For Montana's Water Rights, a Radical and Likely Doomed Idea

December 13, 2016 10:02 PM
 
Gutkoski

Joe Gutkoski's office is cluttered, overflowing with books, papers, magazines. Photos, maps and awards fill wall space not occupied by bookshelves, and two fish are mounted above a closet — a native paddlefish and a non-native brown trout. There are two desks. One supports a computer and faces the wall. The other holds up a stack of unopened mail and faces a window to the snow-covered yard at this house Joe Gutkoski has, this house that has begun feeling a little too big.

Not much else has seemed too big for the short 89-year-old with a neat mustache. He still scales the occasional mountain, and he still fights for environmental causes with apparently boundless energy. Bison, bighorn sheep, grizzly bears — name it, and he has an opinion. He might even have a grand and controversial solution, like his idea about water, reported the Bozeman Daily Chronicle (http://bit.ly/2gbsfNb).

Months from now, the weather will warm and snow will melt. Some of it will soak into the ground, and some will flow into the rivers and streams that thread the state. Farmers and ranchers will divert water out of streams to water crops, keep pastures green and fill water troughs. And, in some places, sections of streams will go dry, potentially portions that usually support fish, a reality Gutkoski despises.

"We're still under that direction for regulation," Gutkoski said, "that you can drain a river despite the value of the fisheries or any other values."

Gutkoski runs a small nonprofit called Montana River Action whose main goal is to change that system. For the eighth time, he is looking for someone to bring a bill to the Montana Legislature that would require 25 percent of average annual streamflow remain in roughly 4,700 miles of streams the state has deemed "dewatering concern areas." The rest of the water could be diverted.

The bill would unwind Montana water law, a premise that virtually guarantees its failure at the Legislature. Even Gutkoski admits that. Each time the bill has been introduced, agriculture and water right lobbyists have swatted it like a fly, and larger conservation and environmental groups have all but ignored it.

It's a radical idea in a state where agriculture is still king, but Gutkoski and a few others believe it's an important idea, especially now. Climate change is expected to bring more frequent drought conditions to the state. Snowpacks aren't accumulating as well as they once did, and runoff is happening earlier. In late summer, rivers run low and their temperatures soar.

In dry times, fish that depend on cold water suffer, like the whitefish in the Yellowstone River this fall, and irrigators aren't legally required to care. Many irrigators do care, and many have taken steps to maintain instream flows to protect stream ecology. But Gutkoski thinks it's wrong to assume all irrigators care, and he wants a legal mandate. He doesn't want the state's fisheries to rely on good will.

Unwinding an Old System

Joe Gutkoski grew up in Pennsylvania, joined the Navy during World War II, studied at Penn State and then moved west to fight fire in the late 1940s. His arrival came long after the foundation for Montana water law was laid.

For more than a century, water rights in Montana and the other western states have been governed by the prior appropriation doctrine. The age of the water right matters most — what the water is used for is almost irrelevant. Under the law, irrigation is as important as instream flow, and instream flow is as important as household use. The most important water rights are simply the oldest.

Many of the oldest water rights belong to irrigators. Some go back to the 1800s, and those who hold senior rights can deny water to junior users if the senior claim hasn't been filled. Montana Fish, Wildlife and Parks holds some water rights for instream flows, but their claims are far junior in most basins, meaning they are subservient to irrigation because their rights are too young.

Gutkoski is one of many critics of that system. Water rights exceed available water in many river basins, creating the opportunity for water users to significantly or totally drain streams.

"Right now, the law says you can dewater an important fishery if no one is calling the water below you," Gutkoski said.

But irrigators and agricultural producers say fears of them draining fisheries are unfounded. Jay Bodner, the natural resources director for the Montana Stockgrowers Association, said irrigators have no interest in drying up streams.

"I think from a production standpoint, you're going to look at trying to utilize the water efficiently. But on the other hand, you're certainly going to look at the environmental impacts," Bodner said. "You're not going to 100 percent dewater a stream."

