File your water rights
By Sen Jennifer Fielder
March 9, 2015
Water rights are a huge topic in the state legislature this session,
particularly with the controversial CSKT Water Compact (SB262)
leg.mt.gov/bills/2015/billpdf/SB0262.pdf>workin…rking its way through the process. Escaping the Senate by the narrowest margin ever seen for a water rights compact in Montana, I and many colleagues remain troubled by the way this compact was developed, and the adverse impacts certain
provisions could bring to bear on the people of Montana if it is passed into law as currently written. It is now up to the House of Representatives to decide the fate of this bill, and I expect it will not be an easy
Last Friday, Rep Bob Brown, R – Trout Creek did a very good job presenting HB427 leg.mt.gov/bills/2015/billpdf/HB0427.pdf, a piece of
legislation he is carrying to provide for the defense of Montanan’s water rights should the compact fail and the tribe pursue competing claims
against people already holding claims. I wholeheartedly support this bill.
On a less controversial note, I am presenting SB 37
leg.mt.gov/bills/2015/billpdf/SB0037.pdf to the House of
Representatives Natural Resource Committee this week. This WPIC bill passed the senate unanimously and if passed by the House and not vetoed by the Governor, SB 37 leg.mt.gov/bills/2015/billpdf/SB0037.pdf will
extend the filing deadline for persons who wish to file claims for water rights once deemed”exempt from filing.
Regardless of when you began using the water on your land, filing your
claim with the state is important because we have a”first in time, first in right doctrine in Montana, which means whoever uses the water first gets the senior priority status. But you need to file and get the date of your claim certified in order to enjoy a priority date that is senior to other claims filed after yours. Your priority date is typically based on the date you file for the right, not the date you began using the water.
If a person is drawing water from a surface or ground water source and
putting it to a beneficial use, but has not filed for a water right with the state DNRC, then they do not have a defensible priority date. In low water years when there is competition for a limited supply of water, senior water right holders are entitled to use every drop of their water right before the latter, or junior water right holders, can use theirs.
When discussing so-called water rights exemptions, it can be confusing
because there are two areas of law in which an”exemption is implied, but you may not be as”exempt as you think.
The first relates to what was once called a”water right exempt from
filing. Long ago, past state legislatures decided people who had water rights prior to 1973 did not need to file claims, in other words they were”exempt from filing. The water court has since said this doesn’t work because without dates attached to the right, it is difficult for the court to determine which rights are senior or junior.
As a result, subsequent legislatures passed laws requiring those who own”water rights exempt from filing to file for their water right in order to obtain a priority date. Last session the filing deadline was extended, but the public was not given adequate notification. This may be the last chance for people to secure these vital rights, so the bill I am carrying this session, SB37 leg.mt.gov/bills/2015/billpdf/SB0037.pdf, extends the filing deadline once again, this time to Feb 28, 2018. And equally
important, SB 37 also requires the DNRC to send official notice to every property tax payer advising them of the deadline and filing procedures.
The other type of water right exemption you may be familiar with relates to”exempt wells. Currently, most people who have a well that draw less than 35 gallons per minutes and 10 acre feet per year can obtain an”exempt well certificate for a nominal processing fee. These wells are exempt from state permit approval or disapproval unless located in a closed basin where all the water rights are already allocated, or within the Flathead Indian Reservation. But even owners of exempt wells must file for a water right in order to get a priority date. There is pressure to eliminate the lawful provision for exempt wells in the future, so it’s a good idea to get your claim filed while the law still allows for it.
People with post-1972 water rights who are drawing more than the exempt well limit have to apply for a permit to secure their right, and may be subject to approval or disapproval and significant permit fees.
With something as critical as water, it is important to know and secure your rights. For information from the real experts on this subject, contact the Montana Department of Natural Resources (DNRC) Water Resources Division by phone at (406) 444-6601 or online at dnrc.mt.gov/wrd
As usual, I can be reached by email at Sen.Jennifer.Fielder@mt.gov, by mail at Sen Jennifer Fielder, P.O. Box 2558, Thompson Falls, MT 59873, or you can sign into my network and keep up to date daily at www.jenniferfielder.us www.jenniferfielde.us of follow me on facebook.
Thanks, and God Bless!
Senator Jennifer Fielder
Montana State Senate – District 7