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.
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.
Obtaining any new Montana water right can be a daunting endeavor. Picture this: you’ve moved to Montana and you’ve found the perfect property (the one with the pristine creek meandering through) and you’ve gotten some ideas for how might put the water that appears available to good use. Of course, the water is on your property and you are in the Wild West, but how do you know if you have the legal right to use it?
As we mentioned in Part I of this series, obtaining or confirming a water right in Montana often requires a bit of research. If you’re feeling uneasy about conducting this research yourself, you’re not alone! Water rights and usage in Montana are complex and can easily turn into highly contentious disputes even among those who formerly considered themselves friends. As the questionably attributed but keenly observant saying goes, “Whiskey is for drinking, water is for fighting.” As water and natural resource attorneys, we find this saying validated more and more each day.
Of course, at Ferguson & Coppes, our goal is always to keep this fighting to a minimum unless the situation calls for it. Therefore, we like to ensure that clients and potential clients have access to as many resources as possible in order to make the right decision for themselves and avoid future conflict over that choice. This blog is intended as a resource for those interested in obtaining a Surface Water Permit from the DNRC via Form 600 SW. Below please find a step-by-step guide for obtaining a water right to divert more than 35 gallons per minute or 10 acre-feet per year from any surface water source owned by the State of Montana.
Step 0. Meet with DNRC to discuss the proposed project & complete Pre-Application Checklist.
This is an optional meeting provided by the DNRC and comes with the added incentive of a $200.00 reduction in the filing fee for simply attending. In order to qualify, a signed copy of the Pre-Application Checklist must be returned to the DNRC with a completed application within 6-months of the date of the pre-application meeting. The DNRC also encourages that attendees are joined by their attorney, consultant, or other individual with detailed knowledge of the proposed project. There are a number of reasons why it is recommended to have an attorney present in particular, as discussed in some detail below. If you are unsure about certain aspects of your proposed project but are still interested in taking advantage of this incentive, we recommend you contact us at Ferguson & Coppes for a free consultation with an experienced water law attorney.
Step 1. File Form 600 SW: Surface Water Application for Beneficial Use Permit.
In addition to paying the required filing fees and providing a valid, signed Pre-Application Checklist if applicable, the DNRC requires that the applicant submit Form 600 SW – Surface Water Application for Beneficial Use Permit. Below is an outline of the information required to satisfy the application criteria:
Obtain Required Reports & Addendum Information. This includes the following:
Storage Addendum: required if you plan to store water, but not required for water tanks and cisterns. In this case you may also need to submit a Reservoir Addendum.
Water Marketing Addendum: required if the purpose of the permit will be to market or sell water.
Basin Closure Area Addendum: required if your point of diversion is located in a basin closure area. If yes, you may also need to submit a Hydrogeologic Assessment Report.
Sage Grouse Habitat Project Review: required if your diversion and/or place of use are located within an area designated as sage grouse habitat.
Notice to Existing Users. Provide written notice of the application to each owner of an appropriation right sharing the point of diversion or means of conveyance (canal, ditch, flue, pipeline, or other constructed waterway). The DNRC’s water query system is a useful resource for researching the source and point of diversion that you intend to claim, but if you have any questions, it is often helpful to consult a water law attorney.
Gather & Provide Information Regarding Use of the Water. This generally includes the following:
Purpose & Diversion Information: This includes providing the name of the source (stream) from which you intend to divert, whether the use is temporary, the purpose for which you intend to use the water, your proposed means of diversion, total acreage irrigated (if applicable), the period of diversion and use, and, finally, the flow rate and volume needed.
Point of Diversion: This includes providing the legal description of the point of diversion of the water right, as well as specifics such as well depth and spring name, if applicable.
Place of Use: This includes providing the legal description of the physical location where the water will be applied for beneficial use. Geocodes can often be identified by contacting your county’s Clerk and Recorder, or by vising your local GIS website and/or the Montana Cadastral. If you’re unable to identify or unsure of the legal description that you’d like to claim as the place of use, we also recommend calling our office for a short consultation.
