MWRA 2015 Legislative Newsletter

Legislative
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2015
CSKT Water Compact
2015 Legislation Overview
Montana Water Resources Association
NEGOTIATED SETTLEMENT OR LITIGATION?
CSKT WATER COMPACT PROVIDES ANSWER.
The Montana Reserved Water Rights Compact Commission was created by the Legislature to negotiate water right
compacts with the various federal agencies and Indian Tribes throughout Montana. Water right compacts are an
important component of Montana’s overall water right adjudication program. The water right adjudication program
and final decrees cannot be completed by the Montana Water Court until all claims of rights are filed. Compacts
represent a large component of the rights, that if not settled through a compact, will be claimed. The Confederated
Salish and Kootenai Tribes (CSKT) compact is the final tribal compact to be negotiated by the Compact Commission.
While negotiations have been ongoing for many years, extensive discussions have been in motion for the past four or
five years.
In order to be ratified, the Montana Legislature must first approve a compact. To date, the legislature has approved
seventeen compacts including all of the various federal agencies and tribes except the CSKT. While CSKT compact
legislation was presented to the legislature during the 2013 legislative session, it was presented too late in the
process to allow ample time for understanding the complexity of the agreement and it failed in committee. The CSKT
Compact is unquestionably the most complex compact the Commission has negotiated. The current language
includes almost seventy pages, plus abstracts and appendixes. In hindsight, while the 2013 agreement was
workable, allowing more time for discussions and negotiations was certainly beneficial. During the past couple of
years, the Compact Commission was able to find common ground on several contentious issues that are included in
the current compact proposal.
The enhancements in terms negotiated during the interim and contained in Senate Bill 262, carried by Senator Chas
Vincent, make the CSKT Compact more workable and beneficial to both tribal and non-tribal interests. Virtually all the
changes to the original Compact proposal were directed at the irrigation interests and the operations of the Flathead
Indian Irrigation Project. For irrigators, the changes will add more certainty to their water delivery and
(Cont. Page 3)
“Montana’s Voice for Montana’s Water”
CSKT Water Compact 2015
Montana Water
Resources Association
supports passage of the
CSKT Compact for the
benefit of all Montana
water users.
The CSKT compact is a fair
negotiated settlement of an
extremely important
component of the
adjudication of Montana water
rights. Passage of the
compact will provide certainty
and protection for all water
rights, including irrigation
rights, both on and off the
reservation. In addition to
MWRA, the compact is
supported by the other major
Agricultural organizations
including Montana
MONTANA WATER
RESOURCES ASSOCIATION
BOARD OF DIRECTORS
Stockgrowers, Montana Farm
Bureau, and Montana Ag
Business Association.
Montana Attorney General, Tim
Fox, and Montana Governor,
Steve Bullock also support the
CSKT Water Compact.
Exec’s Comments
Dear Montana Water Users:
Jennifer Patrick ………………… President
John Crowley ...………… 1st Vice President
James Brower ………….. 2nd Vice President
Sharon Foster …………………. Treasurer
Russ Anderson …………………... Director
Scott Aspenlieder ………………... Director
Wayne Blevins …………………... Director
Dana Burns ..................................... Director
Russ Cumin ……………………… Director
Jim Foster ....................................... Director
Holly Franz ………………………. Director
Shawn Higley ……………………. Director
Bill Hritsco …..………………....... Director
Steve Hughes …..………………... Director
Erling Juel ....................................... Director
Tim Meuchel …………………….. Director
Dennis Miotke …………………… Director
Peter Rebish …..………………….. Director
Randy Reed ….……………........... Director
Lynne Rettig …..…………………. Director
Don Steinbeisser .…..……….......... Director
Vern Stokes …..…………………. Director
Jay Thom ………………………… Director
John Tobaracci ............................... Director
Gordon Wind …..………………… Director
Mike Murphy ………………....... Exec. Dir.
It is a pleasure for me to
provide these comments as the
Executive Director of the
Montana Water Resources
Association
Candidly, the CSKT Compact may be the most divisive water matter I
have been involved in. From a statewide perspective, it also ranks as
one of the most important issues and, certainly, one that neither the
MWRA Board of Directors, nor I, take lightly.
After careful review of compact provisions and after asking many tough
questions, the MWRA Board of Directors voted to support passage of
the compact. I personally believe the proposed compact, while not
perfect, is a good and fair negotiated agreement and far more desirable
than the alternative of going to extremely costly and even more divisive
litigation. Passage of the compact will provide certainty and protection
for all Montana water users.
