Flathead water compact is being misrepresented

A July 31, 2013, column in the Flathead Beacon by Dave Skinner makes important historical observations and states key facts about the Confederated Salish and Kootenai Tribes (CSKT). He did a good job — except he evidently failed to read the proposed compact. He merely restated 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. No where 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 constraints 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, Flathead Indian Irrigation Project (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 Indian 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 Montana Department of Fish, Wildlife and Parks and U.S. Fish and Wildlife Service — Untrue. The state offered an instream flow package to the Tribes as part of the proposed compact because those property rights were reserved by CSKT 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 mainstem (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 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 Appendix 9 of the proposed compact, the state of Montana’s Biological Impact Evaluation and Operational Constraints for a Proposed 90,000 acre-foot Withdrawal (State of Montana, Sept. 14, 2011) (appendix to the proposed compact), and the proposed compact, which 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 gatekeepers (the Reserved Water Rights Compact Commission) who ushered it to the state legislature.

Gov. Steve 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.”

Joe Durglo is the council chairman of the Confederated Salish and Kootenai Tribes.