Yellowstone River Compact

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Yellowstone River Compact
Yellowstone River.jpg
Formation date: 1951
Member jurisdictions: 3
Issue(s): Interstate water apportionment
Compact website

The Yellowstone River Compact is an interstate compact among Montana, North Dakota, and Wyoming.

Governance

The compact established the Yellowstone River Compact Commission, "charged with apportioning the waters of the Yellowstone River and its tributaries."[1] The compact does not grant the commission authority over Yellowstone National Park.

Text of the compact

The legislature of each member state passes the laws with certain and modifications, but the core of the legislation remains the same.

Yellowstone River Compact The State of Montana, the State of North Dakota, and the State of Wyoming, being moved by consideration of interstate comity, and desiring to remove all causes of present and future controversy between said States and between persons in one and persons in another with respect to the waters of the Yellowstone River and its tributaries, other than waters within or waters which contribute to the flow of streams within the Yellowstone National Park, and desiring to provide for an equitable division and apportionment of such waters, and to encourage the beneficial development and use thereof, acknowledging that in future projects or programs for the regulation, control and use of water in the Yellowstone River Basin the great importance of water for irrigation in the signatory States shall be recognized, have resolved to conclude a Compact as authorized under the Act of Congress of the United States of America, approved June 2, 1949 (Public Law 83, 81st Congress, First Session), for the attainment of these purposes, and to that end, through their respective governments, have named as their respective Commissioners:

For the State of Montana:

Fred E. Buck
P. F. Leonard
A. W. Bradshaw
Walter M. McLaughlin
H. W. Bunston
Dave M. Manning
John Herzog
Joseph Muggli
John M. Jarussi
Chester E. Onstad
Ashton Jones
Ed F. Parriott
Chris Josephson
R. R. Renne
A. Wallace Kingsbury
Keith W. Trout

For the state of North Dakota:

I. A. Acker
Einar H. Dahl
J. J. Walsh

For the state of Wyoming:

L. C. Bishop
N. V. Kurtz
Earl T. Bower
Harry L. Littlefield
J. Harold Cash
R. E. McNally
Ben F. Cochrane
Will G. Metz
Ernest J. Goppert
Mark N. Partridge
Richard L. Greene
Alonzo R. Shreve
E. C. Gwillim
Charles M. Smith
E. J. Johnson
Leonard F. Thornton
Lee E. Keith
M. B. Walker

who, after negotiations participated in by R. J. Newell, appointed as the representative of the United States of America, have agreed upon the following articles, to-wit:

Article I

A. Where the name of a State is used in this Compact, as a party thereto, it shall be construed to include the individuals, corporations, partnerships, associations, districts, administrative departments, bureaus, political subdivisions, agencies, persons, permittees, appropriators, and all others using, claiming, or in any manner asserting any right to the use of the waters of the Yellowstone River System under the authority of said State.

B. Any individual, corporation, partnership, association, district, administrative department, bureau, political subdivision, agency, person, permittee, or appropriator authorized by or under the laws of a signatory State, and all others using, claiming, or in any manner asserting any right to the use of the waters of the Yellowstone River System under the authority of said State, shall be subject to the terms of this Compact. Where the singular is used in this article, it shall be construed to include the plural.

Article II

A. The State of Montana, the State of North Dakota, and the State of Wyoming are hereinafter designated as "Montana," "North Dakota," and "Wyoming," respectively.

B. The terms "Commission" and "Yellowstone River Compact Commission" mean the agency created as provided herein for the administration of this Compact.

C. The term "Yellowstone River Basin" means areas in Wyoming, Montana, and North Dakota drained by the Yellowstone River and its tributaries, and includes the area in Montana known as Lake Basin, but excludes those lands lying within Yellowstone National Park.

D. The term "Yellowstone River System" means the Yellowstone River and all of its tributaries, including springs and swamps, from their sources to the mouth of the Yellowstone River near Buford, North Dakota, except those portions thereof which are within or contribute to the flow of streams within the Yellowstone National Park.

