A.B. 1668, S.L. Reg. Sess. 2017-18 (CA 2018) (amending existing law to further regulate water supply and drought planning).

California Assembly Bill 1668 (“A.B. 1668”) imposes several new or expanded requirements on state water agencies and suppliers. This bill would  require the State Water Resources Control Board (“SWRCB”) and the Department of Water Resources (“DWR”) to establish long-term urban water use efficiency standards. These bodies would have to adopt efficiency regulations, outline requirements for water suppliers, specify penalties for violations, and conduct studies to make necessary recommendations to the State Legislature. The main sponsors of the bill are lead author Assemblyperson Laura Friedman, with Coauthors Ben Allen, Bob Hertzberg, Nancy Skinner, and Scott Wiener. This bill was signed into law by Governor Brown on May 31, 2018.

California experienced the worst drought on record from 2012-2016, the driest in the last 450 years. Current climate change models predict that severe droughts will become a more common occurrence. This drought forced Governor Brown to issue an Executive Order in 2014, declaring  a state of emergency and requesting a voluntary reduction in urban potable water use. In April 2015, the SWRCB implemented a mandatory 25% reduction in urban potable water use, followed by additional increased regulations by the SWRCB.

In May 2016, Governor Brown signed Executive Order B-37-16 which required the DWR and SWRCB to work together to develop a water conservation framework. This Executive Order aimed to “make water conservation a way of life” in California, with the goals of using water more wisely, eliminating water waste, strengthening local drought resilience, and improving agricultural water use efficiency and drought planning.

Prior to A.B. 1668, the Urban Water Management Act required urban water suppliers to produce an urban water management plan every five years. This plan must describe and evaluate supply sources, reasonable and practical efficient uses, reclamation, and demand management activities. The Agricultural Water Management Act similarly requires agricultural water suppliers to produce agricultural water management plans every five years. These plans describe and evaluate supply sources and various efficient water management practices.

A.B. 1668, Senate Bill 606, and Executive Order B-37-16 have paved the way for specific recommendations for  long-term improvements to water supply management, which in turn support water conservation. A.B. 1668, along with Senate Bill 606, jointly create new long-term urban water use standards. These bills would require the SWRCB and DWR to establish  new urban water use standards by June 30, 2022. Such  uses include indoor residential water use, outdoor residential water use, outdoor irrigation of landscape areas with dedicated irrigation meters in connection with Commercial, Institutional, and Industrial (CII) water use, and a volume for water loss standard. These bodies are also tasked with conducting studies to make recommendations on guidelines and methodologies for the SWRCB to adopt. These guidelines will specify how an urban retail water supplier will calculate its urban water use objective.

A.B. 1668 will establish an indoor water use standard of 55 gallons per capita daily (GPCD) until January 1, 2025. From January 1, 2025, the standard will drop to 52.5 GPCD until January 1, 2030, and 50 GPCD until January 1, 2035. The bill allows for the SWRCB and the DWR to jointly recommend to the California State Legislature different standards that would more appropriately reflect the best practices for indoor water use than the ones established in this bill, based on their studies over the years.

A.B. 1668 also requires the DWR and SWRCB to conduct studies and propose standards for outdoor residential water use. These standards are required to incorporate the principles of the model water efficient landscape ordinance, which states that landscape design, installation, maintenance and management can, and should be, water efficient. These bodies are required to supply urban retail water suppliers with data the suppliers  can use to reasonably apply  those standards. However, if urban retail water suppliers find an alternative method for calculating their outdoor water use data, they may use those alternative methods if they demonstrate that their data is equivalent or superior to that of the DWR.

For CII water use, the DWR and SWRCB must conduct studies and investigations and recommend water use standards by no later than October 1, 2021.

A.B. 1668 establishes liability and methods for notification of any regulatory violations. Liability starts at $1,000 per day for a violation of orders or regulations on the long-term standards after November 1, 2027. This liability will increase to $10,000 per day if there is a drought emergency declared by the Governor or during a critically dry year that has been preceded by two or more below average rainfall years.

A.B. 1668 also modifies Agricultural Water Management Planning (AWMP). These revisions would require AWMP suppliers to quantify measures to increase the efficiency of agricultural water use, create annual water budgets, describe their water management strategy, and include a  plan describing  drought preparedness. However, this bill also requires the DWR to provide tools to these agricultural water suppliers in developing and quantifying components necessary to a water budget.

Finally, this bill requires that the DWR propose to the Governor and Legislature drought and water shortage contingency plans for small water suppliers and rural communities by January 1, 2021, to prevent rural communities from relying on trucked or bottled water for protracted periods of time.

