Title: Montana's Experience in Reserving Yellowstone River Water for Instream Beneficial Uses - The Reservation Decision.
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Permanent Link: http://ufdc.ufl.edu/UF00052733/00001
 Material Information
Title: Montana's Experience in Reserving Yellowstone River Water for Instream Beneficial Uses - The Reservation Decision.
Alternate Title: homas, J. L. and Klarich, Duane. "Montana's Experience in Reserving Yellowstone River Water for Instream Beneficial Uses - The Reservation Decision." AWRA. Water Resources Bulletin, vol 17, No. 2
Physical Description: 7p.
Language: English
Creator: Thomas, J. L. ( Author )
Klarich, Duane ( Author )
Publication Date: April 1981
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 5, Folder 17 ( SF REASONABLE BENEFICIAL USE ), Item 8
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052733
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



J. L. Thomas and Duane Klarich2

ABSTRACT: The Yellowstone River in Montana produces an abundant quality, and the maintenance of minimum flows or levels, was
supply of high quality water, but in the early 1970's, the specter of defined as a benefiial use.
mushrooming energy development in the drainage with its attendant Within a year of the Act's passage, the Montana DNRC
demands for large volumes of water prompted this state to initiate steps (t of N l R s ad
to protect existing users and to control future water uses. A Water Use (Department of Natural Resources and Conservation), the ad-
Act was passed in 1973, and a moratorium was subsequently placed ministrative entity, was flooded with permit applications by
on the granting of new permits for major diversion. During this mora- energy companies for waters of the Yellowstone drainage. The
torium, various governmental entities were given the opportunity to quantities requested would have seriously depleted the main-
request the reservation of water for future beneficial uses, including in- stem if all of the permits were completely fulfilled. The 1974
stream purposes. An earlier paper described the reservation applications
that were received by the state, and it also summarized the legal frame- Montana Legislature, therefore, suspended major water allo-
work of the reservation process in Montana. Since that time, the re- cations in the Yellowstone River basin for three years (Yellow-
sponsible state agency has had the opportunity to review the reserva- stone Moratorium Act) to provide time for governmental
tion requests, and its final decision in this regard was announced in agencies to prepare applications for the reservation of water
December of 1978. This paper describes the details of this decision. for future use, including instream purposes. This set the stage
Basically, an attempt was made to preserve the integrity of the stream
while also strengthening its agricultural uses. In addition, a portion of for a normalization of the competition for water between and
the flow was not earmarked which will provide some flexibility in re- among diversionary and instream applicants.
acting to future demands. Thomas and Anderson (1976) described the conflicting
(KEY TERMS: Montana Water Use Act; opinion polls; flow reservation water interests in the basin, and Thomas and Klarich (1979)
requests; hearings; reservations granted; instream flows; water use discussed the legal framework under which Montana groped
priorities; unreserved water.)
for a solution. This paper describes the reservation decision,
the amounts of water granted under the Water Use Act, sum-
NTRODUCTmarizes the decision process, and considers public reaction to
the enactment of instream flows.
In past years the Yellowstone River basin of Montana
(Figure 1) has been generally blessed with ample supplies of
high quality water. Consequently, state regulation of waters SUMMARY OF THE RESERVATION REQUESTS
was minimal until the rediscovery of southeastern Montana's A t r w i
Applications to reserve waters in the Yellowstone basin
vast coal reserves during the early 1970's. Montana was then .
were submitted by four state agencies, two federal agencies,
ill prepared for the onslaught of plans for coal and water de-
I a-fourteen conservation districts, two irrigation districts, and
velopment: regulations governing water use, power plant sit- eight municipalities (DNRC, 1977). Some of these entities
eight municipalities (DNRC, 1977). Some of these entities
ings, and strip mining were practically nonexistent. As a result, forwarded more than one request so that DNRC received a
forwarded more than one request so that DNRC received a
the 1973 Montana Legislature imposed strong controls to cor- total of 38 individual applications. Two of the largest sub-
r. total of 38 individual applications. Two of the largest sub-
rect these suddenly apparent deficiencies. .
mittals, by the Montana FGC (Fish and Game Commission)
Among the many laws passed in 1973 was the Water Use
and the Montana DHES (Department of Health and Environ-
Act which initiated an orderly and centralized method of ad-
Sw i d e m mental Sciences), were for the maintenance of instream flows,
ministering water rights. This Act also gave state, substate, and e the e t e fo i vson
S while most of the remaining requests were for diversion or
federal agencies the right to apply for the reservation of water
storage that would reduce instream flows. Thus, the FGC and
for future beneficial uses. The establishment of an instream storage that would reduce instream flows. Thus, the FGC and
DHES instream requests were mutually supportive but in ap-
flow, for the purposes of fish and wildlife, recreation, water
parent conflict with the other applicants. The major instream

