Montana Code Annotated 2015

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     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 I RECITALS


      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 II DEFINITIONS


      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 III WATER 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 NameAmount(cfs)Upstream LimitDownstream Limit
Alkali Creek0.5NWSW Sec.27 19N29ESESW Sec.36 19N29E
Antelope Creek0.5NWNE Sec.3 22N23ESESE Sec.21 22N23E
Armells Creek1.0NWSW Sec.18 21N23ENWSW Sec.32 22N24E
Ash Creek0.5NWNW Sec.28 22N42ESESW Sec.27 22N42E
Bear Creek0.5NENE Sec.15 25N42ESWSE Sec.10 25N42E
Beauchamp Creek0.5NWNE Sec.16 22N28ESESE Sec.35 22N28E
Big Coulee Creek0.5NWSW Sec.16 21N33ESWSW Sec.12 21N33E
Big Dry Creek1.0SWSW Sec.26 20N42ENESW Sec.12 20N42E
Billy Creek0.5SESE Sec.33 22N34ENWNE Sec.22 22N34E
Box Creek, North Fork0.5SWSW Sec.18 23N42ENENE Sec.19 23N42E
Box Creek, South Fork0.5SWNW Sec.19 23N42ESENE Sec.19 23N42E
Bridge Coulee0.5SWNW Sec.1 20N42ENENE Sec.12 20N42E
Cabin Coulee0.5SESW Sec.21 23N35ESWSE Sec.5 22N36E
Carroll Coulee0.5SWNW Sec.31 21N26ESENE Sec.22 21N26E
Cart Trail Coulee0.5NWNW Sec.35 23N33ENENW Sec.1 22N33E
Cat Creek0.5NWSW Sec.29 23N42ESWSW Sec.28 23N42E
Cattle Creek0.5SWSE Sec.15 22N39ESWSE Sec.10 22N39E
CK Creek0.5NWNE Sec.1 22N26ESESE Sec.12 21N27E
Crooked Creek (Garfield County)0.5SESE Sec.19 22N39ENENE
Sec.19 22N39E
Sacagawea River/ Crooked Creek0.5SWSW Sec.27 20N29ESWNW
Sec.36 20N29E
Dawson Creek0.5NWSW Sec.6 23N42ESWSE Sec.6 23N42E
Devils Creek0.5NENE Sec.16 21N32ESENW Sec.5 21N32E
Doney Coulee0.5NWNE Sec.30 23N34ESESW Sec.29 23N34E
Duck Creek0.5NWNW Sec.1 23N37ENWSE Sec.1 23N37E
Duval Creek0.5NENW Sec.5 22N24ENWSE Sec.34 22N24E
Fifth Coulee0.5SWNW Sec.33 25N39ESESE Sec.2 24N39E
Fourchette Creek1.0NWNW Sec.15 22N30ENWSE Sec.8 22N31E
Germaine Coulee0.5SESE Sec.22 19N30ESWSW Sec.16 19N30E
Gilbert Creek0.5SWSE Sec.17 22N40ENESE Sec.4 22N40E
Hawley Creek0.5NENW Sec.35 22N29ENENE Sec.2 21N28E
Hell Creek0.5SESE Sec.16 21N37ENWNW Sec.13 21N37E
Hilliard Coulee0.5NENE Sec.20 26N42ENWSW Sec.17 26N42E
Kill Woman Creek0.5NENE Sec.3 22N32ESESE Sec.10 22N32E
King Coulee0.5NWNW Sec.6 23N37ESESW Sec.9 23N37E
Lone Tree Creek0.5NWSW Sec.34 22N42ENESW Sec.34 22N42E
Lost Creek0.5SWSE Sec.36 21N31ENWNW Sec.33 21N31E
Middle Eighth Coulee0.5NENE Sec.28 24N38ESWNE Sec.35 24N38E
Nelson Creek0.5SESW Sec.26 21N43ENENW Sec.27 21N43E
Nichols Coulee0.5SWSW Sec.7 22N27ESESE Sec.10 21N27E
North Fork Rock Creek0.5NENE Sec.21 23N43ESWSE Sec.17
23N43E
Norville Creek0.5NWNW Sec.36 24N41ENWNW Sec.31 24N42E
Renick Coulee0.5SESE Sec.24 23N40ENENE Sec.23 23N40E
Ried Coulee0.5SWSW Sec.18 21N38ENWNE Sec.13 21N37E
Rock Creek1.0NENE Sec.6 22N25ENWNE Sec.11 21N25E