This bill offers many incentives for water reuse. There is a 10% bonus incentive for urban retail water suppliers who deliver potable reuse water. This means that the urban retail water providers can exceed their urban water use objective by up to 10%. This incentive can increase to 15% for urban retail water suppliers who operate existing facilities that are producing potable reuse water by January 1, 2022. 

A.B. 1668 did not come without its fair share of concerns. Earlier versions of the bill  required reductions in potable or recycled water sales. Concern stemmed from how recycled potable water use would factor into the bill’s “urban water use targets.” This term was defined as “the urban retail water supplier’s targeted future daily per capita use.” The current bill has changed its language to reflect “an estimate of aggregate efficient water use for the previous year.” The bill now focuses on efficient water use, not water conservation. This allows the use of recycled and water reuse to continue, without the original required reductions.

Most of the opposition to this bill stems from the use of recycled water. The 10% bonus for those who use potable reuse or recycled water has been deemed unfair by opponents to this bill. Potable reuse projects are expensive. Therefore, communities who cannot afford to fund these projects are barred from accessing  this bonus. Those communities who can afford potable recycled water projects can use more water than is reasonable.

Supporters of the bill recognize that water powers California’s economy. The water supply is under pressure from climate change and an increasing population. Based on volumetric and financial needs, Californians need to use water as efficiently as possible. This new framework creates fair but flexible efficiency standards, recognizing that each community has different and unique needs. This bill does not create rigid standards for all Californians, but adjusts to each community, allowing them to use the water they need efficiently.

This bill also updates and modernizes the reporting process, creating an easier method of submitting plans and reports. In turn, this enhances compliance with the regulations in this bill, improves accountability, and ultimately the enforcement of the California Water Code.

Ultimately, A.B. 1668 looks to advance the goals set forth by Executive Order B-37-16, making water conservation and efficient water use “a way of life” in California. A.B. 1668 will allow the state  to set higher standards for  efficient water use, helping to ensure a future for  California’s economy, communities, and environment.


California Senate Bill 252 (“SB 252”) wades into the core of California’s water law overhaul by requiring cities and counties overlying critically overdrafted basins to request information about a potential well before approving an application for the well permit.  The California Department of Water Resources (“DWR”) designates basins as critically overdrafted.[1]  In making this determination, the DWR considers geological, hydrological, and political conditions.[2]  However, people can still pump more water from these basins through new and existing wells.  State leaders and water users alike are concerned that increased pumping from critically overdrafted basins puts current water users in jeopardy.  During committee hearings, the bill’s sponsor explained the danger for infrastructure and human health created by the increased strain on critically overdrafted basins, while noting that state policy also guarantees clean drinking water for all Californians. Tulare County, a subject of discussion in committee arguments, exemplifies this problem.  Between January 2014 and March 2017, Tulare County had 1600 reported well failures (as of March 28, 2017) but has still issued 6300 permits.

SB 252 aims to add transparency to both existing legal frameworks and the Sustainable Groundwater Management Act (“SGMA”).  SGMA creates legal systems for constructing water wells and sustainability-focused agencies to oversee development and use of California’s water basins.[3]  However, the state will not implement SGMA until 2020.  SB 252 fills the gap between now and that implementation and will expire when SGMA-required groundwater sustainability plans for critically overdrafted basins are due.[4]  Proponents of SB 252 anticipate that requiring cities and water authorities to collect publicly-accessible information from new well applicants in critically overdrafted basins will protect existing groundwater pumpers and critically overdrafted basins.  Opponents argue that SGMA should take effect without modification and that the situation does not call for further government regulation.  Senator Bill Dodd (D-Napa) sponsored and authored the bill.  On September 12, 2017, SB 252 passed the senate with a vote of twenty-five to fourteen, with one vote not recorded.  Governor Brown approved the bill on October 6, 2017.

As originally introduced, the bill created an affirmative requirement for the applicants to provide certain information about a proposed well.  The final version instead requires cities and counties to request that well applicants provide as much of the required information as they reasonably can.  Cities, counties, and other well users will use this information to make informed decisions about common water in critically overdrafted basins.  The required information includes:

  • a map and GPS information;
  • the well’s depth, capacity, and nearby geological information;
  • features near the proposed well, such as pollutants, other water sources, and existing wells; and
  • information about the water to be drawn, such as volume and purpose.

Additionally, for wells below corcoran clay, the city or county must request additional information regarding nearby water and infrastructure features (particularly nearby canals, ditches, pipelines, utility corridors, and roads).

