If you are currently diverting, withdrawing, or impounding the water and are putting the water to beneficial use, you may already have a valid water right. You may have acquired a valid water right along with your land if:
water was used on your property before you acquired it,
the person you acquired the property from either filed a claim with the Montana Water Court claiming pre- July 1, 1973 use or,
the person you acquired the property from received a permit from the Montana Department of Natural Resources and Conservation, and
the person you acquired the property from did not "reserve" the water right in the deed conveying the property to you
and the water right has not been abandoned from non-use, or the permit has not been revoked because of non-perfection or noncompliance with permit conditions.
Montana DNRC maintains records of water right permits, claims, and decrees. You can look up your water rights here (hyperlink to query system)
Instances When You May Need a New Water Right
You may need a new water right for an existing use of water if a water right was not properly established for the existing use (for example, if a use of surface water started after July 1, 1973 without applying to DNRC for a permit.) A new water right is also needed for a new use of water. If you wish to establish a new water right, then there are certain procedures you will need to follow.
First, an Application for a Permit must be filed with Montana DNRC. The information that must be included in the application is described by statute and in rules and regulations of DNRC.
Montana DNRC must then review the application, and if the application meets the requirements of the statute and the rules and regulations, the application is deemed Correct and Complete. After reviewing the factual and legal basis of the application, the Department makes an initial determination and publishes notice of this decision. If no valid objections are filed the permit is issued. The permit describes the appropriation to be made and the deadline within which the appropriation must be completed.
Prior to the end of the period in which the appropriation must be completed, DNRC sends the permit holder a notice that the deadline is approaching and that the permit holder must submit proof of perfection. When a permit is perfected it means that the appropriation has been put to beneficial use in as described in the permit.
What are the types of water rights and how do I establish one?
Types of Water Rights
There are several types of water rights in Montana that were acquired in accordance with laws in effect at the time. Some of the more common rights are explained here and elsewhere in this publication. Water Rights Prior to 1973
Most water rights prior to July 1, 1973, were called use rights. These 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 Water Use Act.
What is a claim?
A claim is a “claim” of water right describing how water was used prior to July 1, 1973. In Montana this is referred to as a “statement of claim” which indicates that it is subject to the adjudication process
Each statement of claim had to include:
the name and address of the claimant;
the name of the WATERCOURSE or water source from which a right was claimed;
the quantities and times of claimed water use;
a legal description of the point of DIVERSION and place of claimed water use;
the purpose of use and the number of acres irrigated, if applicable;
an approximate starting date of beneficial use;
a sworn statement that the claim is true and correct; and
supporting evidence, such as maps, plats, aerial photos, or decrees (section 85-2-224, MCA).
Before the Water Court evaluates a basin, DNRC staff must examine each claim to determine if it is complete, accurate, and reasonable. If an examination uncovers excessive claims or other discrepancies, the DNRC contacts the claimant to resolve any errors. If the DNRC is not able to come to an agreement with a claimant on a discrepancy that the DNRC has found with the claim, an issue remark is placed on the claim. All issue remarks must be finally resolved before a final decree can be issued. After examining all claims in a basin, the DNRC issues a Summary Report to the Water Judge who uses the information to prepare the basin decree.
Current Status of Your Claim
Other Kinds of Water “Rights” Some persons have a right to receive water that is not an "appropriation". For example, some persons have the right to receive water that is represented by shares in a ditch company. In such cases, the ditch company has the appropriation, and the water users have a right to receive water from the ditch company.
New Uses of Water
The Montana Water Use Act of 1973 established a permit system for new uses of water. Any person planning a new or expanded development for a beneficial use of water from surface water or ground water after June 30, 1973, must obtain a permit to appropriate water or file a Notice of Completion of Ground Water Development to get a Certificate of Water Right. The permit system is administered by the DNRC.Beneficial uses of water include domestic, stock, irrigation, lawn and garden, mining, municipal, industrial, commercial, agricultural spraying, fisheries, wildlife, and recreation.
There are basins and subbasins in Montana that have been closed to new appropriations because they have been deemed to be highly appropriated. There are some exceptions to these closures. Please see the section on closure of highly appropriated basins on page 46 for more information.
A person must apply for and receive a permit to appropriate water before beginning to construct diversion works or diverting water from a surface water source. Those seeking a permit must plan ahead—the application process takes time to complete. The applicant for a permit must provide the following evidence:
the physical availability of water at the point of diversion during the requested period of diversion;
the legal demands on the source;
a comparison of the physical water available and the existing legal demands;
the effects of the proposed use on existing water rights;
an analysis of the effects of existing water rights on the water supply within the source;
the design and operation of the proposed system;
a description of the proposed beneficial use;
an explanation of how the requested flow rate and volume was determined and that the amounts are the amounts necessary for the use; and
that the applicant has possessory interest in the place of use.
