2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 4. Utilization of Water › 85-2-424. Filing

85-2-424. Filing.
(1) Except in the case of a transfer of real property served by a public service water supply, when a person presents for recording a deed or other instrument evidencing a transfer of real property, the realty transfer certificate must contain a water rights disclosure in which the transferor shall acknowledge, at or before closing or transfer of real property, whether or not any water rights are associated with the property to be transferred and whether or not any water rights will transfer with the real property.
(2) (a) The department shall update its records to reflect the new ownership of a water right within 30 days after receipt of either:
(i) information received from the department of revenue, if:
(A) the transferor of the property is the same as the owner of record for the water right;
(B) the transferor conveys the entirety of the property associated with the place of use; and
(C) the department has not received a form pursuant to subsection (3), (4), or (5); or
(ii) a complete water right ownership update form provided by the department and submitted to the department.
(b) If the department receives information from the department of revenue that a transfer has occurred and the transferor of the property is not the same as the owner of record for the water rights, the department shall within 30 days after receipt of the information from the department of revenue notify each party indicated as a transferee that:
(i) the party is required to submit a complete water right ownership update form and the required fee within 60 days after the notice; and
(ii) ownership of the water right will not be changed in the department's records until the complete water right ownership update form is provided.
(c) The appropriate fee must be paid at closing or upon completion of the transfer of real property as provided in 85-2-426.
(d) The transferee of a water right, after receiving notice as provided in subsection (2)(e), is responsible for compliance with this section.
(e) If the department receives notice from the department of revenue that a property transfer has occurred and the proper fee was not received by the department, the department shall send a notice to the transferee requesting payment of the fee. If the transferee does not pay the fee within 60 days, the department may assess a penalty against the transferee pursuant to 85-2-431.
(3) (a) Except as provided in subsection (3)(b), if the realty transfer certificate discloses the division of the place of use of a water right among separate parcels, each transferee receiving a portion of the water right shall file with the department a complete water right ownership update form confirming the transfer, a map, and the required fee.
(b) If a complete water right ownership update form is not filed by all parties pursuant to subsection (3)(a), the parties must be reflected as co-owners on the water right.
(4) If a person exempts a water right pursuant to 85-2-403, the person shall file with the department a complete form provided by the department describing the exempting of the water right and the appropriate fee.
(5) If a person severs a water right from appurtenant property without conveying the property, the person shall file with the department a complete form provided by the department describing the severance and the appropriate fee.
(6) If the realty transfer certificate submitted with a deed or other instrument indicates that a water right is being transferred, severed, divided, or exempted, the clerk and recorder may not record the deed or instrument unless there is submitted with the deed or instrument a certification under penalty of false swearing, on a form provided by the department and signed by the transferor and transferee, that states either:
(a) that the documents and fee necessary to comply with this section are held in escrow, in which case the certification must also be signed by the escrow agent; or
(b) if there is no escrow, that the transferor and transferee certify that they have filed or mailed the required documents and fee with or to the department.
(7) Any written agreement to transfer land that has appurtenant water rights on record with the department must contain the following disclosure or words of a similar nature:
"WATER RIGHT OWNERSHIP UPDATE DISCLOSURE:
By Montana law, failure of the parties at closing or transfer of real property to pay the required fee to the Montana Department of Natural Resources and Conservation for updating water right ownership may result in the transferee of the property being subject to a penalty. Additionally, in the case of water rights being exempted, severed, or divided, the failure of the parties to comply with section 85-2-424, MCA, could result in a penalty against the transferee and rejection of the deed for recording."
(8) Except as provided in subsection (2), the department shall update its records to reflect new ownership without collection of a transfer fee within 30 days after:
(a) receiving a withdrawal of a water right, or an interest in a water right, by an owner of the right or interest;
(b) receiving an order from the water court or other court of competent jurisdiction that modifies or terminates ownership of a water right; or
(c) learning of a clerical error resulting from an error on a water right ownership update form.
(9) In the event of a dispute over the ownership of a water right, the department shall, within 30 days after being notified of the dispute, certify the matter to the water court or other court of competent jurisdiction for resolution.
(10) The department may not delay updating ownership based on nonpayment of transfer fees by a transferee. The department's sole remedy in the event of nonpayment of transfer fees is to assess a penalty and seek collection from the transferee pursuant to 85-2-431.
(11) For the purposes of this section, "complete" means that the information requested in the form has been supplied, together with a copy of the executed deed or deeds or any other instruments confirming the transferee's ownership or the ownership by the person exempting the water right, for each water right listed on the form. The department shall notify the transferee or the person exempting the water right of any deficiencies causing the form to be considered not complete within 60 days of submission.
History: En. Sec. 4, Ch. 674, L. 1983; amd. Sec. 2, Ch. 271, L. 1985; amd. Sec. 10, Ch. 805, L. 1991; amd. Sec. 3, Ch. 167, L. 1997; amd. Sec. 12, Ch. 70, L. 2005; amd. Sec. 4, Ch. 366, L. 2007; amd. Sec. 12, Ch. 335, L. 2013; amd. Sec. 1, Ch. 70, L. 2017; amd. Sec. 1, Ch. 260, L. 2021.