Water compact negotiations reopen
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MISSOULA – The Montana Reserved Water Rights Compact Commission brought several narrowly tailored suggestions about how to protect the rights of Flathead Indian Irrigation Project irrigators to a water compact negotiation session between the state, federal and Confederated Salish and Kootenai governments last week.
The proposals on the table were a starting point for integrating principles into the Compact from a previous addendum known as the Water Use Agreement. The agreement is no longer in effect because of outstanding writs of prohibition that prevent local irrigation districts from signing the document. The writs resulted from lawsuits filed concerning numerous water rights issues on the Flathead Reservation.
“The premise that motivated that reopening of negotiations from the state’s perspective was that these negotiations would be directed at protecting existing crop consumption on the Flathead Indian Irrigation Project while ensuring the tribal in-stream flows that were negotiated previously under the compact negotiations,” Compact Commission Staff Attorney Melissa Hornbein said. “And (the agreement will set) forth principals for how potential conflicts between the exercise of those rights could be dealt with in a way that would both protect existing uses and protect in-stream flows.”
At the heart of the discussion was the concept of an adaptive management plan that will specifically spell out how water rights are enforced in respect to how implemented policies under the Compact play out in comparison to sophisticated hydrological models used as the scientific basis for the agreement.
The hotly debated modeling systems were evaluated this summer by a legislative technical team of independent scientists. At the end of August the technical team published a report deeming the models to be scientifically sound enough to move forward with the Compact. Because of an outpouring of public concern about whether or not the models are accurate, the state has proposed an adaptive management strategy that will provide contingency plans if the model numbers don’t hold true.
“As with any model, our technical review found that there is some uncertainty,” Hornbein said. “… We’ve heard concern about what happens if those model outputs aren’t correct and a lot of general concern about what happens if there is insufficient water to supply both irrigation needs and in-stream flow needs in the streams supplying the project and on the project itself. So, one of the key components in our perspective in this reopening of negotiations is to negotiate to provide a mechanism to potentially address discrepancies if the model numbers aren’t born out on the ground or in the expected situations that will occur over time — and have occurred in the past — when there simply isn’t enough water in times of extreme drought.”
The adaptive management plan would come into use most frequently in times of extreme water shortage, Hornbein said.
“We want very clear principles that are settled on through negotiation that are very clearly articulated in Compact which will tell us what happens in that situation – how shortages can be allocated in a way that provides the least possible hurt and least possible degree of curtailment to both the irrigation water rights and to the tribal in-stream flows.”
Under Montana’s water rights system, the senior water right could potentially get all of the water in a stream in a year of extreme drought and the junior water right holders would receive none. The Tribes have an almost unbeatable senior water right priority date to most irrigators on the Flathead Reservation, but Hornbein said the state government hopes the Tribes will agree to “shared shortage” strategies in the case of drought that wouldn’t leave irrigators completely high and dry.
The Tribes gave a lukewarm response to some of the other ideas presented, but embraced adaptive management as a critical piece of getting the compact passed.
“We need to take a couple steps back before we can actually throw substantive responses at what the state is presenting because the ideas sound reasonable in some respects and some, maybe not,” Tribal Attorney John Carter said. “One thing is clear: I think both the state and the Tribes are intent upon protecting verified existing uses … The threshold issues we’re currently in agreement on: protect verified existing uses, both Indian and non-Indian.”
Tribal attorney John Carter said the Tribes will soon release an adaptive management plan to the state government that will provide wiggle room for adjustment, but will also tie up what the Tribes see as loose ends to the Compact Commission staff’s current proposal.
“It provides finality and change over time within the structure of the Compact,” Carter said.
Renegotiations are ongoing and are expected to conclude sometime before the legislature meets in January. The Compact, which failed to make it out of committee in the 2013 legislative session, has one final chance to make it through the state legislature before the Tribes file water claims in the state water court.
