[Senate Hearing 111-741]
[From the U.S. Government Publishing Office]
S. Hrg. 111-741
S. 2956, THE PECHANGA BAND OF LUISENO MISSION INDIANS WATER RIGHTS
SETTLEMENT ACT, AND S. 3290, THE BLACKFEET WATER RIGHTS SETTLEMENT ACT
OF 2010
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JULY 22, 2010
__________
Printed for the use of the Committee on Indian Affairs
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62-623 WASHINGTON : 2011
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota MIKE CRAPO, Idaho
MARIA CANTWELL, Washington MIKE JOHANNS, Nebraska
JON TESTER, Montana
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Allison C. Binney, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on July 22, 2010.................................... 1
Statement of Senator Dorgan...................................... 1
Statement of Senator Tester...................................... 71
Witnesses
Augare, Hon. Shannon, Member, Blackfeet Tribal Business Council.. 74
Prepared statement........................................... 76
Baucus, Hon. Max, U.S. Senator from Montana...................... 114
Bloomquist, John E., Attorney, Pondera County Canal and Reservoir
Company........................................................ 103
Prepared statement........................................... 105
Macarro, Hon. Mark, Chairman, Pechanga Band of Luiseno Indians... 3
Prepared statement........................................... 6
Stone, Matthew G., General Manager, Rancho California Water
District....................................................... 64
Prepared statement........................................... 66
Weiner, Jay, Assistant Attorney General, State of Montana; Legal
Counsel, Montana Reserved Water Rights Compact Commission...... 83
Prepared statement........................................... 85
Appendix
Blackfeet Tribe, prepared statement.............................. 122
King, Tracy, President, Fort Belknap Community Council, prepared
statement...................................................... 117
Letters regarding:
S. 2956...................................................... 130
S. 3290...................................................... 135
Main, William ``Snuffy'', Chairman, Gros Ventre Treaty Committee,
prepared statement............................................. 128
S. 2956, THE PECHANGA BAND OF LUISENO MISSION INDIANS WATER RIGHTS
SETTLEMENT ACT, AND S. 3290, THE
BLACKFEET WATER RIGHTS SETTLEMENT ACT OF 2010
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THURSDAY, JULY 22, 2010
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:30 p.m. in
room 628, Dirksen Senate Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. We are going to call the hearing to order.
This is a hearing of the Senate Indian Affairs Committee. It is
a legislative hearing on S. 2956, the Pechanga Band of Luiseno
Mission Indians Water Rights Settlement Act. And S. 3290, the
Blackfeet Water Rights Settlement Act of 2010.
Before we begin the discussion of these two pieces of
legislation, let me just observe that yesterday was a very
important day as far as this Committee is concerned, and as far
as Indian Country is concerned. The House of Representatives
passed the Tribal Law and Order Act, which originated here in
this Committee. We spent a long, long time and a lot of effort
to put together the Tribal Law and Order Act, to pass it
through this Committee, and pass it through the Senate.
Yesterday, it passed the House of Representatives. I talked
to President Obama about it yesterday afternoon. He is excited
about it. He was also very helpful and pushed very hard to get
it passed.
So that is a significant victory and I just want at the
start of this hearing to say we have now in this same year
passed the Indian Health Care Improvement Act, which is an
issue that had not been dealt with for 17 years by the
Congress. We have also passed the Tribal Law and Order Act,
both of which are very significant achievements.
The staff of this Committee and the people who worked on it
with us here in the Senate should be very proud. I know that it
is going to make a difference and it is going to save lives and
it is going to have a significant impact on American Indians
all across this Country.
We are going to hold a hearing on bills that would approve
settlement of Indian water rights litigation. The bills are
important for securing water supplies for affected Indian
tribes, for States and also for non-Indian water users. They
settle longstanding claims against the United States for
failing to protect tribal water rights.
The bills provide legal certainty and needed infrastructure
to ensure that everyone can provide reliable water supplies for
their communities and can contribute to economic development.
The first bill, dealing with the Pechanga Band, is a bill
for which a hearing was requested by Senator Boxer of
California and Senator Feinstein. But Senator Boxer especially
has asked that I hold this hearing today. I am happy to do
that. She is, I believe, at a Foreign Relations Committee
hearing, but she will be submitting a statement for our
permanent record and is a very strong supporter of this bill.
This bill would settle the Pechanga Band's water rights in
the Santa Margarita River watershed northwest of San Diego,
California. Securing the Band's water rights is necessary to
meet their growing need to supply water for commercial,
agricultural, municipal and domestic uses.
The second panel will provide testimony on S. 3290, the
Blackfeet Water Rights Settlement Act of 2010. Let me just say
that Senator Tester has done a really extraordinary job and is
pushing very hard to resolve these issues. I know that he has
wanted this hearing for some time. I am pleased that we will be
able to do that today.
The settlement of the Blackfeet water rights will provide
water and infrastructure improvements for municipal and
domestic use for irrigation, for livestock and other economic
development on the Blackfeet Reservation in north central
Montana.
Although the Administration was not able to testify today,
we have spoken with them about these bills, and we will see
their formal views on both pieces of legislation as we prepare
for further consideration of the two bills.
With that, I welcome the witnesses who have traveled to be
here with us today. Many have traveled long distances and we
appreciate your willingness to do that.
I have to leave after the first panel today. Senator Tester
will Chair the Committee for the second panel. I appreciate his
courtesy as well.
We would ask the witnesses to limit their remarks to five
minutes. Their prepared statements, of course, will be part of
the permanent record of this Committee and will be submitted in
their entirety.
The hearing record will remain open for two full weeks
following today's hearing, in the event that others wish to
present formal testimony that would be included as a part of
the hearing record. We would invite people to do that as well.
With that, let me call on the witnesses today. The first
witness is the Honorable Mark Macarro, Chairman of the Pechanga
Band. Mr. Macarro, thank you very much for being with us. Mr.
Chairman, you and I have worked together on a number of things.
I appreciate the outstanding work you do for American Indians
all across this Country.
You may proceed, and you may summarize. Your entire
statement will be part of the permanent record of the
Committee.
STATEMENT OF HON. MARK MACARRO, CHAIRMAN, PECHANGA BAND OF
LUISENO INDIANS
Mr. Macarro. Thank you for that, Senator Dorgan.
Good morning. Good morning, Senator Tester.
My name is Mark Macarro. I am the Chairman of the Pechanga
Band of Luiseno Indians.
The Chairman. Mr. Chairman, let me just say, I am going to
ask Senator Tester to hold for a moment. Senator Reid is
returning a call that I have to take for a moment. So you
proceed, and I will be right back.
Mr. Macarro. Thank you.
My name is Mark Macarro. I am the Chairman of the Pechanga
Band of Luiseno Indians. We are in Temecula, 60 miles north of
San Diego.
I am honored to be here today to testify on S. 2956, the
Pechanga Water Settlement Bill. I have been involved with
Pechanga's struggles over our water rights over the past 20
years. I know first-hand what this settlement means to the
Pechanga people. It means wet water.
Before I discuss the details of the settlement, I would
like to first thank Senator Boxer and Senator Feinstein for
their strong support of the Band in our efforts to introduce
and move our water settlement bill. We would not be here today
without their staunch support and commitment to the Band's
efforts.
I would also like to thank this Committee for holding a
hearing on our bill before the August recess. Pechanga greatly
appreciates Chairman Dorgan's leadership and commitment to
Indian water settlements and Indian Country in general.
We understand how busy the legislative schedule is for the
rest of this year. But we hope there is still time for passage
of our water settlement this year.
Last but not least, I would like to thank the Federal
negotiation team for their active participation throughout the
settlement process. The Federal negotiation team has been an
ally and a strong advocate during the negotiation process.
Pechanga is dedicated to continuing to work with the Federal
negotiation team to resolve any potential remaining issues in
order to gain the Administration's support of our bill.
One member in particular of the Federal negotiation team is
Patrick Barry of the Indian Resources Section, Department of
Justice. I was a young man when I got to meet Patrick Barry,
and his involvement in the water case that this is all about.
And I think he is toward the senior end of his career now in
Justice. And I think I am in the middle of mine. So we will see
how that plays out.
[Laughter.]
Mr. Macarro. But it has been well over two decades that we
have both been working on this settlement. In fact, we met with
members of the team day before yesterday, on Tuesday, to
further discuss the Administration's concern. In my opinion, it
was a very productive meeting and I firmly believe that we will
be able to reach a deal with the Administration.
Water is central to who we are as a people. It is in our
name. Pechaa'anga or Pechaanga, means at Pechaa'a, and Pechaa'a
means at the place where water drips.
Today, our tribal government operations, such as our
environmental monitoring and natural resource management
programs, exist to fully honor and protect the land and our
culture upon it. In particular, we are concerned about
watershed and wellhead protection for our surface and
groundwater resources and the availability of water for our
community now and into the future. It is of upmost importance
to the Band that our water rights are federally recognized in
order to protect our water in the basin and ensure that the
basin will continue to provide for generations of Pechanga
people into the future.
This settlement has been decades in the making and stems
from a 1951 Federal District Court case known as United States
v. Fallbrook Public Utilities District. It also involves my
tribe, Pechanga, Ramona and Cahuilla, two other tribes in the
upper watershed, in which the court determined that each of the
tribes had a prima facie entitlement to water in the Santa
Margarita River watershed, without specifying the actual amount
of each tribe's water right.
Until recently, we had sought to avoid litigation and
instead worked with those entities around Pechanga to develop
mutual private agreements for sharing the limited water
resources in our basin. These efforts at negotiated management
of water resources were successful and they resulted in two
agreements: in 2006, the Groundwater Management Agreement with
Rancho California Water District, RCWD; and in 2007, the
Recycled Water Agreement with Eastern Municipal Water District.
Both of these agreements have been successfully implemented and
are in effect today.
Significantly, though successful, neither of these
agreements soght to address the scope or settlement of the
Band's overall water rights to the Santa Margarita River
watershed. However, when the other two tribes in our basin,
Ramona and Cahuilla, initiated litigation in the Fallbrook
case, we began serious negotiation efforts with RCWD, EMWD and
the United States to reach a settlement with these parties
rather than litigate our claims.
The bill before you today is a result of hard work and
compromise by all the parties involved. The Band's written
testimony provides an in-depth description of the Pechanga
Settlement Agreement. But today I would briefly like to outline
the provisions of the settlement that are particularly
important to the Band.
First, the Pechanga Settlement Agreement recognizes
Pechanga's Federal reserve right to water in the Santa
Margarita River watershed under the Fallbrook decree as 4,900
acre feet per year.
Second, the settlement agreement allocates 75 percent of
the groundwater in the Wolf Valley Basin to Pechanga and 25
percent to Rancho California Water District. This equates to
1,575 acre feet per year to Pechanga, and 525 acre feet per
year to Ranch California Water District.
Third, the settlement agreement extends our existing
recycled water agreement with Eastern Municipal Water District
up to 90 years. It allows Rancho California Water District to
use a portion of that water which was a key provision for the
settlement to work.
Fourth, the settlement agreement extends Metropolitan Water
District's existing service area onto the Pechanga Reservation
to a greater portion of the reservation, so that Pechanga
becomes a Metropolitan Water District customer with the ability
to receive imported water to fulfill our tribal water rights.
Finally, the settlement provides funding for necessary
infrastructure for Pechanga to receive that Metropolitan Water
District Water to pay the connection fees to Metropolitan and
Eastern Municipal Water Districts and provide a subsidy to
bring down the cost of the extremely expensive Met Water.
All the elements of the settlement were carefully
constructed to create a settlement that is beneficial to all
parties involved. During our negotiations Pechanga was very
aware of the fact that there are limited water resources in the
state of California, and on top of that, we are in difficult
economic times. That being said, the United States must fulfill
its trust responsibilities and programmatic responsibilities to
Pechanga.
We are open to being convinced by the United States
otherwise, but we feel that this is a fair and cost-effective
water settlement, and we believe that the Federal contribution
of approximately $50 million is justified by Pechanga's waivers
against the United States and in recognition of the United
States' programmatic responsibility to the Band.
I want to thank you again for the opportunity for our water
bill to be heard. I am happy to answer any questions that you
may have with respect to the Pechanga water settlement. Thank
you.
[The prepared of Mr. Macarro follows:]
Prepared Statement of Hon. Mark Macarro, Chairman, Pechanga Band of
Luiseno Indians
The Chairman. Mr. Chairman, thank you very much for the
testimony.
Next we will hear from Mr. Matt Stone, who is the General
Manager of the Ranch California Water District in Temecula,
California. Mr. Stone, you may proceed.
STATEMENT OF MATTHEW G. STONE, GENERAL MANAGER, RANCHO
CALIFORNIA WATER DISTRICT
Mr. Stone. Good morning, Chairman Dorgan, and good morning
Senator Tester. My name is Matthew Stone. I am the General
Manager of Rancho California Water District, also known as
RCWD, in Riverside County, California.
I appreciate very much the opportunity to be here on behalf
of RCWD to present testimony regarding S. 2956, the Water
Rights Settlement between Pechanga, RCWD, Eastern Municipal and
the United States.
First, I would like to thank you, Mr. Chairman, and the
other Committee members, for scheduling, preparing and holding
this hearing. We recognize this is a busy time for the
Committee and for the Senate. Therefore, we appreciate you and
your staff making this possible. Mr. Rollie Wilson of your
staff has been extremely helpful for us in preparing for this
hearing this morning.
We would also like to give special thanks to the bill's
sponsor, Senator Barbara Boxer, and her staff for their
continued support, as well as the bill's co-sponsor, Senator
Diane Feinstein. We would like to acknowledge also that
Congressman Joe Baca has introduced a companion bill in the
House, which currently has six co-sponsors.
I would also like to personally acknowledge Chairman
Macarro this morning, who is here representing Pechanga. We
have been through a lot over the last few years. It has been a
journey to try to put this puzzle together. We have had a
little adventure along the way, including a blizzard in Las
Vegas. I think that is a testament to, we obviously have to
advocate for our respective interests and sides, but we both
are trying to work toward a settlement.
I have prepared and submitted to the Committee my written
testimony. So this morning I just want to take a few minutes to
provide you with some background related to Ranch California
and the Santa Margarita watershed, including a brief
description of the water rights disputes and how the parties
found their way here with a proposed solution.
While RCWD is supportive of the settlement, I can't over-
emphasize that the proposal is a compromise by all parties,
which resolves uncertainty and creates a platform for future
cooperation and partnering. While RCWD believed it had a strong
basis for defending the challenge to its rights, as I am sure
Pechanga did as well, there is a cost in terms of money, time,
and lost opportunity during an extended litigation process. So
the outcome on that path is not certain.
A little history regarding Rancho California Water
District. The district was formed in 1965 to provide a
continuing and reliable supply to the community as it has now
developed into the city of Temecula, portions of the city of
Murietta and Southwest Riverside County. We provide supply and
wastewater collection and treatment and recycling services to
over 130,000 people in an area encompassing 160 square miles
and over 40,000 service connections.
We deliver approximately 80,000 acre feet of water per year
to our customers for domestic, agriculture, commercial and
industrial uses. The sources of our water include local water,
imported water and reclaimed water. A substantial portion of
our water supply comes from the Santa Margarita watershed, and
much of the history of this watershed is written in courts and
in conflict. The unresolved nature of Pechanga's water rights
claims creates uncertainty for RCWD and its 130,000 residents.
The watershed also faces significant supply issues and
challenges which are common throughout Southern California,
including population and demand growth, reliance on imported
water, periodic drought and water quality issues that arise
over time from inputs of nutrients and salts from a variety
sources, including agriculture, municipal wastewater discharge,
urban runoff, septic systems and other sources. In response to
these challenges, RCWD is in the process of implementing its
water reclamation project as envisioned in our integrated
resource plan, which would substantially expand the use of
recycled water and better integrate the storage of raw,
imported water in our service area.
The water reclamation project involves an initial phase to
construct a pipeline to allow RCWD to store imported water in
its existing Vail Lake facility for use during dry periods.
This pipeline is under construction as we speak. Subsequent
phases of the project are proposed to develop a delivery system
for recycled water as well as a recycled water demineralization
facility and brine disposal project. These components of our
project will significantly improve supply reliability and
salinity management in our watershed.
We have recently completed an updated feasibility study for
the remaining components of the project.
As has been pointed out, the water rights in the Santa
Margarita watershed have been under some form of court
jurisdiction going back to 1928. In 1951, the U.S. initiated
litigation in the U.S. v. Fallbrook case. And as again noted by
the Chairman's testimony today, part of that was the finding in
interlocutory judgment 41 that there are unquantified rights.
Based on the prima facie evidence in that proceeding, the
Pechanga believe they have 4,994 acre feet of reserved water
rights. Part of the effort, then, in working through the
Federal negotiating team process was to develop a solution to
provide adequate supply.
I think we have provided an overview of the settlement in
our testimony, so I won't repeat that here this morning. I
would just like to in closing thank you, Mr. Chairman and
members of the Committee, for the opportunity to testify. I
want to reiterate that we think the settlement is beneficial
for all parties. We have worked hard to get here. And we look
forward to concluding this settlement, hopefully this year, and
fostering regional cooperation for many, many years to come.
Thank you very much.
[The prepared statement of Mr. Stone follows:]
Prepared Statement of Matthew G. Stone, General Manager, Rancho
California Water District
Good morning Chairman Dorgan, Vice Chairman Barrasso, and members
of the Committee. My name is Matthew Stone and I am the General Manager
of Rancho California Water District (RCWD) in Riverside County,
California. I appreciate the opportunity to appear on behalf of RCWD to
present testimony regarding S. 2956 on the Pechanga Band of Luiseno
Mission Indians Water Rights Settlement (Settlement) between Pechanga,
RCWD, Eastern Municipal Water District (EMWD), and the United States.
Thank you, Mr. Chairman, and Committee members, Rollie Wilson, and
other members of your staff for your assistance in scheduling and
preparing for this hearing. And special thanks to the bill's sponsor,
Senator Barbara Boxer, and her staff for their continued support, as
well as the bill's co-sponsor Senator Dianne Feinstein.\1\
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\1\ The companion bill to S. 2956 is H.R. 5413 sponsored by Joe
Baca (D-CA) and co-sponsored by six additional members.
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My testimony provides background information and an overview of the
terms of the Settlement and its benefits.
I. BACKGROUND
RCWD is a ``special district'' organized and operated pursuant to
the California Water Code and is governed by a seven-member Board of
Directors that is elected by the voters of the region. RCWD serves the
area known as Temecula/Rancho California, which includes the City of
Temecula, portions of the City of Murrieta, and unincorporated areas of
southwest Riverside County, California.
RCWD provides water supply, wastewater collection and treatment,
and water recycling services to over 130,000 people in an area
encompassing 160 square miles. RCWD has an infrastructure network to
serve its service area. The District has 940 miles of water mains, 36
storage reservoirs, one surface reservoir (Vail Lake), 47 groundwater
wells, and over 40,000 service connections. RCWD receives its imported
water (treated and untreated) through six Metropolitan Water District
of Southern California (MWD) water turnouts (three in EMWD's service
area and three in Western Municipal Water District's (WMWD) service
area).
RCWD currently delivers 80,000 acre feet per year (AFY) for
domestic, commercial, agricultural and landscape uses. RCWD's customer
profile includes a significant agricultural industry that produces
avocados, citrus and wine grape products, which add significantly to
the local and regional economy. In addition, RCWD services residential,
business and manufacturing customers in Temecula and Murrieta. Larger
employers in the service area include Abbott Vascular, International
Rectifier, and Professional Hospital Supply. There is a wide range of
local businesses that thrive on tourism in our wine region, historic
old town, and Pechanga's casino. But the region has suffered from the
impacts of the housing downturn, as Riverside was once the third
fastest growing county in the nation.
RCWD's existing water supplies include: Groundwater--Temecula and
Pauba groundwater basins; Imported Water--MWD's Colorado River Aqueduct
and the State Water Project; Recycled Water--Santa Rosa Water
Reclamation Facility operated by RCWD, and the Temecula Valley Regional
Water Reclamation Facility operated by EMWD. RCWD also manages the
water storage rights in Vail Lake, which was created through the
construction of the Vail Dam in 1949. Storm runoff stored in Vail Lake
is released during the subsequent months into groundwater recharge
basins.
RCWD operates mostly within the Santa Margarita Watershed, as
depicted in the attached map, which encompasses an area of
approximately 750 square miles (475,000 acres) in southwestern
Riverside and northern San Diego Counties in southern California.
Drainage in the basin is provided by the Santa Margarita River with
flows from Temecula and Murrieta Creeks in the upper watershed. Major
tributaries of Temecula Creek include Pechanga Creek and Wilson Creek
via Vail Lake. Major tributaries of Murrieta Creek include Saint
Gertrudis, Tucalota (via Lake Skinner), and Warm Springs Creeks. After
the convergence of Temecula and Murrieta Creeks other major tributaries
to the River include De Luz, Sandia, Rainbow, and Fallbrook Creeks.
