Water Rights Protection Act impacts local use
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FLATHEAD RESERVATION — Since the Montana Water Rights Protection Act was signed into law a year ago, changes to how water rights are assigned and managed on the local level are beginning to fall into place – and impact some local land use and subdivision plans.
The CSKT Water Compact was activated Sept. 17 upon the signature of Secretary of Interior Deb Haaland. According to a fact sheet recently issued by Rob McDonald, CSKT Compact Compliance Officer, the agreement protects valid existing water uses, establishes a process to authorize new water rights or changes on the Flathead Reservation, and quantifies the Tribes’ water rights for all time.
A joint state-tribal Water Management Board that’s currently taking shape is now the exclusive regulatory body on the reservation for water right appropriations and changes in use. Under the Compact, the five-member board must be in place six months from the signing date, or no later than March 17.
The board is comprised of two members selected by the Tribes (Clayton Matt and Teresa Wall-McDonald), two selected by governor from a slate of nominees recently submitted by counties on the reservation, and a fifth chosen by the other four. The Department of the Interior selects a sixth non-voting member. Until that board is established and can begin its work, no further water uses or changes to existing uses will be permitted within the reservation’s boundaries.
Water rights have been in limbo here for quite some time, but prior to activating the Compact in September, the Lake County Commissioners could sign off on subdivisions or changes in water uses with the caveat that water rights were in question.
Commissioners wrote a letter to Governor Greg Gianforte in early December requesting an interim solution so that subdivisions or land transfers in the county’s pipeline can move forward.
“We have subdivisions in the preliminary phase or all done and we can’t approve them until the board approves the water rights,” said commissioner Gale Decker.
His concern is that it could realistically be six to eight months before the board is fully formed, has hired a water engineer, and is ready to begin its work.
“Why can’t we keep doing what we’ve been doing for years? For our final approval, we just say water rights are in question,” he added.
Outgoing Lake County Planning Director Jacob Feistner explains that comment regarding water availability is required from the Montana Department of Environmental Quality (MDEQ) as part of the planning process.
Prior to the Compact taking effect, Mark Pittman of the Department of Natural Resources and Conservation was providing comment on proposed wells. Now, however, that responsibility falls to the nascent water board and any subdivision proposals that did not receive a comment regarding water availability prior to Sept. 17 from the DNRC are now in limbo.
Feistner says he doesn’t have “a hard number” on how many subdivision applications pending approval in Lake County had obtained a water comment prior to Sept. 17 and how many are waiting on the new water board.
He says approximately 27 subdivision pre-applications have been submitted in the past two years, with five of those arriving within the recent weeks. The pre-application is a preliminary step that’s required before property owners or developers actually submit a subdivision application.
The planning department currently has approximately 14 subdivision applications in some form of the public review process – including some whose pre-applications were submitted more than two years ago.
Diana Luke is director of Lake County Environmental Health, which reviews water, wastewater and stormwater proposals in Lake County for the MDEQ. While well permits are on hold, permitting for projects such as wastewater treatment systems “is at extremely high levels and my workload reflects it.”
“In reality, this hurdle is only currently delaying the approval of five proposed well locations on two single-lot divisions, two family transfers, and one removal of a sanitary restriction,” she added.
The commissioners, who give final approval to subdivision projects, are concerned that the slowdown could pose a hardship for developers, surveyors and even well drillers.
“I think word is out that it’s no use going forward for the time being,” said Decker.