E. The term "Tributary" means any stream which in a natural state contributes to the flow of the Yellowstone River, including interstate tributaries and tributaries thereof, but excluding those which are within or contribute to the flow of streams within the Yellowstone National Park.

F. The term "Interstate Tributaries" means the Clarks Fork, Yellowstone River; the Bighorn River (except the Little Bighorn River); the Tongue River; and the Powder River, whose confluences with the Yellowstone River are respectively at or near the city (or town) of Laurel, Big Horn, Miles City, and Terry, all in the State of Montana.

G. The terms "Divert" and "Diversion" mean the taking or removing of water from the Yellowstone River or any tributary thereof when the water so taken or removed is not returned directly into the channel of the Yellowstone River or of the tributary from which it is taken.

H. The term "Beneficial Use" is herein defined to be that use by which the water supply of a drainage basin is depleted when usefully employed by the activities of man.

I. The term "Domestic Use" shall mean the use of water by an individual, or by a family unit or household for drinking, cooking, laundering, sanitation and other personal comforts and necessities; and for the irrigation of a family garden or orchard not exceeding one-half acre in area.

J. The term "Stock Water Use" shall mean the use of water for livestock and poultry.

Article III

A. It is considered that no Commission or administrative body is necessary to administer this Compact or divide the waters of the Yellowstone River Basin as between the States of Montana and North Dakota. The provisions of this Compact, as between the States of Wyoming and Montana, shall be administered by a Commission composed of one representative from the State of Wyoming and one representative from the State of Montana, to be selected by the Governors of said States as such States may choose, and one representative selected by the Director of the United States Geological Survey or whatever Federal agency may succeed to the functions and duties of that agency, to be appointed by him at the request of the States to sit with the Commission and who shall, when present, act as Chairman of the Commission without vote, except as herein provided.

B. The salaries and necessary expenses of each State representative shall be paid by the respective State; all other expenses incident to the administration of this Compact not borne by the United States shall be allocated to and borne one-half by the State of Wyoming and one-half by the State of Montana.

C. In addition to other powers and duties herein conferred-upon the Commission and the members thereof, the jurisdiction of the Commission shall include the collection, correlation, and presentation of factual data, the maintenance of records having a bearing upon the administration of this Compact, and recommendations to such States upon matters connected with the administration of this Compact, and the Commission may employ such services and make such expenditures as reasonable and necessary within the limit of funds provided for that purpose by the respective States, and shall compile a report for each year ending September 30 and transmit it to the Governors of the signatory States on or before December 31 of each year.

D. The Secretary of the Army; the Secretary of the Interior; the Secretary of Agriculture; the Chairman, Federal Power Commission; the Secretary of Commerce, or comparable officers of whatever Federal agencies may succeed to the functions and duties of these agencies, and such other Federal officers and officers of appropriate agencies, of the signatory States having services or data useful or necessary to the Compact Commission, shall cooperate, ex-officio, with the Commission in the execution of its duty in the collection, correlation, and publication of records and data necessary for the proper administration of the Compact; and these officers may perform such other services related to the Compact as may be mutually agreed upon with the Commission.

E. The Commission shall have power to formulate rules and regulations and to perform any act which they may find necessary to carry out the provisions of this Compact, and to amend such rules and regulations. All such rules and regulations shall be filed in the office of the State Engineer of each of the signatory States for public inspection.

F. In case of the failure of the representatives of Wyoming and Montana to unanimously agree on any matter necessary to the proper administration of this Compact, then the member selected by the Director of the United States Geological Survey shall have the right to vote upon the matters in disagreement and such points of disagreement shall then be decided by a majority vote of the representatives of the States of Wyoming and Montana and said member selected by the Director of the United States Geological Survey, each being entitled to one vote.

G. The Commission herein authorized shall have power to sue and be sued in its official capacity in any Federal Court of the signatory States, and may adopt and use an official seal which shall be judicially noticed.