Major lakes in the watershed include Skinner, Vail, Diamond Valley, and
O'Neil Lakes. A coastal lagoon lies at the mouth of the River on U.S.
Marine Corps (USMC) Camp Pendleton.
Multiple studies have indicated that the Santa Margarita Watershed
is the largest and best example of a riparian and estuarine system in
southern California. The watershed contains a variety of nearly
undisturbed natural habitats, including chaparral-covered hillsides,
riparian woodlands, and coastal marshes, drained by the Santa Margarita
River, which is formed near the City of Temecula at the confluence of
the Temecula and Murrieta Creek systems. Upstream, the Temecula and
Murrieta Creeks are fed by a number of smaller tributaries. Downstream,
the Santa Margarita River flows into San Diego County and through the
USMC base at Camp Pendleton, emptying into the ocean at the Santa
Margarita lagoon.
The watershed currently faces significant water supply issues and
challenges that are common throughout southern California, including
rapid population and water demand growth; significant reliance on
imported water supply; and water quality issues arising from excessive
inputs of nutrients from a variety of sources including agriculture,
nursery operations, municipal wastewater discharges, urban runoff,
septic systems, and golf course operations. Surface waters and
groundwater supporting surface water in the Santa Margarita Watershed
have been under some form of court jurisdiction since 1928. A
Watermaster has been assigned by the United States District Court for
the Southern District of California to oversee all water uses within
the Santa Margarita Watershed. Specific water rights in the watershed
have not been adjudicated. However, the Stipulated Judgment assigns
two-thirds of all natural waters to the United States of America (Camp
Pendleton) and the remaining one-third to RCWD.
Rights to utilize the water and groundwater stored in Vail Lake are
defined in the 1940 Stipulated Judgment in the case of Santa Margarita
versus Vail and Appropriations Permit 7032 issued by the State Water
Resources Control Board. RCWD stores local runoff in Vail Lake, which
was created in 1949 through construction of Vail Dam on Temecula Creek.
RCWD has a surface water storage permit in Vail Lake for up to 40,000
AF from November 1 to April 30. During these months, RCWD releases
available water from Vail Lake to the Valle de los Caballos spreading
basins, about 1.5 miles downstream, for groundwater recharge. From May
through October, existing State permits prohibit storage and require
inflow to pass through Vail Lake to Temecula Creek and ultimately to
the lower watershed. RCWD must meet Gorge flow requirements as set by
the Cooperative Water Resource Management Agreement between the United
States on behalf of Camp Pendleton and RCWD. RCWD currently meets this
requirement by discharging untreated water from MWD into Murrieta
Creek.
Eight sub-basins within the Temecula and Pauba Basins provide RCWD
with groundwater. The amount of groundwater produced annually from
these basins varies depending on rainfall, recharge, and the amount and
location of pumping. However, besides RCWD, others pump from the eight
sub-basins, including: WMWD, Pechanga Indian Reservation, and other
private pumpers. Groundwater extractions are under court oversight in
the watershed. Groundwater basins in the upper watershed are not
adjudicated.
RCWD continually faces increasing water demands, variability in
water supplies due to successive years of drought and imported water
shortages, and water quality challenges necessitating more creative and
innovative solutions to meet the water needs of its customers. In
response to such challenges, RCWD is in the process of implementing its
Water Reclamation Project, which will substantially expand the use of
recycled and raw water in Riverside County in order to meet local water
demands through 2050. The Water Reclamation Project involves the
construction of a pipeline to transport raw water from MWD's aqueduct
system to Vail Lake during low demand and high supply winter periods, a
delivery system for recycled water to RCWD's agricultural users, and
the construction of a demineralization/desalination plant. The Project
is funded in part under the Title XVI Water Reclamation and Reuse
Program administered by the United States Department of the Interior
Bureau of Reclamation. (43 U.S.C. Sec. 390h-32.) \2\
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\2\ The purpose and intent of the Title XVI funds that RCWD is
entitled to receive for the Water Reclamation Project is separate from
the federal contribution under the Settlement; indeed, the interim and
permanent capacity funds are not tied to a specific project and the
remaining funds serve as Pechanga's share of the recycled water
infrastructure costs.
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II. OVERVIEW OF SETTLEMENT
The Settlement would assist in the resolution of decades of
litigation initiated in 1951 by the United States regarding water
rights in the Santa Margarita River Watershed (United States v.
Fallbrook Public Utility District et al., Civ No. 3:51-cv-01247
(S.D.C.A)). The Fallbrook litigation eventually expanded to include all
water users within the Santa Margarita Watershed, including three
Indian Tribes (the Pechanga Band of Luiseno Mission Indians, the Ramona
Band of Cahuilla Indians, and Cahuilla Band of Indians). The United
States, as trustee, represents all three Tribes before the Fallbrook
Court.
In Interlocutory Judgment 41, the Court concluded that each of the
three Tribes have a recognized federally reserved water right without
specifying the amount of each of the Tribe's water right. However, the
Court developed ``prima facie'' findings with respect to each of the
Tribe's quantifiable water rights. The prima facie evidence established
the reserved right and set forth the number of acres to which the
reserved water right applied. Pechanga believes that, based on the
prima facie evidence established in Interlocutory Judgment 41,
Pechanga's reserved water rights are at least 4,994 AFY. Pechanga
requested that the Secretary of the Interior seek settlement of the
water rights claims involving Pechanga, the United States, and non-
Federal third parties through a Federal Negotiation Team formed in
August 2008. Consistent with the United States' policy to resolve
Indian water rights settlements expeditiously whenever possible, in
less than two years the parties have managed to reconcile their
disagreement over Pechanga's water rights claims.
Under the terms of the Settlement, RCWD has agreed to allocate an
additional 25 percent of the Wolf Valley Groundwater Basin to Pechanga.
Additionally, RCWD will wheel imported water made available to Pechanga
under an Extension of Service Area Agreement (ESAA) with MWD in
perpetuity. And RCWD agrees to provide desalination and brine disposal
for recycled water utilized in the Wolf Valley Basin, which will
improve groundwater quality in the basin for both RCWD and Pechanga.
Thus, RCWD's contribution to the Settlement involves more than a
foregoing of its assertion of water rights but instead involves
implementation of a partnership to utilize, convey and improve the
quality of local and imported water. In summary, the Settlement will:
1) Establish an initial safe yield of 2100 AFY in the Wolf
Valley Groundwater Basin (of which Pechanga would receive 75
percent and RCWD would receive 25 percent) and a means for
ongoing management and determination of the safe yield;
2) Facilitate the provision of interim and permanent capacity
for delivery of imported water from MWD to its member agency
EMWD and then through RCWD's distribution system to Pechanga in
exchange for a federal contribution of $17.9 million;
3) Allow RCWD to purchase between 300 and 475 AFY of recycled
water that Pechanga is currently entitled to purchase from
EMWD, depending on availability;
4) Provide for Pechanga's share of the costs in the amount of
$2.5 million for RCWD to design and construct an additional
recycled water pond to increase seasonable storage capacity in
its existing recycled water system necessary to accommodate the
EMWD recycled water received by RCWD under the Settlement;
5) Provide for Pechanga's share of the costs in the amount of
$4.46 million for RCWD's design and construction of a
demineralization and brine disposal project to lower the
salinity of recycled water received by Pechanga from EMWD (or,
if such facilities are not constructed, for availability of
funds to Pechanga for an alternative salinity management
solution); and
6) Provide for mutual waivers of claims for water rights in
the Santa Margarita River Watershed to prevent future disputes
between the parties over Pechanga's water rights claims.
The Settlement is beneficial for all parties involved in that it
promotes a reliable water supply for Pechanga by incorporating it into
RCWD's water distribution system, improves the quality and reliability
of recycled and groundwater supplies for RCWD, and fosters a regional
solution to Pechanga's water rights claims by incorporating EMWD and
MWD. The federal monetary contribution of $50 million to the Settlement
is relatively modest compared to other recent Indian water rights
settlements. The Settlement would also avoid many additional years of
litigation at great expense to the parties and the uncertainty
concerning the availability of scarce water supplies in the region.
III. CONCLUSION
Thank you again, Mr. Chairman and other Members of the Committee
for the opportunity to present this important Indian water rights
settlement, which will significantly improve the reliability and
quality of local water supplies for RCWD and Pechanga. RCWD would
greatly appreciate your support of S. 2956 to move the bill one step
closer to approval.
Attachment
The Chairman. Mr. Stone, thank you very much for your
testimony.
Let me ask a question about the actual water that Pechanga
Band could use. I know you are interested in real water, in
actual water. The water supplies in California I know, just by
reading, that those water supplies are relatively scarce. So
can you elaborate on how the water supply, the actual water
supply will be provided, and will it have impact on other uses
in California?
Mr. Macarro. How much time do we have?
[Laughter.]
Mr. Macarro. We are completely dependent on aquifer water,
water underneath our reservation. So all references to the
basin basically are the sole source currently of water to the
tribe.
For the Band's water, our most productive well happens to
be a well that is closest to Rancho California's water wells in
the Wolf Valley portion of the basin. I think over the decades
there has been this, from our perspective, apparent competition
for water. There have been hydrologic studies and various
degrees of linkages to, or hydrologic links between the basins
that they pump from and we pump from.
So I think a key part of this agreement shows that we
recognize that we impact each other's water resource. And the
best long-term policy is to come up with a policy that manages
the resource for both of us, all of us that live in the valley.
So what we tried to do then is part of the protection of
that resource is to not over-pump it. We have come up with
some, I think some paradigms that work for us that describe
safe yield, so that we don't destroy the aquifer that we pump
from; we don't over-pump it. We manage it. Of course, it
becomes more critical in drought years and when less is
available. The aquifer, the basins, are recharged through rain
events. The more rain we have, the more water we have.
So when we put this together, it quickly became apparent
that to meet everybody's needs, over the long term, over the
next few decades, and looking out 50 to 100 years, that some
imported water was going to have to be made available. Part of
those calculations were going to come from other water
districts and primarily Metropolitan Water District as well.
So we looked for ways to use existing infrastructure, we
looked for ways to be as efficient. And I think in the end,
this settlement represents I think the best nexus of efficiency
and cost and just overall conservation. So what we end up with
is an end product that provides, I think rather than impacting
water, taking away water from other places, I think we are
looking at moving water through an aggregate system of
Metropolitan Water District that might otherwise be coming to
our area and delivering it both to the tribe and to Rancho
California Water District as those needs, not until those needs
are there. That is also a critical element of this settlement.
In other words, we are not going to be getting water that
we don't need right now. It won't be until the need is
necessary, that it is made known and present some time down the
road.
The Chairman. Mr. Chairman, my understanding, I would ask
Mr. Stone this as well, the settlement settles the rights of
individual allottee landowners on the reservation. Is that
correct?
Mr. Macarro. That is correct. I wasn't able to address that
in my oral remarks. It is substantially addressed in our
written testimony, and I will say that the proposed statute
confirms existing statutory protections for allottees, and
includes new ones.
A key feature is that the statute requires us to develop a
water code that protects allottee water rights. And then that
water code has to be approved by the Secretary. Finally, these
protections are the same as those provided to allottees in all
other pending water rights settlements. So it is essentially
similar language, if you have seen this language already in
recent water bills, the language is similar.
The Chairman. All right. And one final question. The other
primary water users sharing the water resource is testifying
today. Are there other local governments or commercial users
that support this settlement?
Mr. Macarro. I believe that, well, the answer is yes.
Because of who they serve water to, I think it is fair to say,
and I will let Mr. Stone address that as well, but I think it
is fair to say that everybody that they provide water to,
residents, commercial interests, agricultural interests, is
also supportive of this. Because it takes an unknown and
creates a known quantity out of it. That is a critical element
to planning for the future for all of us.
The Chairman. Mr. Stone?
Mr. Stone. Yes, I think one of the historical features at
Rancho California Water District is that we have a
responsibility as an agent to represent water rights holders in
the groundwater basin which we overlie. That is a legal
construction that was developed by the former landowner as the
district was created. The board takes that trust responsibility
very seriously and has deliberated the pros and cons of
settling or litigating.
But they are the representation of those underlying
landowners, and water rights holders in our service area.
The Chairman. Senator Tester?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman.
A couple questions for Chairman Macarro. You spoke of
Federal contribution of about $50 million. In your testimony,
it is broken down into a recycled water infrastructure of 6.96.
What exactly does that entail?
Mr. Macarro. The 6.96?
Senator Tester. Yes. What exactly is the recycled water
infrastructure? What are we talking about?
Mr. Macarro. Those are share of costs that go to storage
ponds and to brine facilities, about $2.5 or so million toward
storage ponds, about $4.7 million to the brine facility,
desalination facility.
Senator Tester. Okay. And there is almost $18 million for
delivery capacity. I assume that is water, pipes?
Mr. Macarro. Transmission, yes.
Senator Tester. And then there is a water fund, and it is
broken down from there, but it is a little over $25 million.
Can you just kind of explain the thought around the water fund
and how it was set up and its adequacy going into the future?
Mr. Macarro. Yes. That involves, part of the trust
responsibility here is the guarantee of water to the tribe into
the long-term future. The way we anticipate that working is
that it has to happen with Metropolitan Water District being
part of the equation, Met being the large wholesaler in
California for water.
So those dollars paid initial connection fees and they also
paid the ongoing annual fees as a Met customer to the tribe.
And so that is, I think that is, and it is a critical part of
those whole settlement. So le me say that most of the Federal
contribution is directed toward programmatic responsibilities
that ensure that our Tribe is able to use its reserved right
entitlement. So it is a critical part of the wet water
equation.
Senator Tester. Where is the Governor in support of this
bill?
Mr. Macarro. The Governor?
Senator Tester. Yes.
Mr. Macarro. He is very supportive, I am sure.
[Laughter.]
Senator Tester. Not that you are speaking for the Governor,
but just curious. Has he played a role in this?
Mr. Macarro. I don't think he has played a role. But I
can't say that for certain. I know he has been very busy with
the economy in the State.
Senator Tester. Right. Administration, you had talked about
the Administration, you met with the Administration a couple of
days ago.
Mr. Macarro. And on an ongoing basis, yes.
Senator Tester. That is good. And they had expressed some
concerns, is that what I gathered from it? Could you give me an
idea what those concerns revolve around?
Mr. Macarro. Costs. Generally costs. What does the $50
million involve? Everything that you have asked. We have looked
at this, we have broken it down into four components. The $18
million for the pipeline, $2.5 million for the ponds, $4.7
million from the desal facility and then the Federal
contribution to the subsidy fund.
Senator Tester. Thank you very much. Appreciate both your
testimonies. Thank you.
Thank you, Mr. Chairman.
The Chairman. Senator Tester, thank you.
We thank both of you for your testimony. We would hope you
would be available for written questions that we wish to submit
to you.
Mr. Macarro. We would.
The Chairman. We will then take this under further
consideration. As I indicated, Senator Boxer had requested that
we hold this hearing. Senator Feinstein is a co-sponsor of the
legislation. It will be helpful if you also will submit, or if
you will solicit letters from other interests in your region
and perhaps the Governor as well, to see if we can get some
letters of support from them as we consider this.
Mr. Macarro. Can I add something, actually not related to
this?
The Chairman. Yes.
Mr. Macarro. But given the timing, I just want to thank you
personally, certainly on behalf of my Tribe for the critical
role you played chairing this Committee, as well as the entire
Committee, for making the priorities you have of the
legislation for reauthorization of Indian Health Care and
certainly Tribal Law and Order. I remember in particular when
you came in front of NIGA two years ago, and you stated flatly
and clearly these were your priorities. And here we are today
with both of these things passed, a tremendous watershed for
Indian Country.
And I want to thank you, Senator Tester, Chairman Dorgan,
it was amazing to see it happen. Thank you.
The Chairman. I appreciate that a lot. We have a great
staff, bipartisan staff on this Committee. We have worked very
hard on these issues to complete them. We still have the
special diabetes fund that we have to reauthorize, there are a
number of things yet to do between now and the end of the year.
But I think we have made substantial progress.
Certainly in holding hearings on water issues, they are not
the most exciting issues around, because many of them have
languished for years and years and years trying to be resolved.
But they are very important in the life of tribal governments,
to quantify these water rights and try to address these issues.
So we appreciate your being here and appreciate both of you
taking the time to travel to Washington for this hearing.
Thank you very much.
Next we are going to have the second panel. And the Energy
Committee is now meeting on the third floor, so I have to be at
the Energy Committee markup at 11 o'clock. Senator Tester has
agreed to Chair. Senator Tester, if you don't mind, I will
depart to go to the Energy Committee. And if you want to take
the Chair and introduce the next panel, I would appreciate
that.
Senator Tester. [Presiding.] I want to thank the witnesses
for being here today for the Blackfeet Water Settlement, S.
3290. And I want to thank you all for making this trip on such
short notice. You had one week and you are here. Since I go
back to Montana every weekend, I know that it truly is a
sacrifice to come here during the summer, where you step into a
sauna when you step off the airplane.
But we certainly appreciate your being here, Shannon
Augare, who is a Blackfeet tribal member, who is soon to be
State Senator. I want to congratulate you on the primary
victory, and since you have no general election appointment,
you are in. Jay Weiner, State of Montana Water Rights Compact
Commission. Jay has done great work for a long, long time on
water rights issues in the State of Montana through that
commission. And we very much appreciate that. John Bloomquist,
Attorney for the Pondera County Canal and Reservoir Company.
John is somebody that I have known for quite a while now, and a
very good attorney, especially when it comes to water rights
issues. And we appreciate you being here too.
We are here to discuss S. 3290, the Blackfeet Water Rights
Settlement Act of 2010. Senator Baucus and I, Senator Baucus
may show up here at some point in time, if he does, I will
defer to him. We introduced that legislation back in April of
this year. It is an important piece of legislation, because
water is the foundation of life, particularly in rural
communities. It is critically important for domestic and
municipal users, for irrigation, livestock and for economic
development on the whole.
It has been the policy in Montana and the United States to
negotiate rather than litigate water rights. So negotiation is
important, because our diverse communities have many competing
interests. Nobody gets everything they want. It is important
that as communities, we work together to solve our problems
rather than fighting with one another.
That is why I am proud of the way these folks have worked
together over the years. The negotiation started some 20 years
ago. During that time, tribal, State, Federal Government and
non-Indian water users have negotiated in good faith to craft a
settlement in way that works for the entire community. They did
such a good job that the State legislature ratified this
compact in 2009, when they last met.
The bill we are considering today will ratify the compact
at the Federal level. It will resolve claims against the United
States and authorize funding to improve the reservoir water
infrastructure. The bill we are talking about today is a good
bill, it is a good start. It is not perfect. But over the
coming months, I do look forward to working with you, each and
every one of you sitting at the table today, and the
Administration. I doubt that it will be perfect for everybody,
but I think that we can work to get a bill that everybody can
live with and will work for the people of North Central Montana
that are impacted by this water settlement.
So by working together, we will get it done. Again, I want
to thank you all for being here on short notice. I know you are
busy, it is summer time, and you always have things to do. But
we appreciate your commitment to this piece of legislation and
to the people you represent.
With that, Shannon, I will start out with you. You can
testify, same rules apply, if you can keep it to five minutes,
it will be great. Your entire written testimony will be a part
of the record.
STATEMENT OF HON. SHANNON AUGARE, MEMBER, BLACKFEET TRIBAL
BUSINESS COUNCIL
Mr. Augare. Thank you, Mr. Chairman, members of the
Committee. My name is Shannon Augare. I am a member of the
Blackfeet Tribal Business Council and I am honored to be here
on behalf of the Blackfeet Tribe in support of the Blackfeet
Water Rights Settlement.
I am very familiar with this matter, as you mentioned, Mr.
Chairman, having worked on the ratification of the Blackfeet
Water Rights Compact as a member of the Montana House of
Representatives. I want to thank the Committee for holding this
hearing on Senate Bill 3290, a bill that I believe is critical
to the future of the Blackfeet people. I also want to thank and
acknowledge my colleagues, the distinguished Vice Chairman of
our Tribe, Rusty Tatsey, and councilman Jay St. Goddard for
being here.
Today, we together thank you and Senator Baucus for your
leadership and for your strong support of the Tribe in
introducing this bill, and for your understanding of the
importance of this bill to Blackfeet Country. I also want to
thank your staff and the Committee staff for their hard work on
this incredibly important bill.
The Blackfeet Water Rights Settlement is a culmination of
over two decades of work by the Tribe, State and Federal
Government. And I know that is a lot of time and a lot of work.
I am only 30 years old, that is two-thirds of my life. It
represents a historical breakthrough in the Tribe's over a
century long battle to secure and protect its water rights. S.
3290 ratifies the Blackfeet Montana Water Rights Compact,
resolves significant water-related claims against the Federal
Government, and most importantly establishes the critical
infrastructure needed for the development of a self-sustaining
economy on the Blackfeet Reservation, and of course, a
permanent homeland for our Blackfeet people.
The Blackfeet Reservation was established by treaty in
1855. The Reservation originally encompassed much of the State
of Montana but has been reduced in size by various Federal
actions and reservation. It is now about 1.5 million acres. It
is located along the Rocky Mountain front in North Central
Montana adjacent to the ever-beautiful Glacier National Park.
