The State of Montana owns the waters within the state on behalf of its citizens. Citizens do not own the water, but can possess a legal right to use the water within state guidelines. 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.
Types of Water Rights
A decreed, filed, or use right originating prior to July 1, 1973, and filed on a Statement of Claim between 1979 and 1982 or between 2015 and 2019 to document the water right. A right to the use of water that would be protected under the law as it existed prior to July 1st, 1973.
- Use rights are water rights that were acquired by merely appropriating and beneficially using the water. No recording, approval from a government agency, or other written record of the right was required. The priority date of use rights is generally the date the water was first put to beneficial use.
- Filed rights are water rights that were filed with local county Clerk and Recorder's offices under an optional system that was first statutorily recognized in 1885 and that continued until July 1, 1973, the effective date of the Montana Water Use Act.
- Filed rights for groundwater use were based on notices of groundwater appropriation filed at the county courthouses in accordance with the 1962-1973 groundwater code (Repository of historic documents available here.)
What you should know if you have a Statement of Claim.
The process of adjudicating Statements of Claim is still underway across the state. The adjudication process involves the examination of claims, issuance of water right decrees by the Montana Water Court and resolution of water right issues. DNRC assists the Montana Water Court in a technical capacity to examine water right claims for consistency and clarity, to prepare summary reports of water rights by basin, and to provide technical assistance during issue resolution.
A water use originating on or after July 1, 1973. This can take the form of a:
- Permit: for groundwater use over 35 gpm or 10 acre-feet per year OR any surface water appropriation.
- Groundwater Certificate: developed groundwater use under 35 gpm, not to exceed 10 acre-feet per year
- Note: Some areas of the state are closed to new appropriations. Visit with your DNRC Regional Office for details. And see Apply for Water Right.
Certain pre-July 1st, 1973, livestock and domestic uses from in-stream or groundwater sources were exempt from filing a Statement of Claim. As of the passage of House Bill 110 on May 7, 2017, if these exempt claims were not filed by the June 30, 2019, deadline and remain only as Exempt Notices, these exempt claims no longer have a prosecutable historic priority date.
These historic water rights can date back to time-immemorial and were established when a tribe or federal agency was granted a reservation of land within the state. These water rights were solidified by negotiated Compacts between the State of Montana and either Federal Agencies or Indian Tribes. The State of Montana has 18 negotiated and federally-approved Compacts that settle reserved water rights within the state; these Compacts cover Indian Reservations, National Wildlife Refuges, National Wild & Scenic Rivers, National Parks, BLM, Forest Service and USDA lands.
For additional information on all water right Compacts in the state
A water reservation authorized by the State of Montana is a water right for future beneficial use, to serve a public need and public interest. All water reservations currently authorized by the state were authorized between 1978 and 1994 for municipalities, conservation districts, as well as a few state and federal agencies, within the Upper and Lower Missouri River and Yellowstone River Basins.
Elements of a Water Right
Water rights have a set of “elements” that define the water right. The elements of a water right are:
- Source – can be a surface water source (stream, river, lake, undeveloped spring) or groundwater source (well, developed spring)
- Purpose – the beneficial use of the water. Includes, but is not limited to: domestic, commercial, industrial, irrigation, livestock, mining, municipal, power generation, instream fishery, geothermal heating and cooling, and mitigation.
- Point of Diversion – where water is first diverted from the source. For instream purposes, this may be a reach rather than a point.
- Place of Use – place where water is put to beneficial use. This location information is described by legal land description (township, range, and section).
- Period of Use – period of the year during which the water is allowed to be used.
- Period of Diversion – period of the year during which water is allowed to be diverted from the source; this may differ from the period of use if water is stored
- Flow rate – The maximum flow rate at which water can be diverted from the source. Usually described in gallons per minute (gpm) or cubic feet per second (cfs).
- Volume – The maximum volume that can be diverted or used during the Period of Use.
- Priority Date – For Statements of Claim, this is the date the water was first put to beneficial use. For New Appropriations, this is the date the application for water use was received by DNRC.
To learn more about Montana water rights and the history of water rights administration in the state, read: https://leg.mt.gov/content/Publications/Environmental/2018-water-rights-handbook-final.pdf
What is a priority date and why is it important?
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.
Do I have a water right?
Helpful information to have when researching water rights:
- the geocode(s) for your property. A geocode is a 17-digit number, with the first 2 digits representing the code of your county. A geocode can be found on property tax records, but that printout may or may not include your county code. The geocode for a property can also be found through a search on Montana Cadastral.
- DNRC uses geocodes to track ownership of water rights. If your geocode has been identified on an active water right, that water right will come up as a result when searching by geocode in the Water Right Query System.
Other information that may be helpful to your search: your legal land description (Township, Range, Section, and County), subdivision/lot, or previous owner’s name.
Information to be aware of when determining if you have a water right:
You may have a well log from a well that was drilled on your property and that well log was submitted to the Montana Bureau of Mines and Geology (https://mbmggwic.mtech.edu/). However, a well log does not create a water right. In many cases, the property owner still needs to submit a Notice of Completion of Groundwater in order to establish a water right for that well.
If you live within a city, belong to a water user’s association, are serviced by a ditch company or irrigation district, you may not have a water right for your water use. However, the city, association, company or district owns water rights from which it supplies your water. You may own shares in such an association, company, or district.
What if I am being adversely affected or can’t get water to fulfill my water right?
Foremost, the DNRC encourages talk among water users to attempt to resolve the issue. This can include making a call on junior water rights. For water right dispute options, visit with any DNRC Regional Office and consider additional water right dispute options if necessary.