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Water rights teams answer questions, field comments

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POLSON — During a five-day road trip around Western Montana, the negotiating teams for the Confederated Salish and Kootenai Tribes, the State of Montana and the United States brought the proposed Water Rights Compact to Polson and solicited comments and questions at a meeting on Nov. 28.

From Polson, the teams moved on to Hot Springs and Thompson Falls and then to Arlee, Hamilton and Missoula on Nov. 29, finishing up in Deer Lodge, Philipsburg and Ovando on Dec. 4.

The water rights settlement will quantify water rights for the tribes on and off the Flathead Indian Reservation and provide for water rights administration on the reservation.

Chris Tweeten, Chair of the Reserved Water Right Compact Commission, said the CSKT, the state and the federal government have been on an aggressive negotiation schedule for the last five years and would like to submit the compact to the 2013 Montana Legislature. The sunset date for the compact commission is June of 2013.

The three “tent poles” of the agreement, according to RWRCC attorney Jay Weiner, are a compact, an administration ordinance and a water use agreement with the Flathead Indian Irrigation Project. 

The proposed settlement would protect the tribes’ existing uses, on and off the reservation; protect valid existing uses as decreed by the water court or permitted by the Department of Natural Resources and Conservation prior to 1996; establish a process to permit new uses and provide legal protection for post-1996 domestic wells.

“There is nothing in (the proposed contract) to turn the compact into a utility,” Weiner said. 

The water management board might need meters to manage junior and senior water rights, he said, but there would not be metering for existing uses, and those people need not worry about being charged for their water.

The federal reserved water rights priority date is the date of the Hellgate Treaty, July 16, 1855, CSKT Hydrologist Seth Makepeace reiterated, and these rights have been upheld repeatedly in court. These rights also provide tribes sufficient water for cultural and religious uses. Aboriginal water rights have a time-immemorial priority date, meaning they have always existed.

After Tweeten, Weiner and Makepeace presented basic information on the proposed compact and ordinance, attendees were encouraged to ask questions or make comments.

John Moon, Ronan, asked if the tribes have quantified the water they need. 

CSKT attorney Rhonda Swaney answered, “Yes,” and said the information appears in the appendices to the proposed compact. 

Moon also asked if money would be involved. 

Tweeten replied that the state’s proposed cost share is $55 million, which is place-marked in Governor Schweitzer’s budget, but it’s unknown if it will remain in Governor-elect Steve Bullock’s budget. The state’s cost is fixed, he added, but the federal portion will not be known until the bill is finalized in Congress.

Max Weiss asked for clarification on metering.

Tweeten said there was no metering requirement for existing wells. 

Weiss also asked if there would be an opportunity for or anticipation of modification after the compact is solidified. 

The compact would go before legislature in the form of a bill, and the legislature has the power to amend it, Tweeten said. Since it’s a negotiated agreement among three sovereigns, any change to the terms of the compact would void the compact, he added.

“The legislature has the power to amend it. Is it a good idea? We don’t think it is,” Tweeten said.

St. Ignatius ranchers Sheila and Roy Vallejo questioned the negotiating teams about spring activity on their place. The springs provide water for their horses after the FIIP is shut down for the winter.

“Nobody delivers it (the water) but God,” Sheila explained 

Swaney said while the tribes are in negotiations because they were invited, they are also experiencing water shortages all around the reservation. She also said the Cooperative Management Entity will continue to manage the FIIP and will decide how water is delivered. 

Swaney added that the tribes are not assessing anybody for water. 

Irvine Flats rancher Mac Binger asked about call protection, if another water right trumps his, if his ranch draws more than 100 gallons on a pump or irrigating. 

In answer, Weiner said the water potentially could be called, but unless the rancher is contacted by the tribe, it’s okay.

Several other questions and comments included issues about the availability of land records, a thank-you for all the negotiating teams hard work, questions about disputes going to the water court or the district court, the length of the documents and a statement of opposition to the compact. 

On Dec. 19, the MRWRCC will vote whether to submit the compact to the 2013 legislature. Comments should be received before that date. 

The proposed agreement and ordinance are available online at: 

or or email  

Interested parties can also contact Rob McDonald, CSKT communications director, at 406 675-2700, ext. 1222 or Bill Schultz or Jay Weiner, RWRCC staff, at 406 444-6844.

Written comments on the proposed compact or ordinance should be emailed to or mailed to Chris Tweeten, Chair, Montana RWRCC, 2705 Spurgin Road, Building C. Missoula, MT 59804. 


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