Water-rights meeting raises more questions than answers

POLSON — Residents who turned out for last Thursday's public hearing on the draft preliminary groundwater use agreement between the state and the Confederated Salish and Kootenai Tribes got some good information as to the intent of the agreement, but most folks said afterward it raised more questions than answers.

The agreement, released late last month, attempts to help establish ownership of water rights throughout the Flathead Indian Reservation, and will affect landowners, ranchers, Realtors, farmers and new-home buyers - all of whom showed up in a packed room at the KwaTaqNuk Resort last week.

Theoretically, the only folks not affected by the agreement are those with existing wells already in place. However, existing wells would not be afforded the same protection as new wells that are approved after the final agreement is signed, said Jay Weiner, an attorney for the Montana Reserved Water Rights Compact Commission.

"If it's in the ground prior to the effective date of this agreement, then it is not affected (by the agreement)," Weiner explained.

Under the proposed agreement, a water-use board made up of two state and two Tribal representatives would approve all new proposed wells, including those to be drilled alongside existing wells.

"If your product does not meet the requirements laid out in this document, then it will not be approved," Tribal representative John Carter told the audience.

Specifically the agreement, if finalized, would:

Authorize the licensing of new on-Reservation groundwater uses by Indians and non-Indians alike for domestic, community and municipal needs;

Provide for the transferability of the licenses in connection with a transfer of the underlying land;

And facilitate mutual data exchange between the Tribal and state water regulatory bodies.

Currently, domestic wells are not regulated by any entity, and the agreement is an attempt to avoid costly litigation between the Tribe and the state over water rights, Weiner explained. Wyoming's ongoing legal battles - estimated to cost the state and related parties between $30 and $60 million - was held up as a scenario to avoid at all costs.

"This is trying to fix a problem - the regulatory vacuum left by the Supreme Court," Weiner said, referring to past court cases over water rights on the Flathead Indian Reservation.

Adjudication seemed to be the most contested topic, as representatives fielded many questions about what - if any - legal rights residents would have if their well permit was denied. Under the current agreement, residents whose permits are denied can appeal their case to an arbitrator, but many folks had questions about what would happen beyond that.

"There's nothing to stop you from going to court," Weiner said, emphasizing that this agreement was designed to help avoid those situations.

The water board would also consider Tribal cultural issues when issuing well permits. Many folks wanted to know what those specific cultural considerations would be.

"That's a major issue. That's beyond the scope of the four-person board" to determine, said Susan Cottingham, program manager for the Reserved Water Rights Compact Commission.

Clayton Matt, who heads the Tribes' Natural Resources Department, said the cultural review would probably be similar to the state's current historical review process, in which well sites or other construction is not allowed if it would hurt a site with historical significance.

"One of the reasons we're doing this two-month hearing process is to get these comments," Cottingham said.

Afterwards, many attendees expressed concern with the agreement, saying it left open too many loose ends.

"Realtors are involved with certainty. We have to disclose what's going on with the land. This agreement says you have to go through the water board to get certification. As a Realtor, if I tell you (a buyer) we can't guarantee your water for 30, 60 or 90 days, you're going to say 'good-bye'," said Rory Horning, who heads the Northwest Montana Association of Realtors Water Compact Committee.

Horning said he was worried Realtors would become "water merchants" instead of real estate brokers. Others had similar concerns.

"When Senate Bill 194, authorizing an interim agreement, was passed by the last Legislature we all hoped an agreement would be drafted. However, the product we have before us is missing the detail necessary to provide many users with a sense of security about their rights. That being said, it may still be better than nothing," State Senator John Brueggeman said after the meeting.

When or if a finalized agreement will be signed is still up in the air, and both the state or Tribes can walk away from the agreement at any time, representatives for both parties said.

Comments can be submitted through the end of January. Mail them to RWRCC, P.O. Box 201601, Helena, MT 59620-1601. To view a copy of the preliminary agreement, go www.dnrc.state.mt.us/rwrcc/index.htm.

"I encourage everyone to take a serious look at the draft agreement and comment to the commission. As we gear up for the next legislative session, I'm exploring options to address some of the questions raised by the agreement," Brueggeman said.