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.

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EPA and Army Corps Proposal Expands Clean Water Act Jurisdiction

National Cattlemens Beef USA logoWASHINGTON (March 25, 2014) – Today, the U.S. Environmental Protection Agency (EPA) and the Army Corp of Engineers (Corps) proposed an expansion of their federal authority over “waters of the United States.” The National Cattlemen’s Beef Association (NCBA) is deeply concerned by this vast overreach by the EPA and the Administration. Under this expansion, essentially all waters in the country would be subject to regulation by the EPA and the Corps, regardless of size or continuity of flow.

Listen to the Podcast: Beltway Beef Audio -Ashley McDonald, NCBA environmental counsel, discusses the proposed rule by the EPA and the Army Corp of Engineers to expand Clean Water Act jurisdiction and the potential impacts to cattlemen and women.

“This is a step too far, even by an agency and an administration notorious for over-regulation,” said NCBA President Bob McCan, Victoria, Texas cattleman. “This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit. This proposed regulation and the burdensome federal permitting scheme will only hinder producers’ ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field.”

Almost all activities on our open land will now touch a “water of the United States” under the expanded definition. For the first time, ditches are included in the definition of a “tributary” and now will come under federal jurisdiction. Activities near a jurisdictional ditch will now require a federal permit. Many cattle operations will be required to get Sec. 402 National Pollutant Discharge Elimination System (NPDES) permits, Sec. 404 Dredge and Fill permits or Sec. 311 Spill Prevention Control, and Countermeasure (SPCC) spill plans.

“NCBA policy states we oppose expanding federal authority over non-navigable waters,” McCan said. “This proposal flies in the face of the Constitution and the Supreme Court’s interpretation of the EPA and Corps’ jurisdiction under the Clean Water Act. It takes the authority Congress granted EPA beyond the scope of Congressional intent. This is an illegal act by the EPA, and we will defend the rights of our members and producers.”

The proposal will be open for public comment for 90 days. NCBA will submit comments on behalf of the over 175,000 producers it represents.

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The National Cattlemen’s Beef Association (NCBA) has represented America’s cattle producers since 1898, preserving the heritage and strength of the industry through education and public policy. As the largest association of cattle producers, NCBA works to create new markets and increase demand for beef. Efforts are made possible through membership contributions. To join, contact NCBA at 1-866-BEEF-USA or membership@beef.org.

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House Passes Water Rights Protection Act

WASHINGTON – The Public Lands Council and the National Cattlemen’s Beef Association hail the passage of the Water Rights Protection Act (WRPA), H.R. 3189, by the U.S. House of Representatives by a 238 to 174 vote. Introduced by Congressman Scott Tipton (R-Colo.), the legislation reiterates the limits to federal agency jurisdiction of water.

H.R. 3189 comes as a means to combat the Federal Government by way of the United States Forest Service and the Bureau of Land Management from seizing water rights in exchange for land use permits, without just compensation. An issue that arose in a USFS directive applicable to ski areas was seen by industry as an issue that could threaten all water users, including ranchers, as they depend on water rights on public and private land to keep their businesses viable.

“With 40 percent of the western cow herd spending some time on public lands, the ability to have secure water rights is imperative, not only to producers but to the economy,” said NCBA President Bob McCan, a rancher from Victoria, Texas. “This legislation is a commonsense bill that provides certainty to ranchers and leaves water management to the states where it belongs. The federal agencies must be accountable to citizens and the states and cannot, at will, circumvent state water laws at the expense of landowners.”

The legislation will prohibit the Secretary of the Interior and the Secretary of Agriculture from requiring the transfer of water rights without adequate and just compensation. Additionally, the bill supports long-established state water laws, clarifying that the federal government does not have jurisdiction.

“Our members face the same threats as ski companies do—perhaps with more at stake as they are individuals and families depending on these water rights for their livelihood”, said PLC President Brice Lee, a rancher from Hesperus, Colo. “It is important to include all industries that may be impacted, to keep our rural communities thriving. Rep. Tipton’s bill accomplished the purpose of protecting all water right holders, including ranchers.”

PLC and NCBA supported an amendment by Rep. Tipton that made revisions to the legislation which clarified the intent of the bill. We opposed an amendment by Rep. Jared Polis (D-Colo.) that would have severely limited the legislation to become applicable only to ski operations, eliminating the efficacy of the bill for ranchers.

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Montana Public Lands Council discusses issues at Convention

Montana Stockgrowers Collegiate memberSee more blog coverage from the 129th Annual Stockgrowers Convention by clicking here.

By Kelsey Haughian, Montana State University Collegiate Stockgrower member. 

The 129th annual MSGA Convention and Trade Show kicked off Thursday with numerous committee meetings and workshops at the Holiday Inn and Convention center in Billings. Thus far the member turnout has been outstanding.  Members had the opportunity to weigh in on the Montana  Public Lands Council Annual Meeting, Beginning Farmers and Ranchers Workshop and Membership Development & Services Committee meeting to name a few.

I was fortunate to attend the Montana Public Lands Council’s annual meeting held yesterday morning. It was great to see such a dedicated group of individuals from different areas of the state show up and voice their opinion. The diverse perspectives made for valuable and informative sessions with attendees ranging from collegiate members to veteran producers.

