Flathead Water Compact draws some critcism
July 29, 2013
The Montana Legislature, responding to a small group of opponents, delayed acceptance of their state's Flathead Water Compact with the Confederated Salish and Kootenai Tribes and the United States. Montana farmers and ranchers fear the agreement will compromise the irrigation needs of western Montana. The water dispute involves the waters of the Flathead River Basin, including Flathead Lake, and includes non-consumptive in-stream flow rights off the Reservation in western Montana. Flathead Lake is the largest freshwater lake in the United States west of the Great Lakes. .
Chris Tweeten, appointed by the Montana Attorney General to chair the Reserved Water Rights Compact Commission (RWRCC), the group that negotiated the compact, says his organization will be working over the next 18 months to help Montana residents better understand how the Compact protects Montana water rights holders from the Tribes' senior water rights claims before it goes before the Montana legislature again.
The RWRCC was established by the Montana Legislature in 1979 as part of the state-wide general stream adjudication process (§85-2-701, MCA). The Compact Commission is composed of nine members, four of whom are appointed by the Governor. Two members are appointed by the President of the Senate, two by the Speaker of the House of Representatives and one member is appointed by the Attorney General. Legal and historical research and technical analysis are prepared for the Commission by a multi-disciplinary staff of five professional and technical members. The staff members include a staff director, one attorney, an agricultural engineer, a hydrologist, and a digital geographer.
"Montana's efforts to accurately record and legally approve water use began when the state legislature adopted a new constitution in 1972, recognizing the need to accurately record and approve water use," Tweeten says. "It was clear then that water use records lacked accuracy, making it difficult to manage water resources. Over the past 40 years, the State of Montana has worked through water rights adjudication to correct water use records and legally establish water use rights. The RWRCC was created to help keep federal and tribal reserved water rights adjudication out of the courts, avoiding expensive and lengthy court proceedings. The Commission has negotiated compacts with six out of seven of Montana's indigenous tribes. Like the other 17 tribal and federal compacts negotiated by the Commission, the Flathead Water Compact protects state water rights holders from the effects of senior federal and tribal rights. Nonetheless, there seems to be a lot of misunderstanding about the Flathead Water Compact."
It has taken the Parties 12 years to develop the Flathead Water Compact agreement that outlines water rights of the tribe and the protections provided to non-tribal water users. The agreement addresses consumptive water claims and non-consumptive instream flow claims with time immorial priority dates. Under the Winters doctrine, the Tribes' reserved water rights hold a priority date of 1855, the earliest in the water basins that serve the Reservation. As a result of the Hellgate Treaty of 1855, the Tribes have, in addition, claims to off-reservation instream flow rights to sustain fisheries.
Montana ranks third among the 48 U.S. continental states in terms of total stream miles, with more than 170,000 miles of streams and rivers flowing across the state. Much of Montana's water resources come from snowmelt running out of the mountains. In spring months, excess moisture from snowmelt is captured and held in reservoirs for later use. Water also flows into the state from Wyoming and Canada.
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Because eastern Montana receives little precipitation, it's classified as semi-arid. The western portion of the state receives much more rain. Overall, Montana's landscape features more than 10,000 lakes and reservoirs and thousands of smaller wetlands, stock ponds and other water bodies.
Tweeten says the RWRCC believes those opposing the Flathead Water Compact are misinformed about how it will affect non-tribal water users.
"Our legislature convenes every two years," Tweeten says. "The compact cannot be approved until it can be brought to the legislature when they reconvene in January 2015. Between now and then, we'll be engaging in public outreach activities to help people become familiar with the terms of the Flathead Water Compact. If we cannot reach an agreement on the terms of the compact, the issue will have to go to the courts because the Tribe has indicated they have no interest in renegotiating the compact."
Tweeten points out that legally documenting Montana's water use helps secure future water resources for all residents of the state.
"In comparison to some states, we are water-rich," Tweeten says. "Going forward, we want to have accurate documentation of water use here in the event that we encounter boundary water issues with another state or with Canada. Through the work of the RWRCC, we're clearly preserving Montana's best interests in regard to water resources."
Stream adjudications are common to many states, including Wyoming, Idaho and Colorado. Early water management practices across the United States primarily involved manipulating the country's abundant freshwater supplies to meet user needs and project availability over the next 100 years. Water management policies resulted in construction of large dams and conveyance systems. Current practices focus more on conservation, recycling, reuse and improved efficiency, commonly referred to as "integrated water-resources management."
"The State of Montana is not in a position to meddle with existing uses of water or instruct farmers on how to make use of their water rights," Tweeten says. "But on the other hand, we have state programs that promote water conservation at the farm level. Obviously, we want to make sure our water resources go as far as they possibly can. In mid to late summer and early fall, when rivers are at their lowest, it's important that water is available to all those who need it. In every state, leaders want to do all they can to make water available at the places and times when it's needed. In that sense, we are all in this together.
"We'd like to keep the Flathead water issues out of the court system," Tweeten added. "There's no further negotiation going on now. Our goal will be to reintroduce this to the Montana legislature in 2015."