Table Of Content53-4^6.0«4.3^2^^'^WS*a*d?i*n'g** iGnetorald L
E12wniw Ngntana water
1997 rights
Wading
into
MONTANA WATER
RIGHTS
STATE DOCUMENTS COi ! C^T
US 26
19
MONTANA STATE Lib
1515 E. eth AVE
HELENA, MONTANA 5^.
produced by
Gerald L. Westesen
Professor Emeritus, Montana State University
and
Michelle Bryan
Montana University System WaterCenter
J.uly31.,1997-
r^fi "«^^
n
a joint publication of:
Legislative Environmental Policy Office Montana universitysystemWaterCenter
EnvironmentalQualityCouncil 101 HuffmanBuilding
P.O. Box 201704 Montana State University
Helena. MT59620-1704 Bozeman. MT59717
Ph. 406/444-3742. F:406/444-3971 Ph. 406/994-6690. F:406/994-1774
E-mail:[email protected] E-mail:[email protected]
Internet:http://www.montana.edu/wwwrc/
MONTANASTATELIBP^
3 0864 0014 3430
TABLE OF CONTENTS
ACKNOWLEDGMENT
1
FOREWORD
3
MONTANA WATER RIGHTS
5
WHOOWNSMONTANAWATERS?
.
. WHATISA"WATERRIGHT"?
•WHEREDOMONTANAWATERRIGHTSORIGINATE?
WATER USE ACT
12
• WHATCHANGESDIDTHEWATERUSEACTCREATE?
•WHOADMINISTERSTHEWATERUSEACT?
THE ADJUDICATION PROCESS
14
. WHOADMINISTERSADJUDICATION?
. HOWISTHE ORDEROFADJUDICATION DETERMINED?
. HOWDOESADJUDICATIONWORK?
THE PERMIT PROCESS
19
. WHOADMINISTERSTHE PERMITPROCESS?
• WHEN ISAPERMITREQUIRED?
. HOWDOESTHE PERMITPROCESSWORK?
. WHATHAPPENSWHENAWATER SOURCEREACHESMAXIMUMAPPROPRIATION?
WATER USE
24
• HOWAREWATER RIGHTSDISTRIBUTED?
. CANWATER RIGHTSBE CHANGED?
. CANOWNERSHIPOFWATER RIGHTSBECHANGED?
DISPUTES AND ENFORCEMENT 27
. WHATHAPPENSWHENAWATER RIGHTS DISPUTEOCCURS?
. HOWAREWATER RIGHTSENFORCED?
GOVERNMENT AND WATER
30
. WHAT ROLE DOESTHE FEDERALGOVERNMENTPU\Y INMONTANAWATER USE?
. WHATROLE DOESSTATEANDLOCALGOVERNMENTPLAY INMONTANAWATER USE?
CONCLUSION
35
GLOSSARY OF TERMS
36
INFORMATION RESOURCES 40
ACKNOWLEDGMENT
The authors wish to thank the following individuals who, as advisors,
lenttheirvaluable expertise and unique perspectives to this product.
Mona Jamison
Michael Kakuk
Donald Maclntyre
Russell McElyea
FOREWORD
Man has been transfixed bywatersince the beginning oftime.
"They are like trees planted by streams ofwater, bearing fruit in due season, with
leavesthat do not wither; everything they do shall prosper." Psalm 1, Verse 3.
"Theyfeast upon the abundance ofyour house; you givethem drinkfrom the river
ofyourdelights," Psalm 36, Verse 8.
In Montana, the yearning forwater and abundant crops is no less real, and no less rooted in our
history. The dry land farmer in eastern Montana looks westward with a touch ofenvy at a
counterpart in the western part ofthe state who seems to have more than an adequate supply
ofirrigation water. The irrigator looks westward hoping for more rain and more water. It is
perhaps the nature offarmers that there is neverenough water. But beyond ouryearnings,
there is a real sense ofurgency among water users asthe 20th century comes to a close.
Growing cities and towns plan anxiously for more water. Fertile farm lands fall underthe
subdivider's survey. Water rights are divided overand over among "ranchettes" until little
beneficial use results, more controversy arises, and the distribution becomes exceedingly
difficult. Down stream states and users eye the clearwaters ofMontana and plan for its use.
The Montana effort at readjudication, begun in the 1970's, drags on through the 1990's. Chief
WaterJudge W.W. Lessley's self-imposed deadline to complete the project in ten years has
long since passed as has thejudge himself.