1 Paper No. 80117 of the Water Resources Bulletin. Discussions are open until December 1, 1981.
2Respectively, Head, Water Quality Section, Water and Power Resources Service, Engineering and Research Center, P.O. Box 25007, Code D-754,
Denver Federal Center, Denver, Colorado 80225; and Environmental Specialist, Water Quality Bureau, Montana Department of Health and Environmental
Sciences, P.O. Box 20296, Billings, Montana 59104.


| Thomas and Klarich





0 0 o ,oo20 4o 6 s too

CH f EYENNE u .4

Miles City


Figure 1. The Yellowstone River Basin of Montana (taken from DNRC, 1977).

and offstream water reservation applications received by the testimony and cross examination before an officer appointed
state are summarized in Table 1 and were discussed by Thomas by BNRC. Although private interests were not allowed to ap-
and Klarich (1979). ply for reservations, they were permitted to participate in the
vinghearings as objectors. Following two months of testimony and
OF NORTHERN oAshlond !

debate that produced a 36-volume record of the proceedings,
HEARING PROCESSES AND TIMETABLES each participant prepared findings of fact and conclusions of
W 0 N G

Figure 1. The Yellowstone River Basin of Montana (taken from DNRC, 1977).

All applioffstreations for reservater reservapplicationsin the Yellowstone testimony and cross examination before an officer pon
draine are summarized inhad to be entered by Novembable and were discussed by Thomas by BNRC. Although private inal arguments were given to BNRC
and Klarich (1979). ply for reservations, they were permitted to participate in the
hearings as objectors. Following two months of testimony and
debate that produced a 36-volume record of the proceedings,
HEARING PROCESSES AND TIMETABLES each participant prepared findings of fact and conclusions of

these submittals were quite complex and technical; for ex- in August 1978, and the Board released a final decision in
ample, the FGC submitted a 300-page document which covered December of the same year.
a 600-mile stretch of the Yellowstone River mainstem plus 76
tributaries, requesting flows at 94 separate locations. Because
of the complexity and number of applications, it became ap- ATTITUDE OF THE GENERAL PUBLIC
parent that the lay BNRC (Board of Natural Resources and During the period of the flow reservation deliberations,
Conservation), the group making the final decision, would not the Governor's office commissioned a statewide public survey,
be able to conduct the necessary hearings and reach a decision the Montana Futures Study (Montana State University Statis-
before the moratorium expired in March of 1977. Therefore, tical Center, 1977), ". to provide for public input into policy
after much maneuvering, the Montana Legislature passed a and planning alternatives for the future of Montana." This
one-year extension of the Yellowstone Moratorium Act with public poll ". was designed to provide an initial broad identi-
provisions for further protractions should legal actions inter- fiction of issues which residents of Montana feel are most
rupt the decision process. important."
The requisite hearings finally commenced in August 1977. The poll indicated that Montana residents have greater
The proceedings were quasi-judicial in nature with sworn sympathy for preserving the environment than for gaining


Montana's Experience in F ring Yellowstone River Water for Instream Beneficial The Reservation Decision

TABLE 1. Principal Applications for the Reservation of Surface Water in the Yellowstone River of Montana and
Its Tributaries (Tribs) and the Amounts Granted, in Acre-Feet per Year Except Where Noted.

