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.