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 Name Amount(cfs) Upstream Limit Downstream Limit

Alkali Creek 0.5 NWSW Sec.27 19N29E SESW Sec.36 19N29E

Antelope Creek 0.5 NWNE Sec.3 22N23E SESE Sec.21 22N23E

Armells Creek 1.0 NWSW Sec.18 21N23E NWSW Sec.32 22N24E

Ash Creek 0.5 NWNW Sec.28 22N42E SESW Sec.27 22N42E

Bear Creek 0.5 NENE Sec.15 25N42E SWSE Sec.10 25N42E

Beauchamp Creek 0.5 NWNE Sec.16 22N28E SESE Sec.35 22N28E

Big Coulee Creek 0.5 NWSW Sec.16 21N33E SWSW Sec.12 21N33E

Big Dry Creek 1.0 SWSW Sec.26 20N42E NESW Sec.12 20N42E

Billy Creek 0.5 SESE Sec.33 22N34E NWNE Sec.22 22N34E

Box Creek, North Fork 0.5 SWSW Sec.18 23N42E NENE Sec.19 23N42E

Box Creek, South Fork 0.5 SWNW Sec.19 23N42E SENE Sec.19 23N42E

Bridge Coulee 0.5 SWNW Sec.1 20N42E NENE Sec.12 20N42E

Cabin Coulee 0.5 SESW Sec.21 23N35E SWSE Sec.5 22N36E

Carroll Coulee 0.5 SWNW Sec.31 21N26E SENE Sec.22 21N26E

Cart Trail Coulee 0.5 NWNW Sec.35 23N33E NENW Sec.1 22N33E

Cat Creek 0.5 NWSW Sec.29 23N42E SWSW Sec.28 23N42E

Cattle Creek 0.5 SWSE Sec.15 22N39E SWSE Sec.10 22N39E

CK Creek 0.5 NWNE Sec.1 22N26E SESE Sec.12 21N27E

Crooked Creek (Garfield County) 0.5 SESE Sec.19 22N39E NENE Sec.19 22N39E

Sacagawea River/ Crooked Creek 0.5 SWSW Sec.27 20N29E SWNW Sec.36 20N29E

Dawson Creek 0.5 NWSW Sec.6 23N42E SWSE Sec.6 23N42E

Devils Creek 0.5 NENE Sec.16 21N32E SENW Sec.5 21N32E

Doney Coulee 0.5 NWNE Sec.30 23N34E SESW Sec.29 23N34E

Duck Creek 0.5 NWNW Sec.1 23N37E NWSE Sec.1 23N37E

Duval Creek 0.5 NENW Sec.5 22N24E NWSE Sec.34 22N24E

Fifth Coulee 0.5 SWNW Sec.33 25N39E SESE Sec.2 24N39E

Fourchette Creek 1.0 NWNW Sec.15 22N30E NWSE Sec.8 22N31E

Germaine Coulee 0.5 SESE Sec.22 19N30E SWSW Sec.16 19N30E

Gilbert Creek 0.5 SWSE Sec.17 22N40E NESE Sec.4 22N40E

Hawley Creek 0.5 NENW Sec.35 22N29E NENE Sec.2 21N28E

Hell Creek 0.5 SESE Sec.16 21N37E NWNW Sec.13 21N37E

Hilliard Coulee 0.5 NENE Sec.20 26N42E NWSW Sec.17 26N42E

Kill Woman Creek 0.5 NENE Sec.3 22N32E SESE Sec.10 22N32E

King Coulee 0.5 NWNW Sec.6 23N37E SESW Sec.9 23N37E

Lone Tree Creek 0.5 NWSW Sec.34 22N42E NESW Sec.34 22N42E

Lost Creek 0.5 SWSE Sec.36 21N31E NWNW Sec.33 21N31E

Middle Eighth Coulee 0.5 NENE Sec.28 24N38E SWNE Sec.35 24N38E

Nelson Creek 0.5 SESW Sec.26 21N43E NENW Sec.27 21N43E

Nichols Coulee 0.5 SWSW Sec.7 22N27E SESE Sec.10 21N27E

North Fork Rock Creek 0.5 NENE Sec.21 23N43E SWSE Sec.17 23N43E

Norville Creek 0.5 NWNW Sec.36 24N41E NWNW Sec.31 24N42E

Renick Coulee 0.5 SESE Sec.24 23N40E NENE Sec.23 23N40E

Ried Coulee 0.5 SWSW Sec.18 21N38E NWNE Sec.13 21N37E

Rock Creek 1.0 NENE Sec.6 22N25E NWNE Sec.11 21N25E

Sand Arroyo 0.5 NWNE Sec.20 24N43E NESW Sec.20 24N43E

Sand Creek 0.5 SWSW Sec.16 21N24E NENE Sec.9 21N25E

Sandburn Coulee 0.5 SESE Sec.1 19N30E SESE Sec.25 20N30E

Seven Blackfoot Creek 0.5 SWSE Sec.13 21N33E NENW Sec.13 21N33E

