Wednesday, September 27, 2023

Does the State Co-Own Your Water Right?


Water has become a mainstay of the topics debated in the Montana Legislature. This session Representative Alan Redfield from Livingston introduced a bill that would prevent the state of Montana from claiming partial ownership of water diverted onto state lands from private lands.

This bill clarifies that the state of Montana does not have an ownership interest over privately held water rights derived from a well or developed spring located wholly on private land for use on state land in connection with a state land lease.

Why is this clarification needed?  In the last year the Department of Natural Resources & Conservation (DNRC) has started claiming partial ownership of state land lessee’s private water rights if the water is diverted onto state land.  This is upsetting to many landowners as the state does this without any due process.  Lessees simply receive a notification from DNRC that the state is now a co-owner of their water right that has been diverted, developed, and perfected on their private land.

For years, landowners have chosen to manage their land and the land they lease in the most productive, sustainable manner possible.  For some, that meant diverting water from their well or developed spring (that they paid for) onto their state lease.  Landowners made these decisions under the assumption that their water right was protected.   Were landowners made aware that the state would lay claim to a portion of their water, they likely wouldn’t have diverted water onto their leased land.

Ag organizations like Montana Farm Bureau Federation say they see this as not only an extreme violation of private property rights, but also a disincentive to utilizing water on state-owned lands.  Multiple attempts were made during the interim to resolve this issue with DNRC to no avail; hence, the introduction of HB 286.

Representative Redfield’s bill has been debated and tossed around for most of this legislative session. The bill has now been passed out of both the Senate and House and is now headed to the governor’s desk.

As it reads now, HB 286 clarifies that the state of Montana may only obtain an ownership interest in a water right or ground water development works (diverted from private land) if a court determines the state is an owner of that particular water right or if the state is in possession of a deed transferring ownership of the water right to the state.  This is the same requirement that other water users have to meet.

The bill is supported by Montana Farm Bureau, Montana Stockgrowers Association, Senior Water Right’s Coalition, Association of Gallatin Agricultural Irrigators, Montana Water Resources Association, Montana Well Drillers Association, and private water right holders.

The coalition of groups say the state is asserting that they have a constitutional right to a portion of our water rights based on a 1985 MT Supreme Court case (Pettibone).  However, the MT Water Court has ruled differently than what the state is asserting.

The groups also say that if the question is constitutional, then it is very important that a court make the determination not the department. It is also very important that water users have due process to protect their property rights.  The Court process provides due process.

The DNRC is against HB286 and responded to our request on their position with a statement saying, “As expressed in testimony, DNRC remains concerned about whether HB286 is unconstitutional due to the Montana Supreme Court’s decision in State Lands v. Walter Pettibone. DNRC intends to share these concerns with the Governor’s office to inform his deliberations regarding the bill.”

Comments can be sent to Governor Bullock via the website or call his office toll free at 855-318-1330.



Northern Ag Network/Montana Farm Bureau Federation/Senior Water Right’s Coalition

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