Whiskey’s for drinking; water’s for fighting. Mark Twain

Who Owns Montana Waters? Montana Constitution, Art. IX, Sec. 3(3): “[A]ll surface, underground, flood and atmospheric waters within the boundaries of the state are the property of the state for the use of its people.”

Major Basins

What Is a Water Right? Although water is owned by the state, individuals are granted a right to use water. “All existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed.” Mont. Const., Art. IX, Section 3(1)

Prior Appropriation System Montana has adopted the prior appropriation system, which allocates the right to use water under the maxim: “first in time, first in right.” Mont. Code Ann. § Under this doctrine, a user establishes a water right by diverting surface or underground water for a beneficial use, such as irrigation, mining, stockwater, or domestic use. Priority is established by the date of first appropriation. There is no weighing of the importance of competing uses (such as domestic use vs. agricultural use vs. fishery habitat).

Senior vs. Junior Appropriators The first person to acquire a water right is the “senior appropriator;” subsequent users are “junior appropriators.” If a junior appropriator is upstream, a senior appropriator can “call” on the junior appropriator to stop using the water and allow the water to flow downstream as necessary to fill the prior right of the senior appropriator. A senior appropriator may not make changes that would adversely affect the rights of a junior appropriator (such as a change of use that would require more water).

Beneficial Uses Mont. Code Ann. § (enacted in 1973) defines “beneficial use” to include: agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and recreational uses

Diversion In 2002, the Montana Supreme Court overruled an earlier 1998 decision and determined that diversion is not necessary for instream uses: “ the doctrine of prior appropriation does not require a physical diversion of water where no diversion is necessary to put the water to a beneficial use.” E.g., stockwatering, fish, wildlife, recreation Bean Lake III, 311 Mont. 327 (2002)

Abandonment Under the prior appropriation doctrine of water rights, all water rights are predicated upon use. If you fail to use your water right, you may lose it. Mont. Code Ann. § provides a presumption of abandonment if an appropriator ceases to use all or part of her right for 10 successive years, and water was available.

Types of Pre-1973 Rights under Montana law Use rights (most common): predicated upon use (first in time, first in right) no written or filing requirements Filed rights: From 1885 to 1973, rights could be acquired by filing a notice of appropriation with the county clerk & recorder Decreed rights: “use rights” or “filed rights” adjudicated by a district court A mandatory groundwater rights system was in place from 1962 to Written and filing requirements Murphy Rights: In 1969, the legislature authorized the Mt Fish & Game Commission to appropriate instream flows on 12 streams for habitat preservation

Federal Reserved Water Rights The doctrine of federal reserved water rights traces its origins to the seminal decision of Winters v. United States, 207 U.S. 564 (1908), which involved the Fort Belknap Reservation in Montana. Ruling: when the United States sets aside an Indian reservation, it impliedly reserves sufficient water to fulfill the purposes of the reservation, with the priority date established as of the date of the reservation. The doctrine applies even if there is no specific language reserving water rights. Unlike the prior appropriation doctrine, federal reserved water rights are not dependent upon a prior use. Note: Tribes also have water rights acquired at common law through use, such as the use of waters for fishing.

Application to Federal Lands In Arizona v. California, 373 U.S. 546 (1963), the Court ruled that the reserved rights doctrine is not limited to Indian reservations, but also applies to all federally reserved public lands, such as national forests, national recreation areas, and national wildlife refuges. Questions concerning the existence and quantity of reserved water rights on federal lands are largely dependent upon the reservation’s authorizing legislation and the specific purposes for which the land was reserved. United States v. New Mexico, 438 U.S. 696 (1978).

State Court Jurisdiction Based upon the 1952 McCarran Amendment, the U.S. Supreme Court ruled that state courts have jurisdiction to adjudicate federal reserved water rights. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) In State of Montana ex rel Greely, 219 Mont. 76 (1985), the Salish Kootenai Confederated Tribes challenged the jurisdiction of the Montana Water Court in adjudicating Indian federal reserved water rights, but the Montana Supreme Court upheld the jurisdiction of the Water Court.