Sevenmile Creek 0.5 NENW Sec.6 22N26E SESE Sec.7 21N27E

Seventh Coulee 0.5 NWSW Sec.18 24N39E SWNW Sec.20 24N39E

Sherman Coulee 0.5 NESE Sec.33 19N30E NENE Sec.30 19N30E

Siparyann Creek 1.0 NWNW Sec.2 22N24E SESE Sec.32 22N25E

Sixth Coulee 0.5 NWNW Sec.5 24N39E SWNW Sec.14 24N39E

Snap Creek 0.5 SWSW Sec.23 21N42E SENE Sec.26 21N42E

Snow Creek 0.5 SWSW Sec.3 21N36E NESW Sec.2 21N36E

Soda Creek 0.5 SWNW Sec.33 21N29E SWNW Sec.8 20N30E

South Fork Duck Creek 0.5 NWNW Sec.21 25N39E SWNW Sec.14 25N39E

South Fork Rock Creek 0.5 SENE Sec.33 23N43E NWNE Sec.32 23N43E

Spring Creek 0.5 NESE Sec.11 24N42E SESE Sec.10 24N42E

Nancy Russell Creek/ Squaw Creek 0.5 SESE Sec.29 20N31E SWNE Sec.30 20N31E

Sutherland Creek 0.5 SWNW Sec.13 23N36E SWSW Sec.18 23N37E

Telegraph Creek 0.5 NENW Sec.30 23N31E SWSE Sec.31 23N31E

Timber Creek (McCone) 0.5 NENE Sec.17 20N43E SWSE Sec.6 20N43E

Two Calf Creek 0.5 NWNW Sec.30 22N23E NENW Sec.28 22N23E

Upper Eighth Coulee 0.5 NWSW Sec.33 24N38E SENE Sec.4 23N38E

Valentine Creek 0.5 NWNE Sec.10 21N30E SENW Sec.14 22N30E

Wilder Creek 0.5 NENW Sec.12 22N25E SWSE Sec.6 21N26E

Wyatt Coulee 0.5 NWNW Sec.22 23N34E NESW 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 Group Name at Endpoint Upper or Lower Quarter Section Township

Quarter Range

Armells Creek Armells Creek Upper NENE 12 20N21E

Armells Creek Lower SWSW 32 22N24E

Fargo Coulee Upper NESE 13 20N22E

UT of Fargo Coulee Upper SENW 33 21N23E

UT of Fargo Coulee Upper NENW 1 20N22E

Ash Creek Ash Creek Upper SWSW 11 22N41E

Ash Creek Lower SESW 27 22N42E

Bear Creek Bear Creek Upper NENE 15 25N42E

Bear Creek Lower SWSE 10 25N42E

Beauchamp Creek Beauchamp Creek Upper NESW 14 24N26E

Beauchamp Creek Lower SESE 35 22N28E

Billy Creek Billy Creek Upper SENE 17 21N34E

Billy Creek Lower NWNE 22 22N34E

Bobcat Creek Bobcat Creek Upper NENE 29 25N42E

UT of Bobcat Creek Upper NESW 29 25N42E

Bobcat Creek Lower NWNW 30 25N41E

Box Creek, North Fork Box Creek, North Fork Upper SENE 4 23N41E

UT of Box Creek, North Fork Upper NESW 9 23N41E

Box Creek, North Fork Lower NENE 19 23N42E

Box Creek, South Fork Box Creek, South Fork Upper NENW 22 23N41E

Box Creek, South Fork Lower SENE 19 23N42E

Box Elder Creek Box Elder Creek Upper NESW 29 23N32E

Box Elder Creek Lower SENE 30 23N31E

Bridge Coulee Bridge Coulee Upper SESW 33 21N42E

Bridge Coulee Lower NENE 12 20N42E

Carpenter Creek Upper NWNW 15 23N35E

Carroll Coulee Carroll Coulee Upper SWNW 11 20N25E

UT of Carroll Coulee Upper SESE 27 21N25E

UT of Carroll Coulee Upper SWSW 1 20N25E

UT of Carroll Coulee Upper NWNW 3 20N25E

Carroll Coulee Lower SENE 22 21N26E

Cat Creek Cat Creek Upper NWNW 34 23N41E

Cat Creek Lower SWSW 28 23N42E

CK Creek CK Creek Upper NESE 22 24N25E

CK Creek Lower SESE 12 21N27E

Cottonwood Creek Upper NWNW 36 24N24E

Crooked Creek (Garfield County) Crooked Creek (Garfield County) Upper NWNE 4 21N39E