Sand Arroyo0.5NWNE Sec.20 24N43ENESW Sec.20 24N43E
Sand Creek0.5SWSW Sec.16 21N24ENENE Sec.9 21N25E
Sandburn Coulee0.5SESE Sec.1 19N30ESESE Sec.25 20N30E
Seven Blackfoot Creek0.5SWSE Sec.13 21N33ENENW Sec.13 21N33E
Sevenmile Creek0.5NENW Sec.6 22N26ESESE Sec.7 21N27E
Seventh Coulee0.5NWSW Sec.18 24N39ESWNW Sec.20 24N39E
Sherman Coulee0.5NESE Sec.33 19N30ENENE Sec.30 19N30E
Siparyann Creek1.0NWNW Sec.2 22N24ESESE Sec.32 22N25E
Sixth Coulee0.5NWNW Sec.5 24N39ESWNW Sec.14 24N39E
Snap Creek0.5SWSW Sec.23 21N42ESENE Sec.26 21N42E
Snow Creek0.5SWSW Sec.3 21N36ENESW Sec.2 21N36E
Soda Creek0.5SWNW Sec.33 21N29ESWNW Sec.8 20N30E
South Fork Duck Creek0.5NWNW Sec.21 25N39ESWNW Sec.14 25N39E
South Fork Rock Creek0.5SENE Sec.33 23N43ENWNE Sec.32 23N43E
Spring Creek0.5NESE Sec.11 24N42ESESE Sec.10 24N42E
Nancy Russell Creek/ Squaw Creek0.5SESE Sec.29 20N31ESWNE
Sec.30 20N31E
Sutherland Creek0.5SWNW Sec.13 23N36ESWSW Sec.18 23N37E
Telegraph Creek0.5NENW Sec.30 23N31ESWSE Sec.31 23N31E
Timber Creek (McCone)0.5NENE Sec.17 20N43ESWSE Sec.6 20N43E
Two Calf Creek0.5NWNW Sec.30 22N23ENENW Sec.28 22N23E
Upper Eighth Coulee0.5NWSW Sec.33 24N38ESENE Sec.4 23N38E
Valentine Creek0.5NWNE Sec.10 21N30ESENW Sec.14 22N30E
Wilder Creek0.5NENW Sec.12 22N25ESWSE Sec.6 21N26E
Wyatt Coulee0.5NWNW Sec.22 23N34ENESW 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 GroupName at EndpointUpper or LowerQuarterSectionTownship
Quarter Range
Armells CreekArmells CreekUpperNENE1220N21E
Armells CreekLowerSWSW3222N24E
Fargo CouleeUpperNESE1320N22E
UT of Fargo CouleeUpperSENW3321N23E
UT of Fargo CouleeUpperNENW120N22E
Ash CreekAsh CreekUpperSWSW1122N41E
Ash CreekLowerSESW2722N42E
Bear CreekBear CreekUpperNENE1525N42E
Bear CreekLowerSWSE1025N42E
Beauchamp CreekBeauchamp CreekUpperNESW1424N26E
Beauchamp CreekLowerSESE3522N28E
Billy CreekBilly CreekUpperSENE1721N34E
Billy CreekLowerNWNE2222N34E
Bobcat CreekBobcat CreekUpperNENE2925N42E
UT of Bobcat CreekUpperNESW2925N42E
Bobcat CreekLowerNWNW3025N41E
Box Creek, North ForkBox Creek, North
ForkUpperSENE423N41E
UT of Box Creek, North ForkUpperNESW923N41E
Box Creek, North ForkLowerNENE1923N42E
Box Creek, South ForkBox Creek, South
ForkUpperNENW2223N41E
Box Creek, South ForkLowerSENE1923N42E
Box Elder CreekBox Elder CreekUpperNESW2923N32E
Box Elder CreekLowerSENE3023N31E
Bridge CouleeBridge CouleeUpperSESW3321N42E
Bridge CouleeLowerNENE1220N42E
Carpenter CreekUpperNWNW1523N35E
Carroll CouleeCarroll CouleeUpperSWNW1120N25E
UT of Carroll CouleeUpperSESE2721N25E
UT of Carroll CouleeUpperSWSW120N25E
UT of Carroll CouleeUpperNWNW320N25E
Carroll CouleeLowerSENE2221N26E
Cat CreekCat CreekUpperNWNW3423N41E
Cat CreekLowerSWSW2823N42E
CK CreekCK CreekUpperNESE2224N25E
CK CreekLowerSESE1221N27E
