Montana's stream access law is under siege by HB 309. With its supposed intention of "Clarifying the prohibition of recreational use of water diverted from a natural water body...", HB 309 seems innocent enough, but a closer inspection of the bill's language reveals its inherent evil.
The bill was introduced by Jeffrey Wellburn (R-Dillon) and was supported by an alarming number of our elected officials as the bill made its way through the House of Representatives this week.
The analysis' of HB 309 from trustworthy organizations that have our interests at heart: Montana Trout Unlimited (TU) and Fishing Outfitters Assoc. of MT (FOAM) reveal that the bill is a serious threat to the status quo of stream access in Montana. You can read a thorough dissection of the bill on the websites of those organizations, but the gist of it is that the bill aims to do more than simply clarify the law as it pertains to irrigation ditches. Rather, the bill would broadly define an irrigation ditch as, "Any waterway created at least in part by waters diverted from a natural water body where the diverted water is the principal source of water in the water body."
There's a lot of gray area in that type of language, it could be interpreted in a number of ways. In a worst case scenario the bill's passing would prohibit public fishing on a lengthy list of the state's best water - from small streams to mainstem rivers.
There are scores of water bodies throughout the state that suffer from low flows during late summer. This situation is exacerbated by - and in some cases rooted in - irrigation out flows. I'll never forget one August day a few years ago when I stopped at Selkirk FAS on the Musselshell - the river was a collection of pools connected by a mere trickle; yet the irrigation ditch paralleling the river was plum full. That is an extreme example, but it's certainly possible that - during periods of low flow - the primary source of in-stream flows on numerous waterways is the return flow from irrigation ditches. HB 309 would define a free flowing river or stream as a "ditch" in such instances.
Looking at the bill from a pragmatic and simple minded angler's perspective, it's completely unnecessary. Assuming that the bill's true intention is to clarify the prohibition of recreation on irrigation ditches, the current stream access law already has that covered. And what's more, who wants to fish a ditch anyway? I can't imagine it really being an issue for landowners.
The bill - and our collective fate - now rests in the hands of the state senate. Whether you live in Montana or not, contact your senator... any MT senator... a republican senator. Should the bill pass the senate, our last line of defense against HB 309 lies in a veto from Governor Brian Schweitzer, but let's not allow it to get that far.
If you don't think this is a big deal, think again - and if you need a second opinion just ask any Utah angler.