MT Code § 85-20-1701 (2021)
2021 Montana Code Annotated|Title 85. Water Use|Chapter 20. Water Compacts|Part 17. United States of America, Fish and Wildlife Service, Charles M. Russell National Wildlife Refuge-Montana Compact|85-20-1701. United States of America, fish and wildlife service, Charles M. Russell national wildlife refuge-Montana compact ratified

  85-20-1701. United States of America, fish and wildlife service, Charles M. Russell national wildlife refuge-Montana compact ratified. This compact is entered into by the State of Montana and the United States of America to settle for all time any and all claims to federal reserved water rights for the Charles M. Russell National Wildlife Refuge administered by the U.S. Fish and Wildlife Service within the State of Montana.   ARTICLE IRECITALS   WHEREAS, the State of Montana, in 1979 pursuant to Title 85, Chapter 2 of the Montana Code Annotated, commenced a general adjudication of the rights to the use of water within the State of Montana including all federal reserved and appropriative water rights;   WHEREAS, 85-2-228, MCA, provides that a federal reserved water right with a priority date of July 1, 1973, or later be subject to the same process and adjudication as a federal reserved water right with a priority date before July 1, 1973;   WHEREAS, 85-2-703 and 85-2-228(3), MCA, provide that the Montana Reserved Water Rights Compact Commission may negotiate settlement of claims by the federal government to non-Indian reserved waters within the State of Montana;   WHEREAS, the United States wishes to quantify and have decreed the amount of water necessary to fulfill the purposes of the Charles M. Russell National Wildlife Refuge as articulated in Executive Order 7509 of December 11, 1936;   WHEREAS, the Attorney General, or a duly designated official of the United States Department of Justice, has authority to execute this compact on behalf of the United States pursuant to the authority to settle litigation contained in 28 U.S.C. 516-517 (1968);   WHEREAS, the Secretary of the Interior, or a duly designated official of the United States Department of the Interior, has authority to execute this compact on behalf of the United States Department of Interior pursuant to 43 U.S.C. 1457 (1986, Supp. 1992);   NOW THEREFORE, the State of Montana and the United States agree as follows:   ARTICLE IIDEFINITIONS   For purposes of this compact only, the following definitions shall apply:   (1) "Abstract" means copies of the documents collectively entitled "Abstracts of U.S. Fish and Wildlife Service Water Rights for the Charles M. Russell National Wildlife Refuge" referenced in this compact as Appendices 1-3.   (2) "Acre-foot" or "Acre-feet" or "AF" means the amount of water necessary to cover one acre to a depth of one foot and is equivalent to 43,560 cubic feet of water.   (3) "Charles M. Russell National Wildlife Refuge" means the federal reservation of land that was designated under the Act of June 25, 1910, ch. 421, 36 Stat. 847, as amended by the Act of August 24, 1912, ch. 369, 37 Stat. 497.   (4) "Coextensive" means equal or coincident in space, time or scope. As applied to this compact, "Coextensive" rights to instream flow are non-additive water rights that constitute a usufructuary interest held by two or more parties with each party being subject to the same limits on quantity of water regardless of whether one or both parties are exercising the right.   (5) "Department" means the Montana Department of Natural Resources and Conservation or its successor.   (6) "Effective Date" means the date on which the compact is given ratification by the Montana Legislature, written approval by the United States Department of the Interior, and written approval by the United States Department of Justice, whichever occurs later.   (7) "Groundwater" means any water that is beneath the ground surface.   (8) "Instream Flow" means the water that the Parties agree must remain in the stream for non-consumptive uses to protect and maintain water flow and Wildlife Habitat throughout the Refuge for the purposes of the federal reservation.   (9) "Non-Consumptive Use" means a beneficial use of water that does not cause a reduction in the source of supply or result in a reduction in the quantity or quality of water and in which substantially all of the water returns without delay to the source of supply, causing little or no disruption in stream conditions.   (10) "Order" means Executive Order 7509, withdrawing from the public domain the Fort Peck Game Range, signed December 11, 1936.   (11) "Parties" means the State of Montana and the United States.   (12) "Recognized Under State Law" when referring to a water right or use means a water right or use protected by state law, but does not include state recognition of a federal or tribal reserved water right arising under federal law.   (13) "Refuge" means the Charles M. Russell National Wildlife Refuge.   (14) "Reserved Right" means collectively the United States' water rights for stock, wildlife, and Wildlife Habitat within Refuge as described herein.   (15) "Restricted Reach" means the portion of stream reach subject to the on-stream impoundment limitation described in Articles III.E. and IV.C. and depicted in Appendix 5 of this compact.   (16) "Stacked" means a series of impoundments on the same stream placed in proximity to one another such that water impounded by a down-stream dam reaches an elevation less than or equal to five feet below the elevation of the base of the embankment of the next upstream dam.   (17) "State" means the State of Montana and all officers, agents, departments, and political subdivisions thereof. Unless otherwise indicated, "state" means the Director of the Montana Department of Natural Resources and Conservation or the Director's designee.   (18) "United States" means the federal government and all officers, agencies, departments, and political subdivisions thereof. Unless otherwise indicated, for purposes of notification or consent other than service in litigation, "United States" means the Secretary of the Department of the Interior or the Secretary's designee.   (19) "Wildlife Habitat" means a combination of food, water, shelter, and space that sustains wildlife and includes, but is not limited to, riparian areas and the stream flows that sustain them. This definition may not be construed to increase the quantity of the water rights set forth in Article III of this compact.   ARTICLE IIIWATER RIGHT   The Parties agree that the following water rights are in settlement of the reserved water rights claims of the United States for the Refuge. All water rights described in this Article are subject to Article IV of this compact as well as any specific additional conditions set forth below.   A. Priority date. The Reserved Right for stock, wildlife, and Wildlife Habitat uses within the Refuge described herein has a priority date of December 11, 1936. The United States agrees to subordinate its 1936 Reserved Right to water rights Recognized Under State Law existing on the Effective Date of this compact. Accordingly, any water right Recognized Under State Law with a priority date prior to the Effective Date of this compact is functionally senior in priority to any component of the Reserved Right and is not subject to a call for enforcement or administration by the United States in the exercise of the Reserved Right. The final decree for the United States' Reserved Right must include the above prohibition on call.   B. Quantified instream rights. The United States holds water rights in the following named streams from the point furthest upstream where the Refuge boundary crosses the mainstem stream channel to its confluence with Fort Peck Lake or the Missouri River. The water right is in the amount of one (1) or one-half (1/2) cubic feet per second (cfs) for instream use for the purposes of stock, wildlife, and Wildlife Habitat as set forth in Table 1 and the Abstracts attached to this compact as Appendix 1, and as depicted in Appendix 4. The period of use is from March 1 to June 30. The United States may exercise its quantified instream rights during the period of use provided by this Compact if water is available.   Table 1     Stream Name   Amount(cfs)   Upstream Limit   Downstream Limit     Alkali Creek   0.5   NWSW Sec.27 19N29E   SESW Sec.36 19N29E     Antelope Creek   0.5   NWNE Sec.3 22N23E   SESE Sec.21 22N23E     Armells Creek   1.0   NWSW Sec.18 21N23E   NWSW Sec.32 22N24E     Ash Creek   0.5   NWNW Sec.28 22N42E   SESW Sec.27 22N42E     Bear Creek   0.5   NENE Sec.15 25N42E   SWSE Sec.10 25N42E     Beauchamp Creek   0.5   NWNE Sec.16 22N28E   SESE Sec.35 22N28E     Big Coulee Creek   0.5   NWSW Sec.16 21N33E   SWSW Sec.12 21N33E     Big Dry Creek   1.0   SWSW Sec.26 20N42E   NESW Sec.12 20N42E     Billy Creek   0.5   SESE Sec.33 22N34E   NWNE Sec.22 22N34E     Box Creek, North Fork   0.5   SWSW Sec.18 23N42E   NENE Sec.19 23N42E     Box Creek, South Fork   0.5   SWNW Sec.19 23N42E   SENE Sec.19 23N42E     Bridge Coulee   0.5   SWNW Sec.1 20N42E   NENE Sec.12 20N42E     Cabin Coulee   0.5   SESW Sec.21 