The Reservation is renowned for its spectacular mountain
scenery, majestic plains and abundant fish and wildlife. The
Tribe has over 16,000 members, about half of whom live on the
Reservation.
Six separate drainages are encompassed within the
Reservation: St. Mary, the Milk, Cut Bank Creek, Two Medicine,
Badger Creek and Birch Creek. The annual water supply is
approximately 1.5 million acre feet, nearly a third of which is
in the St. Mary River. Water is critical to the continuing
survival of our Blackfeet people, culturally and economically,
and has become increasingly critical as development and
competition for water occurs around us, and as supplies become
shorter. We understand that scientists have predicted that our
glaciers in Glacier Park will soon disappear in a matter of
decades. Safe and clean drinking waters are essential for the
growing population on our Reservation. And water is critical to
our economy, which is heavily dependent on stock raising and
agriculture.
Unemployment on the Reservation can run as high as 70 to 80
percent. Water has historically been a contentious issue on the
Reservation. In the 1909 Boundary Waters Treaty, the United
States and Canada divided up the St. Mary and Milk Rivers on
the Reservation without any consideration or mention of the
Blackfeet water rights. The bulk of the United States' share of
the St. Mary River, some 180,000 acre feet of water annually,
has been diverted off-reservation over 100 years by means of
various facilities built on the Reservation, including a 29-
mile canal, which carries the water to Milk River, then carries
it downstream to serve the Federal Milk River project.
The southern boundary stream, Birch Creek, was the subject
of early conflicts resulting in a 1908 Federal court decree in
a case brought by the Federal Government at the time, at the
same time as the Winters case. While the paramount right of the
Tribe was recognized, the Tribe was awarded only a portion of
the water necessary to irrigate its irrigable lands, leaving it
open for the Tribe to seek additional water in the future.
Since then, Birch Creek has become fully utilized through
80,000 acres irrigated adjacent to the Reservation, making it
difficult as a practical matter for additional water to be made
available to the Tribe. Allotment of the Reservation has
brought further water conflicts between the Tribe and the
purchasers of the allotment. Given the historical water rights
issues of the Reservation, the Blackfeet Water Rights Compact
is truly a milestone, achieved after nearly two decades of
negotiations among the Tribe, the Montana Reserved Water Rights
Compact Commission and representatives of the Federal
Government. The compact approved the Montana legislature in
April of 2009. Tribal approval is also required through a vote
of our tribal membership.
The project costs have been developed by the Tribe's
technical consultants and projects are currently being reviewed
by the Bureau of Reclamation DEC Team, which will issue its
report shortly. The Tribes believe that the costs are fully
justified under the trust obligations of the Federal Government
and by the Tribe's water-related claims against the United
States.
The State has committed to a $20 million contribution to
the settlement, $4 million of which has already been
appropriated. In addition, in the 2007 legislature, they
appropriated $15 million for the Birch Creek agreement, for a
total State contribution of $35 million. The Tribe is fully
prepared to address any Federal questions or concerns that may
be identified by the Administration. Of course, the Federal
Government was involved in our negotiations from the beginning,
and we have met with Federal Representatives on a number of
occasions throughout the negotiation process.
We have also initiated discussion on the bill's provisions
which we expect to continue. And we too hope that we can see
some quick action on this bill this year.
I want to thank you, Mr. Chairman and members of the
Committee. I look forward to responding to any questions you
may have.
[The prepared statement of Mr. Augare follows:]
Prepared Statement of Hon. Shannon Augare, Member, Blackfeet Tribal
Business Council
Mr. Chairman, and members of the Committee, my name is Shannon
Augare. I am a member of the Blackfeet Tribal Business Council. I am
honored to be here on behalf of the Blackfeet Tribe in support of the
Blackfeet Water Rights Settlement Act. I am very familiar with this
matter, having worked on the ratification of the Blackfeet water rights
compact as a member of the Montana Legislature.
I want to thank the Committee for holding this hearing on S. 3290,
a bill that is critical to the future of the Blackfeet People. I also
want to thank Senator Max Baucus and Senator Jon Tester for their
strong support of the Tribe in introducing this bill, and their
understanding of the importance of this bill to the Blackfeet Tribe. I
also want to thank their staffs and the Committee staff for their hard
work on this bill.
The Blackfeet Water Rights Settlement is the culmination of over
two decades of work by the Tribe and many other people, including those
who are testifying here today. It represents an historical breakthrough
in the Tribe's over century long battle to secure and protect its
waters rights. S. 3290 ratifies the Blackfeet-Montana Water Rights
Compact, resolves significant water related claims against the Federal
Government and most importantly establishes the critical infrastructure
needed for the development of a self-sustaining economy on the
Blackfeet Reservation and a permanent homeland for the Blackfeet
People.
The Blackfeet Reservation and the Blackfeet People
The Blackfeet People have occupied the area where the Blackfeet
Reservation is located since time immemorial. As we say: ``We know who
we are and where we come from. We come from right here. We know, and
have always said, that we have forever lived next to the Rocky
Mountains.''
Our first treaty, known as Lame Bull's Treaty, was signed in 1855.
Executive orders and statutes would follow, each taking huge chunks of
our traditional land. In the end, as a small grace, we ended up with
the land that was most sacred to us: our present day reservation. But
this was not due to any good intentions. The simple fact is that the
land we wanted most was the land they wanted least.
In 1896 we had the Northern Rockies taken from us because
speculators believed there were rich minerals to be had. When mineral
riches didn't pan out, this most sacred part of our homeland became
Glacier National Park in 1910. To this day we question the legitimacy
of the 1896 transaction. But thereafter, the modern-day reservation
boundaries were set. The present Reservation is about 1.5 million
acres. Although the United States had promised our reservation would
never be allotted in the 1896 Agreement by which the Northern Rockies
were lost, the Federal Government went back on its word and lands
within the reservation were allotted to individual Tribal members under
allotment acts in 1907 and 1919.
The Tribe now has over 16,000 members, about half of whom live on
the Reservation. Our people have worked hard to survive in the
sometimes harsh climate of the Rocky Mountains, and have attempted to
live in the modern world while maintaining the cultural and spiritual
ties to the land and its resources.
Water is the Essential Element that Binds Us Together
Water is critical to the Blackfeet People. It is central to our
culture and our traditions. It is an essential element of our way of
life, and it is crucial to our continuing survival culturally,
traditionally and economically. Six different drainages are encompassed
within the Reservation: the St. Mary, the Milk, Cut Bank Creek, Two
Medicine River, Badger Creek and Birch Creek. These are the veins and
arteries of the Reservation and provide life to the Blackfeet People
and bind us together as a People.
Water is the source of creation. We believe that rivers and lakes
hold special power through habitation of Underwater People called the
Suyitapis. The Suyitapis are the power source for medicine bundles,
painted lodge covers, and other sacred items. Contact with supernatural
powers from the sky, water and land is made through visions and dreams
and manifests itself in animals or particular objects. The beaver
ceremony is one of the oldest and most important religious ceremonies,
and beaver bundles have particular significance. The ceremonial
importance of water is especially present in the use of sweat lodges as
a place to pray, make offerings and cleanse and heal. The sweat lodge
remains a part of the religious and spiritual lives of many tribal
members.
Various species of plants also have great importance and are
culturally and religiously significant to the Tribe and Tribal members.
Particular species of plants are essential for religious ceremonies and
for their healing and medicinal effects. Both water quantity and
quality are critical to the survival of these plant species, and to the
central role of the plant species in the continuing religious and
cultural practices of Tribal members.
Pristine water quality is also essential to the cultural and
religious practices of the Tribe. Preservation of a high level of water
quality is therefore integrally related to tribal members' ability to
continue religious, spiritual and cultural practices.
Water is the lifeblood that not only sustains the Blackfeet people
but our way of life. The water resources of the Blackfeet Reservation
are essential to the lives of tribal members, the economic, cultural
and spiritual well being of the Tribe, and the continuing viability of
the Reservation as a homeland to the Blackfeet people.
The Blackfeet Reservation's location along the eastern Rocky
Mountain Front makes it the home of spectacular mountain scenery and
abundant fish and wildlife. Large game animals, including moose, elk,
and deer abound. The Reservation provides significant habitat for
grizzly bears and other bears, and for other animals such as lynx, pine
marten, fisher, mink, wolverine, weasel, beaver, otter, grey wolf,
swift fox and others. Numerous bird species are also found on the
Reservation including bald eagle, golden eagle, osprey, ferruginous
hawk, northern goshhawk, harlequin duck, piping plover, whooping crane,
and all migratory and shoreline birds, as well as game birds such as
the sharptail grouse, ringnecked pheasant, mountain dove, Hungarian
partridge and two species of grouse. The fishery on the Reservation is
renowned, and includes the west slope cutthroat trout, northern pike,
lake trout, rainbow trout, mountain white fish, lake white fish, brook
trout, brown trout, Yellowstone cutthroat trout, walleye, and many
others. The threatened bull trout is also be found on the reservation.
The habitats of these wildlife species and fish depend directly on the
water resources of the Reservation to support them and allow them to
thrive.
At the same time, water is vital for our communities to thrive and
prosper. Safe and clean drinking water supplies are essential for the
growing population on the Reservation, and water is critical to our
economy which is heavily dependent on stock raising and agriculture.
The Reservation also possesses significant timber, and oil and gas
resources and other resources. Oil and gas production has occurred on
the Reservation since the 1930s, and the Tribe has recently experienced
a significantly increased interest in new development on the
Reservation. The Tribe has also been working hard to develop wind
energy and the hydroelectric potential on the Reservation. All of these
activities are dependent on adequate supplies of water.
Fortunately, we are blessed with an abundant supply of water. Over
518 miles of stream and 180 water bodies, including eight large lakes,
are located on the reservation. More than 1.5 million acre-feet of
water arise on or flow through the Blackfeet Reservation on an annual
basis. Despite the significant water supply, or maybe because of it,
historically others have sought to appropriate it for themselves, and
water has become a precious resource in more modern times.
The Water Wars
In 1909, the United States entered in to the Boundary Water Treaty
with Canada. Although the treaty divided the Milk River and St Mary
River between the two countries, not a word was mentioned about the
Blackfeet, or the fact that these streams arise on or near the
Blackfeet Reservation, and that the Blackfeet have rights to them.
Not long after the Boundary Waters Treaty, the United States
withdrew significant lands on the Reservation under the 1902
Reclamation Act, and began construction of the St. Mary facilities that
would divert most of the United States' share of the St. Mary River off
the Reservation for use by the Milk River Project over a hundred miles
away, notwithstanding that there was an equally feasible project on the
Blackfeet Reservation to which the water could have been brought. The
diversion is accomplished through facilities on the Reservation,
including Sherburne Dam, and a twenty-nine mile canal through the
Reservation that eventually empties into the Milk River. The Milk River
flows north into Canada and then back into the United States near
Havre, Montana, where it is heavily utilized by the Milk River Project
and by the Fort Belknap Reservation. There are few historical acts,
other than loss of land, that have engendered more passion and outrage
than this wholesale transfer of Reservation water to serve non-Indians
far downstream, without a word about or any consideration of Blackfeet
Tribe's water rights or the Blackfeet water needs. The Tribe is left
not only with no access to and no benefit from its own water, but a
tangled web of confusing and non-existent rights of way and easements
for the St. Mary Diversion facilities on the Reservation.
At the same time that the St. Mary diversion was taking place,
there was a concerted effort by water users just south of the
Reservation to appropriate for themselves the waters of Birch Creek,
the southern boundary of the Reservation. The situation eventually led
to litigation in a case brought by the United States contemporaneously
with the Winters case. The case sought the removal of the Conrad
Investment Company's dam on Birch Creek which was intended to send
water to irrigators adjacent to the southern boundary of the
Reservation. In Conrad Investment Company v. United States, decided by
the Ninth Circuit in 1908, the same year as the Winters case, the court
upheld the Tribe's prior and paramount right to the water. But the
court did not award the full amount of water necessary to irrigate all
of the Tribe's irrigable lands, leaving it open for the Tribe to claim
additional water in the future. United States v. Conrad Investment
Company, 156 Fed. 123 (D. Mont. 1907), aff'd Conrad Investment Co. v.
United States, 161 Fed. 829 (9th Cir. 1908). In the meantime, Birch
Creek has been fully appropriated through development of 80,000 acres
of irrigation immediately adjacent to the Reservation.
In an attempt to control the water through the land, the Conrad
Investment case served as the springboard to the first Blackfeet
allotment act in 1907. Over a span of two congresses, the Blackfeet
allotment act moved forward with various water rights provisions
intended to make Blackfeet water rights subject to state law, to enjoin
the United States from prosecuting any further suits against water
users, and later to give preference to settlers on surplus lands to
appropriate water on the Reservation. See, John Shurts, Indian Reserved
Water Rights: The Winters Doctrine in its Social and Legal Context,
1880s-1930s (University of Oklahoma Press, 2000). These efforts largely
failed, thanks in part to a veto from President Theodore Roosevelt, but
the 1907 Allotment nevertheless became law notwithstanding that in the
1896 Agreement by which the Northern Rockies were lost to the Tribe,
the Federal Government agreed that there would be no allotment of the
Reservation. See Art. V of the Agreement of September 26, 1895,
ratified by the Act of June 10, 1896, 29 Stat 321, 353.
Allotment brought the third serious dispute between the Tribe and
non-Indian water users. The Bureau of Indian Affairs Blackfeet
Irrigation Project was authorized in the 1907 Allotment Act. However,
many of the prime irrigation lands both within the Project and in other
areas of the Reservation on Cut Bank Creek and the Milk River quickly
went out of trust. The Tribe's water rights have gone unprotected from
the use of water by non-Indian development on former allotments.
Numerous disputes have arisen over the years of varying severity, and
the need to resolve the Tribe's water rights has increasingly become
critical.
Traditionally, the Tribe has taken the approach of sharing the
resource cooperatively, but more recent years have brought shortages
during the late irrigation season in both the Milk and Cut Bank Creek,
and the dilapidated condition of the Blackfeet Irrigation Project has
become a serious impediment to water use within the Project. Plans to
rehabilitate the hundred year old St. Mary Diversion facilities have
further raised water right concerns, and the need for the Tribe to
finally achieve some benefit from those facilities.
Water Rights Compact
Given the historical water rights issues on the Reservation, the
Blackfeet Water Rights Compact is truly a milestone achievement after
nearly two decades of negotiations among the Tribe, the Montana
Reserved Water Rights Compact Commission and the Federal Government.
The Compact was complete in December 2007. It was approved by the
Montana Legislature in April, 2009 (85-20-1501 MCA), and it is now
before this Committee for ratification in the Blackfeet Water Rights
Settlement Act. It will further require approval of the Tribe through a
vote of the Tribal membership. In general, the Compact:
Establishes the Tribe's water right as all surface and
groundwater less the amount necessary to fulfill state water
rights in all drainages (Milk River, Cut Bank Creek, Two
Medicine River and Badger Creek) except for the St. Mary River
and Birch Creek.
Establishes a St. Mary water right of 50,000 acre-feet, and
requires the parties to identify how the water will be provided
to fulfill the Tribe's water right in a manner that does injure
the Milk River Project.
Establishes a Birch Creek water right of 100 cfs, plus 25
cfs for in stream flow during the summer and 15 cfs during the
winter.
Protects non-irrigation use and some irrigation uses through
``no-call'' provisions.
Provides for water leasing off the Reservation.
Closes on-reservation streams to new water appropriations
under state law.
Provides for Tribal administration of the Tribal water, and
State administration of state law water rights, and creates a
Compact Board to resolve disputes.
Provides for an allocation of water stored in Tiber
Reservoir (in an amount to be determined by Congress).
Mitigates the impacts of the Tribe's water rights on Birch
Creek water users through a separate Birch Creek Agreement by
which the Tribe defers new development on Birch Creek for 15
years and provides 15,000 acre-feet of water per year to Birch
Creek water users from Four Horns Reservoir, the total
agreement not to exceed 25 years.
For obvious historical reasons, the St. Mary River and Birch Creek
proved to be the most difficult issues for the parties to resolve.
The Compact includes a Birch Creek Management Agreement as an
Appendix to the Compact that requires the Tribe and the Pondera County
Canal and Reservoir Company to develop annual water management plans,
to meet annually, along with the Bureau of Indian Affairs, and to
otherwise cooperatively manage their water uses.
In addition, in the separate Birch Creek Agreement, which is
mentioned above, the Tribe has committed to enlarge the Four Horns
Reservoir on the Reservation, a storage facility of the Blackfeet
Irrigation Project, to provide mitigation water to Birch Creek water
users. The Tribe will defer new development of Birch Creek water for a
fifteen year period, during which the enlargement will occur. When the
enlargement of Four Horns is complete, the Tribe will provide 15,000
acre-feet of water to Birch Creek water users, for a total agreement
term of 25 years. Given that Birch Creek is currently a fully utilized
stream without taking into account an increased Blackfeet water right,
mitigation measures were the only reasonable and feasible way to reach
agreement there.
As to the St. Mary River, additional identification and study of
alternatives to provide the Tribe's water right will be necessary and
are included as part of the legislation. A substantial portion of the
United States' share of the St. Mary River is diverted to the Bureau of
Reclamation's Milk River Project, as described above. Therefore it will
be necessary to identify alternatives to provide the Tribe's water
right. In the meantime, S. 3290 provides that the Tribe will receive it
water right through an allocation of Sherburne Dam, the Milk River
Project storage facility on the Blackfeet Reservation. The Tribe will
lease back the water to the Project, until a permanent water supply is
identified and implemented for the Tribe. Such an arrangement is the
only way to ensure that the water rights of both the Tribe and the Milk
River Project are fulfilled.
Upon completion of the Compact, a separate concern was raised by
the Fort Belknap Indian Community relating to the Milk River, and the
potential for conflict between the Blackfeet and Fort Belknap Milk
River water rights. While the Blackfeet Tribe believes that the
potential for conflict is very low, the two tribes have met on a number
of occasions to resolve any possible conflict. Language was agreed upon
to be inserted in our respective settlement legislation. The language
was included in an agreement signed by the Blackfeet Tribe, but not yet
signed by Fort Belknap. The language appears in the Blackfeet
legislation in Sec. 11, and we believe it fully protects Fort Belknap.
The provision requires the Secretary to insure that the water rights of
both tribes are fulfilled. This is a particular federal responsibility
due to the United States trust responsibility to both tribes, and
particularly because the Federal Government was party to the
negotiations of both tribes.
State Approval and State Contribution
As described above, the Blackfeet water rights compact was approved
by the State Legislature in April 2009. The State of Montana has
committed to contribute $20 million to the Compact. Along with the
approval of the Compact in 2009, the State legislature appropriated $4
million toward the $20 million state contribution, and has committed to
appropriate the remaining amount in the 2011 legislature. In 2007, the
Montana Legislature also appropriated $15 million for Birch Creek
mitigation. Of these funds, $14.5 million has been placed in an escrow
fund for the Tribe as part of the Birch Creek Agreement (to which the
Tribe currently has access to the interest), and $500,000 was used for
engineering studies for the Four Horns enlargement. Therefore, the
State has committed to a $35 million contribution to the Blackfeet
settlement. This is very major contribution on the part of the State,
one of the larger, if not the largest contribution, for an Indian water
rights settlement in Montana.
Blackfeet Water Rights Settlement Act
S. 3290, the Blackfeet Water Rights Settlement Act, carries forth
the terms of the Blackfeet water rights compact, and addresses the
issues of particular federal responsibility and federal concern. The
bill would do the following:
Approves and ratifies the Compact and the Birch Creek
Agreement.
Provides for an allocation of Tiber Dam water.
Provides 50,000 acre feet of Sherburne Dam water to the
Tribe in fulfillment of the Tribe's St. Mary water right, to be
leased to the Milk River Project until a permanent
alternative(s) to provide the St. Mary right is identified and
implemented. Authorizes funding to undertake the necessary
investigation and studies, planning, design and construction to
provide the St. Mary water right to the Tribe.
Requires resolution of all rights of way issues related to
the Milk River Project facilities, involving tribal lands and
allotted land.
Authorizes the rehabilitation and improvement of the
Blackfeet Irrigation Project, including the enlargement of Four
Horns Reservoir.
Establishes a Blackfeet Water Settlement Fund and authorizes
$125M for the Blackfeet Irrigation Project and $93.2 for each
of five years for other water projects and water related
projects.
Provides for a waiver of water related claims against the
Federal Government.
Establishes a tribal water right in Lewis and Clark National
Forest in the amount claimed by the United States on behalf of
the Tribe.
Reserves a claim to water in Glacier National Park for the
Tribe's hunting, fishing and timbering rights reserved in the
1895 Agreement.
Requires the Secretary to resolve any conflict involving
Milk River water between the Tribe and Ft. Belknap.