Map: This includes providing either a USDA Aerial Photo or USGS Quad of the diversion and place of use. It is important to note on the map the section corners, township, range, and N-S direction. You should also identify the proposed point of diversion, the proposed place of use, and any conveyance facilities or routes use to convey the water.
Supplemental Water Rights: This is required if there are any other water rights used on the proposed place of use for the same purpose, or if the application is for water intended to supplement contract water from a Federal Project, ditch company, or other source.
Physical Surface Water Availability: This includes confirming whether a gauging station exists on your source, that you have obtained at least one stream flow measurement from the source from each month of the requested period of diversion and providing those results (this is considered your Physical Availability addendum), any variances approved by the department and whether you have requested a variance from measurement requirements which were approved by the DNRC (on ephemeral sources only), along with applicable variance approval.
Adverse Effect. To comply with Montana law, you are required to provide a detailed description of your plan to ensure that existing water rights will be satisfied during times of water shortage.
Adequate Diversion Means and Operation: This includes confirming whether you have plans to measure your diversion and use, providing a description of how the system will operate from the point of diversion to the place of use, confirming whether the system will be designed to discharge water from the project and providing a detailed description if so, and finally, providing a detailed description and diagram of the preliminary design plans and specifications for the proposed diversion and conveyance facilities (including equipment used to put the water to beneficial use).
Beneficial Use: This includes providing an explanation of the requested flow rate and volume and why it is needed for your intended purpose. If the purpose includes in-house domestic use, you must also submit the applicable Certificate of Subdivision Approval issued by the County in which the property is located.
General Project Plan & Proposed Completion Period: This includes providing an estimate of how many years you expect to need to complete the project and begin applying the water for its intended use as well as explaining why this requested time is needed for the project.
Affidavit & Certification. This section requires the applicant to certify, under penalty of perjury and under the laws of the State of Montana, that the information provided in the document is correct. Although simple, this is an important part of completing the application process and it is in the applicant’s best interest to ensure that all of the information provided is correct to the best of their knowledge. For this reason, we do recommend contacting an attorney experienced with Montana water law to ensure that you’ve provided the most accurate and legally relevant information.
Step 2: DNRC Review for Correctness and Completeness.
After submitting Form 600 SW to the DNRC, the DNRC will begin its review process of your application. The goal of this step is to receive a “Correct & Complete” determination by the DNRC’s compliance officer. These determinations are made within 180 days of the DNRC’s receipt of the application. At times, this will also require a field inspection by DNRC staff. During this period, the application may be amended at any time. If the DNRC notices any deficiencies in your application material, they will notify you and provide 120 days to make appropriate changes and provide any additional information. In the event that the applicant determines that they will be unable to meet the 120-day deadline, they may withdraw their application at any time, but will forfeit their initial filing fees.
Upon determination that the application is Correct and Complete, the DNRC will notify the applicant and provide the applicant 15 days to request a meeting with the department if necessary. In addition, the DNRC will complete their required MEPA review and documentation at this time.
Step 3: Obtain Preliminary Determination & Meet with DNRC If Necessary.
After determining that the applicant has provided sufficient information to meet the application criteria, the DNRC will prepare a draft Preliminary Determination to either grant, deny, or grant with modifications. The DNRC will then provide this draft opinion to the applicant and again allow 15 days to request a meeting to discuss the department’s findings. If the applicant requests, the DNRC may then schedule a hearing to review the inadequate criteria. In the event that the final decision is still to deny the application, the applicant may appeal the decision to the District Court. Upon review, the District Court may reverse the DNRC’s decision. In this case, the DNRC is also afforded the opportunity to appeal Final Orders to the District Court within the 30-day appeal deadline.
Step 4: Public Notice & Objection Period.
