Char-Koosta News

The Official Publication of the Flathead Nation online

May 5, 2011

CSKT water rights session focuses on domestic wells

By B.L. Azure

Montana Federal Reserved Water Rights Compact Commission attorney Jay Weiner gave a presentation on proposed domestic wells regulations contained in the draft ordinance pertaining to water management on the Flathead Reservation. (B.L. Azure photo)
Montana Federal Reserved Water Rights Compact Commission attorney Jay Weiner gave a presentation on proposed domestic wells regulations contained in the draft ordinance pertaining to water management on the Flathead Reservation. (B.L. Azure photo)

POLSON — Representatives from the United States, the State of Montana and the Confederated Salish and Kootenai Tribes gathered at the Best Western KwaTaqNuk Resort and Casino last Wednesday for the public negotiation session aimed at ferreting out a federal reserved water rights compact for the CSKT. The parties have until June 30, 2013 to come to an agreement on the CSKT water right and the co-management of the water on the Flathead Indian Reservation.

The main focus of the meeting was the State presentation on the “draft” ordinance process affecting domestic wells that, among other things, included appropriations rights, domestic allowances and registration of existing unrecorded water use.

“Today we will see how the technical aspects are melding with the legal,” said Clayton Matt, lead negotiator for the CSKT. “We will be talking about domestic wells, available water and amnesty for domestic wells that have been developed on the reservation illegally.”

In 1996, the Montana Supreme Court ruled in the Ciotti case that the Montana Department of Natural Resources didn’t have the authority to issue water use permits on the Flathead Indian Reservation until the CSKT water right was quantified. That is the process that is presently taking place in the negotiations among the three parties.

“Since 1996 there have been no regulations for water wells on the reservation,” said Jay Weiner, Montana Reserved Water Rights Compact Commission attorney. “As it is now we can’t process permits.”

Weiner said the draft ordinance should contain certainty, predictability and understandable regulations for all. He illuminated portions of it for the more than 50 people in attendance.

The water appropriations include: domestic allowances, stock water, redundant or substitute wells for consumptive purposes. Non-consumptive uses include: geothermal, temporary emergency appropriations, replacement water and mitigation water. There are also allowances for changes in existing uses and use changes related to the use of saved water.

Weiner said individual domestic wells would be up to a maximum of 35 gallons per minute, 2.4 acre-feet per year and irrigation of no more than 0.7 acres with no metering requirement.

Shared wells with shared well agreement would get up to a maximum of

35 gallons per minute and 2.4 acre-feet per year and irrigation of no more than 0.5 total acres for two users and 0.75 acres total for three users with no metering requirement.

Pat Pierre told folks at the water compact negotiation session that the Tribes are good neighbors that won't shut off water to non-Indians. (B.L. Azure photo)
Pat Pierre told folks at the water compact negotiation session that the Tribes are good neighbors that won't shut off water to non-Indians. (B.L. Azure photo)

Domestic residential developments would get up to a maximum of 35 gallon per minute and 10 acre-feet per year and individual irrigation of no more than 0.25 acres per plot with metering requirement.

There are no mitigation requirements for domestic well allowances.

Weiner said application for domestic wells has to be succinct with fees no higher than state fee charges.

The process for applying for domestic allowances includes the application that requires a form and a yet to be determined fee. The water engineer has 45 days to approve the application or return it as defective. Then the applicant has 30 days to resubmit an application that was returned as defective. If the engineer fails to act within 45 days, the application is deemed approved.

Upon approval, an applicant can develop the well but must do so within one year of issuance of approval. The approved applicant must file a notice of completion and a well log report with the Flathead Reservation Water Management Board within 120 days of drilling the well for the appropriation to be valid.

There are several other categories of new authorized uses. They include: groundwater appropriations for redundant or substitute wells; permits for non-consumptive uses, including, but not limited to, hydropower generation and not including flow-through ponds; authorizations for non-consumptive geothermal heating or cooling exchange wells; temporary emergency appropriations; uses of surface water for or by a municipality; permits to appropriate surface water to conduct response actions that are related to natural resource restoration required for various types of environmental remediation; uses of saved water; uses of replacement water; and replacement water: the water from the main stem of the Flathead River backstopped by releases from Hungry Horse Reservoir.

The replacement water is an important component of the Tribes’ commitment to protect existing verified water users. The State proposes the use of 11,000 acre-feet of the 229,00 acre-feet of water from the Flathead River system, including Hungry Horse Reservoir, the Tribes have proposed to be used on the reservation as replacement water. The State would use that for issuance of future non-CSKT related development as well as for mitigation purposes.

“We are sensitive to the idea that we are limiting growth on the Flathead Reservation,” Weiner said.

A part of the proposed management ordinance is the quantification of all existing uses. Through the years pre- and post-Ciotti development wells have been drilled. Many of them are not registered and that puts a big unknown in the water ledger.

DNRC Missoula District administrator Bill Schultz answers a query from the public at the water compact negotiation session. (B.L. Azure photo)
DNRC Missoula District administrator Bill Schultz answers a query from the public at the water compact negotiation session. (B.L. Azure photo)

“We need to know all existing water rights,” Weiner said. “We have a major category related to the missing small domestic uses.”

The Tribes and State have agreed to an amnesty for those who have drilled wells without the proper permits. They have developed regulations that will address that so they can get a better idea of how many wells are on the reservation and how much water is being used.

To ensure protection of existing uses, the water management board needs to know what and where they are located. The State will use its database on adjudication and permits to quantify what is on their books related to the Flathead Reservation. The CSKT will conduct a registration process for existing uses of their water rights.

The aim is to identify small uses that did not have to file on the books.

Those who need to register in the process include people with pre-1973 domestic or stock uses who did not have to and did not file a claim for those uses in the adjudication and people with post-1973 domestic or stock uses who did not file completion forms with the DNRC.

What do people get when they register. Pre-1973 uses get a water right with a date of first use priority date. For uses begun after June 22, 1996, for which a completion form was lodged with DNRC but not processed, a water right with a date of first use priority date. For uses begun after June 30, 1973 for which a completion form was never lodged with DNRC, a water right with a date of registration priority date.

“Someday there will be a very limited amount of water. We need to deal with that,” Matt said. “We recognize that development is happening. This system allows us to deal with growth and the available water resource. This is more of a water management tool instead of a growth management one.”

Good or bad, growth happens.

“These negotiations to me are a compromise. I was told long ago by the elders that some day I would sit down with the suyapis (white people) over water,” said Pat Pierre, who represents the Salish Pend d’Oreille Culture Committee Elders Committee on the Tribes negotiation team. “We are sitting at this table because one side wants it all. One day this (ordinance) will satisfy all here. We have to live together here. I may not want that but you are here. I may not like you but I love you. We need to be good neighbors. I won’t shut off your water.”

The next water rights compact negotiation session is tentatively set for Wednesday, May 25 at KwaTaqNuk Resort and Casino. The following session is tentatively set for Wednesday, June 29. There are no sessions planned for July.

The information presented by the state is on its website, at: http:www.dnrc.mt.gov/rwrcc/default.asp

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