The Tribe has identified a number of projects that are critical to
the implementing the Tribe's water right under the Compact. The
projects include rehabilitation and build-out of the Blackfeet
Irrigation Project, including the Four Horns enlargement, irrigation
development on the Milk River, Cut Bank Creek and Birch Creek, and a
regional water system to provide a long term municipal water supply to
several communities on the Reservation, including East Glacier,
Browning, Starr School, and Seville, and a separate water supply for
the Town of Babb.
Badger/Fisher Unit-Water Supply Augmentation and Irrigation Project
Rehabilitation & Betterment (including Four Horns Enlargement)
The components for this project include an enlarged & rehabilitated
feeder canal from Badger Creek to an off-stream dam & reservoir, Four
Horns Dam, an enlarged Four Horns Dam from about 20,000 AF to 70,000 AF
(actually a new dam just downstream from the existing dam), an enlarged
and rehabilitated main canal from the dam to the Badger-Fisher Unit of
the Blackfeet Irrigation Project, irrigation unit rehabilitation and
betterment, including some on-farm improvements, and a water supply
pipeline (gravity) from Four Horns Dam to off-reservation water users.
The Four Horns enlargement is critical to the implementation of the
Compact as set forth above.
The rehabilitation and betterment of the Blackfeet Irrigation
Project is essential to continuing irrigation in this hundred year old
project. The Project was authorized by the 1907 allotment, as part of
the Indian Appropriations in the Act of May 1, 1907, 34 Stat. 1035.
Currently, nearly 30,000 acres of land are included in the project, but
the Project has never been completed. In addition, the current
dilapidated state of the project severely limits full irrigation to
lands in the project.
Two Medicine River Irrigation Development
This project includes selective betterment and on-farm improvements
on the Two Medicine Unit of the Blackfeet Irrigation Project and a
major enlargement of Mission Lake with pumping facilities.
Birch Creek Irrigation Development
This project includes selective betterment and on-farm improvements
on the Birch Creek Unit of the Blackfeet Irrigation Project.
Milk River Irrigation Development
Much of the economically developable run-of-the-river irrigation
(no storage facilities) has been already developed on the Milk River by
non-Indians within the Reservation. New irrigated acreage will require
new storage. This project may include the purchase and rehabilitation
of existing irrigated lands, and development of new Tribal irrigated
lands, including the construction of new storage and irrigation water
delivery systems. This project will allow the Tribe to establish its
own irrigation in the Milk River drainage, something it has not been
able to do without storage given the existing non-Indian irrigation.
Cut Bank Creek Irrigation Development
Much of the economically developable run-of-the-river irrigation
(no storage facilities) has been already developed on Cut Bank Creek by
non-Indians within the Reservation. New irrigated acreage will require
new storage. This project may include purchase and rehabilitation of
existing irrigated lands, and developing new Tribal irrigated lands,
including the construction of new storage and major water delivery
systems. Like the Milk River Project, this project will allow the Tribe
to establish irrigation in the Cut Bank Creek Drainage which it has
been unable to do without storage given the existing non-Indian
irrigation.
Regional Water System
The Blackfeet Tribe, Indian Health Service (IHS) and other entities
have designed and are currently constructing a Phase 1 regional water
system within the Reservation. The source is at Lower Two Medicine
Lake, with an associated water treatment plant, with water service
pipelines going to the towns of East Glacier and Browning. The current
project focuses on current needs. The proposed project would provide a
50 year water long-term community water supply and would include
enlarging the treatment plant and Phase 1 pipelines and extending the
pipeline from Browning to serve Indian communities to the eastern
boundary of the Reservation, including the Star School and Seville
areas.
For many years, East Glacier has been under a boil order issued by
EPA. The Town of Browning has had frequent problems with its current
water supply which is provided by groundwater wells. These wells have
experienced supply and quality problems that have affected a continuous
water supply for Browning. The Seville water supply is currently
provided through an agreement with the City of Cut Bank. However, the
ability of Cut Bank to continue to provide water to this reservation
community given the City's own water supply problems is in doubt.
Therefore, it is critical for another supply for Seville to be
provided.
It is also critical to establish a long term supply of water to
Reservation communities. The Tribe has continually had to address
community water supply problems by cobbling together short term fixes.
At the same time, the Reservation population has significantly
increased, and projections are that such increases will continue. A
long term supply will provide the necessary stability that will allow
for long term community growth.
St. Mary River Water Development
Components of this project include enlarging Lower St. Mary's Lake
and Spider Lake and other potential off-stream storage facilities and
improvements. These projects may serve as potential projects to supply
the Tribe's St. Mary water right. A municipal water system for the Town
of Babb is also included. Like other Reservation communities, Babb now
relies on an inadequate and problematic well system. A potential 500-
acre irrigation project has further been identified that will allow the
Tribe some irrigation benefits which now accrue only to the Bureau of
Reclamation's Milk River Project.
Blackfeet Stock Water and Irrigation Developments
This project would include individual stock water and irrigation
developments scattered throughout the Reservation. The project would
allow individual Indian allotment holders that are not within any
irrigation project to develop small irrigation developments and also
stock water development for their cattle.
Compact Administration
A permanent Blackfeet Water Rights/Water Resource Office would be
responsible for implementing the water rights compact, developing a
revised water code, administering water rights on the Reservation,
developing a water management plan and implementing the water rights
settlement projects.
The Cost of Settlement
The Tribe's technical consultant, DOWL HKM of Billings, Montana,
has assisted the Tribe in the development of the above projects and has
prepared reports on each of the projects and the associated costs.
Separate costs have been developed for each of the projects. $125
million has been provided for in the legislation for the Four Horns
enlargement which is required to fulfill the commitment to provide
mitigation water to Birch Creek water users, and is set out separately
in the legislation. The cost of the remaining projects will potentially
exceed the remaining $466 million. The Tribe proposes to construct the
most critical projects within the funds provided for in the
legislation. Much of the cost is associated with the rehabilitation and
betterment of the Badger-Fisher, Two Medicine and Birch Creek units of
the Blackfeet Irrigation Project. The Regional Water System is
estimated to cost $107,481,500. All of the projects are currently being
reviewed by a Bureau of Reclamation DEC Team (design, engineering and
construction), and the DEC Team's report will be issued shortly.
The costs of settlement are fully justified by the needs of the
Reservation and the potential Tribal claims against the United States
associated with the St. Mary Diversion, the environmental and resource
damages caused by the diversion facilities, claims relating to the 1909
Boundary Water Treaty, the failure of the United States to properly
operate and maintain the Blackfeet Irrigation Project, and the failure
of the United States to protect the Tribe's water right from
development by others.
Conclusion
The Blackfeet Water Rights Settlement represents the hard work of
many people. The settlement has critical importance to the future of
the Blackfeet people. The legislation will secure the water rights of
the Tribe through ratification of the Tribe's water rights compact, and
will also provide the necessary funding for the development of vital
reservation water projects, including drinking water projects, water
storage projects and irrigation and stock development. The settlement
will significantly contribute to the development of a strong
Reservation economy and a better life for the Blackfeet people.
The Tribe is prepared to address any federal concerns that may be
identified, and has initiated contact with the Administration for this
purpose.
We thank the Committee and Committee staff and look forward to
responding to any questions you may have.
Attachment
Senator Tester. Thank you, Shannon.
Jay Weiner?
STATEMENT OF JAY WEINER, ASSISTANT ATTORNEY
GENERAL, STATE OF MONTANA; LEGAL COUNSEL, MONTANA RESERVED
WATER RIGHTS COMPACT COMMISSION
Mr. Weiner. Thank you, Senator Tester.
My name is Jay Weiner, I am an Assistant Attorney General
with the State of Montana and legal counsel to the Montana
Reserved Water Rights Compact Commission. It is my privilege
and honor to be here today to testify in support of S. 3290,
ratifying the Blackfeet Tribe's water rights settlement.
As you have heard, this settlement is a long time in
coming. I am a little bit older than Shannon, but the 20 years
that this has been in negotiation reflects about half of my
life.
This is the product of truly significant hard work by the
Tribe, by the State of Montana. We appreciate the participation
of the United States in our process as well. I want to thank
the Tribe for the leadership they have shown. I would also be
remiss today if I did not make mention of Susan Cottingham, the
program director of the Compact Commission, who is retiring at
the end of this month. The work that she has put in over the
years has been invaluable in the success that Montana has had
in the numerous water rights settlements that we have
concluded.
My written testimony expands at some length about the
specifics of the settlement. So what I just want to touch on
today is what we believe is the critical balance that was
struck in the settlement. And you heard a little bit of that
from the prior panel as well, that to make these negotiated
settlements work, a balance needs to be struck between
recognizing the legitimate, significant senior water rights
claims of a tribe with the reliance on that water that non-
Indian users have come to have over the 150 or so years that
there has been settlement in Montana. Roughly 15 percent of
Montana's agricultural economy depends on water that is
involved in the Blackfeet Water Rights Settlement. It was
certainly a priority of the State during these negotiations to
ensure that we could meet those two goals. I believe the
settlement has faithfully done that.
One of the critical ways that we did that, and Shannon made
mention of this as well, is that the State has contributed and
continues to contribute $35 million to mitigate the impact of
the Tribe's Birch Creek water right on non-Indian irrigators
who also take water out of Birch Creek, which is the
Reservation's southern boundary stream. The centerpiece of that
plan is the rehabilitation and enlargement of the Four Horns
Reservoir, which is a storage facility on the Badger Creek
drainage to the north of Birch Creek.
The State contributed half a million dollars out of the
2007 legislative session to preliminary engineering studies.
And we believe that those studies show that it is both cost-
effective and reasonable to significantly enlarge the Four
Horns Reservoir to make it capable of serving its current users
as well as bringing additional water over to Birch Creek, which
is a critical part of making the settlement work.
As I said, the State has put $35 million into that, $19
million of which has already been appropriated. We expect to
see the additional $16 million in the Governor's budget that
will be submitted to the 2011 session of the Montana
legislature that will convene this January.
I should also note that the Blackfeet Water Rights
Settlement is important for the United States being able to
recognize and utilize the full share of its entitlements out of
both the St. Mary and the Milk River which are subject to the
1909 Boundary Waters Treaty with Canada. That is a treaty that
apportioned significant cross-boundary streams. Our feeling in
Montana is that we were an after-thought to some extent and the
Canadians got a very good deal and we did not get such a good
deal.
But this settlement is critical to making sure that what we
do get from that treaty we are able to make benefit of for all
of us who live south of the 49th parallel. That is a critical
portion of this settlement as well.
Finally, I know that a representative from the Fort Belknap
Tribe was invited to be here today. Unfortunately, he could not
attend. I know that he has submitted written testimony, and I
would like to say, because the Compact Commission negotiated
the settlement with the Fort Belknap Tribes as well as the
Blackfeet Tribe, that we believe our technical analysis
indicates that the possibility of actual conflict on the Milk
River, which is a stream that originates on the Blackfeet
Reservation, runs up into Canada and then back down into
Montana and runs across the Fort Belknap Reservation, the
possibility of conflict between the two tribes based on what we
are proposing to quantify in their respective settlements is
extraordinarily remote. We believe there is really no practical
likelihood of any actual conflict arising.
That said, the Blackfeet Tribe and the Fort Belknap Tribes
recognizing the possibility of theoretical conflict had
negotiated for a memorandum of understanding which empowered
the Secretary to effectively mediate between the two tribes in
the event that in the future a conflict were to arise. That
provision is embodied in S. 3290. So we do not believe there is
any meaningful prospect of inter-tribal conflict that would
result from the approval of this settlement.
And I see that my time is running short, so I will conclude
my remarks. I again express my gratitude for the hard work,
Senator Tester, that you and your staff have put in, that
Senator Baucus and his staff have put in. We are very
appreciative of all of the work that you have done on all the
Indian water rights settlements that have come up from Montana.
We look forward to continuing to work with both your offices,
with the Committee, with our partners, the Blackfeet Tribe, and
with the United States, to get this settlement into shape that
it can be ratified hopefully this year.
Thank you very much for the opportunity to be here.
Senator Tester. As do we, Jay. Thank you.
[The prepared statement of Mr. Weiner follows:]
Prepared Statement of Jay Weiner, Assistant Attorney General, State of
Montana; Legal Counsel, Montana Reserved Water Rights Compact
Commission
Chairman Dorgan and distinguished members of the Senate Committee
on Indian Affairs, I thank you for the opportunity to provide written
testimony on this important matter. My name is Jay Weiner, and I am a
Montana Assistant Attorney General and staff attorney for the Montana
Reserved Water Rights Compact Commission. I am here to testify on
behalf of Chris Tweeten, the Chairman of the Montana Reserved Water
Rights Compact Commission, the State of Montana and Governor Brian
Schweitzer, in support of S. 3290, the Blackfeet Water Rights
Settlement Act of 2010, and to urge your approval of this bill.
The Montana Reserved Water Rights Compact Commission was created by
the Montana legislature in 1979 to negotiate, on behalf of the
Governor, settlements with Indian Tribes and federal agencies claiming
federal reserved water rights in the state of Montana. The Compact
Commission was established as an alternative to litigation as part of
the statewide water adjudication and is charged with concluding
compacts ``for the equitable division and apportionment of waters
between the state and its people and the several Indian tribes'' and
the Federal Government. (Mont. Code Ann. Sec. 85-2-702 (2009).)
Montana has been remarkably successful in resolving both Indian and
federal reserved water rights claims through settlement negotiations.
To date, we have concluded and implemented water rights Compacts with
the tribes of the Fort Peck, Northern Cheyenne and Rocky Boy's
Reservations, as well as with the United States Forest Service,
National Park Service, Agricultural Research Service, Bureau of Land
Management, and several units of the Fish and Wildlife Service. The
Congress has previously ratified the Northern Cheyenne and the Rocky
Boy's Compacts, and both tribes have seen substantial economic and
social benefits from the completed settlements. In addition, we have
reached Compact agreements with the tribes of the Blackfeet, Crow and
Fort Belknap Reservations that are in the process of approval. Earlier
this year, this Committee recommended to the full Senate a ``do pass''
on Senate Bill 375, as amended, ratifying the Crow Water Rights
Settlement. The Blackfeet Tribe-Montana Compact has already been
approved by the Montana legislature (Mont. Code Ann. Sec. 85-20-1501
(2009)), and is now before Congress for ratification pursuant to S.
3290.
Concurrent with the initiation of the Montana general stream
adjudication and the establishment of the Compact Commission in 1979,
the United States filed suit in federal court to quantify the rights of
tribes within the State, including the Blackfeet Tribe. Those federal
cases have been stayed pending the adjudication of tribal water rights
in state court. Should the negotiated settlement of the Blackfeet
Tribe's water right claims fail to be approved, then the claims of the
Blackfeet Tribe will be litigated before the Montana Water Court. The
Blackfeet Tribe has always had the senior water rights in the basins
that are the subject of the settlement embodied in S. 3290--this
Compact does not create those rights, it simply quantifies them.
The Blackfeet Indian Reservation is located in north-central
Montana, bounded by Glacier National Park and the Lewis and Clark
National Forest to the west, Canada to the north and prairies to the
east and south. The Reservation encompasses 1.5 million acres (roughly
one and a half times the size of Rhode Island), making the Reservation
one of the largest in the United States. The Reservation is home to
approximately half of the 16,000 enrolled Tribal members. Unemployment
on the Reservation is estimated at being up to 70 percent. The region
is arid, with approximately 13 inches of average annual precipitation.
Ranching and farming comprise the major uses of land on the
Reservation, with the principal crops being wheat, barley and hay.
The provisions in S. 3290 will recognize and quantify water rights
as well as off-Reservation storage allocations that will allow the
Blackfeet Tribe to provide for its growing population and to develop
its natural resources. The State of Montana and the Blackfeet Tribal
Business Council agree that this is a fair and equitable settlement
that will enhance the ability of the Tribe to develop a productive and
sustainable homeland for the Blackfeet People. We appreciate the
efforts of the Tribe and the Federal Government to work with the State
to forge this agreement, and, in doing so, to listen to and address the
concerns of non-Indian water users both on and off the Reservation.
This settlement is the product of over two decades of negotiations
among the parties, which included an intensive process of public
involvement.
The primary sources of water on the Blackfeet Indian Reservation
are the St. Mary River, the Milk River, the Two Medicine River, and
Badger, Birch and Cut Bank Creeks. (See Attachment A.) Collectively,
these watercourses contain approximately 1.5 million acre-feet per year
(AFY) of water, with the St. Mary River alone accounting for roughly
one-third of that total. The St. Mary River originates in the mountains
of Glacier National Park and flows north and east across the
Reservation before crossing into Canada. The Two Medicine River and
Badger and Birch Creeks originate in the mountains to the west of the
Reservation and flow east, ultimately uniting to form the Marias River
just east of the Reservation. Birch Creek delineates the Reservation's
southern boundary. The Milk River and Cut Bank Creek are prairie
streams. The Milk River flows northeast into Canada before re-entering
the United States just west of Havre, Montana, while Cut Bank Creek
flows south and east until it joins the Marias River. The St. Mary and
Milk Rivers are both subject to an apportionment agreed to between the
United States and Canada in the 1909 Boundary Waters Treaty (BWT), and
implemented by a 1921 Order of the International Joint Commission that
was established by the BWT. Indian water rights were not considered
during the negotiation or implementation of the BWT. The Bureau of
Indian Affairs (BIA) manages the Blackfeet Irrigation Project on the
Reservation. The Blackfeet Irrigation Project serves land in the Birch
Creek, Badger Creek, Two Medicine River and Cut Bank Creek drainages.
The Blackfeet Tribal Water Right is quantified separately for each
drainage basin within the Reservation. The Tribal Water Right for the
St. Mary River drainage within the Reservation is 50,000 AFY, not
including the flows of Lee and Willow Creeks. This water right is
subject to the limitation that its exercise may not adversely impact
the water rights held by the Bureau of Reclamation's Milk River Project
(MRP), which diverts almost the entire United States' share under the
BWT of the St. Mary River into the Milk River for use by MRP irrigators
in northern Montana approximately 200 miles downstream of the
Reservation. The balance between tribal rights and MRP needs, and the
protection of these off-Reservation water users, was a critical aspect
of the negotiations of this settlement.
In 1902, when Congress authorized, and the Bureau of Reclamation
began to develop, the MRP, insufficient attention was given to the
senior water rights of the Blackfeet Tribe. Historically, the Tribe has
received neither benefits from nor compensation for the St. Mary River
water used by the MRP, which can account for up to 90 percent of the
MRP's water supply in dry years. At the same time, water users in this
federal project have for generations depended on the St. Mary River
water delivered to Project facilities for their livelihoods. This
settlement addresses these two factors by providing for an interim
allocation to the Tribe of 50,000 AFY of St. Mary River Water stored in
Sherburne Reservoir, which is located contiguous to the Reservation and
just inside Glacier National Park. That water is to be leased by the
Tribe back to the Bureau of Reclamation for use by the MRP, at a rate
to be negotiated between the Tribe and the United States, while studies
are conducted to identify a permanent solution capable of satisfying
the Tribe's water rights while keeping the MRP whole. The Tribe is also
entitled to groundwater in the St. Mary drainage that is not subject to
the BWT's apportionment, as well as the entire United States' share
under the BWT of the natural flow of Lee and Willow Creeks (which are
located in the St. Mary River drainage), except for the water in those
streams that is subject to existing water rights under state law.
The Blackfeet Tribal Water Right in the Milk River is quantified as
the entire United States' share under the BWT of the Milk River, as
well as all non-BWT groundwater in the Milk River drainage on the
Reservation, except for the water that is subject to existing water
rights under state law. In addition, the Tribe has agreed to afford
protections for those existing water rights under state law, including
a no-call provision for uses other than irrigation, and a 10 year
phase-in for new development of tribal irrigation. The tribes of the
Ft. Belknap Indian Community also claim water rights in the Milk River
downstream of the point at which the Milk River re-enters the United
States from Canada. Staff for the Compact Commission, which also
negotiated a settlement of the water rights of the Ft. Belknap Indian
Community that was approved by the State legislature in 2001 (Mont.
Code Ann. Sec. 85-20-1001 (2009)), has evaluated the potential of
competing demands on the Milk River between the Blackfeet Tribe and the
Ft. Belknap Indian Community and has concluded that the possibility of
actual conflict is exceedingly remote. Nevertheless, the Blackfeet
Tribe and the Ft. Belknap Indian Community have negotiated a memorandum
of understanding over Milk River water uses pursuant to their
respective settlements, which contemplates that the Secretary of the
Interior shall, with the consent of the tribal governments, identify
and implement alternatives to resolve any such conflict that might
someday arise. This provision is included in S. 3290 as well.
The Blackfeet Tribal Water Right in Cut Bank Creek is quantified as
all of the water (both surface and underground) in that drainage within
the Reservation, except for the water that is subject to existing water
rights under state law. The Tribe has also agreed to afford existing
water rights under state law in the Cut Bank Creek drainage the same
protections as are provided for in the Milk River drainage. The
quantifications of the Tribal Water Right in the Two Medicine River and
Badger Creek drainages are done in the same fashion as the Cut Bank
Creek quantification, though the protections accorded by the Tribe to
existing water rights under state law in these two drainages extend the
no-call protection to all existing water rights under state law, not
just non-irrigation water rights. (This more expansive no-call
protection also extends to existing water rights in the St. Mary River
drainage.)
