Ridenbaugh Press/Water Rights

A water rights case decided in late February 2013 in the Montana Supreme Court is drawing heavy attention from a range of resource interests.

The court decided against Bostwick Properties, Inc., which in December 2006 filed for a use permit for a subdivision called Lazy J South along Highway 191, not far from Belgrade.

The water would come from the Gallatin River, which under Montana law is a “closed water basin,” so that no new surface rights can be granted and groundwater rights are strictly limited.

In his opinion, Justice Brian Morris summarized: “Bostwick Properties, Inc. sought a water use permit from the Montana Department of Natural Resources and Conservation (DNRC). DNRC denied the water use permit. Bostwick petitioned for review by the District Court. The District Court agreed with DNRC that Bostwick had failed to prove no net depletion of surface water and lack of adverse effect, as required by § 85-2-360, MCA, and therefore Bostwick was required to mitigate its water usage in order to receive a water use permit. The District Court further determined, however, that Bostwick had submitted an adequate mitigation proposal, and, therefore, DNRC improperly had denied Bostwick’s permit application. The District Court further noted that DNRC had exhibited bias against Bostwick. The District Court separately affirmed each of DNRC’s findings, and so determined that any bias on the part of DNRC caused no prejudice to Bostwick. Bostwick appeals, DNRC cross-appeals, and we affirm.”

The closed basin aspect was significant in the decision:

“In order to receive a groundwater permit, Bostwick first had to provide a hydrogeologic assessment to determine whether its proposed groundwater usage would result in a net depletion of surface water. Section 85-2-360, MCA. Bostwick would have to mitigate its water usage if Bostwick’s proposed pumping of groundwater would result in a net depletion of surface water and adversely affect senior appropriators. Section 85-2-362, Bostwick offered alternatives to demonstrate that its groundwater use would not result in a net depletion of the Gallatin River surface water, or would not cause an adverse effect.

“Bostwick first proposed that its Pave and Infiltrate Plan would offset all proposed consumption and would result in no net depletion of surface water. Bostwick next proposed that no net depletion would occur because the hydrological connection between the aquifer and the surface water was too attenuated and any potential adverse effect was unknown. Bostwick argued that the amount of water that it sought was too small to result in an adverse effect. Bostwick also suggested that DNRC could terminate Bostwick’s water rights if Bostwick’s de minimus water usage actually harmed senior rights holders. Bostwick finally proposed mitigation in the form of purchasing Water Right No. 41H 226700, in the event that Bostwick failed to demonstrate no net depletion or lack of adverse effect.

“DNRC determined that Bostwick’s water use would result in a net depletion of surface water, and that Bostwick had failed to demonstrate lack of adverse effect. This determination required Bostwick to mitigate its proposed water use. DNRC further determined that Bostwick’s proposed mitigation, purchasing Water Right No. 41H 226700, was inadequate because the mitigation would provide only irrigation season water and would provide no non-irrigation season water. DNRC’s determinations that Bostwick had failed to demonstrate no net decrease and had failed to demonstrate a lack of adverse effect for non-irrigation season water required Bostwick to mitigate non-irrigation season water loss as well.”

The Montana Reserved Water Rights Compact Commission on February 26 approved an agreement with the Confederated Salish and Kootenai Tribes covering water use by the Flathead Irrigation Project.

From a Compact Commission report on the agreement:

The Confederated Salish and Kootenai Tribes, the State of Montana and the United States have agreed to a series of revisions to the proposed water rights settlement released to the public in October and updated in November 2012. These revisions have been made in response to public comments that were made to the Parties in writing or during the roughly two dozen meetings across western Montana that the Parties have held over the past few months. The settlement is comprised of a proposed Water Rights Compact, which includes a series of appendices, and a proposed Unitary Administration and Management Ordinance. The documents below are the final set that the Parties expect to seek to have ratified by the 2013 Legislature.

Please note that the water rights abstracts that make up several of the Compact appendices continue to be marked as “draft.” This is because these abstracts will not become enforceable until after the Water Court approves the Compact and issues a decree including these rights. These draft abstracts are the set of abstracts that the Parties intend to have the Water Court approve at the appropriate time and they spell out the proposed quantification of the Tribes’ water rights in great detail.

After State ratification, both the US Congress and the Tribes would need to approve the settlement. After the three Parties act to ratify the settlement, it would be submitted to the Water Court for final approval.

The agreement notes, “The Tribes have the right to water that is supplied to the Flathead Indian Irrigation Project to be used for such purposes in such volumes and flow rates and from such sources of supply as identified in abstracts of water right attached hereto as Appendix 5 to this Compact. The exercise of this portion of the Tribal Water Right is subject to the FIIP Water Use Agreement entered into by the Tribes, the Flathead Joint Board of Control, and the United States. … The priority date for the portion of the Tribal Water Right used by the FIIP is July 16, 1855.”