However, SB 252 does not apply to everyone.  It specifically exempts:

  • de minimis extractors (a person who extracts 10 acre-feet or less per year);[5]
  • applicants for replacement wells that do not increase the total amount of water extracted;
  • city or counties that undergo an exemption process;
  • county or municipal wells that provide water solely for residents of the city or county; and
  • public agencies that substantially meet or exceed SB 252 requirements through another law.

The bill contains no moratoriums on new wells, does not impose limits on wells, and does not otherwise interfere with municipal ordinances.

Senator Andy Vidak (R-Hanford) led the opposition to the bill.  He argued that SB 252 undermines the purpose of SGMA.[6]  Vidak contended that the purpose of SGMA was to ensure management of groundwater at a local level and management of basins in their entirety.[7]  He claimed that SB 252, instead, sections off basins by community and removes management from local hands.[8]  SB 252, he claimed, will pit communities against each other rather than requiring them to work together to share water basins.[9]  Additionally, Vidak proposes that making too many changes to SGMA, such as this, will cause SGMA to collapse.[10]  Permit authorizers worried that the Bill would move their authorizations from ministerial—approval conditioned on meeting predetermined criteria—to discretionary—approval requiring collection of information and a decision of whether to authorize the well.  However, the authorizers did not strictly oppose SB 252.

SB 252’s supporters, however, explained that SB 252 is necessary for SGMA.  They argued that without the transparency provided by SB 252, well users simply do not have information about other people with basin access.  The Union of Concerned Scientists suggested that this lack of information meant that well users could not make informed decisions about the water they rely on.[11]  Senator Dodd stated that, while some believe California should wait for local sustainable groundwater agencies to prepare plans, SB 252 represents the minimum that any of these agencies would do.  He also argues that stakeholders may not be able to wait any longer to protect critically overdrafted basins.[12]  Dodd concluded one committee hearing by ensuring permit authorizers that this did not represent a trend towards granting them discretionary, rather than ministerial, power.

SB 252 does not solve California’s water problems, and critically overdrafted basins continue to be of great concern for legislators and water users alike.  While the state waits for SGMA to take effect, SB 252 at least provides information that may protect critically overdrafted basins and the people who rely on them.

Garrett Kizer

Bibliography 

Cal. Water Code § 12924 (2017).

See Sustainable Groundwater Management Act (SGMA), S.B. 226 (Cal. 2015).

See generally Cal. Water Code §§ 100–113 (West 2018).

Cal. Water Code § 10721 (2017).

Letter from Senator Andy Vidak (R-Hanford) to Governor of California, Sept. 26, 2017, http://district14.cssrc.us/content/vidak-governor-veto-anti-water-well-drilling-measure-sb-252 (requesting the Governor to veto SB 252).

Juliet Christian-Smith, California’s Water Bill Will Tell Us Who’s Tapping Depleted Groundwater Basins, Union of Concerned Scientists (May 30, 2017, 8:50 AM), https://blog.ucsusa.org/juliet-christian-smith/californias-water-well-bill-will-tell-us-whos-tapping-depleted-groundwater-basins.

 


HB  2312, 2017 Leg., Reg. Sess. (Kan. 2017) (concerning (i) codification and clarification of the administrative procedures for appealing orders or inactions of the chief engineer of the Division of Water Resources; and (ii) the classification of such appeal to fall under the Kansas Administrative Procedure Act).

House Bill 2312 (“HB 2312”) came before the Kansas 2017 Regular Legislative Session to clarify and codify the administrative procedures for aggrieved water users to appeal orders or inactions of the chief engineer of the Division of Water Resources of the Department of Agriculture.  The House Committee on Water and Environment sponsored the bill, and the legislature passed the original version with no changes, amendments, or opposition.  Former Governor Sam Brownback approved the bill on April 7, 2017 and it took effect on July 1, 2017.

Before passage of HB 2312, water users aggrieved by orders or inaction of the chief engineer had two paths for appeal.  The first option was to appeal directly to the chief engineer for review of the order.  The rules and regulations of the Division of Water Resources (“DWR”) provided this option, but it had no statutory backing.  This review consisted of an evidentiary administrative hearing.  The second option was to appeal to the secretary of agriculture, as provided by state statute.  This option did not entail an evidentiary hearing.

