A RANCHERS PRIMER
on
WATER RIGHT LAWS
for
MONTANA WATER USERS
"Alf: s
Published by the
Montana Reclamation Association
WATER RIGHT LAWS
By Judge W. W. Lessley, judge of the 18th Judicial District
A PLAIN LANGUAGE EXPLANATION This explanation has been prepared by your judge at your request. It makes no attempt to be a scholarly and legalistic approach to the subject. Its purpose is to state the elementary rules of water law in simple and plain language, that you may have a general knowledge of this most important property right. That does not mean it is not a statement of the law and does not follow the decisions of our Courts on the subject. It merely means, it contains general statements of that law in the language of the rancher. If you have a specific problem in water law, you should go to your lawyer, immediately, and get specific advice on your particular problem.
RIGHT TO USE
No one person owns an inch of water in the State of Montana. A person has a water right which gives him the right to use that water when he needs it. He does own the "use" of water. But his "use" is limited to a proper use of that certain amount of water. After he has made use of the water, the owner of that water right must turn it back into the stream for the benefit of others on the stream who also own a use, later in time to his. He cannot use his water for his own needs and then rent it, give it away or sell it. We come back to the fundamental rule that water right ownership is limited by use, by the rights of others on the stream, and the amount of water in the stream. Your ownership of a water right is not like the ownership you have of your cows, horses, pigs, farm equipment, and cars and is different, even, from your ownership of land. As to your cows and cars you can kill, destroy, sell and use almost irregardless of the rights of others; it is as near absolute as any ownership can be. But your ownership of a water right is limited to the use and that use is in relation to the mount of water in the stream, the date of the water right, the needs on your land, and the relative rights of your neighbors on the same stream. This characteristic is a funda-mental one of the doctrine of appropriation, which is the law in Montana.
OBTAINED BY APPROPRIATION
The common law doctrine of riparian rights does not apply here in Montana. As we stated above the doctrine of appropriation is the law of water rights here. That doctrine can be most simply
explained in this way: A water right is determined by time; the law puts it "first in time, first in right." There are two ways in which water may be appro-priated in this State. The first, is by the rules and customs of the early settlers of this state; this is the method of a completed ditch for some useful or beneficial purpose. Suppose you had 200 acres of land of which 100 acres could be farmed and you could irrigate it from a particular creek; you could plow part of the 100 acres of land and start digging a ditch, say—on the 1st day of May 1886, and sup-pose you kept right on digging the ditch with "diligence" and finished it on April 1887. You would have an appropriation of 100 inches of water of the date of May 1, 1886; this by reason of a doctrine or rule of the law called, "relation back." The second is by the rule of posting as set out in the written law; this is the method of posting and filing notices. Here, you follow the written law, by posting a notice of your intention at the point of diversion (where you are going to take the water out), file a copy in the of-fice of the county clerk and recorder within 20 days thereafter, and proceed with due diligence to put water on your land. And again, by the doctrine of relation back" your appropriation will be of the date of the posting. In both methods of obtaining a water right the use of the water need not be immed-iate; it can be a prospective or contemplated use. You, of course, in both instances must control the land that needs the 100 inches (water is limited to actual necessity) but you need not own the land.
ari
DECREED RIGHTS to
th We have spoken of appropriated water rights. la Now we shall discuss "decreed" water rights. One th of the easiest ways to explain a decreed water
right is to call it a "quick frozen" appropriated water right. Decreed water rights all come about as the
result of a water suit, which is really a quiet title ii
action of water rights on a stream, joined with an
injunction (court order) restraining all parties to the to decree from interfering with the water of the other sl parties. All the parties who use or claim the use of
the water from a stream and its tributaries are to brought into court; they are required to set up their bi claims to the use of the water. The court hears all, 1 this testimony (a small water suit can last for three
or four months!) then examines and adjudicates and sets dates of priority of use of all the water on the stream and its tributaries. All of this, number of water rights, amount, date and who owns the use
of the water right is set up in a court decree. When a so established it can be enforced by the court (p
The Judge of the court concerned must, on peti-tion of 15 percent of the water rights affected on a decreed stream, appoint one or more water commis-sioners to measure and distribute the water. Notice it is not 15 percent of the "water users" but 15 per-cent of the water rights; so a petition by one person who has 15 percent of the water rights on a particular stream may be sufficient. The water commissioner is an "arm of the court"; he takes an oath, furnishes bond, keeps record of his daily distribution of water, and can refuse to distribute water to those of you who fail to maintain your headgates and install proper measuring boxes or weirs.
RELATED TO OTHER RIGHTS
Once a water right is obtained by either of the two ways mentioned it is a right modified by the amount of the water in the stream, the rights of others on that same stream, and the needs of the owner of the water right. This water right that you own, however old it may be, gives you only the right to use the water when you need it. And this need is only to the extent of your actual need, and then you are obligated to turn it back into the stream from where it came so that your neighbors with later rights may have the use of their rights which are later in time. This is a two-way street; you have the same right against older water rights than your own.
TRANSFER OF RIGHT
Water rights are "appurtenant" to the land; appurtenant means attached; they are so attached to it and they will be transferred with the land, even though not specifically mentioned in the deed of the land, though a good lawyer will take care to see that it is mentioned. Of course, land can be sold without the water right, but it must be stated that this is what is done. A water right can be sold and conveyed by deed, but the person who buys it, buys it in relation to all the other water rights on that stream and the person who sells it cannot continue to use that water right after he has sold it. That should be clear, because if I sell you 100 inches of water and you use it, and I continue after the sale to use the same 100 inches of water sold, we have burdened the stream to the extent of an additional 100 inches of water and our neighbors who have a later water right to use will be hurt.
CHANGE IN POINT OF DIVERSION
While it is true that an earlier appropriator of a water right may change his point of diversion (place where he takes out the water) the place where the water is used or the purpose of the use, only and this is a most positive and rigid rule, if he does not
in any way interfere with or cause harm to the other water users on the stream. Think that over for a while and you will see the close interrelation of
water rights on a stream and the danger of change sr either by point of diversion, use or sale of water fo
rights. tait
HOW YOU CAN LOSE YOUR RIGHT tic But your water right is such a right, that it of continues indefinitely, unless it is lost in either of nc two ways. These are: 1st, by permitting an adverse SE
use or, 2nd, by abandonment. It is not easy to P( explain these two legal concepts of adverse posses- a( sion and abandonment to men who are not lawyers. CC
But this we can say: The facts cf each case will th determine its outcome. Since our Courts have held ti that the right to use water is a property right or real "1 estate (so much so that it passes with the land even
if not mentioned in the deed) so it follows if a person fe uses your water right for 10 years (now changed to to 5 years) adversely, openly, continuously, uninter- h rup tedly, notoriously and when you needed the to water, he may acquire your water right by adverse
use. Abandonment is even more difficult to apply to specific situations. It is a question of intent and act; and it does not depend on your failure to use the water for a certain number of years. You could lose your water right by abandonment in the period of 24, 48 or 72 hours. For example, suppose you went away and left the land on which the water was used, and at the time you left made known your intention to leave and to abandon the use of the water, and stated you did not intend to return. Just as length of time is not the controlling factor, a per-son might not use his water for a period beyond 10 years, but if that ten year period covered a time when there was no intent to abandon, no need for use of the water, still there would not be abandon-ment of the water right.