Crooked Creek (Garfield County) Lower NENE 19 22N39E

Crooked Creek/Sacagawea River Crooked Creek/Sacagawea River Upper SWNW 30 20N28E

Crooked Creek/Sacagawea River Lower SENE 35 20N29E

Dawson Creek Dawson Creek Upper NENE 3 23N41E

Dawson Creek Lower SWSE 6 23N42E

Deadman Coulee Deadman Coulee Upper SESE 20 21N32E

Deadman Coulee Lower SWNE 22 21N31E

Devils Creek Devils Creek Upper SESW 30 21N33E

Devils Creek Lower SENW 5 21N32E

Doney Coulee Doney Coulee Upper SESW 13 23N33E

Doney Coulee Lower SESW 29 23N34E

Duval Creek Duval Creek Upper NENW 5 22N24E

Duval Creek Lower NWSE 34 22N24E

East Fork Crooked Creek East Fork Crooked Creek Upper NWNW 25 22N39E

East Fork Crooked Creek Lower SWSE 10 22N39E

Fifth Coulee Fifth Coulee Upper NWNW 32 25N39E

Fifth Coulee Lower SESE 2 24N39E

Fourchette Creek Fourchette Creek Upper NESE 29 23N29E

Fourchette Creek Lower NWSW 5 22N31E

Germaine Coulee Germaine Coulee Upper SESE 24 19N30E

Germaine Coulee Lower SWSW 16 19N30E

Gilbert Creek Gilbert Creek Upper SENE 29 22N40E

Gilbert Creek Lower NESE 4 22N40E

Hell Creek Hell Creek Upper NWSE 27 21N36E

Hell Creek Lower NWNW 13 21N37E

Hell Hole Coulee Hell Hole Coulee Upper NENE 19 23N34E

Hell Hole Coulee Lower NENE 28 23N34E

Karsten Coulee Upper NWNW 12 22N28E

Kill Woman Creek Kill Woman Creek Upper NESE 27 23N32E

Kill Woman Creek Lower SESE 10 22N32E

King Coulee King Coulee Upper SWNE 36 24N36E

King Coulee Lower SESW 9 23N37E

Little Cottonwood Creek Upper NWNE 9 23N24E

Lone Tree Creek Lone Tree Creek Upper NENW 27 22N41E

Lone Tree Creek Lower NESW 34 22N42E

Lost Creek (east Garfield Co.) Lost Creek (east Garfield Co.) Upper SWNE 8 22N42E

Lost Creek (east Garfield Co.) Lower SWSW 3 22N42E

Lost Creek (west Garfield Co.) Lost Creek (west Garfield Co.) Upper SWSW 32 21N32E

