by John Dowd
Since the 1980s, the Town of Stevensville has been dealing with an issue facing many small Montana communities as the state modernizes. But, however common, the issue is serious. As the town grows, it has found itself without proper rights to the water people use every day.
According to attorney Ross Miller, of Miller Law PLLC, a water law specialist hired by the town, “I do this sort of work for all sorts of towns in Montana.”
To highlight the issue, Miller explained how, as many Montana towns have expanded over the last several decades, most of the state is what is referred to as “over appropriated.” The legal term refers to the fact that the existing water rights across the state outweigh the amount of water available. In other words, were the unlikely event to ever happen where everyone with water rights were to exercise their rights to the full legal limit, all at the same time, areas like the Bitterroot Valley would theoretically dry up. Fortunately, the reality is that that will never happen, since, according to Miller, most people do not even come close to their legal limit of use. However, this issue has led several drainages and valleys, including the Bitterroot, to enact legislation turning the system into a “closed basin” system. This means that these areas are closed to any new surface water rights.
This comes back to the issue the town is facing. When Stevensville started expanding in the 1970s and ‘80s, the town had to move from using surface water from areas like Burnt Fork Creek and Swamp Creek sent into a filtration system, to a deep well ground water system. With changes in legal water quality standards, the surface water treatment was no longer adequate. The deep groundwater was considered far safer and a new system was put into place. When the system was installed, water rights were claimed for the deep ground water.
Miller explained that during that process, the claim for water rights was written out only for the areas of use at the time, and did not account for much growth. When rights are filed, Miller explained, they need to be given several limitations. These include flow rate, volume and geographic location. Though the first were claimed plenty enough for future growth, the geographic location originally filed did not expand to cover enough area to account for the growing town. Currently, Miller said, there is only one area of town currently out of the geographic area. Miller said the town “is not applying for any new water rights,” but is trying to file corrections to its rights.
Miller and the town are working to amend those original place of use limitations to account for future growth. The state will need to approve the corrections, which Miller is optimistic they will. The issue is going before the state’s water court, which is uniquely designed to tackle these kinds of issues for pre-1973 claims. This refers to water rights before that year, as they are protected by the Montana State Constitution. The town has three wells, one of which was made between those years attached to the water rights. Each well’s rights will need to be updated. This first one, falling behind that year, is addressable by water court. The other two will need to be handled next through other means. Miller explained that this process could take several more years to resolve. However, the first pre-1973 claim could be squared away within the next couple months, as it moves through water court.
Another issue that will hopefully be handled in the future, according to Miller, is to use the original, and still possessed, surface water rights, to convert into more ground water rights. This could allow for another well.
As far as the town is concerned, this makes issues like annexation difficult. According to Stevensville Town Mayor Steve Gibson, “How can you ethically force someone to be annexed in when you don’t have the rights to what you already have?” During another interview Gibson, and other town representatives, mentioned that in the past, several properties may have been annexed in without their included water rights being transferred. “It gets kind of complicated,” said the mayor. Regardless, they are sifting through the process, and may have some resulting progress by the end of August, to late September.
As well as an issue with place of use rights, the old system is also prone to leakage, and has several leaks that are considered major. According to Steve Kruse, the Stevensville public works director, there are some ARPA grant funds that will be used to fix the leaks, and replace the old mains. “Fixing two birds with one stone,” may be possible, said Kruse, as most of the leaks seem to be at the mains.