TYPES OF MONTANA WATER RIGHTS
The State of Montana owns the water within the state for the use of its people. Citizens do not own the water, but can possess a legal right to use the water within state guidelines. The water must be put to beneficial use. By law, a recorded water right is required for the majority of water uses to be valid, legal, and defensible against other water users. A water right protects the use of that water from other uses later in time, from unrecorded, illegal uses, or from others who exceed their rights.
Montana water law is based on the prior appropriation doctrine: “first in time is first in right.” Priority is determined by date of first use—the earlier the priority date, the more senior the right. Senior surface water right holders can “call” junior rights to discontinue use if water is insufficient for all senior rights. If you have a senior right, you are more likely to receive your water during the times you use it.
STATEMENTS OF CLAIM FOR EXISTING WATER RIGHTS are generally the most senior rights. These “historic” or “pre-73” water rights have priority dates beginning at the date of the earliest settlement of Montana and ending at June 30, 1973. The Montana Water Use Act required the filing of these rights by April 30, 1982. Late filed claims were allowed until July 1, 1996, but the late claims cannot call any timely filed valid claims, any federal or Indian reserved water rights or a permit or reservation issued prior to July 1, 1993. As such, July 1, 1993 is the enforceable priority date for late filed claims. After July 1, 1996, no claims could be filed.
Claims for existing rights for livestock and individual domestic use based upon instream flow or ground water sources were exempt from the claim filing requirements. EXEMPT NOTICES could be voluntarily filed for such claims. The Montana Legislature has recently reopened the claim filing period for the exempt uses. Exempt Notices are active water rights, but the owner will not be able to enforce the priority date against other water users if a Statement of Claim is not filed prior to the issuance of the Final Decree in the applicable basin.
The state established a system for obtaining water rights for new or additional water developments. All permits issued prior to the issuance of a final decree of existing water rights are provisional and the amount of the appropriation may be reduced, modified or revoked when the final decree is issued if it is determined that such action is necessary to protect historic water rights. No final decrees have been issued yet. Therefore, all post-73 water use permits are PROVISIONAL PERMITS.
A STOCK WATER PERMIT is a type of provisional permit. A stock water permit can only be filed for the use of water from a stock water pit or reservoir that has a the storage capacity less than 15 acre-feet with an annual appropriation of less than 30 acre-feet per year, located on a nonperennial or ephemeral stream, and constructed on and accessible to a parcel of land 40 acres or larger and owned or under the control of the applicant.
CERTIFICATE OF GROUND WATER DEVELOPMENT represents the right to use water located beneath the ground surface. The water is typically diverted from the ground via a well, developed spring or a ground water pit. The total water used from the development cannot exceed 35 gpm or 10 acre-feet per year.
A WATER RESERVATION is a right to water reserved for an existing or future beneficial use. Water can only be reserved by the state, any political subdivision or agency of the state, or the United States or any agency of the United States. The water must be put to beneficial use within 20 years. The period can be extended for an additional 20 years.
CONSERVATION DISTRICT RECORD represents all or a portion of Conservation District’s water reservation used by a person for agricultural purposes. The person must apply to the conservation district for the use.
RESERVED CLAIM is a water right filed in whole or in part within the boundaries of an Indian reservation. The water right is based in the language in the compact between the State and the Indian tribe. The claimed water right does not have to be perfected. The water is reserved for future use by the claimant.
IRRIGATION DISTRICT water rights were filed by federal projects, state projects, public service corporations, mutual irrigation companies, water companies, water user associations, municipal water companies, drainage districts, conservation districts and corporations and partnerships, trusts (with several rights) and individuals (with several rights). The intent of the form was that lengthy place of use descriptions would be listed only once for several rights. The form was not limited to irrigation districts but could be used by any claimant for any claimed purpose. Any parcel lying within the place of use of an irrigation district may have access to the use of water through a contract, ownership of shares or by paying a fee.
POWDER RIVER DECLARATION is a type of historic water right claim resulting from Montana’s first attempt to determine existing rights. In the Powder River Basin, DNRC employees went out into the field to determine and record historic water use. After six years the completion of the basin was not in sight, so the Legislature enacted the claim filing procedure. Powder River Declarations represent the water rights derived from the six-year investigation.
TEMPORARY PERMIT means a permit to appropriate water granted pursuant to Title 85, chapter 2, part 3, MCA, for a specific period of time and with an automatic expiration date. The abstract includes the expiration date. Expired permits remain in the system.