The quantification of the Tribal Water Right in Birch Creek was a
major component of the negotiations. The Tribe's water rights in Birch
Creek were judicially recognized as early as the 1908 Ninth Circuit
Court of Appeals decision in the Conrad Investment Company case (161 F.
829 (9th Cir.1908)), which was decided very shortly after the United
States Supreme Court ruled in the seminal Indian water rights case
Winters v. United States (207 U.S. 564 (1908)). The Blackfeet
Irrigation Project diverts water from Birch Creek for project water
users on the Reservation, but historically the Tribe has taken far less
water from Birch Creek than that to which it was legally entitled.
There is also extensive water resource development immediately to the
south of Birch Creek, where roughly 80,000 irrigated acres, as well as
municipalities, are served by the facilities of the Pondera County
Canal and Reservoir Company (PCCRC). PCCRC also operates Swift Dam,
which abuts the southwest corner of the Reservation. During the
irrigation season, PCCRC's use diverts nearly all of the water
available in Birch Creek. As the unconstrained development of the
Tribe's Birch Creek water right recognized in this settlement has the
potential to cause significant impacts to existing users, the balance
between tribal and off-Reservation water use from Birch Creek was a
major component of the negotiations.
The settlement quantifies a substantial Tribal Water Right in Birch
Creek. The quantification consists of a senior irrigation right of 100
cubic feet per second (cfs) of Birch Creek natural flow, as well as a
seasonably variable in-stream flow right (25 cfs from October 1 to
March 31, and 15 cfs from April 1 to September 30), and all groundwater
in the Birch Creek drainage that is not hydrologically connected to
Birch Creek. In addition, the Tribe is entitled to the remainder of the
water in Birch Creek after full satisfaction of existing uses under
state law. As part of the protection of existing water rights under
state law for which the State bargained, the Tribe agreed in the
Compact to limit the development of its Birch Creek irrigation right to
the Upper Birch Creek Drainage. There are also very specific
administration provisions in the Compact concerning the manner in which
the Tribe may change the use of its Birch Creek irrigation right to
other beneficial purposes. In addition, a Birch Creek Management Plan
(Attachment B) has been appended to the Compact, which commits the
Tribe, the BIA and the operators at PCCRC to meet prior to each
irrigation season to develop management plans to maximize the
beneficial use of Birch Creek for all water users, and to adapt those
plans as conditions warrant during the course of each irrigation
season.
When the Compact Commission initially presented this proposed
settlement framework at public meetings south of the Reservation, the
response was overwhelmingly negative, as stakeholders believed that the
risks posed to their livelihoods by full tribal development of its
Birch Creek water rights were insufficiently mitigated. Consequently,
the parties returned to the negotiating table and entered into an
Agreement Regarding Birch Creek Water Use (the Birch Creek Agreement)
on January 31, 2008. The Birch Creek Agreement (Attachment C) is a
critical component of the overall settlement. Under the Birch Creek
Agreement, the State agreed to put $14.5 million into an escrow fund
payable to the Tribe after final approval of the Compact by the Montana
Water Court. (In anticipation of settlement, the 2007 session of the
Montana legislature fully funded this amount.) In the interim, the
Tribe is entitled to receive the interest from that fund, up to
$650,000 per year. In exchange for these payments, the Tribe agreed to
defer any development of its Birch Creek water rights beyond their
current use for a period of 15 years from the effective date of the
Birch Creek Agreement. In addition, the Tribe agreed to prioritize in
this settlement authorization and funding for the Four Horns Project.
The Four Horns Project involves the repair and improvement of the
Four Horns Dam and Reservoir and associated infrastructure, features of
the Blackfeet Irrigation Project located on the Reservation in the
Badger Creek drainage. Preliminary engineering studies, funded by a
$500,000 appropriation from the State, indicate that the storage
capacity of the reservoir can be substantially increased in a cost
effective fashion, and that a delivery system can be constructed
economically to move excess water from the reservoir across to Birch
Creek for the benefit of all Birch Creek water users. The studies
suggest that this can be accomplished without reducing the access of
Badger Creek water users, including those within the Blackfeet
Irrigation Project, to the quantity of water currently stored in Four
Horns that they use. The State has committed to spend $20 million
toward the construction of this Four Horns Project, $4 million of which
has already been appropriated.
One of the essential mitigation benefits secured by the State in
exchange for the financial and other commitments made in the Birch
Creek Agreement is the Tribe's agreement to deliver 15,000 AFY of water
from Four Horns to Birch Creek, for the benefit of Birch Creek water
users, from the time construction is completed on the facilities
necessary to make such deliveries possible until a date 25 years from
the effective date of the Birch Creek Agreement. This provision of
supplemental water is expected to offset the impacts of the Tribe's
development of its Birch Creek water rights after the expiration of the
15 year deferral period. In addition, the existence of infrastructure
capable of bringing Four Horns water across to Birch Creek provides the
Tribe with a potential market for surplus water from Four Horns into
the future. With the Birch Creek Agreement in place, PCCRC and other
off-Reservation stakeholders supported ratification of the Compact by
the Montana legislature in 2009.
The settlement also includes provisions allowing the Tribe to lease
to water users off the Reservation those portions of its water rights
that it has stored or directly used. The Tribe must offer water users
on Birch Creek, Cut Bank Creek, the Milk River and the St. Mary River,
respectively, a right of first refusal on water leased from those
drainages to users downstream. Water from Birch Creek, Cut Bank Creek
and the Milk River, all of which are within the Missouri River Basin,
may only be leased for use at other locations within the Missouri River
Basin.
In addition, under S. 3290, the United States will allocate to the
Tribe a portion of the water in the Bureau of Reclamation's storage
facility on Lake Elwell, located along the Marias River in central
Montana. The bill provides for the Tribe's allocation to be all water
not yet allocated from that storage facility, less the quantity of
water agreed to by the Tribe and the Ft. Belknap Indian Community that
may be allocated to Ft. Belknap in the future pursuant to its own water
rights settlement. The bill further provides that nothing in this
allocation to the Blackfeet Tribe requires the United States to provide
any facility for the transportation of the Tribe's allocation from Lake
Elwell to any point. The Tribe may lease water from this Lake Elwell
allocation so long as it is for use within the Missouri River Basin.
The settlement also closes all of the on-Reservation basins to new
appropriation under Montana law. In all cases, both under Tribal Code
and State law, the development of new small domestic and stock uses are
not precluded by the basin closures. For all on-Reservation basins,
water rights under state law will become part of the Tribal Water Right
if the Tribe reacquires the land and the appurtenant water right. This
structure will allow the Tribe to reconsolidate both land and water
resources within the Reservation.
The Tribe will administer the Tribal Water Right. The State will
administer water rights recognized under state law. The Blackfeet
Irrigation Project will use part of the Tribal Water Right and will
continue to be administered by the BIA under applicable federal law.
The Blackfeet Tribe will enact a Tribal Water Code to provide for
administration of the Tribal Water Right in conformance with the
Compact, this Act, and applicable federal law. In the event a dispute
arises, the Compact provides for an initial effort between the water
resources departments of the State and the Tribe to resolve the
dispute. Should the informal process fail to reach resolution, the
Compact establishes a Compact Board to hear disputes. Decisions of the
Compact Board may be appealed to a court of competent jurisdiction.
The Compact will recognize and protect the Blackfeet Tribe's water
rights and provides for the improvement of agricultural water systems
and tribal economic development. The Compact promotes development for
the benefit of the Blackfeet People while protecting other water uses.
The Compact is the full and final settlement of all of the Tribe's
water rights claims within the Blackfeet Reservation and the Tribe
waives any claims to water rights not contained or reserved in the
Compact. We urge your support in ratifying the Compact by passage of
this Act.
Attachments
Senator Tester. John Bloomquist?
STATEMENT OF JOHN E. BLOOMQUIST, ATTORNEY, PONDERA COUNTY CANAL
AND RESERVOIR COMPANY
Mr. Bloomquist. Thank you, Senator Tester, members of the
Committee and staff. My name is John Bloomquist, I am an
attorney from Helena, Montana, and I am testifying on behalf of
the Pondera County Canal and Reservoir Company, which I will
refer to in my remarks as PCCRC.
PCCRC is a non-profit corporation located in Valier,
Montana. Its history dates back more than 124 years to
settlement and development under the Carey Land Act and other
Federal laws.
Today, PCCRC supplies water to approximately 450 water
users for irrigation and stock water purposes, covering over
80,000 acres of irrigated lands that are the foundation of the
regional agricultural economy. PCCRC also supplies municipal
water to the citizens of the city of Conrad.
The major source of water for the project is Birch Creek,
which is located along the southern boundary of the Blackfeet
Indian Reservation. The waters of Birch Creek are also stored
in two major reservoirs operated by PCCRC, Swift Dam and Lake
Frances.
PCCRC is interested in the compact, primarily because of
the potential impact on its water supply. It is estimated that
the impact of the Tribal Water Right on Birch Creek will reduce
project water supplies by approximately 15,000 acre feet per
year. This would affect 22,500 acres of irrigation within the
project, reducing producers' revenue by just under $8 million
per year, reducing land values by $500 to $600 per acre on
affected areas and reducing improvement value by $225 to $300
per acre.
That is why legislation ratifying the compact should
include adequate mitigation measures. We are pleased that S.
3290 does so by directing the Secretary to make improvements to
the Four Horns Dam, which will assist in providing mitigation
water to PCCRC, and by establishing a fund to mitigate long-
term impacts on project users.
With that background, let me go to the heart of the matter
to explain why it is appropriate for the Federal legislation to
establish a fund to mitigate the compact's long-term impacts on
PCCRC. The first reason is that the impact is the direct result
of Federal policies. The settlement of water rights claims
reflects one set of important Federal policies. The PCCRC
itself reflects another. The PCCRC project exists in large part
as a project developed under the Federal Carey Land Act, which
encouraged settlement and development of associated irrigation
projects.
We believe both Federal policies should be furthered in the
legislation and are in fact furthered by the establishment of
the mitigation fund. The second reason for the mitigation fund
is, although there is some uncertainty about the precise
magnitude of the economic impact on the project, 25 years from
now everyone agrees that it will be substantial. In many cases,
the impact of the water compact on non-tribal water users is
mitigated directly and permanently as this compact does for the
Milk River project.
However, with respect to PCCRC, the direct mitigation is
temporary with a 10-year deferment period, followed by a 15-
year period where 15,000 acre feet of Four Horns water would be
delivered to the company. After 25 years, the direct mitigation
ends.
For farm families who have been on land for generations, 25
years is not a very long time. Without a mitigation fund,
irrigators will have to either pay sharply higher costs or
alternatively, get out of farming. In either case, the economic
impact will be great, not only to PCCRC and its users, but to
the entire regional economy.
We suggest that the most fair and efficient way to address
this is by establishing the mitigation fund, which is set forth
in the legislation. Initially capitalize the fund at $27
million. That fund would be administered by a Federal agency,
and the fund would be available to support appropriate
mitigation measures. For example, it may be used to lease water
from the Blackfeet Tribe, construct water savings projects, or
if necessary, purchase PCCRC shares for the retirement of
irrigation lands.
We would be happy to work with the Committee to provide
further details about the appropriate operations of the
mitigation fund.
In conclusion, we commend Senator Baucus and you, Senator
Tester, for your work on this legislation. We also commend the
State of Montana and the Blackfeet Tribe and the Federal
officials who have been involved in the long and difficult
negotiation of the compact. We particularly appreciate the
State's and the Tribe's support for including mitigation
provisions in the legislation. We are committed to work with
the parties to produce a bill that settles water rights claims
and provides economic opportunities to all residents in North
Central Montana.
Thank you, Senator.
[The prepared statement of Mr. Bloomquist follows:]
Prepared Statement of John E. Bloomquist, Attorney, Pondera County
Canal and Reservoir Company
Mr. Chairman and Committee Members, my name is John E. Bloomquist
and I am an attorney from Helena, Montana and I am appearing before you
today on behalf of the Pondera County Canal and Reservoir Company. On
behalf of the Pondera County Canal and Reservoir Company, I wish to
express our thanks for the invitation to testify on S. 3290, a bill
which is critical to the water users of the Pondera County Canal and
Reservoir Company and to a very large region of north central Montana.
I also wish to express our thanks to Senators Max Baucus and Jon
Tester, and their staffs for their hard work on this bill and in
particular the provisions of the bill which relate to Birch Creek water
supplies.
I. Introduction and Overview
The Pondera County Canal and Reservoir Company (``PCCRC'' or the
``Company'') is a non-profit corporation located in Valier, Montana
which owns and operates, for the benefit of its users, an irrigation
and water supply project situated in north-central Montana. PCCRC
supplies water to approximately 450 water users for irrigation and
stock watering purposes as well as providing municipal water to the
citizens of the City of Conrad in Pondera County, Montana.
Water associated with the PCCRC project is supplied to PCCRC's
users via an extensive system of canals and storage reservoirs which
were developed by the Company's predecessors beginning in the mid to
late 1880's. The major source of water for the project is known as
``Birch Creek,'' which is located along the southern boundary of the
Blackfeet Indian Reservation in north-central Montana.
PCCRC is the successor to water rights developed and appropriated
from Birch Creek for use within the Company's water supply project. The
waters of Birch Creek are also stored in two major reservoirs owned by
PCCRC (Swift Dam and Lake Frances) for distribution to the Company's
water users for irrigation and municipal purposes. In addition, Lake
Frances is utilized by recreationalists and anglers in this region of
Montana for the fishing and recreational opportunities provided by the
reservoir.
Because of the critical importance of Birch Creek to PCCRC's water
supply, the Company has been actively involved in following
negotiations among the State of Montana, the Blackfeet Tribe, and the
United States in the efforts to quantify the Blackfeet Tribe's reserved
water rights for Birch Creek and other water sources. PCCRC has
actively monitored and commented on in the negotiations conducted by
the Montana Reserved Water Rights Compact Commission (RWRCC), the
Blackfeet Tribe, and the United States for approximately 20 years.
The negotiations of the Tribal Water Right (TWR) for Birch Creek
have been closely followed by PCCRC due to the critical nature of Birch
Creek as the major water source for the Company's water users. Over the
years, PCCRC and its representatives have closely monitored the various
proposals discussed by the state, tribal, and federal negotiation teams
regarding the quantification and use of the TWR for Birch Creek.
Throughout the negotiation process, the chief issue for PCCRC, on
behalf of its water users, has been to evaluate the impact on the
Company's water supply of any Birch Creek TWR which would ultimately be
negotiated by the state and the Tribe. PCCRC's main issue throughout
the process has been to make sure the Company's water supply is not
adversely affected by the quantification and ultimate development of
the TWR for Birch Creek.
In negotiations for the Birch Creek TWR, PCCRC has consistently
advocated various proposals which recognize the existence of a
substantial Birch Creek TWR for use and development by the Blackfeet
Tribe while also recognizing the importance of the Company's Birch
Creek water supply for its users. In this vein, PCCRC has been very
active in suggesting proposals for mitigation of impacts on PCCRC's
water supply by the development of the TWR on Birch Creek. Mitigation,
and the concept of developing and implementing various measures to
protect water users who may be affected by the development of tribal
water rights, has been an effective mechanism in Montana in achieving a
variety of water settlements between the State of Montana and various
Indian Tribes in Montana.
The concept of mitigation of impacts of the Birch Creek TWR has
been recognized by the State of Montana and the Blackfeet Tribe.
Mitigation, in the context of the Montana-Blackfeet Compact, includes
two important components. The first component involves the development
and construction of additional water storage opportunities within the
Blackfeet Indian Reservation associated with the Four Horns Dam and
Reservoir. Four Horns Dam and Reservoir, and the development and
betterment of the dam, reservoir, and associated water delivery systems
represent a viable opportunity to improve water storage capabilities on
the Blackfeet Indian Reservation for the benefit of the Blackfeet
Tribe, while also providing a viable source of mitigation water which
could be available to Birch Creek to offset the impacts to PCCRC's
water supply by development of the negotiated Birch Creek TWR. PCCRC
believes the provisions included in S. 3290 concerning improvements to
the Four Horns Dam, reservoir, and water delivery system is a critical
component of the Montana-Blackfeet Tribe water rights compact and
strongly supports congressional approval and authorization of these
projects on the Blackfeet Reservation.
The second component of mitigation of impacts of the Birch Creek
TWR involves adequate funding to assure that mitigation projects become
a reality, and that mitigation from the development of the Birch Creek
TWR provides long-term solutions, not only for the Tribe but for other
Birch Creek water users as well.
Regarding mitigation funding, PCCRC has actively worked with the
State of Montana and the Blackfeet Tribe to secure state funding for
deferment of implementation of the Birch Creek TWR for a period of
years, as well as assuring the delivery of water from an improved Four
Horns Dam and Reservoir system to PCCRC's water delivery system from
Birch Creek. As set forth in the Birch Creek Agreement which
accompanies the Montana-Blackfeet Compact, the Tribe has agreed to
defer development of its Birch Creek TWR above historic use for a
period of 15 years. In addition, the Tribe has agreed to deliver to
Birch Creek approximately 15,000 Acre-Feet (``AF'') per year from an
improved Four Horns Dam and Reservoir until the 25th anniversary of the
Birch Creek Agreement.
In the spring of 2009, the State of Montana and the Blackfeet Tribe
amended the Birch Creek Agreement to further support the components of
successful mitigation for a period beyond the 25-year term set forth in
the Birch Creek Agreement. On February 13, 2009, the state and the
Blackfeet Tribe agreed that the Four Horns project improvements be
included in federal legislation which would ratify the Montana-
Blackfeet Water Compact, and that additional funding may be required to
mitigate impacts of development of the Birch Creek TWR after the
expiration of the Birch Creek Agreement. In the amendment to the Birch
Creek Agreement, both the state and the Blackfeet Tribe agreed to
support federal funding for this purpose.
Based upon the amendment to the Birch Creek Agreement, as set forth
above, PCCRC supported the Montana-Blackfeet Compact as the compact was
presented to the 2009 Montana legislature. PCCRC's support for the
compact was grounded upon the recognition by both the State of Montana
and the Blackfeet Tribe that development of the Birch Creek TWR would
at times adversely affect PCCRC's Birch Creek water supply, and that
the Four Horns Dam and Reservoir improvements and additional mitigation
funding were viable opportunities to mitigate impacts on PCCRC's Birch
Creek water supplies from development of the TWR. The 2009 Montana
Legislature passed the Montana-Blackfeet Compact, setting the stage for
this historic agreement to be presented to the United States Congress
for ratification.
S. 3290 contains provisions which recognize the necessity of
improving the Four Horns dam, reservoir, and delivery facilities so
that water stored in Four Horns may be delivered to PCCRC's water
system from Birch Creek. In addition, S. 3290 includes provisions which
authorize the establishment of a Birch Creek Mitigation Fund to be used
to mitigate impacts from development of the Birch Creek TWR on the
water supplies of PCCRC. These provisions contained within S. 3290 are
integral to the long-term success of the Montana-Blackfeet Tribe water
rights settlement and provide the necessary framework for a successful
compact which meets the needs of the State of Montana, the Blackfeet
Tribe, and the water users of PCCRC who depend upon Birch Creek water
supplies.
II. Background of the PCCRC Project and Rationale for S. 3290 Birch
Creek Mitigation Provisions
A. History of PCCRC and Use of Water by PCCRC Water Users
1. PCCRC History
The history of PCCRC and the associated development and use of the
PCCRC water supply dates back over 124 years. Water right
appropriations and the associated delivery systems of the present day
PCCRC were developed in accordance with various state and federal laws
designed to encourage irrigation and reclamation of the arid west for
agricultural purposes. In the early days of settlement, homesteaders
appropriated water from Birch Creek and Dupuyer Creek for irrigation
purposes on homestead lands, and public domain lands, at the behest and
encouragement of Congress. In fact, several of PCCRC`s water rights for
these sources pre-date Montana statehood.
In addition to water rights appropriated by settlers in the region
under the Homestead laws, PCCRC also has its origin grounded in a
substantial part under the federal Carey Land Act of 1894, wherein,
Congress authorized grants of public domain lands to certain western
states to encourage settlement and reclamation of those arid lands.
Although lands were granted to the states by the Federal Government
under the Carey Land Act, it was expected that private enterprise would
finance and develop the actual reclamation and associated water supply
and distribution systems associated with irrigation of the lands
provided to the states with ultimate disposition of the lands to the
settlers. PCCRC's development as a Carey Land Act project began in
about 1909. As part of the early development of the PCCRC water supply
system, the Federal Government assessed the available water supply from
Birch Creek for the project and deemed the water supply to be
sufficient to authorize development of the project under the Carey Land
Act. A major portion of PCCRC's irrigated acres and development of the
water storage and distribution supply serving these lands has as its
origin the development of the project under the federal Carey Land Act.
