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State, Tribes, Feds hash out compact

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POLSON – State, federal, and tribal leaders seemed to agree on a critical legal aspect of the Confederated Salish and Kootenai Water Compact at a Nov. 5 negotiating session, although they were still slightly at odds over certain water management priorities. 

The negotiating session is one of the final opportunities left to get a draft compact. The state legislative session begins Jan. 7, 2015. If the legislature does not pass a compact by June 30, 2015, then the Confederated Salish and Kootenai Tribes will file their claims in Montana Water Court. The Tribes have said that they will file 10,000 claims as far east as Billings if a compact is not arranged; under the current compact they’ve limited those claims to west of the Rocky Mountain Front. 

The Tribes and state officials were not on the same page about how best to verify that water provided to the Flathead Indian Irrigation Project river diversion will be equal to historic use. 

“At this point, the Tribes agree to the corroboration mechanisms, but what is yet to be worked through is that if there is not a 1:1 sync between the allocation and delivery of water, what would be the next sequential step in that process? How would those numbers be potentially adjusted, and if they were adjusted, where would the water come from to adjust those values?” Tribal Hydrologist Seth Makepeace said. 

In this hypothetical situation, the Tribes feel the water should come from the Flathead River Pumping Plant, Makepeace said, though that has not yet been agreed upon. 

“This corroboration process is one of the significant outstanding topics that we will try to work through in the next several days,” Makepeace said. “The other one is if there was a situation in a drought year, or even in a sequential drought year, when there are drought year conditions how will shortages be shared?” 

The Tribes feel that their minimum enforceable in-stream flows should not be subject to shared shortages in drought years, Makepeace said. The Tribes’ target in-stream flows would be subject to shared shortages under current proposals.

The state negotiating team gave no reaction to Makepeace’s hydrological concerns, but officials did indicate that they were in agreement about some legal aspects of the project that have been under public scrutiny. 

According to Montana Reserved Water Rights Compact Commission staff attorney Melissa Hornbein, people dissatisfied with decisions made by a water management board consisting of state and tribal appointed members could appeal those decisions to federal court. The federal court would be the default option for appeal, but if both parties consent and waive their right to federal court, the concerns could also be brought before a tribal or state court. The water management board will be tasked with making some water management decisions on the Flathead Reservation if the compact passes. 

The state and tribal teams also were in agreement about having some sort of written, legal representation that irrigators have a right to delivery of water. 

“We agree with a number of things in the proposal, including the concept of defining a delivery right that goes along with the irrigation project right, and potentially some form, or piece of paper representing that right and the fact that it runs with the land and can be transferred with the land,” Hornbein said. 

State and tribal officials did not immediately set a date for another negotiating session. Representatives for both negotiating teams also said they had not been given enough time to review and respond completely to a set of 11 proposals sent to the Montana Reserved Water Rights Compact Commission by the state legislative Water Policy Interim Committee on Oct. 30. 

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