Total Amounts Total Amounts Mean Percent
Applicants* Sources Requested Water Uses Granted of Requests

Service Yellowstone River 725,800 Multipurpose (storage). 729,500 100.5
DNRC Tongue River 450,000** 383,000** 85.1

BLM Yellowstone River and Tribs 21,498 Irrigation. 20,400 66.7
Service Bighorn River 131,700 Denied 0.0
Five CD's Upper Yellowstone and Tribs 286,240 207,764 78.0
Three CD's Lower Yellowstone River 159,942 159,942 100.0
Three CD's Lower Yellowstone and Tribs 231,963 151,883 75.1
Three CD's Lower Yellowstone Tribs 131,006 45,172 55.1
Two ID's Yellowstone River 151,807 11,997 4.8
DSL Yellowstone River Tribs 67,405 55,646 83.9

Small Towns Yellowstone River 73,455 Domestic and municipal. 19,079 25.6
Billings Yellowstone River 317,456 All beneficial uses. 41,229 13.0

FGC Yellowstone-Livingston 935,007(a) Water quality, fish and 1,879,013 -
FGC Yellowstone-Billings 4,041,913 wildlife, recreation. 3,914,455 96.8
FGC Yellowstone-Miles City 7,876,889 5,578,892 70.8
FGC Yellowstone-Sidney 8,206,723 5,492,310 66.9
FGC Large Tribs 4,610,717 4,065,523 81.5
FGC Small Eastern Tribs 11,094 Hist. Min. (b) -
FGC Small Western Tribs 376,221 Percent (c) -
FGC Small Western Tribs Instant (d) Percent (e) -

DIIES (f) Yellowstone-Billings 3,184,000 Water quality. 3,914,455 122.9
DHES Yellowstone-Miles City 5,015,000 5,578,892 111.2
DHES Yellowstone-Sidney 6,643,000 5,429,310 82.7

One CD Yellowstone-Kensey 4,000*** Maintain water levels. 4,000*** 100.0
One CD Small Eastern Tribs 5,000 Stock, recreation ponds. 2,500 50.0

BLM Yellowstone River 144,795 Instream flows for riparian habitats, Denied 0.0
BLM Large Tribs 300,449 fish, livestock, and wildlife. 2,172 5.0
BLM Small Eastern Tribs 46,336 13,014 29.7
BLM Small Western Tribs 25,340 Denied 0.0

*Information taken from DNRC (1977) and Ftitz (1979); CD conservation district and ID irrigation district; see text for other agency acronyms.
**In acre-feet.
***In cubic feet per second.
(a) Request for partial year only; instantaneous flows requested for the mid-August to mid-May period.
(b) Awarded historical minimum monthly flows.,
(c) Awarded 85th and 90th percentile flows.
(d) Requested instantaneous flows.
(e) Awarded varying percentile flows.
(f) DHES did not submit a request for the Yellowstone River near Livingston.

economic benefits in cases where conflicts might arise between On the basis of the Montana Futures Study, the residents
the two options, and very little support was shown by Mon- of Montana appear to favor agricultural pursuits by a fairly j
tanans for economic gain at any cost. In the same vein, a high wide margin over other economic ventures while showing con-
priority was given towards preserving lands with distinct agri- cern for preserving the environment. Montanans also ap-
cultural and wildlife capabilities. In terms of water, a large parently support some governmental means of controlling i
percentage agreed with the necessity of determining statewide water development and establishing water rights. These latter
water rights. Furthermore, this survey revealed the following features have been provided through the initiation of the 1973 |
water use ranking with three having a high priority and zero Water Use Act and the implementation of the flow reservation
having no priority: (1) agriculture, 2.9; (2) domestic, 2.5; option.
(3) fish and wildlife, 2.2; (4) municipal, 2.1; (5) industrial, 2.0; Prior to the announcement of BNRC's flow reservation de-
(6) mining, 1.8; and (7) recreation, 1.5. vision, the major newspaper in the drainage, the Billings


