Havre Daily News
Three nations argued over two rivers Tuesday night in the Hensler Auditorium at Montana State University-Northern.
Officials from both sides of the U.S.-Canadian border were joined by representatives of the Blackfeet Nation, along with scores of residents and irrigators, to discuss an International Joint Commission task force's report on how accurately the waters of the St. Mary and Milk rivers are divided along the 49th parallel.
Montanans maintain that changes are needed to give U.S. irrigators a more equal share of water, while Canadians fundamentally disagree with those proposed changes.
The commission, formed by the 1909 Boundary Waters Treaty, settles water disputes along the border, and the waters of the two rivers, which originate on or near the Blackfeet Indian Reservation, have long been a bone of contention.
A 1921 document set the apportionment of Milk and St. Mary rivers between the two countries. Under the agreement, the United States is entitled to three-fourths of the Milk River's natural flow during the irrigation season, while Canada is entitled to three-fourths of the natural flow of the St. Mary River. Milk River flows, fed by mountain runoff, generally peak in March - before the irrigation season - while St. Mary flows peak in June.
The St. Mary is a faster-moving waterway with a more consistent flow. According to the state Department of Natural Resources and Conservation, the average natural flow of the St. Mary River in June is about seven times greater than the average natural flow of the Milk River during the month.
Montana officials on Tuesday said the state first asked the IJC to review that order in 1930. That request was denied. In 2003, then-Gov. Judy Martz asked the commission to review the order. The IJC declined to reopen negotiations on the document, but created a task force made up of U.S. and Canadian to examine whether procedures could be improved to ensure that each country gets its allocation of water.
Dan Jewell, the top U.S. Bureau of Reclamation official in Montana and U.S. co-chair of the task force, said the group was charged with identifying options to ensure each country receives its allocation of water. The group was not asked to determine a preferred option, he said.
The preliminary report is available for public review, and the task force is accepting written comments postmarked by June 30. Public comments will be considered and a final report will be submitted to the IJC.
State officials joined irrigators, residents and some U.S. Bureau of Reclamation officials in calling for changes to the procedures that they said would improve the United States' ability to receive its apportioned share of the two rivers.
In a presentation developed by the state Department of Natural Resources and Conservation, DNRC hydrologist Larry Dolan presented figures showing that, under the 1921 agreement, Montana is only entitled to an average of 45 percent of the two rivers' flows in a normal season. In dry years, that entitlement drops to an average of 36 percent to 40 percent.
Dolan said the 1909 treaty states that the waters of the two rivers and their tributaries are to be “apportioned equally” between the two countries.
Using figures from the IJC, Dolan said that since 1997 Montana has been entitled to an average of about 43 percent of the rivers' flows. It has received less than 37 percent of those flows, he said.
“The administrative procedures do not even allow us to use our smaller share,” Dolan said.
DNRC bureau chief Rich Moy, a member of the task force, said earlier Tuesday that the United States, between 1950 and 2001, received 102,000 acre-feet less than its entitlement.
Another DNRC bureau chief, John Tubbs, said that if Montana were to receive its full entitlement of water it could irrigate an additional 14,000 acres of land, an economic impact topping $1.5 million - and he said those numbers are conservative.
The two countries now use a roughly two-week accounting period to ensure that each country receives its water. Montana officials repeatedly lobbied for a year-long accounting period, which they said would enable the United States to more fairly receive its share of water.
The 1921 IJC order states that water should be accounted for “from time to time,” Dolan said.
With the proposed rehabilitation of the aging St. Mary diversion facilities, which bring water over a divide to the Milk River, and an annual accounting period, Montana can receive more than 90 percent of its apportionment, Dolan said.
Montanans also lobbied for the use of water credits. In that system, either country would build credit if it allowed unused water to flow downstream, and those credits could be used to gain additional water at other times in the year, Dolan said.
Lt. Gov. John Bohlinger and Hal Harper, chief policy adviser for Gov. Brian Schweitzer, repeated Martz's request for the commission to reopen negotiations on the 1921 document. They called for an annual accounting period and the use of credits, and Bohlinger reiterated his request for the Alberta government to consider paying for a share of the St. Mary diversion's repair cost.
Bohlinger said the task force's mission to review administrative procedures was “at best, a half measure,” and Harper called it “a good first step.”
U.S. and Canadian officials used scarce data and rudimentary hydrology in negotiating the 1921 order, Harper said.