As mentioned above, under the Carey Land Act, both the Federal
Government and state of Montana assessed the water supply for the
project, and after confirming water supplies were sufficient,
encouraged PCCRC's predecessors to construct and finance much of the
water supply and distribution systems which serve PCCRC's shareholders
today. Under the auspices of both state and federal statutes,
corporations were established to construct the water supply systems
which eventually provided water to settlers who acquired lands served
by the project. PCCRC itself is the successor ``operating company'' to
it predecessor ``construction company'' which financed and developed
the system which serves irrigators and communities in the Valier and
Conrad areas of north central Montana.
As a result of the development of a major portion of the water
supply system under the terms of the Carey Land Act, PCCRC is owned and
controlled by shareholders of the Company who are the successors of the
original homesteaders and settlers who reclaimed arid lands using the
project water supply. PCCRC holds the water rights used by its
shareholders from Birch Creek, Dupuyer Creek, and other area sources
for the benefit of its water users. PCCRC also operates Swift Reservoir
on Birch Creek and Lake Frances near the town of Valier, the two major
storage reservoirs associated the project, as major components of the
Company's Birch Creek water delivery system. As also required under the
Carey Land Act, PCCRC's predecessors developed and constructed over 500
miles of canals and laterals to serve the acres irrigated by the
project.
As a result of development of the project under the Federal Carey
Land Act, PCCRC supplies water to approximately 450 shareholders for
agricultural purposes, as well as supplying the city of Conrad with its
municipal water supply. PCCRC is responsible for managing the water
supply and distribution works which supplies water to over 80,000 acres
of irrigated lands in the area. These 80,000 acres of irrigated lands
provide the foundation of the local and regional agricultural economy
of this area of Montana.
B. PCCRC Water Supply System
1. Birch Creek
Birch Creek provides PCCRC shareholders with approximately eighty-
five percent (85 percent) of the water used in the Company's storage
and distribution system. Near the headwaters of Birch Creek, PCCRC owns
and operates Swift Reservoir which was constructed in about 1912 and
reconstructed after a catastrophic flood in 1964 to store and regulate
a portion of the Company's water supply. The construction of Swift
Reservoir was done by PCCRC's predecessors as part of the Carey Land
Act obligations of the Company. Swift Reservoir can store over 30,000
acre-feet of Birch Creek water which the Company can regulate and
release from Birch Creek to the Company's main Birch Creek diversion
system, known as the ``B Canal.'' From Birch Creek, via the B Canal,
the Company diverts water to its main storage facility known as ``Lake
Frances'' situated near the town of Valier, Montana. Lake Frances has a
storage capacity of approximately 115,000 acre-feet and was constructed
in 1909, also as part of the Company's predecessors Carey Land Act
obligations. Lake Frances, in addition to being the project's main
storage and distribution reservoir, also serves as a popular recreation
site for anglers and recreationalists in this region of Montana.
2. Dupuyer Creek
Dupuyer Creek also serves as source of PCCRC's water supply which
is stored and distributed to its shareholders. Although an important
source of water, Dupuyer Creek supplies the Company with approximately
fifteen percent (15 percent) of PCCRC's water supply requirements,
substantially less than the Company's reliance on Birch Creek.
PCCRC holds several water rights for the waters of Dupuyer Creek
which are diverted from the creek via the Company's ``D Canal'' and
delivered to the distribution and storage system. Although Dupuyer
Creek is an important source of the Company's water supply, Birch
Creek, and water supplied by Birch Creek at the Company's B Canal
diversion, is the predominant source of supply for the users of the
PCCRC water supply system.
C. Historic Water Distribution from Birch Creek Supplies
In addition to PCCRC using water from Birch Creek, the Blackfeet
Irrigation Project (BIP) operated by the U.S. Bureau of Indian Affairs
(BIA), also diverts water from Birch Creek for irrigation purposes on
the Blackfeet Reservation. \1\ Pursuant to the decree in United States
v. Conrad Investment Co., 156 F. 123 (D. Mont. 1907), aff'd. 161 F. 829
(9th Cir. 1908), diversions from Birch Creek for the BIP have
historically varied from approximately 11 cubic feet per second
(``c.f.s.'') to 50 c.f.s. during the irrigation season, or as expressed
volumetrically, from approximately 1,495 AF to 7,450 AF/year, based on
available Company records.
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\1\ Establishment of the BIP by Congress occurred in 1907. See, 34
Stat. 1035-1036.
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In addition to use of Birch Creek water by the Blackfeet Tribe for
irrigation purposes, PCCRC has worked with the Tribe and allowed on
average approximately 6 c.f.s to flow past the B Canal diversion for
instream flow purposes. The volume of water associated with the 6
c.f.s. bypassing the B Canal on Birch Creek over the course of a year
results in approximately 4,380 AF/year of Birch Creek water for
instream use by the Tribe. Under the Montana-Blackfeet Compact, the
Blackfeet Tribe's water right on Birch Creek has been quantified at
levels that exceed historic demands of the Tribe for the water of Birch
Creek.
D. Birch Creek Tribal Water Right as Established in Montana-Blackfeet
Compact
1. Article III, Section C., Birch Creek Tribal Water Right
Under the Montana-Blackfeet Compact, the components of the Birch
Creek TWR may be summarized as follows: \2\
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\2\ As provided herein, the TWR is summarized for purposes of this
written testimony. Articles II, III, and IV of the Compact should be
reviewed together and in conjunction with the two (2) Birch Creek
agreements, in order to properly examine the extent and potential
effect of the Birch Creek TWR.
a. Irrigation--100 c.f.s. Direct Use water right of the natural
---------------------------------------------------------------------------
flow of Birch Creek for use in the Upper Birch Creek Drainage;
b. Instream Flow--a natural flow right in Birch Creek of 15
c.f.s. from October 1 to March 31; and 25 c.f.s. from April 1
to September 30 of each year;
c. Additional Flow Right--after satisfaction of all state-based
water rights, Tribe may divert or authorize use of all natural
flow in Birch Creek as measured at State Highway 358 bridge;
d. Groundwater Right--all groundwater not hydrologically
connected to Birch Creek;
e. Priority Date--October 17, 1855;
f. Period of Use--b., c., and d. above year round and a. above
April to October 1 of each year;
g. Points/Means of Diversion--as authorized by Tribal Water
Code;
h. Call Protection--other than rights from Birch Creek, all
other sources in Basin 41M protected from call for water under
the instream flow TWR;
i. Birch Creek Management Plan--TWR for irrigation also
governed by Birch Creek Management Plan Agreement; and
j. Commencement of Development--TWR for irrigation and instream
flow subject to Agreement on Birch Creek Water Use.
2. Impact of Birch Creek TWR on PCCRC Water Supply
Under the Montana-Blackfeet Compact, the TWR on Birch Creek does
not have a volumetric cap or limit. As such, the compact does not
establish a readily identifiable block of Birch Creek water from which
to assess firm impacts on the PCCRC Birch Creek supply. However, based
upon PCCRC water use records, and based upon the terms of the TWR as
set forth in the compact, and the ancillary agreements, estimates have
been presented by state and tribal representatives which calculate the
impact on PCCRC water supplies to be approximately 15,000 AF/year.
Assuming an average delivery of irrigation water by PCCRC to its
water users of 8 inches per acre, an impact of a loss of 15,000 AF/year
to PCCRC will affect 22,500 acres of irrigation within the PCCRC
project. Given this potential substantial impact on PCCRC water users
and acres served under the PCCRC project, PCCRC has actively
participated with state and tribal representatives in examining a
variety of mitigation measures in an attempt to lessen effects from
development of the compacted Birch Creek TWR and to achieve long-term
security for the Company's water supply.
Because PCCRC is a very efficient user of water for irrigation
purposes, PCCRC has been able to serve project shareholders and acres
under the project with water within the Company's historic diversion
and distribution patterns. However, any additional loss of water supply
as a result of development of the Birch Creek TWR could have serious
adverse effects on PCCRC's water users and the local and regional
economy.
E. Proposals to Mitigate Impacts of the Birch Creek TWR on PCCRC Water
Users
The State of Montana, the Blackfeet Tribe, and PCCRC have
identified various alternatives to help mitigate full development of
the proposed TWR on Birch Creek. These alternatives include proposals
for projects which would provide additional water to Birch Creek as
well as proposals for state-based water users to lease water from the
Blackfeet Tribe, or to otherwise mitigate a loss of Birch Creek water
supplies on the PCCRC project. S. 3290 includes important provisions in
this regard.
1. Blackfeet/Montana Agreement Regarding Birch Creek Water Use
Due to impacts of the Birch Creek TWR on PCCRC's Birch Creek water
supplies, the state and the Tribe have negotiated the ``Agreement on
Birch Creek Water Use'' as part of the TWR for Birch Creek. Under the
agreement, which is a collateral agreement to the compact, the Tribe
has agreed to defer any additional use of the negotiated TWR on Birch
Creek, over and above a set level of use for irrigation and instream
flow purposes, for a period of 15 years. In addition, the Tribe and the
state agreed that they would jointly seek federal funding authorization
in any federal legislation for the betterment and improvement of Four
Horns Dam and Reservoir on the Blackfeet Reservation, including
construction of facilities to deliver a minimum of 15,000 AF/year of
water from an enlarged Four Horns to PCCRC's Birch Creek water delivery
system. Under the Birch Creek Agreement, the Tribe has agreed to
deliver water from an improved Four Horns Dam and Reservoir to Birch
Creek for an additional ten-year period. As such, under the Birch Creek
Agreement, PCCRC's water supplies should remain relatively secure for
approximately 25 years.
2. Birch Creek Agreement Amendment
In February 2009, the state and the Blackfeet Tribe amended the
Birch Creek Agreement. The amendment was largely a result of concerns
expressed by PCCRC that the long-term security of the Company's Birch
Creek water supply was placed at risk. Under the February 2009
amendment, the state and the Tribe agreed that mitigation of impacts of
development of the Birch Creek TWR is necessary to avoid adverse
effects to PCCRC's water supply and that those impacts can be mitigated
by improvements to the Four Horns Project situated on the Blackfeet
Indian Reservation. Under the amendment, the state and Tribe agreed
that improvements to the Four Horns Project would be included in the
federal legislation and further agreed that additional funding would be
required to mitigate impacts of development of the Birch Creek TWR
beyond the 25-year term set forth in the Birch Creek Agreement. Both
the state and Tribe agreed to support federal funding for this purpose.
As a result of the Birch Creek Agreement and the amendment to the
Birch Creek Agreement, PCCRC supported passage of the Montana-Blackfeet
Compact by the 2009 Montana Legislature. Based upon these agreements
and upon inclusion of provisions within S. 3290 that recognize
mitigation for Birch Creek, PCCRC has supported introduction of this
important federal legislation.
3. Provisions of S. 3290 to Mitigate Development of the TWR
S. 3290 includes important provisions to implement the mitigation
measures contemplated by the Birch Creek Agreement and amendment.
Provisions included within S. 3290 addressing the need to fully develop
the Four Horns Dam and Reservoir; to construct facilities to deliver
not less than 15,000 acre-feet of water per year for delivery to
PCCRC's water delivery system under the Birch Creek Agreement; the
ability to lease water from an improved Four Horns Dam and Reservoir
system; and the establishment of a Birch Creek mitigation fund are all
provisions of the federal legislation which are necessary to achieve
mitigation of impacts on PCCRC's water supply associated with the
development of the Birch Creek TWR. See, Sections 5 and 11, S. 3290.
PCCRC believes these provisions of S. 3290 are critical to the long-
term success of the Compact and its ancillary agreements. PCCRC
believes these provisions provide the necessary framework for the
historic agreements made by the State of Montana and the Blackfeet
Tribe to be successful for both Tribal and non-tribal water users on
Birch Creek.
PCCRC believes the mitigation provisions of S. 3290 for Birch Creek
are essential to the long-term success of the Compact. While PCCRC
understands certain aspects of mitigation and the provisions in this
regard in S. 3290 may need further refinement, PCCRC believes
mitigation provisions will assure the development of beneficial
improvements for Four Horns Dam and Reservoir, as well as securing the
benefits of these improvements for the Blackfeet Tribe. PCCRC also
believes the mitigation provisions of S. 3290 are important to avoid
unnecessary adverse effects on PCCRC's water supplies on Birch Creek
associated with development of the Birch Creek TWR. By securing a long-
term solution to water supplies on Birch Creek, S. 3290 will assure
that the Blackfeet Tribe benefits from implementation of the Montana-
Blackfeet Compact and that PCCRC's water users will continue to have
access to necessary water supplies upon which the project was
historically developed.
III. Conclusion
PCCRC commends the hard work of all involved with the complexities
of the Montana-Blackfeet Compact. PCCRC remains committed to continue
working with the State of Montana, the Blackfeet Tribe, and the
Administration in securing federal legislation to ratify the compact
and the ancillary agreements on Birch Creek. PCCRC is ready to address
any concerns which may be identified with the federal legislation in an
effort to assure the successful implementation of the compact for all
water users on Birch Creek.
On behalf of PCCRC, we thank the Committee and the Committee's
staff for the opportunity to provide PCCRC's view of S. 3290 and look
forward to continued input on this important legislation.
Senator Tester. I want to thank you for being here, too,
John. I appreciate the testimony of all three of you. It is
unfortunate Tracy could not make it, Tracy King, President of
the Fort Belknap. We will encourage him to get that written
testimony in, so it can all be a part of the record.
I also want to recognize Rusty Tatsey and Jay St. Goddard,
and Jeannie Whiting for being here from the Tribe. We very much
appreciate you guys making the trip also.
I am going to start with Shannon. I have a few questions
for you. The Blackfeet Tribe, is their support for the bill
solid? Is it weak? Are there concerns? Give me an idea of the
lay of the land as far as support for this bill in Blackfeet
Country.
Mr. Augare. The Blackfeet Tribe, I believe, needs to have
an understanding of what State and Federal Government is
proposing to them. The State of Montana has already pulled
together their appropriations package. We are waiting on
Federal Government to act so we can take a vote of the people.
So we are waiting on your work, Senator.
Senator Tester. So there needs to be an education process?
Mr. Augare. Right.
Senator Tester. Assuming we get this bill through sooner
rather than later, do you have a plan to educate folks on what
this bill does?
Mr. Augare. We have begun a discussion around what a media
market campaign might look like. But again, we are waiting for
the final package that Federal Government will produce.
Senator Tester. Okay. On Fort Belknap, it was touched on a
bit by Jay, I have been told that there are some concerns
there. Are you aware of the concerns? Do you feel as solid as
Jay does about the fact that you think there is very, very
little chance of it becoming a problem?
Mr. Augare. Good question. We have been committed to the
idea of holding open dialogues with the Fort Belknap Tribal
Business Council. We remain committed to that open dialogue. We
do want to address their concerns. So we are very openly
engaged about that process with them.
Senator Tester. Has dialogue occurred up to now?
Mr. Augare. Yes, I believe so. Yes. And there is a
provision in the bill that allows for further discussions to
occur. So their concerns are addressed in an appropriate
manner.
Senator Tester. A difficult question, too bad Tracy isn't
here, like I said. But he got waylaid in the flight. Is your
relationship good with them? Is there animosity there, or are
folks sympathetic to get the thing done?
Mr. Augare. I believe we all want to resolve our water
rights issues in an expeditious manner. From my understanding,
their water right compact has been in process since 2000. We
have completed ours in 2007. We look at our relationship with
the Fort Belknap community tribal business council as a
positive one. But we are not wanting to delay this action any
further. We want to complete the process.
Senator Tester. All right. The bill authorizes an
appropriation for the Blackfeet land and water development
fund. What kinds of projects do you envision occurring from
this fund?
Mr. Augare. We have a number of projects identified. We are
right now waiting for the DEC review to be completed. We will
be providing your office and other interested parties, of
course, with that report once it is issued.
Senator Tester. Okay, and my last question for you, how
does the Tribe feel about the mitigation measures that John
Bloomquist explained that the Pondera Canal Company is
proposing?
Mr. Augare. We remain supportive, so long as it, I will
emphasize repeatedly, does not delay our compact. We want to
meet an agreement soon. But we are supportive.
Senator Tester. Before I get to you, Jay, I see Senator
Baucus has entered the house. Did you have anything you would
like to say, Max?
Senator Baucus. At the appropriate time.
Senator Tester. We are asking questions, but you are busy.
Senator Baucus. We are all busy.
Senator Tester. Okay, good enough. We will keep going.
Jay, in other water compacts we have considered this year,
the Department of Interior was always concerned about non-
Federal cost share. Montana is contributing $35 million to this
process. Do you think that is fair?
Mr. Weiner. Senator Tester, $35 million is more than
Montana has ever been asked to contribute before. We
contributed $15 million to the Crow Settlement that this
Committee has heard. Thirty-five million dollars, we believe,
reflects the benefits that we have sought and that we believe
is a fair amount, yes.
Senator Tester. Good. Are there other things that they have
contributed or could contribute that are non-monetary?
Mr. Weiner. Certainly. The State has put extensive
resources over the two decades of negotiation into technical
analyses that will assist the Blackfeet Tribe as they develop
their water code to help both the Tribe and the State
understand the water resources on the Reservation. The State
has put significant technical resources into looking at water
use of the Bureau of Reclamation's Milk River project, which
diverts almost the entire United States share of the St. Mary
River across the Blackfeet Reservation and down to Milk River
project lands, 200 miles off the Reservation. And the technical
work the State has done in relation to both the Blackfeet and
the Fort Belknap settlements we believe are of significant
value directly to the United States in their operation of their
Milk River project.
Senator Tester. Okay. Mitigation measures that the Pondera
Canal Company is providing, does Montana support those?
Mr. Weiner. Montana has the same position as the Blackfeet
Tribe, which is that we do support Pondera's request, but we
would like this bill to move as soon as possible.
Senator Tester. Okay. When you started your testimony, you
said this has been going on for about half your life. You have
been in the business of water for a while. Are you aware of the
Federal Government providing any similar mitigation funds,
mitigation measures, for non-Indian water users off-
reservation?
Mr. Weiner. I am not familiar with the Federal Government
providing funds directly to a private irrigation company, but I
am certainly familiar with the Federal Government working with
non-Indians off the reservation both in and outside of Bureau
of Reclamation projects.
Senator Tester. Thank you. Thank you for your testimony and
your answers.
John, once again, good to have you here. The Pondera Canal
Company, what is their support on this bill?
Mr. Bloomquist. Senator, thank you again for the invitation
as well. Our support for the bill, we certainly supported the
introduction of the bill and movement of the bill with
mitigation. We view the mitigation as a necessary component of
a successful compact. That mitigation, taking the two forms
that are presented in the bill, which is the improvement,
development of the Four Horns project, which we believe
provides the necessary mitigation water to offset impacts of
development of the tribal water right on Birch Creek, and two,
the mitigation fund, which provides long-term security. Those
two components, we believe, are necessary for a successful
compact, and we support the bill wholeheartedly with those.
As far as the mitigation fund goes, and I understand their
issues, perhaps the Administration or Interior on that fund, we
plan on meeting with them later today to start to identify some
of those issues. But again, we believe that Federal monies here
are appropriate, given the underlying Federal policies that are
involved here. I think actually Senator Dorgan hit it on the
head during the last bill when he talked about these very old
conflicts and settlements that have languished for years and
years and years. In this era of water rights settlements, or to
achieve these water rights settlements in this era, we are
going to have to have the necessary tools. Mitigation is not
only in this compact a critical tool, but in others as well,
and I think will be a necessary tool.
So we are supportive of this measure. We need the
mitigation to be in place, both the wet water, if you will, and
the fund.
Senator Tester. I just want to refresh my memory on some
things that you brought up in your testimony. Swift Dam and
Lake Frances, do they supply the irrigators with water at this
point in time, the irrigation district with water? They do?
Mr. Bloomquist. Yes, Senator. Swift, just for edification,
Swift Dam is a storage reservoir on Birch Creek in the
headwaters area, which is a regulating reservoir, developed in
about 1912 with construction of the project. Lake Frances is
the primary storage reservoir offstream from Birch Creek and
stores about 112,000 acre feet. Those are linked to the entire
system.
Senator Tester. So those two, just help me out with this,
John, those two supply 80 percent of the water supply for the
irrigated land?
Mr. Bloomquist. Senator Tester, Birch Creek supplies
approximately 85 percent of the water for the project.
Senator Tester. Where does the other 15 percent come from?
Mr. Bloomquist. We have some from Dupuyer Creek, which is
just south, and then a very small amount from the Dry Fork,
Marias River.
Senator Tester. And also for my memory, the Four Horns
Reservoir, its renovation will come out of the State dollars?
Mr. Bloomquist. The renovation of Four Horns, the State has
contributed $20 million, pledged $20 million to mitigation of
the Four Horns project. The balance is going to be necessary
from this legislation.
Senator Tester. The compact just went through the State
legislature in 2009. I will assume that you were a part of that
discussion? Was there support from the Canal company?
Mr. Bloomquist. Senator Tester, we did support the bill and
the passage of the compact in the Montana legislature. And that
support came as a result of the state and the Tribe putting an
amendment to the Birch Creek agreement, which we felt gave the
commitments to long-term mitigation as well as seeking Federal
monies for that purpose.
