Commission provides details on CSKT compact

Settlement includes $55 million in state money

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About 200 people showed up at the Outlaw Inn in Kalispell on Nov. 27 to hear the Montana Reserved Water Rights Compact Commission present a proposed compact recently hammered out between the federal and state governments and the Confederated Salish and Kootenai Tribes.

Suspicion and disbelief dominated the public’s questions, which included a rousing speech by local Tea Party advocate Mark Agather that ended in applause. His column calling for an end to Indian reservations in Montana had run in the Daily Inter Lake several days earlier.

But the commission seemed prepared for a tough audience. They had just come from Libby, where their public meeting ran past 11 p.m., and they had six more public meetings scheduled for the next two days.

Large scope

Explaining the compact is no easy task. In addition to political intrigue is the scope of the compact — it encompasses all of Western Montana and originated with a 157-year-old Indian treaty. It’s also complex — the 50-page compact is supported by about 1,400 pages of technical documentation.

A key point to understanding the proposed water compact, commission chairman Chris Tweeten explained, is that the water rights held by the Tribes on and off the reservation have been established in federal courts. What the compact does is quantify those water rights and help to establish ways to manage those water rights.

The Tribes own water rights off the reservation but will not have any authority outside the reservation, Tweeten said. Water rights off the reservation will continue to be managed by the Montana Department of Natural Resources and Conservation and adjudicated in state courts, he said.

The “helter skelter” way in which water rights were recorded and adjudicated in Montana over the years was addressed at the 1972 constitutional convention and led to the legislature’s decision in 1979 to rewrite the state’s water use act and to re-adjudicate all water basins in the state, Tweeten explained.

To simplify what could be a long drawn-out and costly legal process, the legislature opted to address federal reserved water rights early on and remove them from the queue in the state’s water court.

In the case of the CSKT compact, that means the Tribes would hold rights to 229,383 acre-feet of water in the Flathead River system and 90,000 acre-feet of water stored in the Hungry Horse Reservoir. The Tribes could also lease up to 11,000 acre-feet to mitigate certain water developments on the reservation.

To put that in perspective, the total annual average flow of the Flathead River, measured by the U.S. Geological Survey gauge at the U.S. 2 bridge in Columbia Falls from 1952 to 2011, is about 7 million acre-feet, and the total capacity of the Hungry Horse Reservoir is about 3.5 million acre-feet.

As commission staff attorney Jay Weiner put it, “There is so much water that flows through that system, we can’t see how conflicts would practically arise.”

Settlement money

The Tribes also relinquished their right to “make call” against any upstream non-irrigation water right or against groundwater irrigators who use less than 100 gallons per minute. That includes municipal and community water systems like those in Columbia Falls, Whitefish and Bigfork. If their needs expand or they need a new source of drinking water, they will have to work through the DNRC and courts just like now.

The tribes did retain the right to make call against 94 irrigation water rights on the mainstem and north, middle and south forks of the Flathead River and at least one on the Swan River, but those rights are only “theoretically subject to call,” Weiner said.

In return, CSKT will receive $55 million from the state and additional money from the federal government. About $8 million of the state money will go toward implementing the compact, but most will go to improving infrastructure. The money will be raised by selling bonds and is included in Gov. Brian Schweitzer’s 2013 budget, along with $14 million for the Blackfeet Nation’s compact and $3 million for the Fort Belknap Tribes’ compact.

Putting money into infrastructure, such as modernizing irrigation systems or making dam improvements, increases the amount of available water in the basin, Tweeten explained. In the case of the CSKT compact, 90,000 acre-feet of water stored in the Hungry Horse Reservoir will be made available. The state and federal governments will also help pay for ongoing water management on the reservation, which currently doesn’t exist and could add up to a few full-time positions.

Providing instream water to protect fish habitat is a goal dating back to the 1855 Hellgate Treaty and already is included in water compacts with the National Park Service and the U.S. Forest Service. The CSKT compact provides for co-ownership of instream water rights with the Montana Department of Fish, Wildlife and Parks in the south, middle and north forks of the Flathead River and other locations in Western Montana.

Toward the end of the meeting, Erica Wertala, the government affairs officer for the Northwest Montana Association of Realtors, which represents 675 Realtors, announced that the group supports the proposed CSKT compact. While recognizing that parts of the compact are “works in progress,” NMAR said it sees the compact as a step forward in addressing uncertainty over water rights in the area.