Sen. Tester introduces water compact legislation

The water rights compact for the Confederated Salish and Kootenai Tribes will begin its path to federal ratification with a $2.3 billion price tag, Sen. Jon Tester, D-Mont., announced Thursday.

The compact is a negotiated settlement among the Tribes, the state and the federal government that quantifies the tribes’ water rights and directs money to pay for infrastructure upgrades to the reservation’s irrigation system and other projects.

During a media call to announce his introduction of a bill to ratify the compact, Tester applauded the agreement as one that would provide critical infrastructure investments, support agriculture in Montana and avoid costly lawsuits over water rights.

“I believe this compact provides the tribes, local landowners and nearby communities with the certainty they need to increase economic development and avoid costly courtroom battles,” Tester said.

Also participating in the media call was Confederated Salish and Kootenai Tribal Chairman Vernon Finley, who said the compact represents a fair compromise and the Tribes have worked to be good neighbors throughout the process.

“The Tribes have put a lot on the table. We have compromised a lot considering how much reach our water claims could be,” Finley said, referring to the Tribes’ historical water use. “What is really critical, it’s a resolution that was developed in Montana among Montanans, among neighbors, and it’s something that has taken many years to develop.”

Tester acknowledged the $2.3 billion appropriation associated with his bill is “serious dough,” but said he believes the money is available.

The majority of spending would go toward infrastructure, he said, including irrigation project upgrades, livestock fencing, weed control and water and wastewater projects.

He said he would like to tap unspent money held by the Bureau of Reclamation, adding that he will push for passage of a separate spending bill that would unlock funding for other compacts as well.

The state of Montana is obligated to spend $55 million toward the compact, $3 million of which was appropriated last session to begin implementation of the compact.

Along with the price tag, new requirements for introduction in the U.S. House will present another challenge, Tester said.

House Natural Resources Committee Chairman Rob Bishop, R-Utah, announced a procedural change last year requiring all tribal water compacts to win approval from the Department of Interior and U.S. Attorney General before introduction. The authority to introduce the House version of tribal compact bills rests with the committee chairman.

Noting the compact’s bipartisan ratification at the state level, Tester urged the other members of Montana’s congressional delegation to lend their support to the bill.

“It’s critical the entire Montana delegation supports this CSKT water compact, just as the delegation has always supported previous water compacts,” he said.

U.S. Sen. Steve Daines, R-Mont., and U.S. Rep. Ryan Zinke, R-Mont., have not yet indicated whether they will support the bill. Zinke has expressed concerns about revisiting the divisiveness that characterized the debate last year.

The compact was ratified by Montana just over one year ago. It emerged as one of the most controversial bills of the Montana Legislature’s 2015 session, with committee hearings attracting bitter opposition from hundreds of citizens from the western part of the state.

Opponents in the Legislature last year criticized the bill’s supporters for arguing that because the compact was a previously negotiated settlement between three parties, any amendments to the bill at the state level would require negotiations to start fresh.

However, Tester said during the media call that some changes could be made by Congress without the process starting over.

“They’ve got to be changes that are very, very minor, and with any changes we will be in contact with the state and the tribe and the water compact commission,” Tester said, adding that significant alterations could kick the bill back to the state for ratification again. “I don’t want to do that, but that doesn’t mean we can’t tweak a couple things as we go along and stay with the intent of the state of Montana.”

Those tweaks could include minor changes to language and dollar amounts, and he noted that the water compact for the Blackfeet Tribe also was modified slightly at the federal level.

The compact for the Tribes on the Flathead Indian Reservation was the last of seven tribal water rights compacts passed by Montana.

Four of the others have been ratified by all three parties, while the compacts for the Blackfeet Tribe as well as tribes on the Fort Belknap Reservation still await federal approval.

Montana ratified the Fort Belknap compact in 2001 and the Blackfeet compact in 2009. 

On Tuesday, Zinke announced an apparent step forward for the Blackfeet compact after the House Natural Resources Committee held hearings on the bill for the first time since its introduction five years ago.

Opponents to the compact for the Confederated Salish and Kootenai Tribes have vowed to continue fighting against the agreement at the federal level and are currently challenging the state’s ratification in court.

The Flathead Joint Board of Control filed the lawsuit shortly after the bill was signed into law by Gov. Steve Bullock in April 2015.

The suit alleges that the bill effectively granted new legal immunities to the state that would require approval by two-thirds of the Legislature’s two houses rather than the simple majority that voted in favor of the compact.

Tester acknowledged the ongoing legal challenge, but said introducing the bill was just the first step in a long process.

“We have to move forward. If we wait for it to be a perfect storm before we move forward, it’s never ever going to happen,” he said. “This is a piece of legislation that has a lot of components to it and this is a piece of legislation that as soon as we start talking about it, the sooner we can get things done.”

If Congress ratifies the water compact, it would still require the approval of the Confederated Salish and Kootenai Tribal Council before being codified by a decree of the Montana Water Court.