©2015 Montana Land and Water Alliance

In our view, there is a reason why the state, the CSKT and the BIA are pushing for the formation of the Compact Implementation Technical Team (CITT) now instead of waiting for Congress: to begin the  destruction of the Flathead Irrigation Project. And that is why the state must have immunity from damages, costs, and attorneys fees.

Let us be very clear: the CITT is the Compact-created mechanism through which 80% of the FIP irrigation water is transferred to instream flow.  The FIP is turned into a “water farm”, where bank-full, rushing  in stream flows dominate the landscape. The CITT is the agent through which the FIP is transformed under the Compact.

As defined in the Compact:

  1. The Compact Implementation Technical Team (CITT) means the entity established by this Compact to plan and advise the Project Operator on the implementation of the FIIP Operational Improvements, Rehabilitation and Betterment, and Adaptive Management. The CITT duties and responsibilities are defined in more detail in Appendix 3.5.(Emphasis added)

It is our assertion that the CITT’s task to implement adaptive management  inherently will take the  property rights of irrigators without compensation or due process.

The FJBC’s case against the state addresses, albeit indirectly, this very issue of property takings  resulting from the compact.  Montana’s Constitution requires that if the state wants immunity from its actions that may cause property damage, costs or attorneys fees–like a taking of water rights–it must have the concurrence of 2/3 of each house of the legislature.  That did not occur in either the Senate or House of the 2015 legislative session and the FJBC is rightfully before Judge Manley regarding the constitutionality of the compact vote.

The state’s only authority for implementing the CITT now, as stated before the  June Water Policy Interim Committee meeting, is “the passage of the compact by the state legislature”.

Under no circumstances should anyone–the BIA, the State, the Tribes or the FJBC–be implementing any portion of the compact while its very validity is in court!

The pressure by the BIA and the state to get the CITT going, and to pressure the FJBC to join the CITT must be questioned in this context:  what’s the rush?   Examining the CITT may provide an answer.

The CSKT Compact, the CITT, and the FIP

The basic facts of the CSKT Compact with regard to the Flathead Irrigation Project (FIP) are as follows:

  1.  The bare legal title to all of the Flathead Irrigation Project water used by individuals on privately owned fee land is transferred to the CSKT.  Irrigators in the FIP instead  receive a “water delivery entitlement certificate”.
  2. The CSKT use this water for their own purposes, dedicating 80% to instream flow and the remainder to irrigation.
  3. The Compact creates an “adaptive management plan” which is a program that “balances” irrigation deliveries with the vastly increased instream flow.
  4. The Compact creates the CITT which is the”team” that implements the adaptive management plan inside the irrigation project.
  5. Measuring devices and irrigation “betterment” projects planned and implemented by the CITT are designed to facilitate the transfer of irrigation water to instream flow

In this plain view, the role of the CITT is to reallocate agricultural water to instream flow, which constitutes an illegal and unconstitutional taking.  Think about it…the actual historic use of agricultural water is reduced from 50-70% on the farm. What about the damages there?  The state wants to implement this compact and not be responsible for property takings!

A very detailed review of the Compact’s plan for the Flathead Irrigation Project was completed by Montana Land and Water Alliance attorneys, examining the extent to which agricultural water uses would be impacted by the compact.

Remember the old 2013 Compact’s “Irrigator Water Use Agreement”?  The  2015 adaptive management plan IS the 2013 water use agreement–forced upon the FIP by the CITT.  The irrigation water use agreement was ruled to be an unconstitutional taking by retired Judge C.B. McNeil.

The CITT, Adaptive Management, and the FIP

The CITT is responsible for planning and implementing the operational improvements in the Flathead Irrigation Project through a process known as “adaptive management”.   From the Compact:

  1. “Adaptive Management” means an ongoing process of decision-making, based on water measurement and accounting designed to continuously manage and improve the allocation of water between instream flows, minimum pool elevations, and FIIP water use rights pursuant to the Adaptive Management Appendix 3.5.

The Adaptive Management plan is designed to “continuously” make decisions that allocate water between irrigation—which includes reservoirs– and instream flow. The actual allocation of water between these uses is designed not to improve the irrigation project, but to facilitate and track the transfer the use of water in a federal irrigation project to instream flow.  The irrigation betterment projects are designed to produce more water.

The CITT is Not “Benign”– it is Illegal!”

Early on in this essay, I asked, “what’s the rush”?  Well now you know.

The CITT and Adaptive Management plan are intended to be implemented before Congress has approved the Compact.  By the time Congress does approve, and even if it doesn’t approve the Compact the devastating changes to the FIP will have been nearly completed.

It is not about benign planning or installation of measuring devices—its design is to transfer the use of water from agriculture to instream flow. Any funding directed toward the CITT effectively enables this transfer.

Neither the state nor the BIA have the authority to make such changes, or even plan them in a federal irrigation project without going through extensive public input, environmental and economic studies and other activities.