2019 Montana Legislature

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HOUSE BILL NO. 286

INTRODUCED BY A. REDFIELD

 

A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING WATER RIGHT LAWS IN CONNECTION WITH STATE LAND LEASES; DECLARING THAT THE USE OF PRIVATE WATER RIGHTS DERIVED FROM A WELL OR DEVELOPED SPRING WHOSE DIVERSION WORKS IS LOCATED ON PRIVATE LAND FOR USE ON STATE LAND IN CONNECTION WITH A STATE LAND LEASE DOES NOT RESULT IN AN OWNERSHIP INTEREST IN THE STATE OF MONTANA; CREATING A NOTICE PROCEDURE FOR WATER RIGHTS HOLDERS WISHING TO USE PRIVATE WATER RIGHTS ON STATE LAND; PROVIDING RULEMAKING AUTHORITY; AMENDING SECTION 85-2-306, MCA; AND PROVIDING EFFECTIVE DATES AND APPLICABILITY DATES AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND A RETROACTIVE APPLICABILITY DATE."

 

     WHEREAS, the use of water derived from a well or developed spring whose diversion works is not located on state-owned land to provide stock water on state-owned land is in the best interest of the state land lessee and the state; and

     WHEREAS, the ability to manage livestock grazing and improve grazing management through the use of stock tanks is a benefit to state lands and the income received by the state GENERATES REVENUE TO THE STATE THROUGH INCREASED REVENUE from grazing leases; and

     WHEREAS, the state of Montana asserting ownership over privately held water rights derived from a well or developed spring whose diversion works are located wholly on private land serves as a disincentive to improving grazing management on state-owned lands through the use of water tanks; and

     WHEREAS, the Montana Water Court in Case No. 43A-A found that the temporary use of a privately owned water right on state land did not equate to state ownership of all or a part of the water right; and

     WHEREAS, a water right that is diverted, AND developed, and perfected on private land is not subject to the holding in Department of State Lands v. Pettibone; and

     WHEREAS, THE STATE OF MONTANA INCORRECTLY EXPANDED THE SCOPE OF DEPARTMENT OF STATE LANDS V. PETTIBONE TO INCLUDE ALL TRUSTS, NOT JUST SCHOOL TRUST LANDS; AND

     WHEREAS, THE STATE OF MONTANA INCORRECTLY EXPANDED THE SCOPE OF DEPARTMENT OF STATE LANDS V. PETTIBONE TO ASSERT OWNERSHIP OVER WATER RIGHTS THAT WERE DIVERTED AND DEVELOPED ON PRIVATE LAND; AND

     WHEREAS, THE STATE OF MONTANA IS VIOLATING 85-2-306, MCA, IN ASSERTING OWNERSHIP OVER A GROUND WATER DEVELOPMENT IN WHICH THE STATE DOES NOT HAVE EXCLUSIVE PROPERTY RIGHTS IN THE GROUND WATER DEVELOPMENT WORKS; AND

     WHEREAS, the right to use water is a property right that cannot be taken without due process of law.

     THEREFORE, the Legislature of the State of Montana finds that the use of water from a well or developed springs that is diverted from a privately owned diversion works located on private land and utilized on state land does not create an ownership interest in the water right in the state of Montana.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

(Refer to Introduced Bill)

Strike everything after the enacting clause and insert:

     NEW SECTION.  Section 1.  Temporary use of a water right on state trust land -- restrictions on state ownership -- rescinding of noncompliant ownership interests required. (1) A water right owner may put water from a well or developed spring with ground water development works located on private land to beneficial use on state trust land for the duration of a state land lease the water right owner holds.

     (2) The state may not obtain an ownership interest in a water right or the ground water development works of a water right that is diverted from a well or developed spring exclusively based on trustee obligations for state trust land unless:

     (a) the ground water development works are located on state trust land;

     (b) all or part of the place of use of the water right is located on state trust land;

     (c) the state owns exclusive property rights in the ground water development works; and

     (d) other statutory requirements are met.

     (3) Except as provided in subsection (2), the state may only acquire ownership interests in a water right or ground water development works to satisfy trustee obligations for state trust land by exercising the right of eminent domain pursuant to Title 70, chapter 30.

     (4) Before September 30, 2019, the state shall rescind any claim of ownership it asserted or acquired prior to [the effective date of this act] in a water right or ground water development works to satisfy trustee obligations for state trust land that do not meet the requirements of subsections (2) or (3).

     (5) For the purposes of this section, "state trust land" has the meaning provided in 77-1-101.

 

     NEW SECTION.  Section 2.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 85, chapter 2, and the provisions of Title 85, chapter 2, apply to [section 1].

 

     NEW SECTION.  Section 3.  Effective date. [This act] is effective on passage and approval.

 

     NEW SECTION.  Section 4.  Retroactive applicability. [This act] applies retroactively, within the meaning of 1-2-109, to water from a well or developed spring with ground water development works developed prior to [the effective date of this act].

- END -

 


Latest Version of HB 286 (HB0286.02)
Processed for the Web on February 23, 2019 (11:53am)

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