Proposed Confederated Salish and Kootenai Tribes and Montana Compact and Ordinance

1. Proposed Confederated Salish and Kootenai Tribes and Montana Compact and Ordinance November 8, 2012 Proposal for Public Review and Comments

2. Proposed Water Rights Settlement • CSKT, Montana, and U.S. have negotiated a proposed Compact and Ordinance. • Quantifies CSKT water rights on and off the Reservation. • Provides for the administration of water rights on the Reservation. • Seeking public review and comment.

3. Why Do We Need a Settlement? • Status quo is not an option for the future. • The Montana General Stream Adjudication requires the resolution of all pre-1973 claims to water rights in Montana. • The Adjudication will determine water rights, including CSKT water rights. • In the absence of a settlement, long and costly litigation is likely.

5. Proposed Settlement would • Protect valid existing uses as decreed by the Water Court or permitted by the DNRC prior to 1996. • Protect existing Tribal uses, including traditional Tribal cultural and religious uses. • Establish a process to permit new uses such as domestic, stock, wetlands, municipal, hydropower, industrial, commercial, and agricultural uses. • Provide legal protection for post-1996 domestic wells and permits that are currently in limbo.

6. Proposed Settlement would • Recognize CSKT instream flow rights on and off the Reservation. • Establish modern, science-based irrigation water allocation for the FIIP. • Provide funding for improved water measurement and water supply forecasting. • Provide additional water resources for the Reservation from the Flathead River.

7. Proposed Settlement would • Provide funding for fish habitat and FIIP improvements. • Provide process for changes to existing water uses. • Provide more local control than litigation, and other benefits with significantly lower expenditures of time, money and social disruption.

8. Protections for Water Users • The proposed Compact would protect valid existing uses of water as decreed by the Water Court or permitted by DNRC prior to 1996. • Provides a mechanism to protect existing wells for domestic and stockwater use. • Provides expedited process for new domestic and stockwater wells and replacement wells. • There is NO metering requirement for new wells serving less than three homes or business.

9. Protecting Existing Water Uses • The Tribes and the United States would agree to relinquish their right to exercise the Tribal water right to make a call against: • any non-irrigation water right, • groundwater irrigators that use less than 100 gallons per minute, and • all water rights upstream of the Reservation, • except for irrigation rights sourced from the mainstem of the Flathead River, including Flathead Lake, or the North, South, or Middle Forks of the Flathead River.

10. CSKT Off-Reservation Water Rights • CSKT Treaty includes right to take fish in usual and accustomed locations. • Courts have confirmed this right to use water outside the reservation to maintain fisheries flows • Fishery flows are instream, non-consumptive uses • CSKT is the only tribe in Montana with this treaty provision.

11. Off Reservation Rights • Kootenai • Swan • Lower Clark Fork • Upper Clark Fork/Blackfoot • Bitterroot • MFWP Rights • Flathead • Kootenai • Bitterroot • Blackfoot • Rock Creek

12. Off Reservation – Kootenai • Mainstem Instream Flow Right for Fisheries • Right cannot be changed to other purpose • Right cannot be enforced so long as Libby Dam is in existence • If right becomes enforceable, it is only enforceable against junior irrigators on the mainstem of the Kootenai – not on the tributaries for • Only mainstem surface water irrigators and groundwater irrigators with flow rate above 100 gallons per minute would be subject to call.

13. Off Reservation – Swan River • Mainstem Instream Flow Right for Fisheries • Right cannot be changed to other purpose • Right enforceable only again certain junior irrigators • Surface water irrigators and groundwater irrigators with flow rate above 100 gallons per minute

14. Off Reservation – Lower Clark Fork • Mainstem Instream Flow Right for Fisheries • Right cannot be changed to other purpose • Right enforceable only again certain junior irrigators on mainstem of Lower Clark Fork – not tributaries • Surface water irrigators and groundwater irrigators with flow rate above 100 gallons per minute

15. Milltown Dam Right • Off Reservation – Upper Clark Fork and Blackfoot: • 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

16. 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)

17. Milltown (cont.) • Right enforceable only against certain junior irrigators • Surface water irrigators and groundwater irrigators with flow rate above 100 gallons per minute • 10 year deferral period before right becomes enforceable • Opportunity for stakeholder planning

18. Off Reservation – Bitterroot River • CSKT would 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

19. Off Reservation –Instream and Recreational Claims • Off Reservation – Co-ownership of FWP Instream and Recreational Claims • 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

20. 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

21. Next Steps • The Parties are seeking public comment on the proposed Compact and Ordinance. • Public meetings to explain the proposed Compact and Ordinance, answer questions, and take public comment. • The Parties will consider revisions based on the public comment. • The Montana Reserved Water Rights Compact Commission will meet on December 19, 2012 to decide whether to submit the Compact and Ordinance to the Legislature for approval.

22. Next Steps • The final Compact and Ordinance would be submitted to the 2013 session of the Montana Legislature for ratification through the enactment of State legislation. • Both the US Congress and the Tribes would need to approve the settlement for it to be effective. • After the three Parties act to approve the settlement, it would be submitted to the Water Court for final approval.

23. Send Written Comments To: Mr. Chris Tweeten, Chair, MT RWRCC, 2705 Spurgin Road, Building C, Missoula, MT 59804 or email to dnrrwrcc@mt.gov. Comments will be shared with all parties.

24. For More Information • For copies of the proposed Compact and Ordinance and more information visit (these addresses are on the Summary): Montana:http://www.dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp CSKT:http://www.cskt.org/tr/nrd_waternegotiations.htm or • Contact • Rob McDonald, Confederated Salish and Kootenai Tribes (406) 675-2700 ext. 1222, or • Bill Schultz, Montana Reserved Water Rights Compact Commission (406) 542-5880.

25. Questions?