DITCH AND WATER RIGHT ARE SEPARATE A ditch right and a right to use water (water right) are separate and distinct. The abandonment of one does not necessarily mean the abandonment of the other. There is a relationship between the ditch right and a water right that must be mentioned, and that is that the size of the ditch through which the water is conveyed and the amount of the water right, as determined by the person's needs and facilities, have a definite connection. So if the needs of the owner of the water right is larger than his means of diversion (ditch), then the size of the ditch limits the amount of the water he may use; if the size of his ditch is larger than the amount of water he needs for beneficial use, then his needs
HOW MUCH WATER
When we talk about the "duty of water" we speak of the amount of water reasonably necessary for the proper irrigation of a tract of land. In Mon-tana, almost from the beginning of water law cases, it has been considered that in ordinary soil condi-tions, with an average length of ditch, that an inch of water per acre is the required amount. This is not a static thing and may vary in case of great seepage, evaporation, and land that is sandy and porous, and a long ditch, requiring more and then again in case of a large field under more favorable conditions requires less. But it is the standard in this state and any variations must be justified by the peculiar conditions then and there existing. "Inches" means, of course, miner's inches; the statutory rule in Montana as to measurement is cubic feet per second of time; a cubic foot of water is equal to 40 miner's inches. One cubic foot flowing 12 hours will amount to one acre foot, or enough water to cover one acre of land one foot deep.
SUMMARY
1. A person with a water right does not own it; he owns only the right to the use of it. It is a property right and is protected by the law.
2. This ownership of the use of a water right means a person's use is for a beneficial purpose, use for proper irrigation, and to the extent of his legitimate need in each season, and in relation to the other owners of water rights on the particular stream.
3. Water rights are acquired in Montana in two ways: (1) by rules and customs of the early settlers; completed ditch for some useful and beneficial pur-pose; (2) by rules of posting and filing notice with the doctrine of "relation back."
4. Water rights can be lost in two ways: (1) Adverse use or (2) abandonment. Both adverse possession and abandonment are legal concepts and there is no rule of measurement; each determined on the particular facts.
5. A ditch right and a water right are separate and distinct rights. There is this relation, however, as to the amount of water that may be used; if the ditch is larger than the water right, then the needs measure the water, if the water right is larger than the ditch then the ditch measures the water.
6. "Duty of water" is the amount reasonably necessary for the proper irrigation of a tract of land. The standard accepted by our Supreme Court is one inch to the acre; there is, however, no magic in this and it may be more or less, depending on the local conditions.
WATER MEASUREMENT
By H. L. Dusenberry, Irrigation SpecialistMontana Extension Service
In order to comply with the Montana laws on water rights, it is necessary to measure water at the point of delivery. This means every water right owner must have at least one measuring device to comply with the law. It is the obligation of the water right owner to acquire, install and maintain the measuring device. The District Judge can, at anytime, instruct the ditch rider to refuse delivery of water to any water right owner who does not install an accurate measuring device.
There are several types of measuring devices manufactured and sold commercially which are easy to install. The type of device you need will depend on the amount of water to be measured, grade of the ditch and other situations. You should consult your ditch rider, Soil Conservation techni-cian or county agent for advice on what will best serve your needs.
If you want to build your own measuring device, ask your county agent for plans and assistance or write to Extension Service at Montana State College, boLemcm, Montana for publications on this subject. A weir or parshall flume or measuring gate can be built of wood if you do not want to invest in corn-mecial equipment. It should be understood that wood structures should be treated to prevent rotting and even then they will only last a few years. Whether you build your own or buy commercial pro-ducts, the installation may require technical assist-ance. The structure and installation must be fitted to local conditions.
There are many devices in use which were properly built but very inaccurate because they are installed wrong. This is particularly true of weirs. Many weirs loose their accuracy as the amount of water pasing through the weir is increased. This can be corrected by widening the pond above the weir and raising the weir higher. The depth of the water (H) going over the weir should never exceed
V2 (preferably 1/2) the width of the weir opening for
accurate measurements. Parshall flumes are fre-quently set too low for free flow yet no correction is made for submergence. Steel parshall flumes can be purchased ready for installation. If, at all possible, this flume should be set high enough in the ditch to obtain free flow. This means the water level in the down stream section is less than 70 percent of the water level in the up stream section at the gauge or well. This can be checked by meas-uring the depth of water at the gauge, then obtain-ing the difference in water level between the
up-I. ....MMIN
METAL PARSHALL FLUME
stream and downstream sections of flume. To get this, measure down from the top of the flume at the gauge to the water level and also from the top of the flume to the water level just below the throat. This assumes, of course, that the top of the flume is level throughout its length. The difference in these two measurements should be at least 30 percent of the depth of the water at the gauge. If this difference is less than 30 percent, the flume is submerged and a correction should be applied to the gauge read-ing. For submergence correction see Montana Ex-tension Service Bulletin M-280. This can be obtained frcm your county agent. If ditch banks permit, it would be better to raise steel or wood flumes to a point where they are not submerged. Then the gauge reading will not need correction.
By way of summary, remember these three points: 1. Build or buy the kind of device which fits your needs. 2. Make sure it is installed to give correct measurement. 3. Learn how to read the
NEWS BULLETIN
Montana Reclamation Association
OFFICE OF THE SECRETARY — P. 0. Box 2382 GREAT FALLS, MONTANA 59401
SEPTEMBER, 1964
TIBER RESERVOIR PAYOFF
CONTINUES TO INCREASE
By Bureau of ReclamationThe Bureau of Reclamation's Tiber Reservoir on the Marias River, situated in the undulating glacial plain of North-central Montana, has rapidly developed since 1956 into one of the most widely used recreational water playgrounds in the State. Several million rainbow trout pulled from the reservoir waters in the past few years have provided enjoyment for nearly 100,000 fishermen, and thousands of sightseers, pick-nickers, campers, swimmers, boaters, water skiers and hunters have all benefited from the blue-water lake behind Tiber Dam. When flood waters ravaged parts of Montana during the tragic week of June 7, 1964, the flood-control benefits of Tiber Reservoir were particularly emphasized. Almost the entire flood-flow of the Marias River was absorbed by the reservoir, in-cluding water released when the privately owned Swift Dam on Birch Creek and the Bureau of Indian Affairs' Lower Two Medicine Dam failed. During the flood, a peak of 154,000 c.f.s. (cubic feet per second) was stored in Tiber Reservoir with less than one per cent, or 1,200 c.f.s., being released from the reservoir during storage. After peak floods of the Teton and Missouri passed Loma, releases were increased to 10,000 c.f.s. This discharge was entirely contained within the river channel. An uncontrolled flood would have destroyed Loma and greatly damaged the structures in the valley.
Municipal water has also been provided by Tiber Reser-voir. There was new life for a community when, in September 1962, Chester, Montana, started receiving a new supply of drinking water. To mark the occasion, the bands played — the parade went right down main street and the high school audi-torium reverberated with golden oratory. There was a football game, a dance, movies without admission charges, and special discount offerings by the town merchants. The entire community and the surrounding area of Liberty County were full to the brim with festivities. There was even a sound truck, with its giant amplifiers and speakers echoing the town's sentiment in its message: "Latest best seller—sparkling aqua—the drink that made Chester famous."
Indeed a gala air had gripped the town and a very proper celebration was in progress. All was the outpouring of recogni-tion and gratitude of a community and its residents at its suc-cess in finally obtaining an adequate and satisfactory munici-pal water supply, and that water supply came from Tiber Reservoir.
