CSKT Negotiated Water Rights Compact – Good for Montana Agriculture

By Jay Bodner, John Youngberg, and Mike Murphy

The success of Montana’s agriculture industry is dependent upon water and water right certainty. It is easily the single most important resource for people across Montana, which is why ratification of the negotiated Montana CSKT Water Compact is critical.

Contrary to what compact opponents are saying the negotiated CSKT Compact provides water right certainty, protects Montana’s water users, and ensures a reliable source of water. When the Flathead Reservation was established water rights were reserved through a federal treaty. The federally reserved water rights of the Tribe must, by law, be defined and quantified either through a negotiated agreement or through litigation in the Montana Water Court. The negotiated CSKT Water Compact defines the water rights and settles the legal claims of the CSKT, preventing long term costly litigation and uncertainty.

Recently, Compact opponents have proposed to replace the long-negotiated CSKT Water Compact that was developed through extensive public participation with a quickly crafted proposal that was developed without general public participation.  Their proposal ignores the fact that a negotiated settlement requires acceptance and approval by all parties.

The CSKT Water Compact, which was passed with bi-partisan support in the Montana State Legislature, after many years of negotiation, is currently awaiting Congressional ratification. The compact provides protection for all existing water rights, prevents decades of expensive litigation, and provides certainty to water users across our state. Comparatively, the proposal recently developed by those who oppose the CSKT Compact was constructed without Tribal, State, and Federal parties at the table and without general public comment. If this proposal were to upend the existing negotiated agreement it would most certainly open the floodgates to possibly decades of expensive litigation—putting the water rights of farmers, ranchers, and water users across our state, at risk.

We respectfully encourage our Congressional delegation to carefully consider the extensive benefits that implementing the long-negotiated Montana CSKT Water Compact will have for Montana’s agriculture industry and move Compact ratification forward, while soundly rejecting the proposal from Compact opponents that was quickly developed without Tribal, State, Federal, or general public participation.

Mike Murphy is the Executive Director of the Montana Water Resources Association.

John Youngberg is the Executive Director of the Montana Farm Bureau Federation.

Jay Bodner is the Executive Vice President of the Montana Stockgrowers Association.

WOTUS Delayed for Two Years

U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (Army) have finalized a rule adding an applicability date to the 2015 Clean Water Rule (the 2015 Rule). This rule provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion. The new applicability date will be two years after today’s action is published in the Federal Register, during which time both agencies will continue the process of reconsidering the 2015 Rule.

“Today, EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” said EPA Administrator Scott Pruitt. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

“We are committed to transparency as we execute the Clean Water Act Section 404 regulatory program. The Army and EPA proposed this rule to provide the regulated public clarity and predictability during the rule making process,” said Acting Assistant Secretary of the Army (Civil Works) Ryan Fisher.

The 2015 Rule, which redefined the scope of where the Clean Water Act applies, had an effective date of August 28, 2015. The U.S. Court of Appeals for the Sixth Circuit’s nationwide stay halted implementation of the 2015 Rule. But last week the Supreme Court determined that the U.S. Courts of Appeals do not have original jurisdiction to review these challenges and, therefore, the Sixth Circuit lacked authority to issue a stay. Given uncertainty about litigation in multiple district courts over the 2015 Rule, this action provides much needed certainty and clarity to the regulated community during the ongoing regulatory process.

Today’s final rule is separate from the two-step process the agencies are currently taking to reconsider the 2015 Rule. The public comment period for the Step 1 rule proposing to rescind the 2015 Rule closed in September 2017, and those comments are currently under review by the agencies. EPA and the Army are also in the process of reviewing input from state, local, and tribal governments and other stakeholders as they work to develop a proposed Step 2 rule that would revise the definition of “waters of the United States.”


On February 28, 2017, President Trump issued Executive Order (EO) 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” As EO 13778 stated, it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while simultaneously promoting economic growth, minimizing regulatory uncertainty, and respecting the roles of both Congress and States under the Constitution.

Additional information on this final rule: www.epa.gov/wotus-rule

Consider filing for “Exempt” Water Rights

– by Krista Lee Evans

Water rights are a property right critical to agricultural production, that water users need to protect.