There were two problems with this dual scheme.  First, it was unclear whether aggrieved users should appeal to the chief engineer—as provided by the DWR rules and regulations—or to the secretary—as provided by statute.  Either option was available to the water users.  Second, for those users who first requested review by the secretary, rather than the chief engineer, there was no evidentiary record for the secretary to review to aid the decision-making.  Thus, in those cases, the secretary would refer the matter back to the chief engineer to create a record through an evidentiary hearing.  Once the chief engineer had held the evidentiary hearing, the engineer would then send the record to the secretary for review and decision.

HB 2312 clarified and streamlined the administrative process for water users choosing to appeal an order or inaction of the chief engineer.  The bill provides that, when users aggrieved by orders issued or any inaction by the chief engineer wish to appeal such order or inaction, the initial appeal is made directly to the chief engineer.  The user must make this appeal within fifteen days of the issuance of the order or the chief engineer’s failure to act. This initial appeal to the chief engineer would now fall under the Kansas Administrative Procedure Act.  After the chief engineer submits his decision, the user can then choose to appeal to the secretary within thirty days of issuance of the order.  This amendment removes the confusion about where the user should appeal first, as well as ensuring there will be a record available if the water user does appeal to the secretary.  The amendment retains the opportunity of the aggrieved user, after review and decision by the secretary, to appeal to the district court under the Kansas Judicial Review Act.

HB 2312 neither adds nor removes any due process rights for the aggrieved water user.  Rather, it clarifies and streamlines the process by codifying the existing process of appealing to the chief engineer and specifying the order of steps in the appeals process.  Aggrieved water users can now confidently enter the appeals process without concern over where to appeal first.  Additionally, the bill eliminated needless delay resulting from lack of an evidentiary record upon appeal to the secretary.

Kathleen Arsenault


S.B. 46, Sess. of 2017, (Kan. 2017) (clarifying the statutes governing Water Conservation Areas and altering the remedies and procedures available to water right holders for water impairment).

Kansas Senate Bill 46 (“SB 46”) grew out of discussions among stakeholders—including the Kansas Department of Agriculture, Kansas Farm Bureau, and groundwater management districts—following the implementation of the state’s newly established Water Conservation Areas (“WCAs”).  In 2015, the Kansas Legislature created WCAs as a means to extend the usable lifetime of water supplies, specifically the Ogallala-High Plains aquifer.  WCAs incentivize water rights owners in areas with particularly strong conservation needs to voluntarily decrease the total amount of water they use.  The initial statute authorizing WCAs provided that the Chief Engineer of the Division of Water Resources (“DWR”) could approve plans for individual rights holders participating in the WCAs, allowing the rights holders greater flexibility in the use of their water rights.

Several impacted parties worried that the provisions describing these increased flexibility measures were unclear.  The Senate Committee on Agriculture and Natural Resources directly sponsored SB 46 to address these concerns.

As introduced, the bill contained several significant changes.  The bill provided more details about the flexibility for water rights owners who join WCAs.  Specifically, the Chief Engineer may authorize management plans for rights holders participating in WCAs.  The management plans can allow right holders to stretch their allotments over years, apply for new use types, and draw more water from one right than previously allocated, so long as the total use does not exceed their total rights under the management plan.  Acknowledging the potential impacts of allowing participants to exceed some allocations, the bill also required neighboring rights owners to be notified about the WCA plan.  Additionally, the bill expanded the potential areas eligible for WCAs to include areas closed to new appropriations.

The bill was genera supported, and numerous groups testified in support before both the House and the Senate including: the Kansas Livestock Association, the Kansas Department of Agriculture, Southwest Kansas Ground Water Management District 3, Kansas Water Office, the Kansas Farm Bureau, and the Kansas Corn Growers Association.  No groups or legislators offered testimony in opposition to the bill.  The supporters highlighted the significance of the amendments to famers and livestock owners. They explained, for example, that farmers with multiple wells and integrated water distributions systems could draw from a more optimal well, while choosing not to draw from a well with pressure issues, thus using the same amount of water but in a more efficient manner.

Several supporters, however, voiced minor concerns.  One worried that the bill failed to dictate a sufficient notice process.  Another suggested that the lauded efficiencies of flexible rights could result in an increase in water usage and was troubled that the definition of the WCAs no longer required the area to have conservation needs.

Most of the key components of the initial proposal remained in the final version.  The Senate Committee on Agriculture and Natural Resourced heard testimony on February 14, 2017 and made one significant change.  As initially introduced, SB 46 would have removed the requirement for the adoption of rules and regulations to effectuate and administer the provisions of the WCA statute.  The Senate Committee on Agriculture and Natural Resources amended the bill and restored the requirement to adopt rules and regulations.