The foregoing is only a brief resume of the accomplish-ments brought about by the construction of Tiber Dam, com-pleted in 1956. The multiple-purpose reservoir, located on the Mcrrias River, was created by the construction of Tiber Dam, about 14 miles south of Chester. The reservoir, with a-capacity of 1,337,000 acre-feet, is 35 miles long and 21/2 miles mide. It has a water surface of more than 22,000 acres and a shore line of about 78 miles.
Planning for a multiplepurpose development on the Marias River goes back several decades.
During the drought decade of the 1930's the Bureau of Reclamation began a comprehensive study of water-resource developments in the Missouri River Basin. Out of this
investiga-Harold E. Aldrich
HAROLD E. ALDRICH DIRECTOR
OF RECLAMATION'S REGION 6
Harold E. Aldrich, who has served with the Bureau of Recla-mation for 25 years, last April assumed his new position as Regional Director of Region 6 with headquarters at Billings, Montana. As director of the Bureau of Reclamation's Region 6, Mr. Aldrich has the responsibility for project development, construction, power marketing and operation and maintenance of the Missouri River Basin developments in the region which compromises Montana, North and South Dakota, and northern Wyoming. Mr. Aldrich succeeds Bruce Johnson, now serving as Planning Officer of the Bureau's newly created Missouri River Basin Planning Office at Omaha, Nebraska.tion emerged a comprehensive and coordinated plan for the conservation, control, and use of the water resources of the Basin. This plan of development, popularly known as the Pick-Sloan Plan, was authorized by the Flood Control Act of
1944.
Preconstruction surveys for the Lower Marias Unit were begun in 1945, and in 1946 the Marias Improvement Associa-tion, composed of representatives from Hill, Choutectu, Liberty, and Cascade Counties, was formed to actively sponsor the unit. As planned, ,water from Tiber Reservoir would have been released to the Marias Canal through headworks adjacent to the left abutment of the dam. The Marias Canal and its system of main branch canals would have irrigated 76,600 acres by gravity and 33,400 acres by pumping. Construction of Lone-some Lake Dam, an offstream structure for collecting return flows and waste water from the Marias Canal systems, would have permitted irrigation of an additional 17,000 acres in the Milk River Basin (Big Sandy Valley) in Choutecru and Hill Counties.
In the Interior Appropriation Bill for fiscal year 1949, Con-gress appropriated funds in the amount of $750,000 to initiate
Page Two MONTANA RECLAMATION NEWS BULLETIN
MONTANA RECLAMATION ASSOCIATION ANNUAL MEETING
October 18, 19, 20, 1964 Rainbow Hotel Great Falls, Montana
PROGRAM Sunday, October 18
9:30 A.M.—Registration.
2:00 P.M. to 6:00 P.M.—Tour of Malmstrom Air Force Base, SAGE Facilities including a Scramble—Director, Lt. Duffy. Group will be picked up at the hotel and returned there. Ladies especially invited. 8:00 P.M.—Thirty minute film, "The Missouri River"—Mike
Drazich.
8:30 P.M.—General Discussion Meeting—Pres. Sanborn pre-siding.
Monday, October 19 9:00 A.M.—Registration.
10:00 A.M.—Opening Session—Pres. Sanborn presiding. Address of Welcome—Mayor Marian Erdmann. Remarks Floyd Weimer, President of Great Falls
Chamber of Commerce.
President's Message—Fred Sanborn. Secretary's Report—Everett Thomas. Treasurer's Report—Ole Bergeson.
National Director's Report—Wesley D'Ewart. Watershed Program Progress Report—H. D. Hurd. 12:15 P.M.—Luncheon Meeting with Kiwanis Clubs.
Ladies' Day—Entertainment.
George Roskie, Forest Supervisor, will present pictures and films and facts on damage to our forests caused by the 1964 flood.
2:00 P.M.—Second Session—General Meeting—Vice Pres. Mark Etchart presiding.
Remarks on activities of the past year—D. P. Fabrick, Past National Director.
Address—Harold Aldrich, Regional Director of Bureau of Reclamation.
Explanation of the "160 acre limitation" on Reclamation projects—A. E. Bielefeld, Field Solictor, Dept. of In-terior.
Question and Answer Period. 6:30 P.M.—Annual Banquet.
"Feed and Entertain Us Or We Die"—Shakes-peare.
Del Rose Trio.
Rev. Edwin K. Roberts. Tuesday, October 20
9:00 A.M.—Business Session—Pres. Fred Sanborn presiding. Reports:
Convention Committee. Resolutions Committee.
Selection of time and place for 1965 meeting. Election of Directors and Officers.
BOARD OF DIRECTORS 1964
District No. Director Address Counties
1 Dean Olson Wolf Point Daniels, Roosevelt, Sheridan 2 Mark Etchart Glasgow Valley, Phillips
3 J. George Pitch Harlem Blaine, Hill, Chouteau, Liberty 4 Thomas A. Gibson Valier Glacier, Pondera, Toole 5 Fred Sanborn Great Falls Cascade, Teton, Judith Basin 6 Bert Johnson Whitefish Flathead, Lincoln
7 Ray Loman Ronan Lake, Sanders
8 C. P. Fickes Missoula Ravalli, Missoula, Mineral
9 R. C. Setterstrom Butte Granite, Silver Bow, Deer Lodge, Powell 10 John J. Baucus Helena Lewis & Clark, Jefferson
11 0. A. Bergeson Dillon Beaverhead, Madison 12 John G. Buttleman Willow Creek Gallatin, Broadwater 13 William D'Ewart Wilsall Park, Meagher, Sweetgrass 14 Clark Carter Lewistown Fergus, Petroleum, Garfield
15 0. P. Balgord Lavina Golden Valley, Wheatland, Musselshell 16 Gene Coombs Billings Carbon, Stillwater, Yellowstone
17 P. M. Rosenow Hardin Big Horn, Rosebud, Treasure
18 Elmer Brink Miles City Carter, Custer, Powder River, Fallon
19 Axel Persson Sidney Richland, Wibaux, McCone, Dawson, Prairie
1964 OFFICERS
MONTANA RECLAMATION NEWS BULLETIN Page Three
We,
'
Bureau of Reclamation Photo
Tiber Dam and Reservoir Looking Upstream
Bureau of Reclamation Photo
Trout from Tiber Reservoir
TIBER RESERVOIR PAYOFF . . .
(Continued from Page 1)construction of Tiber Dam. The starting of construction in fiscal year 1949 was deferred, however, pending tangible demonstra-tion by the landowners of their desire for the construcdemonstra-tion of the irrigation facilities to be served from Tiber Dam, as well as sub-stantial evidence of their willingness to form an irrigation dis-trict and to enter into a repayment contract. This evidence was obtained in June 1950 when the Mcrrias Irrigation District was formed and the Commissioners passed a resolution stating their willingness to work toward securing a repayment contract. The irrigation district, formed June 7, 1950, included 79,500 acres of the proposed 127,000-acre unit. The area not included was largely in the southern part of the unit, locally known as the Kenilworth area.
Due to the international situation during the early 1950's construction appropriations of civil public works were deferred and the prime contract for Tiber Dam and dike was not awarded until September 15, 1952. Ground - breaking cere-monies were held September 30, with President Harry S. Truman delivering the main presentation.
