section 32 d) Emigrant Spring Creek -From mouth to origin (Application No. 1781 174. Evaluations of the above listed streams were based on the concept of "Blue-Ribbon Stream Classification" (DFG-1781-r, Exh. 1). 175. The fish species present in the above listed streams include brown and brook trout, rainbow, cutthroat, r~inbow-cutthroat hybrids and whitefish (DFG-1781-r, Exh. 1, pp. 21, • and ) . 176. The wildlife species present in the areas of the above listed streams include beaver, muskrat, , marten, river otter, ducks and bald eagles (DFG-1781-r, Exh. 1, pp. 21, 53, 50, and ). 177. Instream flows are necessary to maintain these highly pro- ductive spring creeks and the excellent trout population they support (DFG-1781-r, Exh. 1, pp. 21, 58, 50, and ). 178. Instream flows are necessary to provide potential spawning :runs (DFG-1781-r, Exh'. l, pp. 21, 58, 50 and 42). 179. It is established to the satisfaction of the Board that amount necessary for the purpose of the instream reservations for the t - above listed streams is the tenth perco:ntile flow of the streams during • the periods of January 1 through.l'lDril 31 October l through December 31 and the fiftieth percentile flow of the ~>treams during the period of l<by 1 through September 30. Flow diltil were not available to the Board and it 1~ th~ B©ard'$ intent th~t the Department of Fish ilnd Gilme document the th~ re~ervi'ltion oy use of s.G.S. data or other accept~ble data. - - 180. The Department of Fish and Game has requested an instream reservation in the upper reaches of the Yel tone River l 181. Although the Fish and Game has provided U.S.G.S. data/ instream requests for the Yellowstone River near Tom l1iner Creek and at Emigrant, it is the intent of the Board that the instrea~ of the Fish and Game be measured at the U.S.G.S. station near Livingston. 182. Evaluations of the flow data on the uoper reach of the Yellowstone River were based on the Blue Ribbon Stream concept, U.S.G S. gauging data, flow requirements of the lower Yellowstone, current logical data and streamflow frequency data (DFG-1781-r, Exh. 1, pp. 74, 76 and 78). 183. The fish s?ecies present in the upper Yellowstone River include cutthroat, rainbow, brown trout, brook trout, rainbow-cutthroat hybrids (DFG-1781-r, Exh. 1, pp. . 76). 184. The <vildlife species present in the upper reach of the Yellow- stone !'Uver include beaver, marten, mus 1.crat, river otters, raccoon, deer, pheasant, ducks, geese, bald eagles and blue heron (DFG-1781-r, Exh. 1, pp. 74 and 76). 185. An instream flow is necessary to preserve and maintain and wildlife populations at current levels (DFG-1781-r, Exh. 1, pp. 77). An tream flmv is necessary to maintain the physical char- acteristics of the stream channel through adequate sediment transport and bedload movement (DFG-1781-r, Exh. 1, pp. 22 and 74-77). 187. An instream flmv-i;;; necessary for nesting, incubation, and rearing purposes (DFG-1781-r, Exh. 1, pp. 22 and 74-77). 188. It ill established to the sati!lfactioo of the Board that the lllli:Jlli:lt apnroxllrately the twentieth per- cmtile for the period oo~ January 1 throu$ April · 30 and Octooor 1 through • D!!vw•i«: 31 <md approximately the ninety-fifth oercentile for the period of !1ay 1 ta'lrough Sept~ 30, plus the dom:i.nant discharge one hour period of 18, 200 ds <md 36,091 af/y. 'llilii total resenation 1!!1Dunts to 1,879,813 acre-feet per 'Jffi!J'Z with a m:mthly ~ u follows: ~ ' CFS AF/Y APPROX. ~~tile ~ 1,330 81, 20 F~ 1,320 292 t 20 Harcli 1,350 82,989 20 April 2,490 132 20 4 May (1-D) 2,500 C.9,573 ) May (11-20) 1,900 37,677 } ~ ) 95 for M~y ~lay (21-31) 700 93,202 ) ) , June (1-10) 7,700 152,693 l Jme (11-20) 9,000 178, ) 95 for June ) June (21-30) a,ooo 158,642 ) ) ~ July (1-10) 5,400 107,083 l July (11-20) 3,800 75,355 ) 95 for July ) -July (21-31) 2,500 49,575 ) ~ ~t (1-10) 600 31,728 ) 95 for Aug. ;:: ) ~t (11-31) 2,125 88,492 ) Sep~ 1,555 92,500 95 - ~ Oc~ 2,350 144,463 20 - ~~ l, 790 20 ~ 1 490 911596 20 Awev-11~~ 2~cfs 1,843,722 1 - -~il"l> 1. Chapter 8. Title 89, R.C.M. 1947, and t t:ion ~890, R.C.M. 1947, authorizes the adop by the Montana Natural Resources and Conservat reserving water to i applicants for reservat of r.vater' 2. If ordered adopted, ::1 reservacion ~!lust be accordance with Chapter 8, Tit 7, and any rules thereunder. 3. The Applicant, the t1ontana Game Commiss an agency of the State of !"fontana and as is entitled to to reserve waters within the State of Montana in accordance with Sec 89~890, R.C.M. 1947, and any rules adopted thereunder. 4. All pertinent statutes and rules the State been adhered to in the review of this reservation Application, the Montana Department of t~atural Resources and Conservation and the Montana Board of Natural Resources and Conservation. 5. Based upon the above upon the condi , limitations, or of Fact, and specifical fications and partial of the full Application appearing in s eria delineated in Section 89~890, R.C.M. 1947, and any adopted thereunder providing for the adoption of an order reserving t,rater met~ thing found here has bearing upon the s of water rights claimed the Applicant other than those herein newly app nor does anything found herein have bearing on the status c water rights of to to the extent neces to reach a cone herein. ed t- • BEFOF~ TRE BOARD OF NATURAL RESOURCES ~~D CONSERVATION OF THE STATE OF MONTANA --------------------------------------------------------------------- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 10006-r BY THE MONTANA DEPA.'I(TMENT OF HEALTH AND ENVIRONMENTAL SCIENCES ) ) ) ) ) ) FINDINGS OF FACT AND CON- CLUSIONS OF LAW APPLI- CATION NO. 10006-r ---------------------------------=----------------------------------- Th~ ~hove-entitled matter came on regularly for hearing starting on or about August 17, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, Jame~ Driscoll.-~ The Applicant appeared by and through its counsel of record, t1ona Jamison. The Montana Denartment of Natural Resources and Conservation appeared by and through it~ counsel of record, Richard Gordon. The fourteen applicant con~ervation , di~tricta appeared by and through their counsel of record, Gary S?aeth. , The City of Billings appeared by and through its counsel of record, Calvin Calton. Utah International, Inc., appeared by and through its counsel of record, Urban Roth. The Intake Uater Company appeared by and through ita counsel of record, Henry le and Boyd Henderson. The Montana Power Company appeared by and through its counsel of record, Robert Woodahl. The Montana Water Development Association a~peared without benefit of counsel. Witnesses were doc~ntary evidence was introduced. sworn, and oral and The Board, having read and fully considered the complete record, ~kes the following Findings of Fact and Conclusions of Law relating to the Montana Department of Health and Environmental Sciences, APPlication -. 