Montana's water is being wasted

"People can live without just about anything, but they can't live without water.  The truth that water is an absolute necessity is forgotten by many of us, however, because it's so easily available.  We simply turn on the tap and it's there-all we need, and more.  Water is arguably our most precious resource, but those of us with plenty lose sight of that fact."

  - Christina Roessler, "Las Vegas & The Groundwater Development Project."

Protect Our Water Rights

To prevent Montana's water from being wasted.  To make sure existing water rights holders don't lose their first-in-time, first-in-right water, and by holding state agencies accountable for preserving Montana's water for future generations.

Background:

 In 2004, Fidelity Exploration and Production Company submitted one application for a beneficial use permit to market the water from its coal bed methane operations in Montana. Because the application was for 5,650 acre-feet per year, the Montana Water Use Act would require FEPCO to meet more stringent public interest requirements before the permit was approved. The application also had the potential to trigger a provision of the Montana Water Rights Act requiring the Department of Natural Resources and Conservation (DNRC) to petition the legislature to approve such a large appropriation of ground water.

 In 2006, the original water right application was expanded to 6,863 acre-feet, but was split into two water marketing applications, in a blatant attempt to avoid the stricter criteria and legislative approval requirements. Northern Plains believes that the DNRC should consider the two applications together, as they were originally proposed, rather than allowing FEPCO to avoid legal requirements.

Problem:

For Montana water rights, "first in time is first in right"-i.e., the first individual to appropriate water from a source holds the most senior water right. If the water source does not have enough water to supply all users' rights, those with the most senior water right have the first chance to use the available water. Farmers and ranchers who own the land above coal bed methane wells hold water rights that are senior to the new water right that would be granted to FEPCO.

Coal bed methane development will significantly drop aquifer levels, drying up landowners' wells. Although FEPCO is required to drill new wells for the landowners, those new wells would have a junior water right to FEPCO's water right. Thus, landowners would lose their status as senior water right holders. Under the Montana Water Use Act, a new water right permit cannot adversely affect the water rights of a senior water right holder. If the DNRC granted FEPCO's water right applications, it would set a precedent that could threaten the rights of senior water right holders throughout the state.

Wasting of water is illegal.  We are asking the DNRC and the Montana Legislature to recognize this fact and protect our water rights.

Solution:

We have filed objections to these applications, delaying issuance of the water right permits. This objection triggers a contested case hearing before a DNRC hearings examiner on March 5, 2007, who will schedule a contested case hearing to decide whether to reject FEPCO's water marketing applications.
  
   We have drafted legislation, currently referred to as LC 1194.

* It repeals HB 573 (2001) introduced by Sen. Keith Bales that exempted coal bed methane water from the requirements of beneficial use.

* It clarifies that land application disposal of coal bed methane water cannot be masked as a beneficial use for future applications to the DNRC.

* The bill clarifies the Montana Water Use Act and is consistent with its intent. This proposal will make it illegal for any entity to evade the legislative approval trigger prior to groundwater appropriation and ensures the DNRC consider the cumulative impacts by an applicant if their application exceeds the existing 3,000 acre feet limit.

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