Senator Tester. And you had said earlier you are going to
meet with Interior tomorrow?
Mr. Bloomquist. Today actually. This afternoon we have our
first meeting.
Senator Tester. We would love to know how those discussions
go, as you move forward. I am sure that you all will probably
be a part of that.
Thank you all. I appreciate your testimony, appreciate your
answers, your questions.
Senator Baucus, if you would like.
STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM MONTANA
Senator Baucus. Thank you very much, Mr. Chairman, Senator
Tester, John.
It is good to see other friends here, Councilman Augare,
Jay Weiner and John Bloomquist. Good to see you all here too.
This is a good testament of our working together to pass this
legislation.
Just to review, this Act ratifies the water rights compact
with the Blackfeet Nation. The legislation will bring clean
water to reservation families, support tribal agriculture and
provide long-term economic development. When the United States
and the Blackfeet people signed a treaty 150 years ago, the
Blackfeet Reservation was on a tract of land the size of the
State of Delaware abutting Glacier National Park and the
Canadian border. Over 100 years ago, the U.S. Supreme Court
ruled that such treaties imply a commitment, a commitment to
reserve sufficient water to satisfy both present and future
needs of a tribe.
This legislation is a product of over 10 years of
negotiation between diverse groups of users in the area. The
State of Montana legislature has already appropriated $19
million in support of its work to implement the compact to
satisfy that Supreme Court ruling, obligation that our Country
has to the tribes.
As you can see from our witnesses at the table, and I can
tell from the questions you asked and the answers given, the
parties are dedicated to working together. And we all very much
appreciate that.
And also working with the Committee to move this water
compact through Congress. I very much look forward to working
with the whole group here. We are close. Let's get it passed. A
little wrinkle left, but we are all on the same track. It is
just a matter of getting this wrinkle out so we can get this
done to the mutual satisfaction of everyone here. I think we
can. We have an obligation to do that, now that we are so
close. I just want to thank everybody very much for the effort
that they have undertaken, especially you, Mr. Chairman, all
your efforts to help get this put together.
Senator Tester. Thank you, Senator Baucus. I would be
remiss if I didn't say thank you for your leadership on a
number of things, including this. We very, very much appreciate
it. And thanks for taking time out of your schedule to come in
and talk about this important piece of legislation.
Senator Baucus. You bet. It really makes a difference.
Seeing is believing. We all go out there and look at the leaks
and the problems, how important water is down the road for a
lot of different people. It just underlines the urgency that we
pass this very quickly.
Senator Tester. Well, I want to repeat, thank you, thank
you to the folks who testified today. I very much appreciate
your coming today. It made this hearing possible. I want to
thank the members of the Council for coming up today, too, I
very much appreciate Rusty and Jay for you guys coming up, and
Jeannie.
With that, we will adjourn. Thank you all.
[Whereupon, at 11:37 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Tracy King, President, Fort Belknap Community
Council
I am the President of the Fort Belknap Community Council and as a
representative of the Fort Belknap Indian Community Council, I would
like to present this statement on behalf of the six thousand plus
members of the Gros Ventre and Assiniboine Tribes of the Fort Belknap
Indian Community. The Fort Belknap Indian Community (FBIC) has serious
concerns about the current form of the proposed Blackfeet Water Rights
Settlement Act of 2010 (``Act'' or ``Settlement Act'') and the
potential adverse impacts suffered by FBIC should the Blackfeet Tribe
fully exercise the water rights purportedly acknowledged in the
Settlement Act. While FBIC acknowledges that the Blackfeet Tribe does
possess water rights, FBIC challenges the amount of those water rights
set forth in the Settlement Act. Although disappointed with the
Blackfeet Settlement Act, FBIC remains committed to cooperative
discussions with all interested parties, including the Blackfeet Tribe,
the State of Montana, and the United States, to collectively resolve
areas of disagreement and mitigate negative impacts caused by
exercising Settlement Act rights of the Tribes.
FBIC recognizes that the Blackfeet Tribe is entitled to water
rights, and specifically rights in the Milk River. In fact, the
Blackfeet Tribe's entitlement to such rights derives from the same
treaty of October 17, 1855, that reserved water rights in the Milk
River for FBIC. Accordingly, these reserved rights of the Blackfeet
Tribe and FBIC are of equal priority.
The proposed Blackfeet Settlement Act takes the position that the
Blackfeet Tribe has a superior claim to these water rights to the
detriment of FBIC. This false assumption appears to be the basis for
granting all the natural flow of the Milk River above the Western
Crossing without regard for the water rights granted to the FBIC in our
Water Compact. Rather than a shared priority as provided in the
recognized treaty, the Settlement Act describes the Blackfeet Tribe's
right to be senior in priority, and if fully executed, would deprive
FBIC of the full benefit of its recognized water rights.
Unlike the proposed Blackfeet Settlement Act, the FBIC Compact
recognizes the shared interest and expressly provides for a mechanism
to allow for consideration of the water needs of the Blackfeet Tribe.
This provision authorizes a process by which the two tribes can reach a
compromised settlement on the allocation of their water rights to the
Milk River, and to account for such a settlement in future operations
of the Milk River. This provision of the FBIC Compact that allows for
the incorporation of an agreement with the Blackfeet Tribe and was
negotiated with the understanding that the Blackfeet's claim to water
would be based upon a reasonable calculation of the Tribe's needs as
determined by their amount of practicably irrigable acreage (PIA)
within the Milk River on trust lands above the Western Crossing. To say
that the United States and FBIC had agreed to give the Blackfeet Tribe
all of the natural flow to the Milk River within the Blackfeet
Reservation at the time the FBIC Compact had been negotiated is
unreasonable and totally without merit.
This cooperative measure does not subordinate FBIC's water rights,
nor does it mandate FBIC to compromise its fundamental rights. It is
simply a confirmation of FBIC's desire to work amicably with the Bureau
of Indian Affairs to resolve conflicts that may develop as each Tribe
exercises their mutually shared water rights. Importantly, this
provision is in no way an acknowledgement that the Blackfeet Tribe
possesses a superior right to FBIC, which is a position that FBIC
strongly refutes and rejects.
Because of the shared right and equal priority, FBIC further
challenges the quantity of water and the appropriate measure for
determining the quantity of water that should be made available to the
Blackfeet Tribe. With equal priority, one Tribe could potentially only
acquire a larger quantity of water than the other Tribe based on
demonstrating a higher amount of practicably irrigable acreage, or upon
a court's decree allocating more water to a specific tribe. However,
given limitations on the amount of tribal and allotted irrigable lands
on the Milk River within the Blackfeet reservation, it is not at all
clear that the Blackfeet Tribe would successfully be able to claim all
of the natural flow of the Milk River and as a result some of the
natural flow would remain available for use by the FBIC to meet their
water needs and rights.
Significantly, the Blackfeet Settlement Act seeks to preserve a set
amount of water for the Blackfeet Tribe based on a standard of
quantification that is quite different from the standard utilized to
quantify FBIC's water rights. The proposed Settlement Act claims all
the natural flow and merely agrees to hold existing State water users
harmless. FBIC is unaware of any justification for the sweeping extent
of this water claim. It is the opinion of our water use experts,
Natural Resources Consulting Engineers, Inc. (NRCE), that the Blackfeet
Tribe's true claim to water in the Milk River is extremely limited
because of limited amounts of PIA lands and the short growing seasons
that would make irrigation not feasible.
Unlike the FBIC Compact, the proposed Blackfeet Settlement Act
incorporates non-agriculture water use in the quantification of the
Blackfeet Tribe's water rights. The potential impacts on FBIC's water
supply are significant in that the Blackfeet Settlement Act seems to
indicate that the Blackfeet Tribe is claiming their right to water
based on quantification that does not involve agricultural uses as
required under ``reserved rights doctrine'' that serves as a basis for
Indian Water Rights. The use of another standard becomes problematic in
that it disrupts the rights under the FBIC Compact, where rights to
water have been quantified utilizing agriculture water use and the PIA
standard.
FBIC's water rights claim has been quantified based primarily on
agricultural water uses and FBIC expects that the proposed Blackfeet
Settlement Act would do likewise. Analyses of past Blackfeet Tribe
irrigation-based claims had shown that the potential impacts to FBIC
were less than under the presently proposed Blackfeet Settlement Act.
Based on what was understood with the previously anticipated smaller
impacts, FBIC had been willing to reach a compromised settlement to the
previously proposed Blackfeet Tribe water claims based on PIA Standard.
The Blackfeet Settlement Act, as currently proposed, is not based
on any specific type of water use, agricultural or otherwise. Instead,
the current proposed Settlement Act attempts to lay a senior claim to
virtually the entire U.S. share of the natural flow of the Milk River
basin within the Blackfeet Reservation. Furthermore, the proposed
Settlement Act allows use of the water for any purpose any time of the
year. FBIC could no longer count on agricultural return flows or on any
other practical limitations to the Blackfeet Tribe's use of the natural
flow of the Milk River located within the Blackfeet Reservation.
Under a worst case scenario, if the Blackfeet Tribe was to fully
consume its claimed Milk River water right, denying the availability of
this water to any other parties in the Milk River system, significant
impacts will occur with regard to FBIC's water supply in some years.
The average annual impact would be approximately 9 percent. However,
this impact is variable; in many years, it would be zero, and in the
worst 10 percent of all years, it would average about 39 percent, a
severe impact on FBIC's water right.
Moreover, NRCE also concludes that the quantity specified in the
proposed Settlement Act would have a significant impact on the Milk
River Project as well as the FBIC water right. All other existing Milk
River users, including the Milk River Project, would be impacted by the
proposed Settlement Act. NRCE's technical analysis concluded that the
impact on the Milk River Project would average 13,600 acre-feet per
year. Additionally, during the 10 percent of years in which the impacts
are most severe, the average impact would be 54,500 acre-feet per year.
The full extent of these consequential harms and impacts that would
result from the exercise of the Blackfeet Tribe's water right as set
forth in the proposed Settlement Act must be fully considered. While
such impacts may be negligible in the St. Mary River basin, the impacts
are much more severe in the Milk River basin.
It is recognized that it may not be feasible or practical now or in
the near future for these impacts to physically materialize. However,
should the proposed Settlement Act come into effect, the mere presence
of such a large-scale Blackfeet water right to Milk River flows would
be a continuing cause for concern to FBIC. The Fort Belknap Indian
Community is therefore seeking to have their rights protected by
limiting the Blackfeet Tribes use of water in the Milk River to an
amount that could be claimed under the PIA standard and other domestic
agricultural uses.
Compounding the problem of the adverse impact that would be
sustained by FBIC is the fact that with water settlements negotiated
through compacts, federal legislation is required for implementation.
Any subsequent issue that may arise with a provision set forth in the
underlying compact itself becomes very difficult to correct because any
corrections would also require amending a federal statute.
Here, FBIC's agreement to include a provision in our Compact to
accommodate the Blackfeet Tribe's right to water in the Milk River
becomes even more disadvantageous to FBIC's interest in that the
Compact negotiations with the Blackfeet Tribe did not apply the same
PIA standard for quantifying the Blackfeet Tribe's water right. Once
the Settlement Act has been approved by Congress, any subsequent
amendment or additional provision needed to address an unresolved issue
with the Blackfeet Settlement Act would require going back to Congress
and seeking amending legislation, which would be a very costly and a
time consuming process for the FBIC. Therefore, it is incumbent upon
all the parties to work diligently to resolve the impacts caused by the
proposed Blackfeet Settlement Act on the water rights confirmed to the
FBIC in their Compact.
These issues cause a potentially disrupting and limiting impact on
the FBIC's water projects and uses, which are based on the use of water
for agriculture and other purposes. The FBIC wishes to resolve these
issues with the Blackfeet Tribe in order to further the water rights
settlement negotiations between the United States, the FBIC and the
State of Montana so that their respective Compacts can become
effective.
While this is an issue of heightened concern for the FBIC, what is
equally concerning is the response of the Montana Reserved Water Rights
Compact Commission in addressing this issue. In response to our request
that the Commission assist the Tribes in formulating a resolution of
this matter, we were advised that the Commission would not intervene or
assume an active role in effectively resolving a dispute that was
characterized as ``a fight between the two tribes.'' This is not an
``Indian vs. Indian'' issue, rather, it is a dispute that has come to
develop as a direct consequence of the Compact Commission's erroneous
assumption that the water rights of the Blackfeet Tribe are senior in
priority to FBIC and an incorrect quantification standard being applied
to Blackfeet Tribe's water right causing a substantial allocation over
and above what is properly deserved under the PIA standard.
The Tribe feels that under these circumstances, this issue can
hardly be characterized as an inter-tribal dispute, and that the State
Compact Commission, in light of its governing mandate, cannot so easily
discount its role and obligation to resolve this matter. It is FBIC's
position that the Compact Commission has both a legal and an ethical
obligation to affirmatively seek a compromised solution that protects
the interests of all affected parties. This is evidenced by the
Commission's governing mandate. The Reserved Water Rights Compact
Commission was established by the Montana legislature to conclude
compacts for the equitable division and apportionment of waters between
the State and its people and the several Indian Tribes claiming
reserved water rights within the state. The mandate of the Compact
Commission is to settle water rights disputes within the state, not to
create new ones. Any determination of reserved water rights on the
Blackfeet Reservation necessarily requires the Montana Reserved Water
Rights Compact Commission to reach an understanding with the FBIC where
such a determination directly impacts the rights of FBIC or its
members. By authorizing a tribal compact that wholly undermines the
very basis of another Tribe's previously negotiated water rights, the
Commission will have acted in violation of the terms and provisions of
its governing mandate. We request that Congress take affirmative steps
to ensure that the rights that have been negotiated on behalf of FBIC
as set forth in the FBIC Compact are not eclipsed by the terms of
another Tribe's Settlement Act.
FBIC does desire to reach a compromised solution with the Blackfeet
Tribe to be incorporated into a modified Compact that accommodates the
interests of both Tribes, the State of Montana, and the United States
as trustee, and better clarifies future tribal operations so as to
avoid future litigation that would potentially jeopardize the interests
of all affected parties.
We propose that the following language be added to the proposed
Blackfeet Settlement Act:
Article IIISec. F
Sec. 7. Mitigation of Impacts
In the unlikely event that the water right conferred upon the
Blackfeet Tribe in basin 40 F impacts the water rights of the
Fort Belknap Indian Community, then such impacts will be
mitigated out of Project Water from the Milk River Project.
Our proposal represents the best efforts of FBIC to resolve the
potential problems that are likely to occur in the future between FBIC
and the Blackfeet Tribe in the development and implementation of our
equal water rights claims. The proposal was written under the
assumption that the problem at hand is not only FBIC's problem, but
rather is a problem that directly impacts each of the four major
parties involved, and consequently, is a problem that should be solved
by all the parties, including the Blackfeet Tribe, FBIC, the United
States, and the State of Montana.
We recognize that that the interests of the two Tribes in this
matter certainly are not diametrically opposed and that a workable
solution to this issue can be reached. However, it should be noted that
unless significant revisions to the terms of the Settlement Act are
instituted, FBIC will continue our objections to the passage of the
Settlement Act. The FBIC's objection would be based on the fact that
while the proposed Settlement Act allows for the full and final
settlement of the federal reserved water rights on the Blackfeet Indian
Reservation, it dramatically impacts and limits the same rights on the
Fort Belknap Reservation in the process. It should be pointed out that
under the terms of the Montana Code relating to the water settlement
process, no compact is effective and binding unless it is approved and
ratified by ``any affected tribal governing body,'' and that because
the interests and rights of FBIC would be adversely effected by the
implementation of the proposed Settlement Act, FBIC would refuse to
approve it in its current form.
FBIC believes it is necessary that the Blackfeet Settlement Act
seek to balance an equitable recognition of the Blackfeet's rights with
sufficient protections for water users at Fort Belknap who have an
equal recognized claim. Any determination of a federal reserved water
right on the Blackfeet Reservation necessarily requires the Montana
Reserved Water Rights Compact Commission to reach an understanding with
FBIC where such a determination directly impacts the rights of the
Tribe or tribal members. We believe that it is of paramount importance
that the State assist the Tribes and work collaboratively with them in
seeking solutions to this complex problem, especially as the only
alternative is to litigate this matter in court, an outcome that would
obviously be disadvantageous to the interests of all affected parties.
Thank you for your consideration of this matter.
Attachment
______
Prepared Statement of The Blackfeet Tribe
The Blackfeet Tribe is a sovereign Indian Nation residing on the
Blackfeet Indian Reservation in Montana and exercising jurisdiction and
regulatory control within the Reservation. Water is the most critical
resource issue for the Tribe today. It is vital to the treaty promise
of a permanent self-sustaining homeland for the Blackfeet people.
The Blackfeet Reservation
The Blackfeet Reservation was formally established by Treaty with
the United States on October 17, 1855 (11 Stat. 657). Located along the
eastern slopes of the Rocky Mountains, the Reservation is bordered on
the north by Canada and on the west by Glacier National Park and Lewis
and Clark National Forest. Birch Creek forms the southern border, and
the eastern border is partially formed by Cut Bank Creek and Birch
Creek as they merge to form the Marias River. The Rocky Mountains, and
the streams and rivers that flow from the mountains, have long been one
of the most culturally and religiously significant area to the
Blackfeet People, and they are a critical part of the oral history and
cultural and religious customs of the Tribe.
The present reservation is only a small part of the historical
aboriginal territory of the Blackfeet Tribe that encompassed much of
the present State of Montana, and a large area north into Canada. It
was gradually reduced to the present 1.5 million acres through various
executive orders, an act of Congress, and two congressionally ratified
agreements in 1888 and 1895. The Reservation was allotted in 1907 (34
Stat. 1035) and 1919 (41 Stat. 3). The current land ownership is
approximately 65 percent Indian and 35 percent non-Indian. The Tribe
has an active land acquisition program, and the amount of Indian lands
increases regularly.
Oil and gas, timber resources, and grazing make up a significant
portion of the Tribe's revenue base. The Tribe also has a Class II
gaming casino in Browning, and operates several other smaller
enterprises.
There are 16,000 enrolled members of the Blackfeet Tribe, about
half of whom reside on the Reservation. The Tribe is the largest
employer, and unemployment ranges as high as 67 percent or more.
Ranching and irrigation are the mainstay of the Reservation economy,
and the BIA's Blackfeet Irrigation Project is a critical part of the
ranching/irrigation economy.
Water Resources
Several drainages are encompassed within the Reservation. To the
west, the St. Mary's River originates near the Glacier Park/Reservation
border, flows north onto the Reservation and then directly north into
Canada. The Milk River originates on the Reservation as the North Fork,
South Fork and Middle Fork. The Middle Fork and South Fork merge to
form the Milk River proper which flows northeasterly through the
Reservation into Canada and then back into the United States at the
eastern crossing near Havre, Montana. Cut Bank, Two Medicine, and
Badger and Birch all flow easterly through the Reservation and into the
Marias River at the eastern boundary of the Reservation. Birch Creek is
the southern boundary of the Reservation.
The average annual water supply on the Reservation is nearly 1.5
million acre feet. A significant portion of the water supply is in the
St. Mary River (663,800 acre-feet average annual flow). The estimated
average annual flow for all other streams is: Milk River--76,100 acre-
feet; Cut Bank Creek--137,300 acre-feet; Two Medicine River and Badger
Creek--431,400 acre-feet and Birch Creek--129,100 acre-feet.
Water Rights Negotiations
The Tribe's water rights were the subject of negotiations among the
Tribe, the Montana Reserved Water Rights Compact Commission and a
Federal Negotiation Team for well over a decade. In December 2007, the
Tribe and the State reached a final compact quantifying the Tribe's
water rights basin by basin and addressing issues relating to
administration and water marketing. The Compact also provides for an
allocation of water from the Bureau of Reclamation Lake Elwell (Tiber
Dam) downstream from the Reservation on the Marias River, as part of
the Tribe's water right. \1\ Of critical importance to the Tribe is the
50,000 acre foot allocation of St. Mary River water which must be
provided from newly developed St. Mary water or Milk River Project
water to be made available through administration of the Milk River
Project.
---------------------------------------------------------------------------
\1\ All but a small part of the water impounded in Lake Elwell
flows from the Blackfeet Reservation.
---------------------------------------------------------------------------
The Tribe and the State also entered into an agreement relating to
Birch Creek, by which the Tribe will defer additional use of Birch
Creek water for fifteen years, and then will provide water to non-
Indian Birch Creek water users from an enlarged Four Horns Reservoir,
one of the storage facilities of the Blackfeet Irrigation Project. The
agreement is conditioned on congressional approval of the Compact,
funding for the enlargement, and necessary federal authorization.
Water Related Claims Against the United States
As part of a final settlement of its water rights, the Tribe
expects to resolve its water related claims against the United States.