1 Fli'IDINGS FACT applied for a reservation totaling 6, 643,000 acre~ feet to1ater yaar (af/y) for instream use in the River at Sidney, lb:i!:<!I'oa DHES~l)o Tabla DHES~l quantities t.~is request reach r), Findings Related to the Pw:pose of the Reservation (89-890(3)(a)) o 2. Tha pUJ:?ose of DHES' reservation request for flow 'lellowstooe River is to: (1) assure that t.he t·Jater quality standar'ds will not be violated so as to insure that the Yellowstv~ River remains suitable for public water supplies, wildlife, fisn and aQ1Jat:ic life, agriculture, industtv, recrestion and ot.~er beneficial uses, and (2) to carry out the non-degradstion policy Eil\lllCiated in Title Chapter 4S, R. 1947 (Tr, 7, p, 2), 3, It is established to the satisfaction of the Board t.~t a purpose the reservation has been shown, FindinBs Related to the Need for the Resarvation (89~890(3)(b)), A major effect the increased of irrigation, !mt'.icipal water supply facilities in tr.e Yellcr.vstone River l:lalsm will be to reduce to sc:me deg;ree t.lte strel!IT'.flcr,;~ t.'1e YellONStone River (M:&t;ma Det:mrt:na1t 10006~r, 5, Dewatering, a major result of increased de1:el.op;l:lallt concentrates "!fld trace elemont:s {Tr, 5), -·~ 6. Becau!la of increased diversiOI'JJii (dewatering) from the Yellowstone River, :i.m::reaJ>ed waste load discharges resulting from industrial and m.micipal !!OW'~, !md :lxrigatioo return flews, there is a need for an imtream flow res~aticin in the Yellowstone !liver to maintain the waters of the Yellowstone, !Niblbllll for msting beneficial uses (Tr ~ VoL 5) 7, Although the increase in suspended sediment during t<"le high flow period detracts fnr.~ its '1USlit:', the q=li!:'• of tvater in the Yellowstone River is best at upstream sites and at high-flow period. 'lhere is a general degradation ~ in the quality of the river do.mstream to Sidney (Tr, VoL 5) . 8, The quality of the river is generally good above Miles City and its wate:s Ee suitable for !Wst uses throug.'Dut this reach, but, below Miles City, 4 dillsolved solids, sulphate, and suspended sediment levels might restrict SC!lle ~ in klw fklw period due to the ~ klwering of water quality through this ~t. 9, An imtream reservatioo is needed to !ll!rlntain water quality and to offset the general water degradatioo of the stream. 10. If sufficient oxygen is rna:intained in the river, the end products will be stable foms of carbon, nitrogen, sulfur and phosphorus, but in the absence of oxyr,en, ~itioo is ino::mplete and will be acc~ed by UI'ISightly sam~, sludges and offensive OOor!i (Tr, VoL 11. D::lmestic wastes require a wge ~t of dissolved oxygen while rivers m.tw:ally cootain a limited quantity of dissolved oxygen (Tr. VoL 5, 10). 12. StrOO!IIII have a m.tural ability to assillli!Eite a certain ~t of orgamc waste, includhlg that frcrn dC!llestic wast-te:r tr<W,Uiiemt facilities (Tr. Vol. 5, p, 13, Xf tha straam f~ is reduced, a I!Ulicipality may h£lw to increase its d~ of wast-ter trea~t with resultant increase!! in asooci8tro costs in ~ to prevent poll1.1tioo of . River to maintain enough water for dillutioo industrial and mum-<;Ltku. 15. quality of water is me&~ed by the total dissolved :>ucc.c;ce> water. 16. The coocenttatioo factors not:ed above for 'IDS are th.e result processes: 1. The a.~ttactioo of essentially ~ure water (nearly distilled in their growth processes, which concentrates the dissolved the water rei!'aining in the two 2. The leaching of additiooal salts water as water perc1::JL~t!!S through t.'w soil "salt ;n.<J:KC!p (Tr. VoL 5). 17. In order to maintain a proper oontrol of the TDS and other poJLlutBilts in the Yellowstone River, en instteam rw;er,ratioo is r.eeded. 18. It is established to the satisfaction of the that there a r>.eed for a reservation. Findings Re~ted to the Amount of Water Necessary for the Furpose of th.e Reservation (89-890(3)(c)). 19, Both the Depar!:.lnent of Health and Environmental Scia."lces a."ld the Department of Fish and Game r.ave rec::juested reservations of instream flo:>Vs in Yellowstone River (Application Although the arnount of water fr= the YellovJStone Rivar is requested by the Depar!:.!nent of Health Sciences differs the a:rount of water frcm the Yellowston<J Rbrer Department of Fish the River for one of these deparOr.llilts \1\!V\nu ~t te en instream watar reservation for the other~ In establishir.g the aro.mt the Yellowstone River ' Hzalth .md oth2r instream applicants, the Board of Natural Resources has divided the ,_ rlver into four major gauging points, ru!l1'11ely: &) the Yellowstone River at Sidr~y; b) the YellOOilltone River at Miles City; c) the Yellowstone River at Billings, and d) the Yellowstone River at Livinr;ston. 22, The llrnlth of the Toogue River is at Miles City, i'tml:a!la (Tr. VoL 5, pp. 39 through 41). 23. 11'le request by the M:mtana Da;art~rent of Ho!alth and ~tal Sciences :in the Yellowstone River above the m:ruth of the Big Hom River for August through April is based on flOW'S necessary to midntain TDS at no oore than 500 mg/1 in the 1owsr rl Vl!r {Tr. VoL 5, following ? . 89, Test:!.m:Jny of 'l'h:moB, pp. 38 and 39) . 24. 11'le Board of Health and ElwitO!iilo!utal Sciences has adl::lpted by reference, . - - the ~ limits published in the 1962 U.S. Public Health Service Drinking Water 4 Sl:m'ldards, as water quality sl:m'ldards, and these limits for 'IDS and S04 were used to ~tablish the flow;; in the IllES' reservation req.JeSt (Tr. Vol. 5, p. 31). 25. Specific limits established by the 1962 U.S. Public Health and Service 1 Drinking Water Standards for Total Dissolved Solids (WS) are 500 ug/1 (Tr. VoL p. the 'IDS inc:re.ases {Tr. VoL 7, p. 33) . According to the ~~t of Health and Envi:r~tal Sciences, water qu!llity a~d£! for ot.'ler criteria probdlly would oot be violated if sufficient t water ill re~ instream to assure that the TDS standsrd of 500 mg/1 is mai.ntainsd, 28. For each m:mth, flows were :re~:JOOstoo thst ~~d ma.:lnt.s.in TDS wloos equal to or less thm tluJ 500 !'ill1l based oo hbto:rlcal relatiomhipi!i oo~ 'IDS ~ Cis-t - Healt.lt "''-l"",..t.•uu between total dis so 1 ved so lids m:illigrsrns per discharge in acre-feet to detemine the ne,ed<:d min:inun in t.l-je all of dte rn:Jnms of the year except June, July 49). 