Cottonwood CreekUpperNWNW3624N24E
Crooked Creek (Garfield County)Crooked Creek (Garfield
County)UpperNWNE421N39E
Crooked Creek (Garfield County)LowerNENE1922N39E
Crooked Creek/Sacagawea RiverCrooked Creek/Sacagawea
RiverUpperSWNW3020N28E
Crooked Creek/Sacagawea RiverLowerSENE3520N29E
Dawson CreekDawson CreekUpperNENE323N41E
Dawson CreekLowerSWSE623N42E
Deadman CouleeDeadman CouleeUpperSESE2021N32E
Deadman CouleeLowerSWNE2221N31E
Devils CreekDevils CreekUpperSESW3021N33E
Devils CreekLowerSENW521N32E
Doney CouleeDoney CouleeUpperSESW1323N33E
Doney CouleeLowerSESW2923N34E
Duval CreekDuval CreekUpperNENW522N24E
Duval CreekLowerNWSE3422N24E
East Fork Crooked CreekEast Fork Crooked
CreekUpperNWNW2522N39E
East Fork Crooked CreekLowerSWSE1022N39E
Fifth CouleeFifth CouleeUpperNWNW3225N39E
Fifth CouleeLowerSESE224N39E
Fourchette CreekFourchette CreekUpperNESE2923N29E
Fourchette CreekLowerNWSW522N31E
Germaine CouleeGermaine CouleeUpperSESE2419N30E
Germaine CouleeLowerSWSW1619N30E
Gilbert CreekGilbert CreekUpperSENE2922N40E
Gilbert CreekLowerNESE422N40E
Hell CreekHell CreekUpperNWSE2721N36E
Hell CreekLowerNWNW1321N37E
Hell Hole CouleeHell Hole CouleeUpperNENE1923N34E
Hell Hole CouleeLowerNENE2823N34E
Karsten CouleeUpperNWNW1222N28E
Kill Woman CreekKill Woman CreekUpperNESE2723N32E
Kill Woman CreekLowerSESE1022N32E
King CouleeKing CouleeUpperSWNE3624N36E
King CouleeLowerSESW923N37E
Little Cottonwood CreekUpperNWNE923N24E
Lone Tree CreekLone Tree CreekUpperNENW2722N41E
Lone Tree CreekLowerNESW3422N42E
Lost Creek (east Garfield Co.)Lost Creek (east Garfield
Co.)UpperSWNE822N42E
Lost Creek (east Garfield Co.)LowerSWSW322N42E
Lost Creek (west Garfield Co.)Lost Creek (west Garfield
Co.)UpperSWSW3221N32E
Lost Creek (west Garfield Co.)LowerSENW3321N31E
Middle Eighth CouleeMiddle Eighth
CouleeUpperNENW2124N38E
Middle Eighth CouleeLowerSWNE3524N38E
North Fork Rock CreekNorth Fork Rock
CreekUpperNWNW3624N43E
North Fork Rock CreekLowerNWNE2023N43E
Norville CreekNorville CreekUpperNESE2824N41E
UT of Norville CreekUpperSESE2124N41E
Norville CreekLowerNWNW3124N42E
Plum CreekUpperSENW323N35E
Renick CouleeRenick CouleeUpperNWNW3223N41E
Renick CouleeLowerNWNE2323N40E
Ried CouleeRied CouleeUpperNESE3221N38E
Ried CouleeLowerNENE1321N37E
Rock CreekRock CreekUpperSWNE3024N25E
Rock CreekLowerNWNE1121N25E
Sage CreekSage CreekUpperNENE823N41E
Sage CreekLowerSWSW3124N41E
Sand CreekSand CreekUpperNENE120N23E
UT of Sand CreekUpperSWSE3521N24E
UT of Sand CreekUpperSWSE2421N23E
UT of Sand CreekUpperSWSE3321N24E
UT of Sand CreekUpperSWSW2621N23E
UT of Sand CreekUpperSWSE1421N23E
Sand CreekLowerNENE921N25E
Seven Blackfoot CreekSeven Blackfoot
CreekUpperSWNW2320N34E
Seven Blackfoot CreekLowerNENW1321N33E
Sevenmile CreekSevenmile CreekUpperSESW1423N25E