23N35E   SWSE Sec.5 22N36E     Carroll Coulee   0.5   SWNW Sec.31 21N26E   SENE Sec.22 21N26E     Cart Trail Coulee   0.5   NWNW Sec.35 23N33E   NENW Sec.1 22N33E     Cat Creek   0.5   NWSW Sec.29 23N42E   SWSW Sec.28 23N42E     Cattle Creek   0.5   SWSE Sec.15 22N39E   SWSE Sec.10 22N39E     CK Creek   0.5   NWNE Sec.1 22N26E   SESE Sec.12 21N27E     Crooked Creek (Garfield County)   0.5   SESE Sec.19 22N39E   NENE Sec.19 22N39E     Sacagawea River/ Crooked Creek   0.5   SWSW Sec.27 20N29E   SWNW Sec.36 20N29E     Dawson Creek   0.5   NWSW Sec.6 23N42E   SWSE Sec.6 23N42E     Devils Creek   0.5   NENE Sec.16 21N32E   SENW Sec.5 21N32E     Doney Coulee   0.5   NWNE Sec.30 23N34E   SESW Sec.29 23N34E     Duck Creek   0.5   NWNW Sec.1 23N37E   NWSE Sec.1 23N37E     Duval Creek   0.5   NENW Sec.5 22N24E   NWSE Sec.34 22N24E     Fifth Coulee   0.5   SWNW Sec.33 25N39E   SESE Sec.2 24N39E     Fourchette Creek   1.0   NWNW Sec.15 22N30E   NWSE Sec.8 22N31E     Germaine Coulee   0.5   SESE Sec.22 19N30E   SWSW Sec.16 19N30E     Gilbert Creek   0.5   SWSE Sec.17 22N40E   NESE Sec.4 22N40E     Hawley Creek   0.5   NENW Sec.35 22N29E   NENE Sec.2 21N28E     Hell Creek   0.5   SESE Sec.16 21N37E   NWNW Sec.13 21N37E     Hilliard Coulee   0.5   NENE Sec.20 26N42E   NWSW Sec.17 26N42E     Kill Woman Creek   0.5   NENE Sec.3 22N32E   SESE Sec.10 22N32E     King Coulee   0.5   NWNW Sec.6 23N37E   SESW Sec.9 23N37E     Lone Tree Creek   0.5   NWSW Sec.34 22N42E   NESW Sec.34 22N42E     Lost Creek   0.5   SWSE Sec.36 21N31E   NWNW Sec.33 21N31E     Middle Eighth Coulee   0.5   NENE Sec.28 24N38E   SWNE Sec.35 24N38E     Nelson Creek   0.5   SESW Sec.26 21N43E   NENW Sec.27 21N43E     Nichols Coulee   0.5   SWSW Sec.7 22N27E   SESE Sec.10 21N27E     North Fork Rock Creek   0.5   NENE Sec.21 23N43E   SWSE Sec.17 23N43E     Norville Creek   0.5   NWNW Sec.36 24N41E   NWNW Sec.31 24N42E     Renick Coulee   0.5   SESE Sec.24 23N40E   NENE Sec.23 23N40E     Ried Coulee   0.5   SWSW Sec.18 21N38E   NWNE Sec.13 21N37E     Rock Creek   1.0   NENE Sec.6 22N25E   NWNE Sec.11 21N25E     Sand Arroyo   0.5   NWNE Sec.20 24N43E   NESW Sec.20 24N43E     Sand Creek   0.5   SWSW Sec.16 21N24E   NENE Sec.9 21N25E     Sandburn Coulee   0.5   SESE Sec.1 19N30E   SESE Sec.25 20N30E     Seven Blackfoot Creek   0.5   SWSE Sec.13 21N33E   NENW Sec.13 21N33E     Sevenmile Creek   0.5   NENW Sec.6 22N26E   SESE Sec.7 21N27E     Seventh Coulee   0.5   NWSW Sec.18 24N39E   SWNW Sec.20 24N39E     Sherman Coulee   0.5   NESE Sec.33 19N30E   NENE Sec.30 19N30E     Siparyann Creek   1.0   NWNW Sec.2 22N24E   SESE Sec.32 22N25E     Sixth Coulee   0.5   NWNW Sec.5 24N39E   SWNW Sec.14 24N39E     Snap Creek   0.5   SWSW Sec.23 21N42E   SENE Sec.26 21N42E     Snow Creek   0.5   SWSW Sec.3 21N36E   NESW Sec.2 21N36E     Soda Creek   0.5   SWNW Sec.33 21N29E   SWNW Sec.8 20N30E     South Fork Duck Creek   0.5   NWNW Sec.21 25N39E   SWNW Sec.14 25N39E     South Fork Rock Creek   0.5   SENE Sec.33 23N43E   NWNE Sec.32 23N43E     Spring Creek   0.5   NESE Sec.11 24N42E   SESE Sec.10 24N42E     Nancy Russell Creek/ Squaw Creek   0.5   SESE Sec.29 20N31E   SWNE Sec.30 20N31E     Sutherland Creek   0.5   SWNW Sec.13 23N36E   SWSW Sec.18 23N37E     Telegraph Creek   0.5   NENW Sec.30 23N31E   SWSE Sec.31 23N31E     Timber Creek (McCone)   0.5   NENE Sec.17 20N43E   SWSE Sec.6 20N43E     Two Calf Creek   0.5   NWNW Sec.30 22N23E   NENW Sec.28 22N23E     Upper Eighth Coulee   0.5   NWSW Sec.33 24N38E   SENE Sec.4 23N38E     Valentine Creek   0.5   NWNE Sec.10 21N30E   SENW Sec.14 22N30E     Wilder Creek   0.5   NENW Sec.12 22N25E   SWSE Sec.6 21N26E     Wyatt Coulee   0.5   NWNW Sec.22 23N34E   NESW Sec.22 23N34E     *The downstream end of the quantified reaches of Telegraph Creek and Valentine Creek end at their confluence with Fourchette Creek.   C. Instream Flow right on Musselshell River. The United States holds a water right in the Musselshell River from the point furthest upstream where the mainstem river channel enters U.S. Fish and Wildlife Service owned land within the Refuge (near the SESE of section 11, T.18N, R.29E) to its confluence with Fort Peck Lake as described in the Abstract attached to this compact as Appendix 2. The water right is in the amount of a minimum instream flow of seventy (70) cfs. The water right is for the purposes of stock, wildlife, and Wildlife Habitat and must be Coextensive with any other non-consumptive instream uses during the specified period of use. The period of use for this right is from March 1 to June 30.   