Repayment contract negotiations between the Federal
Gov--gar illatilasiiiss
Bureau of Reclamation Photo
Tiber Dam from Upstream Side
..441 Bureau of Reclamation Photo
Boat Landing Area, Tiber Reservoir
ernment and the irrigation district continued until May 1955 when it was apparent that the petition sign-up fell short of 60 percent necessary of confirmation of the repayment contract. As a result, it was decided in May 1955 that due to lack of favorable interest for irrigation on the part of the majority of landowners, no further effort should be made at that time to secure a signed contract, and that the Lower Mcrrias Unit would remain on the shelf until such time as the landowners of the unit agreed to actively support the proposed development.
The failure in interest in irrigation development was at-tributed to the fact that ample moisture occured during the period of negotiations, coupled with a reluctance to change from wheat-farming operations to irrigation. The Bureau of Rec-lamation requested funds for fiscal year 1957 to complete the definite plan report and irrigation investigations, but they were denied. The House and Senate Appropriations Committees re-quested that investigations stop "until farmers in the area ex-press a greater interest in irrigation."
In 1962 drought, public enemy No. 1, the old foe of pros-perity from the Dust Bowl days, reappeared on the scene. During the months prior to May 1964, a severe drought held the Lower Marius area in its grasp. Although broken by heavy
Page Four MONTANA RECLAMATION NEWS BULLETIN
ANNUAL MEETING MONTANA RECLAMATION
ASSOCIATION OCTOBER 18-19-20
TIBER RESERVOIR PAYOFF . . .
(Continued from Page 3)
rainfall in May and June, interest in irrigating the acres of the Marias area had continued to reawaken.
The Bureau of Reclamation has every intention of using the waters of Tiber Reservoir for the greatest possible benefits for the people of Montana. As emphasized, the reservoir has been utilized for recreation, fish and wildlife conservation and river regulation, and tremendous benefit has also been realized through the flood protection the reservoir has afforded.
Recently the Bureau has completed a preliminary study that shows that transbasin diversion of Marias River water, stored in Tiber Reservoir, to irrigate lands of the Milk River Basin in the northern part of Montana, may be feasible.
It was during the latter part of 1961 that landowners in the Milk River Basin began to consider the possibility of supple-menting their water supply, and developing new lands, within the Milk River Valley with water stored in Tiber Reservoir.
The Milk River Project is one of the earliest Bureau of Rec-lamation projects. It was started in 1906 and water was de-livered in 1911. Its 120,000 irrigable acres have been short of water in recent years. Diversion of Marias water would sub-stantially assure the Milk River Project of an adequate water supply and also provide water to irrigate about 50,000 ad-ditional new Milk River acres.
In addition to the proposal for transbasin diversion of Marias water, several other proposals have been thought about in recent years. The Hi-Line Water Users Association, rep-resenting the towns of Joplin, Inverness, Rudyard, Hingham, Gildford and Kremlin, have been working on means of obtain-ing domestic water from either the Marias or Milk Rivers. The association in the past has considered negotiating with Chester to obtain water through its system, pumping water from Tiber. Further utilization of the Marias water is possible through power production for use in the integrated Missouri River Basin Power System.
In conjunction with diverting waters to the Milk River for irrigation, remaining water at Tiber Reservoir may be sufficient to justify the development of a power generation installation. Studies have shown that the largest net benefit will result from a 10,000 kw powerplant. An installation of this type at Tiber Dam would produce nearly 27 million kw-hr of electrical energy annually.
As stated, renewed interest in the Lower Marias Unit was shown by landowners in 1963, apparently because of the low rainfall that occurred during the past three-year period. A steer-ing committee was established and petitions were circulated among the landowners, requesting the Bureau of Reclamation to investigate the possibilities of irrigation in the area involved. As of this date, the Bureau of Reclamation has received petitions signed by the landowners having a total of 55,000 acres. The lands designated in the petitions are located through-out the former active Marias Irrigation District, with three areas, Black Coulee area, North Kenilwood area and Big Sandy-Box Elder-Havre area, being the major blocks.
Montana' 's Senators Mike Mansfield and Lee Metcalf, were successful in securing the additional funds for the expanded Marias-Milk investigations included in the appropriation bill.
As a result of renewed interest being demonstrated for irrigation on large blocks of land in the Lower Marias Unit, the Bureau is expanding its studies of the Marias-Milk program
Theme of meeting: "Montana Water—Use It or Lose It." Accelerated Watershed Development
Dependable Flood Control Impoundments Coordinated Reservoir Systems
Maximum Irrigation Effort Water Reserves for Industry Water Abundance for Recreation
The above are some of the considerations which today are dictating Montana's water challenge. Shall we Use or Lose our great water resource?
The U.S. Bureau of Reclamation, the U.S. Department of Agriculture and the Corps of Army Engineers all have im-portant programs and functions for water development and control at the national level. Here in Montana, the State Water Conservation Board has done an outstanding job in the develop-ment of smaller irrigation projects at the state level. The Mon-tana Reclamation Association has for many years been the proponent of sound water development in the state.
On October 18-19-20, the Annual Meeting of the MRA will bring together federal and state agancies concerned with sound water development. Important issues meaning so much to Montana's water resources will be part of the conference study and discussion.
The Great Treasure State is rapidly losing forever to down-stream demands, the right to her most valuable treasure— water. With that treasure originating in Montana, should not we make every effort to establish first, rightful use to it? In flowing to downstream users, that water is saying: "Establish a prior right to me and I will be forever obligated to you since Montana isn't interested." The theme of the meeting is indeed timely. "Use it or Lose it."
Recent Montana floods, their devastation, their costs and their prevention will be on the agenda for the meeting. The Bureau of Reclamation is already well along in its reconstruc-tion effort in the flood areas.
The meeting will include a panel discussion of the statu-atory 160-acre limitation as applicable to federal irrigation projects. The purpose will not be to challenge the law, but rather to explore the possibilities of its modification to better fit present-day conditions.
Regional Director, Harold Aldrich of the Bureau of Rec-lamation will address the sessions and will be available for individual or group conferences. Many members will remem-ber Harold as Manager of the Upper Missouri Projects Office in Great Falls at the time the Lower Marias Irrigation Project was first started.
The question of changing the name of the Association will, by order of the Board of Directors, be considered at the busi-ness meeting.
This annual meeting of the MRA in Great Falls, October 18-19-20, will be interesting, informative and worthy of atten-dance by all members; and naturally of course the ladies are cordially invited. Special entertainment is being provided for them.
drainage problems were incomplete and new studies will be required, using new field techniques.
Reclamation is an investment in the future of America; it puts to work the renewable and precious rescource—water, water that is the key to life and prosperity. In Tiber Reservoir there is water to be used and the new studies and investigations by the Bureau requested by local people are designed to make full use of the waters of the Mamas. It is in this way "That full
MONTANA RECLAMATION NEWS BULLETIN Page Five
Air View of Tiber Dam and Reservoir
View of Recreation Area Taken Near Tiber Dam
Bureau of Reclamation Photo
U
Page Six MONTANA RECLAMATION NEWS BULLETIN
Results of a Successful Fishing Trip on Tiber Reservoir
MONTANA RECLAMATION NEWS BULLETIN Page Seven
A. D. McDermott, Director State Water Conservation Board
THE EMPHASIS IS ON WATER
By A. D. McDermott
In the emphasis on water, whether we speak from local use, municipal county, state or national viewpoint, there is in-creasing concern for the proper utilization and comprehensive planning that will ensure efficient and adequate use.
Speaking nationally, we only have to glance at the more important pieces of legislation that the present session of Congress has been confronted with. First, we might briefly men-tion these bills but will make no attempt to go into full detail as this would entail a too lengthy discussion.