Thomas and Klarich

Gazette, commissioned a second poll (Magid Associates, 1978) these requests were grossly inflated, and they were subse-
to determine the general attitudes of Montana residents on quently reduced by the Board, depending upon the particular
various environmental issues. In this case, the flow reservation case, through: (1) a lowering of the estimated per capital use
topic was addressed directly by the survey. The citizenry rates, (2) a realignment of population projections to lower
definitely opposed the act of "ending restrictions on the use figures that the Board felt would be more realistic (e.g., from
of state river water for industry and agriculture" since 55 per- 38,000 to 18,000 people in the case of Glendive which has a
cent of the polled individuals voted against this alternative with current population of about 6,400), and (3) a limitation of
only 19 percent in favor and 26 percent expressing no opinion population projections to less futuristic years where the num-
(Higgins, 1979). Thus a large percentage of Montanans ap- bers would have a greater chance for validity (e.g., from 2070
parently view the Board's reservation decision, including the to 2010 to the case of Billings) (Clark, 1979). The Board
instream flow component, as a largely beneficial one. pared future use rates (some ranging from 400-1334 gpcd) to
250 gpcd (gallons per capital per day) for all of the municipali-
ties in order to arrive at more realistic evaluations of their
RESERVATIONS GRANTED water requirements in coming years. For comparison, average
water use in the basin was only 212 gpcd in 1970.
Philosophical Aspects The quantity of reserved water awarded to the seven river-
BNRC adopted its decision on December 15, 1978, and front municipalities was 60,308 acre-ft/yr as compared to a
Wilson Clark (1979), a Board member, reported that these total request of 390,911 acre-ft/yr. Despite the marked prun-
deliberations were governed by five generally agreed upon con- ing of the municipal requests, BNRC felt that ". the cities
cepts: (1) Board members felt that their ultimate responsibi- are now in a water rights position to vigorously pursue plan-
lity was to the people of Montana in general and to those re- ning for their expected growth (Clark, 1979)." The Board ex-
siding in the Yellowstone basin in particular; (2) Board mem- pressed concern for the future water needs of the many towns
bers were fully aware of the complexity of the case and did in the basin that did not submit reservation applications, but
not take an ultralegalistic stance; (3) Board members were in- BNRC could not consider these town's potential needs since
dined to grant, in each case, the largest reservation that could they chose not to apply.
be justified by the application, the record, the evidence, and
the available water supply; (4) Board members recognized that Irrigation Reservations
every encouragement should be given to the development of BNRC received applications to reserve a total of 1,181,561
off-stream storage, with pumping from the Yellowstone River acre-ft/yr of water for the future irrigation of 443,712 acres
during high water periods; and (5) Board members believed (Fritz, 1979). The timing of these requested diversions would
that they had an obligation to encourage conservation mea- place many of them in direct conflict with the applications for
sures. instream flows. However, the Board granted less than the re-
BNRC identified their dilemma as a classic confrontation quested amounts to both instream and irrigation applicants,
between economic pressures and environmental values. Ob- thereby reducing the potential for difficulties of this kind.
viously, the desires of each applicant could not be fulfilled, Specifically, the Board granted a total of 552,804 acre-ft/yr
so the Board had to strive for a balanced allocation of water for the irrigation of 260,318 acres, lowering the original re-
that would meet, insofar as possible, the needs of both con- quests by 45 percent.
sumptive and instream uses. The amounts of water that BNRC With the exception of the two irrigation districts, the
eventually granted under this philosophy to the various re- several state related entities that had applied for the reserva-
questers are listed in Table 1. tion of water for irrigation purposes, including the DSL (De-
partment of State Lands), received a fairly large percentage of
Municipal Reservations the requested amounts (Table I). Similar to the municipal
Billings and six other municipalities situated along the applications, BNRC again stressed that this water is to be used
Yellowstone River generally received the smallest allocations for new irrigation with the reservations having no effect on
relative to their requests. A part of this discrepancy resulted present irrigation water rights. Although some irrigation re-
from a general misunderstanding by the cities and towns as quests were reduced for vzrlous reasons, including excessive
to the intent of the municipal reservations. That is, these water application rates and engineering and economic prob-
communities were not expected to reserve water for their en- lems, the Board felt that the state irrigation applicants "came
tire future usage, but rather only for an anticipated future in- out very well" (Clark, 1979).
crease in use due to a greater consumption per capital at that BNRC filled the irrigation application of the BLM (Bureau
time or due to potential population growth (Clark, 1979). The of Land Management) at a percentage level that is generally
amount of water currently used by a community has the comparable to amounts awarded to the state entities for this
standing of a water right, same water use. However, the Board denied an irrigation re-
Municipal requests were largely based on a community's quest of the Water and Power Resources Service (formerly the
estimate of its future population levels and an assumed per Bureau of Reclamation) for the 131,700 acre-ft/yr to irrigate
capital use rate. Because of the misunderstanding noted above, 42,900 acres along the Hardin Bench in the Bighorn River