The House Committee on Agriculture amended the bill to include a secondary function: altering the administrative remedy for owners of water rights who allege their rights are being impaired by another entity’s water use.  The amendment requires owners to take the new first step to exhaust their administrative remedies before seeking the traditional remedy of a court injunction to stop the offending entity from using water within the owner’s rights.  Specifically, the right or permit owner must submit complaints to the Chief Engineer, who will initiate a two-week investigation during which the parties will have the opportunity to submit relevant information.  The bill requires the investigation to be completed within a year of the date the complaint was received.  The Chief Engineer may extend the investigation for good cause and notify the parties of the additional time needed.  While the investigation is ongoing, the parties may petition the Chief Engineer to issue a temporary order to prevent, limit, or curtail the impairment.

The House amended SB 46 to define many of the terms in the bill.  However, a conference committee created to reach a final version for both houses removed these amendments.  The bill was approved by former Governor Samuel Brownback on April 18, 2017.

Liz Trower


S.B. 107, S.L. 2017-145, Reg. Sess. 2017. (N.C. 2017) (easing the requirements for the removal of low-hazard dams).

 

North Carolina Senate Bill 107 (“SB 107”) seeks to streamline dam removal in the state by expediting the removal process under certain conditions.  There are roughly 6,250 dams in North Carolina, many of which no longer serve their original purposes—such as powering mills or creating now-obsolete water storage.  In addition to changing the removal process, the bill requires the North Carolina Department of Environmental Quality and the Department of Public Safety to study the dam removal process to recommend changes to “reduce regulatory barriers to obsolete dam removal and consolidate permit processes.”  It must then submit this report to the Environmental Review Commission by March 1, 2020.  Many supporters of SB 107 championed its passage for a variety of reasons: to no longer keep fish from their habitat; to remove the public safety hazards posed by old dams; to stop the increased threat of upstream flooding; and to open dammed areas up to recreation based economic growth.  The primary sponsors of this bill were State Senators Andy Wells, Brent Jackson, Rick Gunn, and Mike Woodard, as well as Majority Leader Representative Stephen Ross.  The State House and Senate unanimously approved the bill, and North Carolina Governor Roy Cooper signed it into law on July 20, 2017.

During the second reading in the House, testimony by legislators indicated that the bill does exactly what it claims—it streamlines dam removal in the state by allowing professional engineering firms to remove low hazard dams that are now obsolete while also commissioning a study to find more ways to streamline the removal process in order to restore North Carolina’s river resources.  The bill passed unanimously and faced little opposition during the legislative process because of bipartisan support.

Under the previous regime, deconstructing a dam required approval by the Department of Environmental Quality via an application that stated the name and address of the applicant and described the proposed removal process with maps, plans, specifications, and other Department required information.  In order to streamline the process, SB 107 establishes a new system for dam removal.  The new system involves an explicit state review process under the Clean Water Act by focusing resources in North Carolina’s Dam Safety Program towards high-hazard dams where a breach of the structure could lead to loss of life.  By doing so, the State Legislature has acknowledged the importance of removing dams to protect the natural river ecosystem and has added extra requirements for floodplain mapping when a dam is going to be removed to ensure that there will be no serious threats to life or property when the dam comes down.  Further, the legislature also allowed for consultation between the Department of Environmental Quality and the Department of Public Safety on how to optimize dam removal legislation in the state going forward, once again acknowledging the importance of dam removal for the purposes of natural river ecosystem revival.

Section 1 of SB 107 exempts professionally supervised dam removals from the otherwise required approval of the Department of Environmental Quality. The bill defines a Professionally Supervised Dam Removal as: “the removal of a low or intermediate hazard mill dam or run-of-river dam that is not operated primarily for flood control or hydroelectric power generation purposes and the removal of which is designed and supervised by an engineer licensed under North Carolina law.” This removal must also comply with certain criteria: (i) the engineer must determine that removal of the dam can be accomplished safely; (ii) the engineer must also certify that the dam is a low or intermediate hazard; (iii) the person proposing the removal must notify the Director of the Division of Energy, Mineral, and Land Resources (part of the Department of Environmental Quality) no less than sixty days prior to the requested removal; and (iv) the person proposing the removal must also notify the North Carolina Floodplain Mapping Program of the Department of Public Safety as well as property owners directly adjacent to the dam and reservoir, and all impacted local governments of the dam removal no less than sixty days prior to the proposed removal.

