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Flathead Reservation Draft Compact and Ordinance

Flathead Reservation Draft Compact and Ordinance. October 3, 2012 Public Review Draft. What Is the Draft Compact?. Provisional draft of a water rights agreement Part of package that also includes appendices, the Ordinance, and a FIIP Water Use Agreement Remains a work in progress

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Flathead Reservation Draft Compact and Ordinance

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  1. Flathead Reservation Draft Compact and Ordinance October 3, 2012 Public Review Draft

  2. What Is the Draft Compact? • Provisional draft of a water rights agreement • Part of package that also includes appendices, the Ordinance, and a FIIP Water Use Agreement • Remains a work in progress • Tribes, State and US still working to fill in a few gaps • Needs full public review and comment

  3. What Does the Draft Compact Look Like? • Similar format to other compacts Montana has concluded with tribes and the United States • Two main parts: • Article III: Quantification of Tribes’ water rights • Article IV: Provisions for exercise and administration of those rights

  4. What’s Different About this Draft Compact? • Provides for unitary administration of all water rights on the Reservation • Resolves the Tribes’ claims to water rights off the Reservation • Article III of the Hellgate Treaty: • “the right of taking fish at all usual and accustomed places, in common with citizens of the territory”

  5. Article I: Recitals • Who the negotiating parties are • Tribes, State, US • What are we trying to accomplish • A water rights settlement • What is the legal authority that entitles us to do this • Provisions of tribal, state and federal law

  6. Article II: Definitions • What we mean when we use Capitalized Terms

  7. Article III: Tribal Water Right • This is the quantification part • Identifies the various categories of the Tribes’ rights • The rights are defined in Water Right Abstracts

  8. Water Rights Abstracts • Same format as all other rights in the DNRC water rights database • Provides details and clarity for all the attributes of the rights • Attached to the Compact as appendices • Draft abstracts are posted on the Compact Commission’s website • The draft abstracts a work in progress (still undergoing technical review)

  9. Tribes’ Water Rights • Religious and Cultural Uses (III.A) • FIIP Water Right (III.C.1.a) • Includes rights to water FIIP diverts from off the Reservations (III.D and III.E) • Exercise to be subject to terms and conditions of FIIP Water Use Agreement • References to FIIP Water Use Agreement do NOT presume final content of that agreement • 1855 Priority Date

  10. Tribes’ Water Rights (con’t) • Existing Uses by the Tribes, Members and Allottees (III.C.1.b) • Specifically identified through Registration process set forth in the Ordinance • 1855 Priority Date • Flathead System Compact Water (III.C.1.c) • 229kaf diverted, 128kaf depleted • Includes 90kaf from Hungry Horse Reservoir • Specific conditions attach to the exercise of this water right • BOR modeled conditions • Biological conditions • 1855 Priority Date

  11. Tribes’ Water Rights (con’t) • On-reservation Instream Flow rights (III.C.1.d) • “Time Immemorial” Priority Date • For “Natural Nodes” (stream reaches without human influence) • For “FIIP Nodes” (stream reaches interrelated with the FIIP • Exercise of FIIP Nodes ISF subject to terms and conditions of FIIP Water Use Agreement • For “Other Instream Flows” (stream reaches other than the first two categories)

  12. Tribes’ Water Rights (con’t) • “Other Instream Flows” • Maximum level of right identified in abstract • Rights not enforceable until an enforceable flow schedule is proposed by the Tribes and approved by the Water Management Board • (I’ll talk more about that later)

  13. Tribes’ Water Rights (con’t) • Minimum Pools in FIIP Reservoirs (III.C.1.e) • Minimum Pool levels identified in FIIP Water Use Agreement • Does not affect Project Operations – simply preserves right to have that water in the reservoirs • 1855 Priority Date

  14. Tribes’ Water Rights (con’t) • Wetlands (III.C.1.f) • High Mountain Lakes (III.C.1.g) • Both are rights to naturally occurring water • Rights cannot be used to make call on other water rights • That condition is reflected on the abstracts • “Time immemorial” Priority Date

  15. Tribes’ Water Rights (con’t) • Flathead Lake (III.C.1.h) • Right to water to sustain minimum pool • (2883 ft. MSL) • “Time immemorial” Priority Date • Boulder Creek and Hellroaring Hydro Projects (III.C.1.i and III.C.1.j) • 1855 Priority Date

  16. Tribes’ Water Rights (con’t) • Wetlands on MFWP-owned lands (III.C.1.k) • Owned jointly with MFWP • Right to naturally occurring water • Rights cannot be used to make call on other water rights • That condition is reflected on the abstracts • MFWP retains exclusive management authority over exercise of water rights • “Time immemorial” Priority Date

  17. Wetlands on MFWP-owned lands (cont.) • On Effective Date of Compact, Tribes to become joint owner with MFWP of FWP water rights claim 76L 153988 (in lake use on tributary of Post Creek) • Claim filed by MFWP in Adjudication • Attributes of right (including priority date) to be as finally decreed by Water Court

