Let it flow

Supreme Court gets Smith River ruling right



It’s springtime in the Rockies, when the days get longer, the wildflowers burst forth in all their glory and the thoughts of many Montanans turn to the magnificent rivers for which our state is world-renowned. The good news is that thanks to a recent Montana Supreme Court decision, the chances of keeping our famous rivers flowing are looking much better.

This story starts, as do so many unfortunate tales, during the benighted Martz administration. Of the thousands of miles of great rivers in our enormous state, only one stretch, on the Smith, is so popular you need a permit to get on it during floating season. Applying for the permit costs money, and should you be lucky enough to draw one in the Fish, Wildlife & Parks lottery, you have to pay even more to float the river. Nonetheless, the number of applicants far outweighs the relatively few permits awarded.

The river itself is indeed spectacular—cold, clear and filled with trout, it winds through about 40 miles of towering cliffs on the standard 60-mile trip. Overnight camping is allowed only in limited “float-in” boat camps, and you have to pick all the spots you’re going to stay prior to hitting the water on the day of your launch to ensure that your site is yours alone.

During the Martz administration, however, the Montana Department of Natural Resources and Conservation (DNRC) received a number of permit applications for massive pumping of groundwater near the Smith’s headwaters. How massive? Well, considering that the Smith is really quite a small river and that its lower sections often go dry during the summer due to upstream dewatering, the applications to pump 7,205 gallons per minute caused heart palpitations in those who love and use the Smith—which brings us to the core of the issue.

Several downstream water rights holders, Trout Unlimited (TU) and a longtime Smith River outfitter opposed the pumping, saying it would hurt the fishery, recreational use and the outfitter’s business—to say nothing of depriving the downstream water rights holders of the water they use to irrigate their crops and water their livestock.

But remember, this was the Martz administration, made infamous by the governor’s own description of herself as a “lapdog to industry,” and the concerns of those who would be adversely affected by such massive dewatering fell on deaf ears.

The director of DNRC at the time was Bud Clinch, a former timber lobbyist who went through the revolving door into government, served his former clients to the best of his ability while ostensibly serving the public, and has now gone back through the revolving door to become an industry lobbyist.

The problem, however, was that science and law were not on the applicants’ side. The Smith, like so many Montana rivers, was already over-appropriated. Without getting too far into the complexity of western water law, suffice it to say that water has been legally awarded to users on a “first in time, first in right” basis. Simply put, that means those who filed their water rights claims earliest take precedent over those who came later. When there’s plenty of water in the creek, no problem. But when Montana’s droughts roll through, as they do on an increasingly frequent basis thanks to global warming, the “senior” water rights holders can have “junior” users shut down to ensure they get their water.

Because it is over-appropriated, the Smith, like all of the Upper Missouri Basin, was closed to new surface water appropriations by the Legislature. But the basin closure law allowed new groundwater wells, provided the water they were pumping was not “immediately or directly connected to surface water.” Therein lay the kernel of the dispute that the Supreme Court finally resolved.

DNRC hydrogeologist Bill Uthmann had already written technical reports that found: “All surface, stream flows, marshes, lakes, wetlands and groundwater that’s found in the alluvial aquifers and bedrock aquifers is part of the same water system.” Existing pumping on the Smith had already resulted in lower river flows and documented fish kills. “It can be stated with certainty,” Uthmann wrote, “that groundwater withdrawals have created impacts to the surface flow of the Smith River.”

Any logical interpretation of Uthmann’s findings would seem to end the debate on permitting further pumping. But remember, this was the Martz administration, when logic took a long vacation. Instead, ignoring hydrogeology and the technical reports of his own agency, Clinch made a determination of his own, saying: “Simply put, we interpret the meaning of ‘direct or immediate’ to mean that if groundwater molecules are intercepted and pumped through a well casing before they make physical contact with surface water molecules, they were never connected.”

Given the potentially disastrous consequences of the massive pumping, TU, the outfitter and the downstream ranchers made an appeal directly to the Supreme Court for a determination.

In a split decision the Court ruled against the pumping and found Clinch’s premise of “molecular connection” to be without merit and in contradiction of the law. As Justice Brian Morris wrote: “The plain language of the statute demonstrates the legislature’s intent to prohibit processing or granting of applications for groundwater that either has an immediate connection to surface flows or has a direct connection to surface flows, or both.” Morris found the proposed pumping would actually pull water from the river through a process called “induced infiltration,” and would likely intercept groundwater that would otherwise have entered the stream, a scenario described as “prestream capture of tributary groundwater.”

The Court has saved the Smith, at least for now, but the implications go far beyond one river. As development pressures in our river valleys mount, keeping the water in our rivers will only get more difficult as those who are denied surface water seek groundwater permits. For the future of the fish, the floaters and the downstream water rights holders, all Montanans who truly love our great rivers should celebrate the Court’s decision to let it flow.

When not lobbying the Montana Legislature, George Ochenski is rattling the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at


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