Montana Viewpoint
A new water rights fee is controversial, but needed.

November 28, 2005

Last week, Montanans who hold water rights began to receive notices from the Montana Department of Revenue informing them that because of a new law — HB 22 — they will now have to pay a fee that will be used to accelerate — basically from a standstill — the examination, certification, and recording of individual water rights throughout Montana. Not co-incidentally, I began to receive phone calls and letters asking: one, why in blue blazes did we have to pay for this again?; and two, by the way, did I vote for it?

The answer to the second question is easy; I was one of 145 (out of 150) legislators who voted for HB 22.

The answer to the first question is longer, and begins with the adoption of our 1972 Constitution, which states in Article IX, section 3 that “all…waters within the boundaries of the state are the property of the state for the use of its people…” It also requires the legislature to provide a centralized system of water rights records. In 1972, water rights were filed only at the county courthouse.

To accomplish this, in 1979 the Montana Supreme Court ordered that anyone with an existing right had to file a claim with the Montana Department of Natural Resources (DNRC) by April 30, 1982, or forfeit the right. A total of 200,000 claims were filed. All claims were then to be examined for validity and entered into the central register. Naturally, there was a fee to cover costs, hence, many holders of existing rights feel they have already paid their dues, and why should they pay again?

Well, first to safeguard our water rights and second to make up for the mistakes of past legislatures that drastically under-funded the project.

It is a sad fact of life that as a society we all have to pay for the mistakes of those responsible, whether it is a criminal or a legislator. (Please note: they are not the same — mostly — but it does seem to be coming back into vogue.) In 1987 the legislature cut the water rights program budget, and reduced staffing from 38 to 20 people. After a brief up and a long down in staffing levels the number of staff was at 19 until HB 22 took effect. Money raised through the new fee will allow about 30 more staff to be hired.

The whole issue has been a mess for a long time, and without HB 22 it would take from 40 to 50 years to complete the process. That is a long time to live with uncertainty. There are a total of about 220,000 water rights claims in Montana, a whopping 16,000 of which have been granted Final Decrees. 46,000 haven’t even been looked at, and the rest are either in the process of being examined or have been granted only a Preliminary Decree pending completing examination of the claim.

In addition, there are some 89,000 claims that may have to be re-examined because of a change in procedure ordered by the Supreme Court. That is a task of some magnitude.

Because so little headway was being gained, a broad spectrum of concerned groups supported the notion of getting the job done more quickly so the uncertainty of just who owned what can disappear. The reason is simple. A water right is a valuable economic asset, both in terms of its use in production of crops or energy, and as a salable item in its own right. Without knowing for certain that the right is valid, the value of the right is diminished, and the value of a property associated with the right is compromised. Try selling a house without a water supply.

Water is not in infinite supply, and in many areas there is more water allocated to the rights holders than there is actual available water

After a study ordered by the 2003 Legislature, HB 22 was introduced in the 2005 Legislature. It set deadlines for completion of the project, and levied a fee on claims holders to pay for it.

For most of us, the bill is 10 bucks a year for ten years. For irrigators and industrial users, cities and towns, and power generators, it’s based on the amount of water put to use. In total, it will raise about $3 million a year.

It may be annoying to have to pay again for something you already thought you had, but, believe me, it would be a lot more than annoying to lose what you thought you had because of an invalid claim.

Jim Elliott
Phone: 406-444-1556
Mail: State Senate Helena, MT 59620