CSKT-Montana Water Compact
Attendance Recommended for Water Users in the Upper Missouri Basin
Wednesday, December 3, 2014 at 7:30pm
Twin Bridges High School
The area that is included in the compact negotiations includes large portions of the Upper Missouri and some of the Upper Yellowstone basins. Staff from the Reserved Water Rights Compact Commission will be on hand to provide information and answer questions.
Fact Sheet for Missouri and Yellowstone Water Users
The proposed Compact if ratified by Montana’s 2015 legislature would resolve the uncertainty regarding the existing and legally recognized water rights of the Confederated Salish and Kootenai Tribes. These water rights have a priority date of either July 16, 1855 or “time immemorial”. The rights must be quantified-either through negotiated settlement or through litigation. The Montana Reserved Water Rights Compact Commission and the Salish and Kootenai Tribes have been negotiating the Compact for many years. Legislative ratification of the Compact will result in significant benefits to Montanans. It will provide future protections for state water users by insulating them from potential off-reservation claims as well as contribute to a quicker resolution of the ongoing adjudication process.
Because of the their early priority date and large geographic scope, the Tribes’ water rights have the potential to negatively impact existing state-based water rights and future water availability throughout western Montana and possibly well east of the Continental Divide (See attached map). The Compact is a negotiated agreement that settles these rights for all time and in a way that not only minimizes negative impacts to existing state water users, but also clears the path for future economic development.
The CSKT –Montana Compact consists of two main components: the Compact, and the Unitary Management Ordinance.
• The Compact quantifies the Tribes right and sets forth the conditions on their use; • The Unitary Management Ordinance fills the existing on-Reservation regulatory void and
provides a joint State-Tribal body to administer all water rights on the Reservation.
Current negotiations between the parties are focused on the on-reservation details, specifically on protecting and balancing historic Flathead Indian Irrigation Project irrigation deliveries at the farm and CSKTs’ instream flow water rights.
What is the timeframe for passing the compact through the Montana legislature and why is that important? The current limited negotiations between the state and tribes are focused only on-reservation, on elements related to CSKT instream flow and Flathead Indian Irrigation Project diversions. It is anticipated these negotiations will conclude in December 2014, prior to the 2015 Legislative Session.
What will happen if the Compact is not ratified by the 2015 Montana legislature?
If the Compact is not ratified by Montana’s 2015 Legislature, the CSKT claims will be filed with the Montana Water Court by July 1, 2015. In the absence of a ratified compact these claims would be the Tribes claims that are ultimately adjudicated by the Water Court. The Tribes’ have indicated they will file claims off- reservation and east of the Continental Divide (See Map).
What is the likelihood that CSKT will pursue any of the off reservation water rights east of the Continental Divide? Highly likely, as the Tribes have promised on numerous occasions they will file extensive off-reservation claims, including east of the Continental Divide, potentially throughout the upper Missouri River Basin.
Which parts of the basin will be affected?
This is best answered by the local land owners, or historians that are most knowledgeable of the Tribes’ historic subsistence range.
Summary of the Compact provisions
Off Reservation Provisions:
• CSKT are the only tribes in Montana with treaty language supporting off-reservation instream flow water rights. This settlement is not a precedent for other Montana tribes to seek to reopen their settlements to assert off-reservation water rights claims. There is specific language in this settlement on this point.
• Does not change any off-reservation jurisdictional arrangement (e,g, for quantification or issuance of water rights, water quality, species management) – which remain as they presently are under state law.
• Settles off-reservation instream flow rights for the Tribes, to which they have strong legal claims as a result of particular language in the 1855 Hellgate Treaty (the right to “take fish” in the Tribes’ “usual and accustomed” locations). Federal case law interprets this treaty language to include water rights outside the reservation to maintain fisheries flows.
On Reservation Provisions:
• On-reservation, through current negotiations, the State is committed to protecting historic on-farm irrigation deliveries.
• Protects non-project on-reservation irrigators in one of two ways: 1) by providing protection from call for an amount of water use similar to that provided for FIIP irrigators; or 2) through specific limitations on the enforceable levels of tribal instream flow rights to ensure protection of irrigation rights decreed in the Adjudication. The applicable mechanism depends on the geographical location of the water rights protected.
• Establishes a Unitary Management Ordinance to govern the administration and enforcement of all water rights within the boundaries of the Flathead Reservation.
• Provides water for the Tribes for existing and future tribal water needs, both consumptive and instream flow, to settle for all time the Tribes’ claims to reserved water rights.
On and Off Reservation Provisions: • Completely protects all current water users of non-irrigation rights in all water basins on- and off-
reservation from the Tribes’ exercise of their senior water rights.
• Provides for an allocation of water from the Flathead River, including 90,000 acre-feet of water stored in Hungry Horse Reservoir, for the Tribes to use or lease within the State of Montana, of which 11,000 acre- feet must be made available for lease for off-reservation mitigation of new or existing uses.
• Provides a process for the Tribes to lease portions of their water rights within the State of Montana.
• Secures, in exchange for the rights and benefits recognized by the Compact, the waiver and relinquishment of all other reserved water rights claims the Tribes could otherwise make in Montana, including the vast majority of their potential off-reservation claims both west and east of the Continental Divide.
References are to Compact and Appendices which may be accessed at: http://dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp
For more information, contact:Ann Schwend, DNRC Upper Missouri Basin Water Planner Phone: 406-444-1806 e-mail: ASchwend@mt.gov