Legislators draft alternative water compact

Sen. Verdell Jackson, R-Kalispell, and Rep. Keith Regier, R-Kalispell, on June 27 presented the Flathead County Commissioners an alternative water compact to the one drafted by the Montana Reserved Water Rights Commission.

The commission’s draft was created after a decade of negotiations between the federal and state governments and the Confederated Salish and Kootenai Tribes. It was presented to the Montana Legislature this year for approval but never got out of the House Judiciary Committee.

A bill passed by the legislature that called for extending the deadline for adjudicating the Indian and federal water rights and creating an interim committee to study the matter was vetoed by Gov. Steve Bullock.

Bullock called the proposed CSKT water compact “a reasonable settlement” in which both sides had made concessions. And because of the 1855 Hellgate Treaty, the Confederated Salish and Kootenai Tribes are the only Indian tribes in Montana with aboriginal water rights protected under federal law that could theoretically lay claim to in-stream water across the entire state.

Jackson told the county commissioners the water commission’s draft was fatally flawed, and that the legislature will not approve the water compact if it’s brought back in its current form. He said the water commission did not address issues raised by himself and others and therefore did not represent state water rights holders.

The alternative water compact was drafted by a handful of legislators and a group called Concerned Citizens of Western Montana. Jackson said the alternative water compact was drafted without input from the tribes.

A key difference is that the alternative water compact eliminates CSKT claims to off-reservation water rights. Regier told the county commissioners that no other Indian water compacts approved by the legislature included off-reservation water rights. He also noted that the water compact presented to the legislature applied to 23,000 people inside the Flathead Indian Reservation and only 5,000 tribal members.

The water compact presented to the legislature had also created an administrative board to apply different water rights law inside the reservation. The alternative water compact claims the state of Montana has the constitutional duty and the statutory authority to govern water rights held by non-tribal residents inside the reservation.

The negotiated water compact had also provided 100,000 acre feet of water from the Hungry Horse Reservoir to the tribes. The alternative calls for splitting that 100,000 acre feet between the state and the tribes.

In support of splitting that water, Jackson said the state should get something in return for all the money it will give the tribes for infrastructure improvements on the reservation once a water compact is approved. The infrastructure improvements are mostly aimed at making more efficient use of water on the reservation.

Flathead County Commissioner Gary Krueger said he agreed that state water users were not satisfactorily represented during negotiations by the Montana Reserved Water Rights Commission, but without any input from the tribes, he expected the alternative presented by Jackson and Regier wouldn’t be well received.

With no water compact approved by the legislature, the tribes now have two years to file legal claims for water rights on and off the reservation if they choose to do so. According to the Montana Reserved Water Rights Commission, CSKT’s claims to water outside the reservation are well established by federal court rulings.

Jackson says he’ll present his alternative water compact to county commissioners in 11 counties affected by the water compact. He also said he would approach CSKT officials about the alternative water compact.