  18. Tribes’ Water Rights (con’t) • Kerr Hydro Project water rights (III.C.2) • Tribes intend to acquire those rights in 2015 pursuant to FERC license conditions • Compact recognizes that the attributes of these rights (including priority date) will be as determined by Montana Water Court • Inclusion of reference to these rights in Compact does NOT change any of the attributes of these rights, which arise under state law

  19. Off Reservation Rights • Off Reservation Rights (III.F): • Kootenai • Swan • Lower Clark Fork • Upper Clark Fork/Blackfoot • Bitterroot • MFWP Rights (Flathead/Kootenai/Bitterroot/Blackfoot/ Rock Creek)

  20. Off Reservation – Kootenai • Mainstem Instream Flow Right for Fisheries (Article III.F.1) • abstract on Compact Commission website (Appendix 21) • Right cannot be changed to other purpose • Right cannot be enforced so long as Libby Dam is in existence • No one is talking about removing Libby Dam

  21. Off Reservation – Kootenai (cont.): • If right becomes enforceable, it is only enforceable again junior irrigators on the mainstem of the Kootenai – not on the tributaries • Surface water irrigators and groundwater irrigators with flow rate above 100 gpm • Again, no one is talking about removing Libby Dam

  22. Off Reservation – Swan (III.F.2): • Mainstem Instream Flow Right for Fisheries • abstract on Compact Commission website (Appendix 22) • Right cannot be changed to other purpose • Right enforceable only again junior irrigators • Surface water irrigators and groundwater irrigators with flow rate above 100 gpm

  23. Off Reservation – Lower Clark Fork • Mainstem Instream Flow Right for Fisheries(III.F.3): • abstract on Compact Commission website (Appendix 23) • Right cannot be changed to other purpose • Right enforceable only again junior irrigators on mainstem of Lower Clark Fork – not tributaries • Surface water irrigators and groundwater irrigators with flow rate above 100 gpm

  24. Milltown Dam Right • Off Reservation – Upper Clark Fork and Blackfoot (III.F.5): • Tribes and MFWP become co-owners of right (State currently owns the right) • Co-ownership means parallel ownership –two owners of one right • Each has independent right to exercise • Compact changes purpose of Milltown Dam water right from hydro to fisheries

  25. Milltown (cont.) • Right is split into two rights – one enforceable up the Blackfoot (measured at Bonner) and one up the Upper Clark Fork (measured at Turah) • Enforceable levels are set by hydrograph – minimum of 700 cfs at Bonner, 500 cfs at Turah • Draft abstracts and enforceable flow schedules are on Compact Commission website (appendices 26 and 27)

  26. Milltown (cont.) • Right enforceable only again junior irrigators • Surface water irrigators and groundwater irrigators with flow rate above 100 gpm • 10 year deferral period before right becomes enforceable • Opportunity for stakeholder planning

  27. Off Reservation – Bitterroot River (III.F.6) • CSKT to have beneficial interest in MFWP contracts for stored water from Painted Rocks and Lake Como • No contract amendments – FWP to manage rights in consultation with Tribes

  28. Off Reservation –Instream and Recreational Claims • Off Reservation – Co-ownership of FWP Instream and Recreational Claims (III.F.4): • Co-ownership means parallel ownership – two owners of one right • Each has independent right to exercise • Claims are located on: • Tobacco River and Young Creek in the Kootenai Basin • Mainstem of the Bitterroot River from confluence with Clark Fork up to the East and West Forks • South, Middle and North forks of the Flathead River • Rock Creek, a tributary of the Clark Fork • Several lakes in the Blackfoot River Basin

  29. Off Reservation –Instream and Recreational Claims (con’t) • Rights to be quantified in one of two ways: • Through the Compact • For FWP rights that have already been through the objection process in the Adjudication • Through the Adjudication • For FWP rights that have not yet been through the objection process in the Adjudication • Co-ownership of these rights does NOT give the Tribes any management authority off the Reservation

  30. Water Rights On Acquired Lands (III.J) • Tribes to own water rights acquired with land bought by the Tribes, as those rights are finally decreed in the Adjudication or permitted by the DNRC • Water rights to be exercised in a manner consistent with historic use

  31. Protection of Existing Users • Non-irrigation rights CANNOT be called (III.I.1) • Groundwater irrigation rights with a flow rate of 100 gpm or less CANNOT be called (III.I.2) • Protection for FIIP irrigators through the FIIP Water Use Agreement (if successful) • Protection for non-FIIP irrigators through opportunity for consensual agreements with Tribes (III.I.3)

  32. Protection of Existing Users (cont.) • Consensual agreements allow non-Project irrigators to protect from Call use up to the level of the FTA • New language is on the Compact Commission’s website (Article III.I.3)

  33. Protection of Existing Users (cont.) • Non-irrigation rights upstream of the Reservation CANNOT be called (III.I.4) • Irrigation rights upstream of the Reservation CANNOT be called UNLESS they are sourced from the mainstem of the Flathead River or its South, Middle or North Forks (III.I.4) • Status of irrigation rights on Little Bitterroot River north of Reservation still being negotiated (III.I.5)