If the DNRC grants the application or grants with modifications, the applicant then moves to a public notice period in which the DNRC provides notice generally and also to surrounding landowners that the application has been received and granted. The public has 45 days to object. In the event no objections are received, the DNRC will issue a Final Order adopting the Preliminary Determination and issue a permit to the applicant pursuant to the information provided in that Preliminary Determination.
When an objection is received, the DNRC will determine whether the objections are valid and, if so, will schedule a hearing within 90 days of the objection deadline. After the hearing and the record is closed, a Final Order must be issued within 90 days. In the even that objections are withdrawn, the hearing will be dismissed and a Final Order issued. If not, a Hearing Examiner will prepare a Final Order to grant with or without stipulations and may include a private agreement. After DNRC review, a Final Order granting the application will be issued.
Of course, the process for filing any new Montana water right is complicated with many opportunities to go south. Therefore, it is always recommended to consult with an experienced water law attorney before beginning the process. Contact our office for a free consultation with one of our experienced water law attorneys.
For information on the history of Montana Water Law, check out this blog post.
For information on filing Form 600: Groundwater Application for Beneficial Use Permit, click here.
For information on filing Form 602: Notice of Completion of Groundwater Development, click here.
If you’ve done your homework on Montana Water Rights, you may already know that to obtain the right to use water in Montana, you’ll need to file paperwork and pay fees to the Department of Natural Resources and Conservation. That said, it’s always worth reviewing your real estate paperwork first to see whether any water rights already exist for use on your property. Another way to research this is through the DNRC’s water right query system for your water right information. If you think this might be the case, it’s also probably worth contacting a water law attorney to review the water right, file any relevant ownership updates or other necessary documents.
On the other hand, if you’re filing for a new water right, for instance as part of a new subdivision or for a hydro-electric project, you’ll likely need to go through the DNRC’s process to obtain a legally enforceable water right: a permitted groundwater diversion for more than 35 gallons per minute or 10 acre-feet per year. Below is a step-by-step guide for filing one of the more common water rights with the DNRC. For additional information, you can also visit the DNRC’s website here.
Step 0: Meet with DNRC to discuss the proposed project & complete Pre-Application Checklist.
This is an optional meeting, but the DNRC offers a $200.00 reduction in the permit filing fee for attending. In order to qualify, a signed copy of the Pre-Application Checklist must be turned into the DNRC with a completed application at least 6-months from the date of the pre-application meeting. The DNRC also encourages that attendees are joined by their attorney, consultant, or other individual with detailed knowledge of the proposed project and water rights. There are a number of reasons why it is especially recommended to have an attorney present, as discussed in some detail below. If you are unsure about certain aspects of your proposed project but are still interested in taking advantage of this incentive, we recommend you contact us at Ferguson & Coppes for a free consultation with an experienced water law attorney.
Step 1: File Form 600 GW: Groundwater Application for Beneficial Use Permit
This form is used for water rights that divert more than 35 gallons per minute or 10 acre-feet per year. Below is a step-by-step guide for researching and compiling the necessary information to claim a Groundwater Permit in Montana:
Obtain Required Reports & Addendum Information. This includes the following:
Aquifer Testing Report: required for all groundwater well applications.
Storage Addendum: required if you plan to store water, but not required for water tanks and cisterns. In this case you may also need to submit a Reservoir Addendum.
Water Marketing Addendum: required if the purpose of the permit will be to market or sell water.
Basin Closure Area Addendum: required if your point of diversion is located in a basin closure area. If yes, you may also need to submit a Hydrogeologic Assessment Report.
South Pine Controlled Groundwater Area Addendum: required if your diversion is located within the South Pine Controlled Groundwater Area.
Yellowstone Controlled Groundwater Area Addendum: required if your diversion is located within the Yellowstone Controlled Groundwater Area.
Sage Grouse Habitat Project Review: required if your diversion and/or place of use are located within an area designated as sage grouse habitat.
