11/8/ Fall Education Seminar November 3 4 Billings Montana. Kim Overcast DNRC Water Resources Division

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1 2016 Fall Education Seminar November 3 4 Billings Montana Kim Overcast DNRC Water Resources Division Montana Water Law All water belongs to State of Montana. A legal water right is a property right! Protected by the Constitution Can be bought and sold Can be severed from the land First in time is first in right. Most senior water user has first right to available water. Water right is limited to the amount of water beneficially used. Water right is limited to the actual historic use cannot be increased without a new water right. Change in point of diversion, place of use, purpose, or storage requires authorization. No preference of use by purpose. Water right cannot be reserved for future use. 1

2 Accurate Water Right Ownership Record Why is it so important? Water rights go with the land unless the deed specifically states that no water rights transfer , MCA Transfer of appropriation right. (1) The right to use water shall pass with a conveyance of the land or transfer by operation of law, unless specifically exempted there from. All transfers of interests in appropriation rights shall be without loss of priority. If water rights go with the land, why is anything more required? Montana Water Use Act July 1, Constitution of the State of Montana requires central record of water rights. Adjudication of water rights by Water Court judicial proceeding due process. Notice of new permit and change applications to existing water right owners-opportunity to file objections. 2

3 Searching for a Water Right Is there a water right that covers the land being sold? Water Rights go with the place of use.search THE LEGAL DESCRIPTION OF THE LAND BEING SOLD. Searching by owner name can create problems. May not provide all the water rights that go with a property. Owner search may provide water rights that do not belong to the property being sold. Water right may be listed under a previous owner s name. Groundwater rights for stock or domestic purposes put to use before January 1, 1962, did not have to be filed. Therefore, they may not exist in DNRC or County Courthouse records. Groundwater filing from 1/1/1962-7/1/1973 should be in Courthouse records. Water Right Query System Advanced Search Options 1. Set Index Type dropdown to Place of Use. Water rights go with the place of use. 2. Scroll to bottom of screen. 3

4 Search Results Click on any red colored column to sort by that info. Download Information Sometimes there may be a lot of data returned by the query. Download into an Excel file and you can look through data using typical Excel functions. 4

5 What to do with the information? Completing the Realty Transfer Certificate Disclosure A. No DNRC filing required. Property is served by a public water supply, i.e. City or water users assn., or irrigation district provides water. (Usually seller is paying for water.) B. No DNRC filing required. Seller has no water rights on record with DNRC to transfer. No filing could be found in DNRC Query System. C. File Fee Log Sheet with DNRC. Seller is transferring ALL water rights on record with DNRC to the Buyer. All water rights applicable to the land being sold are transferring to the buyer. D. File Certification of Water Right Ownership Update with DNRC. Only file if Seller is dividing or exempting (reserving) water rights. If seller is dividing water right, file form 641. If sale is not including water rights, deed must state that information; File form 642. Completing a Fee Log Sheet Who does DNRC contact for questions? Different buyer & seller transactions require separate log sheets. Name or number that helps closing agent identify land sale. Enter the water rights found in the DNRC Query System that are ONLY applicable to this land sale. Enter only one water right per line. Refunds from Fee Log Sheets Primary Refund Reasons Fee Log Sheet includes water rights that are not applicable to the land being sold. Fee Log Sheet does not identify any water right numbers. Water right was already updated to current owner. Fee paid was overpaid. Water right is owned by an irrigation district or homeowners association. Thousands of dollars refunded to Title Companies. Hundreds of dollars in State of Montana refund checks not cashed. OPT OUT OPTION DNRC can send refund to the Buyer rather than closing agent. Title companies can opt-out of having refunds sent to them. Must have Refund Opt-Out form signed. 5

6 Water Right Help DNRC Water Resources staff specialize in helping people understand Montana s water right laws. We can help! Can t find a water right, but sure there is one. Problems with DNRC Query System. Would like DNRC to come to your office to help teach staff. Water Resources Division Regional Offices Billings Bozeman Glasgow Havre Helena Kalispell Lewistown Missoula Search: DNRC Water Resources Regional Office for County coverage & contact information. 6