D. Wells, ponds, and springs. Water rights for wells, developed springs, and ponds will be recognized and quantified as set forth in the Abstracts attached to this compact as Appendix 3.   E. Conditions to be applied to permits issued after the Effective Date of the Compact. On the Restricted Reaches set forth in Table 2 and depicted in Appendix 5, no new on-stream impoundments may be constructed after the Effective Date of this Compact, except as provided by Article IV.C.   Table 2     Name of Group   Name at Endpoint   Upper or Lower   Quarter   Section   Township                 Quarter       Range     Armells Creek   Armells Creek   Upper   NENE   12   20N21E       Armells Creek   Lower   SWSW   32   22N24E       Fargo Coulee   Upper   NESE   13   20N22E       UT of Fargo Coulee   Upper   SENW   33   21N23E       UT of Fargo Coulee   Upper   NENW   1   20N22E     Ash Creek   Ash Creek   Upper   SWSW   11   22N41E       Ash Creek   Lower   SESW   27   22N42E     Bear Creek   Bear Creek   Upper   NENE   15   25N42E       Bear Creek   Lower   SWSE   10   25N42E     Beauchamp Creek   Beauchamp Creek   Upper   NESW   14   24N26E       Beauchamp Creek   Lower   SESE   35   22N28E     Billy Creek   Billy Creek   Upper   SENE   17   21N34E       Billy Creek   Lower   NWNE   22   22N34E     Bobcat Creek   Bobcat Creek   Upper   NENE   29   25N42E       UT of Bobcat Creek   Upper   NESW   29   25N42E       Bobcat Creek   Lower   NWNW   30   25N41E     Box Creek, North Fork   Box Creek, North Fork   Upper   SENE   4   23N41E       UT of Box Creek, North Fork   Upper   NESW   9   23N41E       Box Creek, North Fork   Lower   NENE   19   23N42E     Box Creek, South Fork   Box Creek, South Fork   Upper   NENW   22   23N41E       Box Creek, South Fork   Lower   SENE   19   23N42E     Box Elder Creek   Box Elder Creek   Upper   NESW   29   23N32E       Box Elder Creek   Lower   SENE   30   23N31E     Bridge Coulee   Bridge Coulee   Upper   SESW   33   21N42E       Bridge Coulee   Lower   NENE   12   20N42E       Carpenter Creek   Upper   NWNW   15   23N35E     Carroll Coulee   Carroll Coulee   Upper   SWNW   11   20N25E       UT of Carroll Coulee   Upper   SESE   27   21N25E       UT of Carroll Coulee   Upper   SWSW   1   20N25E       UT of Carroll Coulee   Upper   NWNW   3   20N25E       Carroll Coulee   Lower   SENE   22   21N26E     Cat Creek   Cat Creek   Upper   NWNW   34   23N41E       Cat Creek   Lower   SWSW   28   23N42E     CK Creek   CK Creek   Upper   NESE   22   24N25E       CK Creek   Lower   SESE   12   21N27E       Cottonwood Creek   Upper   NWNW   36   24N24E     Crooked Creek (Garfield County)   Crooked Creek (Garfield County)   Upper   NWNE   4   21N39E       Crooked Creek (Garfield County)   Lower   NENE   19   22N39E     Crooked Creek/Sacagawea River   Crooked Creek/Sacagawea River   Upper   SWNW   30   20N28E       Crooked Creek/Sacagawea River   Lower   SENE   35   20N29E     Dawson Creek   Dawson Creek   Upper   NENE   3   23N41E       Dawson Creek   Lower   SWSE   6   23N42E     Deadman Coulee   Deadman Coulee   Upper   SESE   20   21N32E       Deadman Coulee   Lower   SWNE   22   21N31E     Devils Creek   Devils Creek   Upper   SESW   30   21N33E       Devils Creek   Lower   SENW   5   21N32E     Doney Coulee   Doney Coulee   Upper   SESW   13   23N33E       Doney Coulee   Lower   SESW   29   23N34E     Duval Creek   Duval Creek   Upper   NENW   5   22N24E       Duval Creek   Lower   NWSE   34   22N24E     East Fork Crooked Creek   East Fork Crooked Creek   Upper   NWNW   25   22N39E       East Fork Crooked Creek   Lower   SWSE   10   22N39E     Fifth Coulee   Fifth Coulee   Upper   NWNW   32   25N39E       Fifth Coulee   Lower   SESE   2   24N39E     Fourchette Creek   Fourchette Creek   Upper   NESE   29   23N29E       Fourchette Creek   Lower   NWSW   5   22N31E     Germaine Coulee   Germaine Coulee   Upper   SESE   24   19N30E       Germaine Coulee   Lower   SWSW   16   19N30E     Gilbert Creek   Gilbert Creek   Upper   SENE   29   22N40E       Gilbert Creek   Lower   NESE   4   22N40E     Hell Creek   Hell Creek   Upper   NWSE   27   21N36E       Hell Creek   Lower   NWNW   13   21N37E     Hell Hole Coulee   Hell Hole Coulee   Upper   NENE   19   23N34E       Hell Hole Coulee   Lower   NENE   28   23N34E       Karsten Coulee   Upper   NWNW   12   22N28E     Kill Woman Creek   Kill Woman Creek   Upper   NESE   27   23N32E       Kill Woman Creek   Lower   SESE   10   22N32E     King Coulee   King Coulee   Upper   SWNE   36   24N36E       King Coulee   Lower   SESW   9   23N37E       Little Cottonwood Creek   Upper   NWNE   9   23N24E     Lone Tree Creek   Lone Tree Creek   Upper   NENW   27   22N41E       Lone Tree Creek   Lower   NESW   34   22N42E     Lost Creek (east Garfield Co.)   