S. 1111, The Water Resources Planning Act, has been passed by the Senate and at present is in the House Interior and Insular Affairs Committee. A Water Resources Council would be estab-lished to be composed of the Secretaries of the Interior, Agri-culture, Army, and Health, Education and Welfare and the Chairman of the Federal Power Commission. The Council shall maintain a continuing study of water requirements. It also shall review work of national or river basin plans, making recom-mendations to the President. The Council shall review plans or revisions of plans submitted to it for development of agricul-ture, energy, industrial production and the effects on fish and
Nevada Creek
0. A. Bergeson
MERITORIOUS SERVICE AWARD
PRESENTED TREAS. BERGESON
Many years of faithful service to the Montana Reclamation Association was acknowledged at the 1963 annual meeting in Billings by the presentation of an award placque for meritor-ious service by State Senator Oscar Balgord to 0. A. "Ole" Bergeson. Senator Balgord called attention to Ole having been a charter member of the MRA, having never missed a meeting and being dedicated to the development of Montana's water resources.
This award placque is the second ever issued by the MRA. The other having been given to Otto Christinson of Glasgow, but was not presented until after his death.
ATTENTION ALL DISTRICT
DIRECTORS
All district quotas are due at the time of the annual meeting which is October 18th, 19th, 20th, at Great Falls.
We must keep our finances in satisfactory shape if we are going to meet our commitments and maintain a good program. Please do everything you can to collect the quota for your district, if you have not already done so, and turn the money in to Treasurer Ole Bergson at the annual meeting.
Fred Sanborn, President
State Water Conservation Board Projects
Page Eight MONTANA RECLAMATION NEWS BULLETIN wildlife and recreation usage. It shall also authorize
establish-ment of River Basin Commissions which would serve as the principal agency for the coordination of plans. The Commis-sions would be composed of a Chairman, named by the Presi-dent, one member from each Federal agency, one member from each State and one member from each interstate agency. The States would elect a vice chairman. It also authorizes $5,000,000 per year for ten years to be appropriated to the Water Resources Council for grants to states to assist them in comprehensive land and related water development. Allotments to states would be on the basis of population, land area, need, and water and related land resources planning and financial need. This aid would constitute no more than two-thirds of the cost of the comprehensive planning.
Probably in anticipation of the passage of this bill which, incidentally, is purported to have the endorsement of forty-four states as well as national groups, the Missouri Basin Inter-Agency Committee in February of 1963 set up a Subcommittee on Comprehensive Basin Planning with the Corps of Engineers chairing the Committee. The Subcommittee considers that the Comprehensive Framework Plan for the Missouri Basin would consist of studies of an area that provide long-run economic pro-jections of economic development, translation of such projec-tions into demands for water and related land resource uses, hydrologic projections of water availability both as to quantity and quality, and projections of related land resource availa-bility, so as to outline the characteristics of projected water and related land resource problems and the general approaches that appear appropriate for their solution.
The Committee has instructions to project the water re-source and land development availability needs and related resource development to the years 1985, 2000 and 2020. At this time the outline has been agreed upon to the extent that it is considered substantially firm with, of course, some allowance for flexibility. This study is to be projected over a six year pe-riod to the year 1970 and the Federal agencies are requesting substantial appropriations fai. this project. The states, although working along with the Comprehensive Basin Planning, have not committed themselves to a definite financial obligation, but it is inevitable that each state will have to contribute in order to participate and partake in the meetings. A contract has been negotiated with the Federal Office of Business Economics to set up a controlled data processing so that information will be readily available.
S. 1275 clarifies the relationship of the interests of the United States and of the States in the use of waters of certain streams, commonly called the Federal-States Water Rights Bill. H. R. 9032, cited as the Federal Water Project Recreation Act. The purpose of the legislation is to provide uniform policies with respect to the treatment of recreation and fish and wildlife benefits and costs in connection with Federal multiple-purpose water resource projects. It provides a schedule of non-reimburs-able costs that amount to twenty-five percent on projects up to ten million dollars and depreciates to seventeen million on project costs of one hunderd million with a maximum limitation of twenty-eight million on higher cost projects.
S. 2, The Water Resources Research Act of 1963, has now been enacted into law. It authorizes the Secretary of the In-terior to make grants to States of $75,000 in the fiscal year 1965, $87,500 each in the second and third years and $100,000 annually thereafter to carry on water resources research at a state college or university. The Secretary is authorized addi-tional funds to match state monies for research, graduating with one million for 1965 to five million in 1969 and five million annually thereafter.
H. R. 3846, known as the Land and Water Conservation Fund Bill. A special fund to be set up would be financed on a pay-as-you-go basis by nominal user fees paid by visitors to national parks and other federal recreation areas, by federal tax now paid on motor boat fuel and receipts from the sale of surplus federal land. About sixty percent of the fund would go to state and local governments at matching grants to help
way associations and lumbering interests. It has passed the house and is now in the Senate Committee on Interior and Insular Affairs and should be acted upon by the time this is printed.
S. 649, Federal Water Pollution Control Act. has passed the Senate and is now in the House. Representatives of some industrial groups and many state health agencies are opposing provisions in the bill which would allow the Secretary of Health, Education and Welfare to establish standards of water quality for interestate waters. Some believe that this provision would indirectly give HEW first priority on the use of water. Generally, conservation organizations endorse this bill but some also have reservations about this authority, fearing that the standards would be set at levels too low for effective water pollution control, and there is quite a divergence of opinion being expressed by witnesses before the House Committee on Public Works. Most controversial are those sections which would upgrade the Federal program to status as an Administration separate from the Public Health Service, and establish a system for setting Federal interstate water quality standards.
Probably closer to home is the Garrison Diversion Unit which would eventually place under irrigation one million acres in North Dakota. H. R. 1003 is to authorize funds for the initial construction of facilities amounting to 250,000 acres. The diver-sion would take an estimated three to four million acre feet from the average of fourteen million acre feet which leaves Montana on the Missouri at the North Dakota border. The pro-ject itself is sixty per cent in the Missouri Basin watershed and the balance of forty percent in the Red River of the North which eventually flows into Canada.
H. R. 9521 authorizes additional funds for continuing the Missouri Basin program (Pick-Sloan Plan). Hearings were held by the Senate Subcommittee but are not complete. A provision in this bill which is creating quite a furor, especially in the Senate, reads as follows: "No part of the funds hereby author-ized to be appropriated shall be available to initiate construc-tion of any unit of the Missouri River Basin project whether included in said comprehensive plan or not, which is not hereafter authorized by Act of Congress." This would in effect deauthorize approximately fifty projects in Montana which were originally approved under the Pick-Sloan Act. Some projects still have considerable merit and, of course, others included are not now considered feasible.
In passing, it might be mentioned that the barge interests and the Corps of Engineers are pushing hard for the completion of the nine foot channel to Sioux City, Iowa. The original con-struction was to be finished in 1969 but it is contemplated that it might now be finished by 1967. Also, the barge people are concerned with the lack of water below St. Louis in the Missis-sippi in the winter months and are working towards major releases, probably on the lower main stem reservoirs to main-tain a higher level of water on the Mississippi so that their barges will not become grounded during the winter months.
These are mentioned to show that the national emphasis is definitely on water and any priority of use in the states below will affect the available supply that might be approp-riated for future use in the State of Montana.
