I am seeing letters, opinions and discussions going back and forth on the potential impacts of the Confederated Salish and Kootenai Tribes (CSKT) Water Compact. One of the latest letters implied that although the current agreement may not be acceptable to all and some may be unhappy, but the compact may be acceptable enough. This might sound reasonable if we were dealing with emotional issues, but this is not about someone being “unhappy.” This compact raises serious constitutional issues that will have far-reaching, long-term impacts, setting precedents that will threaten Montana’s sovereign jurisdiction over its people. This is about people potentially having their private property taken without just compensation, or losing the protection of the Montana Constitution to a water board that is not obligated to follow the state constitution.
Legislators with legal background in water law and tribal relations are still unsure of the case law involved and have not been able to decide whether the interests of Montana citizens have been fairly represented in the compact. Now, imagine the average legislator who has no background in water law attempting to understand the impacts of the more than 1,300 pages of the compact bill, the compact itself, water abstracts and the Unitary Management Ordinance without the benefit of any legal, environmental or economic assessments.
The Montana Reserved Water Rights Compact Commission’s report to the governor, produced in December 2013, was supposed to have answered all open questions regarding the compact. However, for those of us who have read the compact documents and the hundreds of pages of additional background information, there are holes in the environmental, economic and legal arguments big enough to drive an 18-wheeler through.
This is why I and 30 other legislators have asked the Montana Environmental Quality Council to conduct an analysis of the proposed CSKT Water Compact prior to further consideration of its ratification by the legislature. This is also why the Ravalli County Board of County Commissioners unanimously passed a resolution to request an environmental, economic and legal analysis of the compact.
It is time for the rhetoric and the opinions and the supposition to stop. We need facts and answers to the questions of constitutionality and the legality of off-reservation water rights, economic liability to the state, and economic impacts to our communities. We need to understand the precedent setting impact of a tribally controlled water administration plan that removes Montana citizens from the protection of the constitution and laws of the state. We need an assessment of the impact of increased in-stream flows on shallow ground water levels and wells and the impact of a “robust river” standard for in-stream flows on fish survival, stream bank stability, erosion and irrigation structures.
This is a compact between the state of Montana, the CSKT and the U.S. government. It cannot be changed or amended by the legislature after it has been ratified without the approval of the state of Montana and the CSKT and the U.S. government. We must get this right the first time.
Nancy Ballance is a state representative from Hamilton.