Lost Creek (east Garfield Co.)   Upper   SWNE   8   22N42E       Lost Creek (east Garfield Co.)   Lower   SWSW   3   22N42E     Lost Creek (west Garfield Co.)   Lost Creek (west Garfield Co.)   Upper   SWSW   32   21N32E       Lost Creek (west Garfield Co.)   Lower   SENW   33   21N31E     Middle Eighth Coulee   Middle Eighth Coulee   Upper   NENW   21   24N38E       Middle Eighth Coulee   Lower   SWNE   35   24N38E     North Fork Rock Creek   North Fork Rock Creek   Upper   NWNW   36   24N43E       North Fork Rock Creek   Lower   NWNE   20   23N43E     Norville Creek   Norville Creek   Upper   NESE   28   24N41E       UT of Norville Creek   Upper   SESE   21   24N41E       Norville Creek   Lower   NWNW   31   24N42E       Plum Creek   Upper   SENW   3   23N35E     Renick Coulee   Renick Coulee   Upper   NWNW   32   23N41E       Renick Coulee   Lower   NWNE   23   23N40E     Ried Coulee   Ried Coulee   Upper   NESE   32   21N38E       Ried Coulee   Lower   NENE   13   21N37E     Rock Creek   Rock Creek   Upper   SWNE   30   24N25E       Rock Creek   Lower   NWNE   11   21N25E     Sage Creek   Sage Creek   Upper   NENE   8   23N41E       Sage Creek   Lower   SWSW   31   24N41E     Sand Creek   Sand Creek   Upper   NENE   1   20N23E       UT of Sand Creek   Upper   SWSE   35   21N24E       UT of Sand Creek   Upper   SWSE   24   21N23E       UT of Sand Creek   Upper   SWSE   33   21N24E       UT of Sand Creek   Upper   SWSW   26   21N23E       UT of Sand Creek   Upper   SWSE   14   21N23E       Sand Creek   Lower   NENE   9   21N25E     Seven Blackfoot Creek   Seven Blackfoot Creek   Upper   SWNW   23   20N34E       Seven Blackfoot Creek   Lower   NENW   13   21N33E     Sevenmile Creek   Sevenmile Creek   Upper   SESW   14   23N25E       Sevenmile Creek   Lower   SESE   7   21N27E     Sherman Coulee   Sherman Coulee   Upper   NWSW   1   18N30E       Sherman Coulee   Lower   NENE   30   19N30E     Short Creek   Short Creek   Upper   SENE   10   21N42E       Short Creek   Lower   SESE   11   21N42E     Siparyann Creek   Siparyann Creek   Upper   NENE   5   23N24E       Siparyann Creek   Lower   SESE   32   22N25E     Sixth Coulee   Sixth Coulee   Upper   SWNW   31   25N39E       Sixth Coulee   Lower   SWNW   14   24N39E     Snap Creek   Snap Creek   Upper   NENE   17   21N42E       Snap Creek   Lower   NENE   26   21N42E     Snow Creek   Snow Creek   Upper   NWSW   14   21N35E       Snow Creek   Lower   NESW   2   21N36E     Soda Creek   UT of Soda Creek   Upper   SWNE   30   21N29E       UT of Soda Creek   Upper   NESW   31   21N29E       UT of Soda Creek   Upper   NWNE   29   21N29E       UT of Soda Creek   Upper   SESW   31   21N29E       UT of Soda Creek   Upper   NENW   36   21N28E       Soda Creek   Lower   SWNW   8   20N30E     Spring Creek   Spring Creek   Upper   NWNE   12   24N42E       UT of Spring Creek   Upper   NESW   33   25N42E       UT of Spring Creek   Upper   NENW   3   24N42E       UT of Spring Creek   Upper   NENE   14   24N42E       UT of Spring Creek   Upper   NWNW   34   25N42E       Spring Creek   Lower   SESE   10   24N42E     Stole Creek   Stole Creek   Upper   SWSE   4   24N42E       Stole Creek   Lower   SESE   9   24N42E     Sutherland Creek   Sutherland Creek   Upper   SWSW   30   24N36E       UT of Sutherland Creek   Upper   NWNE   34   24N36E       Sutherland Creek   Lower   SWSW   18   23N37E     Telegraph Creek   Telegraph Creek   Upper   SESE   25   24N31E       Telegraph Creek   Lower   NWNE   6   22N31E     Two Calf Creek   Two Calf Creek   Upper   NENE   22   22N21E       Two Calf Creek   Lower   NWNE   28   22N23E     UT of Musselshell River   UT of Musselshell River   Upper   NWSW   17   19N29E       UT of Musselshell River   Lower   SWNW   30   19N30E     UT1 of Fort Peck Lake   UT1 of Fort Peck Lake   Upper   NWNE   14   22N40E       UT1 of Fort Peck Lake   Lower   NENW   2   22N40E     UT2 of Fort Peck Lake   UT2 of Fort Peck Lake   Upper   NENE   17   24N41E       UT2 of Fort Peck Lake   Upper   SWNW   21   24N41E       UT2 of Fort Peck Lake   Upper   NENE   21   24N41E       UT2 of Fort Peck Lake   Lower   SWNW   15   24N41E     UT3 of Fort Peck Lake   UT3 of Fort Peck Lake   Upper   NWSW   35   26N42E       UT of UT3 of Fort Peck Lake   Upper   SENW   34   26N42E       UT3 of Fort Peck Lake   Lower   SENW   4   25N42E     UT4 of Fort Peck Lake   UT4 of Fort Peck Lake   Upper   NENE   