30, For May, June end July, low flows vmich is a st:endsrd used waste-water ?3sed systems (Tr. , 5, ~~ 3L For erose rn:Jnths -which the exceed!mce in -which the US th1m 9'1% (Tr~ VoL 5, P~ 38) ~ 10-year low is used, standsrds would not be are 32~ The ~r reaches of the Yellcwstor'.e River, and i."'t particular, wudl of the Big Hom River, are of a l:rl:gher ~uter quality dle t.f&e Yellcwstone River (Tr ~ VoL 5, p ~ In order to maintain control of the T"uS standards ax>ug~ut tr~ •~tire Yellcw~tone River, it r~cessar~J Depart~:Ent of Health end Env'irca!ll2:nt~!l Sciences to have an iru;tr·enm res•er~rat:irn throughout the entire Yellowstone Ri \ier, 34. It has been established to reservatioo for the follOI<f.,ng =ts are ne•~dl::d to satisfy dle nu:roc,se reservation of the Department Healtb a) kn instream reservation for the following amounts; ,310 the EIT'~l~areantal Sciences. l'el. lov!s i:on.e River at 1} A total total River, the elg;hti.eth pet:ce:rlti:le of the cans1~1t1.Ve reservations l'lont&"la is reserved, is: to the CFS January 3,738 229,831 Feb:ruacy 4, M!lxc':! 6,778 416,711 April 6,808 405, May 11,964 735, Jl.l'l:le 25, ll!O 1 ,644 July 10,526 647,090 August 2,670 164,166 Septi!IIDer 3,276 194,917 October 008 369, ~r 5,848 ,920 ~r ~. 245,814 Aver11ge 7, 586 5,492 31 Q b) lin imtremn reservation of the Yellowstone River at i1i1es City, !lbntana, 4 b granted for the following am:lU!lts: l) A total of 5, 578,892 acre-feet per year \me.':! is equal to the total of the eightieth percentile of the month by month flcm of the Yellowstone River, less depletioos from other reservatioos of the YellCMStone l:!Mil'l ~ Miles City, M:Jntana, and il'lclusiw of Miles City, is reserved, 2) The lml'lthly br~ of this reservation is: CFS M/Y January 3,829 235,400 Febr.wy 998 221,995 ~ 6,359 390,929 April !i, 347,957 May 12,280 754,904 Juoo 26 183 1 ,557,980 July 10,278 631,856 _';!IlL - , - Septenber Decsroor Average c) A.! insttoom reservation at BillL1gs is reserved. January April Nay (1-20) June July (21-31) August Septemer October 3}862 4, 5,849 5 ' is as CFS 2 138,136 2, ,646 3, ,541 5~ 204,006 266, 10, 4 ' 3, 220, 3 207,592 5 ) 3,914 is g;:mt10d for the follcwing am:runts: 1) A totlll of 1,379,813 acre-feet per year which includes t."'e d011rl.rumt 18, 200 cfs and, i 091 acre feet July, !wgmt and Sept~r, this reservation is 111J'!?roximate1y t.'le ninety-fifth percentile f101..r. For the seven other m:::ntk• the re- servation ~ts to approximately the twentiet.'l percentile flOl..r. 2) the ~t:hly breakdown of this re~ervation is: CFS APPROX. %tile J~ 1,330 31,760 20 Febnmry 1,320 73, March 1,350 82,989 20 Atrl1 2,490 148,132 2() Hay (1-10) 2,500 49,575 1 ~tzy (11-20) 1,900 37,677 ) 95 for May May (21-Jl) 700 93,202 ) ) .l'1.n! (1-10) 7,700 152,693 ) .l'1.n! (11-20) 9,000 178,472 ~ 95 for Jime .l'1.n! (21-30) 8,000 158,642 ~ July (1-10) 5,400 107,033 I I July (11-20) 3,800 73,355 ) ) 95 for July ) Ju\y (21-31) 2,500 49,575 ) ~t (1-10) 1,600 31,728 ) ~t: (llL-31) 2,125 00,492 ~ 95 for Augu!>t ~~ 1,555 500 95 O;;mber 2,350 144,463 20 -'l!;! ,_ . t • .. ~ • 4 ... "4 " ~ ~ - ~ -- -~ ""' - ., ""' Average ?-elated to the CFS 1,790 since it will assure t.'lat the soocific ,488 the is water quality for beoo:fi<:ictl uses will not 36. The instream reservation request of DHES is interest Yellowstone River can dilute and assimilate waste from L•dustry, BJnicinalities of ists t."l.e adverse inpacts of dewate1rir1g on water qualit'J (Tr, 38. It is established to the satisfaction the ~~rd instream re~ servation in the amounts stated above are in the public interest. cm::uJSIONS OF LAW ~ter 8, Title 89, ru:::.M. 1947, and in particular, Section 89-890, R.C.M. 1947, trn! adcption by the Monl:MB ~ of Natura), Resources md ~ti.cr.Th of ~ re<~en1ng water to qualified applicm~ for reservation of water. 2. If ordelr:ed adopted, a reservation JWSt be ordered adopted in 'lCCordance with C!wpter ~.Title 89, R.C.M. 1947, and my rules adopted ~emde:r. 3. 'I'M i;pplicmt, 1\.klntma Departma'lt of Health md Envirorm;ntal Sciences, u m ~ of the State of 1\.klntma and as such is entitled to apply to resexve amra within the State of Montma in <>erordance with Section 89-890 R.C 1947, and <my N1u ~ted thereunder. 4. All ~t statutes and rures of th!! Stilts of Montana have been ad- hl!red to in~ of this reservation application, both by ths 1\.klntma Dapm:tl!Jent of Natural ~ and ~tion and by ths 1\.klntma l'lom:'d of Natural Rl:!soura;s and~tion. 5. :SUed upon ths ~ Finding!! of F<>et, end specifically based upon my ~ition, llmitstion, or !!Ddification of ths full application ~ in said Finding~!, all perti.mnt criteria delineated in Section 89-890, R.C.M. 1947, and <my Nlu ~ted ~ providing for the adoption of an order resen1ng water have ~ Et. 6, Nol:hing foond hercln 00$ ~ ths status of watar rlghta c~:lmro by ths .1\pplicmt other th!m those hln'ein naly applied for, nor does ~ f~ herein have bear:big on ths statu!! of claimed watu ~ts of any other party acapt in rehitioo ro tho>~e ~ta hercln naly app~ f~JX, to ths ~t ~Hr)' ~reach~ ~lmlim ~. • ' - " RESOURCES OF THE ) IN THE l1ATTER OF APPLICATION FOR ) RESERVATION OF •!ATE;:< OF THAT ) OF OF NORTH CUSTER CONSERVATION DISTRICT ) APPLICATION NO. 9947 DEALIHG ) CATION NO. WITH U~STREAM FLOW ) ~ ~~~~~~~~~~--~~~~~~~-----------------l------------------------------ The above-entitled matter carne on on or about September 8, 1977, Billings, r1ontana, before Board of Natural Resources and Conservation and its duly Hearing Examiner, James Driscoll. its counsel of record, Gary Spaeth. Appl Montana Department Montane Natural Resources and Conservation appeared by and its counsel cord, Richard Gordon, The Hontana Department of Health mental Sciences appeared by and through s counsel of Jamison. Montana Department and Game appeared by through its counsel record, F. and Clayton Utah International Inc appeared and through its counsel record, Urban Roth, The Montana and cf recordffi through its counsel of Loble, and through s counsel record, Trout Unlimited and Fly appeared and through their counsel Information Center appeared by s counsel record, William Leaphart, Jr. v;ic -~_;_;;:,;; ,.;;r__; documentary evidence was introduced. The Board, having read and ful considered the complete record, makea the following Findings of Fact and Conclus Law relating to the portion of the North Custer Conservation District, Application No. 9947-r42M for instream flot•: 'Ihe North Custer Conse:rvation District has applied a !TcUrimllm~ flow ins !:ream reseJC'IIation of 4, 000 cubic per second (cfs) for l!l!lirultem of Yellow1>tone !liver at Kinsey Custer Conse:rvation