Dewatering doesn't necessarily mean a stream is reduced to bedrock. It can just mean there isn't enough water for healthy fish habitat. In 1991, Montana Fish, Wildlife and Parks compiled a list of cold water fisheries that biologists said regularly run too low for adequate fish habitat. The list cataloged sections of streams biologists said ran low or dry either in drought years or in virtually all years, a total of more than 4,700 miles.

Last updated in 2005, it includes sections of tributaries in most river basins across the state and portions of big name rivers like the Big Hole, the Beaverhead and the Smith. But the document lacks detail on exactly which parts of the waterbodies are dewatered, and it doesn't say why they are dewatered. Irrigation isn't the only reason streams run low — sometimes streamflow goes underground.

It's not meant to be comprehensive. Mike McLane, an FWP water resource specialist, said there may be more streams around the state that run low, but he said the list does show places FWP is worried about.

That list provides the backbone for Gutkoski's water bill. It focuses on reserving 25 percent of average annual flow for the waterbodies on the list. Allowing the rest to be diverted is something Gutkoski considers an ample compromise.

"It's sharing," Gutkoski said, "sharing to keep important fisheries at a minimum flow."

He's tried to bring it to the Legislature in each of the last seven sessions. It has garnered lobbying support from the Gallatin Wildlife Association and the Fishing Outfitters Association of Montana. Environmentalist George Wuerthner said it reflects the state's shift from a solely agricultural economy to a more diverse one that counts river-based recreation as one of its biggest moneymakers.

"The values have changed in society from 100 years ago," Wuerthner said.

But outside of that, the idea has few friends. Failure has become the norm. It hasn't always reached a committee hearing, the first sign of life for a bill. The last time it did was in 2011, and just days after its committee hearing, the bill died.

Part of the problem is that the bill would prioritize water for streamflow over other uses, unwinding the age-based priority system. Agriculture and water rights groups don't want that to happen.

"That is a system I think has worked very well for Montana water law," Bodner said. "I think it's a system that we don't want to throw out to address an issue where we have drought conditions."

Groups like Trout Unlimited and the Montana Wildlife Federation keep their distance from it, but not because they think water law is perfect. It's because they don't want to get bogged down in the old fight over water law, a fight they take a different tact on now.

Gutkoski doesn't want to let that fight disappear, so he keeps going. It's good to push ideas like this one at the Legislature, he said, "so they know something like that is cooking out there."

Collaboration not War

In late August, about a week after 183 miles of the Yellowstone River was closed to recreation because of the massive whitefish die-off, FWP held a public meeting at the Livingston fairgrounds.

The kill had been going on for about two weeks by then, and estimates put the death toll in the tens of thousands. Tissue samples linked the kill to a parasite that causes proliferative kidney disease, and biologists said low flows and high water temperatures exacerbated the kill. Stressed fish are more susceptible. Many worried this was not an anomaly but a sign of things to come.

Hundreds showed up for the meeting, and dozens had no place to sit; there are never enough chairs at those things. FWP closed the river to give remaining fish affected by the parasite a chance to survive and prevent the parasite's spread, but the move cost businesses money. Guided fishing trips were canceled, lodges saw fewer guests, restaurants fewer diners.

But irrigators weren't asked to turn back any water. Some did, but still, some in the audience saw agriculture as the villain, irrigators as the people to blame.

The meeting was nearing its end when a bearded man in a baseball cap in the back of the room asked why irrigators weren't being asked to sacrifice water, why they aren't regulated more tightly, why some tributaries are allowed to run dry.

Faces hardened under cowboy hats as he spoke, and the FWP staff running the meeting cued up answers they crafted for questions like these: They can't ask irrigators to turn off, and doing so wouldn't have prevented or stopped the kill. Water was scarce in the valley this year, they said, and even some irrigators had trouble getting the water they needed.

The answer may not have been enough for the man who asked for others in the audience who thought the same way he did. The question itself laid bare the usual water war battle lines — someone argues Montana water law unfairly favors irrigators, and irrigators push back.

"That sort of approach gets us nowhere," said Dan Vermillion, an outfitter in Livingston and the chairman of the Montana Fish and Wildlife Commission.

But Vermillion agrees that preserving cold water fisheries as the world warms is important. His business depends on it, as do many others. The Stockgrowers' Bodner said irrigators worry about getting enough water as flow regimes change, too.

