An attack on ranch water rights

By MARK FIX

January 22, 2007

Your Turn

If you have a well, or if you draw water from a river, what would your land be worth without the water rights? I know at my place, we’d be hard-pressed to survive.

The system governing water rights in the West has been in place for over a century in order to help conserve and allocate scarce water resources. But that system is under attack right now and it could create a big mess for all Montanans.

Western water law was developed to clarify who had a right to use water, and how much. Just as important, water law prevents the wasting of water by requiring that water rights only be granted when the water is put to a beneficial use. But today, the “beneficial use” doctrine is under attack here in Montana, and this attack threatens to create a dangerous precedent that could stand Western water law on its head.

Coal bed methane drilling removes huge volumes of water in the process of extracting the methane gas. That extracted water contains enough sodium products to create serious impacts to soil.

Although much of this groundwater has too much sodium to use it for irrigation, local people rely on it for livestock watering. Dewatering aquifers through large-scale drilling will create long-term lowering of water tables.

For several years, the Northern Plains Resource Council has urged the state to require that this water either be reinjected into the ground, or be treated to remove the salts that make it dangerous to the soil and crops. At every step, methane companies have fought against any such requirements, claiming it would decrease their profitability.

The attack on our water rights is two-pronged. The first attack comes in the form of attempts to find or create loopholes in the law. Fidelity Exploration and Production Company has filed two applications to market its groundwater discharges, part of it in Montana, and the rest to Wyoming.

Northern Plains opposes granting these water rights because:

n The Montana Department of Natural Resources and Conservation divided the application to reduce the amount of water in each request, allowing the company to avoid the more stringent review criteria that state law would require for a single application of this size (5,650 acre-feet per year, later amended to a total of 6,863 acre feet).

n Dewatering of aquifers will adversely impact the water rights of landowners who have senior water rights to wells and springs.

n The uses being proposed for the water are not “beneficial uses” — they are merely guises for water disposal. Much of the water, if approved, will be pumped from Montana aquifers, into Wyoming and dumped on the ground through land application disposal.

n The out-of-state transfer of water poses a threat to the state’s current and future water supplies and would be detrimental to the citizens of Montana.

For water rights holders, “first in time is first in right” — the first individual to appropriate water from a source holds the most senior water right. Farmers and ranchers who own the land above methane wells hold water rights that are senior to the new water right that would be granted to the methane company.

But Wyoming’s experience tells us that coal bed methane development will significantly drop aquifer levels, drying up landowners’ wells. Although the methane company is required to replace dried-up wells for the landowner, those new wells would have a water right that’s junior to that of the methane company that lowered the aquifer.

The Montana Water Use Act provides that a new water right permit cannot adversely affect the water right of a senior water right holder. If the DNRC grants these methane water right applications, it will set a precedent that could threaten the rights of senior water right holders throughout the state.

The second attack on water rights is expected in the 2007 legislature. A bill has been drafted to exempt the methane industry from the Water Use Act. This special privilege will allow methane companies to claim a legal right to the water they discharge, allowing them to market that water out of state, or to simply waste it by dumping it on the ground (remember, it’s salty enough to damage soils). They call it “land application,” but it’s nothing more than disposal. In other words, it’s water-wasting.

In the West, we can’t afford to allow water-wasting. And we can’t grant whole industries a special exemption to the water laws that lay out our rights and that conserve the resource on which our economic future depends.

If our water rights are to mean anything, we must not allow them to be subverted. We must not allow companies to market water and dump water, and to get away with calling it “beneficial use.” The damage to Montana water rights holders could be nearly impossible to undo.

Mark Fix, Chair of Northern Plains Resource Council, ranches on the Tongue River south of Miles City.