Article IV

The Commission shall itself, or in conjunction with other responsible agencies, cause to be established, maintained, and operated such suitable water gaging and evaporation stations as it finds necessary in connection with its duties.

Article V

A. Appropriative rights to the beneficial uses of the water of the Yellowstone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation.

B. Of the unused and unappropriated waters of the Interstate tributaries of the Yellowstone River as of January 1, 1950, there is allocated to each signatory State such quantity of that water as shall be necessary to provide supplemental water supplies for the rights described in paragraph A of this Article V, such supplemental rights to be acquired and enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation, and the remainder of the unused and unappropriated water is allocated to each State for storage or direct diversions for beneficial use on new lands or for other purposes as follows:

  1. Clarks Fork, Yellowstone River
To Wyoming -- 60%
To Montana -- 40%
The point of measurement shall be below the last diversion from Clarks Fork above Rock Creek.
    1. Bighorn River (Exclusive of Little Bighorn River)
To Wyoming -- 80%
To Montana -- 20%
The point of measurement shall be below the last diversion from the Bighorn River above its junction with the Yellowstone River, and the inflow of the Little Bighorn River shall be excluded from the quantity of water subject to allocation.
      1. Tongue River
To Wyoming: -- 40%
To Montana: -- 60%
The point of measurement shall be below the last diversion from the Tongue River above its junction with the Yellowstone River.
        1. Powder River (Including the Little Powder River)
To Wyoming: -- 42%
To Montana: -- 58%
The point of measurement shall be below the last diversion from the Powder River above its junction with the Yellowstone River.

C. The quantity of water subject to the percentage allocations, in Paragraph B 1, 2, 3 and 4 of this Article V, shall be determined on an annual water year basis measured from October 1st of any year through September 30th of the succeeding year. The quantity to which the percentage factors shall be applied through a given date in any water year shall be, in acre-feet, equal to the algebraic sum of:

  1. The total diversions, in acre-feet, above the point of measurement, for irrigation, municipal, and industrial uses in Wyoming and Montana developed after January 1, 1950, during the period from October 1st to that given date;
    1. The net change in storage, in acre-feet, in all reservoirs in Wyoming and Montana above the point of measurement completed subsequent to January 1, 1950, during the period from October 1st to that given date;
      1. The net change in storage, in acre-feet, in existing reservoirs in Wyoming and Montana above the point of measurement, which is used for irrigation, municipal, and industrial purposes developed after January 1, 1950, during the period October 1st to that given date:
        1. The quantity of water, in acre-feet, that passed the point of measurement in the stream during the period from October 1st to that given date;

D. All existing rights to the beneficial use of waters of the Yellowstone River in the States of Montana and North Dakota, below Intake, Montana, valid under the laws of these States as of January 1, 1950, are hereby recognized and shall be and remain unimpaired by this Compact. During the period May 1 to September 30, inclusive, of each year, lands within Montana and North Dakota shall be entitled to the beneficial use of the flow of waters of the Yellowstone River below Intake, Montana, on a proportionate basis of acreage irrigated. Waters of tributary streams, having their origin in either Montana or North Dakota, situated entirely in said respective States and flowing into the Yellowstone River below Intake, Montana, are allotted to the respective States in which situated.

E. There are hereby excluded from the provisions of this Compact:

  1. Existing and future domestic and stock water uses of water: Provided, That the capacity of any reservoir for stock water so excluded shall not exceed 20 acre-feet;
    1. Devices and facilities for the control and regulation of surface waters.

F. From time to time the Commission shall re-examine the allocations herein made and upon unanimous agreement may recommend modifications therein as are fair, just, and equitable, giving consideration among other factors to:

Priorities of water rights;
Acreage irrigated;
Acreage irrigable under existing works; and
Potentially irrigable lands.

Article VI

Nothing contained in this Compact shall be so construed or interpreted as to affect adversely any rights to the use of the waters of Yellowstone River and its tributaries owned by or for Indians, Indian tribes, and their reservations.