In the early 1980’s, at the beginning of the adjudication process, the Montana Supreme Court issued an order that all water users who wanted to claim a right to use water that was put to use before 1973 had to file a claim with the Montana Department of Natural Resources (DNRC).   The Court did, however, provide two exceptions to this requirement – instream stock use and domestic use – that was used prior to 1973.  These are the “Exempt From Filing” Water Rights that we now have the chance to address.

This year’s passage of HB 110 provided a means to protect these property rights by clarifying the opportunity to file a claim for any “exempt” instream stock or domestic rights that were put to use prior to 1973, and that have not been claimed in the adjudication process.

It is important that we recognize the significant opportunity that this provides to Montana’s water users because it most likely will not occur again in the future.

Remember, it is not mandatory that you file; and if a water user chooses not to file for their pre-1973 “exempt from filing” claims, they do not lose their water right, but those rights will be subordinated to all other water rights on the stream.

Landowners should double check all of their water rights to make sure that they reflect their water use.

My advice is that if your property has any instream livestock water rights (meaning where stock drink directly from the source with no diversion), or domestic water rights (such as a home or stock well) that were put to use prior to 1973, and have not been claimed in the adjudication process, then you should seriously consider submitting a claim under the current process.

You can search for your water rights online by going to DNRC’s website water right query at http://wrqs.dnrc.mt.gov/default.aspx




From a long-time ranching family in central Montana, Krista Lee Evans now lives in Helena where she owns Blake Creek Project Management, Inc.  Evans has worked as a consultant in Montana’s water rights policy arena for over 15 years.

Senate Acts on WOTUS Legislation

waterThis week, the Senate finally took up a series of votes on the EPA and Army Corps of Engineers’ “waters of the United States” rule. A major priority for cattle ranchers and all land-use stakeholders, Montana Stockgrowers has been working aggressively with our Congressional Representatives and Attorney General Tim Fox to repeal WOTUS and limit EPA’s attempt at overreach in controlling our water on private lands.

Earlier this week, the Senate took a vote on SB 1140 – Federal Water Quality Protection Act, sponsored by Senator John Barrasso (R-Wyo.), which failed to obtain the necessary 60 votes to pass. SB 1140 aimed to repeal WOTUS in favor of rules to “protect traditional navigable water and wetlands from water pollution, while also protecting farmers, ranchers and private landowners.”

Montana Stockgrowers Association, along with Attorney General Tim Fox and Montana Chamber of Commerce signed on in support of SB 1140. Senator Steve Daines supported the bill and testified in front of Congress, sharing comments from MSGA President, Gene Curry.

“MSGA thanks Senator Daines for supporting SB 1140, the Federal Water Quality Protection Act, and his continued opposition to work to stop the final WOTUS rule. This rule is an unwise and unwarranted expansion of EPA’s regulatory authority over Montana’s waters, and would have a significant detrimental impact on Montana’s ranchers.”

Watch Daines’ testimony regarding WOTUS here. Following the vote, Senator Jon Tester signed on to a letter to EPA administrator, Gina McCarthy, encouraging the agency to “provide clearer and concise implementation guidance to ensure that the rule is effectively and consistently interpreted,” recognizing this as something ranchers deserve.

The Senate then turned to consideration of a joint resolution of disapproval sponsored by Senator Joni Ernst (R-Iowa). The vote in support of the joint resolution showed bi-partisan support and the resolution passed 53-44. SJ 22 “would order the EPA and Corps to withdraw the WOTUS rule and would prevent the agencies from further similar rulemaking.” (Farm Progress) The joint resolution must still be considered by the House before going to the President’s desk.

Montana Stockgrowers continues to work aggressively with our state and national leaders to represent the interests of our members on this important national policy. We encourage all MSGA members to attend policy committee meetings during our upcoming Annual Convention for further discussion on this and other important policy topics.

A full Annual Convention agenda and registration can be found on our website at mtbeef.org.

Senate Hearing Reviews Army Corps’ Role in WOTUS

waterWASHINGTON (Sept. 30, 2015) – Today the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife and Water held a hearing on the Army Corps of Engineers’ participation in the “waters of the United States” regulation. The subcommittee focused on internal memos released by the House Oversight and Government Reform Committee. While the memos show the Corps leadership having serious concerns with the science underlying the WOTUS rule, Jo Ellen Darcy, Assistant Secretary of the Army insisted, as co-author, the Corps supported the final rule.

