The water policy of Montana specifies that "the water resources of the state must be protected and conserved to assure adequate supplies for public recreational purposes and for the conservation of wildlife and aquatic life (Section 85-1-101(5), MCA).  As the maintenance of instream flows has grown to be a major use of western water, several strategies have become available to protect instream flows. Together they provide an uncoordinated, yet relatively comprehensive, set of strategies.

In 1969, the Montana Fish and Game Commission was given the authority by the Legislature to file for water rights on the unappropriated waters of 12 streams to maintain stream flows necessary for the preservation of fish and wildlife habitat (Section 89-901 (2), RCM 1947).  The appropriated "Murphy Rights" (named after the principal sponsor of the bill, have a priority only until a district court determines that such waters are needed for a more beneficial use.  To date, the appropriations have not been challenged in court by other water uses.  No future instream values can be protected by the Murphy Rights because its statutory authority is no longer applicable.

The Montana Water Use Act was passed in 1973 and established a mechanism for the protection of instream values through a systematic and comprehensive approach (Section 85-2-316, MCA).  The Act developed a process for future diversionary and consumptive uses by the state or the United States or any political subdivision or agency there of  to reserve water for existing or future beneficial uses or to maintain a minimum flow level for water quality (Section 85-2-316 (1), MCA).  Instream flows were reserved on 2,078 stream miles in 69 stream segments in the Yellowstone River Basin in 1978.  The Clark Fork and Missouri River drainages have been reserved in the 1990s.

A third strategy to protect instream values is the use of "reasonable use" or 'public interest" criteria for initial permit applications and for changes in appropriative rights (Section 85-2-311 (2)(c), MCA).  Because the criteria only apply to applications for very large amounts of water, their effectiveness to protect instream flows are limited.

The use of two federal statutes which condition hydropower licenses have also been used to protect instream values of water in Montana.  The Federal Power Act has been used by the state to condition licenses by requiring the release of a certain flow at specified times for the protection of valuable fisheries.  A measure in the Northwest Power Planning Council's Fish and Wildlife Program addressed the protection of fisheries below the Hungry Horse Dam by requiring a minimum flow release from the reservoir.  In addition to condition water rights permits, the state has also successfully negotiated with reservoir operators for voluntary release of water.

The MFWP may represent the public in adjudication proceedings for purposes of establishing any public recreation uses of water prior to 1973 (Section 85-20-223, MCA).  The policy of the MFWP is to represent the public only when a specific request is received.

For full documentation of Montana's instream flow protection strategies they have been addressed in an issue paper produced by the Water Resources Division of the DEQ as part of the State Water Plan (MDNRC 1987 and 1988).

Technical questions about the application can be directed to:

Timothy Weisenburger (NRIS) or
Duane Anderson (NRIS)

Specific questions about the database or data content can be directed to:
Janet Hess-Herbert (MFWP)