Article VII

A. A lower signatory State shall have the right, by compliance with the laws of an upper signatory State, except as to legislative-consent, to file application for and receive permits to appropriate and use any waters in the Yellowstone River System not specifically apportioned to or appropriated by such upper State as provided in Article V; and to construct or participate in the construction and use of any dam, storage reservoir, or diversion works in such upper State for the purpose of conserving and regulating water that may be apportioned to or appropriated by the lower State: Provided, That such right is subject to the rights of the upper State to control, regulate, and use the water apportioned to and appropriated by it: And provided further, That should an upper State elect, it may share in the use of any such facilities constructed by a lower State to the extent of its reasonable needs upon assuming or guaranteeing payment of its proportionate share of the cost of the construction, operation, and maintenance. This provision shall apply with equal force and effect to an upper State in the circumstance of the necessity of the acquisition of rights by an upper State in a lower State.

B. Each claim hereafter initiated for an appropriation of water in one signatory State for use in another signatory State shall be filed in the Office of the State Engineer of the signatory State in which the water is to be diverted, and a duplicate copy of the application or notice shall be filed in the office of the State Engineer of the signatory State in which the water is to be used.

C. Appropriations may hereafter be adjudicated in the State in which the water is diverted, and where a portion or all of the lands irrigated are in another signatory State, such adjudications shall be confirmed in that State by the proper authority. Each adjudication is to conform with the laws of the State where the water is diverted and shall be recorded in the County and State where the water is used.

D. The use of water allocated under Article V of this Compact for projects constructed after the date of this Compact by the United States of America or any of its agencies or instrumentalities, shall be charged as a use by the State in which the use is made: Provided, That such use incident to the diversion, impounding, or conveyance of water in one State for use in another shall be charged to such latter State.

Article VIII

A lower signatory State shall have the right to acquire in an upper State by purchase, or through exercise of the power of eminent domain, such lands, easements, and rights-of-way for the construction, operation, and maintenance of pumping plants, storage reservoirs, canals, conduits, and appurtenant works as may be required for the enjoyment of the privileges granted herein to such lower State. This provision shall apply with equal force and effect to an upper State in the circumstance of the necessity of the acquisition of rights by an upper State in a lower State.

Article IX

Should any facilities be constructed by a lower signatory State in an upper signatory State under the provisions of Article VII, the construction, operation, repairs, and replacements of such facilities shall be subject to the laws of the upper State. This provision shall apply with equal force and effect to an upper State in the circumstance of the necessity of the acquisition of rights by an upper State in a lower State.

Article X

No water shall be diverted from the Yellowstone River Basin without the unanimous consent of all the signatory States. In the event water from another river basin shall be imported into the Yellowstone River Basin or transferred from one tributary basin to another by the United States of America, Montana, North Dakota, or Wyoming, or any of them jointly, the State having the right to the use of such water shall be given proper credit therefore in determining its share of the water apportioned in accordance with Article V herein.

Article XI

The provisions of this Compact shall remain in full force and effect until amended in the same manner as it is required to be ratified to become operative as provided in Article XV.

Article XII

This Compact may be terminated at any time by unanimous consent of the signatory States, and upon such termination all rights then established hereunder shall continue unimpaired.

Article XIII

Nothing in this Compact shall be construed to limit or prevent any State from instituting or maintaining any action or proceeding, legal or equitable, in any Federal Court or the United States Supreme Court, for the protection of any right under this Compact or the enforcement of any of its provisions.

Article XIV

The physical and other conditions characteristic of the Yellowstone River and peculiar to the territory drained and served thereby and to the development thereof, have actuated the signatory States in the consummation of this Compact, and none of them, nor the United States of America by its consent and approval, concedes thereby the establishment of any general principle or precedent with respect to other interstate streams.

Article XV

This Compact shall become operative when approved by the Legislature of each of the signatory States and consented to and approved by the Congress of the United States.