In 1979, the Montana legislature created the Reserved Water Rights Compact Commission to negotiate the reserved water rights of the tribes and the federal government. MCA , Pending negotiations, federal reserved water rights were not subject to state adjudication. Negotiations have been concluded with all seven of Montana’s Indian reservations, as well as with the National Park Service, Bureau of Land Management, and U.S. Fish & Wildlife Service.

New Regime in 1973 After the adoption of the 1972 Constitution, the Montana legislature enacted the 1973 Montana Water Use Act. Mont. Code. Ann. §§ et seq. In analyzing any water right, you must first determine whether the water right was acquired prior to July 1, 1973 or after July 1, Changes to pre-July 1, 1973 water rights are also governed by the new regime. Another important distinction is whether the water right is a surface water right or groundwater right.

1973 Montana Water Use Act Mont. Code. Ann. §§ et seq. Pre-1973 claims Post-1973 claims Water rights existing as of July 1, 1973 are recognized. Established a process requiring filing of a statement of claim for most types of pre-existing claims. Exemption: instream/ground- water domestic/livestock uses Established a statewide adjudication process for pre- existing claims. A permit system was established for obtaining water rights after June 30, Exemptions: small wells/stock reservoirs. Also requires permits to change pre-existing uses. Centralized recordkeeping system.

Jurisdiction of Courts The Montana Water Court has exclusive jurisdiction to adjudicate more than 218,000 claims filed regarding pre-July 1, 1973 water rights. Final decrees have been issued in only 5 of 85 basins. Projected completion date of 2028 for final decrees in all basins. District courts no longer adjudicate water rights, but may resolve disputes regarding previously decreed rights. The district court may appoint water commissioners to measure and distribute water to the parties owning decreed water rights on a watercourse, according to their rights as fixed by the decree. MCA

Role of DNRC Pre-July 1, 1973 claims: The Department of Natural Resources provides technical assistance by examining all pre-July 1, 1973 claims. The DNRC has jurisdiction over post-July 1, 1973 changes to pre-July 1, 1973 water rights. Post-July 1, 1973 claims: The DNRC has jurisdiction over applications for post-July 1, 1973 water right permits. The DNRC is responsible for maintaining a centralized record of water rights. Prior to the enactment of the 1973 Montana Water Use Act, there were no centralized records of water rights.

Adjudication of Existing Claims An owner of a water right existing prior to July 1, 1973 was required to file a written claim setting forth the elements of her right by April 30, Mont. Code Ann. § Failure to file resulted in an abandonment of the claim. Exemptions for individual (not municipal) domestic use and stockwater rights from groundwater sources or instream flows (but an owner could voluntarily file such rights). MCA A filed claim is “prima facie” evidence of the right; opponents of the claim have the burden of proving the invalidity of the claim or any of its elements. Elements include: priority date, type of use (such as domestic, irrigation), place of use, period of use (such as May- October), source, diversion point, and volume or flow rate. MCA

Issue Remarks Before the Water Court can adjudicate a basin, the DNRC must examine all claims filed in that basin for completeness, accuracy, and reasonableness. If, in examining the claim, the DNRC finds contradictory evidence regarding any element of the claim, it prepares an “issue remark.” All issue remarks must be resolved before a final decree may be issued.

Preliminary Decree The DNRC issues a “summary report” summarizing all claims and any issue remarks. The Water Court reviews the summary report and then issues a preliminary decree for each basin. In basins involving federal reserved water rights, the Water Court may issue a temporary preliminary decree.

Objections After the issuance of a preliminary decree (or temporary preliminary decree for certain basins containing federal reserved water rights), public notice is given (both by publication and through mailings to persons filing claims within that basin). The notice contains information as to deadlines for objecting to any claims or compacts contained in the decree. Persons entitled to object include the DNRC, any person named in the decree, or any other interested person.

Counter-objections If any person objects to a claim set forth in the preliminary decree, the owner of the claim is notified of the objections. The owner of the claim then has 60 days within which to respond to any objections.

Evidentiary Hearings; Final Decree The Water Court holds evidentiary hearings to address all objections and unresolved issue remarks pertaining to a claim. Related claims and objections may be consolidated. After resolving all objections and unresolved issue remarks, the Water Court issues a final decree. For each water right, the decree identifies the owner, priority date, type of use, place and period of use, source of water, place and means of diversion, and flow rate.

