©2013 Concerned Citizens of Western Montana
One of the basic premises of the proposed irrigation water use agreement (WUA) is that the irrigators relinquish or give up their water rights to the CSKT. From Article III, paragraph 3 of the WUA:
This Agreement and the Compact specify the terms under which the United States and the FJBC agree to withdraw and cease prosecution or defense of all claims to water, whether arising under Federal or State law, held in their names and filed in the Montana General Stream Adjudication, and whatever permits and other rights to the use of water recognized under State law that are held in their names for use on lands served by the FIIP.
What is not often discussed is that basic premise for this need to ‘relinquish water rights to the CSKT’ is based upon a seriously flawed assumption: that after the quantification of the Tribes federal reserved water rights, the Flathead Irrigation Project would have to be administered according to the priority date of the water right. However, even though the Flathead Project has multiple priority dates ranging from 1855-1973, it has never been managed according to priority date. Furthermore, according to federal rules and regulations governing irrigation projects, the Flathead Project does not have to be administered in priority.
Why is that?
A careful examination of federal irrigation projects across the west, and the Flathead project here, show the ingenuousness of Bureau of Reclamation engineers in designing an irrigation project that would serve all lands irrespective of priority date and more aligned with the physical needs of lands served. The Flathead Project was completed in 1961 and since that time has continued to serve lands that contributed to the payment of the construction of the project. This is simply a matter of federal contract law, and new ‘laws’ that contradict the initial design of the project are simply not applicable.
The Walker Report describing the construction of the Flathead irrigation project confirms that the variability of soils, topography, and water supply would make it difficult to fully irrigate lands served by the project. Thus storage facilities were constructed to supplement natural streamflow which characteristically waned in the late summer and fall. Even with the ingenious design of the Flathead Project, the lands so irrigated still are deficit irrigating—meaning that they irrigate with less water than is actually needed. Project irrigators have to use available flood flow (‘non-quota water’) as well as their water allocation to effectively irrigate, and this is why project management is so important. Arbitrary limits on quotas for water each year that are not based on a sound analysis of water supply availability wreak havoc on irrigators and essentially contradict the historic design and operation of the project.
“A Group of About 30 Irrigators”
At a Compact Commission meeting held in December 2012, Attorney Jay Weiner reported that it was the Flathead Joint Board of Control (FJBC) that approached the State to be included in the Compact discussions sometime in 2008 or 2009. A Tribal attorney also confirmed this when stating that “approximately 30 irrigators approached the Tribe with the concern that their water rights in the irrigation project would be junior to the Tribes and subject to priority administration”.
But this was and still is a false premise. So what did this small group of thirty irrigators suggest? They suggested and proposed that all irrigators relinquish their water rights to the CSKT in exchange for a common priority date of 1855. According to history and practice, this “offer” was not necessary. But as recently as September 30, 2013, Compact proponents insist that the common priority date offered to irrigators was a “concession” by the Tribes.
Well what kind of concession is it when 80% of project irrigators already have an 1855 priority date by virtue of their purchase of lands from Indian allottees? What major concession is it when priority administration is not required in the Flathead Irrigaton Project?
Who had the bright idea to create a problem where none existed?
And who had the bright idea that it was ok to give away their neighbor’s water rights?
Compact proponents must be asked to account for their ‘bright ideas’!