If you’re in Montana, particular in the Bozeman or Gallatin area, did you know the state’s water rights reexamination and “second decree” process is now underway?
Some may remember the Water Court decree process of 1984. The preliminary decree or “second decree” will basically repeat that process with a few modifications. The Department of Natural Resources and Conservation (DNRC) has begun a limited review of claims to look for potential issues and problems, and water users will be able to object to their own and others’ rights. Under Montana statutes, in order to finish the adjudication, “second decrees” must be issued for basins, like the Gallatin, that were issued before 1997.
Now is a good time to look over your water rights for potential errors.
In practical terms, this is an opportunity to look for errors or problems with your own water rights, and to object to other water rights that you believe have errors or would adversely affect you.
Don’t know where to start? You can get your water right abstracts from DNRC’s water rights query webpage, hire an attorney or water consultant, or you could also try our custom water rights mapping system, Water Sage, to save time.
With Water Sage, you can conduct a lot of due diligence on your water rights very quickly. You can start looking over your own abstracts for incorrect owner names and addresses, as errors are common and could interfere with your ability to receive notices. You can see if their paperwork accurately reflects the way water has been used. Does the abstract correctly show your flow rate, priority date, locations where water is used, ditches that you divert from, and time of year that you divert? If not, you may want to prepare to object to your claim, or there may be other steps you need to take. You may need to address errors so that your claims appear in the decree correctly, or to pursue other administrative processes to address recent or planned changes.
With this decree, the Court will also address any “issue remarks”- those that were held over on your claims from the first decree, and any issue remarks that DNRC adds during this re-examination.
Why is this happening?
Montana’s general statewide stream adjudication began in 1982. Everyone who believed they or their predecessors had established a water right was required to file a claim form by April 30, 1982. Over 200,000 claims were filed. The Montana Water Court was established to adjudicate these claims, and it has been proceeding through the state ever since, river basin by basin, to complete this enormous litigation.
The legislature originally planned for every basin to have three decrees- a temporary preliminary decree (all water users with rights based on state law); a preliminary decree (which would also include the federal and Indian reserved rights), and a final decree. In 1997, the legislature changed the law to expedite the process and remove that second step, but by law, every decree that was issued prior to 1997 must still have a second decree round prior to final decree. Over 90,000 of the 200,000 claims statewide are located in basins that must have a second decree.
Now this process is underway, the Water Court has issued an order requiring DNRC to reexamine claims. The Flint Creek basin preliminary decree has been issued, with an objection deadline next month. The Musselshell River decrees will possibly be issued by the end of the year. Claimants in the Jefferson River basin are being contacted about potential issues, and the Gallatin River basin reexamination is just beginning. The tentative schedule for the first few years includes the following basins, although this is subject to change:
|Basin Name||Basin Number||Projected Decree Issue Date|
|Flint Creek (Phillipsburg area)||Basin 76GJ||Issued – objection deadline Feb 17|
|Clarks Fork Yellowstone River (Red Lodge area)||Basin 43D||2017|
|Musselshell River||Basins 40A and 40C||2017|
|Jefferson River||Basin 41G||2017|
|Gallatin River||Basin 41H||After 41G|
|Shields River||Basin 43A||After 41H|
|Yellowstone River||Basin 43B||After 43A|
|Boulder River||Basin 43BJ||After 43B|
|Missouri River above Holter Dam||Basin 41I||After 43BJ|
Water rights owners are encouraged to work with the DNRC to resolve issues arising during examination of claims and after the decree has been issued. Working with the DNRC may help water users minimize or avoid litigation over claims in the Water Court.
The second decree process will address errors which could interfere with water commissioners’ work in the future – like legal description and ditch name errors and inconsistencies, source name errors, water rights that overclaim old decrees, and filed notices of appropriation.
The second decree is also an opportunity for water users to file claims for their exempt livestock and domestic rights, and to have those claims included in these second decrees. This saves water right owners the cost of doing notice for these claims.
Information Helps Protect Water Rights
Water is a key asset to agricultural operations in Montana. This second decree process involves new litigation, but also provides an opportunity for errors to be corrected. Take the time to review your water rights in order to prepare. This step brings us closer to final decrees and completing the adjudication process.
There are a lot of newcomers, or folks that have been in Montana, but not been through a decree process. Ponderosa Advisors may be able to assist or refer to you resources for help. Please feel free to contact us, or request a free webinar demonstration of our Water Sage technology.
This commentary was originally written by Colleen Coyle for the Association of Gallatin Agriculture Irrigators and appeared in their Nov. 2016 newsletter.