20   25N42E       UT4 of Fort Peck Lake   Lower   SENE   8   23N42E     UT5 of Fort Peck Lake   UT5 of Fort Peck Lake   Upper   SENE   21   25N42E       UT of UT5 of Fort Peck Lake   Upper   SENW   22   25N42E       UT5 of Fort Peck Lake   Lower   SESW   10   25N42E     UT6 of Fort Peck Lake   UT6 of Fort Peck Lake   Upper   NWNE   19   25N41E       UT6 of Fort Peck Lake   Lower   SESE   24   25N41E     UT7 of Fort Peck Lake   UT7 of Fort Peck Lake   Upper   SESE   14   24N42E       UT7 of Fort Peck Lake   Lower   NWNE   15   24N42E     UT8 of Fort Peck Lake   UT8 of Fort Peck Lake   Upper   NWSE   13   24N42E       UT8 of Fort Peck Lake   Lower   SENW   24   24N42E     West Fork Sand Arroyo   West Fork Sand Arroyo   Upper   SENE   9   24N43E       West Fork Sand Arroyo   Lower   NESW   20   24N43E     Wyatt Coulee   Wyatt Coulee   Upper   SWNE   12   23N33E       Wyatt Coulee   Lower   NESW   22   23N34E     ARTICLE IVCOMPACT IMPLEMENTATION   A. Quantified reaches. Flows of designated quantified reaches set forth in Table 1 and Appendix 1 that are not already appropriated as of the Effective Date of this compact will be available for future development, subject to the Reserved Right and applicable permit conditions described herein. The Department may approve new uses after the Effective Date of this compact, but the Department shall condition any permit or approval of new uses to provide that such uses may not cause the quantified reaches to fall below the minimum flows set forth in Table 1 and Appendix 1 during the time period from March 1 to June 30. Appropriations occurring after the Effective Date of this compact will be subject to call by the United States in the exercise of the Reserved Right at any time streamflows are available but fall below the levels set forth in Table 1 and Appendix 1 of this compact, as measured where each quantified stream enters Fort Peck Lake or the Missouri River, or at the closest upstream confluence for those streams that intersect another stream before reaching Fort Peck Lake or the Missouri River, with a proper device for measurement of the waters flowing in the quantified reach.   B. Musselshell River. Musselshell River flows that are not already appropriated as of the Effective Date of this compact will be available for future development subject to the Reserved Right and applicable permit conditions described herein. The Department may approve new uses after the Effective Date of this compact but shall condition any permit or approval of new uses to provide that such uses may not cause the flow of the Musselshell River to fall below seventy (70) cfs where the mainstem river channel enters U.S. Fish and Wildlife Service owned land within the Refuge during the period from March 1 to June 30. Appropriations occurring after the Effective Date of this compact will be subject to a call by the United States in the exercise of the Reserved Right at any time streamflow falls below 70 cfs for five (5) consecutive days.   C. Conditions to be applied to permits issued after the Effective Date of the compact. Impoundments of less than the capacity and appropriation limits excepted from permitting under 85-2-306, MCA, may be constructed on the stream reaches identified in Table 2 and Appendix 5. These impoundments may not be Stacked to achieve a volume greater than the statutory exception. The Department may permit no new on-stream impoundments that do not meet the permit exception requirements of 85-2-306, MCA, on the Restricted Reaches identified in Table 2 and Appendix 5.   1. Reclamation, repair, or rehabilitation of an existing impoundment may not be considered a new impoundment, except that reclamation, repair, or rehabilitation cannot cause the impoundment to exceed the storage volume listed on the statement of claim.   2. Off-stream impoundments larger than the capacity and appropriation limits excepted from permitting by 85-2-306, MCA, may be constructed and filled in accordance with state permitting requirements from a diversion works located on the stream reaches identified in Table 2 and Appendix 5; and   3. On-stream impoundments larger than the capacity and appropriation limits excepted from permitting by 85-2-306, MCA, may be constructed and filled in accordance with state permitting requirements on the streams identified in Table 2 and Appendix 5 upstream of the designated Restricted Reach.   