Water right owners to pay new tax

Most of the people in Montana recently received a bill from the Department of Natural Resources and Conservation for both surface water and groundwater used under filed water-rights. Irrigation and domestic water uses are included.

The purpose of the fee (tax) is to provide supplemental funding to speed up the adjudication process. These biennial fees raise $6.2 million. At the end of 10 years, the fees terminate, having raised $31 million.

Although DNRC and the state Water Court system has been involved with the process of adjudication since 1972, when the centralized water rights records system was implemented in Helena, the term is not familiar to the general public.

Simply defined, adjudication is a process under the direction of the Water Court that verifies each water right. DNRC and its regional offices assist the Water Court with adjudication by providing information and technical support to the water judges.

Each water right is verified to be complete, accurate and reasonable. If an examination uncovers an excessive claim or other discrepancy, DNRC contacts the water-right owner to resolve any errors, and may upon the request of the water judge conduct a field investigation.

Adjudication of water rights is necessary to protect water rights and settle conflicts between individual Montanans and, more importantly, defend our use of water against other states. Down-stream states have adjudicated their water and believe Montana has unclaimed water which they can use.

Almost all of the legislators agree that adjudication must be completed, but they disagree on who should pay for it. Part of DNRC's testimony before the Senate Judiciary Committee was: "Adjudication of water rights is a basic component of Western water law and administration. Most Western states have or have had comprehensive adjudication of water rights. Not doing so is not an option. Water rights are private property rights, which require legal definition. Legally defined water rights form the basis for all administration and enforcement."

The process and form used by DNRC and the state Department of Revenue have created much confusion. The process transferred the water-rights information from the state data base into a very confusing form.

The first inclination of most people would be to fill out the blanks on the form with data that cannot be easily found or which does not exist; however, the state is only interested in the water right(s) owner filling out the coupon and sending in the money.

Further complications occurred if changes were made over the years to the water rights. These changes, although minor, usually resulted in additional water rights (each with a unique identifying number).

Technically, a person could end up with several water rights connected to the same basic water right. For example, instead of the fee being $20 for a well, it may $40, $60 or more, depending on how many times the water right was "tweaked."

Other problems resulted from inaccuracies in the data base, such as duplicates, faulty data and the fact that the water rights may not have been transferred when the land was sold. If you have water rights and did not get a bill, don't feel lucky. Find out who does own your water rights and get them transferred.

Lack of payment will result in a lien being filed against your water rights by the Department of Revenue — and you could lose them. Late payment, after Jan. 31, results in an extra 12 percent interest on the unpaid balance and a late-payment penalty.

House Bill 7, "Eliminate Water Adjudication Fee and Fund Through General Fund," was carried by Rep. Debby Barrett, R-Dillon, during the special legislative session and had sufficient signatures to be included in the session, but the Democratic leadership refused to allow it to move forward.

For now at least, water-users are going to fund part of the adjudication process through this fee. Use this opportunity to clarify your water rights and pay the appropriate fee prior to Jan. 31 to avoid penalties.

You can protest later. This fee is to be paid once every two years. Possibly the next legislature will find an alternate means of funding adjudication and relieve you of the burden.

Rep. Verdell Jackson is the Republican state representative for House District 6. He sits on the House Appropriation Committee, Interim State Administration and Veterans Affairs Committee.