District, Application No, 'Ihe purpose of the reservation is to maintain a at Kinsey ffl ~ing station during the irrigation season order to W!'lt increased pumping costs due to low water levels (tbrth Custer Cous;:r~ wtion Di11trlct, Application No. p 7L It ill established to the satisfaction of the real!:rW!tion has been sl1!Jion. - Findings Related to the Need for the P.eser~ation (89~890(3)(b)) 4. A reseJC'IIation of water needed because a purpose date foc future developments that t.'wl priority dates devel.opments would have if p~rmits ware obtained :llllrnediately constrtlc- tion or use began (North Custer Conservation District. Application r42M, p. A reseJC'IIation water is needed because there is competition water in the Yellowstone Basin Which affect ability to obtcin a water right by permit District, Application No. 9947~r4~1. ~lorth OJSter Conse:rvation 6. Erlsting plants need a mir..:i.l!l!M"ll water to operate efficiently ~rth Custer Conservation District, -r4Zli, >id) , It is establis?1ed to the satisfaction of the Board that a need for a mirW!!I.liTt-flow instrean reservation has been s:::c)• .. n by the North Findings ~lated to the Amount of Water Necessary for the ~se of d1e ~e~tion (89-890 (3) (c)). 8. August and September are general.ly the critical m::;nths for irrigation lOIIlter .ly in the 10'\ver YellOI·JStooe River (Draft EIS, Vol. II, p. '9. The U.S.G.S. stream gauge at Miles Citv is less than 10 miles upstream f:rom the Kinsey 4'1 pumping station. No large inflow or diversion ill apparent in the reach of the river between the gauging and pumping statioru! (Draft EIS, Vol. I, p. 47). 10. 1m :i.rultteam reservl!!tioo ofJ;he eightieth percentile flow less deple- tiOM hall been granted to the Department of Health and Elwironmental Sciences and the CO!Imission of Fish and Game for the YellO'!NStooe River at l'l.iles City (Board Order 1;' ) 11. The instrel!lll reservation mentioned in Finding 1ftl3 is sufficier;t to satisfy the need and the purpose of the instream request of the North Custer Conservation District. 12.It is established to the satisfaction of the Beard that the arnmmt of 'lllater necessary for tl'IE purpose of t.~ instrel!lll reservation of the North Custer Ccriservation District is 4000 cubic feet per second (cfs) and that the reservation is to be cc:mcurrrnt with the insttel!lll rooeTW.tions of the Ilepart:ment of Health and Elwircmental Scie11ees and the Qlllmi~ion of Fish and ~ in too YellOI!IStone River et ~ti.loo City. • • • • 13. An instream reservation cfs hvuld VL'.JV'-'-'"' il.uequaLe water to properly ooerate punrps at the Kinsey Custer Conservation District Application :::o, 14, Without an insttea'!l reservation to orovide an ctuc:quaLc: is selt"ll'ation District would either r.ave to otn;ps at ~ing station or aixlndon valuable irrigated land, It is established to the satisfaction of azl instte<Jm reservation 4000 cfs of the flow of the Yellowstone !liver BEFORE THE BOARD OF NATURAL RESOURCES ~~D CONSERVATION OF THE STATE OF MONTANA ------------------------------=----==--=----~----------------=------- IN THE MATTER OF APPLICATION FOR RESERVATION OF WATER NO. 12334-03-r BY THE UNITED STATES BUREAU OF LAND MANAGEMEiiT ) ) ) ) ) ) FINDINGS FACT AND CON- CLUSIONS OF LAW c~ APPLI- CATION NO. 12334-03-r -------------------------------------------------------------------- The above-entitled matter came on regularly for hearing starting on or about September 21, 1977, in Billings, Montana, before the Montana Board of Natural Resources and Conservation and its duly • • • • appointed Hearing Examiner, James~Driscoll. The Applicant appeared • by and through its counsel of record, Thomas Gai. The Uontana Depart-4 ment of Natural Resources and Conservation appeared by and through its • counsel of record, Richard Gordon. The Montana Department of Health • and Environmental Sciences appeared by and through ita counsel of record, Mona Jamison. The Montana Department of Fish and Game appeared • by and through its counsel of :record, F. l'lloodside U:dght and Clayton Herron. The fourteen applicant conservation districts appeared by ~ and through their counsel of record, Gary Spaeth. Utah International, Inc., appeared by and through its counsel of record, Urban Roth. In- take Water Company appeared by and through its counsel of record, Henry 4 Loble. Witnesses were duly sworn, and oral and documentary evidence w~s introduced. The Bo~rd, h~ving read and fully considered the complete record, ~kes the following Findings of Fact and Conclusions of Law relating to th® U.S. Bureau of Land l'!anagelllent, Application No. 12334--r: L The U.S. Bureau of Land Management has applied for a reservation 1,093 acre-feet of water per year with an average diversionary 549 acres. Water w:::uld be diverted bet:ween May 15 and SejJtsml:fl;:r 15. to divert 1,098 acre-feet dl.lring this period, a continuous di·geJ:si.on rate order the requested 60 cfs would be necessary NO. 12334-03-r, p. 2). S. 13ureau of 11a!Jag.Emimt. Application Findings Related to the .Purpose of the Reservati= (89-890(3)(a)). 2. The purpose this reservation is to ensure that water 1h'ill be a<.'ialable far: the ~cte:! exparu~ioo of irrigation on the S. Bureau Land ~~t (U.S. Bureau of Land Management, Application No. 12334-03-r, p. 1). 3. It is established to t.'le satisfaction of the ~1rd that a purpose of the reservation has teen shown (Finding 2) . Findings Relate:! to the Nee:! far: the Reser~Jation (39-890(3) (b)). Regulations and S. Bureau of policy ccwerL'1g authorization of more intens:tve Sb~iaultural l!la!lag,Emimt of the public lands under the Federal Land Policy "1-'!anagernent Act yet to developed. Funds needed to develop the Application will rut be 19, following p. 146, Testimony ttJlngtorl, p . 5. NO water would be put to a use before 1990 (U.S. Bureau La.'ld Manag~t. Application No, 12334-03~r). The 1\pplicant not all of any reservation might granted WOL!ld be put to a bel:~eficl~al use (Tr. Vol. 19, Cro!lls 158). l>.'hittington, p. 1. It is possible that water reserved for this application would never be put to a beneficial use VoL 19, Cross of llhittington, p. 158). 8. The need for the reservation is speculative and is not supported by has not been established to the satisfaction of :3oord that the Applicant has shown t.~t there is a need foc this reservation (Findings 4 through 10). Findings Related to the Alrount of t~atsr Necessary for the Purpose of the ~tion (89-890(3)(c)). 10. No significant additional irrigation development can occur in the Powder River Subbasin unless stocage at a price they can afford (Draft EIS, !oL II, p. 248; Finding 11. '!be Applicant has no plans for the provision of such needed storage in the Powdsr Rivsr Subbasin. 