I encourage our members to contact their legislators to request their
support for the CSKT water compact.
Sincerely,
Mike
Mike Murphy
Page 2
CSKT Water Compact
(cont. from Page 1)
irrigation project operations. One of the more
contentious concerns pertains to the ownership of the
water rights within the reservation and managed by the
irrigation project. The current compact proposal places
ownership with the federal government, which holds the
right in trust for the tribes. Some believe the right should
be held by individual irrigators or the irrigation project.
While both instream flow and irrigation rights would be
held in trust for the tribes under the compact, irrigators
would receive a certificate entitling them to receipt of
water that would be connected to the land and would
travel forward to those who inherit or purchase the
property. While this is not acceptable to some, it is
similar to most other federal irrigation projects except
that the other projects do not provide a certificate of
entitlement to water. By holding the water right in trust
for the tribes, all water users benefit from the 1855
priority date associated with the tribal rights.
Ultimately, the Montana Water Court will evaluate all
claims to water. In addition to the water rights that will
be filed in conjunction with the compact, irrigation project
water rights were filed by both the Bureau of Indian
Affairs and the Flathead Irrigation Project. While some
may want individual or project held water rights, the
priority date of those rights would be, at best, early
1900’s. The tribal right will go back to either time
immemorial or the treaty date of 1855. Considering the
potential 1855 senior priority of the tribe, under the
compact, irrigation water would be protected from a call.
For others within the reservation, the compact provides
for a process to allow new water uses and changes to
existing uses that have been on hold for many years
Insert heading >>>
following the Supreme Court decision in Ciotti, negating
the Department of Natural Resources and Conservation
(DNRC) authority to issue permits or changes on the
reservation. Completing the compact will result in legal
approval of hundreds of domestic and stock wells drilled
on the reservation since the Ciotti decision that threw
water right administration into question.
Opponents to the compact criticize the Unitary
Management Board administrative process that would be
established to facilitate future water permit and change
applications within the reservation rather than going
through the DNRC. They argue their constitutional rights
would be jeopardized by the approach. As pertains to
Page 3
this and other challenges, the Attorney General has
stated there are no constitutional infringements.
Considering the past Supreme Court decision, DNRC’s
authority would certainly be in question and subject to
challenge if the compact fails to pass the legislature.
Opponents also argue water rights will be lost and
historic water use by the Flathead Indian Irrigation
Project would be reduced. The compact actually
provides specific language to protect all existing legal
water rights both on and off the reservation and
ensures legal water right claims filed under the state
adjudication program will be adjudicated by the
Montana Water Court, consistent with all other water
right claims. The compact addresses the irrigation
project water uses, provides for an adjustable process
to deliver the amount of water currently used by the
project, and even anticipates an increase in acreage
from the current 128,000 acres to 135,000 acres.
Compact provisions also provide for 90,000-acre feet
of new water source out of Hungry Horse reservoir as
well as pumping power support that may be used to
mitigate shortages or for irrigation enhancement and
other use.
In addition to a very large projected infusion of federal
dollars, resolution of the CSKT compact includes a
financial commitment from the State of Montana. The
state contribution is projected at $55 million. Most of
the initial state contribution of about $8 million will go
toward improvements to the Flathead Irrigation Project.
Irrigation system improvements and water
measurement capabilities are intended to provide for
water use efficiencies that will be used to facilitate
increasing instream flows to target levels as well as
enhancing farm delivery capabilities. Once instream
target levels are achieved, water savings will be shared
between instream flows and irrigation demands.
(cont. Page 4)
CSKT Water Compact
Tribal instream flow claims are
associated with historic fishing
rights provided within the Stevens
Treaty of 1855 and have been
upheld in several court decisions.
In addition, the federal
Endangered Species Act (ESA)
increases the pressure for
enhanced instream flow for bull
trout and other fisheries
protections. As a result, instream
flows will be required regardless
of the compact. Passage of the
compact quantifies these flows
and will provide for a certainty
regarding these demands that not
only protect fisheries, but the
irrigation interests as well.
There is some concern that water
use efficiency efforts including, for
example, providing for off stream
livestock watering wells will have
an impact on ground water wells.
The compact provides for specific
funding to address such impacts,
if any occur.