With settlement funding, the Tribe will be seeking to rehabilitate and
better the Blackfeet Irrigation Project, to construct critical water
storage projects, a regional water system serving Reservation
communities, and other water related projects. The Tribe will also be
seeking a resolution of the environmental damages and problems caused
by the Milk River Project facilities through mitigation and
environmental restoration projects, and to resolve right of way issues
relating to the project.
These projects and other funding are justified by the Tribe's
claims against the Federal Government which include, among others:
1) the failure of the United States to protect Blackfeet water
rights in the negotiation and completion of the 1909 Boundary
Water Treaty with Great Britain allocating the St. Mary and
Milk River between the United State and Canada;
2) the failure of the United States to protect Blackfeet water
rights or to provide any benefits to Blackfeet in the 1902
authorization and construction of the Bureau of Reclamation
Milk River Project;
3) the failure of the United States to mitigate or repair the
physical and environmental damages caused by the St. Mary
diversion facilities utilized to divert water off the
Reservation for the Milk River Project;
4) the failure of the United States to properly maintain rights
of way for the St. Mary diversion facilities, and the Project's
continuing use of land relinquished to the Tribe from the
original land withdrawal for the St. Mary diversion facilities;
5) the failure of the United States to protect Blackfeet water
rights against the establishment and utilization of state water
rights by non-Indians on the Reservation, which state rights
utilize a majority of the available water in Milk River, Cut
Bank Creek and Birch Creek;
6) the failure of the United States to complete and properly
operate and maintain the BIA Blackfeet Irrigation Project;
7) the failure of the Department of the Interior to provide
additional storage to the Tribe in fulfillment of the Tribe's
agreement to build a smaller Two Medicine Dam after it failed
in the 1960's, no part of which would extend into Glacier
National Park; and
8) other water related claims.
Claims Relating to the 1909 Boundary Water Treaty
The 1909 Boundary Waters Treaty allocates the St. Mary River and
the Milk River between the United States and Canada. The Treaty was
concluded only a year after the seminal Supreme Court's decision in
Winters v. United States that first defined the federal reserved water
rights doctrine applicable to Indian tribes. Notwithstanding that the
Winters case involved the Milk River, one of the two streams allocated
under the Boundary Waters Treaty, Blackfeet water rights are not
mentioned and were not taken into consideration in the 1909 Treaty. \2\
---------------------------------------------------------------------------
\2\ A similar case involving Birch Creek on the Blackfeet
Reservation had been filed by the same U.S. Attorney that filed the
Winters case was decided by the Ninth Circuit in the same year. Conrad
Investment Co. v. United States, 161 F. 829 (9th Cir. 1908).
---------------------------------------------------------------------------
Only a few years before the conclusion of the Boundary Water
Treaty, the Reclamation Service had identified a feasible Blackfeet
Reservation project on the eastern side of the Reservation of up to
100,000 acres utilizing St. Mary water. (Approximately 70,000 acres
were on the Reservation and 30,000 acres were off the Reservation.)
This was one of three alternatives for use of the United States' St.
Mary allocation identified and described in the Reclamation Services
Fourth Annual Report to Congress, House Doc. No. 86, 59th Cong., 1st
Sess. (1906) at 177-181. The other two projects were: (1) an All
American canal that would carry water to the downstream Milk River
water users in a canal traversing the Reservation and located entirely
within the United State; and (2) the project that finally was built and
exists today, diverting St. Mary's water into the Milk, through Canada,
and back to the United States for use by Milk River water users over a
hundred miles from the Blackfeet Reservation. The Reclamation Service
concluded that both the Reservation project and the downstream project
were feasible, but Reclamation chose to build a project serving only
non-Indian water users, thereby rejecting any benefit to the Blackfeet
Tribe in favor of the non-Indian project.
Based on the identification of a feasible irrigation project on the
Blackfeet Reservation by the Reclamation Service in 1906, the United
States was obligated to ensure that water for the Reservation project
was taken into consideration in the 1909 Boundary Waters Treaty,
particularly given the recent decision in the Winters case. Yet, the
United States failed to obtain an allocation of water in the Boundary
Waters Treaty to satisfy the Tribe's St. Mary Winters claim and the
Milk River Project.
Claims Relating to the Bureau of Reclamation Milk River Project
For nearly a hundred years, nearly the entire United States' share
of the St. Mary's River has been diverted off the Blackfeet Reservation
for use by the Bureau of Reclamation's Milk River Project. Water is
stored at Lake Sherburne on the Reservation and is diverted trans-basin
through a 29 mile canal on the Reservation that discharges into the
North Fork of the Milk River. The canal includes two sets of large
siphons, and a series of five large concrete drop structures near the
lower end of the canal. Upon discharge into the Milk River, the River
flows through Canada for 216 miles before it returns to the United
States and is stored in Fresno Reservoir northwest of Havre for use by
the Milk River Project.
The Milk River Project was authorized in 1902 as one of the first
projects under the 1902 Reclamation Act. In large part, the Milk River
Project was used to justify the United States share of St. Mary River
and the Milk River under the 1909 Boundary Waters Treaty. The Treaty
served as the final go ahead for the Milk River Project, and
construction of the Project was begun immediately upon completion of
the Treaty. The Blackfeet Tribe has significant claims relating to
construction of the project.
Water Rights Claims
The St. Mary River arises near the western boundary of the
Reservation and flows only on the Reservation. The River flows directly
from the Reservation into Canada where it becomes part of the Hudson
Bay drainage. The Blackfeet Tribe is the sole entity with a clear and
direct right to St. Mary's water. As set forth above, at least as of
1906, the Tribe had an identified Winters right to sufficient water to
feasibly irrigate 70,000 acres of Reservation lands. Nevertheless, the
Blackfeet Tribe's water rights were completely ignored in the
authorization and construction of the Milk River Project. The Milk
River Project utilizes nearly the entire U.S. allocation of St. Mary
water through the elaborate trans-basin diversion that diverts St. Mary
water into the Milk River, carrying it downstream for use by the
Project. For over a hundred years, the United States has directly taken
and used Blackfeet water for use by the Milk River Project, leaving no
available water in the St. Mary River to fulfill the water rights of
the Tribe, representing a permanent loss of water to the Blackfeet
Tribe. The Boundary Waters Treaty and the Milk River Project have
directly facilitated the taking of Blackfeet water and have deprived
the Tribe and its members of water that would otherwise be used on the
Reservation for the benefit of the Blackfeet Tribe.
Failure to Provide Project Benefits to the Blackfeet Tribe
Since the completion of the Milk River Project in 1917, as much of
the United States share of St. Mary's as possible has been diverted
from the Reservation for use by the Milk River Project users. The Tribe
has not been able to use one drop of the water, and to this day, the
Tribe has not benefitted in any manner from the Project,
notwithstanding the use of tribal water and Reservation lands by the
Project.
The lack of benefit to the Tribe and its members is directly
contrary to promises made to the Tribe in exchange for the right of way
for Project diversion facilities and canal. As part of the 1895
Agreement between Tribe and the United States, ratified by Congress in
the Act of June 10, 1896, 29 Stat. 321, 353, by which the Tribe, under
significant pressure, ceded its western lands that are now part of
Glacier National Park and Lewis and Clark National Forest, the Tribe
was asked to provide a right of way for the Milk River Project canal
and facilities on the clear representation that the Project would bring
water to Reservation lands. Article VII of the 1895 Agreement provides
that a right of way shall be granted for, among other things, canals
and irrigating ditches through the Reservation.
As documented in the transcript of the negotiations of the 1895
Agreement, the provision of the right of way was based on the
representation that the Tribe would benefit from the Project. As stated
to the Tribe:
In case the Government sees fit to build ditches or canals
across the reservation men will be employed and paid the same
as when railroads are built. I think it would be a good thing
if this canal was built. You might want the water in different
places on the reservation where this ditch runs. This is [the]
canal running from St. Mary's Lake across to Milk River that I
refer to especially. Now, I think you all understand pretty
well what is meant.
S. Doc. No. 118, 54th Cong. 1st Sess.(1896) at 20-21. The clear
import is that the Tribe would benefit from the Milk River Project
facilities if it provided rights of ways for the Project. Such benefit
has never materialized.
Over the years, the amount of water diverted from the Reservation
has expanded. Municipal water users were added and additional lands
have been brought into the Project. There are also other water users
who have been able to use Project water because of lack of enforcement
by the Bureau of Reclamation or the State. Even a wildlife refuge
(Bowdoin) is provided water from the Project, but not the Blackfeet
Tribe. In sum, there have been a multitude of entities and individuals
who are receiving St. Mary water from the Milk River Project and
otherwise benefitting from the Project, except for the very entity that
has the most direct claim to the water--the Blackfeet Tribe. On the
other hand, the Tribe has suffered significant environmental and
property damage as a result of the Project, and it is the Tribe who
would be directly impacted by any failure of the Project.
Environmental and Resource Damages
At the same time the Milk River Project facilities utilize tribal
lands and have caused serious environmental problems on the
Reservation. Water is stored in Sherburne Dam on the Reservation and is
released into Swiftcurrent Creek. Swiftcurrent joins with another
stream, Boulder Creek, and both are diverted into Lower St. Mary Lake
by a dike. St. Mary Diversion Dam then diverts the water into the St.
Mary Canal, where it is carried for 29 miles before dumping into the
North Fork of the Milk River. Two major sets of siphons and five
concrete drops are part of the facilities.
Sherburne Dam
The primary Milk River Project storage facility on the Reservation
is Sherburne Dam, completed in 1919. It releases water into
Swiftcurrent Creek which is diverted through the St. Mary diversion
facilities into St. Mary Lake.. The current outlet structure is unable
to pass law flows during the winter months, and as a result
Swiftcurrent Creek dries up, causing important wintering habitat for
the threatened bull trough to be lost.
Bank Erosion and Flooding
Swiftcurrent Creek and Boulder Creek come together, and both are
diverted into Lower St. Mary Lake. The banks of Swiftcurrent Creek have
eroded below the confluence of Boulder Creek. Both streams provide
critical habitat for the threatened bull trout. Continued erosion also
contributes to regular flooding of tribal and individual member lands
at the confluence of the two streams. This flooding also affects a
tribal graveyard in the area. For years, the Tribe has complained of
the annual flooding to the Bureau of Reclamation, but to no avail.
St. Mary Lake
Swiftcurrent Creek Dike, completed in 1915, diverts all flows from
Swiftcurrent Creek and Boulder Creek into Lower St. Mary Lake, a
beautiful, pristine alpine lake. The combined sediment load of both
streams is deposited into the Lake, creating a delta approximately 16
acres in size. The sedimentation has destroyed commercial fishing in
the lake, and is destroying recreational and aesthetic values relating
to the Lake. The diversion of water into St. Mary Lake also causes the
level of the Lake to fluctuate. This affects use of Tribal lake shore
property and the value of the lake shore property.
St. Mary Diversion Dam
The St. Mary Diversion Dam and head works were constructed around
1910 and are used to divert water from St. Mary Lake into the 29 mile
St. Mary canal. The dam and head works are in poor condition and have a
negative impact on the fishery resources. The diversion dam acts as a
barrier to fish movement and fish become entrained in the canal through
the head gates during the irrigation season. These facilities affect
the threatened bull trout and other Reservation fishery resources.
St. Mary Canal
The St. Mary Canal, completed in 1915, is an unlined earthen canal
approximately 29 mile in length, and is in poor condition. It has a
number of deficiencies, and is responsible for significant seepage. The
canal affects surrounding wildlife habitat and contributes to
environmental damage along its length.
St. Mary Siphon
The siphon includes two 90-inch steel barrels approximately 3,200
feet in length that traverse the St. Mary Valley. The siphons have had
significant leaks, contributing to environmental damage, and represent
significant environmental and safety hazards to the Reservation.
Hall Coulee Siphon
The Hall Coulee Siphon consists of two 78 inch steel pipes,
approximately 1,404 feet in length. Like the St. Mary Siphon, leaks
from the siphon have resulted in environmental damage, and represent
significant environmental and safety hazards on the Reservation.
Drop Structures
Water from the St. Mary Canal passes through five concrete drops
before the water is dumped into the North Fork of the Milk River. Like
the siphons, the drop structures are in deteriorated condition and
represent significant environmental and safety hazards on the
Reservation.
Babb Community Water System
The town of Babb is the Reservation community in the vicinity of
the St. Mary diversion facilities. It is located on Hwy. 89,
approximately 10 miles for the Canadian border. Wells serving the north
Babb area depend on groundwater recharge being recharged from leakage
of the St. Mary Canal. Any fix of the canal must take into
consideration the potential impact to the Babb community water system.
The Milk River Project diversion facilities on the Blackfeet
Reservation are now nearly one hundred years old. The rehabilitation of
the diversion facilities was authorized by the 2007 Water Resources
Development Act (WRDA). The St. Mary provision of the WRDA legislation
provides that no construction on the St. Mary rehabilitation may take
place until the Blackfeet Tribe's water rights compact is approved by
Congress or January 1, 2011, whichever comes first.
Claims Against the United States Relating to the St. Mary Diversion
Facility Right of Way
In addition to the water rights, property and environmental claims
relating to the St. Mary diversion facilities, there are significant
ownership issues and right of way issues that have remained unresolved
over the years. The Bureau of Reclamation lacks rights of way for
portions of the facilities and the canal and lacks flowage easements in
critical areas. There are also other ownership issues. The following
issues relating to the Bureau of Reclamation facilities on the
Reservation require resolution:
Ownership issues relating to Sherburne Dam.
Issues relating to ownership of timber and oil and gas in
the Dam area.
Lack of easement or authority to utilize Swiftcurrent Creek.
Lack of authority to construct dike that diverts water from
Swiftcurrent and Boulder Creeks into St. Mary Lake.
Lack of flowage easement from St. Mary Lake to diversion.
Lack of ownership/right of way/easements relating to Camp 9.
Trespass issues relating to Camp 9 and other areas
relinquished to the Tribe pursuant to the Act of August 28,
1937.
Lack of easements/rights of way in Spider Lake area.
Flooding/inundation issues relating to dam at Spider Lake.
BOR maintenance roads outside of right of way.
Lack of flowage easements relating to drops.
Use of borrow, fill, and sand and gravel without
compensation to tribe.
Ownership issues relating in entire reach of St. Mary Canal.
Issues relating to BOR leases to private parties on the
Reservation.
Claims Relating to the Blackfeet Irrigation Project
The Blackfeet Irrigation Project was authorized in 1907, only five
years after the Milk River Project. The Blackfeet project suffers from
similar condition problems as the Milk River Project and needs
significant rehabilitation. The Project also needs to be finally
completed.
The Project is divided into three units: Two Medicine; Badger-
Fisher; and Birch Creek. There are currently 38,082 assessed acres in
the project. Project completion or build out is approximately 53,000
acres. Rehabilitation and betterment of the project is a major focus of
a comprehensive settlement, and is essential to the Birch Creek
deferral agreement entered into by the Tribe and the State of Montana,
a related agreement to the Compact.
The Bureau of Indian Affairs has failed to complete the Blackfeet
Irrigation Project As a result the Project does not provide the full
economic benefit to the Tribe and its members that a fully completed
project would provide. The BIA has also failed to properly operate and
maintain the Project. As a result, the Project is in a significantly
dilapidated condition and cannot property deliver water to Project
lands, affecting the ability of Project water uses to make a living and
to economically benefit from the Project.
Claims Against the U.S. Concerning to the Failure to Protect Tribal
Water Rights in Relation to Non-Indian Development
On the Milk River, Cut Bank Creek and Birch Creek, the United
States allowed non-Indian development to occur under state water rights
without objection and without protecting of the Blackfeet Tribe's water
rights. On the Milk River and Cut Bank Creek, substantial non-Indian
development was allowed to occur that utilized a significant portion of
direct flow water, without regard to the prior rights of the Blackfeet
Tribe, making those streams essentially unavailable to the Tribe
without the construction of expensive storage.
On Birch Creek, which was subject to a 1908 federal court decree in
Conrad Investment Co. v. United States, 161 F. 829 (9th Cir. 1908), the
court awarded only the amount of water currently being used at the
time, but the court provided that the decree could be re-opened when
additional water was needed. 161 F. at 835. However, the United States
allowed non-Indian development to occur that utilized all remaining
water supplies over and above the amount decreed to the Tribe, without
regard to future modification of the decree. By allowing non-Indian
development to utilize all additional supplies, the United States
essentially precluded any additional development by the Tribe as
provided for in the decree.
Claims Relating to the Two Medicine Dam
In 1964, a disastrous flood occurred on the Blackfeet Reservation,
causing significant loss of life and property damage. Lower Two
Medicine Dam on the Two Medicine River, one of the Blackfeet Irrigation
storage facilities was destroyed. The Reservation was declared a
disaster area and funds were quickly appropriated by Congress to
partially repair the damage to Reservation homes, and to begin the
process to replace Two Medicine Dam. In rebuilding the Two Medicine
Dam, the Tribe was convinced to agree to a smaller facility and lesser
storage because of Department of the Interior concerns about the dam
backing up water into Glacier National Park. In exchange the Department
of the Interior promised that an additional storage facility would be
built for the Tribe further downstream on Two Medicine River. This was
necessary because the smaller replacement reservoir, unlike the
original storage facility, was not sufficient to irrigate all the
irrigable lands in the Two Medicine Unit of the Blackfeet Irrigation
Project. The Two Medicine Dam was replaced, but a second storage
facility has never been constructed as promised.
Claims Relating to Divide Creek
Divide Creek serves as a portion of the western boundary between
the Reservation and Glacier National Park. The major eastern entrance
to the Park and the start of the well-known Going-to-the-Sun Road is
located at Divide Creek. Ranger facilities are located near the Creek,
as is a major Park visitor center and other private resort development.
Historically, significant erosion has occurred in Divide Creek, and
regular flooding has occurred. At least since the late 1980's, because
of the significant development in the area, the Park Service has
responded to flood conditions on Divide Creek with stream-clearing and
channelization activities using heavy equipment. This has caused a loss
of aquatic habitat and adverse water quality impacts. The main bridge
over Divide Creek at the entrance to the Park also contributes to
flooding problems as debris and other materials are caught under the
bridge, creating a logjam and increasing the flooding problem in the
area.
Since the early 1990's, the Park Service has indicated that it
would adopt a long term plan to address the flood conditions without
use of heavy equipment. The Park Service completed a Value Analysis for
Divide Creek in 1992, identifying a number of alternatives for a long-
term plan. More recently, in connection with plans for a major
modification to the Park visitor center and other improvements, it was
represented that the required Environmental Assessment would address
alternatives to the Divide Creek flooding problems. However, the Park
Service subsequently concluded that insufficient funding was available
to analyze the issues. Therefore, the flooding and sedimentation
problems at Divide Creek, with resulting adverse impacts to fisheries
and water quality, continue to occur with no solution presently in
sight.
Conclusion
The above discussion set out the primary water related claims of
the Blackfeet Tribe against the United States. These claims represent
damages of hundreds of millions of dollars due to loss of water, loss
of benefits, damages to the environment and Reservation property and
failure of the United States trust to carry out its trust
responsibility to the Tribe relating to Tribal water rights and use of
water. The claims serve as the basis for the federal contribution to
the Blackfeet water rights settlement.
______
Prepared Statement of William ``Snuffy'' Main, Chairman, Gros Ventre
Treaty Committee
______
Tamara Backstrom, St. Hawthorne, CA
Nansi Buenrostro, North Hollywood, CA
Eloise Cornejo-Miller, Anaheim, CA
Robert Corral, Chino Hills, CA
Sandra Cruz, Burbank, CA
Spring Drake, Los Angeles, CA
Patricia Farias, Los Angeles, CA
Lisa Garcia, Long Beach, CA
John Gomez, Jr., Temecula, CA
Judy Ann Hoofe, Los Angeles, CA
Fabian M. Ledesma, San Fernando CA
Janet Logan, West Covina, CA
Renee Lovan, Ontario, CA
Mark Lucero, Riverside, CA
Michael Lucero, San Bernardino, CA
Ric Macaisa, Los Angeles, CA
Michael Madariaga, Temecula, CA
Henry Madariaga, Temecula, CA
Jackie Madariaga, Temecula, CA
Karrie Madariaga, Temecula, CA
Lawrence Madariaga, Temecula, CA
Remy Madariaga, Temecula, CA
Katherine Medina, Alhambra, CA
Regina P. Marquez, Whittier, CA
Stacy Mestaz, Chino Hills, CA
Kelly Morningstar Madariaga, Temecula, CA
Susan Osuna, Los Angeles, CA
Michael A. Rios, Beaumont, CA
Joyce Robins, Fontana, CA
Daniel R. Rodarte, Chino, CA
Debra Lyn Rodarte, Chino, CA
Paul Rodarte, Montebello CA
Darlene Saunders, Chino Hills, CA
Brenda Simon, Rancho Cucamonga, CA
Jessica Solorzano, Ontario, CA
Christopher Ernest Tavizon, La Crescenta, CA
Danielle Jeanne Tavizon, La Crescenta, CA
Janelle Lynn Tavizon, La Crescenta, CA
Yolanda Valadez, South El Monte, CA
Helga M. Walston, Riverside, CA