12. The potential for development of additional storage in the Pcmer Rivsr Subbasin is uncertain, and it is unlikely t.'lat any future storage that may be built ~ld provide irrigation water at a cost irrigator,s coold afford (Tr. Vol. 32, following p. 86, Testirnony of Phil Gibbs, pp. 13 through 18; Tr. Vol. following p. , Testi.rnrmy of Olin Kalmback, pp. 16 through 18). 13. Ho reservation for full-service irrigatioo can be granted for water frcm the Powder River because no water is currently available for such irrigation has oot been shown thst water sufficiently ine.:q:lensive for full !lervice irrigation will ever be available frcm the Powdsr River (Findings 10 thrc::<ugh 12) . 14. It oot been established to satisfaction of such storage is neither available nor proposed to ~h 13). made available {Findings 9 Findings Related to the Public Interest (89~890(3)(d)). has not been established to the satisfaction the Boin:d that in the public interest to grant a reservation no need and which no water should, or can, be reserved (Findings 9 tta:ough 14). 1. Chapter 8, Title 89, R.C.M. 1947, ar~ particular, Sectioo 89~890, 1947, authorize the adoptioo the '1DntaYJa Board of Natural Resources and Cooservatioo of water. orders reserving water to ~walified applicants rese:vation 2. If ordered adopted, a reservation l!".JSt be ordered adopted in ac,:ordsl1ce with Chapter 8, Tilte 89, R. 1947, and any rules adopted thereunder, 3. The Applicant, the U.S. Bureau of the United Statero and as such is entitled to apply to reserve waters wittJ.."'l of M:ntana in accordance with Section thereunder. , R.C 1947, and any rules adopted All pertinent statutes and rules State adhereed to in the revie.r of this reservation application, bot.~ by the !"'rn1tar.a Deparnnent of Natural Resources Conservation by tr.e !rntana Board Natural Resources and Conservation, 89~890(3) (b)' 1947, has not been met, to it has not been established to the satisfaction adlJPt:ion of an order reserving water as del.irreat:ed at Sectioo 89~890(3) c , has not been ~t, to wit: it has rot been established to the satisfaction of the Eoo:rd that rmy water should be reserved for this aoplication. 7, Based upon the ~ Findings of Fact, a pertinent criterion for the adopticn of an order reserving water as delineated in Section 89-890(3) (d), R.C 1947, has not been met, to wit: it 1:-.as not been established to the satisfaction of the lklard that the reservation is in the public interest. 8. Nothing found herein has bearing upon the status of water rights claimed by the Applicant other than those herein newly applied for, nor does anything found herein have bearing cn the status of cla.:U'!Erl water rights of any other party except in relation to those rights herein newly applied for, to the extent necessary to reach a cooclusion herein. 4 . 4 BEFORE THE BOARD OF NATURAL RESOURCES i'l'!D CONSERVATION OF THE STATE MONTANA THE MATTER OF APPLICATION FOR RESERVATION OF '!-lATER 9942~r43Q BY THE HUNTLEY PROJECT ) ) ) ) ) FINDINGS OF FACT CLUSIONS OF LA11J CATION NO. 9942 ---~----------------------~-------------===---=----------------~-= The above~entitled matter cJme on hearing star on or about September 9, 1977, in Hontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll. licant apoeared benefit of counsel. The l'!ontana Department Natural Resources and Conservation appeared by and through its counsel record, Richard Gordon. The Montana Department 1 Environmental iences l1cmtana Department of Fish and Game appeared and through its counsel record, F. \loodside \\fright and Witnesses were duly sworn, and oral and documen was introuduced. The Board, having read and fully considered the complete record, makes the following Findings of Fact Conclusions of to the Huntley Project, Application No. 1. The Huntley Project has applied for a reservation of 27, (a£/y) a ma!Wru11 diverisorua:cy flow rate of 92 cubic feet en !:lie average, this request is fo::: a diversion of 6. acre-feet per acre. (Huntley Project, Application No. 9442-r43Q). Findings Belated to !:lie Pw:pose of the Reservation (S9-ll90(3) (a)). ' 'I •• ~. #~~ ~ :·.t ~ . "t k+F ·' 'l'he purpose of this reservation is to ensure that ~vater be available • for tha expected expansioo of irrigation on the lilmtley Project (Huntley Project, letter frOI!I Paul Sian, President, acccmpanying Application 9942-r43Q). 3. It is establsihed to the satisfaction of the Board that a purpose of the reserwtion has been sh::Jwn (Finding Findings Related to the Heed for the Reservation (89-890(3) (b)). 4. Fm1rl!! are not available and it is not known Wen, or even if funds 4 will be available for the projects. the projects proposed with water from the Yellowstone Conservation District. 6. It !-.as not been established to the satisfaction of the Board that the Applicant has sh::Jwn a need for this reservation (Findings 4 end 5) . Findings Related to the Aroount of Water Necessary for the Purpose of tha Reservation (89-390(3)(c)). 1. It has not been established to the satisfaction of the Board that any ~ amount of water is necessary for the purpose of the reservatioo for whiu'1 there is J no need. Findings Related to b'1e Public Interest (89-890(3)(d)). 8. It has not established to the satisfaction that is in the public interest to grant a reservation for which there is no need. CO..~IOO OF I.Mi ;m:I ~~tion of orders rese!Vir.g water ro qualified applicant!! for reservad.Gl:!S of watm". 2. If ordered adopted, a reservation IlllSt withChaoter 8, Title 89, R~C.M. 1947, and rules adopted thereunder. 3. The Applicant, the Huntley a political subdivision State of Montana and as such is entitled to apply to reserve waters wib'1:L1 State Montana in accordance with 1947, and any rules thereunder. All pertinent statutes and :rules of the State been hered te in :review of this reservation application, by the MJnt&na Departl!lent of Natural 1\esCll!l:ces and Conservat:ion and by the t1ontana Board of Na•tm·al t\Etloorc!ts a.'1d Conservation. Based upon the above condition, limitation, or IOOdification ~ the full application appear:L"lg in Findi11gs, all pertinent criteria delineated 89~890, R.C any rules adopted thereunder providing adoption of an order reserving water have been met, 6, Not.lrlro.g found herein has besring the status water rights clai."