Resolution 13–07: Legal Clarification of Reserved Water Rights

  • Area Originating From: Area 4
  • General Session Action: Passed with Amendment
  • Submitted by: Big Horn Conservation District
 

WHEREAS, the intent of the Montana Legislature, through the Montana Water Use Act, Section 89-865 et. seq., R.C.M. 1947, is to provide for the wise utilization, development, and conservation of the waters of the State of Montana for the maximum benefit of its people with the least possible degradation of the natural aquatic ecosystem; and,

WHEREAS, Section 89-890 of the Act provides for the establishment of reservations of water by state and federal governmental entities, including conservation districts; and,

WHEREAS, conservation districts have, through the completion of a general plan for the development of each conservation district’s reserved water, and through yearly and/or 10-year comprehensive reports to the Board of Natural Resources of the Dept. of Natural Resources, provided proof of reasonable diligence; and,

WHEREAS the 1978 Order of Board of Natural Resources Establishing Water Reservations acknowledges Board satisfaction with the purpose of each conservation district water reservation, the need for each conservation district water reservation, the amount of water necessary for the purpose(s) of each conservation district water reservation, and that the conservation district water reservation(s) are in the public interest, and

WHEREAS M.C.A. 85-2-316(8)(a) states: A person desiring to use water reserved to a conservation district for agricultural purposes shall make application for the use with the district, and the district, upon approval of the application shall inform the department of the approved use and issue the applicant an authorization for the use.

THEREFORE, BE IT RESOLVED that Montana Association of Conservation Districts (MACD) shall encourage, through contact and monitoring feedback reports, the Montana Department of Natural Resources to adhere to Section 89-8-107 of the Act, and Section 85-2-316(8)(a) M.C.A. and assist conservation districts in their efforts to promote beneficial use of Montana’s waters by allowing use of conservation district reserved water to be exempt from the DNRC change process if:

1) The source was identified on the original reserved water application;

2) The original public notice of the CD reflects correct information of proposed use;

3) The place of use, township, and range are listed on the original reserved water

application;

4) The proposed use does not exceed 10.0 cfs or 1,000 ac/ft per year; and

5) The purpose is for agricultural irrigation.

BE IT FURTHER RESOLVED that the Montana Association of Conservation Districts working jointly with DNRC to adhere to M.C.A. 85-2-316(8)(a) to approach the Montana legislature to provide sufficient funding and staff to timely process approved conservation district reserved water applications.

AND BE IT FURTHER RESOLVED that Montana Association of Conservation Districts seek legal clarification that a conservation district reserved water right is a conditional water right protected by law as is a permit to appropriate water, and as such is not subject to the same requirements of a new water right permit application.

 

UPDATE 11/2014: MACD and DNRC are determining the best way to approach this and talking with water rights specialists. It is unlikely we will be able to move forward with this until all water rights have been quantified.