Most critically, the bill removed the requirement that a removal not increase water levels above the site or cause flooding downstream to obtain a dam safety permit from the Department of Environmental Quality.  The purpose of the removal of this regulation was to expedite the dam removal process under these certain circumstances as well as hastening river restoration in the state.  However, the bill added the requirement that the Department of the Environmental Quality and the Department of Public Safety study the process in order to recommend changes to reduce other regulations that make removing obsolete dams more difficult while consolidating the permitting process.  At the time the bill was passed, the Division of Energy, Mineral, and Land Resources within the Department of Environmental Quality granted one to two applications to remove these kinds of dams every two to three years. As a result of the bill, the Division expects increased interest, but, as noted in the bill’s fiscal report, it is unclear how many dams increased interest would actually implicate.  Given the current lax interest in the dam removal program, a significant increase in participation would be required to create much of a fiscal impact on the state of North Carolina. However, the Division recognized that SB 107’s capping the fee at $500 could result in less revenue than the current fee structure generates while also encouraging more dam owners to seek removal due to the lowered costs.  If demand does increase substantially, then revenue captured by the Division could increase.  But, because the Fiscal Research officer could not predict the rate of participation, no fiscal estimate was available to legislators.

Overall, the importance of the bill comes down to how it eases the restrictions that used to accompany the removal of all dams in the state.  Now, under SB 107, a mechanism exists to allow for dam owners to employ engineers to oversee the removal of a low or intermediate hazard dam that is not being used for flood control or hydroelectric power generation.  Instead of having to seek approval from the Department of Environmental Quality for this as dam owners did in the past, now the dam owner only has to pay $500—a savings compared to the previous regime that required 2% of the actual costs of the removal.  Moreover, SB 107 changes the metric for measuring dams in the state when considering removal to the height of a dam from the lowest point on the crest to the lowest point on the downstream toe.  And finally, SB 107 also directs the Department of Environmental Quality and Department of Public Safety to study ways to further reduce regulatory barriers to dam removal and report their findings to the Environmental Review Commission by March 1, 2020.

 

Gracen Short


H.B. 2080, Kansas Leg., Reg. Sess. (Kan. 2017) (providing for the reinstatement of forfeited benefit units in rural water districts).

Kansas House Bill 2080 (“HB 2080”) addresses when rural water districts must reinstate forfeited benefit units.  A benefit unit is a property right that entitles a landowner to receive water service in a rural water district.  Although an infrequent occurrence, a benefit unit may be forfeited after six months of non-payment to the rural water district.

HB 2080 amends Kansas statute 82a-621 to provide for the reinstatement of forfeited benefit units.  The bill allows a landowner with a forfeited benefit unit to regain their benefit unit by paying the rural water district all unpaid fees and charges, including any fees and charges that have accrued since the date of forfeiture.  The bill restricts the amount of these reinstatement fees to not more than twenty percent of the district’s current new benefit unit fee.  The statute does not apply to forfeitures other than delinquent payment, such as a voluntary forfeiture of a benefit unit.

The Committee on Water and Environment introduced HB 2080 on January 18, 2017.  On February 23, 2017, the House passed the first version in a vote of 112 to 13. The Senate passed the final version in a vote of forty to zero on March 23, 2017.  Former Governor Brownback approved and signed the bill on April 18, 2017.  The bill passed with relative ease because there was no vocal opposition to it.

The bill originates from series of lawsuits filed on behalf of landowners who bought land in rural water districts only to discover that, because title searchers and realtors do not check the status of the benefit units, the benefit units had been forfeited as a result of non-payment or abandonment.  In many cases, had the landowner known about the cost of a benefit unit replacement fee (typically $4,000), he or she would have negotiated for a reduced price because land in rural Kansas is useless without the right to water service.

Gary Hanson, representing the Kansas Rural Water Association, explained that the statute, as it stood before this bill, did not equip stakeholders with a fair opportunity to resolve a property’s delinquent payments.  During foreclosure proceedings, which sometimes last up to twelve months, the bank as successor in interest is unlikely to make water payments and the rural water district commences shutting down water service.  It depends on the individual rural water district’s policies, but there are two ways to stop water service to a benefit unit.  The first option is to keep the benefit unit meter in place but restrict access with a padlock.  The other is to remove the meter completely, which imposes a new meter cost on the next landowner.  Therefore, properties can carry with them significant monetary burdens in order to regain water service.

