HELENA – A bill that would allow people to take disagreements over water permit decisions made by the Department of Natural Resources to the state’s Water Court instead of district courts was the subject of robust debate Wednesday.
Sen. Chas Vincent, R-Libby, who is carrying Senate Bill 28 at the request of the Water Policy Interim Committee, said the bill will put four to five cases a year in front of the Water Court, which he says has a better understanding of water issues than most district court judges. The bill got its first hearing at the Senate Judiciary Committee on Wednesday.
DNRC issues new water rights permits and changes to existing permits. The Water Court was created in 1979 to adjudicate 219,000 water rights claims made prior to 1973 and is expected to finish that work sometime around 2028.
After adjudication is complete, the court is expected to have little left to do. However, a report prepared by the Legislative Environmental Policy Office in 2015 for the interim committee said the court could play a role with the DNRC and district courts adjudicating disputes over issuing new water rights permits or changing existing ones.
Vincent said a survey of district court judges done by the state Supreme Court’s administrative arm shows many judges don’t have experience in water law and don’t want to retain control over water rights disputes.
Seven people spoke in favor of the bill. Abigail St. Lawrence, an attorney at Bloomquist Law Firm in Helena and a representative of the Montana Association of Realtors who has worked with water rights cases for more than a decade, said the bill would let people have their disputes heard by experts.
“The Water Court has a particular expertise that oftentimes district courts do not have,” she said.
Chelcie Cargill, director of state affairs for the Montana Farm Bureau Federation, said some district court judges have large workloads that leave farmers and ranchers waiting for their claims to be sorted out.
A few spoke in opposition to the bill, including DNRC director John Tubbs, who raised concerns that it extends the life of the Water Court without taking time to study what the role of the court should be.
Krista Lee Evans, with the Association of Gallatin Agricultural Irrigators, said she was concerned that Water Court judges are not elected. The chief justice of the state Supreme Court appoints a chief water judge and associate water judge.
“That’s a significant amount of power to have in an entity the water users do not have a vote for,” she said.
She also raised concerns with how the bill was written. She said the language could allow for people who disagree with a permit issued by DNRC to pick the court where the dispute would be heard, creating several cases in different courts. She also asked how the additional caseload for the Water Court would be paid for.
Evans said many people who don’t like the bill might be afraid to testify because they are nervous about where their disputes might be heard in the future.
Tubbs said disputes over permits aren’t water issues, but procedural issues. Courts are tasked with determining if DNRC acted properly in issuing or denying a permit application or change, not with water rights laws.
Tubbs said the Water Court needs to focus on finishing its adjudication work and then state government can discuss the future of the court. This bill, he said, would make the Water Court permanent without consideration to what its future should be.
“Maybe that is a permanent water court, maybe it’s an additional district court,” he said. “These are big issues. It is time for this body, the executive and the judicial (branches) to give serious consideration to what a post-decree water rights world looks like.”
Vincent said the push to bring the bill now would help retain the expertise already gathered in the Water Court.
“If we want to retain that experience on the Water Court we have to give them a reason to stick around,” he said.
The committee took no action on the bill Wednesday, but said it would look at the concerns that were raised. The committee meets daily at 9 a.m.