Lost Creek (west Garfield Co.) Lower SENW 33 21N31E

Middle Eighth Coulee Middle Eighth Coulee Upper NENW 21 24N38E

Middle Eighth Coulee Lower SWNE 35 24N38E

North Fork Rock Creek North Fork Rock Creek Upper NWNW 36 24N43E

North Fork Rock Creek Lower NWNE 20 23N43E

Norville Creek Norville Creek Upper NESE 28 24N41E

UT of Norville Creek Upper SESE 21 24N41E

Norville Creek Lower NWNW 31 24N42E

Plum Creek Upper SENW 3 23N35E

Renick Coulee Renick Coulee Upper NWNW 32 23N41E

Renick Coulee Lower NWNE 23 23N40E

Ried Coulee Ried Coulee Upper NESE 32 21N38E

Ried Coulee Lower NENE 13 21N37E

Rock Creek Rock Creek Upper SWNE 30 24N25E

Rock Creek Lower NWNE 11 21N25E

Sage Creek Sage Creek Upper NENE 8 23N41E

Sage Creek Lower SWSW 31 24N41E

Sand Creek Sand Creek Upper NENE 1 20N23E

UT of Sand Creek Upper SWSE 35 21N24E

UT of Sand Creek Upper SWSE 24 21N23E

UT of Sand Creek Upper SWSE 33 21N24E

UT of Sand Creek Upper SWSW 26 21N23E

UT of Sand Creek Upper SWSE 14 21N23E

Sand Creek Lower NENE 9 21N25E

Seven Blackfoot Creek Seven Blackfoot Creek Upper SWNW 23 20N34E

Seven Blackfoot Creek Lower NENW 13 21N33E

Sevenmile Creek Sevenmile Creek Upper SESW 14 23N25E

Sevenmile Creek Lower SESE 7 21N27E

Sherman Coulee Sherman Coulee Upper NWSW 1 18N30E

Sherman Coulee Lower NENE 30 19N30E

Short Creek Short Creek Upper SENE 10 21N42E

Short Creek Lower SESE 11 21N42E

Siparyann Creek Siparyann Creek Upper NENE 5 23N24E

Siparyann Creek Lower SESE 32 22N25E

Sixth Coulee Sixth Coulee Upper SWNW 31 25N39E

Sixth Coulee Lower SWNW 14 24N39E

Snap Creek Snap Creek Upper NENE 17 21N42E

Snap Creek Lower NENE 26 21N42E

Snow Creek Snow Creek Upper NWSW 14 21N35E

Snow Creek Lower NESW 2 21N36E

Soda Creek UT of Soda Creek Upper SWNE 30 21N29E

UT of Soda Creek Upper NESW 31 21N29E

UT of Soda Creek Upper NWNE 29 21N29E

UT of Soda Creek Upper SESW 31 21N29E

UT of Soda Creek Upper NENW 36 21N28E

Soda Creek Lower SWNW 8 20N30E

Spring Creek Spring Creek Upper NWNE 12 24N42E

UT of Spring Creek Upper NESW 33 25N42E

UT of Spring Creek Upper NENW 3 24N42E

UT of Spring Creek Upper NENE 14 24N42E

UT of Spring Creek Upper NWNW 34 25N42E

Spring Creek Lower SESE 10 24N42E

Stole Creek Stole Creek Upper SWSE 4 24N42E

Stole Creek Lower SESE 9 24N42E

Sutherland Creek Sutherland Creek Upper SWSW 30 24N36E

UT of Sutherland Creek Upper NWNE 34 24N36E

Sutherland Creek Lower SWSW 18 23N37E

Telegraph Creek Telegraph Creek Upper SESE 25 24N31E

Telegraph Creek Lower NWNE 6 22N31E

Two Calf Creek Two Calf Creek Upper NENE 22 22N21E

Two Calf Creek Lower NWNE 28 22N23E

UT of Musselshell River UT of Musselshell River Upper NWSW 17 19N29E

UT of Musselshell River Lower SWNW 30 19N30E

UT1 of Fort Peck Lake UT1 of Fort Peck Lake Upper NWNE 14 22N40E

UT1 of Fort Peck Lake Lower NENW 2 22N40E

UT2 of Fort Peck Lake UT2 of Fort Peck Lake Upper NENE 17 24N41E

UT2 of Fort Peck Lake Upper SWNW 21 24N41E

UT2 of Fort Peck Lake Upper NENE 21 24N41E

UT2 of Fort Peck Lake Lower SWNW 15 24N41E

UT3 of Fort Peck Lake UT3 of Fort Peck Lake Upper NWSW 35 26N42E

UT of UT3 of Fort Peck Lake Upper SENW 34 26N42E

UT3 of Fort Peck Lake Lower SENW 4 25N42E

UT4 of Fort Peck Lake UT4 of Fort Peck Lake Upper NENE 20 25N42E

UT4 of Fort Peck Lake Lower SENE 8 23N42E

UT5 of Fort Peck Lake UT5 of Fort Peck Lake Upper SENE 21 25N42E

UT of UT5 of Fort Peck Lake Upper SENW 22 25N42E

UT5 of Fort Peck Lake Lower SESW 10 25N42E

UT6 of Fort Peck Lake UT6 of Fort Peck Lake Upper NWNE 19 25N41E

UT6 of Fort Peck Lake Lower SESE 24 25N41E

UT7 of Fort Peck Lake UT7 of Fort Peck Lake Upper SESE 14 24N42E

UT7 of Fort Peck Lake Lower NWNE 15 24N42E

UT8 of Fort Peck Lake UT8 of Fort Peck Lake Upper NWSE 13 24N42E

UT8 of Fort Peck Lake Lower SENW 24 24N42E

West Fork Sand Arroyo West Fork Sand Arroyo Upper SENE 9 24N43E

West Fork Sand Arroyo Lower NESW 20 24N43E

Wyatt Coulee Wyatt Coulee Upper SWNE 12 23N33E

Wyatt Coulee Lower NESW 22 23N34E

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.