In Montana we recognize this fact and are enthusiastic about irrigation development but we seem to be in a bind, due to current budgetary requests in meeting the growing costs of education and other governmental services, to be able to pro-vide funds for the construction of storage facilities and diversion works. It is anticipated that perhaps a state conservancy law might be the answer. It would be placed before the legislature for enactment on a permissive basis. Thus, an area in which a project might be proposed could vote on whether or not they wished to finance a water resources development. Using this approach, it is assumed that the legislature would not find it objectionable.
MONTANA RECLAMATION NEWS BULLETIN Page Nine have endeavored to update the information on various projects
which we thought might be feasible. The following projects are presently under investigation. Others undoubtedly will be in-vestigcrted as we ascertain if they could possibly be included on a feasible basis.
Rosebud River Project, McGinnis Creek, Ashland Diversion and Hotchkiss Ditch, Rosebud County; Spring Creek and Cotton-wood Creek, Fergus County; Beaver Creek, Wibaux County; Little Beaver Creek and Box Elder Creek, Carter County; Klien-schmidt, Powell County; Lake Mary Ronan, Lake County; Sheep-Newlan Project, Dorsey Project and Benton Creek Pro-ject, Meagher County; Five Mile and Rock Creek (Elbow Creek), Carbon County; Big Sheep, Rattlesnake and Grasshopper Creek, Beaverhead County; South Boulder and South Bench Project, Madison County; Rock Creek, Valley County; North Chinook Project, Clear Creek Project and W. F. Milk River (Lodge Creek), Blaine County and Shields River, Potter Creek
Project and Bracket Creek, Park County.
Montana was the first western state to put emphasis on water. A special session of the legislature in late 1934 set up the State Water Conservation Board. During the late thirties many irrigation projects were built. Subsequently, during the second world war a suspension of activities naturally occurred, but several projects were built from the end of that period to date.
We are basically in need of a program of feasible projects to present to the legislature and, secondly, a method of financ-ing the program once it is established. The present policy is that the full construction costs shall be repaid, without interest, by the farmers and ranchers using water. We are endeavoring to have other state agencies participate in the construction costs, particularly the Fish and Game, but it remains to be developed if and when we obtain projects that are considered feasible.
The value of the economics attached to our State Water Conservation Board projects may be illustrated by an analysis of two of our projects, the North Fork of the Smith River in Meagher County and the Broadwater Missouri project in Broad-water County, prepared by the Department of Agricultural Economics at Montana State College, Bozeman. In analyzing the data contained in this report it could be assumed that per-haps the results obtained are more on a conservative side than the optimistic side due to the fad that the information was received by questioning the various farmers and ranchers under the individual projects.
This will show primary benefits, the value of products or services directly resulting from the project, net of all associated
N. Fork Smith River
costs incurred in their realization, and from a local or regional viewpoint, secondary benefits would include analysis of the local water development and its effects on the local economy. Secondary benefits may either "stem from" or be "induced by" the project. "Stemming from" may be defined as those benefits that arise from the processing of goods produced on the project. "Induced by" benefits are those that result from the increased economic activity stimulated by the expenditures by those who produce the immediate products.
Primary costs—the value of the goods and services needed for the establishment, maintenance and operation of the project and to make the immediate products of the project available for use or for sale.
Under the Smith River Project of 11,000 acres, the crops grown had a gross income per acre of $33.89 although 9,000 of the 11,000 acres of storage is for a supplemental supply. In most years the users realize just how beneficial this water is to their operation and few crops would have been harvested with-out it. It is the consensus of opinion of those interviewed that over a period of years their crop yields are approximately twice of what they would have been without the supplemental water. Gross annual primary benefits, or income derived from the project water, would be $127,130.00. This would consist of 9,000 acres at $16.95 plus 2,000 acres at $32.29. The net return to farm operators in the United States for 1961 was 32 percent of gross farm income and it is assumed that this would repre-sent the net income which would then make an annual sum of $69,264.00.
If the direct to indirect benefit ratio of 1 to 1.35 derived in the Montana State College study is used, there would be $93,-479.00 of indirect local benefits created as a result of the water project.
On land value, as stated by the water users, it is $125.00 per irrigated acre to compare to $25.00 per acre for grazing land and, of course, substantially increases the tax base for the local county. Thus, over a twenty-five year span the direct benefits would be $1,731,600.00. The indirect benefits over the same period would be $2,336,975.00 for a total of $4,068,575.00. The present state investment in the Smith River Project amounts to $80,218.95 and there is no more water available for sale. The balance due, which will be paid to the general fund, on the water purchase contracts is $70,708.50.
Another project, the Broadwater-Missouri, which is supply-ing irrigation water to approximately 15,000 acres of land, represents a primary supply to approximately 7,000 acres of new land and a supplemental supply to 8,000 acres. The gross primary benefits, or income derived from the project per year
State Water Board Projects
Page Ten MONTANA RECLAMATION NEWS BULLETIN would approximate $830,240.00. This would consist of 8,000
supplemental acres at $38.12 per acre plus the 7,000 primary acres at $75.04. Using the same 32 percent of gross income, it would therefore amount to direct benefits of $264,847.00 or $6,621,175.00 for a total of twenty-five years, the length of time the project has been in operation. On the indirect benefits ratio the sum would be $357,543.00, amounting to $8,938,575.00 over a twenty-five year span. The total for both benefits for this period would be $15,559,750.00. The average value of irrigated land, as stated by the water users, was $193.22 compared to $51.24 for non-irrigated farm land and $12.00 for grazing land. The state's investment in this project is $295,818.25 and the value of the present water purchase contracts is $287,992.25. There are 14,690 acre feet of water still available under the project which when sold, if at the present price, would amount to $401,037.00.
These figures unquestionably endorse the farsighted wis-dom of those who conceived and established the State Water Conservation Board, and of those who subsequently made the decisions on the construction of irrigation projects in the State of Montana. Their regenerative quality and the enhancement to the local, state and national economy cannot be denied.
There is some question as to how active the future opera-tion of the State Water Conservaopera-tion Board shall be. Our establishment of a justified building program is basic and we are attempting at the present time to come up with feasible projects. The legislative attitude in the past few sessions has been somewhat complacent, possibly due to the fact that we have not been able to present them with a program of projects that might be considered really feasible and also the fact that we have been operating under a tight budgetary policy.
Other thoughts that have been considered in the legis-lature, that I am sure all farmers and ranchers and particularly those under our projects and members of the Montana Recla-mation Association should give conscientious consideration to, have indicated that we should possibly eliminate our con-struction crew and maintenance equipment. This would place any repairs, including emergencies, under a contract basis. At the present time in order to let a contract the law provides that on estimates over $1,000.00 sealed bids must be obtained and advertisements carried in local newspapers for three suc-cessive weeks. The farmers and ranchers under any project could not stand a waiting period of this length before taking corrective steps to repair the damage and put the project into operation again. If, in some cases, the waiting period could be accepted by the associations, it could possibly work if there are contractors in their immediate vicinities, and again it might not work if the contractors have their equipment busy on other jobs in their particular area or other areas of the state. Other associations may not have small contractors available in their area. Usually emergency repairs run in the vicinity of $2,000.00 to $12,000.00 and on rare occasions could be higher. There is sometimes a reluctance on the part of contractors to move heavy equipment any considerable distance for this small amount of work.