Notice to Senior Users. Provide written notice of the application to each owner of an appropriation right sharing the point of diversion or means of conveyance (canal, ditch, flue, pipeline, or other constructed waterway). The DNRC’s water query system is a useful resource for researching the source and point of diversion that you intend to claim, but if you have any questions it is often helpful to consult a water law attorney.
Gather & Provide Information Regarding Use of the Water. This generally includes the following:
Purpose & Diversion Information: This includes providing the purpose for which you intend to use the water, your proposed means of diversion, total acreage irrigated (if applicable), the period of diversion and use, and, finally, the flow rate and volume needed.
Point of Diversion: This includes providing the legal description of the point of diversion of the water right, as well as specifics such as well depth and spring name, if applicable.
Place of Use: This includes providing the legal description of the physical location where the water will be applied for beneficial use. Geocodes can often be identified by contacting your county’s Clerk and Recorder, or by vising your local GIS website and/or the Montana Cadastral. If you’re unable to identify or unsure of the legal description that you’d like to claim as the place of use, we also recommend contacting our office for a short consultation.
Map: This includes providing either a USDA Aerial Photo or USGS Quad of the diversion and place of use. It is important to note on the map the section corners, township, range, and N-S direction. You should also identify the proposed point of diversion, the proposed place of use, and any conveyance facilities or routes use to convey the water.
Supplemental Water Rights: This is required if there are any other water rights used on the proposed place of use for the same purpose, or if the application is for water intended to supplement contract water from a Federal Project, ditch company, or other source.
Adverse Effect: To comply with Montana law, you are required to provide a detailed description of your plan to ensure that existing water rights will be satisfied during times of water shortage.
Adequate Diversion Means and Operation: This includes confirming whether you have plans to measure your diversion and use, providing a description of how the system will operate from the point of diversion to the place of use, confirming whether the system will be designed to discharge water from the project and providing a detailed description if so, and finally, providing a detailed description and diagram of the preliminary design plans and specifications for the proposed diversion and conveyance facilities (including equipment used to put the water to beneficial use).
Beneficial Use: This includes providing an explanation of the requested flow rate and volume and why it is needed for your intended purpose. If the purpose includes in-house domestic use, you must also submit the applicable Certificate of Subdivision Approval issued by the County in which the property is located.
General Project Plan & Proposed Completion Period: This includes providing an estimate of how many years you expect to need to complete the project and begin applying the water for its intended use as well as explaining why this requested time is needed for the project.
Affidavit & Certification. This section requires the applicant to certify, under penalty of perjury and under the laws of the State of Montana, that the information provided in the document is correct. Although simple, this is an important part of completing the application process and it is in the applicant’s best interest to ensure that all of the information provided is correct to the best of their knowledge. For this reason, we do recommend contacting an attorney experienced with Montana water law to ensure that you’ve provided the most accurate and legally relevant information.
Step 2: DNRC Review for Correctness and Completeness.
After submitting Form 600 GW to the DNRC, the DNRC will begin its review process of your application. The goal of this step is to receive a “Correct & Complete” determination by the DNRC’s compliance officer. These determinations are made within 180 days of the DNRC’s receipt of the application. This step will also require a field inspection by DNRC staff. During this period, the application may be amended at any time. If the DNRC notices any deficiencies in your application material, they will notify you and provide 120 days to make appropriate changes and provide any additional information. In the event that the applicant determines that they will be unable to meet the 120-day deadline, they may withdraw their application at any time, but will forfeit their initial filing fees.
Upon determination that the application is Correct and Complete, the DNRC will notify the applicant and provide the applicant 15 days to request a meeting with the department if the applicant wishes to further discuss elements of the application and future permit. In addition, the DNRC will complete their required MEPA review and documentation at this time.
Step 3: Obtain Preliminary Determination & Meet with DNRC If Necessary.
