Form 602: A Step-by-Step Guide
Perhaps the most common and legally mystifying water right, 602 Water Rights are distinct from those discussed in Parts I or II of this series in that they do not require full review by the Department of Natural Resources. These water rights are typically for domestic uses and are limited to a flow rate of 35 gallons per minute and a total volume of 10 acre-feet per year. While these parameters seems simple on their face, administration and enforcement has proven to be a different story. This is particularly true as water uses in Montana change with population trends. Particularly in the Western half of the State, these exempt water rights are more and more often capitalized on for subdivision development as “exempt wells.”
Thirty-five gallons per minute is a relatively substantial flow rate. Ten acre-feet is, likewise, a substantial volume of water (think one acre of land filled with 1 foot of water, and then multiply that by 10). Paired with the limited regulatory review required to obtain this type of water right, 602 water rights are widely relied upon by new water users to claim water rights appurtenant to their property. Below is a brief guide for filing a 602 water right in Montana.
Form 602: Notice of Completion of Groundwater Development
This form is used for water rights that divert no more than 35 gallons per minute and 10 acre-feet per year. Below is a step-by-step guide for researching and compiling the necessary information to claim a 602 Groundwater Certificate in Montana:
- Provide Legal Property Ownership Information. This information will usually be obtained directly from the recorded deed granting you ownership. If the property is owned in Trust or by an Entity (LLC, corporation, etc.), you will also be required to specify the name of the Trust or legal entity.
- Confirm that Water Has Been Put to Beneficial Use. If you are unable to confirm that the water you are claiming has already been put to beneficial use, then you are not able to lawfully file Form 602. For instance, if you are building a house but have not yet applied water for domestic use, you must wait until you have started to apply the water towards your beneficial use before filing Form 602.
- Describe Means of Diversion. Identify if your groundwater diversion is via well, developed spring, or pit/pond, as well as providing specifics if applicable.
- Describe the Flow Rate Used. Identify in gallons per minute the Flow Rate you are pumping by performing the 5-gallon bucket test, or larger tank if necessary. 300/number of seconds = flow rate in GPM.
- Other Wells, Developed Springs, Pits on Property. Identify whether there are any other similar groundwater diversions located on your property and include a map of your property indicating the location of each diversion, the distance apart each diversion, and the water right number associated with each diversion if available. The DNRC will accept both hand drawn maps or printouts.
- Other Water Users and Water Rights Associated with Point of Diversion. Identify and confirm whether any other water user relies on the well, developed spring, or put you have identified. Additionally, the DNRC requests that you explain the situation and provide water right numbers for any other existing water right.
- Purpose & Period of Use. Identify the purpose of your water right as either for domestic, lawn & garden, crop irrigation, livestock, or some other purpose (with description of that purpose). In addition, you must identify specifics of the use such as number of dwellings supplied on the property, size of lawn and garden areas, types of crop and number of irrigated acres, number and type of livestock and if tanks are used, and generally period of use throughout the year.
- Point of Diversion. Identify the legal description and location of the point of diversion for the groundwater diversion.
- Place of Use. Identify the legal description and location of the place of use where the water has been beneficially applied.
- Confirm whether the place of use is the same as the point of diversion for the water right, including providing the legal description if the answer is no.
- Affidavit of Ownership or Written Consent. The applicant must sign, under penalty of perjury and the laws of the State of Montana, that the foregoing information provided is correct AND ALSO that the applicant has “possessory interest in the property where the water has been put to beneficial use and [has] the exclusive property rights in the groundwater development works OR [has] attached written consent of the person owning the groundwater development works and/or written notification to the landowner pursuant to § 85-2-306(1) MCA”.
After submitting your application, the DNRC will conduct a brief compliance review to ensure that you’ve provided all required information. After determining the document is sufficient and complies with the law, the DNRC will issue a new Water Right Abstract and Water Right Number for the water right. The priority date associated with your new water right will correspond with the time of filing the Notice with the DNRC. In addition, the DNRC will create a Claim File for the Water Right, which acts as an electronic file and records-keeping document for all things associated with the water right, including your initial Form 602 and any supplemental documents or maps.
These water rights are not included in basin-wide adjudications at the Water Court, but that doesn’t mean you shouldn’t still be diligent about your lawful use of water pursuant to your water right and any other water users that could have an impact on your ability to fulfill that water right. Further, given the nature of the 602 Water Rights and limited review by the DNRC, it is possible to find yourself adversely impacting existing water users even unknowingly and subsequently needed to manage your water use with these limitations in mind.
Of course, the potential for conflict or confusion is almost always present when it comes to water rights in Montana, but our team at Ferguson & Coppes is here to help solve those problems if and when they do come up. Please contact our office for a free consultation with one of our experienced water law attorneys.
To learn more about how to file for a new groundwater permit in Montana (Form 600 GW), click here. To learn more about how to file for a new surface water permit in Montana (Form 600 SW), click here.
For information on the history of Montana Water Law, check out this blog post.