The Montana Legislature established the Reserved Water Rights Compact Commission (RWRCC) in 1979 as part of the state-wide general stream adjudication process. The Commission is authorized to negotiate settlements with federal agencies and Indian tribes claiming federal reserved water rights within the State of Montana.
Federal Reserved Water Rights
Federal reserved water rights have been claimed for seven Indian reservations, allotments for the Turtle Mountain Chippewa Tribe, national parks, forests, wildlife refuges and federally designated wild and scenic rivers, within the State of Montana.
A federal reserved water right is different from the state appropriative water rights familiar to the public.
Montana water law incorporates the prior appropriation doctrine of “first in time, first in right.” Whereas, the right to water depends on the priority of a person’s claim. The water user is limited to appropriating only the amount that can be put to beneficial use at a specific time. If the water right is not used over a certain period of time, the water right can be considered lost by abandonment.
Since the passage of the Montana Water Use Act of 1973, the State has been working on an adjudication process to finalize all water rights prior to 1973 in Montana Water Court. For those wishing to obtain post-1973 water rights, the law established a permit system administered by the Montana Department of Natural Resources and Conservation (DNRC).
Federal reserved water rights were created when the U.S. Supreme Court made the decision in the case Winters vs. United States (206 U.S. 564) about a Fort Belknap Indian Reservation water claim. In the Winters decision, the Supreme Court decided when Congress or the U.S. President sets aside land out of the public domain for a specific purpose, such as an Indian reservation, national park or national forest, a quantity of water is reserved based on the amount necessary to fulfill the specific federal purpose.
A federal reserved water right has a priority date of the date the land was withdrawn from public domain and the reservation was created. The water rights cannot be lost through non-use.
Quantification, or the determination of the size of a federal reserved water right for the state adjudication process, requires the RWRCC to reach an understanding with the federal agency holding the water right about the purpose for which the federal reservation was created.
All parties must then come to an agreement regarding how much water is necessary to satisfy the purpose of the reserve. The resulting agreement must be signed by the negotiating parties and the appropriate federal officials. Then it must pass through the Montana Legislature and in some cases, the U.S. Congress. Finally, it goes to the Montana Water Court for incorporation into a final decree for the specific water basins involved.
Federal reserved water rights have been claimed for seven Indian reservations, allotments for the Turtle Mountain Chippewa Tribe, national parks, forests and wildlife refuges, and federally designated wild and scenic rivers.
Compacts with the Federal Government
The 2013 Montana Legislature approved compacts with the U.S. Bureau of Land Management for the Upper Missouri River Breaks National Monument and the U.S. Fish & Wildlife Service for the Charles M. Russell National Wildlife Refuge.
To date, federal compacts have been completed with the:
- National Park Service,
- U.S. Fish & Wildlife Service,
- Bureau of Land Management,
- U.S. Agricultural Research Service and
- U.S. Forest Service.
Compacts with Montana Indian Tribes
On Dec. 10, 2014, the negotiating parties reached an agreement that respects the Confederated Salish and Kootenai Tribes (CSKT) tribal rights, while ensuring irrigators and residents in the region will continue to have access to a reliable water supply.
The compact is the result of constructive negotiations where all parties sought common ground in the best interests of the state and tribe. The compact was negotiated through the RWRCC and includes recommendations from the legislature’s Water Policy Interim Committee.
This compact will:
- Make new water available for commercial and irrigator use;
- End the water administration void on the Flathead Reservation;
- Allow economic development under conditions of legal certainty; and
- Facilitate the resolution of the statewide adjudication process.
In addition, this compact establishes a technical team with irrigator representation to implement water compact provisions relating to diversions of water into the irrigation project so the irrigators’ historic use is protected and tribal in-stream flow targets are met.
The compact with the CSKT of the Flathead Reservation has been subject of more than a decade of negotiations. In 2013, the compact was approved by the RWRCC, but failed to win the approval of the Montana Legislature (HB 629).
A bill to extend the adjudication filing deadline (SB 265) was vetoed by Gov. Steve Bullock. The Compact Commission did not “sunset” and continues to function with an unaltered mandate and authority.
During Summer 2014, Governor Bullock and tribal leaders agreed to open limited negotiations on language in the compact. This revised compact will be presented to the 2015 Montana Legislature for approval. The legislature has approved water compacts for every other tribal reservation in Montana.
Since its inception in 1979, the RWRCC has negotiated and the Montana Legislature has approved 17 compacts with six Montana Indian tribes:
- Assiniboine & Sioux Tribes of the Fort Peck Reservation,
- Northern Cheyenne Tribe,
- Crow Tribe,
- Gros Ventre & Assiniboine of the Fort Belknap Reservation,
- Chippewa Cree of the Rocky Boy Reservation, and
- Blackfeet Tribe.
The RWRCC and staff are working on federal legislation for the Blackfeet Tribe Compact (2009) and the Fort Belknap Compact (2001). The Crow Tribe Compact (1999) federal legislation was approved by Congress in 2010 and ratified by the tribal members in March 2011.
- Compacts Approved by Montana Legislature