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August 17, 2016: Legislative Committee Welcomes Public Comment on Proposed Changes to Montana Water Laws
Nancy Zalutsky
Legislative Committee Welcomes Public Comment on Proposed Changes to Montana Water Laws

Montana’s Water Policy Interim Committee (WPIC) held 2 days of meetings in Helena on July 11 and 12.  WPIC is a joint bipartisan legislative committee that conducts interim studies on water issues and uses that information to propose new laws and changes to existing laws. The next meeting is August 29 and 30 at the Capitol in Helena. I have attended WPIC meetings for the last year and most of the comments on water policy are made by “policy wonks” such as government employees, water attorneys and lobbyists for various stakeholders. Even if you belong to a group represented by a lobbyist, you may still want to present your point of view as a water user. You can participate in the process directly by attending meetings and testifying before the committee, follow it via web stream or read these updates.

WPIC is asking for public comment on the following proposed bills:

Wp01 clarifies the 15 percent threshold for water commissioner appointments by adding “at least 15% of the flow rate of the water rights affected by the decree” to the existing language of at least 15% of the water rights affected by the decree.  In the past it has not been clear whether the law refers to 15% of the water rights owners, 15% of the water rights or 15% of the flow rate affected by the decree.

Wp02 requires a water commissioner to complete at least one water commissioner educational program prior to administering water. WPIC also added language allowing the judge to waive the requirement.  The intent of the waiver is to allow the unexpected or emergency appointment of a commissioner when training is not available.

Wp03 revises the water right change process to exclude a change of water use related to the method of irrigation, i.e. flood to sprinkler. Water users would still have to apply for a change to the place of use (POU) or point of diversion (POD) if the change of method requires a new POU or POD. This revision will not allow a water user to expand acreage by changing from flood to sprinkler. WP03 also adds a provision that allows the Department of Natural Resources and Conservation to consider only current water use when analyzing the consumptive use portion of any appropriation right. Under current law, the water user must prove pre-July 1, 1973 water use. WPIC has recognized that in the years since 1973, that historical use has become time-consuming, expensive and difficult to prove.

Wp04 creates a written waiver that can be filed by water users to waive any adverse effects on an existing water right, certificate, permit, or state water reservation resulting from an application for a permit. The DNRC subsequently conditions the water right to reflect the waived portion affected by the exercise of that permit. The senior water user would likely need to subordinate a portion of the right to all existing juniors but the amount would be the net depletion caused by granting the new use rather than the entire amount of the new use.  The department may use the waived portion of an appropriator’s existing water right affected by the exercise of the permit for determinations of physical and legal availability. The statute would also prevent the DNRC from considering adverse effects in a change proceeding for prior appropriators who have filed a waiver.

Wp44 is an alternative to the waiver proposed in WP04. If passed, the bill would allow the approval of a permit or a water right change that would be denied under current law because water is not legally available for the permit or the change adversely affects other water rights holders. The applications would be granted only in cases where the following conditions are met:

• The potentially affected water right owner provides written documentation of the conditions to be placed on the permit or change that will allow the reasonable use of his senior water right;

• Detailed conditions are placed on the exercise of the permit or change; and

• The DNRC provides documentation of the conditions to the Water Court, water commissioners or anyone else who may be administering water rights.

Wp06 expands the jurisdiction of the Water Court by allowing a party who is aggrieved by a final decision on an application for a permit or change in appropriation right to petition either the district court or the water court for judicial review of the decision. Currently DNRC decisions on water right permits or changes must be appealed to a district court. Some water users prefer the district court because the judges are locally elected officials while others prefer to present their case to a court that specializes in water matters.

Wp11 revises the statute regulating the transfer of water rights to authorize water judges and water masters to terminate water rights if a party fails to file the appropriate forms and pay the fees necessary to update the ownership of the water rights.

Wp07 and wp20 provide alternate definitions of “combined appropriation” for ground water appropriations that are exempt from permitting requirements. This issue arose from a 2014 District Court decision reinstating the definition of combined appropriation to the 1987 DNRC rule that defined a combined appropriation as an appropriation of water from the same source aquifer by means of two or more groundwater developments, the purpose of which, in the department’s judgment, could have been accomplished by a single appropriation. HB 168 and SB 303, introduced during the 2015 session to address issues raised by the court decision, failed to pass the Legislature, so WPIC is tackling it again. Wp07 reinstates the rule that was overturned by the court decision by defining a combined appropriation as an appropriation of water from the same source aquifer by two or more wells or developed springs that are physically connected into the same system.

Wp20 defines a combined appropriation as an appropriation from the same source aquifer by two or more ground water developments or developed springs, the purpose of which, in the department’s judgment, could have been accomplished by a single appropriation. The developments need not be physically connected to be considered a combined appropriation. The wells or springs may be separate parts of a project or development. The wells or springs need not be developed simultaneously. The amount of water appropriated from the entire project or development from these ground water developments in the same source aquifer is the combined appropriation.

Although no bill drafts are available, the committee has requested staff to prepare the following bill drafts:

• Statutory appropriations for the Groundwater Investigation Program (GWIP) and the Surface Water Assessment and Monitoring Program (SWAMP) to gather information on water availability to help curb costs for change and permit applications and gather information for future water planning policy decisions.

• A bill to create an advisory council for SWAMP; and

• A bill to reorganize Clark Fork basin watershed groups.

WPIC has completed two reports to the 65th Legislature to be discussed at the August meeting: “Issues of Water Availability and Supply” and “Assuming Dredge-and-Fill Permits.” In addition, WPIC welcomes public comment on a report and draft legislation related to its study of the future of the Montana Water Court. Comments may be sent to the WPIC at P.O. Box 201704, Helena, MT 59620-1704 or emailed to jasonmohr@mt.gov with the subject line, “Future of the Water Court comments.”

Comments received after August 15 will be provided to the WPIC at the meeting. Comments are welcome in person at the meeting as well.

If you have an interest in Montana water policy and issues, now is the time to become better informed and let the Legislature know what you think.