HB 2080 recognizes and mitigates the financial consequences of defaulted water service payments in rural water districts.  Hanson noted that any long-term defaults on monthly fees significantly affect rural water districts.  These districts are usually run by volunteers and are low on funds, leaving them fragile and debt-ridden.  Thus, the board of rural water districts have the important task of incentivizing water users to pay their water bills on time.  Without this statutory change, however, it was possible for rural water district boards to abuse their discretion and supplement their income with replacement fees from new landowners.  Now, rural water districts cannot charge landowners more than twenty percent of the current cost for the new water unit.  Essentially, the bill helps address this issue because it imposes a cap on the amount that rural water districts can charge landowners for new benefit units.

The bill addresses the infrequent but very real financial burden that forfeited benefit units can cause for both landowners and rural water district boards.  HB 2080 alleviates these burdens by ensuring that once a landowner pays all water back fees to the rural water district then the cost for the new benefit unit cannot exceed twenty percent of the current price of a benefit unit.  Therefore, in effect, HB 2080 saves landowners thousands of dollars.  In addition, rural water districts can recover some of their losses from forfeited benefit units and restore water service to the defaulted land.

                                                                                                Camille Agnello

Image: Kansas State Capitol. Flickr User Holley St. Germain, Creative Commons.


H.B. 360, 65th Leg., Reg. Sess. (Mont. 2017) (establishing: (i) a surface water assessment and monitoring program aimed to collect and compile information regarding surface water availability and use; and (ii) a steering committee composed of members from various state and federal agencies, local governments, and other groups with interests in surface water use in Montana).

Montana House Bill 360 (“HB 360”) establishes a surface water assessment and monitoring program. The program, which will be a part of the Montana Bureau of Mines and Geology, will collect and compile surface water information at the direction of a steering committee. HB 360 provides that the steering committee should comprise members from various state and federal agencies, local governments, and other interested parties and organizations. For example, the bill requires the steering committee to include members from Montana’s Department of Natural Resources, Department of Environmental Quality, Department of Agriculture, the Montana State Library’s Natural Resource Information System, and a representative of tribal governments in Montana. Furthermore, the bill suggests that the steering committee should also include members from organizations such as Montana’s Board of Oil and Gas Conservation, a soil and water conservation district, and representatives from the agricultural, ecological protection, and development communities.

Like many areas in the mountain west, Montana is experiencing increased growth and development; thus, the Montana legislature developed this surface water assessment program in order to collect data and information regarding the availability and usage of its surface water. The State implemented a groundwater assessment program, which has provided relevant information regarding the availability and use of groundwater in the state. Proponents of HB 360 contend that implementing the surface water assessment program will produce data similar to the information gathered by the groundwater assessment program and lead to more informed policies regarding the use of surface water in the state.

HB 360 is a relatively short, straightforward bill. The bill does not attempt to pass broad, sweeping legislation. Instead, HB 360 merely establishes a surface water monitoring program. By incorporating the monitoring program into the Bureau of Mines and Geology, the bill does not require a fiscal note to establish funding sources. As such, there were not many changes or challenges to the bill throughout the legislative process.

At the committee hearings, there were no opponents to the bill. Many of the questions brought up in the House and Senate committee hearings concerned how Montana would pay for the program. While HB 360 neither allocates specific funding, nor establishes a concrete plan for securing future funding, sponsors and proponents of the bill did not seem concerned about the cost of implementing the program. Housing the program within the Bureau of Mines and Geology allows the bureau to use its funds to get the program off the ground while the committee works to secure federal grants and donations to continue the monitoring program while looking for future state funding. The only proposed changes to HB 360 came from the Governor’s desk and required appointing a member of the tribal government as part of the steering committee. Unsurprisingly, the House and Senate passed HB 360 with minimal opposition and Governor Steve Bullock signed the bill into law on May 8, 2017.

Supporters of the bill were reluctant to commit to any future policy or implications associated with HB 360. At this point, the bill’s program remains limited to gathering and compiling information on the availability and use of surface water in Montana. HB 360 is supported by numerous organizations and industries within Montana that rely on surface water, such as the cattle and ranching industry, the agriculture and farming industry, conservation organizations, fishing and recreational organizations, and even a realtor and development organization. These organizations understand the importance of having thorough and accurate information regarding the availability and supply of surface water. In the future, the program could help these industries employ more efficient water uses and shape policies regarding surface water in Montana.

HB 360 could be Montana’s first step in establishing sensible surface water policies. The legislation sets up a monitoring program charged with gathering and compiling accurate information regarding surface water systems. This information will provide more accurate and thorough information to the people and industries in Montana that rely on the use and availability of surface water. In turn, this program could lead to more sustainable water policies and practices in the state.

Christopher McMichael

Image: The Montana Capitol in Helena. Flickr user, Jimmy Emerson, DVM. Creative Commons.