The Bureau of Reclamation’s Great Plains Region has selected Brent Esplin as the Montana Area Manager in Billings, Mont. Esplin replaces Dan Jewell who is retiring after more than 36 years of federal service.

Bureau of Reclamation officials, including Great Plains Regional Director Michael J. Ryan, will join Crow Tribal Chairman Cedric Black Eagle and other tribal members in a signing ceremony initiating planning, design and construction of the municipal, industrial and rural water system for the tribe on August 30 in Billings, Montana.

“Reclamation has the important responsibility of developing infrastructure that is critical to the successful implementation of the Crow Indian Water Rights settlement,” Reclamation Commissioner Michael L. Connor said today. “We are focused on making rapid progress in Indian country, allowing tribes to realize the benefits of such settlements. This contract is a significant first step in bringing a vital water supply to the Crow people, promoting health and economic prosperity for generations.”

Reclamation and the tribe completed contract negotiations for the planning, design and construction of the MR&I system this month.

It is the latest step in implementation of the Claims Resolution Act of 2010 signed by President Obama which included four major water rights settlements – totaling more than $1 billion – for American Indian tribes including the Crow Nation. It authorizes the Secretary of the Interior, through Reclamation, to rehabilitate the CIP and to design and construct the MRI system.

On July 15, 2011, Secretary of the Interior Ken Salazar and Bureau of Reclamation Commissioner Mike Connor visited the Crow Indian Reservation to participate with a crowd of 200 celebrating the Crow Tribe Water Rights Settlement, which will bring a cumulative total of more than $460 million to the Crow Nation to ensure safe drinking water for the reservation and rehabilitate the irrigation project.

“Reclamation is proud to partner in this effort,” said Ryan. “It couldn’t have been accomplished without the cooperative efforts of the tribe, Bureau of Indian Affairs, the solicitor’s office, and the state of Montana. We look forward to working with these agencies in the future.”

The Crow Reservation encompasses more than two million acres, and is home to roughly two-thirds of the approximately 12,000 Crow tribal members. The drinking water system on the Reservation has significant deficiencies in capacity and water quality and many tribal members must at times haul water.

The tribe desires to complete all activities and put the mandatory funding, as well as appropriated discretionary funding, in interest bearing accounts as soon as possible. Upon execution of the contract, Reclamation will be able to transfer $146 million of mandatory funding to an interest-bearing tribal account where withdrawals will be based on negotiated Annual Funding Agreements. The Act authorizes more than $378 million for the CIP and MR&I system, with a mandatory component of more than $219 million and more than $158 million of discretionary funding.

The comment period for a new Flathead Indian Irrigation Project deal between local tribes and other water users will be extended to July 16 after an initial hearing generated both disagreements and the need for additional education about the terms of the agreement.

The basic draft involved an irrigation project set of terms involving the Confederated Salish and Kootenai Tribes, and the Flathead Joint Board of Control. When the negotiation effort ended on May 31, one of the key elements was reported to be the amount of water available for non-tribal irrigators. That left to concern among irrigators about just how much money would be available.

One person at one of the public meeting said that “irrigators don’t want to be de-prioritized.”

The deal is available on line, but the terms may not be well understood.

Bureau of Reclamation Commissioner Michael L. Connor released the St. Mary River and Milk River Basins Study Summary Report outlining the findings of a two-year comprehensive study of the river basins. The report recommends using and enhancing the new river system model developed through this study to further analyze alternatives to address supply and demand issues in the basins, including Tribal and international issues.

The study, completed in partnership with Montana Department of Natural Resources, developed and tested a river systems model to serve as a planning tool, looked at historic and future water supplies and demands, and evaluated alternatives of how the St. Mary River and Milk River system might meet projected demands in the basin.

“Basin Studies bring water managers together to look at future supply needs and to create solutions to meet those needs,” said Commissioner Connor. “Even in good water years we have experienced water shortages in the Milk River Basin, so it is clear that our collaboration with the State of Montana on this study will provide new information and create a set of tools and alternatives that will be used to help meet the basin’s future water demands.”

Reclamation and DNRC developed and tested a “daily time step” river system model for stakeholders in the basins to use as a planning tool. The model was calibrated for historic water supply and demand conditions and then was run for five future climate scenarios to assess how the existing infrastructure would respond. The model provides decision-makers and stakeholders a tool to evaluate issues and potential solutions within the basin.

Mary Sexton, Montana DNRC Director, said, “Improved modeling will allow us to assess future water availability and demand in these basins, where water shortages are expected to increase.

“Our challenge going forward will be to improve our infrastructure and to manage water as efficiently as possible,” Sexton said. “The new river system model gives DNRC, the Bureau of Reclamation and water users a valuable tool for meeting that challenge.”

