Wyoming State Water Plan
Wyoming State Water Plan
Wyoming Water Development Office
6920 Yellowtail Rd
Cheyenne, WY 82002
Montana, North Dakota and Wyoming
Yellowstone River and its tributaries (Clarks Fork, Big Horn, Tongue and Powder), excluding Yellowstone National Park.
Wyo. Stat. 41-511 (1957) [Act of Jan. 27,1951, Wyo. Sess. Laws p.7]
Mont. Rev. Code 89-903 (1947) [Act ofFeb. 13, 1951, Mont. Laws p. 58]
N. D. Century Code Ann. 61-23-01 (1960) [Act of March 7, 1951, N. D. Laws p. 505]
The Compact deals basically with dividing the waters of the four tributaries to the Yellowstone River. To all tributaries the following rules apply: 1) existing rights as of January 1, 1950 maintain their status quo; 2) no water may be diverted from the Yellowstone River Basin without consent from all states; 3) existing and future domestic and stock water uses including stock water reservoirs up to a capacity of 20 acre-feet are exempted from provisions of the Compact.
The unappropriated or unused total divertible flow of each tributary after needs for supplemental supply for existing rights are met, is allocated to Wyoming and Montana on a percentage basis.
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 goverrments, 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. WalshFor the State of Wyoming:
L. C. Bishop N. V. Kurtz Earl T. Rower 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:
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.
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.
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
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 srvices
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
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.
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
a. To Wyoming......................................................60% To Montana......................................................40% b. The point of measurement shall be below the last diversion from Clarks Fork above Rock Creek.
a. To Wyoming......................................................80% To Montana......................................................20% b. 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.
a. To Wyoming......................................................40% To Montana......................................................60% b. The point of measurement shall be below the last diversion from theTongue River above its junction with the Yellowstone River.
a. To Wyoming.......................................................42% To Montana.......................................................58% b. The point of measurement shall be below the last diversion from the Powder River above its junction with the Yellowstone River.
2. 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 lst
to that given date;
3. 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 lst to that given date:
4. The quantity of water, in acre-feet, that passed the point of measurement in the stream
during the period from October lst to that given date.
E. There are hereby excluded from the provisions of this Compact:
2. Devices and facilities for the control and regulation of surface waters.
Priorities of water rights;
Acreage irrigated;Acreage irrigable under existing works; and
Potentially irrigable lands.
(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.
IN WITNESS WHEREOF, the Commissioners have signed this Compact in quadruplicate original, one of
which shall be filed in the archives of the Department of State of the United States of America
and shall be deemed the authoritative original, and of which a duly certified copy shall be
forwarded to the Governor of each signatory State.
Done at the City of Billings in the State of Montana, this 8th day of December, in the year of
our Lord, One Thousand Nine Hundred and Fifty.
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 JOESEPH MUGGLI JOHN M. JARUSSI CHESTER E. ONSTAD ASHTON JONES ED F. PARRIOTT CHRIS JOSEPHSON R. R. RENNE A. WALLACE KINGSBURY KEITH W. TROUT
Commissioners for the State of North Dakota:
I. A. ACKER J. J. WALSH EINAR H. DAHL
Commissioners 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
I have participated in the negotiation of this Compact and intend to report favorably thereon to the Congress of the United States.
R. J. NEWELL Representative of the United States of America
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 receitly 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.
"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 d oubt 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 Goverrunent in negotiations with the State compactcommissions. The Federal Representatives also are in a position to assist the compact commissionin 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 orthe Federal Goverment, or the later possibility of prolonged and costly litigation.
"F. J. LAWTON
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.