The other matter which was raised at the last session of the legislature, and will undoubtedly be placed before the coming session, is the consolidation of the State Water Conser-vation Board, the State Engineer's Office and the State Planning Board. This was the context of a bill presented at the 1963 session. Consolidation, of course, in a legislative session can go many ways and vary with the departments that may be included. A Department of Natural Resources might be recom-mended that could include all agencies that have anything to do with water such as the Grass and Soil Conservation Boards, State Engineer, State Water Conservation Board and the Fish and Game Commission.
The State Water Conservation Board has clearly and definitely established the worthiness of their program to the State of Montana and has been the envy of every other western
Everett Darlinton
STATE ENGINEER
-WHAT'S THAT?
By: E. V. DarlintonEverett Darlinton was born in Gallatin County and raised in Bozeman where he graduated from Montana State College
in 1941 with a degree in Industrial Engineering. He was em-ployed by the General Electric Company in New York State for a period of 10 years but, wanting to return to Montana, he came back to Bozeman where he worked in retail business until 1958. In 1958, he was employed by the Montana State Planning Board in Helena as its Industrial Engineer and while with the Planning Board, he became its Assistant and Acting Director.
On March 7, 1963, he was appointed State Engineer of Montana succeeding Mr. Fred E. Buck, who retired.
* * * * * *
In my travels throughout Montana, I am frequently asked one of the following three questions:
1. Why don't you fix our roads?
2. What State buildings are you going to approve for construction next?
3. How do you like working for the Water Board? Surprising as it may seem to those not familiar with our office, none of these questions apply to the State Engineer.
The State Engineer's Office was created in 1903 to assist in the formation of irrigation districts and to become conversant with the State's water resources. Therefore, the State Engineer's primary function is to administer Montana's water and as 000.00. Idaho, even though they have a State Engineer's Office, recently established legislation to set up a Water Conservation Board as a separate department which is patterned very defi-nitely along the lines of the Montana State Water Conservation Board. The Idaho setup was probably engendered by increas-ing pressure for the release of water out of the Columbia Basin to the southern areas of the United States.
Man's chief concern has always been water, and while we have millions of acre feet of water leaving our Treasure State each year, pressures for down-stream priorities will in-crease substantially each year. The emphasis then should be
MONTANA RECLAMATION NEWS BULLETIN such he doesn't fix roads nor approve State buildings, and he
is a member of the State Water Conservation Board's govern-ing commission. He is also on the commissions of the State Planning Board, the Water Pollution Council, the Water Well Contractors Examining Board, and the Governor's Advisory Council on Natural Resources. The State Engineer also repre-sents Montana on all compacts and agreements concerning waters common to both Montana and other neighboring and downstream states, as well as Canada. These agreements in-volve the Columbia River Basin with its 7 states, the Missouri River Basin with its 10 states, the Hudson Bay Drainage in Canada, and the Yellowstone River Compact between Mon-tana and Wyoming. The State Engineer reviews all projects proposed by the U. S. Bureau of Reclamation and the U. S. Corps of Engineers within the State and he is a member of the committee which regulates storage in the Missouri River Main Stem Reservoirs as well as in Canyon Ferry and Tiber. He cooperates with the United States Geological Survey in the measurement of stream flows in Montana and, upon complaint, he inspects dams believed to be unsafe and requires corrective action whenever necessary.
As Administrator of Montana's water, the State Engineer deals with the State's most valuable resource, if we assume, as we must, that our abundance of soil and air is inexhaustible. We cannot manufacture water in quantity, we have not found a substitute for it, and there is not one more drop of it available today than there was in pioneer days. However, the Nation's use of water has, and will continue to multiply rapidly, so Montana must learn to use its water wisely and fully. All of us, I'm sure, have asked ourselves what great mineral wealth, vast farmlands, and beautiful cities would mean without water! We know the answer!
As a headwaters state, Montana is blessed with an abundance of water in areas near our major streams since an average of 251/2 million gallons of water per minute (or 41 million acre-feet per year) flow out of the State. This is enough water to irrigate nearly 15 million acres of new land or to
supply water to approximately 35 cities the size of New York City! However, much of this water is not in the right place and at the right time. Although 8/10 of Montana's land lies in the Missouri River Basin, only 4/10 of our surface water is found there, and conversely, only 2/10 of our land lies in the Columbia River Basin but 6/10 of our surface water is there. These figures point out the major problem of water distribution which confronts Montana, and they illustrate our vital need to conserve water to insure that it will be available in the right place and at the right time! These surface water problems are, of course, equally applicable to our ground-water problems.
The State Engineer's prime responsibility in the field of "surface" water is to conduct a Water Resources Survey, county by county, throughout the State. This survey was initi-ated some years ago because records of our surface water rights were so confused and difficult to find. This confusion came about as the result of our antiquated surface water laws which allow a person to appropriate water from our streams in several different ways. If a stream is unadjudiccrted, the appropriator can build a ditch and divert the water he needs, hoping that no one objects or starts court action against him, or he can post a notice of intention to divert water at the point of diversion on the stream and within 20 days thereafter file an appropriation in the local Courthouse and commence con-struction of his diversion works (however, he must still hope that no one objects.) If the stream has been adjudicated, he must petition the Court to reopen the decree and all parties thereto must review his request for water before a decision is reached. Since, on unadjudicated streams, a person is not re-quired to file an appropriation in the Courthouse, the records are far from complete on the actual amount of water used and, in addition, many of the users are unknown.
As a result, it has become necessary to obtain accurate information regarding our use of surface water in Montana in order to protect the rights of each user against the claims of
Hysham—Beets, Ray Kimball Farm
Page Eleven
other users as well as to protect Montana against future claims on our water by downstream states or the Federal Government. We obtain this information by having fieldmen in the State Engineer's Office visit each County's Courthouse where they locate, in all sorts of records, whatever information has been filed throughout the years on surface water rights, and we frequently find that some of the existing records are still in one of the State's original counties rather than in the county where the water is being used.
Armed with whatever data they can obtain, the fieldmen spend the summer personally visiting each water user to de-termine what surface water rights he thinks he has. They also inspect his irrigation works and the land he irrigates and they use aerial photos to locate and describe the irrigated land. Their findings are then checked against the Courthouse records and any necessary adjustments are made. During the winter months, the fieldmen return to Helena, compile the data into useable form, plot maps using aerial photos, and then the State Engineer's Office publishes a full surface water right report on each county. Approximately two counties a year are all than can be covered by our surveys and we now have com-pleted 34 out of the State's 56 counties. However, after the State has been completed this information will need to be up-dated, especially since Montana is about the only Western State which does not have a law requiring all appropriations of "surface" water to be approved by the State, thereby per-mitting the State to know how much water is being used and where, when, and by whom, it is being used.
The State Engineer is the Administrator of our new Ground-Water Code. This code concerns the use of underground water but many people cbnfuse the word "ground water" with water that runs on top of the ground and, therefore, they think the code actually concerns "surface" water. The 1961 Legislature provided for a period of 2 years after January 1, 1962, for the filing of vested ground-water rights (all ground-water rights possessed prior to January 1, 1962, such as water wells, de-veloped springs, drain ditches, sub-irrigation, etc.). Therefore, the deadline for filing on vested ground-water rights was De-cember 31, 1963. However, a person did not lose his vested ground-water rights by failure to file within the 2-year period although, in the event of a future ground-water dispute, he may be called upon to prove his rights in court.
The only ground-water use which does not need to be filed upon is minimal household use as this has an automatic right, but it may be well to file on new wells in this category, nevertheless, since disputes over ground-water may arise in the future between users of household water.