  34. Implementation of Compact (Article IV) • This is the administration part • Provides ground rules for use of Tribal water rights • Provides for unitary administration

  35. Implementation of Rights • Rights to be held in trust by US (IV.A) • Rights may be used by Tribes, Members, Allottees, and anyone with their permission (IV.B.1) • Rights not lost for non-use (IV.B.2)

  36. Registration and Changes • Existing Uses of Tribal Water Rights must be registered (IV.B.3) • (more on this later) • New developments of and changes in the use of Tribal water rights must be done pursuant to the Law of Administration/Ordinance (IV.B.5)

  37. Leasing (IV.B.6) • Tribes may lease certain categories of water rights (other than FSCW) for use on or off the Reservation (IV.B.6.a) • Lease CANNOT cause adverse effect to existing users • If lease is for use ON the Reservation, determination of adverse effect is made by the Water Management Board • If the lease is for use OFF the Reservation, determination of adverse effect is made by DNRC under applicable Change provisions of the Montana Water Use Act

  38. Leasing (cont.) • Owners of trust lands may lease their portion of the Tribal Water Right for use ON the Reservation (IV.B.6.b) • Lease CANNOT cause adverse effect to existing users • Determination of adverse effect made by Water Management Board

  39. Leasing (cont.) • Tribes may lease Flathead System Compact Water for use on or off the Reservation (IV.B.6.c) • If lease is exclusively for stored water (from Hungry Horse), Tribes need only provide notice of lease to DNRC and Water Management Board

  40. Leasing (cont.) • Any portion of a lease for use off the Reservation involving direct flow water cannot cause adverse effect to an existing use • determination of adverse effect is made by DNRC under applicable Change provisions of the Montana Water Use Act • Lease of 11,000 acre-feet of FSCW water from Hungry Horse for mitigation still being negotiated

  41. Water Management Board (IV.C) • Entity to administer all water rights on the Flathead Reservation (IV.C.1) • Membership (IV.C.2) – Five Voting: • Two appointed by Governor after consultation with holders of state law-based water rights on the Reservation • Two appoint by Tribal Council • Fifth selected by other four • Possibility of sixth, NON-voting member appointed by the US still under negotiation

  42. Water Management Board (cont.) • Who is eligible to serve on the Board (IV.C.2.d): • Must be Reservation Resident: • Do business on Reservation; • Live on Reservation; or • Owns seasonal residence on Reservation • Must have education and experience with: • Natural resource management; • Public administration; • Agriculture; • Engineering • Commerce or finance; • Hydrology; • Biology; or • Water law or policy

  43. Water Management Board (cont.) • Quorum and Votes Required to Act (IV.C.3): • At least four voting members necessary for any Board vote • Vote must pass with majority of voting Board members (i.e. no less than 3 yes votes) • a 2-2 split is deemed a rejection of the matter being voted on

  44. Water Management Board (cont.) • Board responsibilities (IV.C.4): • issuing new appropriation rights; • Authorizing changes in use of water rights • Enforcement of water rights and resolution of water rights disputes • Powers and Duties of Board (IV.C.5) • Implement Ordinance • The specific rules and process the Board must follow are detailed in the Ordinance • Hold hearings when necessary under the Ordinance • Employ and supervise Water Engineer • Appoint water commissioners • Only upon unanimous vote of all five voting members

  45. Water Management Board (cont.) • Board decisions appealable to court of competent jurisdiction (IV.C.6) • Board is public agency subject to Right to Know Laws (IV.C.7) • Board CANNOT change the Ordinance (IV.D) • The Ordinance may only be amended by the Tribes and the Montana jointly • Board must enter all Appropriation Rights and Changes it authorizes into the DNRC water rights database (IV.E)

  46. Disclaimers and Reservation of Rights (Article V) • This is where the lawyers explain: • what we are NOT doing in this Compact (V.A and V.B)(e.g. affecting other compacts or other federal reserved water rights) • that no Party to this Compact is altering any legal rights that are not specifically addressed in the Compact (V.C) • That the US can only be bound when Congress acts (V.D) • And that any State obligation in the Compact that requires State money is contingent on the Legislature appropriating that money (V.E)

  47. Contributions to Settlement (Article VI) • State contribution to settlement still being negotiated (VI.A) • US contribution to settlement to be as identified in federal ratification legislation (to be drafted only after State approval) and as approved by Congress (VI.B)

  48. Finality (Article VII) • Lays out the process for getting the settlement finally approved

  49. Legislation and Defense of Compact (Article VIII) • The State and Tribes commit to taking the necessary steps to get the settlement finalized (VIII.A-C) • The State, Tribes and US commit to defending the settlement from court challenge after it is finally approved (VIII.D)

  50. What’s In the Draft Ordinance? • Rules of the road: • For the Board in carrying out the duties assigned by the Compact • For all on-Reservation water users to have their water rights administered and enforced

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