!led by the Applicant other than those anything found herein heve heariP.g on status claimed water rights other p0xty except in relation to rhr'~"' Lc!;nc.::; herein newly applied for, to t.'1e CCNCLUSIONS OF LAW L Cl!apter 8, Title 89, R. 1947, and in particular Section 89-890, R.C.M. 1947, authorizes the adoption the M:mtana Board of Natural Resources and COnservation of orders reserving water to qualified applicants for reservation of water. 2. ordered adopted, a reservation must be ordered in accordance with Qmpter 8, Title 89, R.C.M. 1947, and any rules adopted thereunder. 3. The Applicant, Huntley Irrigation District, is a political subdivision of the State of MOntana and as such is entitled to apply to reserve waters within the State of MOntana accordance with Section 89-890, R.C.M. , and any rules adopted theret.mder. 4. All pertinent statutes and rules of the State hered to in the revieJ~ of this reservation application, both by the MOntana Depart~~Ent of Natural Resources ood O::!nservation ood by the M:mtana Board of Natural Resources and O::!nservation. 5. Based upon tl1e above Findings of Fact, a pertinent criterion for the adoption of an order reservmg water as delineated in Section 89-890(3) (b), R. 1947, has not been met, to wit: it hots not been established to the satisfaction of the Board that need hots been shown for the reservation. 6. Based upon the above Findings of Fact, a pertinent criterion for the adoption of an order reserving ~teras delineated in Section 89-890(3)(c), R.C.M. 1947, has not been met, to wit: it has not been established to t.he satisfaction of the Board that any water should reserved for the 7. B!!sed upJn the above Findings of Fact, a psrt:i:nent criterion for the , R.C.M. , Pv'lS not been rret, to wi.L it has not the that the reservation in the interesc 8. Nothing found herein has oo1rin£ upon the status the Applicant other tb~ those herein herein have bearing on the status of clairr!ed water of except in relation to t~Dse rights herein newly applied for, to to reach a conclusion herein, BEFORE THE BOARD OF ~~ATUP.AL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA ) Ill THE HATTER APPLICATIO:< ) RESERVATION OF WATER NO. 12333-r43P ) BY THE UNITED STATES i:li.JREAIJ OF ) RE CUi! <lA TI ON ) ) FINDINGS 0!' FACT A:sl) CON- C!..USIONS OF LA~T OF APPLI- CATION tJO. 12333-r43F --------------------------------~-----=-----~------=----------------- The above-entitled !!latter came on regularly for hearing on or about August 31, 77, in Billings, Hontana, before the l'iontana Board of Natural Resources and Conservation and its duly appointed Hearing Examiner, James Driscoll. The Applicant appeared by and through its counsel of record, Thomas Gai. The Montana Department of Natural Resources and Conservation appeared and through its counsel re- cord, Richard Gordon. The Montana Department of Health and Environ- mental Sciences appeared by and through its counsel of record, ~1ona Jamison. The ~1ontana Department :Jf Fish and Game appeared by and through its counsel of record, F. ivoods Wright and Clayton Herron. The fourteen applicant conservation distr ts appeared by and through their counsel of record, Gary Spaeth. Utah International, Inc~, appeared and through its counsel of record, Urban Roth. The Montana Power Company appeared by and through its counsel of record, Robert Woodahl, Intake Water Company appeared by and through its counsel of record, Henry Loble. Witnesses were duly sworn and oral and documentary evidence w~$ introduced. ' -361- - The Board, having read and fully considered te makes the fo Findings of Fact and Conclusions to the U.S. Bureau of Reclamation, Application No. 33 use on the Hardin Unit: FINDINGS OF FAcr 131,700 acre-feet of water per yoor (af/y) with a nmdm.:m diversior.my flow rate of 862 cubic feet per second (cfs) frc:m the Bighorn Rivs-r in order to provide a full supply of irrigation water for ,000 acres and a partial supply 950 acres for use on the Hardin Unit (Tr. Vol. 18, following p. 179, Teatim:my of ~Mercer, p. Findings Related to the Purpose of the Reservation (!39-890(3)(a)). The purpose of the reservation request is to ensure that water will be avsilable for irrigation oo the Hardin Unit No. l2333-r43P). 3. It is established to the sati5Iactioo of the Board that a purpose of the reservation has been shl:Mn (Finding Finding Related to the Need for the Reservation (89-890(3){b)). 4. Congressional authorization of the allocation of water stored by Yellcwtail Th:ml set aside stored watar for use oo the lmdin Unit (Tr, VoL 19, Cross of ~tercer, pp. 66 and 67). 5. l·Jater is presently available frc:m Yellcvrt:ail Reservoir for use on the Hardin Unit (Tr. VoL 19, Cross of Mercer, p. 67). 6. There is no evidence on the record to show that water !lEY rot oo available in tha futw:e frcm Yellcwtail 19, Cross of Mercer, p. 67). for use on the Hardin Unit (Tr. VoL 7. 'Ihe rese..-vatioo request is essentially duplicative of 10%llter already 1 80 It hk7s not been cstablishcJ to the satisfaction of the Applicant has shown that there is a need for tr.is reservation (Findings 4 7)o 9 0 Although the Board haa not been satisfied t.~t there is a need a water reservation as applied for, the Board does recognize the existL~ water rights the Bureau of Recli!!!lation on the Horn River in the Hardin lJni t 0 The Board Natural Resources encourages t.'le Bureau develop and :implE!llle!'lt its existing ;.'atet rights on the Big Horn River Hardin Unit 0 Findings Related to the Amount of ~?ater NecesSar'/ for th~ Purpose of the Reservation (89-890(3)(c))o lL It boo not been established to the satisfaction the that ll!!lOU!'It of watex is necessary for the pu:cp<lse of a reservation for 'Which there no need (Finding 8) o Findings Related to the Public Interest (89-890(3)(d)). 12. It boo not been established to the satisfaction of the Board that it is in the public bterest to grat'lt a reservation for 'Which there is no need (Fbding 8). CO..'IC'UJSIONS OF lAW L Chapter Title 89, 1947, in particular, Section 89~890, R.C 1947, authorize the adoption by the of Natural Resou:=ces Conservation of orders water to qualified for re'"'n:vati(:Jn water, a reservation nust ordered edJPt:ed in accordance with Chapter 8, Tilts R.C.l·t 1947, md my rules edopteld thereunder, 3. Applicant, the U.S, of ru;<:Lar'EIOLun United States .tmd as such is mtitled to apply to reserve waters within Ma1tta:r~a in accordance with Secticn 89-890, 'ltC theremder, 1947, rules State All pcrtil'cnt statutes r;r,d ru.les of tr.e State '1ontana have been adhered to in the review of this reservation application, both the Hontana Dapartna"lt of Natural Resources and Conservation and the 11ontana Board of Natural Resources and Conservation. 