Sevenmile CreekLowerSESE721N27E
Sherman CouleeSherman CouleeUpperNWSW118N30E
Sherman CouleeLowerNENE3019N30E
Short CreekShort CreekUpperSENE1021N42E
Short CreekLowerSESE1121N42E
Siparyann CreekSiparyann CreekUpperNENE523N24E
Siparyann CreekLowerSESE3222N25E
Sixth CouleeSixth CouleeUpperSWNW3125N39E
Sixth CouleeLowerSWNW1424N39E
Snap CreekSnap CreekUpperNENE1721N42E
Snap CreekLowerNENE2621N42E
Snow CreekSnow CreekUpperNWSW1421N35E
Snow CreekLowerNESW221N36E
Soda CreekUT of Soda CreekUpperSWNE3021N29E
UT of Soda CreekUpperNESW3121N29E
UT of Soda CreekUpperNWNE2921N29E
UT of Soda CreekUpperSESW3121N29E
UT of Soda CreekUpperNENW3621N28E
Soda CreekLowerSWNW820N30E
Spring CreekSpring CreekUpperNWNE1224N42E
UT of Spring CreekUpperNESW3325N42E
UT of Spring CreekUpperNENW324N42E
UT of Spring CreekUpperNENE1424N42E
UT of Spring CreekUpperNWNW3425N42E
Spring CreekLowerSESE1024N42E
Stole CreekStole CreekUpperSWSE424N42E
Stole CreekLowerSESE924N42E
Sutherland CreekSutherland CreekUpperSWSW3024N36E
UT of Sutherland CreekUpperNWNE3424N36E
Sutherland CreekLowerSWSW1823N37E
Telegraph CreekTelegraph CreekUpperSESE2524N31E
Telegraph CreekLowerNWNE622N31E
Two Calf CreekTwo Calf CreekUpperNENE2222N21E
Two Calf CreekLowerNWNE2822N23E
UT of Musselshell RiverUT of Musselshell
RiverUpperNWSW1719N29E
UT of Musselshell RiverLowerSWNW3019N30E
UT1 of Fort Peck LakeUT1 of Fort Peck
LakeUpperNWNE1422N40E
UT1 of Fort Peck LakeLowerNENW222N40E
UT2 of Fort Peck LakeUT2 of Fort Peck
LakeUpperNENE1724N41E
UT2 of Fort Peck LakeUpperSWNW2124N41E
UT2 of Fort Peck LakeUpperNENE2124N41E
UT2 of Fort Peck LakeLowerSWNW1524N41E
UT3 of Fort Peck LakeUT3 of Fort Peck
LakeUpperNWSW3526N42E
UT of UT3 of Fort Peck LakeUpperSENW3426N42E
UT3 of Fort Peck LakeLowerSENW425N42E
UT4 of Fort Peck LakeUT4 of Fort Peck
LakeUpperNENE2025N42E
UT4 of Fort Peck LakeLowerSENE823N42E
UT5 of Fort Peck LakeUT5 of Fort Peck
LakeUpperSENE2125N42E
UT of UT5 of Fort Peck LakeUpperSENW2225N42E
UT5 of Fort Peck LakeLowerSESW1025N42E
UT6 of Fort Peck LakeUT6 of Fort Peck
LakeUpperNWNE1925N41E
UT6 of Fort Peck LakeLowerSESE2425N41E
UT7 of Fort Peck LakeUT7 of Fort Peck
LakeUpperSESE1424N42E
UT7 of Fort Peck LakeLowerNWNE1524N42E
UT8 of Fort Peck LakeUT8 of Fort Peck
LakeUpperNWSE1324N42E
UT8 of Fort Peck LakeLowerSENW2424N42E
West Fork Sand ArroyoWest Fork Sand
ArroyoUpperSENE924N43E
West Fork Sand ArroyoLowerNESW2024N43E
Wyatt CouleeWyatt CouleeUpperSWNE1223N33E
Wyatt CouleeLowerNESW2223N34E

ARTICLE IV COMPACT 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 V GENERAL 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 VI FINALITY 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.

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