Page Twelve MONTANA RECLAMATION NEWS BULLETIN
Bureau of Reclamation Photo
Marias River in Flood Above Reservoir
a 1957 Ground-Water Law, our office expected to receive be-tween 7,000 and 8,000 "vested right" forms under the new 1961 law. However, during the last two weeks in December, 1963, the filing rush was so great that we received approximately 38,000 "vested right" forms! Needless to say, we haven't com-piled nor catalogued the information from all of them yet! Many of the filings are on household wells, streams, and certain springs which actually are not covered by the ground-water law.
Any wells drilled, springs developed, drains dug, or land sub-irrigated after January 1, 1962 must be filed upon when completed in order to establish a ground-water right as, otner-wise, no right will be recognized.
When a well is drilled, it is the responsibility of the well driller to fill out the ground-water form for the appropriator, and the appropriator is responsible for its filing.
Before leaving this discussion of the Ground-Water Code, should like to point out that the law says "rights to surface water where the date of appropriation precedes January 1, 1962, shall take priority over all prior or subsequent ground-water rights, but as between all appropriators of surface or ground-water on and after January 1, 1962, the first in time is the first in right." I would also like to mention that all well drillers who contract to drill water wells for compensation on land other than their own, must be licensed by the State of Montana and must display their license numbers on their drilling rigs.
Now turning to a general discussion of water development in Montana, it is well to note that no one owns the water either on, or under, his land since it is the property of the State inasmuch as the courts have held that water belongs to
MONTANA RECLAMATION ASSOCIATION Great Falls, Montana, 59401
the public. A property owner only has a right to use water and the amount he puts to beneficial use determines the amount he can claim as a water right. Furthermore, the date he first uses the water determines his date of priority over other uses for the same water. For example: a person can appropriate all of the water in the Missouri River but he can only establish a water right to the small amount of water he actually uses. In like manner, the State can only claim a right to the water it can prove it uses if other states lay claim to the same water. Therefore, I do not believe it is legally possible to pass any state legislation which will "save Montana's water for Montanans." We must put more of our water to work in order to obtain a valid right to it!
One of the best and quickest ways to beneficially use more surface water in this State is to build additional upstream storage reservoirs, thereby providing more water for the irri-gation of additional cropland, as well as providing water for future domestic, industrial, and recreational use. Many good projects of this type were built by the State Water Conservation Board during the pre-World War II period when construction costs were low and grants of labor, material and money were available to relieve unemployment. Many sections of Montana have materially benefitted from this early and farsighted pro-gram. However, since the Board can only build projects where the irrigators repay the entire cost to the State, there are no longer any prospective projects where the irrigators could afford to pay today's high costs of construction in order to obtain additional water, especially since the most desirable projects have already been built. Therefore, if the Board is to build any new projects, it will be necessary to find other ways in which to repay part of the costs, such as by charging some of the costs to benefits derived by the public for recreation, fish, wildlife, flood control, etc.
Some Conservation organizations in Montana are now studying ways to perhaps accomplish repayment of these project costs. Methods of financing might include Conservancy Districts which are formed by the entire area that benefits from a water project and the area is then taxed for the project costs; or the State might issue General Obligation Bonds as needed for project construction; or the Legislature might appro-priate funds in each biennium to create a revolving fund of sufficient size to do the job.
In conclusion, we estimate that Montana's needs for do-mestic and irrigation water within the foreseeable future will approximate 5,000,000 acre-feet and this does not include in-dustrial or recreational requirements. In all of Montana's river basins there are still enough storage sites left to store an ad-ditional 15,000,000 acre-feet of water, thus providing an ample supply for our future needs. The State Water Board itself has over 30 projects which might prove feasible to build, if some financing were available, and these projects would store about 210,000 acre-feet of water. Such developments would surely be a boon to Montana's economy and they would help to protect our water rights!
Bulk Rate U. S. POSTAGE
PAID
Great Falls, Mont. Permit No. 72
VOL. 28, NO. 8
Atom/ Reek/natio& assaciatioft
197 NATIONAL PRESS BUILDING • WASHINGTON 4, D. C.AUGUST 1964
LEGISLATION IN CONGRESS
NRA Board Says Wilderness — The Wilderness bill,H.R. 9070 (Saylor), embodying several important amendments was passed by the House, July 31, with only one dissenting vote.
By far the most important amend-ment and one which was insisted upon throughout by NRA provided that Wilderness areas could be cre-ated or added to only by affirmative vote of the Congress.
The bill will now be referred to a conference committee.
The Land and Water
Conservation
Fund Bill was passed by the House, with amendments, and without a roll call vote, July 23. Among the more significant amendments were the fol-lowing:To assure that no fees be charged for use of navigable waters; to bar issuance of free passes to Con-gressmen and Government officials for admission to national parks; to prevent more than 2 years' accumu-lation of funds; and to make the program become effective in 1965. The bill will now go to the Senate.
PALM SPRINGS
CONVENTION
For reservations write:
National Reclamation Association P.O. Box 2866
Palm Springs, California
Be Sure to enclose your check in an amOVnt sufficient to cover one night's lodging.
Russia and America will begin a joint exploration of the study of salt water conversion by nuclear power. A sizeable breakthrough in the cost of the development of nuclear power would prove to be a real boon to salt water conversion.
RECLAMATION FACES PERILOUS SITUATION
Present Slowdown Will Affect Western States Economy
The
Board of Directors
of theNational Reclamation Association
in a letter to the members of the Congress from each of the 17 Western States expressed grave concern about the "perilous situation" confront-ing Reclamation. The Board pointed out that there had been no Reclama-tion authorizaReclama-tions during the present Congress to date, and furthermore that although other Water Resource Programs are being increased, Rec-lamation was reduced by $38 million below the previous year.Be sure to read pages 4 and 5 and see how every President, since the National Reclamation Act was passed, has supported Reclamation.
Reclamation To Rebuild
Dams Destroyed By Floods
The Bureau of Reclamation is es-tablishing a construction office at Conrad, Montana to supervise re-building of three dams destroyed by the disastrous floods which occurred in Montana in early June. The office will be opened about September 1, 1964.
The dams to be rebuilt are Bynum Diversion Dam, Swift Dam, and Two Medicine Dam. None are on Bureau of Reclamation projects.
The Bynum Diversion Dam, Bynum Irrigation District, on the Teton River, and the Swift Dam, Pondera County Canal and Reservoir Company, will both be rebuilt with funds from the Office of Emergency Planning. Swift Dam furnished irrigation water for more than 70,000 acres of land and municipal water for the town of Con-rad.
(Cont'd on p. 8 - col. 1)
The Board said there are a number of important projects now before the Congress awaiting authorization and expressed the hope that at least some of these would be authorized this year. However, the time is getting short, especially if the Congress ad-journs prior to the Democratic Na-tional Convention which begins August 24.
The letter was signed by the Direc-tor from every Western State except Wyoming. Mr. Earl T. Bower, who had represented Wyoming on the Board since 1948, had endorsed the letter and authorized the use of his signa-ture, but Mr. Bower died before the letter was ready for mailing.
Following is the Board of Directors letter in full:
"We are writing to you as mem-bers of the Board of Directors of the National Reclamation Associa-tion — the only organizaAssocia-tion authorized to speak for the Recla-mation and Irrigation interests of the Western half of the United States. We are writing at this par-ticular time because we believe Reclamation faces a perilous situation.