In addition to the concerns raised
by opponents to the compact
within the boundaries of the
reservation, opponents are
concerned about off reservation
instream flow rights that would be
granted to the Tribes through the
compact. As a part of the
settlement, the CSKT would
receive instream flow rights on
about thirty stream reaches in
western Montana. Most of these
rights would be shared rights with
the Montana Department of Fish,
Wildlife, and Parks, including
Murphy Rights on several stream
reaches, storage rights at Painted
Rocks and Como Reservoirs, and
Mill Town Dam rights on the Clark
Fork River. These rights will be
held at the existing priority dates
with no changes, except the Mill
Town Dam instream flow right will
be reduced from the current
2000 cubic feet per second to
Page 4
(cont. from Page 3)
1200 feet per second. The right
on the Kootenai and Swan
Rivers will be senior rights, but
limited by a number of
provisions to protect other water
rights from a call. The Tribes
would not be able to make a call
on any water use other than
irrigation. Irrigation calls are
limited to surface rights and
groundwater wells that exceed
100 gallons per minute and
other limitations. In exchange
for these off reservation rights,
the tribes will give up claims to
any further off reservation rights.
Under Montana law, all water
right claims had to be filed by
1996 with the exception of tribal
and federal reserved water
rights. This exception and the
Montana Reserved Water Right
Compact Commission were
established in order to allow the
Compact Commission to
negotiate a solution to these
complex rights and protect other
water right holders from the
extensive and costly litigation
that would result if not
negotiated through a compact.
By law, the Compact
Commission terminates and the
final deadline for compact
approval is June 30, 2015. If
Senate Bill 262 (CSKT compact
legislation) fails to pass, the
CSKT will be required to file their
water right claims with the
Montana Water Court. The
CSKT claims are expected to
number in the thousands. CSKT
claims will include instream flow
rights on all streams and rivers
where the tribes historically
fished and are projected to
include all of western Montana
and most of eastern Montana.
These claims will be prima facie
claims, which will mean all other
water right owners are required
to object to these claims in order
to protect their own water rights.
Not only would this cost
Montana water users millions of
dollars in attorney fees,
reduced water availability, and
property valuation concerns, it
would tie up the overall
adjudication program for
decades as the litigation battles
are fought. The added cost to
the Water Court and Montana
taxpayers is also expected to
increase by well over $50
million, as most of the basins in
the state would have to be
reopened.
Opponents of the compact also
claim the off reservation
instream flow rights, that would
be authorized, will somehow
increase the tribal right to
trespass on private land for the
purpose of reaching historic
fishing grounds. This is not
something new as a result of
the compact. The fact is, tribal
members already possess
certain authority and have had
that authority since the Winans
Case decision made by the
Supreme Court in 1905.
Passage of the compact has no
impact on this issue either way.
The CSKT compact is an
extremely important
component of the
adjudication of Montana
water rights.
SB 262 passed the Senate 31
to 19.
2015 Legislation Continued:
HB 5 (Representative Jeff Welborn)
HB 36 (Representative Ryan Lynch)
HB 5 is a major infrastructure development and
improvement bill that would provide funding from
available cash revenues as well as state bonding
authority. In addition to funding major state
infrastructure projects, the bill would include funding
for the projects included in HB 6, 7, and 8. These
bills provide grant and loan funding for irrigation
project proposals and others. Allocation of the
limited funds in HB 6, 7, and 8 is based on a ranking
of projects and not all projects would be funded.
With the added bonding authority within HB 5, all
projects would receive funding. MWRA supported
HB 6, 7, and 8 as well as HB 5. Passage of HB5 is
questionable considering the overall funding
requirements. MWRA Supported.
heading >>>
HB 36 allows an additional time frame for
implementation/use of a water right. The
additional time is allowed when failure to
complete the appropriation within the time
limit was due to an excusable neglect that
was not the fault of the permitee. The
request for reinstatement of the right must
occur within two years of the original time
limit and may only be provided once.
MWRA Supported.
HB 519 (Representative Carl Glimm)
“Protecting Private Property Rights
A Balancing Act”
HB 519 addresses exempt wells and combined
appropriations. The intent of HB 519 is an attempt to provide
a reasonable compromise to the long debated issue and
related impacts to senior water rights associated with higher
density use of exempt wells. Very simply, under HB 519 the
use of exempt wells (wells for which no permit is required
prior to drilling or use) would be limited to no more than 7.5
acre-feet per year per twenty acres. For each acre, over
twenty acres, an additional .375 acre-feet per year would be
allowed. As introduced, the bill would exclude in house use
(.21 acre-feet) from the limitation. (MWRA supported the
concept for the purpose of keeping the bill alive, while
recognizing that the amendments presented and others
would be necessary. Passage of HB 519 would address the
long running debate over competing property rights).
