FULL STREAM AHEAD: Commission seeks compromise between Montana irrigation, aboriginal and reserve water rights
The commission charged with negotiating federal water reserve rights in Montana unanimously approved its draft agreement between the Confederated Salish and Kootenai Tribes (CSKT), the state of Montana and the federal government Jan. 12.
The compact is now is now up for the consideration of the 64th Legislative body.
The Montana Reserved Water Rights Compact Commission unanimously approved the 65-page document at its final public hearing in Helena, Montana, Monday evening, after gathering an additional 41 public comments on the issue. Compact commission supervisor Arne Wick said of those commenters, 33 were in support of the compact and eight were in opposition. The compact will now be drafted into a bill and pursued through the legislative process.
If passed by the legislature, the compact will solidify on-reservation and off-reservation water rights for the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation in western Montana. Compact commissioners and staff say this agreement protects valid existing water users and establishes a process by which to monitor and quantify water use.
“The task was, from everyone’s point of view, to preserve historic deliveries of water to irrigators while also providing more water to instream flow projects for the tribe,” Sen. Dick Barrett (D-SD47) said. He is one of two compact commissioners appointed by the president of the senate.
The heart of 2014 negotiations has been how to allocate water between irrigators served by the Flathead Indian Irrigation Project and instream flows on the reservation which tribes desire for the purpose of fisheries maintenance.
“First and foremost, they [irrigators] have expressed concern about the ability to have assurance that they would have a certain quantity of water available,” Melissa Hornbein, staff attorney for the commission said. “Despite the fact that it’s been a bit of a political lightning rod, this entirely protects junior water users east of the Continental Divide and most of the junior water users west of the Continental Divide.”
“In order to do something like that, you have to have more water,” Barrett said. “So what the negotiation was largely about was improving the efficiency of irrigation projects. By improving the efficiency of the projects, you can deliver the same amount of water to the farms and divert less water from the streams.”
These measures, and others included in the proposed settlement, come at an estimated $55 million price tag.
According to the compact summary on the commission’s website, the agreement proposes allocating $30 million to provide annual payment to offset the cost of pumping water from the Flathead River into the irrigation system in the case of a water shortage, $13 million to provide for aquatic and terrestrial habitat enhancement, $4 million for mitigating the loss of stockwater deliveries from the irrigation project, $4 million for improving on-farm efficiency, and $4 million for water measurement activities.
“The funds will come over time – we’re not going to come up with all $55 million at once,” Barrett said. He said the funds would likely comes from the state’s general fund in the initial year. The Tribes will dedicate an unspecified amount to fund portions of the operational improvements and the rehabilitation and betterment projects, depending upon the settlement funding they receive from the federal government. The compact notes the state’s funds will be committed within five years of federal ratification of compact legislation.
Hornbein added that while the compact provides the framework for use, delivery and administration, “it does not take away their ability to have their day in court.” Users still have the ability to litigate water claims if they wish.
“Litigation has its strengths, but it’s only capable of clarifying rights,” she said. “We think it’s a less optimal solution – it’s less flexible, there’s no room for compromise.”
This is the final compact negotiation between the state and tribes, as the June 30, 2015 deadline for all users to claim water rights under the state’s legislatively-mandated adjudication process looms.
“The most critical thing to understand about this compact is, this is the state complying with existing treaties and laws. Those water rights already exist – this settlement process just gives us the ability to be flexible, creative and focus on local control and local input,” Hornbein said.
The CSKT compact originally entered negotiations in the early 1980s, she said. Current negotiations began in 2001, broke off, resumed in 2007, and have been ongoing since. The commission submitted a compact to the 2013 legislature. The compact was returned to the commission unratified, and the negotiations resumed with a focus on public input and research, Hornbein said.
Since the 2013 session, Barrett noted that the water policy interim committee also spent time studying the agreement and commissioned independent studies on the legal basis and technical modeling of the agreement.
“It’s a big and complex agreement,” Hornbein said. “I wish it could be simpler, but by taking the time to work through the agreement, we believe it’s a better agreement that better protects the interest of current users.”
If approved by Montana legislators, the compact will still need to be approved by the U.S. Congress and the Tribes. If all three parties come to agreement on the settlement, it will be submitted to the Water Court for final approval.
To learn more, or to read the compact in its entirety, visit dnrc.mt.gov/rwrcc/Compacts/CSKT/
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Outtagrass Cattle Co. cartoon by Jan Swan Wood for the Oct. 23, 2021, edition of Tri-State Livestock News