HB 309 Does Not Endanger Public Access

By Beacon Staff

During the first half of the 62nd Legislative Session, we have dealt with legislation concerning everything from how we run our businesses, and how we educate our children, to how we recreate in Montana. This last subject has generated a lot of comment from our constituents and we would like to take this opportunity to expand on what exactly is contained in the language in House Bill 309, “The Ditch Bill.”

Prior to 1985, the only rivers and streams that were considered open to public access were those deemed “navigable” by the Corps of Engineers; about 1,900 miles in Montana. In the early 80s there were two Supreme Court cases that resulted in all of Montana’s naturally flowing streams and rivers to be open to public access. The 1985 Legislature realized that there needed to be some boundaries and guidelines on this ruling. It passed what is now referred to as the Montana Stream Access Law, opening up over 23,000 miles of streams and rivers to public access and recreation.

This law was passed after a lot of contention, discussion and debate and, finally, compromise. From that was the agreement that irrigation systems were not to be included in stream access. These are the private investments made by farmers and ranchers in order to operate their businesses. They are designed to irrigate, not recreate.

This law has served us well over the last 26 years and HB 309 does not attempt to undo anything in the 1986 SAL. HB 309 simply addresses recent court rulings that put into question what exactly is the definition of a “ditch.” HB 309 defines “diverted from a natural water body” to mean a diversion of surface water for a beneficial use as defined in 85-2-102 and allowed by Title 85, chapter 2, through a water conveyance system constructed by humans. This means that a person must first have a water right to use the water for beneficial use; and, as we all know, they must then get a 310 permit to divert that water away from its natural flow. This must be done with a manmade structure.

The bill then goes on to say that if in this “diverted water” or “ditch” there are some return flows from either their or their neighbor’s irrigation, it is still a ditch. If we have a wet year, like this year looks to be, and there is naturally occurring groundwater in their manmade system, it is still a ditch. It repeats the 1985 SAL by saying that from the point where the water is diverted away from the natural flow, into the manmade ditch, to the point where the water returns to the natural flow, is a ditch that is not included in the stream access law.

Some want you to believe that this will affect rivers and streams that were opened under the 1985 SAL. They are wrong. It only deals with man-made irrigation systems. It simply says if you build a ditch and some naturally occurring water is present, it is still a ditch. It does not say that water diverted into a ditch and then returned to a river makes a river a ditch. That is simply backward of what this bill does. The bill also makes clear that lakes that impound water for irrigation are still open to public recreation. This is no change from the 1985 agreement.

Finally, the bill makes the changes to the text of the law to conform to the 1987 Galt decision where the Supreme Court threw out portions of the SAL as unconstitutional. These sections have never been removed from the text of the law even though they are not accurate. This is again, no change. Simply fixing the words to fit what the courts have already ruled.

When the group of Montana’s irrigating farmers and ranchers approached us about supporting HB 309, we gave it a lot of thought and educated ourselves to make sure that we were not endangering the public access granted in the 1985 SAL. Many of us are avid fishermen. We also respect the private investment made by Montana’s farmers and ranchers. We understand that irrigation systems are designed for work, not play. They are often not safe for recreation. This bill simply clarifies that.

Republican Reps. Keith Regier, Steve Lavin, Bill Beck, Scott Reichner, Mark Blasdel and Randy Brodehl serve in the Montana House of Representatives.

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