the abcs of h20
Understanding the Basics of Water Law in Montana
By Susan Duncan, 4-22-08
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In Montana, and throughout the Intermountain West, water law affects every part of our lives and communities.
Priority dates dictate the volume and distribution of water from wells and streams. Landowners must put the water to beneficial use without waste to retain their right to use the State’s water. News articles about water issues illustrate that many people are confused about Montana’s water laws, even landowners and local officials.
Here are the key points to understand the basics of Montana water law.
Water rights are property rights. They can be leased or sold. The Constitutions of the United States and Montana protect water right holders from being deprived of those rights without due process of law. All water in Montana is owned by the State, subject to appropriation for beneficial uses by water right claimants. Water right holders do not own the water. They only own the right to USE the water. Think of a water right as a license to use the State’s water for beneficial purposes without waste.
The nature of a water right is very well defined. Every water right has:
(1) A specific source – a stream or spring (for surface water) or groundwater (for a well).
(2) A specific point of diversion (head gate or wellhead) – that point where the water is diverted from its source.
(3) A specific place of use –defined in acres, township, range, and section.
(4) A beneficial use – including, but not exclusively, irrigation, stock water, municipal, industrial, domestic, lawn and garden, and augmentation.
(5) A specific quantity – in cubic feet per second.
(6) A season of use. Domestic and stock water uses are typically year round. Irrigation is usually April to October.
(7) And most important of all, a priority date – the date the water was first put to beneficial use.
This information is kept in a database administered by the Montana Department of Natural Resources and Conservation – Water Rights Bureau (DNRC) (http://dnrc.mt.gov/wrd/default.asp).
Water laws vary from state to state. Water law in the humid eastern states from Minnesota south to Louisiana to the East Coast follow the Doctrine of Riparian Rights that evolved from English common law. In contrast, the water law of the Intermountain West (Montana, Idaho, Wyoming, Colorado, Utah, Nevada, Arizona, New Mexico) follow the Doctrine of Prior Appropriation – First in Time, First in Right. This doctrine developed out of the year-round need for water for mining (and later agriculture) in a climate where water is seasonal.
Montana’s water law is based in the Doctrine of Prior Appropriation – First in Time, First in Right. Water rights are ranked according to the date on which the water was first put to beneficial use. In the Gallatin Valley, the earliest rights date from the first white settlements in 1864-1865.
Priority date is critical, because water users with the earliest priority date (senior water right holders) can divert the FULL amount of their claim before claimants with later (junior water right holders) can divert ANY water. If the water source cannot supply enough water to meet all claims (as when the river flows drop after spring flood), junior water users must cease diverting water in descending order of priority date to allow those with senior water rights their full claim amount. The law does NOT mandate that shortages be shared among water users.
When stream flows drop as summer progresses, senior water right users can place a call on any junior water rights on a tributary source, including groundwater (wells). A petition by senior water right holders to the District Court brings on the Water Commissioner, who monitors river flow and adjusts head gates to reduce flow to junior water users to accommodate senior water users. The cut off priority dates are dependent on river flows and are announced in the newspaper.
Each irrigation canal head gate on the West Gallatin has a measuring device behind it (typically a Parshall flume) to measure water flow into the canal. Aqua-Rods in the West Gallatin at Axtell Bridge, Four Corners, Amsterdam Road, and Central Park are used to gather data for measuring river flow. Even though irrigators have rights to the entire flow of the West Gallatin River, donations (by senior water right holders) keep a minimum flow in the river throughout the dry summer months. The Aqua-Rods help the Water Commissioner gauge that flow. The donation of water to the river affects both senior and junior users, as well as fish and wildlife habitat. It’s a delicate dance orchestrated by the Water Commissioner and the 18th District Court of Judge Holly Brown. Everyone realizes that no one wins if the river goes dry.
Whenever senior water users are not using water, the water is available to the next user in order of priority date. The total amount of water allotted by priority date is measured at the head gate on the river. Within a ditch or canal system, the water can be shared by consent and priority date. We get our water from the Allsop Branch of the Upper Creamery Ditch. Our neighbors on each side have 1865 water rights. We have 1872 and 1888 water rights. When they shut down for haying, we can get our full complement of water for irrigating when water is short.
As seniors reduce water use and fall rains increase river flow, junior water right holders begin to receive water depending on priority date. Water is distributed by volume based on priority date only. No preference is given for one use over another. Municipal or domestic uses are no more valuable than other uses.