The St. Mary River and Milk River basins were selected as part of the WaterSMART Basin Study Program in 2009. Basin studies are comprehensive water studies that define options for meeting future water demands in river basins in the western United States where imbalances in water supply and demand exist or are projected to exist. Since its establishment, 17 basins have been selected to be evaluated. The Yakima River Basin in Washington, also selected in 2009, was completed earlier this year.

The Bureau of Reclamation will increase releases from Clark Canyon Dam to begin evacuating water that has been stored in the flood pool during this year’s spring runoff season, in coordination with the U.S. Army Corps of Engineers.

Beginning on July 15 releases from Clark Canyon Dam to the Beaverhead River increased incrementally to achieve a flow of approximately 600 cubic feet per second (cfs) at the Dillon gauge by the end of the month. Releases will be increased more slowly as flows at Dillon reach 500 cfs to ensure impacts of the higher releases are minimized. Flows at or above 500 cfs are anticipated for the next several weeks.

River recreationists are cautioned to be aware of changing flow conditions.

Overruling a water court decision, the Montana Supreme Court on June said that the organization Trout Unlimited could join an formally objecting to water rights without making any claim to the water itself.

In Montana Trout Unlimited v. Beaverhead Water Company et al, the court said that issues should be fully aired in the adjudication process, suggesting lower courts should err on the side of inclusion.

The case grew out of a water court Temporary Preliminary Decree for the Big Hole River Basin issued on April 6, 2007. “Pursuant to notice of the decree, MTU filed timely objections to several of the claims of each of the Claimants and requested a hearing. The Claimants moved to dismiss the MTU objections, arguing that MTU lacked standing to object. The Water Court converted the motions to dismiss to motions for summary judgment. MTU and Claimants waived their right to a hearing on summary judgment and stipulated that the Water Court could accept as true the assertions of fact made in their briefs and in the attachments to MTU’s brief. The Water Court determined that the motions involved only issues of law and ultimately granted summary judgment to the Claimants, holding that MTU lacked standing to file objections to the water right claims,” the court recounted.

It continued: “The Water Court held that while MTU was a person entitled to receive notice of the decree, it must also demonstrate “good cause” by showing “an ownership interest in water or its use that has been affected by the decree” when filing objections. MTU filed a “statement of interest” to meet the “good cause” requirement. It recited MTU’s participation in the Big Hole River fish and water flow protection and restoration efforts, its interest in promoting and protecting those efforts by insuring that water right claims are thoroughly examined and well supported, its interest in fulfilling the instream water reservations of the Department of Fish, Wildlife and Parks, and its goal of insuring that its members could continue to fish the river. The Water Court acknowledged that it is “beyond dispute that all citizens of Montana have public environmental and recreational interests in the natural waters of Montana.”

In its conclusion, the court said: Continue Reading »

Officials of Crow Tribe in Montana have set for March 19 a significant vote on whether to accept and ratify the Crow Tribe Water Rights Settlement Act of 2010 and the Crow Tribe-Montana Water Rights Compact.

Enrolled members of the tribe are eligible to vote.

The compact won agreement from President Barack Obama in December, and includes $460 million for water projects, as well as confirmation of a number of water rights.

Montana’s senior U.S. Senator Max Baucus introduced legislation on February 23 to ratify the Blackfeet water rights compact and settle more than a century of conflict over waters in Montana. Ratifying the compact will bring clean water to reservation families, support tribal agriculture and support jobs through long-term economic development.

“Water is critical to the cultural, spiritual and economic well-being of all of us, and this bill finally establishes the Blackfeet Nation’s rights to the water that is critical the tribe’s way of life. This settlement will also support jobs and boost economic growth through water projects like irrigation and water storage that support tribal agriculture and businesses,” Baucus said. “This bill makes good on our century-old commitment to the Blackfeet people, and it’s time we get it done and continue fighting for good paying-jobs in Indian Country.”

The compact ratified by Baucus’ bill outlines the Blackfeet Nation’s authority over distributing, allocation and leasing water rights established more than 100 years ago. It also authorizes funding for the development of vital reservation water projects that create jobs, including drinking water projects, water storage projects, irrigation and stock development.

The compact is the product of more than 10 years of negotiations between diverse groups of water users in the area, which ended in 2007. It has already been approved by the Montana Legislature, which has also made a significant funding commitment to the settlement. Approval by the U.S. Senate will move the water settlement forward to the last and most significant step toward a finalizing the compact – a vote on the comprehensive settlement by the Blackfeet membership, required by the bill.

Senator Jon Tester is co-sponsoring the bill. Baucus and Tester originally introduced the Blackfeet settlement last year during the 111th Congress, and it was considered in a hearing by the Indian Affairs Committee but never approved by the full Senate. Baucus reintroduced the Blackfeet Water Rights Settlement Act last week in the 112th Congress and is working with his colleagues to move it through the Senate as quickly as possible.