Montana's Experience in f ring Yellowstone River Water for Instream Beneficial The Reservation Decision

drainage because the water for this project is already available locations and the corresponding TDS (total dissolved solids)
in the existing Yellowtail Reservoir (Bighorn Lake) (Figure 1). concentrations (Thomas, 1976). The object of this approach
was to provide a straightforward means for ascertaining those
Storage Reservations flows where TDS levels could conceivably be equal to or less
Federal Agency. In addition to its irrigation request, the than the 500 mg/L value recommended by the United States
Service (Water and Power Resources Service) also asked for Public Health Service (1962). During the low flow period,
725,800 acre-ft/yr for storage in three proposed off-stream monthly flows corresponding to a 500 mg/L level of TDS were
reservoirs in the lower Yellowstone basin. In keeping with its requested; during the high flow, low TDS months, the seven-
philosophy to encourage off-stream storage, BNRC awarded day, ten-year low flow was requested. The citation of the
these three applications in their entirety where the water Public Health Service TDS recommendation as well as the
would be used for municipal, industrial, recreation, and fish seven-day, ten-year low flow in Montana's Water Quality
and wildlife purposes (BNRC, 1978). BNRC expressed hope Standards afforded the legal justification for DHES's instream
that the fulfillment of this particular reservation would ulti- flow application.
mately help alleviate future water conflicts in the Yellowstone The instream requests of FGC were somewhat more quali-
drainage, especially during the low flow periods. In this tative in character than those of DHES. FGC was concerned
scheme, water would be diverted from the mainstem during with having adequate instream waters to maintain shallow
the river's peak runoff period to the off-stream reservoirs for riffle areas, sustain the security of goose nesting sites, retain
storage and later released when water is less plentiful during efficient paddlefish migrations, maintain normal stream chan-
late summer and fall. However, the Service has no firm plans nels, and protect numerous other habitat features, i.e., to
for the construction of the necessary dams. generally hold the status quo (Peterman, 1979). Because of
the complexities and uncertainties of attempting to define
State Agency. One state agency, DNRC, also applied for a specific and adequate amounts of water for these needs, the
reservation of water in the Yellowstone basin for storage pur- FGC application, with its distinctively large instream flow de-
poses. The implementation of this request would involve a nands and its emotional overtones of defending a pristine en-
major expansion of the existing Tongue River Reservoir. Con- ironment against exploitation, eventually provided the focus
struction of a High Tongue Dam seven miles downstream from for the debate that surrounded the major instream water re-
the present structure would increase the firm annual yield of q RC generally accepted the approaches
quests. In any event, BNRC generally accepted the approaches
the impoundment from 42,000 to 100,000 acre-ft/yr. The that were presented by both of the major instream requesters,
