2023 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.