After determining that the applicant has provided sufficient information to meet the application criteria, the DNRC will prepare a draft Preliminary Determination to either grant, deny, or grant with modifications. The DNRC will then provide this draft opinion to the applicant and again allow 15 days to request a meeting to discuss the department’s findings. If the applicant requests, the DNRC may then schedule a hearing to review the inadequate criteria. In the event that the final decision is still to deny the application, the applicant may appeal the decision to the District Court. Upon review, the District Court may reverse the DNRC’s decision. In this case, the DNRC is also afforded the opportunity to appeal Final Orders to the District Court within the 30-day appeal deadline.
Step 4: Public Notice & Objection Period.
If the DNRC grants the application or grants with modifications, the applicant then moves to a public notice period in which the DNRC provides notice generally and also to surrounding landowners that the application has been received and granted. The public has 45 days to object. In the event no objections are received, the DNRC will issue a Final Order adopting the Preliminary Determination and issue a permit to the applicant pursuant to the information provided in that Preliminary Determination.
When an objection is received, the DNRC will determine whether the objections are valid and, if so, will schedule a hearing within 90 days of the objection deadline. After the hearing and the record is closed, a Final Order must be issued within 90 days. In the even that objections are withdrawn, the hearing will be dismissed and a Final Order issued. If not, a Hearing Examiner will prepare a Final Order to grant with or without stipulations and may include a private agreement. After DNRC review, a Final Order granting the application will be issued.
Of course, the process for filing any new Montana water right is complicated with many opportunities to go south. Therefore, it is always recommended to consult with an experienced water law attorney before beginning the process. Call our office at 406.532.2664 for a free consultation with one of our experienced water law attorneys or request a consultation here.
To learn more about how to file for a new surface water permit in Montana (Form 600 SW), click here. To learn more about how to file for a notice of completion of groundwater development (Form 602), click here.
For information on the history of Montana Water Law, check out this blog post.
As Montana attorneys specializing in natural resource and water law, at Ferguson & Coppes we are often asked: “What is Montana water law? How do Montana water rights work?” In fact, Montana has one of the more sophisticated legal systems for administering water in the US, among other states like California, Colorado and Hawaii, thanks in large part to Montana’s 1972 Constitution.
The Journey from Riparian to Prior Appropriation
It may seem obvious to those familiar—especially if you’ve grown up irrigating or “changing the water” for your family’s farming operation—but access to clean water has quickly evolved into the most valuable property interest one can possess. The “ownership” of water is treated differently depending on where you are located and does not actually mean that one owns the water in the way we traditionally understand property rights. Rather, water rights are “usufructuary” rights meaning that, when one owns a water right, it is a right to “use” a certain amount of water instead of the right to “own” the water itself. Each state applies their own set of laws and regulations to its administration and use. Except for the Clean Water Act, which regulates for pollution and quality of the Waters of the United States, there is limited regulation of water beyond each state’s natural resources agency or other applicable state governance. The states’ administration is framed and limited by the Public Trust Doctrine, which provides that each state holds their natural resources in trust for the public. In effect, the management responsibility for most of the available freshwater resources within the United States falls in the hands of each state. Each state is therefore entrusted to manage and administer this invaluable resource according to their own laws and regulations and in a way that protects the public’s ability to perpetually benefit from its existence.
The result is an incredibly diverse and legally complex arrangement of water rights spanning the continental US, but typically following two major trends or some hybrid. In the Eastern United States, where the American legal system was simultaneously developing, water was–and largely still is–managed according to a Riparian theory. This doctrine is elementary on its face: those who own the land bordering surface water sources also own their respective share of the use of available water. This is then shared according to each property owner’s pro-rata portion of that water supply at any given time or based on a reasonableness standard. (Of course, countless variations now exist even within the Riparian category).
Seemed simple enough.
But, then again, creating new law is rarely that simple.
‘Among the customs generally adopted in the (mining) camps was the first to divert a stream to use his rocker or pan had the first right to that amount of water.’
