Water Rights settlement to be a topic of Spring Quarterly

Char-Koosta News 

ZOOMVILLE — On Monday, a panel representing the Flathead Nation, and the State of Montana discussed the former’s Federal Reserved Water Rights Compact (FRWRC), officially known as by its federal legislative moniker the Montana Water Right Protection Act (MWRPA).

The panel was moderated by Brian Chaffin, Assistant Professor of Water Policy and Governance at the University of Montana W.A. Franke College of Forestry and Conservation.

The panel was comprised of Tribal Council Chairwoman Shelly Fyant, Legal Department attorney Ryan Rusche, Fisheries Program biologist Craig Barfoot, and Water Management Program hydrologist Seth Makepeace; Ethan Mace of the Montana Department of Natural Resources and Conservation, and Patrick Saffel of the Montana Fish, Wildlife and Parks, Missoula District.

The 90-minute panel wasn’t near enough time to dig deeply into the historic and complex nature of settlement of the Flathead Nation’s FRWRC but it did offer a bit of understandable topsoil for the more than 70 people, mostly University of Montana students, tuned in via ZOOM.

The key elements of the settlement are: the ratification of the Flathead Nation Federal Reserved Water Rights Compact and the Unitary Management Ordinance and includes restoration of the National Bison Range to the CSKT; rehabilitation of the Flathead Indian Irrigation Project; authorization of a process for restoration of State school trust lands on the Flathead Reservation. In exchange the CSKT will convey to the State CSKT co-ownership of State rights in the upper Flathead River Basin; there isn’t any Department of Interior Secretary funding. All of the Federal funds’ contribution of $1.9 billion will be deposited in a CSKT Trust Account under the American Indian Trust Fund Management Reform Act of 1994; the $900 million in mandatory funding appropriated with the MWRPA settlement at $90 million per year for the next 10 years will be deposited in the AITFMMRA without additional appropriations. The CSKT and DOI Secretary will negotiate a split of the funds between the FRWRC and project funding vs. all other authorized issues; and Self Governance protections for the CSKT in carrying out Section 7 activities.

Hydrologist Seth Makepeace pinpointed the uniqueness of the settlement by characterizing its inherent value that goes well beyond addressing the consumption of water to the holistic vision of adaptive water management. He added that there is an ongoing need to keep the public abreast of how the water is managed dependent upon availability due to seasonal weather and climate changes.

Unitary Management Ordinance

The Unitary Management Ordinance provides for the local management of surface and sub-surface water on the Flathead Reservation as well as the 90,000 acre feet of water from Hungry Horse Reservoir.

Unitary Management Ordinance (UMO):

• Quantifies the Flathead Nation’s Aboriginal and reserved water rights through negotiation thus avoiding litigation. 

• Resolves the complex regulatory scenario on the Flathead Indian Reservation where most of the water originates on CSKT lands, flows across Indian lands, then returns to Tribal lands: Unitary management, permits.

• Confirms a use of 1855 Flathead Nation water right for FIIP for the benefit of Indian and non-Indian irrigators.

• $55 million state contribution related to irrigation, infrastructure and in-stream flows.

UMO key aspects:

• Provides for reasonable transaction to local management of FIIP and attainment of Federal Endangered Species Act obligations arising from FIIP.

• Provides for shared shortages during dry years.

• Protects fish and wildlife habitat across western Montana; confirming Flathead Nation instream flows where Tribal Members have historically fished and hunted.

• Makes tens of thousands of acre feet of Hungry Horse Reservoir water available for domestic, municipal, commercial and industrial uses by non-Indians through lease from the CSKT for nominal rental rates. That amount of water wasn’t available prior to the MWRPA.

DNRC’s Mace said the Unitary Management Ordinance portion of the settlement was different than the other Tribal Nation FRWRC settlements in Montana where the Tribes manage tribal water rights and the State manages non-Indian water rights of the other reservations. “We’re in new territory with this compact,” he said.

“We have been working great together,” Saffel said. “I want that to last beyond my tenure.”

Barfoot said FIIP management of the water for irrigation has had a “profound effect on the fisheries and aquatic resources” due to reduction of water in Flathead Reservation rivers and streams. In fact, some streams do not exist now due the water diversion to irrigation canals.

“For me, the (FIIP) operational improvements and water management efficiency will help fisheries and instream flows. They are key restoration projects,” Barfoot said.

Rusche said the MWRPA had widespread support but also had detractors.

Ruche said the initial expenditure of settlement funds will be spent on the rehabilitation and modernization of the Flathead Indian Irrigation Project. That includes the Rehabilitation of structures, canals, and pumping facilities, including dam safety improvements, irrigation facility upgrades that improve water management and operational control at irrigation diversion works, irrigation facility upgrades to reduce losses in conveyance of water from irrigation sources of supply to irrigation points of use, planning, design, and construction of additional pumping facilities, operational improvements to infrastructure within the distribution network of the Flathead Indian Irrigation Project, and reconstruction, replacement, and automation at irrigation diversion works, lining of open canals, and placement of open canals in pipe.

Then mitigation, reclamation and restoration of streams, wetlands, banks, slopes, and wasteways within, appurtenant to, or affected by the Flathead Indian irrigation project.

And acquisition of easements and other interests in real property needed to carry out the rehabilitation of FIIP

Rusche said the settlement is a road map and its adaptive management will ensure that water users will be taken care of. That includes equal sharing of available irrigation water during times of shortages.

On the issue of climate change and its effects on FIIP and area water resources, Chairwoman Fyant espoused the CSKT’s Climate Change Plan saying it would help guide the delicate balance of water management. 

“Adaptive management of the water resource is working with what the Creator gives us every year. That means speaking for those (animals) who can’t,” Fyant said. “Instream flows for fish and water for irrigators is a delicate balance. We take the responsibility very seriously.”

That roadmap will be further discussed this Friday at the Spring Quarterly.

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