“The task force's report makes it clear that the 1921 order does not mean equal apportionment,” Bohlinger said.
Canadian irrigators and provincial officials said calls for changes to the 1921 order are “full of danger” and maintained that they want an instantaneous accounting of the rivers' division, rather than a yearly one.
The task force's report noted that the accounting time period is a “fundamental” difference between the two parties. The task force was not able to reach consensus
Alberta irrigator Tom Gilcrist said Canadians would be penalized by an annual accounting period to the tune of a 10 to 15 percent reduction in water during dry years.
He also said the changes Montana is proposing could adversely affect water supply on both sides of the border and “likely result in unacceptably erratic flow patterns.”
“The old adage - ‘Be careful what you wish for' - applies to this,” Gilcrist said.
Alberta could be forced to construct a storage reservoir on the Milk River, he said, to better use its share of water, and that facility could adversely affect Montana.
In an annual accounting period, Gilcrist noted, the U.S. entitlement could be satisfied but irrigators might not receive water when they need or want it.
“It's our view that the application of the annual allocation principle is patently unwise,” he said.
Rob Wiebe, acting regional director of the Saskatchewan Watershed Authority, said his view of the 1921 order remains the same as it has in the past: leave it alone. He also railed against the task force for leaving issues associated with the Milk River's eastern tributaries “on the backburner.”
A second public hearing will be held tonight in Lethbridge, Alberta.
Blackfeet tribal council chair Pat Thomas said he was pleased when he initially heard that the IJC task force would include a representative from the tribe.
“I thought: Here's our final chance to get back into the ballgame,” Thomas said. “Now, I'm very disappointed.”
Both the St. Mary and Milk rivers have their origins on the reservation, located just east of Glacier National Park. The entire St. Mary diversion facilities are located on the reservation.
Those facilities have not brought any benefits to the tribe, Thomas said. Instead, the canal has caused sedimentation problems and killed bull trout, he said. And a promised irrigation system on the reservation has never materialized, he said.
The IJC report addresses none of the tribe's concerns, he said.
“I'm here to say that this International Joint Commission has not been fair to the Blackfeet people at all,” he said.
Blackfeet water rights attorney Jeanne Whiteing, who is a member of the tribe, said that her people were “systematically ignored” during the negotiations for the 1909 treaty and the 1921 order, even though the tribe's water rights predate those documents.
“It's incredible to us today that that remains the case,” Whiteing said. “In light of the historical failures, we are all the more disappointed.”
Tribal concerns are mentioned “in passing” in the report, she added.
Whiteing said the tribe supports efforts leading to the fair allocation of the St. Mary and Milk waters, but - referencing comments from irrigators on both sides of the border who said they want to expand operations - the Blackfeet do not support diverting more water.
Bohlinger, who co-chairs the St. Mary Rehabilitation Working Group - an advisory committee pushing for the facilities' repair - was joined by working group co-chair Randy Reed and executive director Larry Mires in calling for the Blackfeet Nation's needs to be considered by the IJC.
A call for consensus
Reed, a Blaine County irrigator, called for an end to the “posturing” that has taken place during the debate. He said irrigators on both sides of the border could benefit from an improved St. Mary diversion and improved water allocation.
Reed, responding to Gilcrist, said an Alberta storage facility “will kill our water-short basin.”
“The high-stakes poker game is destructive,” he said. “There's real opportunity before us if we quit posturing, pull our boots up and work together.
“This is not a simple solution and this is not going to be easy,” Reed added.
Mires, echoing some other comments, called on irrigators from both sides to consider the Milk River Basin and the St. Mary watershed as one large basin, minus the 49th parallel. He asked that the IJC appoint a board of U.S. and Canadian irrigators to manage the entire basin.
The task force's report is available online at www.ijc.org or by contacting either Jewell at (406) 247-7664 or the Canadian co-chair, senior water policy adviser Ross Herrington at (306) 780-3883. Comments may be mailed the co-chairs at the following addresses:
Daniel Jewell, P. E.
Montana Area Office
U. S. Bureau of Reclamation
2900 4th Avenue North, Suite 501
P. O. Box 30137
Billings, MT 59107-0137
Ross Herrington, P. Eng.
Senior Water Policy Advisor
Environmental Conservation Branch
Room 300, 2365 Albert Street
Regina, SK S4P 4K1