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Monday, July 17, 2017

Montanans Given Chance to Secure Their Water Rights

By Amorette Allison, Miles City Star

Many property owners in Custer County and throughout Montana received a letter in the mail recently from the Montana Department of Natural Resources that had something to do with water rights.  The letter has confused more than a few people.

The letter was sent to property owners throughout the state who might have either an in-stream or groundwater right on their property.  The letter is giving holders of water rights an opportunity to formally file for that right if they have not done so previously. 

According to the state officials, if property owners know that they have a water right and it was filed for at some time in the past, they can ignore the letter.  And if the property has neither a stream nor a water well, the letter can also be ignored. 

State Rep. Brad Hamlett (D-Cascade), formerly a four-term state senator, introduced a bill in the 2017 legislature with the short title of “Revise laws for the filing of exempt water right claims.” That bill’s passage is what led to the letter being sent. 

Officials said that many property owners, especially if they live in town and have city water, have no idea if they even have a water right.  Fortunately, DNRC has both an online listing of water rights and a phone number – 406-444-0560- to call to inquire.  The agency has been receiving a very high volume of calls.

That is one reason, said John Grassy, communications officer of DNRC, that the deadline for the latest round of water filings is not until June 30, 2019.  “The two-year deadline gives people a chance to do research,” he explained. 

DNRC has posted a video and a “Frequency Asked Questions” section on their website to explain what an exempt water right is, whether you have one, and why you should fill out the form and mail them a fee.

Hamlett, the state lawmaker who sponsored the bill, explained that water laws in Montana have a long and complicated history.  “Our water rights are the history of Montana and we want our history to be as accurate as possible.” For one thing, Hamlett wants to make certain that every water right in Montana is filed and recorded because the total amount of those water rights is important when determining the downstream flow of the Missouri and Yellowstone rivers after they leave Montana.  If Montana has a certain amount of claimed and dated water rights, those rights have priority over claims downstream. 

Another reason Hamlett wants the water rights updated is the computer systems and programs have “greatly increased the efficiency of filing.” With water rights dating back to the mid-1800s and major updates having occurred in the 1970s and 1980s, there are a lot of paper files that need to be updated to a modern format. 

The DNRC handbook states that a water right belongs to the land on which it is used.  “When that land is sold, the seller shall disclose on the realty transfer certificate (RTC) at or before the closing, if any water rights associated with the property will be transferred with the land (section 85-2-424, MCA).  A fee must be paid at closing or upon completion of the transfer.”

Determining if the property came with water rights may mean finding the paperwork from when the property was purchased.  Those papers may tell you if the water rights for your property has already been filed. 

In Montana, water right distribution follows the traditional “first-in-time, first-in-right” philosophy.  So a user with an older, senior water right always takes preference over the junior water right, even if that means the junior water-right holder receives no water. 

Since the form takes time to research and fill out and a filing fee is required, many property owners may decide that it is not worth filing rights on an abandoned well, particularly in communities with public water systems, where many old wells have been capped and abandoned.  However, some people in Miles City still use wells, usually for lawns and gardens.  In older homes, those rights were probably filed for.  If a water right is not filed and dated, that right can be considered abandoned. 

Most agricultural producers have an idea of their rights but many in-town residents need to check into the issue as well and then Montana will be ready for any 21st century water battles.