Priority dates on wells are based on the when the “Notice of Completion of Ground Water Development” is filed with DNRC. The well (or developed spring or groundwater pit) has to be put into use before the notice can be filed. If it is not filed, the well has no documentation of water right. It does not have any of the 7 characteristics (above) that give it status. Since priority date (day, month, year) is so critical, it is in the best interest of all concerned to file as soon as possible. The priority date is based on when it was filed, NOT on when it was drilled. The Town of Manhattan, Montana recently found that two wells drilled in 2001 (but not filed) would not receive a 2001 priority date.
Beneficial use is the measure, limit, and extent of a water right. Most senior water right claims are based on flood irrigation. Flood irrigation uses more water than sprinkler irrigation, but more is returned to groundwater and the river. The water needed to grow the designated crop (like potatoes, barley, or alfalfa hay) without waste is the extent of the water right regardless of how it is applied. Our neighbor Brad found that out when he bought up other water rights on his ditch. The DNRC would only give him authorization to change the use of the amount that had been needed to grow the crop historically produced with that water – less than half of the amount he purchased. The rest of what he bought could potentially be moved to other property, sold, or converted to in-stream flow. If this water is not put to beneficial use, it may eventually be considered abandoned.
A water right is under threat of abandonment if it meets three criteria: (1) the claimant does not use the water for an extended period of time (10 or more years), (2) water is available AND (3) there is no intent to use the water. This does not apply to federal or tribal water rights and some state based reserved water rights.
If a landowner sells his land, the water rights go with the land and must be transferred to the new owner through DNRC. However, a landowner is allowed to sell his land and keep the water rights. But, he has to specifically write in the deed that he is not selling the water rights with the land. In doing so he puts his water rights at risk for abandonment. Why? To maintain a water right, he has to use the water. If he has no place to put the water to beneficial use, how can he maintain the right? He would have to use the water on other land that he owns (within the place of use), lease it to a neighbor, lease it for in-stream flows, or sell it to keep his water right active.
If the water is transferred to property outside the place of use listed on the water right (his own land, or that of the buyer), the change of place of use must be authorized by DNRC. Water right holders can sell the water, but it cannot be moved to a new place of use until the change authorization is granted by DNRC. And, as above in Brad’s case, the change may not authorize use of the full amount claimed or purchased. It’s not a simple transfer of 22 inches here, to 22 inches there.
Abandonment has not had high priority for enforcement. That may change as the Montana Water Court establishes final decrees for all water rights in the State. Colleen Coyle, Water Master for the Montana Water Court, asserts, “ The 18th District Court is already administering water based on temporary preliminary decrees of the Water Court on the West Gallatin River through Water Commissioner George Alberda and on Hyalite and Cottonwood Creeks through Water Commissioner Harold Lindvig.” However, until a final decree is issued, all water rights are “claims”.
Waste of water is prohibited by law. What constitutes waste of water (in legal terms) is not clear. Is flood irrigation wasteful if it helps recharge groundwater? Are large bluegrass lawns a waste of water? How enforceable is this law?
An outgrowth of the revised Montana Constitution, the Water Use Act of July 1, 1973 set a key date that forms the basis for contemporary Montana Water Law. All water rights dated before July 1, 1973 (with a couple of exceptions) are subject to adjudication by the Montana Water Court. In 1982 all holders of pre-1973 rights had to file their claims with DNRC. Those claims could be based on one of three sources: (1) historical use (a use right with no formal documentation), (2) a notice of appropriation on file in the courthouse (called “a filed right on the water right abstracts” or an appropriated right), or (3) a court decree like Bell vs. Armstrong in 1909.
All new water rights filed after July 1, 1973 require a permit from DNRC – except individual wells pumping no more than 35 gallons a minute or 10 acre feet a year – known as “exempt wells”(or a stock pond of less than 30 acre feet a year serving 40 acres or more). An exempt well requires only a filing of a “Notice of Completion of Ground Water Development” and $125 and the water right is approved.
In contrast, the permitting process for any surface water or wells pumping MORE than 35 gallons a minute or 10 acre feet a year (as for a subdivision water supply) is a DNRC administrative process that involves lengthy analysis of the effects on other water users, opportunities for objections, possible hearings, and finally, a decision. Depending on the complexity of the situation, the process can take two years or more.
All changes of use require authorization by DNRC. A change in use is any change in the point of diversion, place of use, beneficial use, or place of storage. In recent news, the Town of Manhattan, Montana found it could not extend water (from city owned wells) to new annexed subdivisions without a change in the place of use to include the new territory. If they are found in violation, they can face fines of $1000 a day.