The hearing provided ample opportunity to highlight the issues raised in the memos and the gulf between the Corps and EPA in the arbitrary standards used in the final rule. Philip Ellis, National Cattlemen’s Beef Association president and Chugwater, Wyo., cattleman, said the arbitrary nature of this rule poses a danger to all land uses.

“This rule is clearly not based on science, nor does it relate to keeping our waters clean,” said Ellis. “It is a transparent land grab by the administration and EPA. Cattlemen and women will continue to oppose this rule in Congress and in the courtroom. This rule and the flawed rulemaking process underlie the need for legislation to withdraw the rule and compel the agencies to work with all stakeholders.”

The WOTUS rule became effective in all but 13 states on August 28. A Federal Circuit Judge in North Dakota granted a temporary preliminary injunction on implementation of the WOTUS rule in the case brought by the 13 states before his court. Since enforcement of the rule, 31 states and numerous stakeholders, including the NCBA and Public Lands Council, have engaged in 22 lawsuits challenging EPA’s transparent lack of authority to regulate all waters in the United States.

NCBA and PLC support S. 1140, the Federal Water Quality Protection Act, bipartisan legislation that would direct the EPA to withdraw the final WOTUS rule and work with stakeholders in drafting a new rule to clarify the Clean Water Act.

–NCBA Press Release

Montana Water Policy Updates – Ditches, CSKT, Adjudication and More

Montana water ranching updatesThe following update is taken from our Land Use & Environment Committee meetings during Mid Year in Miles City last month, courtesy of Krista Lee Evans, Blake Creek Project Management. Krista was generous enough to provide our members an update via video conference using Google’s Hangout On Air product. Our ranchers were able to see and listen to Krista’s update even though she wasn’t able to physically be in Miles City with us. It’s great to see ranchers embracing technology, which allows us to open more doors for better communication.

Listen to Krista’s presentation and a following Q&A session on the podcast at the end of this post.

Ditches – Rep Connell is continuing to push for a change in ditch rights.  This issue was in front of the Water Policy Interim Committee as HJ 26.  A recent Colorado Supreme Court decision was discussed in detail. The decision provided for a three-pronged test that if met a property owner could move a ditch with consent of the ditch easement owner.  AGAI and Montana Water Resources Association both opposed the approach of trying to “balance the property rights” due to the fact that as dominant estate owners, we have purchased the easement right and there should be no “balancing”.  I also suggested that if property owners do not want a ditch on their property then they should buy unencumbered property.

CSKTCSKT has filed a lawsuit in federal district court stating that they not only own the water rights for the water going through the reservation but they own the water.  This will be a significant issue in the court and we need to pay attention.  There are some interested in continuing negotiations with the tribe but there are others that are unwilling to continue negotiations.  The tribe has stated publically that they would still move forward with the negotiated compact but they are not willing to make significant changes (other than dealing with the management of the irrigation project).

The water policy interim committee has created a work group to review the model used during negotiations.  The work group will report back to WPIC with any questions, concerns, or suggestions.

Adjudication Funding – The Water Court and DNRC came to the Environmental Quality Council meeting outlining the future of the adjudication.  The examination is done.  This is a huge accomplishment and was completed a year ahead of the statutory deadline.  The Water Court did issue an order for reexamination of the verified basins.  In order to complete the adjudication through the first decree phase in all basins as well as decree enforcement support from the DNRC to the Water Court additional funding will be needed.  The two entities are going to request $14.6 Million.  They did not disclose where they want to get the money.

State Water Plan – Different basins have put together their proposals based on different interest groups input.  As this comes into a final statewide plan, we need to be fully engaged.  There are significant suggestions in these various basin plans including:

  1. Having a professional staff of water commissioners that are under the control of the water court or DNRC.
  2. Requiring water quality monitoring at all stream gauging stations.
  3. Requiring a minimum instream flow
  4. Requiring statewide measurement devices.
  5. Prioritizing the types of beneficial uses.
  6. Requiring a change of use to go from flood to sprinkler.

Water Court Role – The Water Court is having multiple discussions across the state discussing expanding the role of the water court.  Expansions being discussed include having the water court handle all appeals from DNRC rather than the district court, having all water commissioners managed by the water court, and multiple other items.  I would suggest that the water court needs to finish its existing job of completing the adjudication before it takes on any additional responsibilities.

For more information about how MSGA represents Montana ranchers on water policy issues, please contact our Director of Natural Resources, Jay Bodner, at jay@mtbeef.org.