|August 15, 2013
Inaccuracies about the Proposed Water Compact continue to flow
By Joe Durglo, Council Chairman,
Confederated Salish and Kootenai Tribes
A July 31st column in the Flathead Beacon by Dave Skinner captures key historical observations about the Confederated Salish and Kootenai Tribes, but he evidently failed to read the Proposed Compact. He merely repeats inaccurate information he heard others bantering about as fact. Below is a brief breakdown explaining how some of these restated facts are simply wrong.
CSKT claimed all the water
This is an often-repeated mistruth. This is not true. We don’t know any other way to say this. The Tribes’ actual water claim under the compact is contained in the Abstracts, as appendices. Nowhere in these appendices will you find an Abstract claiming 1.2 million-acre feet of water, a number often repeated by opponents. Additionally, the appendices outlining instream flows contain a number of constrains on use such as: The use shall be non-consumptive; for the sole purpose of maintenance and enhancement of fish; the purpose shall not be changed; the purpose and instream place cannot be changed. These instream flow uses do not impact valid existing water users, but provide for multiple and combined uses of water.
CSKT claimed state water rights held by non-Indian irrigators
Again, not true. The Proposed Compact includes an agreement duly negotiated with irrigation representatives on how the water rights would be held, that is under the umbrella of the Tribes’ water right with a priority date of 1855. In exchange for this single early priority date, FIIP water users received a dedication of water to irrigation purposes Without this agreement FIIP water users are split approximately in half in terms of priority date, with homestead lands unable to claim a date earlier than 1910, when the Flathead Reservation was opened for settlement by non-Indians.
CSKT claimed water rights off reservation with “super senior” priority dates, and flow rights would be co-owned by FWP and US Fish and Wildlife.
Untrue. The State offered an in-stream flow package to the Tribes as part of the Proposed Compact because those property rights were reserved by the Confederated Salish and Kootenai Tribes in the Treaty of Hellgate and the State of Montana recognized the legality of that reservation. The offered package included a variety of instream flow priority dates. The Tribes accepted the package, with some additional negotiated components. Again, many of these instream flows are existing, not new claims. Where new claims exist, the hydrologic record shows these waters are available.
All major agricultural irrigators hydrologically connected to these rivers and every Western Montana producer would be subject to call if instream flows fells short.
Untrue, the Tribes’ possess senior water rights, but waived the right to make a call on most junior users in Montana. An exception, where the Tribes retained the right to make a call, is for those irrigating using more than 100 gallons per minute from the Flathead main stem (including Flathead Lake), the North Fork of the Flathead River, the Middle Fork of the Flathead River, and the South Fork of the Flathead River. See Article III (G) of the Proposed Compact. We understand that relatively few people irrigate directly from those sources and that water supplies are more than adequate. The Tribes waived the right to make a call on any irrigators irrigating from the tributaries to those identified water bodies. Where instream flows are to be co-owned with Montana Fish, Wildlife and Parks, FWP can continue legally to make a call, as can others with filed senior claims.
Every drop from Hungry Horse would be CSKT property
Not correct. The Hungry Horse Reservoir has a capacity of 2.98 million-acre feet of water; the claim of the Tribes to a small portion of that water, or up to 90,000 acre-feet, is defined in Appendix No. 9 to the Proposed Compact. It is anticipated that any portion of that 90,000 acre-feet will only be used in the driest of years to offset impacts to Flathead Lake. The Tribes’ use of that Hungry Horse water will be subjected to the constraints in the Appendix 9 of the Proposed Abstract, the State of Montana Biological Impact Evaluation and Operational Constraints for a Proposed 90,000 acre-foot Withdrawal (State of Montana, September 14, 2011) (Appendix to the Proposed Compact), and the Proposed Compact, which in includes a reservation by the State of Montana for 11,000 acre feet to be leased by the Tribes to individuals seeking mitigation water . It is likely that if the Tribes’ desired to use the Hungry Horse allocation the constraints make it impossible to use the entire 90,000 acre feet.
Quantifying the CSKT rights while ensuring the rights of Montana citizens stay protected took years. It’s remarkable the Proposed Compact was ever completed at all. It passed muster with the state entity empowered to make these agreements, the Reserved Water Rights Compact Commission, that then ushered the Compact to the state legislature. Governor Bullock wants another run at passing the Compact in 2015. If this occurs, every claim of unfairness can be refuted by the documents comprising the Proposed Compact. Please take the opportunity to check what some compact opponents present as “facts.”