water stored in the enlarged reservoir would be used for irri- though not to the same degree as argued in the applications.
gation, industry, fish and wildlife, recreation, and flood con-
trol (DNRC, 1977). Although a large portion of DNRC's stor- Annual Amounts Awarded. BNRC was the decision-making
age request was granted by BNRC in their final determination authority for the Yellowstone drainage reservation applica-
(Table 1), plans for the development of the enlarged impound- tions, but its kindred department did act in an advisory capa-
ment have not yet been formalized. city through the early stages of the review process by prepar-
ing environmental impact statements and other publications
Major Instream Reservations (e.g., DNRC, 1977) designed to guide and inform the Board
and to provide information for others. DNRC also developed
Background Information. The most controversial aspect in the spring of 1978 various reservation recommendations
of the reservation process is the concept of leaving water in the that were presented to the Board for their consideration. These
stream for instream uses. To many farmers, ranchers, indus- recommendations were made as a means of providing a balance
trialists, and others tutored in the "use it or lose it" school, between conflicting instream and off-stream water demands.
water has value only if it is diverted and used to grow crops, Included with this package was an instream flow of 3.4 million
generate electricity, or cool power plants, or if it is used in acre-ft/yr for the lower Yellowstone River at Sidney (Asso-
some other income producing activity. To these individuals, cited Press, 1978). In view of this recommendation, BRNC's
leaving water in a stream implies that it will be wasted in Mon- initial announcement of a 6.9 million acre-ft/yr instream flow
tana and will be valuable only to downstream states. Yet the at Sidney was somewhat surprising in comparison to an aver-
legislation creating the reservation process recognized the bene- age annual flow of 8.3 million acre-ft (Thomas and Klarich,
fits of leaving some unmolested water in a drainage, even 1979). Although the Board eventually reduced this allotment
though its in-place worth cannot be easily quantified. None- to 5.5 million acre-ft/yr in its final decision (BNRC, 1978), a
theless, those requesting instream flows were required to sup- greater amount of water was set aside for instream purposes
port their applications in some fashion, even if not in economic than many had anticipated.
terms. As a result, FGC and, to a lesser extent, DHES ex- Since an essential duplication became evident between the
pended considerable effort in order to obtain field data to sup- applications submitted by FGC and DHES for the Yellow-
port their claims. stone River, BNRC developed the river's instream reservations
The instream requests of DHES, directed towards main- as single values for each of the different sites on the mainstem
training the water quality levels of the Yellowstone River, had a with this reserved water serving both of the agencies (Table 1).
largely quantitative basis where regression analyses were ap- DHES received more water on an annual basis than it requested
plied between the average monthly flows at specific stream

