When the United States set aside land for Indian reservations, sufficient water was reserved to fulfill the purposes of the reservations. The Montana Legislature formed the Reserved Water Rights Compact Commission to negotiate the quantity of water for the reservations.
The Confederated Salish and Kootenai Tribes (CSKT) Reserved Water Rights Compact was just completed and submitted to the Legislature. Unfortunately, the compact contains off-reservation senior water rights on 11 counties to set minimum flows on rivers and streams which will negatively impact water rights and affect more than 350,000 people in western Montana. Also, this precedence could have far reaching consequences because none of the other reservation compacts in Montana contain off-reservation water rights so they may seek equal treatment.
These minimum flow hydrographs need to be examined by an impartial hydrologist to determine the impact of water availability from these rivers, streams, and wells close to surface water used for irrigation. Based on historical flows, farmers need to know how frequently and in what months their irrigation water will not be available. Water flow rights at Kerr Dam and Milltown also need to be addressed in the compact.
The major purpose of the compact commission is to quantify the amount of water needed for the purposes of the CSKT Reservation. The compact provides for the diversion of 229,383 acre feet of water per year from the Flathead River and Flathead Lake, but the water is not tied to the purposes of the reservation. It is available for lease to others. An analysis of water needed on the reservation has not been done. It would require scientific data on the amount of water already available on the reservation (surface and ground water), the amount being used, and the acres that could be irrigated in the future.
A major part of the compact related to the irrigators of 130,000 acres on the reservation was ruled unconstitutional by a District Court judge on Feb. 15. The primary constitution issue is the assignment of water rights privately owned by the irrigators to the tribes by the Flathead Joint Board of Control violates the Montana Constitution.
Included in the compact is $55 million from the state of Montana to help pay for the deferred maintenance on the Flathead Indian Irrigation Project on the reservation which should be the responsibility of the federal government.
How can legislators, in good conscious, cast a positive vote for the compact when there are many constitutional and fairness issues in the document? I have introduced Senate Bill 265 to extend the compact for two more years to continue negotiation and public involvement to have a fair and equitable settlement as required by law.
Sen. Verdell Jackson represents Senate District 5 and lives in Kalispell.