Water rights negotiators start work on articles of settlement
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POLSON — Negotiating teams from the Confederated Salish and Kootenai Tribes, the State of Montana Water Rights Compact Commission and the United States met for a session on Feb. 24 at 9 a.m. at the KwaTaqNuk Resort and Casino.
New business included beginning the work to draft an articles of settlement document, which all parties have to agree to before the compact can be completed. Article I of the document is a set of recitals, Article II defines the terms while Article III is the quantification and issues surrounding quantification of water rights. Article IV will be the administrative article of implementation. The goal is to have Articles III and IV drafted in the next two to three months according to Clayton Matt, CSKT Natural Resources Department Head.
MRWRCC Chair Chris Tweeten said “the draft is likely to have lots of holes in it” which will be filled in as time goes by.
CSKT Attorney John Carter said he agreed completely with what the state said and also said the trick is to “plug federal reserve and aboriginal water rights into the state system.”
Water rights are assigned by priority date. Aboriginal water rights date from time immemorial while Indian water rights date from the time of the Hellgate Treaty, which was July 16, 1855. Montana state water rights are based on the date of first use.
Carter said that “Indian rights and federal aboriginal rights can’t be lost through non-use.”
This is not the case under state law, Carter added. Also the biggest distinction is that, unlike state based water rights, Indian rights have a future component, “not yet put to use.”
Carter said he thought the biggest clashes would come over non-use and future-use.
Tweeten said he didn’t really disagree that much and said the Flathead Reservation is different from other treaties. He referred people to Title 85 of Montana Code. All the water compacts so far are there, Tweeten said.
Federal representative Duane Mecham said the federal government part in adjudication is … as trustees for the tribe.
A draft for the proposed system of unitary management is on the federal and tribal websites. (To find the proposed unitary management ordinance, go to www.cskt.org then quick links on the right side of the page, click on water rights negotiation and then on unitary management ordinance.)
Tweeten also brought up the irrigation projects.
“We recognize the project has a significant say in how their water right is treated in the compact,” Tweeten said.
CSKT Hydrologist Seth Makepeace reported for the technical teams. Makepeace said the MRWRCC had looked at Hungry Horse Reservoir as a supplemental source, and data is being reviewed system wide. The Bonneville Power Administration as well as the National Oceanic and Atmospheric Administration National Marine Fisheries Services will consider the information so it should take several months.
Information on the canal seepage study has been collected and processed as raw data and should get to the MRWRCC in about a month.
The Department of Natural Resources and Conservation are four permits away from finishing the post-1973 water filings, Makepeace said. The DNRC will put the permits and filings on a Geo database and include 1973 to 1992.
After a busy question and answer and comment period, negotiating sessions were set for April 7 and April 28 at 9 a.m. at the KwaTaqNuk. No session is scheduled for the month of March.