I Thomas and Klarich

for the upper and middle Yellowstone River, and DHES also The monthly instream reserves for the mainstem at Sidney
received a relatively large percentage of its request for the in the lower basin are slightly less than the 90th percentile
lower reach. In contrast, FGC with its larger application was flows (flows exceeded 90 percent of the time) for most of the
granted less flows than petitioned at all of the mainstem sta- months, and the same situation holds true for the Miles City
tions and at many of the tributary sites, but this agency still location on the middle reach. At the Billings station, 50th to
received a fairly large percentage of its demands in most of the 65th percentile flows were awarded for most of the year ex-
cases. cept for the May to July runoff phase when 80th percentile
For the Yellowstone River, these granted/requested ratios flows were assigned (BNRC, 1978). In the extreme upper basin
are highest at the more upstream locations with a downstream near Livingston, 20th percentile instream flows were granted
decline to the lower river. Such percent declines toward for the months of October to April, but only 95th percentile
Sidney are in accord with the Board's judgment to stress the flows were awarded for the May to September irrigation sea-
irrigation applications in the lower part of the basin below son. In addition, a 24-hour period of dominant discharge was
Billings while accentuating the instream demands in the upper provided for the upper Yellowstone at some point during the
blue ribbon portion of the drainage. In all instances, BNRC high runoff season to help maintain the normal channel de-
attempted to reduce the likelihood for instream/irrigation velopment features of the stream.
"face offs" by assigning relatively generous instream reserves
during the nonirrigation months while lowering the instream Minor Instream Reservations
grants to some extent during May through September irriga- In addition to the instream reservations described pre-
tion season. viously, BNRC also made three other instream awards to two
Monthly Amounts Awarded. The instream reservations in conservation districts and BLM as summarized in Table 1.
Table 1 are yearly totals of monthly instream awards. An
example of the monthly allocations is presented in Figure 2
for the Yellowstone River near Sidney. As indicated in this RESERVATION PRIORITY SYSTEM
figure, DHES generally received less water than requested for BNRC established a separate water use priority system for
the August to April period. However, DHES received much two sections of the Yellowstone basin. The Board believed
more water than required to sustain water quality for the that instream values are of major importance in the part of the
high runoff months of May, June, and July. FGC, in contrast, basin above Billings while this feature is not as important in
received less water than requested for almost all of the months, the drainage below Billings (Clark, 1979). Through the de-
But in an upstream direction toward Livingston, the monthly velopment of such a two part water use priority ranking, the
instream flows that were granted become progressively more in special worth of the upper Yellowstone as a blue ribbon trout
accord with those petitioned by FGC. stream can be legally recognized while irrigation needs can be
emphasized in the lower drainage.
S4500s cf To establish priority, the Board signed the final orders in
26 -- the following sequence: (1) municipal reservations, (2) in-
2 stream reservations above Billings, (3) all irrigation reservations,
24 (4) instream reservations below Billings, and (5) all storage
22 i reservations (Clark, 1979). Apparently, the Board intends
s Instream Reservation that irrigation will suffer during low flow years in the upper
20- Granted
20 Grantd reach while instream uses will suffer during these years in the
.i / lower segments. But in order to provide some water for irri-
S6 gation in the upper drainage, the amounts of water that were
a" ~1 \-Fish ond GOme
S/ \ i \is Requt awarded for instream purposes are significantly less than what
4 was requested by FGC for the irrigation season.
12- / Water Quality
-0 \ Request
\ /
/ I \ .-., Reserved waters in the Yellowstone basin are not directly
6 \,/ -- available to nonagricultural private enterprise, but these con-
\ ,/ cerns do have future access to some unreserved waters that
were left over by the Board after the instream allocations,
2 ~ consumptive reservations, and other current water rights and
J F M A I J A S 1 N 1 uses are subtracted from the in situ flow of the streams (Clark,
MON TH 1979). This "free" water can be allocated by DNRC to non-
governmental entities under current regulations through a per-
Figure 2. Yellowstone River Near Sidney, Montana Major Instream mit mechanism pursuant to the 1973 Water Use Act. BNRC
Flows Requested and Granted (data taken from BNRC, 1978). indicated that this "free" water was intended to cover future

Montana's Experience in .rving Yellowstone River Water for Instream Beneficial ,es The Reservation Decision