Water law seems arcane and irrelevant to everyday life. But in reality, it’s as close to everyone as the nearest faucet.
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This information is provided for general use only. It was prepared using a presentation by Holly Franz of the law offices of Driscoll and Franz at the “Water Supply and Growth in the Clark Fork River Basin” Conference on March 10, 2008 with input by the legal committee and legal counsel of the Association of Gallatin Agricultural Irrigators (AGAI), Scott Compton of the Bozeman Office of DNRC Water Rights Bureau, Alan English of the Gallatin Local Water Quality District, and Colleen Coyle, Water Master for the Montana Water Court. It also reflects my own 29 years of experience as a holder of senior water rights on the West Gallatin River through Upper Creamery Ditch, which is a member of AGAI. I am also on the Board of Directors of AGAI. For advice concerning your specific situation, contact legal counsel or the local office of DNRC, Water Rights Bureau.
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Comments
This raises an important issue of the public trust. Is the state acting within its role to uphold the public trust by allowing irrigators to dry up rivers and streams for irrigation to the detriment of fish, wildlife, and other members of the public.
At some point I predict someone will sue the state to force it to live up to its public trust obligations. I've been surprised that no fish advocacy group has hit upon this yet, but I think the right legal circumstances will come, and we'll finally get free of the privitization of public resources for the private benefit of the few at the expense of the many.
So black and white. Are agricultural uses of water automatically a non-public form of use? As if the ag producers and ranchers are fat cats gettign rich off of our public resources, such as air and water. Seems to me they are barely keepign their head above water, ahem, while producing goods that we all agree we need to survive. Unless of course you shop at the good food store where all the organic veggies are endowed upon us by the eco-green creator herself without use of any public resources at all.
I am fine with public subsidies, as long as they are subsidizing what I want them to subsidize : )
For the most part, there is not a shortage of water for production and wildlife. There is a shortage of incentives and institutions that reward conservation.
It is not unlike grazing on public lands. A grazing allotment is not a "right" as ranchers so often suggest. It's a privilege. The public owns the grass. All a grazing right does is determine whether any particular rancher gets to use that grass. It is the same for water. If the public decides it would rather have the grass go to elk or even wildflre fuels==that is the public's right. And no compensation is necessary.
And I predict as the West becomes more urban and the dominance of western legislatures by Ag interests declines, we'll see more effort to reclaim our water from the private profit abuse of irrigators and others who are using a public resource to line their pockets at the expense of everyone else.
I agree with one commenter above. There's plenty of water--it's just being wasted now growing hay.
Your post helps to make my point to some degree.
You are still creating a false dichotomy between private and public. Where does one privates right or priveledge begin and another end, or a public one for that matter? Does the carbon that is stored in the hay that the farmer grows yours, mine, or the buyer of the wheat? It came form the air and soil, and now is turned into a commodity for sale. If you look at the challenges in developing markets for carbon, water, etc. you see that it aint that simple, in fact its near impossible.
To not acknowledge the slippery slope that a public v. private false choice creates is unfortunate.
The same argument you make can be turned back on you if the "public" (made up of a bunch of "private" individuals) wants more hay. Its not about what resource belongs to whom, its about figuring out a system that can accurately and fairly allocate those resources to the activities that the "public" wants them to go to.
It is interestign to see the tide turning on interest groups that portend to so often represent the public, when in reality they may actually be representing a narrow set of interests. And be careful with broad brushing all "ag interests" as lining their pockets with public dollars. What about the sustainable ag interests and grass fed beef farmers who will provide these goods and services into the future in a sustainable way?
I think it prudent that we pull our head out of the false choice world for a minute and think about how to help folks understand there is an alternative road that we can go down that doesnt pit one "private" interest against another "public" one in such a black and white way.
The black and white you talk I don't see. I see AG as getting nearly all the benefits in public discourse, and few are willing to consider the real costs of all Ag production. The public benefits that do occasionally exist could be achieved for far less cost and with far less impacts through other means. Obviously we need to produce food, but do we need to produce hay to feed livestock in arid regions? Is that the best way to produce food? I don't start with the assumption that we need to produce livestock or even cotton, rice by irrigation in desert regions.
So for instance, when you talk about carbon bound up in hay, I say about the carbon bound up in the riparian vegetation that is loss when streams are dewatered. If we keep water in the stream, we get carbon bound up and we get a lot more public benefits as well such as wildlife, water filitration, and so on. So when you start to list the "benefits" from Ag, all too often the negatives are ignored, as well as the alternatives that might produce the same "benefits" but in greater quanity and quality.
Thanks!!