It is time for Montanans, water users and citizens at large, to arm themselves with a historical
perspective and basic knowledge ofourwater laws and procedures. No one is more qualified
to help us with that task than Professor Gerald L. Westesen, ofMontana State University-
Bozeman, and his insightful co-writer, Michelle Bryan. In this deceptively short and concise
analysis of Montana Water Law, the reader is taken into the mining camps of Montana
Terntory, to the halls ofour early legislatures, and into the chambers ofthe Montana Supreme
Court. We ponderthe outcome ofthe readjudication movement. We see Montana water law
evolve as a living, breathing thing that is uniquely ourown.
I commend Wading into Montana Water Rights to the reader. It is my hope that this
unassuming, but accurate and readable document will help Montanans to guide and direct the
development of Montana water law into the next century.
ThomasA. Olson
District Judge, Bozeman, Montana.
Aprimerforthe citizen, this manualaddresses commonlyaskedpolicyquestions regarding
waterrights. Explanations attempt to relayprinciples in understandable terms. In the
simplificationprocess, some technicalnuances maybe lost. Forthe legallycurious, we
recommenddirectreference tocitedlaws andstate agencies.
MONTANA WATER
RIGHTS
Fewelements reach so deeply into the human existence as water. Oureconomic endeavors,
recreational excursions, and very well being depend on the quality and abundance ofthis
resource. Yet, which persons can use water? In what amount? Atwhat time? Such questions
—
lead us into the realm ofwater rights a blend of laws, regulations, and traditions that govern
the distribution ofMontana's water among its many users.
WHO OWNS MONTANA WATERS?
)%k)»-4.uuJU-^.j.tv'..>>......w....^.-.....ii-awj-j^ , „ .,
Montana waters, in all their varied forms and locations, belong to the state. This ownership,
however, exists on behalfofall state citizens. The Montana Constitution explains that:
[a]llsurface, underground, flood, andatmosphericwaterswithin the
boundariesofthestate are thepropertyofthestatefortheuseofits
people . . . (Article IX, Section 3(3)) (emphasis added).
WHAT IS A "WATER RIGHT"?
Since Montana waters belong to the state, water rights holders do notownthe water Itself.
Instead, they possess a rightto usethe water, within state guidelines. Accordingly, Montana
law notes:
[a]"waterright' meanstherighttouse water. . . (MCA § 85-2-422)
(emphasis added).
•• WATER RIGHTS DOCTRINES ••
Because ofthe assorted geographic, economic, and social landscapes spanning our nation,
each state water nghts system is unique. Certainly, every state has a "right to use" water right;
however, doctrines for implementing such water nghts vary. Nationwide, three overarching
doctnnes exist:
• riparian,
• priorappropriation, and
• hybrid.
RIPARIAN DOCTRINE
Drawing upon European laws and colonial experiences, the riparian doctrine evolved as our
—
nation's firstwater rights system. Variations ofthis doctrine surface in over halfour states
particularly in water-rich regions like the East Coast and Great Lakes.
Fundamentally, this docthne attaches water rights to property: landowners bordering a
watercourse have the rightto use adjacent waters. Essential elements ofa riparian right
include:
• contiguity toawatercourse,
• reasonable use,
• equalaccess, and
• indefinitequantity.
Contiguity to a Watercourse To earn a "riparian" classification and accompanying water
rights, property must be contiguous to a watercourse. Ifproperty is "non-riparian," no water
rights are available.
Reasonable Use To exercise a water right, the use must be reasonable Depending on the
watercourse in question, "reasonable" may carry differing meanings. Typically, the definition
considers:
• suitabilitytothewatercourse,
• economicvalue,
• socialvalue, and
• impactson otherusers in thewatercourse.
Equal Access Regardless ofstarting date, amount, ortype ofuse, no water right has priority
over another. In fact, an unused water right is as valid as a used one. Subsequently, one
owner's reasonable use cannot interfere with the uses ofother riparians. During drought
periods, this equality also requires users to share the burden ofwater shortages.
Indefinite Quantity The quantity ofa riparian right is indefinite, fluctuating according to
available supply. Dunng high water years, users have equal access to a greater quantity; in
dhertimes, each must use less. Whateverthe available supply, one riparian cannot consume a
quantity that unreasonably diminishes another nparian's use.
Permit Requirement
Responding to increased population and development demands, riparian states have integrated
permit requirements into their doctrines. Now, besides ownership of riparian land, an individual
must also obtain state approval before utilizing a water right. Designed to safeguard public
water supplies, the permit process may limit private riparian rights in heavily used
watercourses