Article XVI

Nothing in this Compact shall be deemed:

(a) To impair or affect the sovereignty or jurisdiction of the United States of America in or over the area of waters affected by such compact, any rights or powers of the United States of America, its agencies, or instrumentalities, in and to the use of the waters of the Yellowstone River Basin nor its capacity to acquire rights in and to the use of said waters;
(b) To subject any property of the United States of America, its agencies, or instrumentalities to taxation by any State or subdivision thereof, nor to create an obligation on the part of the United States of America, its agencies, or instrumentalities, by reason of the acquisition, construction, or operation of any property or works of whatsoever kind, to make any payments to any State or political subdivision thereof, State agency, municipality, or entity whatsoever in reimbursement for the loss of taxes;
(c) To subject any property of the United States of America, its agencies, or instrumentalities, to the laws of any State to an extent other than the extent to which these laws would apply without regard to the Compact.

Article XVII

Should a Court of competent jurisdiction hold any part of this Compact to be contrary to the constitution of any signatory State or of the United States of America, all other severable provisions of this Compact shall continue in full force and effect.

Article XVIII

No sentence, phrase, or clause in this Compact or in any provision thereof, shall be construed or interpreted to divest any signatory State or any of the agencies or officers of such States of the jurisdiction of the water of each State as apportioned in this Compact.

Notes on the compact

The following were attached to the compact, but are not considered part of its original text.

Congressional consent to negotiations.---By the Act of June 2, 1949 (63 Stat. 152), the Congress gave its consent to the negotiation by the States of Montana, North Dakota, and Wyoming, of a Yellowstone River Compact or agreement not later than June 1, 1952. The consent was upon condition that "one suitable person, who shall be appointed by the President of the United States, shall participate in said negotiations as the representative of the United States and shall make a report to Congress of proceedings and of any compact or agreement entered into." The Act further provided that the compact or agreement should not be effective until "approved" by the legislatures of the States and by the Congress and that "nothing in this Act shall apply to any waters within or tributary to the Yellowstone National Park or shall establish any right or interest in or to any lands within the boundaries thereof.

"In a letter to Robert Newell, the Federal representative on the Yellowstone River Compact negotiating commission, the President expressed his views on certain possible compact provisions by reference to the recently approved Snake River Compact. The text of the letter and an attached memorandum from the Director of the Bureau of the Budget follow:

"May 3, 1950 "MY DEAR MR. NEWELL: The purpose of this letter is to call your attention to a problem of growing concern and, in the solution of which, the Federal Representatives assigned to interstate water compact commissions are in a position to perform a valuable public service. I refer to the somewhat recent tendency to incorporate in interstate water compacts questionable or conflicting provisions imposing restrictions on use of waters by the United States, such as appear in the Snake River Compact enactment which I approved on March 21, 1950 (Public Law 464, 81st Congress, 2nd Session).

"In this particular case, the possibility of misinterpretation of certain apparently conflicting provisions was not considered to be serious enough to warrant withholding approval of the enrolled enactment of the Congress (S.3159). Such provisions, however, if followed as precedent for general application, may jeopardize the prospect of consent and approval of compacts by the Federal Government because of the far reaching effects such provisions might have upon the interests of the United States. This matter is further discussed in a memorandum to me from the Director of the Bureau of the Budget, a copy of which is enclosed for your information and guidance.

"I fully realize how difficult it is to resolve the numerous complex jurisdictional and other problems encountered in reaching agreement upon the allocation of waters of an interstate stream. At the same time, I am impressed with the importance of insuring that compact provisions reflect as clearly as possible a recognition of the respective responsibilities and prerogatives of the United States and the affected States. I can assure you that any efforts made by you and the other compact commissioners, with whom you have occasion to collaborate in eliminating or correcting this area of possible conflict, will be appreciated.

