Panel may readjust water plan

After hearing from the public at a dozen meetings, the Montana Reserved Water Rights Compact Commission is likely to make adjustments to a proposed water rights compact for the Flathead Indian Reservation, an attorney for the commission said.

“We are now working individually and collectively to incorporate comments we received into possible changes to the settlement. I expect there will definitely be some changes,” said Jay Weiner, who represents the commission on behalf of the Montana Department of Justice.

The changes, however, are more likely to clarify language in the compact rather than making a “major course correction” for the compact that will quantify water rights for the Confederated Salish-Kootenai Tribes on and off the reservation and provide for administration of water rights on the reservation.

Weiner said more than 700 people attended meetings across Western Montana over the last couple weeks. Another meeting will be Dec. 11 in Eureka.

“We certainly heard a lot of questions,” Weiner said of the nine-member commission. “But there’s a lot of information in the documents and it’s a lot to digest.”

A common concern was that a Water Management Board created by the compact to administer water rights would have authority beyond reservation boundaries when it would not.

“We had to repeat that a lot of times,” Weiner said. “Nothing in this settlement is giving the Water Management Board or the tribes any regulatory authority ... that the tribes may or may not have off the reservation.”

The commission had to explain protections that are built into the compact for non-irrigation uses off the reservation and to explain that the tribes have no authority to start charging for water. The tribes have relinquished the right to “make call” on those uses.

Mining operations off the reservation, for instance, would be a commercial or industrial use.

“There is no effect this would have on existing mining operations or future mining operations,” Weiner said. “The tribes have agreed across the board to not make call on any commercial or industrial uses.”

The tribes would retain the right, however, to make call on 94 junior water rights for irrigation off the three forks and the main stem of the Flathead River.

But an analysis of flow histories shows such an abundance of water in the Flathead River system that it is highly unlikely that a conflict would arise, Weiner said.

There are potential conflicts, however, regarding on-reservation irrigation. But that is being negotiated separately between the tribes and an entity representing irrigators called the Joint Board of Control.

A draft water use agreement released earlier this year proposed a “one-size-fits-all” water allotment that some irrigators, particularly those with land in drier parts of the reservation, say will not meet their water needs. They are concerned the tribes will end up charging them to provide the amount of water they currently use.

Negotiating an acceptable water use agreement is a “critical part” of the overall settlement, Weiner said. The commission currently plans to vote on Dec. 19 whether to forward the compact to next year’s Legislature for approval.

That schedule may be altered if a water use agreement hasn’t been folded into the compact.

Jon Metropoulos, a Helena attorney who has been involved in the negotiations on behalf of the Joint Board of Control, said the negotiations are ongoing.

“We work on them every day and I would say they are progressing,” he said.

If the compact is approved by the Legislature, it would go to Congress and the tribal council for ratification, followed by approval from the Montana Water Court — a process that’s expected to take several years at least.