S.B. 28, 65th Leg., Reg. Sess. (Mont. 2017) (allowing parties aggrieved by Department of Natural Resources and Conversation decisions about new water right permits and changes to water right permits the option to have the decision reviewed by either the Water Court or the appropriate district court).

Montana Senate Bill 28 (“SB 28”) expanded the jurisdiction of Montana’s Water Court. This bill allows water users aggrieved by the final written decision of the Department of Natural Resources and Conservation (“DNRC”) regarding new water right permits or changes to water right permits a choice of the venue in which to bring their appeal. Before the passing of SB 28, aggrieved water users could only bring their complaints before the district court presiding over the location of the water right. SB 28 allows the plaintiff to choose between either the Water Court or the appropriate district court. The sponsors of the bill aimed to provide an option for aggrieved parties to have a court with more experience in the subject matter hear their cases.

The first iteration of SB 28 only provided this choice without further instruction. An opponent speaking in the Senate hearing noted that many of these cases involve multiple aggrieved parties who believe the DNRC has harmed their water rights by extending rights to others. Following this, the Senate amended the bill to allow the district court presiding over the location of the water right to choose the ultimate venue when multiple aggrieved parties choose conflicting venues. This amended version of the bill passed in the Senate thirty-five to eleven and went to the House for consideration.

Chas Vincent, a Republican representing the Water Policy Interim Committee, served as the primary sponsor for SB 28. While drafting the bill, the committee considered a University of Montana study that reviewed the water policies of several neighboring states and a Supreme Court of Montana survey of district judges regarding water rights issues. The study advised the expansion of the Water Court’s jurisdiction as proposed in SB 28. The survey of district court judges found that a majority had no experience in water law, a super majority wanted the ability to refer cases to the Water Court, and another super majority favored the Water Court, rather than the district courts, hearing appeals of the DNRC. Water users, landowners, realtors, and attorneys specializing in water law widely supported SB 28. Most of the bill’s proponents saw the option in venue as a means to faster and cheaper resolutions to grievances regarding the DNRC’s permit decisions. However, some landowners and water users expressed concerns regarding the Water Court’s prime directive, judicial appointment of Water Court judges, and the funding of the DNRC appeals cases in the Water Court.

The Montana Legislature created the Water Court in 1979 to deal with the immense backlog of un-adjudicated water rights claims. Because Montana did not require reporting of water rights until 1973, many water rights claims still have not been adjudicated; however, full adjudication is still not expected until 2028. Prior to the introduction of SB 28, the Water Court existed only to adjudicate pre-1973 state water rights and Indian and federal reserved water rights. Opponents argued that increasing the Water Court’s jurisdiction would distract it from its ultimate goal of completely adjudicating water rights in Montana. The proponents countered that the likely case load would not exceed five to six additional cases per year. The proponents agreed that the Water Court should primarily focus on water right adjudication and administration of decrees. However, proponents also asserted that the additional option for aggrieved water users will not impair the Water Court from meeting its primary adjudication goal, especially considering that the current Water Court has increased efficiency in adjudicating water rights beyond that of previous courts.

Many opponents also expressed concerns that Water Court judges are appointed rather than elected. The opponents believed that the judges presiding over these cases should be elected, as are district court judges in Montana. Proponents asserted that the bill does not limit access to an elected judge, it merely provides a choice. Additionally, if a conflict on choice of venue arises, the elected judge makes the ultimate venue decision.

Opponents questioned the funding for the Water Court. Prior legislation that funded the Water Court specifically designated the funds for adjudication of claimed water rights. Proponents explained that the funding for the appeals cases will come from the general fund that already partially funds the Water Court. The bill, however, does not address this issue.

Moreover, proponents claimed that enforcement of water rights will soon become a major issue as Montana becomes a completely adjudicated state. This small-scale expansion of jurisdiction will allow for an assessment of the Water Court’s ability to handle an increased caseload involving a variety of water law issues. Opponents stressed that a decision about the future of the water court should receive greater scrutiny, involve in depth studies, and require prolonged deliberation.

After much deliberation, Montana’s House of Representatives also passed SB 28, with a vote of seventy-eight to twenty-two. The President of the Senate and the Speaker of the House signed the bill on March 20th, and Governor Steve Bullock signed it into law on March 31, 2017. Aggrieved water users in Montana now have the option to petition either the Water Court or the presiding district court to hear appeals of final written decisions from the DNRC.

Sydney Donovan

Image: The Montana Capitol in Helena. Flickr user, Jimmy Emerson, DVM. Creative Commons.