Misinformation circulating on water agreement
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There is a lot of misinformation being circulated as to why the proposed Flathead Water Use Agreement and Compact should be rejected. Unfortunately, this includes the misinformation being promoted by three FJBC commissioners last week. Here are the facts regarding the claims they made in their letter:
1) The idea that the FWUA “gives away” water to the tribes is wrong. As the Ninth Circuit Court of Appeals has made clear, the water rights associated with the FIIP are junior to the tribes’ instream flow rights. The adjudication is coming, whether people like it or not, which means that the tribes’ rights – including their instream flow rights – will be quantified, either through these negotiations or through litigation. Rather than taking water “away” from irrigation, the FWUA in fact protects FIIP users’ continued access to irrigation water despite the seniority of the tribes’ instream flow water rights.
2) Instream flows only increase above the interim levels at such time as operations and rehabilitation and betterment improvements occur to make additional water available capable of satisfying both the new minimum enforceable instream flows and the farm turnout allowance. Prior to that time, current practice will remain in place.
3) The United States is under no obligation to continue to deliver extra duty water, and has indicated that if the settlement is not approved it would revisit its trust obligation to deliver instream flow water to the tribes ahead of irrigation water. On the other hand, the FWUA contains a process by which irrigators with a demonstrable need can continue to receive water over and above the FTA.
4) The FWUA changes nothing in terms of day-to-day control of the project, which remains with the project operator under the terms of the transfer agreement.
Control on the project will be the same the day after the settlement goes into effect as it was on the day before the settlement went into effect. Nor does the FWUA alter the legal relationship between irrigators and either the FJBC or the project operator.
5) The FWUA recognizes that some irrigators are quite efficient in their use of water and contains provisions allowing irrigators with efficient systems and a demonstrable need to access water above the FTA amount. But the project as a whole diverts much more water from streams than is actually put to use growing crops, and one of the major ways to ensure that there is enough water to go around, both to keep irrigators whole and to satisfy the tribes’ senior instream flow rights, is to improve project efficiency. The FWUA addresses these efficiencies, including the use of substantial federal and state dollars to bring them about.
6) Senator Jackson is simply wrong in his description of what the proposed settlement does. It does not “place non-Indians under tribal jurisdiction, separate water rights from private property and give senior water rights to all of Western Montana’s major lakes and rivers to the tribes.” Each of those claims is false.
a. On the reservation, in place of the regulatory void that currently exists and that means that there is no legal way to obtain a new use of water, the settlement proposes a joint state-tribal entity (not dissimilar from the CME) to regulate all of the water rights on the reservation under a uniform body of law. This is not tribal control of non-Indian water.
b. Off the reservation, jurisdiction over the administration and enforcement of water rights remains with the DNRC and state district courts. Nothing in the proposed settlement changes that for anyone off the reservation.
c. The proposed settlement does recognize the Tribes’ legal entitlement to instream flow rights in certain rivers and in Flathead Lake, but also imposes conditions on the exercise of each of those rights to essentially eliminate any impact on existing users that those legally valid rights will have.
d. The proposed settlement also does not affect the validity of anyone’s private water rights. Each individual water rights claim that was filed in the adjudication remains to be determined by the water court through the adjudication process.
Nothing in the proposed settlement terminates or eliminates anyone’s private water rights.