5. Based upon the above Findinp;s of Fact, a pertinent criterion far the adoption of an order reserving water as delL~eated L~ Section 89~890(1}(b), R.C 1947, has not been met, to wit: it has not been established to the satisfaction of the Board that need has been shewn for the reservation. Based upon the above Findinl(s of Fact, a pertinent criterion for the adoption of an order reservL.g water as delineated in Section 89-890(3) (c), C.H. 1947, has not been met, to wit: it has not been established to the satisfaction of the Board that any water should be reserved far the U.S. Bureau of Reclamation Hardin Unit Project, 7. Based upon the above Findings of Fact, a pertinent criterion fer the adoption of an order reserving water as delineated at Section 89-890(3) , R.C.M. 1947, has not been met, to wit: it has not been established to the satisfaction 4 of the Board that the reservation is the public interest. Nothing fowd herein has bearing upon the status of water rights claimed by the Applicant other than those herein newly applied for, nor does anything ~ found ht!rein have bearing on the status of cla:L'Tied water rights of any other party except in relation to those rights herein newly applied for, to the extent necessary to reach a conclusion hereL~. • The following Applications having Resources and all testim:Jny and evidence hailil11£!: ordered denied: (a) The Applicatians for Reservatians of Water Nos. Natural are hereby reservations on the Boulder River, Upper k~r Creek, Lower Deer Creek, Bridger Creek, Stillwater Creek, Cla:lks Fork River, Sage Creek, Bluewater Creek and the Po!iid!:tr River, Bear Creek and Cottonwood Creek. Application for Reservation of Water , 9947-r42M by the North Custer Corulervation District for full-service irrigation with 76,140 ltt/y ths Powder River is ordered deniecL -(c) Application for iliaseJ:Vatioo of Water No. 9943-r by the Applicant, Potlrler River Conservation D:i.strlct, for full-service irrigation of Powder River U! ordered denied, 560 af/y frcm the (d) Application for iliaseJ:Vation of Water No. ,334-03-r by the Applicant, United States Bureau of Land Mal~;emmt, for 1,098 acre-feet of water Powder River is ordered denied, (e) Application for Reservation of Water . 12,334-03-r by the Applicant, United . States Bureau land Management, for 200 cfs of water for :!r.stre.am use of · :aver is ordered denied . . 1mlicatio.'l for Reservation of Water No, 12,333-r by the nvJnJ.c;ru>o. States Bureau of Reclamation, fOr 131,700 af/y of water is ordered &mied. (g) flwlication for Reservation of Water No. 9942-r43Q by Irrigation Project, ia orcler~!d cl!!V.ied. BEFORE E BOARD DF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA IN THE MATTER U.S. BUREAU OF ) ) ) ) ) FINDINGS OF FACT AND lAND MANAGEMENT, APPLICATION NO. CLUSIONS OF LAW APPLI~ l lNSTREAM FLOW PORTION ONLY CATION . 1 2334~14~r The above-entitled matter came on regula y for ng sta ng 01. or September 1 , 1 , in Billings, Montana, before the Montana Board Natural Applicant appeared by and through its counsel of record, Thomas i'klntana Department of Natural Resources and Conservation appeilred and its counsel of record, Ri rd Gordon. The t~ntana Department of Health Environmental Sciences appeared by and through its counsel of , Mona Jamison. The Montana Department of fish and Game appeared by and through its counsel record, F. Woodside Wright and ayton Herron. The fourteen appli conservation distri appeared by and rough their counsel of record, Ga Spaeth. Utah International, Inc. appeared by through its of record, 1J1·ban Roth. f~ntana Power Company appeared through its counsel of James lsh. Intake Water Company appeared by and through its Henry Loble. Witnesses were duly sworn, and oral and documentary evi was introduced. The Board having read and ly considered the complete record, makes the 1 ng ndi~gs of Fact and Conclusions Law relating to the U.S. Bureau of Land Management, Application No. 1 0 r ~ 12 l4r, for instream flows: 367 U.S. OF LAND Y.ANAGEMENT P.ESERVATION REQUEST FOR MAI1'?l'ENk'lCE OF RIPARIAN HABITAT, LIVESTOCK, AND WILDLIFE SUBBASIN Upper Boulder River Yellowstone Bridger Creek Still~~ter River Upper Deer Creek Lower Deer Creek Yellowstone River Clarks Fork Clarks Fork Yellow- of Yellowstone stone River Bluewater Creek Bear Creek Cottonwood Creek Five Mile Creek Bighorn Sage Creek Crooked Creek Tongue River Tongue River Powder River Powder River Hizpah Creek (tributaries of Sheep Creek Prn.;der River) N.F. Sheep Creek S.F. Sheep Creek Horse Creek Meyers Creek Locate Creek Archdale Creek SncM Creek Coal Creek Bolocate Creek Dislocate Creek Ten l1ile Creek (tributaries of Little Powder River Little Powder Hay Creek River) Allison Creek Dry Creek Horse Cree..k: N.F. Bowers Creek Bell Creek Wright Creek S. F. vJright Creek Ranch Creek ¥Jilliams Creek Prarie Creek 368 LIVESTOCK AND HILDLIFE USE AHJUNT (af/y) 0.53 0,22 0.62 0.10 0.28 2.4 8 0.71 0.60 0.41 0.37 4,6 67 0.483 4.55 0.574 0.63 1.288 0,224 0.322 0.63 0.224 0.434 0.448 0.896 0.224 0.224 L34A 0.084 0.14 0.434; 0,812 0.504 0.112 014 0~056 0.336 0.042 O.L:.06 0.532 INSTREAH FlJJW (cfs) 25 5 5 5 1 25 5 5 5 5 5 5 130 200 3 3 3 3 3 3 3 3 3 3 3 3 3 10 3 3 3 3 ., J 3 3 3 3 3 3 4 ~ ~ ' NGS OF FACT 1. The U.S. Bureau Management has requested reservZlticm of instream flows for livestock and wild1i wate ng as n table 1 (U.S. of Management, Appli ()!1 2. The purpose of the instream on the U.S Land ication is to establi nimum nstream ows to protect parian ,. tat vegetation on national resource lands and to ensw~e suffi ent water instream stock and wildlife watering (U.S. Bureau Land Management, Appli on 2 It is established to the satisfaction of the Board that a purpose the reservation has been shown. POI•IDER SUBBASIN Findings Related to the Need for the Reservation for the Powder Subbasin 4, Department of the Fish and Game has given an instream water reservation the Powder River for the amaunt of the e flow (Board Order #11 0( ) . 5. Suffi ent amount of the instream ow has been reserved for the purpose of protecting ldlife and pa an tat fo the 5. There has not been shown a need for an additional i the Powder River, 7. It has not been ~stab1ished to the sa s ion on the Board that need r an instream reservation for the Powder ver has been shown. 