"If we have a low snow pack, low water year ... that's going to affect everybody's business," Bodner said.

FWP and groups like Trout Unlimited have leased water rights to boost streamflows with some success. As a result, some streams in the Paradise Valley that once ran dry now stay relatively full year-round. But securing leases requires money and a willing landowner, both of which can be tough to come by.

Vermillion said those who want to see more water in a stream during dry years need to work closely with those who pull water out of it. When water is scarce, irrigators worry as much as fishing guides, and he thinks they can work together.

"Moving forward into what's most likely a dryer climate for Montana," Vermillion said, "It's going to be really important for us to sit down with the folks that control the water rights."

The Big Hole Watershed Committee is often touted as an example of that dynamic being successful. Ranchers and river users have crafted a drought management plan that specifies when irrigators should turn back water and when the state should restrict fishing, a shared sacrifice between both groups. Supporters of this collaborative model want to see it spread to other places in the state.

"At this point, I think we need to see more of these collaboratives given a chance," said Nick Gevock, the conservation director for the Montana Wildlife Federation. "Because it's in everybody's interest."

Bodner likes that idea, too, especially since the solutions that come out are local. Drought conditions hit different places different ways, and he thinks people working together where it happens is the best way to deal with it.

"In many communities, those conversations are going on today," Bodner said.

But Bodner did say that it's not easy to bring everyone together. That's part of what worries Joe Gutkoski. Nobody can be forced to compromise, which is why Gutkoski wants the law to force them to do so.

"If you don't have it in law, when push comes to shove, and you have the authority to drain that stream, you will do it to save your crop," he said.

But the appetite for change just isn't there. Pat Byorth, the Montana Water Project director for Trout Unlimited, said he wouldn't mind a statewide change, but he doesn't want the legal showdown it would invite.

"I think it's a great concept," Byorth said. "But it's not the right legal approach."

Bad Medicine

In the early 1950s, when Gutkoski was a smokejumper, a friend named Norm broke his back during a jump. Norm was laid up in the Missoula hospital, told to lie still on a hump so his muscles could relax enough for the doctors could put a cast on him.

It was painful. Lying in that bed, Norm yelled so loud that anyone who walked into the hospital could hear him.

"Could you imagine laying on that thing?" Gutkoski said. "So finally, we started bringing him whiskey."

Gutkoski and his friends poured their prescription into paper cups and hand-fed it to Norm. He liked it, and it was the only thing that seemed to help, so they kept doing it.

But one time, as Gutkoski was bringing the paper cup to Norm's lips, a nurse walked in. Her name was Milly.

"She just exploded," Gutkoski said, laughing at his kitchen table. "That was the wrong thing to do. But for poor Norm, what else could you do?"

The next part of the story he can't explain: Somehow, he convinced Milly to marry him. Over the next six decades, they settled in Bozeman and raised three kids. He worked for the Forest Service as a landscape architect for a while before becoming a full-time environmentalist, and Milly taught nursing at Montana State University.

A little more than a month ago, Milly died. She was 83.

Gutkoski's house is quieter now, he said, a little too big. He's thinking about renting part of it out. It's already a duplex, and he might turn it into a triplex. He likes the sound of people in the house, and he considers it selfish to keep too much space for himself.

He'll keep his office, though. There's still work to do, still things to fight for. So for the eighth time, he'll go looking for a sponsor for his water bill, despite being told it's the wrong prescription for problems caused by drought.

After all, he's been told he had the wrong prescription before. And all those years ago in the Missoula hospital, even after Milly caught him, they still kept slipping Norm whiskey.

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Comments

 
Spell Check

Kent Hanawalt
McLeod, MT
12/14/2016 06:32 PM
 

  "important fisheries" "recreational use" It will take a real crisis that leads to real hunger for people to understand that eating is more important than fishing.

 
 
Bob Vadas, Jr.
Olympia, WA
12/20/2016 05:35 PM
 

  What's important is keeping our environment healthy enough so that we can have both sustainable fishing and farming. Not leaving decent outdoor-recreational opportunities for our offspring is wimpy and a type of child abuse.

 
 

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