The Public Lands Council discussed issues ranging from sage grouse to forest fires to Confederate Salish Kootenai Tribal water rights. People stepped up to the podium to voice their opinion on topics that hit home for them. Topics that were discussed can directly affect ranchers; therefor it was and is, pertinent that their voices be heard.

MSGA’s annual convention is a place for people to come together to make sure congressional policy is in the best interest of the people who live and work in the industry day in and day out.

 

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PLC and NCBA Hail House Committee Passage of H.R. 3189

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(The following is a press release from the Public Lands Council)

WASHINGTON—(Nov. 14, 2013) Today, the Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) hailed the House Committee on Natural Resources for passage of H.R. 3189 The Water Rights Protection Act (WRPA), the bill passed as bipartisan legislation with a recorded vote of 19-14. The bill was introduced in early October by Scott Tipton (R-Colo.) and co-sponsors, Mark Amodei (R-Nev.), Rob Bishop (R-Utah), Tom McClintock (R-Calif.), and Jared Polis (D-Colo.).

WRPA was developed to protect water rights from a recent directive and actions by the U.S. Forest Service (USFS) which allow the agency to usurp water rights from private entities — despite private water development and property rights. The USFS is attempting to obtain these water rights for the federal government as a condition of issuing standard land use permits; however, USFS has repeatedly failed to provide just compensation — a violation of the Fifth Amendment.

“This bill is commonsense legislation, which will allow western producers to stay in business,” said Brice Lee, PLC president and Colo. rancher. “The directive and actions by the Forest Service and their attempt to unjustly acquire these rights amounts to a total negligence of states’ water law, private property rights, and the Constitution. The full committee taking up H.R. 3189 is promising — we are urging the House to take the bill to the floor and stop the USFS directive in its infancy.”

Last month, the Subcommittee on Water and Power held a hearing on the bill, inviting a panel of witnesses who testified to the importance of water rights to private business. Witnesses explained the necessity of sovereign state water laws, which are long-established in the West. Witnesses told the subcommittee how devastating the impacts of this directive are to industries, including ski companies and federal land ranching — stressing the importance of these water rights and their significance in keeping businesses viable in western communities.

NCBA President and Wyo. rancher Scott George applauded the committee for taking up and passing the bill.

“This legislation is urgent and the committee’s hearing sends an important message to the USFS — holding them accountable and ensuring they cannot abuse water-right holders any further,” George said. “Ultimately, the USFS directive and similar actions could put a lot of folks out of business. Committee passage of this legislation is a step in the right direction for Congress and serves as an opportunity for them to protect private property rights for the livestock industry.”

Both Lee and George urge the House to move H.R. 3189 to the floor for swift passage and for the Senate to take the bill up without delay.

PLC has represented livestock ranchers who use public lands since 1968, preserving the natural resources and unique heritage of the West. Ranchers who utilize public lands own nearly 120 million acres of the most productive private land and manage vast areas of public land, accounting for critical wildlife habitat and the nation’s natural resources. PLC works to maintain a stable business environment in which livestock producers can conserve the West and feed the nation and world.

Preventing a Federal Water Grab: H.R. 3189 the Water Rights Protection Act (WRPA)

Rachel Abeh

Rachel Abeh

Written by Rachel Abeh

The Public Lands Council (PLC) hails the house for their work on H.R. 3189 the Water Rights Protection Act (WRPA). The bipartisan bill was introduced in early October by Congressman Scott Tipton (R-Colo.) and co-sponsors, Mark Amodei (R-Nev.), Rob Bishop (R-Utah), Tom McClintock (R-Calif.), and Jared Polis (D-Colo.).

The legislation was developed to protect water rights from a recent directive by the U.S. Forest Service (USFS) allowing them to potentially take water rights from private entities that are using water on federal lands. The USFS is attempting to acquire water rights for the federal government as a condition of issuing standard land use permits. The Forest Service has failed to provide just compensation; however –a violation of the Fifth Amendment.

On October 10, 2013 the House Subcommittee on Water and Power held a hearing on the bill, inviting a panel of witnesses who testified on the importance of the established state water laws and the impact of this directive on their industries, including ski areas and agriculture. The witnesses stressed the importance of these water rights and the significance of protecting these rights to sustain western businesses and rural communities.

“Once again, the federal government is overstepping its bounds,” said PLC president and Colorado rancher Brice Lee. “The Forest Service is offering special use permits only in exchange for these takes, rather than providing just compensation. Not only does their attempt to seize these rights abuse holders of those rights and prove the disregard USFS has for the individuals that rely on these permits; further, they are blatantly ignoring state sovereignty in governing water law. The level of bureaucracy we have seen with this directive is reminiscent of the Environmental Protection Agency’s work –it is both overreaching and incredibly damaging for the individuals impacted.”

H.R. 3189 would prohibit the Secretary of the Interior and the Secretary of Agriculture from, wrongfully transferring water rights from private to federal hands. Additionally, the bill supports deep-rooted state water laws, clarifying water rights are unique to sates and it is each of the states’ jurisdictions to govern its water law.

Representative Steve Daines has been on-board with the legislation—working to protect Montana producers from this bureaucratic taking. PLC urges swift passage of this important bill, continue to express your support of WRPA by contacting Montana’s Senators to gain their engagement on this issue.