Post July 1, 1973 Claims For water right claims originating after July 1, 1973, the principle of “first in right, first in time” continues to apply, but a permit process applies to most new claims. MCA Claims existing prior to July 1, 1973 will have a priority over post-July 1, 1973 claims. Until all pre-July 1, 1973 claims have been adjudicated in a particular basin, certificate of water rights for post-July 1, 1973 claims will not be issued until a Final Decree has been issued for the basin.

Permit System In order to obtain a right to appropriate water from surface waters or groundwaters after July 1, 1973, the appropriator must file an application for a water right with the DNRC before diverting water. MCA Form 600: Application for Beneficial Water Use Permit An important exemption from the requirement of obtaining a permit is available for appropriations of groundwater with a flow of 35 gallons per minute or less and a volume of 10 acre feet per year or less. Most domestic wells fall within this exception.

Over-appropriated Basins Several Montana basins are “over-appropriated;” claims filed exceed the available water. The legislature and Department of Natural Resources and Conservation have authority to close basins to new appropriations of water. MCA Basins can also be closed under compacts.

Controlled Groundwater Areas The DNRC has the authority to close groundwater areas to new wells. MCA Reasons include potential migration of contaminated substances, groundwater withdrawals are greater than recharges, and reductions in groundwater pressure. In a controlled groundwater area, anyone drilling a well must first apply for and receive a permit (including wells with flows of 35 gpm or less).

Permit Criteria: New Surface Water Applications (Mont. Code. Ann ) the physical availability of water at the point of diversion; the legal availability of water; any adverse effects of the proposed use on existing water rights; 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. Note: additional requirements for large uses (over 5.5 cfs and 400 acre feet) MCA (3)

Groundwater permits in closed basins The legislature has provided for several exceptions to the general ban on processing or granting applications for new water rights in closed basins. Exempt groundwater or spring wells (35 gpm or less) can be drilled in all areas (including closed basins) without applying for a permit. other than a “closed groundwater area.”

MBMG – Ground-Water Assessment Program Florence Area

4375 wells MBMG – Ground-Water Assessment Program Florence Area

Larger wells Permits for wells or springs greater than 35 gpm/10 acre feet may be granted in all basins (including closed basins) if certain requirements are met. A permit for a groundwater well must be accompanied by a hydrogeologic assessment. This assessment must “predict” whether or not the proposed appropriation right will result in a net depletion of surface water. If no “net depletion” is predicted, the permit process continues and the permit will be issued if all other statutory criteria are met. (See MCA ).

MCA , -362 If the hydrogeologic assessment predicts a net depletion as a result of the new well, the applicant must analyze whether the net depletion results in an adverse effect on a prior appropriator. If there will be an adverse effect, the applicant must provide: a mitigation plan or an aquifer recharge plan.

MCA If the applicant satisfies the other statutory criteria, the Department must issue the permit. If there is an objection, a hearing will be held. If the applicant proves by a preponderance of the evidence that net depletion, if any, will not adversely affect a prior appropriator based on the applicant's mitigation plan or aquifer recharge plan, the department must issue the permit.

Riparian ownership Riparian owners hold title to the low-water mark of a navigable river or lake. MCA The state owns title to the lands lying under navigable rivers and lakes. Riparian owners on a non- navigable river or lake own title to the streambed to the middle of the stream or lake. MCA

Montana Coalition for Stream Access v. Curran (Mont. 1984) “under the public trust doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes.”

Montana Recreational Use of Streams Act, MCA §§ et seq. Surface waters means “a natural water body, its bed, and its banks up to the ordinary high-water mark.” Limited right of portage above high water mark to portage around barriers in “the least intrusive manner possible.” No right of public to enter onto or cross private property in order to use surface waters for recreational purposes (4)

Resources Montana Department of Natural Resources, Water Rights in Montana (April 2014) available at l/2014-water-rights-handbook.pdf l/2014-water-rights-handbook.pdf University of Montana School of Law, Land Use & Natural Resources Clinic, Water Rights in Montana: Report for the Montana Supreme Court available at htsStudy.pdf