Misperceptions surround water compact

Swan River water users worried about losing their water rights crowded into the Bigfork Bethany Lutheran Church basement last Tuesday afternoon for a public meeting addressing the recently proposed Confederated Salish and Kootenai Tribes’ water compact with Montana and the federal governemnt.

It was one of 12 meetings held off the Flathead Indian Reservation to discuss the compact. Staff attorney for the Montana Reserved Water Rights Compact Commission, Jay Weiner, said comments brought up in Bigfork about what will happen to personal water rights and what the compact allows the tribe to do with water off the reservation are common misperceptions.

Many people think the compact is “giving the tribes all sorts of control of water rights off the reservation,” Weiner said. “Nothing in this compact is taking away anyone else’s water rights.”

Weiner said the compact is designed to quantify the tribe’s legal water rights and give them a structure to manage water on the reservation.

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 tribe agreed to lease 11,000 acre-feet of that 90,000 to serve as mitigation water for development in Montana.

The compact would protect all non-irrigation water users who draw from the Flathead River system. Irrigators could potentially be subject to call only if in-stream flows for that particular river or stream get below the cubic feet per second flow allotted to the tribe.

“There’s no management authority that’s being given,” Weiner said. “It’s a 100 percent non-consumptive water right.”

TREATY GRANTED RIGHT

The Hellgate treaty signed in 1855 is the basis for the nearly 30-year process that led to last month’s release of the proposed compact. The treaty created the Flathead Indian Reservation and gave the tribes hunting, fishing, trapping and gathering rights throughout their historical territory.

Chairman of the Montana Water Rights Compact Commission, Chris Tweeten, said the Hellgate treaty and subsequent Supreme Court decisions give the CSKT the right to maintain stream flows that support their fishery sources.

“Those are existing rights and they will be protected,” Tweeten said. “It’s not going to add anything to the flow of the water or taken anything out.”

After the public meeting process, the commission will make the necessary changes to the compact before submitting it to the 2013 Montana Legislature. It then needs to pass through the U.S. Congress and the CSKT before it is submitted to the Montana Water Court for approval.

A legislative decision made in 1979 spurred creation of the commission, which took on the large task of quantifying federal reserved water rights in the state of Montana. As part of that task the commission has completed compact proposals for six other reservations in Montana.

Northern Cheyenne, Fort Peck and Rocky Boy compacts have made it through the full process. The Crow compact is waiting for the Montana Water Court. Blackfeet and Fort Belknap are waiting for approval from congress.

What makes the water rights compact process for the Flathead Indian Reservation unique are the parameters outlined in the Hellgate Treaty. The CSKT are the only tribes in Montana that signed a treaty retaining some rights to their historical territory. Therefore, they are the only tribes with water rights that extend off their reservation.

Water rights off the reservation will continue to be managed by the Montana Department of Natural Resources and Conservation and adjudicated in state courts.

OFF RESERVATION

The Swan River has 70 irrigators with water rights that could be subject to call by the CSKT. Weiner said it’s unlikely the tribe will ever “make call” on those irrigators because the in-stream water rights allocated to the tribe are patterned off flows during an extremely dry year.

In addition, Pacific Power has a municipal water right for creating electricity at the Bigfork Dam, which allocates 671 cubic-feet per second of the Swan River to the utility. Every month of the year except for May through August, Pacific Power’s water right would cause them to “make call” on any Swan River water rights holder before the flow gets to the CSKT’s level.

The DNRC’s Kalispell regional office manager for the water resource division, Marc Pittman, said Pacific Power has never made call any Swan River water rights holders.

There are about 94 irrigators on the north, south and middle forks of the Flathead River that could also be subject to call. As for taking water out of the Hungry Horse Reservoir, the CSKT is limited to biological parameters for water flow in the Flathead River system set out by regulatory agencies such as Fish, Wildlife and Parks.

Pittman said he thinks the compact could be a good thing for the valley, especially because of the 11,000 acre-feet of mitigation water it allocates.

“We don’t have any mitigation water in the Flathead,” Pittman said. “It would be nice to have a fall back.”

Right now, the DNRC has more water rights allocated than there is water in the Flathead Basin. While everyone in the valley currently gets the water they need and there’s never been an issue, Pittman can see a time in the future where there could be a major problem.

If valley water rights holders used all the water they have the rights for, the Flathead Basin would have no water left to allocate and be closed to new water rights applications. The only way to gain water rights would be by purchasing them from another water rights holder. The mitigation water would give future water rights seekers another option.

“We need that mitigation,” Pittman said. “We’re hopeful that it goes through.”