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