Tuesday, March 10, 2015

Whatever Floats Your Boat

Call me crazy, but contrary to a lot of evidence, I still believe that most Montanans are willing and able to think rationally about the CSKT water compact.  And except for those folks who are absolutely convinced that the compact is an Agenda 21 stalking horse, or takes away property rights, or defiles the Constitution, or gives the Federal government control over all the water in western Montana, most people, when they do think about it, realize that the settlement simply doesn’t do any of the terrible things opponents claim it does.

Take, for example, the rumor currently making the rounds in Big Fork (and Helena!) to the effect that the compact would allow the Tribes to drain the top ten feet of Flathead Lake, leaving boats stranded, docks perched in the air, and a bathtub ring of cobble between lakeside homes and the water.

Now why the Tribes would want to do that is anybody’s guess, and there are a lot of paranoid guesses floating around to prove it. But before you start to sift through them, take a deep breath and realize this: There is absolutely no language in the compact that allows the Tribes to lower the lake level; the suspicion that there is comes from a misreading of compact language.

Here’s the provision that’s causing all the confusion: “The Tribes have the right to all naturally occurring water necessary to maintain the level of the entirety of Flathead Lake at an elevation of 2,883 feet as described in the abstract of water right attached hereto as Appendix 18.”* What this provision means is that if the Tribes enforce this right, there will always be enough water in the lake to assure that the level stays at at least 2,883 feet above sea level. It is a right to keep water in the lake, not a right to take it out.

What’s magical about 2,883 feet? Well, although the historical record is a little imprecise, 2,883 feet above sea level is what the natural elevation of the lake is believed to have been back in the day before Kerr Dam was built, and the lake level was determined by how water naturally flowed in and out. The dam itself raised  full pool by about 10 feet, and these days management of the dam, under FERC licensing, maintains the level well above 2,883 feet. Nothing is the compact will change that management.

So what does the Tribal right to lake water mean? Practically speaking, not much. But if at some time in the future, due to factors unrelated to the compact, the level of the lake were lowered, it would have to stop at 2,883 feet. And that means that for the Tribes, water skiers, anglers, sailors, homeowners, kayakers and others who enjoy Flathead Lake, a larger disaster would be averted.

* Section III.C.1.h. on p.18 of the compact, which you can find here. And if you really want to get technical about it, you can go to Appendix 18 by clicking here.

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