filings, but the problem is that this unreserved water does not inviolable. Furthermore, future legislative activity will
appear to be available during the low flow years. probably focus attention upon these reservations, and Mon-
For example, approximately 800,000 acre-feet of water re- tana itself has to review the grants every ten years to ensure
main in the Yellowstone River for a 50th percentile flow year that the objectives of the reservations are met. An adjustment
at Billings after present and future depletions and the instream of the instream flows and the other reserves could ultimately
reservations are subtracted from the annual supply. But for a arise from any of these sources. Thus, it appears that the
70th percentile flow year, no unreserved flow is left. Thus, Yellowstone reservations and the reservation process per se
for more than three years out of ten on an annual basis, there will be the focus of debate for a number of years before their
would be no excess water at Billings. Similarly, approximately acceptance into Montana's water liturgy is completely secured.
2.5 million acre-feet are unreserved at Miles City during a 50th
percentile flow year, but zero acre-feet remain during an 80th
percentile cycle. The implication is that nonagricultural pri- LITERATURE CITED
vate concerns would have to provide off-stream storage or Associated Press, 1978. Billings Foresees Battle for Water. Billings
would have to purchase water for their needs during the drier Gazette 94(11):1A and 16A.
periods. A recent newspaper article (Cross, 1979), reviewing lark, W. F., 1979. A Free-Flowing Yellowstone: The Reservations
various state and federal reports dealing with water and coal Challenge. Montana Outdoors 10(2):29-33.
conversion in the Yellowstone basin, indicates that adequate Cross, J., 1979. Water to Burn. Billings Gazette 96(116):1A and 8A.
SFritz, G., 1979. Summary of the Water Reservations. Water Resources
supplies are available for purchases in existing reservoirs within Division, Montana Department of Natural Resources and Conserva-
and adjacent to Yellowstone drainage to serve most of the de- tion, Helena, Montana, 16 pp.
mands of future energy development. Higgens, S., 1979. How Montanans View the Issues. Billings Gazette
95(306):1A and 14A.
Magid, Frank N., Associates, 1978. Montana Issues Poll. Lee News-
papers, Billings, Montana.
SYNOPSIS Montana Board of Natural Resources and Conservation, 1978. Order of
Five years after the passage of Montana's Water Use Act in Board of Natural Resources Establishing Water Reservations Is-
1973, a flow reservation decision for the future beneficial sued Pursuant to Section 85-2-36-MCA. Montana Department of
Natural Resources and Conservation, Helena, Montana.
uses of water in the Yellowstone River basin was finally Montana Department of Natural Resources and Conservation, 1977.
achieved after the expenditure of a great deal of effort by a Yellowstone River Basin: Draft Addendum Environmental Impact
number of governmental agencies. As summarized by one in- Statement for Water Reservation Applications. Water Resources
dividual (Clark, 1979) who was directly involved with the deci- Division, Helena, Montana, 67 pp.
sion: "The Board has done its job to the best of its ability. Montana State University Statistical Center, 1977. Montana Futures:
A Survey of Citizen Choices. Budget and Program Planning, Mon-
Only the future will show whether or not it was a sound states- tana Office of the Governor, Helena Montana, 64 pp.
manlike job, and whether or not the people have risen to and Peterman, L. G., 1979. The Ecological Implications of Yellowstone
sensibly answered the challenge of assuring that future genera- River Flow Reservations. Ecological Services Division, Montana De-
tions of Montanans will have an adequate and healthy water apartment of Fish, Wildlife, and Parks, Helena, Montana, 70 pp.
,ba Thomas, J. L., 1976. Statistical Water Quality Relationships for the
basYellowstone River. Proceedings of the Montana Academy of
The Board's decision can be summarized as follows: it pro- Sciences 36:122-127.
vided unexpectedly large reservations for instream flows; it Thomas, J. L. and R. L. Anderson, 1976. Water-Energy Conflicts in
stressed the off-stream storage applications as a means of re- Montana's Yellowstone River Basin. Water Resources Bulletin 12(4):
during future water conflicts; it awarded fairly large reserva- 829-842.
tons to most of the irrigation applications; it sharply curtailed Thomas, J. L. and D. Klarich, 1979. Montana's Experience in Reserving
tion to m t of the irrigation alicatiYellowstone River Water for Instrea Beneficial Uses Legal
the projected municipal demands; and it left small blocks of Framework. Water Resources Bulletin 15(1):60-74.
unreserved water in the streams for future filings by private United States Public Health Service, 1962. Drinking Water Standards.
enterprise, although this unreserved water is not available Public Health Service Publication No. 956, Washington, D.C., 61 pp.
during the drier years. Furthermore, a two-part priority system
was established that elevated municipal use over the other
applications while giving instream values a higher ranking than
irrigation in the upper basin but with the opposite situation in
effect for the lower regions. As a result, environmental factors
were accentuated in the upper, more mountainous portion
of the drainage while agriculture was favored in the downstream
plains segments.
The initial thought was to entitle this paper the "resolution"
of the flow reservation question, but this term implies a per-
manency which is not the case at this particular time because
of the associated controversies. With various court cases,
appeals, and negotiations not yet settled, the 1978 flow reser-
vation awards for the Yellowstone drainage are not totally

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