[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

=======================================================================

                                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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                      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

                              ----------                              
                                                                   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

                              ----------                              


                        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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.

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    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.
---------------------------------------------------------------------------
    \1\ Establishment of the BIP by Congress occurred in 1907. See, 34 
Stat. 1035-1036.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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

        
        
        
        
        
        
        
        
                                  
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