Monday, March 30, 2009

Hijacked Legislation

Water rights are among the most valued property rights anywhere. Indeed, what is land without water? Montana has long honored a prior appropriations doctrine, which means that the first person to hold a water right in time has priority for water. First in time, first in right. It's the basis for protecting prior appropriators from subsequent users that may adversely affect existing water rights.
Today in floor debate in the Montana House of Representatives, a bill was presented that proposes a last-in-time, first-in-right model for the energy industry that produces coal bed methane (CBM), natural gas. There are a number of critically bad proposals in this bill: it gives the Board of Oil and Gas, which grants drilling permits, not water rights, jurisdiction over water; in one part it restricts any release to surface water but in another, it grants release to surface water; and it grants temporary permits through which entire subsurface aquifers may be dewatered by CBM operators. The bill was heard by the House Agriculture committee last week, but usually, energy- or water rights-related bills are heard by our Energy or Natural Resources committees. This one went to Ag.
CBM works by pumping up water from underground aquifers, which decreases the pressure underground in strata where the natural gas is held. Once the water is pumped off, the gas can be pumped out, but the water is not replaced, and any other wells drilled into that aquifer, for irrigation or stock water or domestic water, are then without the water. There have been efforts to require industry to recharge (refill) the aquifers by holding the water they pump up and requiring that they then pump it back in, but those efforts have failed. Industry says it's too expensive and troublesome. I think having other water users' water pumped off is troublesome. Additionally, CBM water is almost always highly salinated and highly mineralized, making it bad for irrigating, and bad for surface waters. Montana is in legal action against the State of Wyoming because of that state's discharge into the Powder and Tongue Rivers, which run north into Montana; because of Wyoming's CBM surface water discharges, the saline and mineral levels in those rivers are off the charts, furthering compromising our water users' uses.

Judge Honzel issued an opinion that restricts the use of CBM water per our state laws. That was the right call, both for the beneficial use versus the wasting of water, prohibited in Montana, and to protect our senior water rights holders. This bill proposes to absolutely twist our water rights statutes and the prior appropriations doctrine, all for one use, for one industry, for a short-term gain.

The bill is also a sham: its number is HB575, but it's not that bill. The House Agriculture committee heard and considered HB575 and that bill did not pass committee. Then an amendment came forth that replaced all language and all sections of HB575 with language from HB505, from a Senate sponsor, and for the first time ever, I've seen this language:

(Refer to Introduced Bill)
Strike everything after the enacting clause and insert:

This is abhorrent.

I voted against the bill, but it passed with a 59-41 vote. An amendment proposed by Rep. David Roundstone failed, which would have required the Board of Oil and Gas to certify that any withdrawal of water does not adversely affect senior water rights holders. The amendment failed.

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