Water rights questioned

The state of Montana proposed a resolution for off-reservation water rights claims for the Confederated Salish and Kootenai Tribes in Polson on Wednesday, Feb. 29 and Commissioner Tony Berget was there.

The original resolution was proposed July 20, 2011, yet was revised for the presentation to the tribal council by the state before the meeting.

The proposal establishes the rights of level and goals that would provide:

• Fishery resources in the drainages — providing them with tangible biological benefits;

• Flow-ramping rates and seasonal minimum discharges from Libby Dam designed to protect the bull trout;

• Protection to the existing water-rights holders,

• Remaining water from the drainages to be used for future development of new consumptive uses.

The resolution would recognize the instream flow rights in the Kootenai and Swan rivers drainages.

Currently, the Kootenai River has an instream water flow right determined by a measurement termed Enforceable Hydro-graphs (EH).

EH is defined as a static distribution of unique daily flow values.

However, the current EH is based on data that was gathered from 1929 to 1971 by natural flow conditions, and prior to the installment of the Libby Dam, which was built in 1972.

The effects from the operations of the Libby Dam have caused altered natural flow conditions to the Kootenai River.

The flow from the dam changes the levels of the junior surface and ground irrigators.

Depending how many gallons-per-minute (GPM), junior water rights holders could bring action predicated on an assertion of water waste — to “call” a claim.

The state believes it is reasonable to suspend the ability to call on junior users so long as the Libby Dam remains in place and the Army Corps of Engineers adheres to the requirements of the Federal Columbia River Power System Biological Opinion and the Montana Operations.

The instream flow from the Kootenai River also includes basin and sub-basin restrictions on new uses of water until a comprehensive water rights settlement among the tribes, state and the U.S. is ratified by the Montana legislature.

These restrictions are determined by monthly volume maximums for the post-Compact water permits issued by the Montana Department of Natural Resources and Conservation (DNRC).

The permits provide protection covers for the sub-basin for the core bull trout streams.

The volumes of the Kootenai Basin sub-basins, Grave Creek and O’Brien Creek, existing rights are fully exhausted. Subsequently, the DNRC will not issue permits for the two sub-basins and proposes the closure of future permits as part of the Compact.

Because the EH determines the drainages for the Kootenai to quantify a protectable daily flow, the resolution proposes a single hydrograph shape termed Representative Hydro-graph (RH).

RH is an artificial hydro-graph that depicts typical flow distribution for one specific location.

The RH formula encompasses RH daily flows recorded during certain times in the year, taking irrigation seasons and peak spring flows into consideration; an average of peak flow days, and seven-day moving averages.

An EH is based on the shape of an RH — a series of adjustments must be made to convert one to the other.

The DNRC will limit new post-Compact water use permits for the Kootenai and Swan River drainages. The proposal stresses the restrictions will not limit the exercise of existing water rights. However, the DNRC will provide a cap on the volume of post-Compact new water use permits, which may also be issued by the DNRC.

Libby Commissioner Tony Berget was present for the tribe’s meeting Wednesday. During the questions and comments period Berget addressed the council:

“Did the state contact the cities and counties affected by this proposal?” Berget asked.

“We will solicit and listen to public comment,” Jay Weiner, Attorney for the State of Montana Department of Natural Resources, said. “First it needs to be ratified, and for the treaty with the tribe we need a reasonable proposal.”

“We were not aware of this proposal — concerning the creeks, streams and rivers in our area,” Berget said. “I’m concerned the state is putting a negotiation together before discussing it with us first.”

Weiner agreed to make arrangement to meet with the representatives of Lincoln County and/or Libby to discuss the resolution.

He encouraged persons seeking more information on the proposal to visit the Mt.gov Website and review the proposed resolution.

Individuals are also encouraged to submit their questions to the state, regarding the water rights, to give the Compact commission the opportunity to prepare answers for the meeting.

The state has also proposed to recognize the instream flow water rights for the Swan and Clark Fork Rivers.

The Swan River EH is based on data gathered from 1923 to 2010.

However, unlike the Kootenai River, the Swan drainage sub-basin will not be closed for the new permitting.

Clark Fork River instream is based on the former Milltown Dam power generation water right.

The water right compacting process will change the Clark Fork River legislatively to increase the instream flow to benefit the fisheries resources.

The state believes the change right should be co-owned by the tribes and the Montana Fish, Wildlife and Parks.

The state intends to outline its vision for co-ownership terms soon.

Before the meeting was adjourned, Seth Makepeace, a hydrologist for the tribes, addressed the concerns expressed by some of the individuals in attendance.

“There will change in this settlement,” Makepeace said. “There will be pros and cons — change is difficult, but it could be for the positive.

The tribe will meet again April 4.