As homesteaders travelled West, and mining and agricultural enterprises expanded, the difference in the landscape and natural resource availability became obvious. This was especially true of water. In fact, the difference in availability was stark. Before this “destiny” manifested, water users were accustomed to usage in the East, which benefitted from densely located and abundant fresh water sources. Unfortunately, the Arid West wasn’t so reliable, as homesteaders and miners quickly came to realize. Paired with rising populations and the general lawlessness of the American West at that time, it was clear that some form of prioritization and organization of the available water was necessary.
In response, a new Western doctrine arose: Prior Appropriation. More specifically, the “birth of the prior appropriation system of distributing water has its roots in the California gold rush[:] ‘Among the customs generally adopted in the (mining) camps was the first to divert a stream to use his rocker or pan had the first right to that amount of water.’” According to this new legal interest, the first in time was simply the first in right. In other words, those who first arrive to use the water are the lawful priority user of whatever amount of water they first rely on and put to beneficial use.
If a new homesteader establishes a water diversion upstream to a prior user or “appropriator”, the junior appropriator must ensure the original use of the senior’s water remains consistent, regardless of the junior’s additional use. Likewise, if you divert water downstream of an existing upstream user, you may not always experience or be legally entitled to your full expectation of water in the late summer months when water is naturally less available, if at all. If your water doesn’t appear when expected as the senior appropriator, you make “call” on your neighboring junior users to cease their own use in order to fulfill what you were legally entitled to use.
In the West, these arrangements persisted and found themselves solidified in law. Montana, newly ratified as a territory in 1864, found itself uniquely situated to address the looming legal questions surrounding Western water use given its abundant water and other natural resources.
Historic Water Rights in Montana
Before any bells or whistles, Montana abided by a similar water administration scheme as that of their western sister states. In other words, general legal processes existed to allow individuals to claim their water right, particularly stating the first date their water was beneficially applied to their property, i.e., their priority date. This allowed homesteaders and others to record and establish legally enforceable priority dates against surrounding and incoming junior users. Typically, this was done by simply filing a statement of usage and other details of the claim at your nearest courthouse. As one can imagine, the Montana territory at the time was sparsely populated and it was not uncommon that early homesteaders were located hundreds of miles from the nearest courthouse. What’s more, surveying of the Montana territory didn’t begin until after 1865 meaning that early homesteaders often head to rely on other landmarks or adjacent landowners in order to describe the property in question. As a result, these old records are often riddled with inconsistencies and other oddities, albeit they are often still relied on by Montana courts as evidence of historic water use.
This system, in its various forms, worked for more than a century until it became apparent that water was continuing to be “over-appropriated,” i.e., more was legally claimed than physically available. The uses claimed, and continuing, were threatening to overwhelm even Montana’s abundant supply without additional regulatory involvement, for better or worse. As early as the late 1800’s, the few Montana courts in existence had been attempting to resolve the countless disputes among early water users and identifying water sources that were dry as early as July as a result of the increased irrigation and other uses. Similarly, these historic decrees are often relied on today by Montana courts to determine and further corroborate these historic uses.
In response, the Montana Legislature promulgated the Water Use Act of 1973. This Act, among other things, provided parameters and notice to Montana water users to file a Statement of Claim for any water uses existing prior to 1973. Property owners claiming water rights after this date (with many caveats, of course) would instead be required to obtain a new water permit from the Montana Department of Natural Resources and Conservation (DNRC). Further, if anyone sought to change certain material elements of their historic water right, they would be sent to the DNRC. In this way, Montana conveniently split water rights into two categories: Pre- and Post-1973 Water Rights. Pre-1973 water rights filed pursuant to the Water Use Act fall within the Montana Water Court jurisdiction, while the issuance of post-’73 rights falls under the Montana DNRC’s jurisdiction. You can learn more about the Montana DNRC’s role in administering water post-1973 water rights here.
