Note: Our thanks to Jon Metropoulos for his assessment on one aspect of the Vincent Compact Informational Session held this morning. There were many issues with the information conveyed in this meeting, and the informational packet provided to legislators by Senator Vincent. More commentaries to follow, including our own analysis and video excerpts from the meeting.
At the Saturday informational session regarding the Compact, hosted by Sen. Vincent, sponsor of the bill, SB 262, a great deal of information was provided from the proponents’ perspective. Many questions were responded to, from their perspective. It confirmed two things: first, its a take it or leave it proposition, amendments not welcome. Second, the session, unfortunately, confirmed the truth of the admonition that you must read the words on the page and understand them for yourself, because you cannot rely on the confident assurances of the proponents on every issue, even those by the Compact Commission, which has been there from the beginning and surely knows what the provisions are on the page.
What am I referring to? This: Sen. Keenan, after two hours of explanation by Melissa Hornbein, attorney for the Compact Commission, which works for the Governor, and Cory Swanson, special attorney general representing the AG’s office, asked about the applicability of 85-2-402, Montana Code Annotated, which deals with changes of use, including changes to large quantities of water and transporting water out-of-state. Sen. Keenan, and the audience, were told that the Compact was not really about changes. And they moved on. That is blatantly incorrect and the response sinned, gravely, by omission.
At Article IV of the Compact, pages 26 to 47, you will find, in the words on the page, that the CSKT by statute will be allowed to ignore key provisions of Montana law contained in 85-2-402, including the Montana Environmental Policy Act (MEPA) and the Montana Facility Sighting Act (MFSA). Specifically, see the provisions regarding “New Development of the Tribal Water Right,” beginning at Art. IV, B, 5, on page 27, line 23, and “Lease of the Tribal Water Right,” same citation, number 6, on page 28, line 21. These concern off reservation uses of the tribal water right. For both the New Development and Lease, off reservation, of the Tribal Water Right, they are specifically excused from complying with 85-2-402, MCA, subsections 4 through 7 and subsection 18. What do these subsections, which the Tribes may ignore, pertain to?
They deal with three types of changes in purpose or places of use of large quantities of water, more than 4,000 acre feet and 5.5 cubic feet per year. The first, subsection (4) is a straight change. For that, the applicant has to show the usual criteria for smaller amounts of water as set out in subsection 2. But because of the greater impacts that occur with larger changes, they also have to show by a preponderance of evidence that the change is reasonable, based on a consideration of the existing demands on the state water supply as well as projected demands for municipal, irrigation, and minimum stream flows to protect existing uses and aquatic life; that there are benefits to the applicant and the state; the effects on quantity and quality of water for existing uses in the source of supply; the feasibility of using low-quality water for the desired purpose; the effects on private property rights by the creation of or contribution to saline seep; AND (here’s the fun part!): the “probable significant adverse environmental impacts” as determined pursuant to MEPA and MFSA. And that’s only subsection 4. MEPA protects our unique, fundamental constitutional right to a clean and healthful environment. But the CSKT need not comply.
Subsection 5 deals with large changes (more than 4,000 af and 5.5 cubic feet) that result in “water being consumed.” These require the applicant to meet the usual criteria, subsection 2, and those in subsection 4, and it increases the standard of proof from preponderance of the evidence to “clear and convincing.” Ask your lawyer. This is not an easy standard and its there for a reason. But the CSKT need not comply.
But wait! There’s more! For out-of-state uses of these large amounts of water you, Legislators, are by statute given the power, only AFTER the department finds the applicant has jumped all these hurdles, to refuse to allow it. See 85-2-402(5)(b). Here’s the quote: “(b) for the withdrawal and transportation of appropriated water for out-of-state use, the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.” But CSKT need not comply. And you, Legislators, do not get to do your duty.
And we haven’t even talked about the subsections 6 & 7, which provide important protection and, in fact, specifically apply to “Indian reserved rights” (6). But the CSKT need not comply.
Why are these provisions in the Compact? Why would the Legislature exempt the CSKT from following MEPA and MFSA when it comes to changes of use of large amounts of water, including out of state? Sen. Keenan gave the proponents the opportunity to acknowledge these provisions buried in the Compact and explain them. They did not take it. You’ll have to read it for your self. Every word. But don’t amend it. It’s a take it or leave it proposition.
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