Water rights: The devil is in the details
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For more than a decade, representatives from the state of Montana, the federal government and the Confederated Salish and Kootenai Tribes have been working to conclude a water rights agreement for surface and subsurface water on and off the Flathead Indian Reservation. To be able to submit a compact to the Montana legislature in 2013, an agreement should be reached by the end of 2012. Partial and very preliminary drafts of a compact and related documents can be found on the Montana DNRC website. But many complex issues need to be decided in the coming months, including issues related to irrigation water.
Under the framework that has guided the overall negotiations to date, most surface water, including irrigation water, would come under a tribal water right. In that connection, technical meetings have been taking place between representatives of the CSKT and representatives of the Flathead Joint Irrigation Board of Control. The objective of these meetings is to lay the basis for what is called a “stipulation agreement” between FJBC and CSKT that would cover irrigation water rights issues under the Flathead Indian Irrigation Project.
Access to irrigation water is important for the survival of individual farmers and ranchers. I know, because I raise hay on 240 acres. A large number of families on this reservation — tribal and non-tribal — earn all or a portion of their income directly or indirectly from farming and ranching activities. Any major declines in the availability of irrigation water will make it more difficult to maintain economically viable operations and obtain financing.
It is important for all parties to come to a mutually beneficial agreement. Our common interests exceed conflicting interests. For example, from an irrigator perspective, irrigation water will have greater protection from potential downstream claims under an 1855 tribal water right than under a FIIP-based claim dating to the early 1900s. From the tribes’ perspective, the irrigators’ claims increase the total volume claimable for beneficial use. In other words, if the FIIP impoundments did not exist, downstream claimants would have a stronger claim to Reservation surface water.
Protecting existing uses of water is an important principle guiding these negotiations, but as with any principle, the devil is in the details. I had hoped that by now there would be compact drafts, stipulation agreement drafts and relevant technical background covering irrigation water issues available for public comment. Farmers, ranchers and the general public need to know the details and how their rights may be affected. Given the importance and complexity of the issues involved, all parties will need a reasonable time period to carefully evaluate and submit comments on technical presentations and draft documents.
I hope that negotiators at the upcoming Feb. 29 public meeting of the compact water rights negotiating session will outline the main issues that remain open and present a clear timetable that will guarantee sufficient time for public comment before any decisions are made. It also would also be helpful to know how a stipulation agreement will be incorporated into a compact agreement. In that connection, the FJBC also should discuss every issue and all relevant documents in sessions open to the public with adequate prior notice
Information, technical background, tentative agreements and documents related to the compact agreement, including the stipulation agreement, should be made available to the public. The DNRC Compact website could provide a valuable means for making such information available to the public.
I also would encourage the local news media to follow this important negotiation and help keep everyone informed.
(Editor’s note: Dick Erb is a Moiese resident.)