The exception to this law is for small livestock pits or reservoirs located on nonperennial flowing streams. If the pit or reservoir will hold less than 15 acre-feet of water with an annual appropriation of less than 30 acre-feet and will be located on a parcel of land 40 acres or larger, construction may begin immediately. Within 60 days of completion, an Application for a Provisional Permit for Completed Stockwater Pit or Reservoir, form 605, must be submitted to the DNRC. A provisional permit, subject to prior water rights, will then be issued. If the reservoir adversely affects prior water rights, the DNRC can revoke the permit or require an applicant to modify the reservoir.
Anyone who anticipates using more than 35 gallons a minute or 10 acre-feet a year of groundwater is required to obtain a permit to appropriate water before any development begins or water is used. In a controlled ground water area, a permit may be required to appropriate any amount of water, depending on the terms of the groundwater area. This publication contains a list of the controlled groundwater areas.
A person is not required to apply for a permit to develop a well or a groundwater spring with an anticipated use of 35 gallons a minute or less, not to exceed 10 acre-feet a year (section 85-2-306, MCA). The first step is to drill the well or develop the spring. A Well Log Report, form 603, is completed by the driller and sent to the Bureau of Mines and Geology within 60 days. A copy is also given to the well owner.
Within 60 days after the development is put to use, the owner must submit a Notice of Completion of Groundwater Development, form 602, along with a filing fee, to the DNRC. The priority date of the water right is the date that the DNRC receives the completed form 602. The DNRC will review the form to ensure that it is correct and complete. A person must have possessory interest in the property where the water right is put to beneficial use or written notification 30 days prior to the intent to appropriate groundwater. Also, a person must have exclusive property rights in the groundwater development works or written consent from the person with the property rights. A Certificate of Water Right will then be issued to the owner for the specified use.
The 2011 Legislature extended the exemption to allow development of an appropriation made by a local governmental fire agency for emergency fire protection and for nonconsumptive geothermal heating or cooling exchange applications.
Riparian Rights Not Recognized in Montana
You may also have heard of something called “riparian rights”. In some states, an owner of land has the right to make a “reasonable use” of ground water underneath her land, or water naturally flowing on, through, or along the borders of her land. A riparian right to make use of the water is not limited by priority date and it cannot be lost by non-use. Montana law does not recognize a “riparian right” to divert and use water. JUST BECAUSE A DITCH OR A CREEK RUNS THROUGH YOUR PROPERTY DOES NOT MEAN THAT YOU CAN USE THE WATER!
Can a water right be changed?
The place of diversion, place of use, purpose of use, or the place of storage of a water right may be changed so long as the change meets certain conditions as described below. After July 1, 1973, any person wishing to make a change in use of the water right must file an application of transfer with DNRC for approval of the change. DNRC shall approve the proposed change if it:
Will not hurt other water rights
The means of diversion, construction, and operation of the appropriation works are adequate
The use is a beneficial use
The applicant has permission to use the place of use
DNRC may approve the change in whole, in part, or approve it subject to conditions where necessary to meet the four requirements. If the proposed change does not meet those four requirements, then the proposed change is not approved and the application for change is denied. A special note: MCA Sections 85-2-407 provide for an abbreviated process for changing a water right temporarily in certain situations. MCA 85-2-408 provides a procedure to temporarily change a water right to a purpose of instream flow., subject to certain limitations.
How do I transfer a water right?
By law a water right automatically transfers with a piece of property when it is sold unless specific provisions are made by the seller at the time of the sale. When filling out the Realty Transfer Certificate (RTC) which is filed with the deed at the county, the seller must disclose his plans for the water right. A revised RTC form will identify the possible scenarios, which include the following:
An outright transfer of the water right to the new owner
A division of the water right among two or more owners (this may occur when a parcel of land is subdivided)
An exemption or reservation of the water right from the sale of the property. This means the water right remains with the seller even though the property changes hands.
A water right can also be “severed” from a parcel of land. In this scenario, the water right is removed from the property and the owner sells the water right but keeps the property. These transactions require the owner to file a paper ownership update form with DNRC. McLaughlin said this scenario accounts for fewer than 5% of all water transactions. The completed RTC form is then filed by the closing party or closing company at the county clerk and recorders office, along with the deed. If the water right was divided or reserved, the RTC form and deed must be accompanied by a certification that the water right ownership update form and fee is in escrow or will be filed with the DNRC within 5 days of filing the deed. The DNRC will provide the form to the sellers or closing companies.
The closing company will collect the DNRC update filing fee whether the water right transfers, is divided, or reserved. If the property has been divided, the county clerk will then assign the property a new geo-code, which will go into the Department of Revenue’s database. Each month, DOR will send DNRC the latest batch of new owners with geocodes, enabling DNRC to update its records.
How does the application process for a water right work?
Add as brief a description as you can. Maybe even just narrate the flow chart in a generic fashion.
Click here for a flow chart that explains the process
Click here to watch a video that gives an overview of the process
Click here to contact the DNRC with your questions
Water Right Search
Following are some tools and resources to aid you in your search for water rights information