As in most Western states, the issue of water rights in Montana can be contentious.
The state already has several “closed basins” — areas where no more surface water can be allocated. For example, part of the Southern Alberta Bakken play is in the Teton basin, which is an administratively closed basin.
Within the closed basin category, there are three types: those that are closed via judicial decree, those that are closed through an administrative mandate by the Department of Natural Resources Conservation, DNRC, and basins closed by legislative action. Only a few basins have been closed judicially.
According to Water Resources Administrator Tim Davis, who recently addressed the annual meeting of the Montana Petroleum Association, DNRC is drafting a temporary lease that may offer an alternative to oil and gas exploration companies developing resources in parts of the state where water is at a premium.
Farmers could divert water
According to Davis, the planned lease would allow farmers to divert water to an irrigation pivot and sell that water to oil and gas companies. Under the plan, the farmer could take a single pivot out of irrigation for one year out of 10, although the farmer could, if he has multiple pivots, “lease” a different pivot each year.
Davis said DNRC hoped to make the lease procedure a “quick process,” with a public notice and some form of enforcement if the water is illegally used. He added that while someone could object to the lease, it “must be a valid objection.”
The current version of the draft would limit the water sold to the amount used at a typical irrigation pivot, or 180 acre-feet.
Davis calculated that to be 58.6 million gallons, although he added that “any size of pivot” could be used.
Earlier this year some questions were raised as to whether a town’s municipal water permit could allow it to sell its water for use in oil and gas exploration, including for hydraulic fracturing.
According to Davis, “Municipal water rights are not limited to a single beneficial use, so long as the point of sale is within the city boundaries, or at a historical place of use.” The flow and volume on the water permit cannot be exceeded, he said.
One suggestion Davis offered for anyone who planned to apply for water in Montana is that the applicant contact Water Resources early in the process. He said the office has already cut the time to process an application from nine months to about six months.
—Darryl L. Flowers
