DOJ: News Release

McGrath: Funding for Water Adjudication Program Stands

HELENA – In an opinion released Monday, Montana Attorney General Mike McGrath held that a bill passed by the 2005 Legislature to provide additional support for Montana’s water adjudication program is valid.

Gov. Brian Schweitzer requested the opinion, asking whether House Bill 22 is void. HB 22 passed both houses of the legislature and Schweitzer signed it on April 20.

The bill provided new funding for the adjudication through a fee assessed against water rights holders. To ensure that the funding support actually increased as a result of the fee, the legislature included a clause voiding the fee if the legislature did not commit at least $2 million from sources other than the new fee.

Legislative staff concluded that the legislature had not appropriated a sufficient amount of money, asserting that HB 22 required a single line item appropriation of at least $2 million to satisfy the contingency and that no such single line item existed in the state’s general appropriation bill, House Bill 2.

The bill was drafted and introduced in the 59th Legislature at the request of the Environmental Quality Council, following an EQC report on an interim study of water adjudication in the state. The report concluded that additional funding from a new funding source was needed to help speed up the adjudication process and ensure its accuracy.

Schweitzer’s request asked McGrath’s opinion on whether conditions existed that would void the new fee.

McGrath’s opinion found that, in passing HB 22, the 2005 Legislature “had a specific objective in mind – to increase the funding available for purposes of the adjudication above the level found in the current budgets of the agencies that were participating in that task.”

After examining the language of the provision voiding the fee, the opinion concluded that the provision “allows aggregation of all line items that support the water adjudication process.”

Rather than defeating the entire purpose of HB 22, the opinion concluded that the provision could legitimately be interpreted to include “any agency budget line item devoted to the advancement of the adjudication process” in Montana’s water adjudication program.”

Attorney general’s opinions carry the weight of law unless a court overturns them or the legislature modifies the laws involved.

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