85-20-801. United States Fish and Wildlife Service, Red Rock Lakes-Montana compact ratified. The compact entered into by the State of Montana and the United States Fish and Wildlife Service and filed with the secretary of state of the State of Montana under the provisions of 85-2-702 on April 20, 1999, is ratified. The compact is as follows:

WATER RIGHTS COMPACT

STATE OF MONTANA

UNITED STATES OF AMERICA, FISH AND WILDLIFE SERVICE

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 existing on the effective date of the Compact to water for Red Rock Lakes National Wildlife Refuge and Wilderness Area (“Refuge”) administered by the U.S. Fish and Wildlife Service (FWS) within the State of Montana.

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, 85-2-703, MCA, provides that the state may negotiate compacts concerning the equitable division and apportionment of water between the state and its people and the federal government with claims to non-Indian reserved water rights 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 Red Rock Lakes National Wildlife Refuge and Wilderness Area, in the State of Montana;

WHEREAS, the United States, in quantifying its water rights recognizes the need to accommodate the interests of the State and its citizens by providing for the development and use of water in the vicinity of the Fish and Wildlife Service Refuges to the extent that it is possible to do so without materially affecting the rights and interests of the United States;

WHEREAS, the United States 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. §§516-17 (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 I – DEFINITIONS

For purposes of this Compact only, the following definitions shall apply:

1. ”Abstract” means the copy of the document entitled “Abstract of U.S. Fish and Wildlife Service Water Rights” referenced in this Compact as Appendix 1.

2. ”Consumptive” when referring to a water right recognized under state law means a use of water which removes water from the source of supply such that the quality or quantity is reduced or the timing of return delayed, making it unusable or unavailable for use by others, and includes evaporative loss from impoundments or natural lakes.

3. ”Department” means the Montana Department of Natural Resources and Conservation or its successor.

4. ”Developed spring” means any diversion from a spring for beneficial use under state law and does not require augmentation of flow.

5. ”Effective date of this Compact” means the date of the ratification of the Compact by the Montana legislature, written approval by the United States Department of the Interior, or written approval by the United States Department of Justice, whichever is latest.

6. ”Groundwater” means water that is beneath the ground surface.

7. ”Minimum flow” means the flow of water in a stream measured in cubic feet per second at the point designated in Article II of the Compact, at or below which the United States has the right to seek curtailment of junior water rights upstream from the Refuge.

8. ”Natural flow” means the water that the parties agree shall remain in the stream in satisfaction of the United States’ water right for the purposes of the federal reservation.

9. ”Non-consumptive” see “consumptive”

10. ”Parties” means the State of Montana and the United States.

11. ”Person” means an individual, association, partnership, corporation, state agency, political subdivision, or any other entity, but does not include 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. ”Red Rock Lakes National Wildlife Refuge” means those lands located in Montana that were withdrawn and reserved by Executive Orders No. 7023 of April 22, 1935, and 7172 of September 4, 1935, and all lands acquired by the United States Fish and Wildlife Service within the boundaries established by Executive Orders 7023 and 7172.

14. ”Red Rock Lakes Wilderness Area” means those lands within Red Rock Lakes National Wildlife Refuge designated as wilderness by Public Law 94-557 of October 19, 1976, 16 USC 1132.

15. ”Refuge” means both the Red Rock Lakes National Wildlife Refuge and the Red Rock Lakes Wilderness Area.

16. ”State” means the State of Montana and all officers, agents, departments, and political subdivisions thereof. Unless otherwise indicated, for purposes of notification or consent, “state” means the Director of the Montana Department of Natural Resources and Conservation or his or her designee.

17. ”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 his or her designees.

ARTICLE II – WATER RIGHT

The parties agree that the following water rights are in settlement of all of the United States’ water rights for the Refuge, including federal reserved and state-based water rights acquired with the purchase of land. The parties to this agreement recognize that the water rights described in this Compact are junior to any tribal water rights with a priority date before the effective date of the Compact, including aboriginal rights, if any, in the basins affected. All water rights described in this Article are subject to Article IV.A. of this Compact.

A. Quantification: The United States shall have the right to water from the following sources where they occur on the Refuge:

1. Consumptive Use:

Red Rock Lakes National Wildlife Refuge — Consumptive Use