Montana Water Courtand Future of Water Law
You may have been hearing more news about the Montana Water Court recently, and for good reason. The Montana Water Court was established as part of the 1973 Water Use Act and officially opened its doors to Montana in 1979. Currently the Water Court is “untangling 219,000 water right claims to determine who is ‘first in time.’ Like seven other Western states, the judicial branch has taken the lead in this process, but [the DNRC] plays a major role.” (A Short History of the Water Court, footnotes omitted).
With the same judicial power as any District Court in Montana, the Water Court specializes in resolving water right controversies arising from pre-1973 water rights. Primarily, the Water Court is focused on reviewing claims and objections basin-by-basin and issuing final decrees on the historic water rights claimed within. Although this has been a long and arduous process, reports from Water Court judges at the 2023 Water Law Section meeting indicate that they are progressing steadily through claims and anticipate issuing final basin-wide decrees in the next five or so years.
Certification of District Court Matters to the Water Court
In addition to resolving and issuing these basin-wide decrees, it is common for attorneys in Montana to certify certain questions arising in the District Court for the Water Court’s review and judgment. This has become a useful tool in Montana law insofar as District Courts are already commonly occupied by criminal and other more common civil disputes. Water law is considered a more specialized field, similar to Bankruptcy, and is not typically on the top of a District Court judge’s mind given their many responsibilities. Therefore, when a dispute involves a complex water right issue we often proceed by requesting that the discreet water right question(s) be certified to the Water Court. Upon a successful certification and Order from the District Court judge, the Water Court will assume jurisdiction over these questions and begin its own civil litigation process before holding a hearing on the matter(s). After the Water Court has issued its Final Order, it is common for the matter to be resumed in District Court pursuant to and with the Water Court’s findings in mind or otherwise proceed on an appeal track to the Montana Supreme Court before being sent back to the District Court for determination on the unresolved matters. In this way, the Montana judicial system is engineered to ensure that legal questions surrounding water rights are given proper review under specialized and experienced judges, resulting not only in more just results but also more efficient process for all parties. We always recommend that you speak with an experienced water law attorney if you think you have a potential dispute involving a water right, especially if the right arises from a pre-1973 water right.
The initial designs for the Water Court assumed that at some point in the future, the Water Court would likely become moot. The idea at the time was that once all basins had been issued a final decree and all of the pre-1973 water rights had been settled, the Water Court would no longer have any use. Perhaps idealistically, lawmakers at that time structured the law so that any water rights claimed after 1973 would be applied to and issued by the Department of Natural Resources and Conservation. In hindsight, lawmakers not only underestimated the complexity and contentiousness of simply resolving the historical rights, but also may have miscalculated the legal complications that would arise while simultaneously issuing new water rights to those using and claiming water after 1973.
Therefore, it was hardly a surprise for those involved when it became clear that streamlining Montana’s water adjudication and permitting process would not be quite so easy. In fact, it has turned into one of the most complex fields of law arising from the American West.
What’s Next?
Today, lawmakers continue to debate the future of Montana Water law, and particularly the Montana Water Court. For those of us who have come to depend on the specialization and institutional knowledge provided by judges such as Chief Water Judge McElyea and Associate Water Judge Brown, and all those who work within the Montana Water Court, the value provided to Montana water right holders is undeniable. Based on the trajectory and growth of Montana in the last few years the need to maintain this legal resource only seems more crucial to the future of Montana. At Ferguson and Coppes, we at least can attest that there is no shortage of legal controversy arising out of Montana’s water right system.
So, back to our first question: what is Montana water law? At Ferguson & Coppes, we see Montana water law as a unique and exciting field of legal practice that has an important role to play in Montana’s future. Even so, we understand that navigating water rights and the legal system can be daunting and we make it our goal to help you through that process. If you think you may have a claim to an existing water right or are interested in filing for a new water right, contact our office for a free consultation with one of our experienced water law attorneys.
See below for more resources:
Check out our blog post, States and Streambeds (coming soon), for more information on the intersection of private use and state ownership of water.
To learn more about how to file for a new water right in Montana, keep an eye out for our blog series on filing for a new water right, Part I, Part II, & Part III.