369 S. If the zone of saturation in streamside ¥Jater tables droPs below root depth for prolonged periods, streamside vegetation dies and n~1 seed~ lings cannot become established, resulting in ecosystem damage (Tr, Vol. 19, following p. 146) 9. Although the U.S. Bureau of Land Nanagement did not study stream~ side mter tables, root depth, or any other specific variables where instream reservations were applied for, the U.S, Bureau of Land Han.agernent instream~ flow request ms in part a general attempt to reserve a sufficient lev0l of instream flow to replenish streamside mter tables and prevent such ripar- ian ecosystem damage (Tr. VoL 19, follov.'ing p. 146). 1 Water is generally scarce in the Powder River subbasin and certain am:JUnts of water are needed for watering of livestock and wildlife and for the maintenance of the ecological system (U.S. Bureau of Land M&"13f;Ernent Application No. 12334-r) 11 . It is established to the satisfaction of the Board that the awunts of water needed for the purposes of t.ha instream reservations for the following strearrJS are: a) for tributaries of the Little Powder River vlhich in- include Hay Creek, Allison Creek, Dry Creek, Horse Creek, N.F. !lcJwers Creek, Bell Creek, \Jright Creek, S.F. Wright Creek, Ranch Creek, Williams Creek, and Prarie Creek en instream reservation is granted of one cfs for each named stream. b) tributaries of the Pow~er PJlver ~tdch include Mizpah Cree, Sheep Creek, N.F. Sheep Creek, S.F. Sheep Creek, Horse Creek, l1eyers Creek, Locate Creek, Archdale Creek, Snow Creek, Coal Creek, Bolocate Creek, Dislocate Creek and Ten Mile Creek an instream reserva~ tion is granted one (1) cfs for each named stream. c) for the Little Powder River an instream reservation of tl1ree (3) cfs is granted 370 that th2 S. Bureau is in the public interest. 13. An instream reservation for tributaries of and the Little Powder River and for Little Powder River are interest because of the need for water water:ir,g S. Bureau of Land Management Application 12334-r). 14. It is established to the satisfaction the Board that reservatioos listed in Finding ffl2 are in the public ini:eresl:. TONGUE SUBBASIN Findings Related to the Need for the Reservation in the Torgue Subbasin 89-890(3) (b)) and for the Anvunt Necessary for the Purpose of the Reservation 89-890(3) (c)) 15. The Tongue River controlled a.11d regulated by the TOiogtle K:Lve:r ll:mland Reservoir (Draft EIS, VoL p. 16. The operation of t:.he Tongue River Dain and Reservoir has vr•::~vJcac"" adequate flows for the protection the aquatic resaurce and ir~tteam flows in the Tongue River (Draft EIS, VoL II. p274). 17. Operation of the Tongue River Reservoir will cootLrrue to provide ecosystem and economic benefits. 18. The Depa:rt::ment the Tongue Ri ve:r (Board Order j£ ) 19. As stated its application, it or to construct a new TOI'.gue River Dam hesources Application 20. 371 Natural Resources and Conservation and the instream~flow reservation application U.S. Bureau of land Management for the Tongue River are mutually exclusive ( Ora ft E IS, Vo 1 I , p. 6) . It has not been established to satisfaction of the Boa that the Applicant has that there is a need for an instream reservation of water for the Tongue River. It has been established to the satisfaction of the Boa that any amount of water is necessary for the purpose of a reservation for which there is no need. Findings Related to the Reservation for the Tongue Subbasin Being in the Public Interest (89-890(3)(d)). It has not been established to the satisfaction of Board that it is in the public interest to grant a reservation for which there is no need. Findings Realted to the Need, Amount for the Purpose of the Reservation and the Public Interest (89-B90(3)(a)(b)(c)). The Bureau of Land Management has requested an instream reservation for 5 cfs from Five 1e and Crooked Creeks (Application 12334~r). There are no other instream reservations requested or granted on ve le and Crooked Creeks. 26. An instream reservation is needed on both of these streams aquatic habitat and to provide stock water and wildlife water. ensure 27" It is established to the satisfaction of the Board that the need for the instream reservation on ve le and Crooked Creeks has been shown and that the reservation is in the public interest. 28. It is established to the isfaction of the Board that the amount necessary for the purpose of the reservation on ve Mile and Crooked Creeks is 5 cfs. 372 F rks Fork Vel The D2partment sh and Game has been gi von an ins tream 1~ater re~ servation for (l) (2) ( 3) (4) {5) (6) ( following streams: Boulder River B dger Creek Stillwater River Upper Deer Creek Lower Deer Creek Yellowstone ver arks Fork River (8) Bluewater Creek ( 9) Bear Creek (10) Cottonwood Creek ( 11) Sage Creek (Boa Order #110). 30. cient amount of the instream flow has been reserved in the in nding 29 the purpose of ding 1 ife and ri an wil tat. There has not been shown a need for an addi onal instream for the streams listed in Fi ng 29. It has not been established to l amount is necessary for a sfaction of the Board in streams lis in It has not established to s&tisfaction of the Board an on addi iona1 instream reservation to States Bureau land 's i on for ows in the Boulder River, B dger Creek, 1 Creek, D2er , Lower Deer Creek, Yellowstone ver, Clarks River, Bl ver, r Creek, Cottonwood Creek and Sage Creek is in the public interest. 373 OF lAW L Chapter 8, Title 89, R. 1947, and Ln particular, Section 89-890, R.C.M. 1947, authorizes the adoption by the Montana Board of Natural Resources and Oonservation of orders reservi_ng water to qualified applicants for reservations of water. 2. If ordered adopted, a reservation must be ordered adopted accordance with Chapter 8, Title 89, R.C.M. 1947, and &'1y rules adopted thereunder. 3. The Applicant is entitled to apply to reserve waters within the State of Montana in accordance with Section 89-890, R.C.M. 1947, and any DJles adopted thereunder. All pertinent statutes &!d rules of the State of Montana have been ad- hered to in the review of this reservation Application, both the !1mtana Depart:m:m.t of Nautural Resources and Conservation and by the Montana Board of Natural Resources and O:mservatiaal.. 5. Based upon the above FL1dings of Fact, and specifically based upon any condition, limitation, or I!Ddification of the full Application appearing said Findings, all pertinent criteris delineated at Section 89-890, R. 1947, and any rules adopted thereunder providing for the adoption of an order reserving water have been nEt. 6. Nothing found herein has bearing upon the status of water rights claLrned by the Applicant other than those herein newly applied for, nor does anything found herein have bearing on the status of clailred weter rights of any other party except in relation to those rights herein newly applied for, to the extent necessary to reach a conclusion herein. 374