State, tribes in well accord
A draft agreement between the state and the Confederated Salish-Kootenai Tribes would establish joint jurisdiction over water uses on the Flathead Reservation, including regulation of domestic wells.
The "preliminary draft" agreement, developed over the last year, will be the focus of a series of public meetings and open houses to be held over the next two months. Once approved, it would establish an interim arrangement for managing water use on the reservation, until larger questions on water rights are settled through a formal compact agreement between the state and the tribes, and through litigation that is pending before the state Supreme Court.
The interim agreement establishes for the first time regulatory authority over domestic groundwater use of less than 35 gallons per minute. All new domestic wells would have to be approved by a Flathead Indian Reservation Interim Water Use Board made up of two state representatives and two tribal representatives.
Those provisions are worrisome to some observers.
"The creation of a water board is going to create a very powerful entity that has the ability to stop water production if it so chooses," said Rory Horning, chairman of the Northwest Montana Association of Realtors Water Compact Committee.
Any new domestic, community or municipal wells within the reservation boundaries would have to be approved by three of the four board members, according to terms of the draft agreement.
"If you don't get three people, then you are out in the cold," Horning said.
Currently, a property owner can drill a well and file a letter of completion with the Department of Natural Resources and Conservation.
Under the proposed system, a property owner would have to complete an application, submit it for a technical review, pay a $100 fee for a domestic well, and wait for board approval.
The board will be composed of people who "possess knowledge and experience in the fields of hydrology and water management" and the board must provide written justifications for its decisions.
The tribes are proposing that all board members be reservation residents in the final interim agreement, but state officials oppose that requirement.
Domestic wells do not have to meet a series of conditions required of municipal wells, but domestic applicants must demonstrate a "likelihood that there is water physically available" at the well site, and that there will be no adverse effects on tribal archaeological or cultural resources.
Horning predicts the entire process will be cumbersome for real estate transactions.
"There is uncertainty into how the process will work if you purchase property or build a house," he said.
The draft agreement provides a process in which board rulings can be appealed to an arbitrator.
The state and tribes plan to hold a public meeting and a series of open houses in January to hear public comment. A schedule for those meetings has not been set.
Written comments regarding the draft agreement will be accepted until Jan. 31. Comments should be mailed to the Reserve Water Rights Compact Commission at RWRCC, P.O. Box 201601, Helena, MT 59620.
The draft agreement is available on the Internet at: