Looking back on Montana’s 67th Legislative Session, the state’s agriculture industry saw some very favorable wins. This year’s hybrid session was met with pros and cons across the board, but the most important thing is that Montana legislators were able to accomplish their task at hand.
Not unprecedented, water was a focused talking point during this year’s session.
“As Montana’s population increases and the demand for unlimited supply of water increases, it is going to become more and more challenging. Truth be told, it is a basic economic supply and demand curve and demand is exceeding the supply,” stated Krista Lee Evans, who lobbied for and represented several water rights organizations during this legislative session.
Continuing, Evans explained that protecting water rights is really a delicate balancing act. What is the best way to meet new demands for the commodity while still respecting the existing users?
During a phone interview on May 19, Evans discussed some water-related bills out of this past legislative session that will impact Montana agriculture.
SB 55 – Revise the Process for Water Right Ownership Updates
SB 55 came out of the water policy interim committee and it helped to clarify how the DNRC can update water right ownership information.
“In Montana, the deed trumps all. But what happens is, in property transfers, the buyer and seller often don’t do the required paperwork, so there are errors in the database of who owns what water right,” Evans explained.
SB 55 addressed those errors and looked at setting guidelines on how and when the DNRC can efficiently update water right ownership records. The bill passed and was signed by Gov. Gianforte on April 20.
SB 307 – Revise Liability Limits for Irrigation Operators
Sponsored by Sen. Mike Lang, Chair of the Senate Agriculture, Livestock, and Irrigation Committee, SB 307 was a huge win for private property owners in the state.
Boiled down, this bill puts a limit on the liability of private property owners who may have a ditch or an irrigation canal running through their property. If someone were to fall in the ditch or in any other way be harmed by the water, there is now a limit on the landowner’s liability.
“SB 307 clarified that for irrigation facilities, we aren’t liable and we don’t have to fence them,” Evans stated.
This bill was supported by many state agriculture organizations and it was signed by Gov. Gianforte on April 28.
SB 136 – Clarify Criteria for Permits and Water Right Changes
SB 136 clarified what constitutes the legal availability of water. In the state of Montana, before a new water right can be issued, both the physical and legal availability of water is assessed. Physical availability is the actual presence of water flowing. Legal availability pertains to whether or not the water is already committed to a water right.
SB 136 is quite nuanced, but essentially it clarified that legal availability of water relates only to other water rights, not water quality. The Montana Supreme Court ruled on a case pertaining to legal availability of water in early February of 2021. SB 136 aligns with the court’s decision and helps to keep water rights separate from water quality.
As Montana’s water continues to become a more precious commodity, bills like SB 136 will help to promote the balance between new and existing demands for water. The bill passed and was signed into law on April 30.
Even though the session is over, the interim is yet to begin, and water-related issues will still be a major talking point. Topics like weather modification, exempt wells, and federal ownership of water rights are slated to be discussed further, Evans says.
As a COVID-19-driven influx of people continue to change Montana’s landscape, Evans says now is as important of a time as ever for agriculturalists to advocate for their industry. Continuing, Evans articulated how advocating doesn’t just need to happen during a legislative session.
“Advocating year-round is so important, and not just with the legislators. Think about how important it is to educate the voters, because if you educate your community members, then when they vote they are going to vote for someone who understands, as well,” Evans said astutely.
The best advocates are the people whose lives are directly affected by the legislation. Water is arguably the most crucial part of a grower’s operation and although Montana water rights as they pertain to agriculture saw some significant wins this past legislative session, producers are still encouraged to stay dialed in on water-related issues.