DNRC helps navigate register water use registration
LAKE COUNTY — I’ve been in sleuth-mode lately. With the Flathead Reservation Water Management Board fully formed and a deadline of March 16 looming to register “existing uses” of water with the state Department of Natural Resources and Conservation (DNRC), I’ve been navigating the confusing turf of water rights documentation.
Why the rush? The water rights compact settlement went into effect Sept. 17, 2021, which opened a 180-day window for non-tribal water users to file existing water uses on the reservation with the DNRC. After that date, any filings will be made directly with the board, which is now the sole authority for all water right permitting and changes within the Flathead Indian Reservation.
According to Arne Wick, the DNRC’s Compact Implementation Program Manager, Montanans have had many prior opportunities to file water claims on the reservation, dating back at least to the 1980s. They can continue to file for existing and new uses with the water board.
“It’s not like the door closes on March 16,” says Wick. “There’s a whole new authority where people will be able to get their water rights processed through the board. We’re trying to catch up to backlog of these registrations for previous uses under the state authority, but after the effective date it’s all blended under the board’s authority.”
He views the water board as having the potential to settle mettlesome issues that have been lingering for more than a quarter century, since the state ceased authorizing new uses pending the outcome of compact negotiations with the Confederated Salish and Kootenai Tribes.
“Both state and tribal – everybody’s under the same authority with the board and they have water rights administrative options available to them that have not existed for 25 years,” Wick explains. “That’s a big improvement.”
My question is this: how does one discover if an 80-acre farm south of Charlo, occupied at least since 1937, has a water right filed for its domestic well? And, if there are no documents on file, how do we create them?
I began looking for guidance on the DNRC website, which keeps an extensive list of water forms and filings. For an overview of the steps I needed to take, I started here: dnrc.mt.gov/divisions/water/water-compact-implementation-program/confederated-salish-and-kootenai-tribes-compact/registrations-of-existing-uses-under-the-cskt-water-compact-and-ordinance.
My next stop was the Water Rights Query System (wrqs.dnrc.mt.gov/), which allows you to search by county, under the landowner’s name. Nothing materialized, so I searched for the property on the Montana Cadastral webpage, svc.mt.gov/msl/mtcadastral, and found three helpful ingredients: the geocode and property description (also available on tax records) and a printable map of the property that’s required for filing.
Next came a visit to the Lake County Courthouse to see if a previous property owner had filed for water rights on the well. Although we did get a list of previous owners, we found no documentation pertaining to water use. Since we’ve owned the ranch since 1979, my co-sleuth asked the owners before us (who now live about a mile away) if a well was present on the property when they bought it in 1969. It was. And offspring of the owners before that confirmed that they also had running water in the 60s.
All of this was in preparation to file a “use right” using form 222 for groundwater developed before Jan. 1, 1962. That would have required “substantiation documents” preferably from someone who knew when that use began. That was a stumbling block, since no one seemed to know when the well was first drilled.
When I posed this question to Wick, he told me this conundrum “is common in the adjudication process. If you’re talking about a domestic well or stock well used historically you could go with ‘to the best of my knowledge,’ do a bucket measurement or the best estimate you can (to determine volume),” he said. “The point is to accurately represent the historic use and if you need to take a contemporary measurement for that based on an existing system that’s acceptable information and it just needs to be documented and described.”
Fortunately, we unearthed something even better with help from Kathy Olsen, manager of the DNRC’s Kalispell Regional Office. She noted that many water filings are no longer kept at the Clerk and Recorder’s Office where they were originally filed. However, those documents are now stored online at mediaserver.dnrc.mt.gov/survey/groundwater.html.
I followed the link, clicked on Lake County, located the filings for our township and range, used the list of previous owners from the courthouse and the property description, and found a Declaration of Vested Groundwater Rights, filed Jan. 10, 1964. According to that document, the well was dug in 1948. Eureka!
While this simplifies our application process considerably, it still left me with some what-ifs. Here are the questions I posed, and Olsen’s answers, beginning with the one that led me to the DNRC groundwater filings:
1. Although we’ve tracked down the owners of the property dating back to 1937, we’ve only verified use beginning in 1966. It’s not that hard to get a statement from the owner we bought it from in 1979, stating that a well existed on the premises during their 10-year tenure. Is that sufficient?
DNRC: If use was between 1962 and July 1, 1973, the owner of the property had to file at the courthouse. Those filings can be found at mediaserver.dnrc.mt.gov/survey/groundwater.html. You need the owner name and legal land description to find documents if they were filed. There should be two pages per filing and both pages need to be attached to the 222F.
2. According to the DNRC, if the well was developed after Jan. 1, 1962 and before July 1, 1973, and not recorded at the county courthouse, we need an Application for a Domestic Allowance form from the Flathead Reservation Water Management Board (FRWMB), which has no forms available yet. Your advice?
DNRC: If there was no such filing, you can fill out Form 602 (described on the DNRC website as “previously unfiled uses of water that were put to use before Sept. 17, 2021 and exempt from state permit requirements”).
3. According to a story in the Char-Koosta News, dated Feb. 17, for those who miss the filing deadline of March 16, their applications for existing use will be addressed “among new uses, which will be permitted under the purview and authority of the FRWMB.” Does that mean that those who don’t file on time are basically filing an application for new use, despite the well or stock-water possibly having been in use for several decades?
DNRC: That is correct. Thus the importance for getting eligible uses (prior to the compact effective date of Sept. 17, 2021) into the DNRC by March 16, 2022.
4. I’ve also had inquiries from people who have been pumping water from the lake for irrigation and domestic use for decades. Do they use this same form (222) for preexisting domestic use or is there another route they should take?
DNRC: If they are taking water for any use via pump from a surface water source and have not previously filed, they will have to wait for the Office of the Engineer to then file on those uses. (The FRWMB plans to begin advertising for the crucial position of water engineer soon.)
With the March 16 deadline looming, Olsen says her office in Kalispell has been “very busy with phone calls and walk-ins from the Reservation.”
Personally, I found the DNRC staff to be very knowledgeable and helpful. For filing assistance in Flathead, Lake and Sanders counties, call 406-752-2288; for Missoula County, call 406-721-4284.
The FRWMB will meet from 1-3 p.m. March 3 via Zoom for a work session devoted to board orientation on the compact, the Unitary Administration and Management Ordinance and the water rights registration process. To watch the public portion, head to https://bit.ly/FRWMB-Mtg4.