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.

4. 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. Settlement Components • Compact • Unitary Administration Ordinance • FIIP Water Use Agreement • State, Tribal, and Federal legislation • Montana Water Court decree

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. Administration of Water Rights • Proposed Settlement provides the framework for the administration of water rights on the Reservation. • Describes the process to • Register existing uses of water; • Change water rights; and • Provide for new water development • Establishes Water Management Board • To administer Compact and Ordinance on the Reservation • Board’s jurisdiction does not extend off the Reservation

12. Water Management Board • Compact and Ordinance describe powers and duties. • Five voting members: • Two selected by governor after consultation with water users on the Reservation; • Two selected by CSKT; • One selected by other four members. • Sixth non-voting member appointed by Department of the Interior.

13. Unitary Management Ordinance • Unitary administration of water • Tribal and non-tribal water uses are intermingled • Separate administration would have required expensive, duplicative infrastructure • Describes in detail • how water would be administered • Process for permitting new uses of water • Would be adopted into Montana and CSKT Law • Cannot be changed by one party without agreement of the other

14. Registration • Water users do not need to register if they: • have already filed a claim in the adjudication, or • have received a permit or certificate of water right from the DNRC, or • are served by the FIIP. • The following water users would need to register their water uses with the Board: • People with pre-1973 domestic or stock uses who did not have to and did not file a claim for those uses in the adjudication. • People with post-1973 domestic or stock uses who did not file completion forms with the DNRC or did not receive a certificate of water right from DNRC. • Tribal members and allottees using a portion of the Tribal water right.

15. Wells • Existing Domestic Wells • Domestic wells that have received a permit or certificate from the DNRC or register under the provisions of the Ordinance would be fully protected. • New and Replacement Domestic Wells • The proposed Ordinance provides an expedited process for domestic allowances for new and replacement wells. • basic application form • strict time frames for approval • No mitigation requirements for domestic allowances.

16. Individual Domestic Allowances • Up to a maximum of 35 gallons per minute and 2.4 acre-feet per year, and • Irrigation of no more than 0.7 acres (irrigation limit identified by reference to fire safety standards) • NO metering requirement

17. Shared Domestic Allowances • Shared well agreement serving 2 or 3 users • Up to a maximum of 35 gallons per minute and 2.4 acre-feet per year, and • Irrigation of no more than 0.5 acres total for 2 users and 0.75 acres total for 3 users • NO metering requirement

18. Development Domestic Allowances • Up to a maximum of 35 gallons per minute and 10 acre-feet per year, and • Individual irrigation of no more than 0.25 acres per plot • YES metering requirement “ Development” means contiguous or closely grouped parcels of land under the same or affiliated ownership, including, but not limited to, housing subdivisions and/or any combination of business and residential units.

19. Stock Water Allowances • Generally similar process as for obtaining Domestic Allowances: • Flow Rate/Volume/Acreage caps (as applicable) for eligibility • Basic application form with strict time frames for action by Engineer NO mitigation requirement for Stock Water Allowances

20. The CSKT’s Water Rights • Reserved and aboriginal water rights are created and governed by federal law, not state law. • Aboriginal water rights have a "time immemorial" priority date. • Reserved water rights have a July 16, 1855 priority date, the date of the Hellgate Treaty creating the Flathead Indian Reservation.

21. The CSKT’s Water Rights • Article III of the Hellgate Treaty guarantees the Tribes the right to hunt, fish and gather both on and off of the Reservation. • Courts have upheld, and the Compact recognizes, instream flows to satisfy such treaty guarantees. • Courts have upheld, and the Compact recognizes, that the Treaty also guarantees the Tribes sufficient water to satisfy all the purposes for which the Reservation was created.

22. CSKT On-Reservation Water Right • The Compact would quantify the Tribes’ aboriginal and reserved water rights, including: • Flathead Indian Irrigation Project • FIIP Water Use agreement addresses the CSKT instream flow water rights and the water rights for the FIIP • Minimum pool elevations for FIIP reservoirs • Instream flow and existing uses by the Tribes, tribal members, and allottees, including religious and cultural uses • Wetlands

23. CSKT Water Rights • Also quantifies CSKT Water Rights for • High mountain lakes, • Flathead Lake, • Boulder and Hellroaring hydroelectric projects •  The Compact and Ordinance also address the Tribes’ instream flow water rights for streams outside the FIIP. • The Tribes would defer the enforcement of these rights until enforceable flow schedules have been established. • Flow schedules would protect existing users on those streams. • Process for developing flow schedules is set forth in the Ordinance.

24. Flathead System Compact Water • Water from Flathead River and water stored in Hungry Horse Reservoir: • Total of 229,383 acre-feet of water • 90,000 acre-feet is from storage in Hungry Horse Reservoir • Total consumptive use would be 128,158 acre-feet • This water to meet CSKT instream flow and consumptive use needs on the Reservation. • CSKT can lease water for use on or off the Reservation. • Provides 11,000 acre-feet for leases to mitigate for certain water development off the Reservation.

25. 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 • The proposed Compact includes instream water rights in: • Kootenai River, • Consistent with fish operations at Libby Dam • Swan River, and • Lower Clark Fork River.

26. CSKT Off-Reservation Water Rights • Provides CSKT co-ownership with Montana Fish, Wildlife, and Parks of water rights in: • Clark Fork Basin, • Bitterroot Basin, • Kootenai Basin, and • upper Flathead Basin • Proposed Compact would make CSKT co-owner of a water right formerly associated with the Milltown Dam. • The Compact would provide the Tribes with a beneficial interest in three contracts in the Bitterroot Basin for the delivery of water from: • Painted Rocks Reservoir • Lake Como

27. 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.

28. 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.

29. 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.

30. 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.

31. Questions?