"Sincerely yours, "HARRY S TRUMAN" "April 21, 1950 "Memorandum for the President: "Analysis of the enrolled enactment granting the consent and approval of the Congress to the Snake River Compact, prior to your approval on March 21, 1950, (Public Law 464, 81st Congress, 2nd Session), revealed the possibility of misinterpretation of certain apparently conflicting provisions, which did not appear to be serious enough in this particular case to provide a sound basis for recommending disapproval of the bill, but which, if followed as precedent for general application, might have far reaching effects upon the interests of the United States. The conflicts arise primarily between specific provisions imposing restrictions upon uses of water by the United States for power and other purposes, and the general savings clause in Article XIV. This article provides that nothing in the compact shall be deemed to impair or affect any rights or powers of the United States in and to the use of the waters of the Snake River nor its capacity to acquire rights in and to the use of said waters. By reason of such conflicts, doubts may arise as to the extent of the control which the States concerned may exercise over the rights, interests and structures owned or built by the United States on the river. The resulting possibility of confusion thus tends to defeat one of the basic purposes of the compact, of settling the respective rights and interests of the Federal and State Governments in, over and to the river. "The Committee on Public Lands of the House of Representatives, in its report on the bill (S. 3159) recorded its interpretation of the term "beneficial uses" appearing in Article XIV-B, as not regarded by the Committee as including the use and control of water by the United States by reason of its power with respect to navigable waters under the commerce clause of the Constitution (H.R. Report No. 1743, 81st Congress, 2nd Session). It is also significant that the Congress saw fit to include in the enactment a provision (Section 2) expressly preserving to the United States the right to alter, amend, and repeal the Act at any time.

"Somewhat similar provisions appear in the proposed Cheyenne River Compact now pending before Congress (H.R. 3336 and S. 1211) and in the Republican River Compact approved May 26, 1943, and the Belle Fourche River Basin Compact approved February 26, 1944. In approving each of these latter enactments, President Roosevelt issued a statement emphasizing that the procedure prescribed by the bill for exercise of the powers of the Federal Government, would not be entirely satisfactory in all circumstances and that these compacts should not serve as precedents, particularly for streams where there appears to be a possible need for Federal comprehensive multiple purpose development or where opportunities for important electric power projects are present. Likewise the Snake River Compact should not serve as a precedent.

"In its report on S. 3159 the Public Lands Committee of the Senate expressed the view that the compact method is the logical and proper manner to settle interstate water controversies. With this view I am in accord but I am also mindful that compact provisions, which are subject to misinterpretation or leave in doubt the respective rights and interests of the United States and the affected States, serve to impair these rights. It is obvious therefore, that the compact method places upon the compact commissioners the important responsibility of drawing compacts in specific and unequivocal language, devoid of all possible ambiguity, and which do not attempt to define, limit or otherwise determine the extent of the powers to be exercised by the United States which is a matter for determination by the Congress through Federal legislation as required. "The importance of insuring that future compacts more adequately reflect a clear recognition of the respective responsibilities and prerogatives of the United States and the affected States, I believe is readily apparent. In formulating provisions of interstate water compacts, which impose restrictions upon use by the United States of waters in the streams concerned, the responsibility for protecting the rights and interests of the United States rests in the first instance upon those appointed to represent the Federal Government in negotiations with the State compact commissions. The Federal Representatives also are in a position to assist the compact commission in avoiding further use of questionable or conflicting provisions similar to the aforementioned, in order to minimize the possibility of disapproval of the compact by the State legislatures or the Federal Government, or the later possibility of prolonged and costly litigation.

"F. J. LAWTON "Director"

Congressional consent to compact.---Act of October 30, 1951 (65 Stat. 663), from which the text of the compact above set out is taken. Section 2 of this Act reads as follows: "The right to alter, amend or repeal section 1 of this Act is expressly reserved. This reservation shall not be construed to prevent the vesting of rights to the use of water pursuant to applicable law and no alteration, amendment, or repeal of section 1 of this Act shall be held to affect rights so vested.

"For legislative history, see S. 1311 and H. R. 3544, 82nd Congress; Senate Report 883 (Committee on Interior and Insular Affairs) and House Report 1118 (Committee on Interior and Insular Affairs), 82nd Congress; 97 Cong. Rec. 12954-12956, 13478-13480 (1951); P.L. 231, 82nd Congress. }}

See also

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