Historic Opportunity to Keep Our Rivers Flowing and Healthy

Boulder River, Montana. Photo: Jeffrey St. Clair.

Montana doesn’t often have a budget surplus — let alone billions of dollars that resulted from the enormous influx of federal funds during the pandemic and massive new federal infrastructure funding. But thanks to that surplus, Governor Gianforte and the upcoming legislative session have a historic opportunity to provide significant, desperately-needed, and permanent relief for Montana’s beleaguered rivers as well as the fisheries, wildlife, towns and industries that rely on them.

For decades rivers like the famed Big Hole have suffered chronic dewatering, primarily due to irrigation made possible by state-issued but over-appropriated water rights. In short, the state has issued more water rights than there is water in the river.

Montana’s politicians have tried a variety of “solutions,” such as watershed councils that have good intentions but have abjectly failed to meet the instream flow challenges despite decades of trying. If anyone needs proof of that failure, look to the recently filed 60-day Notice of Intent to Sue the U.S. Fish and Wildlife Service to force it to add our nearly extinct population of fluvial Arctic grayling to the Endangered Species list.

This is no idle threat, nor is it in any way frivolous. Montana holds the last population of fluvial Arctic grayling in the Lower 48 states. Estimates put their population at about 200 fish, desperately hanging on in what’s left of the chronically dewatered Upper Big Hole River.

Thanks to the antiquated provisions of Western water law, irrigators can take every drop of their water rights they can get, until the river is reduced to a trickle of warm water. Add to that increasing development pressures and the worst mega-drought in the West in the last 1,200 years and unless we figure out a way to restore instream flows, the grayling are doomed.

Since the Montana Constitution specifically states that “all existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed” water rights are considered property rights — and may not be “taken” by the government.

But water rights can be purchased and/or leased between willing buyers and willing sellers — including for instream flow purposes. There are a number of excellent reasons for the state to embark on an aggressive effort to do just that.

The surplus provides a rare and historic opportunity to establish a billion-dollar Instream Flow Trust Fund that, much like the Permanent Coal Tax Trust Fund, would provide on-going interest earnings in perpetuity. That revenue can then be invested in purchasing water rights to keep our rivers flowing, our native species from going extinct, and all without raising a dime in new taxes.

Those who may think it’s not worth it merely to save some “little fishies” should consider that pollution discharge permits issued for development, industry, and municipalities are based on certain levels of instream flows for dilution. While dilution is NOT “the solution to pollution,” without it you wind up with situations like the tragic eutrophic destruction of the once-pristine Gallatin River by Big Sky area sewage discharges — and the discharges by municipalities dwarf those from Big Sky.

We can do this. The situation with our rivers is dire and growing more so by the year. And unlike many of the suggested uses of the surplus, there’s nothing remotely partisan about providing significant and perpetual funding for instream flows. Doing so not only meets the challenges of increasing development in a rapidly warming and drier climate, but keeping our rivers flowing would be a historic “gift that keeps on giving” for generations far into the future.

George Ochenski is a columnist for the Missoulian, where this essay originally appeared.