Opinion: Montana Legislature Missing Golden Opportunity to Secure Montana Primacy Over Water  

April 10, 2023

As a third-generation rancher from Big Sandy, I am absolutely aware of the importance of water, water rights and the protection of Montana’s primacy over the water resources of this state. That is why I have traveled to Helena to testify in both the Senate and the House in support of SB 72 pending in the Montana Legislature. SB 72 will protect and assure that Montana’s own courts will continue to have the exclusive jurisdiction over the distribution of water and water rights both before and after the adjudication of existing water rights is completed by the Montana Water Court. As far as State rights legislation goes SB 72 is absolutely critical! Unfortunately, SB 72 is encountering opposition by members of the House Judiciary Committee based on issues raised by big money political donors, and for reasons unrelated to the substance of the bill. All Montana water right holders, and all who care about the State maintaining primacy over the water resources of this state, should contact their representatives immediately and urge a “do pass” on SB 72. 

SB 72 will assure the administration and distribution of water under the Final Decrees of the Montana Division Courts will be enforced, administered, and distributed by a Montana State court and not by the federal government. Under a federal law known as the McCarran Amendment, Montana has the opportunity to not only adjudicate ALL rights to water arising in Montana, but also the opportunity to administer and distribute ALL of Montana’s water to those who have valid water rights. This includes the jurisdiction and authority over the distribution of water rights held by the United States government. Water and water rights are the most precious of all resources in Montana. Water and water rights are the one resource the State can protect and control, even over the reach of the federal government, through our water division courts. The passage of SB 72 will stiff arm the federal government’s attempt to take over our water!

If you don’t think the United States government has its eyes on the water of the western states, including Montana, look no further than recent actions of the Biden Administration concerning the continuing struggle over the designation of “Waters of the United States” (WOTUS) under the federal Clean Water Act. Despite opposition from several western legislatures, and despite opposition from Congress, the United States is insisting on defining waters of the US in a manner which threatens all water rights and all property rights in the western U.S. 

The controversy over WOTUS, and the importance of keeping the United States government out of the lives of just about all resource activity providers in the western U.S., pales in comparison to the United States having jurisdiction over water rights and water distribution in Montana. In order to protect Montana’s ability to continue to have primacy over the water resources of this state, and more importantly primacy over the distribution of the water rights adjudicated by the Montana state Water Court, passage of SB 72 is absolutely essential!

Members of the House Judiciary Committee and members of the Montana House now need to set political games aside and protect Montana’s primacy over water rights and water resources of Montana by passing SB 72. 

Rich Roth, Big Sandy, MT

Rich Roth is third-generation rancher from Big Sandy Montana. He also serves as the water policy chair and north central district director for the Montana Stockgrowers Association.