After Signing of Blackfeet Nation Water Compact, Funding Still Needed

After decades of work, a water compact with Montana’s Blackfeet Nation was finally settled last year. But the federal government still needs to come up with more than $400 million to fund water improvement projects.
Water Deeply, February 22, 2018

When the Blackfeet Nation of Montana last year approved a water rights compact with the federal government that had taken more than three decades to negotiate, it was only the beginning. The deal quantifies the tribe’s water rights for the first time and provides for more than $470 million in state and federal funding for water projects and related initiatives, but securing that money will involve further negotiations that are likely to be slow going.

The financing would allow the Blackfeet Nation to make badly needed improvements to water quality on its Montana reservation and help it gain a more secure sense of autonomy and control over water resources that were reserved to the tribe by treaty in 1855 but never quantified. It would also launch badly needed economic development projects – according to the state, unemployment rates on the reservation exceeded 10 percent in 2017, more than twice Montana’s unemployment rate. Montana State University found that the poverty rate for the Blackfeet Nation in 2015 was 38.6 percent.

But while the state’s $49 million contribution has already been appropriated in a combination of cash and bond measure authorizations, significant federal funds have yet to be allocated. Montana senators Jon Tester and Steve Daines have said they will find cost savings or revenue increases to offset the appropriations, as mandated under Congress’s “Pay-As-You-Go” budget rule.

The federal government has until January 2026 to come up with funds for projects related to the compact.

Only $800,000 of funding for the settlement has been appropriated so far as part of the Department of the Interior’s fiscal year 2017 budget, according to Martin von Gnechten, policy analyst at the Secretary’s Indian Water Rights Office. Ten million dollars has been requested for each of the fiscal years 2018 and 2019, but ongoing budget negotiations and the continuing resolutions under which government is operating make it difficult to determine whether that money will actually be appropriated.

Nor does Congress take a standardized approach to funding water settlements like the Blackfeet compact. “In some cases, legislation sets up funds for specific settlements,” Von Gnechten said. “In other cases, it’s a top-line number and [the Bureau of Reclamation] will figure out through its operating plan how that funding gets distributed.”

In the meantime, many of the projects that will receive funding are still in the process of being defined.

Jerry Lunak is a water rights consultant for the tribe, but until recently he was the Blackfeet Nation’s water resources director, and one of the chief negotiators of the water compact. Now that the accord has been signed, “We’re lending ourselves toward getting the planning and the process together to facilitate the projects and the funding that’ll make this compact a reality,” Lunak said.

Priority will likely be given to projects to raise water quality to acceptable standards in reservation communities that currently lack it. Economic development projects such as irrigation for agriculture will also likely be high on the list, according to Lunak. “Like many reservations, there’s much more that could be done here to benefit the environment, the land, the people, the watershed,” he said.

The compact covers rights to six drainages in northern Montana on the Canadian border, just east of Glacier National Park: the St. Mary Basin, the Milk River Basin, the Cut Bank Basin, Two Medicine Basin, Badger Creek Basin and Birch Creek Basin. While the rights themselves were not in dispute, the amount of water accruing to such rights had not been determined. The compact sets that amount at nearly 800,000 acre feet per year from the six drainages.

The compact is important beyond the confines of the reservation, in part because the St. Mary River basin supplies most of the water in the Milk River, which feeds agriculture across northern Montana and in Canada’s Alberta and Saskatchewan provinces as well.

One issue that will need to be addressed is the rehabilitation of the St. Mary canal system, one of the first projects in the history of the United States Bureau of Reclamation, but one which for more than a century has siphoned water away from the reservation and to farms across Montana and in Canada. Though the canal system was built without consultation or compensation to the Blackfeet, “We’ve come to understand it has a purpose,” Lunak said. So part of the funds from the compact will be set aside for a feasibility study on rehabilitating the aging system, which will benefit hundreds of farms outside the reservation.

Other projects will take shape over the next several years as the tribe begins to study its people’s needs and the reservation’s water ecosystem in more detail. “We find ourselves with the ability and the responsibility to really take a broad look at the effects of this watershed,” Lunak said. “I think what this has done is brought everybody together regardless of where you sit historically and in the broad picture of what this basin was and how it was developed. We see the Blackfeet as becoming much more of a facilitator of the waters that come off this reservation.”

Such deals can be exceedingly difficult to hammer out, and not just because of the influence of established agricultural stakeholders and other downstream users outside the reservations in question. In many cases, the deals are made necessary by the fact that the federal government failed to honor or protect previous deals it had made with the tribes. And, as in the case of the Blackfeet compact, such deals often include provisions by which tribes waive the right to bring further actions against the government, thus resolving historical claims that may reach back a century or more.

The Blackfeet compact faced one additional hurdle in that it needed to be put to a vote of the tribe only after the state and federal governments and President Barack Obama had signed onto the deal in 2016. The tribe’s vote happened last spring, bringing the long chapter of negotiations, which began in the 1970s, to a close and opening the next phase of work. “It was a big step for our community to investigate and look into what this compact meant to them personally, and to have the opportunity to vote on it,” Lunak said.