D. Uses exempted from curtailment by the United States' exercise of the Reserved Right during times of shortage. During times when there is insufficient water to satisfy the Reserved Right, and curtailment of junior water rights is otherwise contemplated under Article III, the following water rights will not be subject to call or curtailment for the benefit of the Reserved Right:   1. Non-Consumptive Uses located upstream of the instream reaches identified in Table I and Appendix 1.   2. Groundwater uses of thirty-five (35) gallons per minute (gpm) or less not to exceed ten (10) AF per year.   3. Stockwater impoundments of less than fifteen (15) AF capacity and total appropriation less than thirty (30) AF per year.   4. Temporary emergency appropriations under 85-2-113(3), MCA.   5. An application submitted pursuant to 85-20-1401, MCA, Article VI.   6. An application for a permit to appropriate surface water to conduct response actions related to natural resource restoration required for:   a. Remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq.;   b. Aquatic resource activities carried out in compliance with and as required by the federal Clean Water Act of 1977, 33 U.S.C. 1251-1387; or   c. Remedial actions taken pursuant to Title 75, chapter 10, part 7.   E. Action for enforcement of provisions of Article III. The United States may file an original action in a court of competent jurisdiction to enforce the provisions of Article III at any time. The United States cannot be required to exhaust any administrative remedies in order to enforce Article III of this compact.   ARTICLE VGENERAL PROVISIONS   A. The Parties recognize that the U.S. Fish and Wildlife Service has an interest in maintaining water flow and wildlife habitat throughout the Refuge.   B. No effect on tribal rights or other federal reserved water rights.   1. The relationship between the water rights of the U.S. Fish and Wildlife Service described herein and any rights to water of an Indian Tribe in Montana, or of any federally derived water right of an individual, or of the United States on behalf of a Tribe or individual shall be determined by the rule of priority.   2. Nothing in this compact may be construed or interpreted in any manner to establish the nature, extent, or manner of administration of the rights to water of any Indian Tribes and Tribal members in the State of Montana.   3. Nothing in this compact is otherwise intended to conflict with or abrogate a right or claim of an Indian Tribe regarding boundaries or property interests in the State of Montana.   4. Nothing in this compact may be construed or interpreted in any manner to establish the nature, extent, or manner of administration of the rights to water of any other federal agency or federal lands in the State of Montana other than those of the U.S. Fish and Wildlife Service for the Charles M. Russell National Wildlife Refuge.   C. General Disclaimers. Nothing in this Compact may be construed or interpreted:   1. As a precedent for the litigation of reserved water rights or the interpretation or administration of existing or future compacts between the United States and the State; or of the United States and any other state;   2. As a waiver by the United States of its right under state law to raise objections in state court to individual water rights claimed pursuant to the state Water Use Act, Title 85, of the Montana Code Annotated, in the basins affected by this compact, or, except as provided in this compact, any right to raise objections in an appropriate forum to individual water rights subject to a provisional permit under the state Water Use Act, Title 85, of the Montana Code Annotated, in the basins affected by this compact;   3. As a waiver by the United States of its right to seek relief from a conflicting water use not entitled to protection under the terms of this compact;   4. To establish a precedent for other agreements between the State and the United States or an Indian tribe;   5. To determine the relative rights, inter se, of persons using water under the authority of state law or to limit the rights of the parties or a person to litigate an issue not resolved by this compact;   6. To authorize the taking of a water right that is vested under state or federal law;   7. To create or deny substantive rights through headings or captions used in this compact;   8. To expand or restrict any waiver of sovereign immunity existing pursuant to federal law as of the Effective Date of this compact;   9. To affect or determine the applicability of any state or federal law, including, without limitation, environmental and public safety laws, on activities of the U.S. Fish and Wildlife Service;   10. To affect the right of the State to seek fees or reimbursement for costs or the right of the United States to contest the imposition of fees or costs, pursuant to a ruling by a state or federal court of competent jurisdiction or an act of Congress;   11. To affect, in any manner, the entitlement to or quantification of other federal water rights. This compact is binding on the United States solely in regard to the water rights of the United States for the Charles M. Russell National Wildlife Refuge, and this compact does not affect the water rights of any other federal agency that is not a successor in interest to the water rights subject to this compact.   