HB 525 and 553 (Representative Mark Noland)
HB 525 and 553 would provide funding and expands the
program responsibilities associated with the Aquatic Invasive
Species Program. In addition, to the creation of a trust fund
provided under HB 525, HB553 adds additional annual
program funding and enforcement provisions to the program
to enhance boat and other watercraft inspections and
coordinates with the Department of Transportation. MWRA
Page 5
Supported.
SB 37 (Senator Jennifer
Fielder)
SB 37 revises the law
associated with filing water right
claims associated with domestic
and livestock claims that were
exempted from the statewide
filing process. The 2013
legislature approved legislation
allowing the claims to be filed if
claimants wished to have them
made of record and were willing
to pay the associated costs. By
filing exempt claims, those
holding these rights will establish a priority date. While those who decide not to file will not lose their right, their
priority date will be subordinate to those that are filed. SB 37 provides a time certain deadline, February 28,
2018, by which all such claims must be filed, if the owners wish to file. The legislation requires the Department
of Natural Resources and Conservation to provide public notice regarding the opportunity to file these claims. It
also specifies that the Water Judge shall establish a supplemental preliminary decree containing only these
claims. MWRA Supported.
SB 56 (Senator Brad Hamlett)
SB 118 (Senator Brad Hamlett)
SB 118 provides that if the means of conveyance
riverbed within the low water mark of a river determined
for an appropriator is disrupted or otherwise
to be navigable. Under current law, as passed in 2011,
blocked, it does not represent an intent to
those who wish to continue using the riverbed must file to abandon the right. While well intended, this
obtain a lease or easement prior to July 15, 2017. While language could provide an appropriator a means
the original legislation required DNRC to provide notice to to simply circumvent the abandonment
the owners of property adjacent to navigable rivers, the
provisions and hold a right for speculation that
SB 56 revises riverbed laws pertaining to the use of the
language set no specific date for such notice. SB 56
would specifically require DNRC to provide such notice
before July 1, 2016. On those rivers designated
navigable as of October 1, 2011, if SB 56 passes, the
owners of irrigation diversions and other facilities within
the low water mark would have until July 15, 2021 to file
an application for a lease or easement. MWRA
Supported.
Page 6
could otherwise be utilized by other
appropriators. Current law adequately covers
abandonment provisions and avoids unintended
consequences. MWRA Opposed.
SB 232 (Senator Eric Moore)
SB 232 clarifies aspects of Montana stream
access law consistent with the 1987 Supreme
Court decision in Galt vs State of Montana. The
Pagebill
7 modifies hunting and camping provisions, but
+9+89
also, very importantly to irrigation entities and
landowners, the bill specifically delineates that
the Department of Fish, Wildlife and Parks is
responsible for portage routes including the costs
associated with the establishment, maintenance
and signage for such routes. MWRA Supported.
SB 361 (Senator Brad Hamlett)
SB 361 clarifies what is good cause for standing in
Water Court proceedings. Language in SB 361 would
clarify that in order to have standing, a person must
have a leasehold, economic, or clearly demonstrated
particularized interest in an existing water right, permit,
certificate, state water reservation, or right to receive
water through an irrigation project, and that the
person’s interest has been affected by the court
decree. MWRA Supported.
Page 7
SB 389 (Senator Brad Hamlett)
SB 389 defines ephemeral, intermittent,
and perennial streams as they pertain to
Section 85-2-306 (Exceptions to permit
requirements). As introduced, the bill
would have defined a perennial stream as
one that flows continuously during wet, as
well as, dry years. However, the
committee amended the bill to redefine a
perennial stream as one that flows
continuously during “most” years. This
will result in many more streams being
classified as perennial which impacts
regulation requirements for 310 permits,
etc. This could have serious implications
considering the Waters of the U. S.
regulations being pushed by the Obama
Administration. While the bill, as
amended, passed the Senate, MWRA
opposes the bill pending amendment
back to the original language.
Montana Water Resources Association
PO Box 4927
Helena, Montana 59604
Montana Water Resources Association
Coming Events:
CSKT Water Compact
Hearing:
House Judiciary
Committee
April 11, 2015 10:00 a.m.
State Capital Building
Room 303