February 13, 2015: Where Did The Water Go?
Nancy Zalutsky
Where Did The Water Go?

One fine summer morning you go out with your shovel to move water from one lateral to another, but  your ditch is dry.  It was running full yesterday. What happened and how can you fix it?  It has been suggested that the use of water by someone who does not possess a water right or, conversely, the overuse of water by someone with a water right is theft, and should be treated the same as stealing a car (see Water Policy Interim Committee Final Report 2009-10). But, since you can’t call the sheriff to cite the offender, some other action is necessary.

First determine the cause of the shortage; check whether there is a physical obstruction in the head-gates or ditches on your property. Then check the rest of the ditch or the stream for blockages. Montana statute M.C.A. § 70-17-112 grants you the right to enter someone else’s land to inspect, repair, and maintain a canal or ditch.  If you are not sure about your right of access, ask for the landowner’s permission, if possible.

If you can’t get permission to inspect the entire ditch, hopefully you can do some sleuthing from the road or stream access. Is there water in the stream upstream from you? Are your upstream neighbors irrigating? Do you see any pivots running nearby? If you are on good terms with your upstream neighbors, call them and ask if they have water. Often, everyone knows the neighbor who ignores the law. Also, the USGS posts current streamflow conditions from 228 sites around the state at USGS Current Water Data, so you may be able to check the upstream flow.

If you find someone is diverting the water, compare the priority date of your water right to others on the source by using the Water Sage priority stack to find the upstream junior water rights.  Be sure to set the slider to the current week.

Priority-Stack

Note that you are not entitled to water stored under a junior right unless the water was diverted out of priority. If you are entitled to water, remedies are available from your local District Court, the Montana Water Court, or the Department of Natural Resources and Conservation (DNRC). Alternatively, you may have to act on your own, or hire an attorney. The least expensive and easiest way to resolve the problem is to call or visit the junior user to see whether you can work out a solution.  If not, you’ll need to resort to the methods described here.

Depending on whether your source has been decreed by a District Court prior to 1973 or adjudicated by the Montana Water Court, you may be able to have a water commissioner appointed to distribute water.  A water commissioner distributes water according to a court decree, and any disputes with the way the water is distributed can be brought up with the local district court judge who appointed the water commissioner (M.C.A. § 85-5-301). Before taking any formal action, you should issue a written “call” for your water and document the call.  There is no prescribed form for drafting a call, but you should include the priority date and water right number of your senior claim, the name of the source, and the number(s) and priority date(s) of the junior water right and a statement similar to the following:

Under the Montana water right priority system, standard procedure for allocating water during time of shortage is for the senior water right holder to require the junior water user to cease using any junior water rights.  Therefore, I request that you cease diverting Water Right No(s). ________ from _____ Creek immediately so that I can divert ___ (cfs or miner’s inches) of water under Water Right No(s). ________. 

The call letter can be sent by certified US mail or a delivery service, or it can be personally delivered by a process server.  If you use any method besides personal delivery, you should also mail a copy of the call to the same address. That way you have documentation that the call was sent to the proper address in the event the recipient refuses to sign for your letter.  You can obtain the water user’s address by clicking the number listed in the priority stack to open the General Abstract for the water right.

Contact the nearest DNRC Regional Office for help in filing a Water Use Complaint, which requires you to make a call for your water, document the call, and make a formal written complaint. The DNRC investigates water use complaints, but budget and staff limitations and other pending enforcement actions may prevent the enforcement from happening soon enough to solve your immediate problem. Whether the DNRC takes enforcement action also depends on the facts of your situation. To contact the DNRC: DNRC Local Offices.

If you are using water from a stream that was decreed by a court prior to July 1, 1973, you can petition the district court to have a water commissioner appointed if the petition is signed by the owners of at least 15% of the water rights affected by the decree. If you can demonstrate to the Court that you cannot obtain the 15% and you are unable to access your water, the district court judge may appoint a water commissioner (M.C.A. § 85-5-101(1) ). How fast a water commissioner would be appointed depends on your local district court and how often a water commissioner has been appointed in the past. Several forms are utilized by the district court for water commissioner appointments. There is no standardization of these forms among the district courts of Montana, so you will have to contact your local district court.

In the event there is no pre-1973 decree, you don’t have to wait for the entire basin to be determined by the Water Court prior to the appointment of a water commissioner.  If the existing water rights of all appropriators from a source or in an area have been adjudicated by the Water Court after objections and hearing, the judge of the district court may appoint a water commissioner upon application by both the DNRC and one or more water right owners (M.C.A. § 85-5-101(2) ).

When existing rights on your source have not been adjudicated by the Water Court, you may petition the district court to certify the matter to the chief water judge (M.C.A. § 85-2-406(2)(b) ). Although certified controversies must be given priority over all other adjudication matters, the certification case may extend past the end of the irrigation season. If you need water quickly, you can file a court action in the appropriate district court asking for a temporary restraining order (TRO) and preliminary injunction along with the petition for certification (M.C.A. § 27-19-101, 201, 314). Although the TRO is the fastest way to obtain relief on an unadjudicated stream, it is also the most expensive, because you need to hire an attorney.

A water mediator can be appointed by the court upon petition of at least 15% of the affected water right owners pursuant to M.C.A. § 85-5-110.  If you cannot get the signatures of 15% of the water right owners, statute also provides that the court can appoint a water mediator at its own discretion. The water mediator can discuss proposed solutions with affected water right holders, review options related to scheduling and coordinating water use, discuss water use and water needs of those affected by the existing water use, meet with parties to mediate differences over the use of water, and hold public meetings to negotiate potential solutions to controversies over use of water. The mediator cannot require any valid water right owner to reduce an existing water right. The DNRC has a list of mediators that can be obtained through your local DNRC office. Although this may not represent the fastest solution, it is less expensive than litigation and may settle the matter with less acrimony.