D. Use of water right. Non-use of all or a part of the Reserved Right may not constitute abandonment of the right. The Reserved Right need not be applied to a use deemed beneficial under state law, but must be restricted to uses necessary to fulfill the purposes outlined in the Order.   E. Coextensive with other non-consumptive instream water uses. The Reserved Right for Instream Flows for the Refuge described in this compact must be Coextensive with any other non-consumptive instream water uses, and may not be cumulative to other instream uses.   F. Appropriation pursuant to State law. Nothing in this compact may prevent the United States from seeking a water appropriation pursuant to state law for use on the reserved land within the Refuge or for use outside the boundaries of the federal reservation for which a water right is described in this compact. A water right obtained in this manner shall be Recognized Under State Law and must be administered pursuant to state law.   G. Reservation of rights. The Parties expressly reserve all rights not granted, described, or relinquished in this compact.   H. Severability. The provisions of this compact are not severable.   I. Multiple originals. This compact is executed in quintuplicate. Each of the five (5) compacts bearing original signatures must be deemed an original.   J. Notice. Unless otherwise specifically provided for in this compact, service of notice, except service in litigation, must be:   1. State. Upon the Director of the Department or its successor agency, and such other officials as the Director may designate in writing.   2. United States. Upon the Secretary of the Interior and such other officials as the Secretary may designate in writing.   ARTICLE VIFINALITY OF COMPACT   A. Binding effect.   1. The Effective Date of this Compact is the date of the ratification of this compact by the Montana legislature, written approval by the United States Department of the Interior, and written approval by the United States Department of Justice. Once effective, all of the provisions of this compact shall be binding on:   a. The State and a person or entity of any nature whatsoever using, claiming or in any manner asserting a right under the authority of the State to the use of water; and   b. Except as otherwise provided in Article V, Section B, the United States, a person or entity of any nature whatsoever using, claiming, or in any manner asserting a right under the authority of the United States to the use of water.   2. Following the Effective Date, this compact may not be modified without the written consent of the Parties. Any attempt to unilaterally modify this compact by either Party shall render this compact voidable at the election of the other Party.   B. Settlement of claims. The Parties intend that the Reserved Right described in this compact is in full and final settlement of the reserved water right claims of the United States for the Charles M. Russell National Wildlife Refuge. Pursuant to this settlement, by which certain federal reserved water rights are expressly recognized by the State in this compact, the United States hereby and in full settlement of any and all claims filed by the United States or which could have been filed by the United States for the Refuge relinquishes forever all said claims on the Effective Date of this compact to water within the State of Montana for federal reserved water rights for the above mentioned unit. The State agrees to recognize the Reserved Right described and quantified herein, and shall, except as expressly provided for herein, treat them in the same manner as any other appropriation.   C. The parties agree to defend the provisions and purposes of this compact from all challenges and attacks.   IN WITNESS WHEREOF the representatives of the State of Montana and the United States have signed this Compact on the 11th day of May, 2015.   History: En. Sec. 1, Ch. 227, L. 2013.