What does that "file for exempt water rights" notice really mean?
Did you recently receive this letter from the Montana Department of Natural Resources? So did about 350,000 other property owners throughout the state.
This notice was the result of legislation passed during the 2017 Legislative Session. You may recall hearing about HB 110 throughout our coverage of the Session. That’s because we talked about it a lot and it’s important to anyone who holds a water right that was previously exempt from filing.
Thanks to Blake Creek Project Management, here’s a little Montana water law history that sheds some light on why you’re now being asked to file on those previously exempt from filing rights:
Prior to the 1972 Constitution there was no requirement for a water user to file their water use. Some water users filed with their county and in areas where water use was contentious, there were District Court decrees outlining priority dates, place of use, etc.
The 1972 Constitution recognized existing water rights and charged the state with creating a record of all water rights in the state, which meant creating a list of all water rights that were put to use prior to 1973. It’s important to note, that any new water use that started after 1973 is part of the new appropriations process and is not part of this claims filing process.
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 provided two exceptions to this requirement – instream stock use and domestic use.
As the adjudication progressed and Water Court decrees were issued, it was recognized that instream stock and domestic rights weren’t part of these decrees because water users with a pre-1973 right hadn’t been required to file. There have been multiple pieces of legislation over the last 6 years to create a process for these water users to file their claims so that they could be part of the Water Court decrees and have their rights protected.
So, with that history in mind let’s talk about what those recent notices actually mean.
In an effort to accurately finish the adjudication process, the state needs to know about ALL your water rights, even the pre-’73 rights that were historically exempt. If you have instream stock and domestic water uses that you haven’t previously filed on, it’s important to respond to the DNRC letter by filling out and submitting these forms from their website:
Addendum to Statement of Claim for Existing Water Rights: http://dnrc.mt.gov/divisions/water/adjudication/hb-110-exempt-claim-filing/addendumstatementofclaim62117.pdf
What happens if you don’t file?
You will not lose your domestic or instream stock rights if you don’t file on them; however, if any other rights are filed on that same source you will be subordinate, or junior, to those filed rights.
Here are a few more important things to know about instream stock and domestic water rights:
- Applies ONLY to instream stock and domestic uses.
- Stock use must be “direct from source” – if the water has been diverted then a claim may not be made on that use – for example, if you divert water down a ditch and your cows, horses, goats, etc drink from the ditch it would not be covered under this claim filing. It must be “direct from the source” – meaning that they drink the water directly from the creek, river, drainage, etc.
- Applies to water rights that were put to use before 1973.
- Applies to water rights that were not filed on previously.
- If you have a pre-1973 well that is used for both domestic and stock (for example house and corrals) a claim needs to be filed for each use – so you would need to file 2 for that 1 well.
- The fee is $130 per claim with a maximum total for all claims filed by one person in a water court division of $1560. (If you file more than 12 claims the 13th claim and above are not charged a fee.)
- Double check all of your water rights to make sure that they reflect your water use. If there are any instream stock or domestic rights that were put to use that have not been claimed in the adjudication process you should seriously consider submitting a claim under the current process.
If you have questions about this process, call 406-444-0560 or visit http://dnrc.mt.gov/news/divisions/water/adjudication/hb-110-exempt-claim-filing
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