Episode 9 - Water Rights
October 2021
Water is a vital aspect of life. There can be lots of questions about water. Who can use the water? How much can they use? When can it be used? What can it be used for? All of these questions fall into the realm of water rights.
This month the Bitter Root Water Forum help put on a training for Real Estate professionals called “Water Rights Demystified”. The class began with the statement “Water rights are not black and white”, they can be complex and at times straight-up confusing. But we’ll start to scratch the surface.
The Montana Constitution declares water as public use and the water within the state is “the property of the state for the use of its people”. Water is subject to appropriation for beneficial use and that is where water rights come in.
Water rights in Montana are based on a “Doctrine of Prior Appropriation” or first in time, first in right. That means that the water rights claimed earlier have the top priority of having their needs met. The water associated with a right needs to be put towards a “beneficial use” these can include; agricultural, domestic, fish & wildlife, industrial, commercial, hydropower, instream flows, and more.
The Department of Natural Resources and Conservation (DNRC) is the state agency tasked with administering water rights records and establishing new or changing existing water rights. Find more information about specific water rights on their website through the “Water Rights Query System”.
Water rights are most often tied to a piece of land, considered property rights, and they are transferred along with a piece of land when it changes owners. There are a few elements of a water right; priority date, source, period of diversion and use, place of use, purpose, flowrate, and volume. The priority date is the date that the water right was claimed and determines the priority for the prior appropriation doctrine. The other elements cover the place the water is coming from, timing and location it is to be used, what it is used for and how much is used.
Montana has the authority to close or control river basins and groundwater aquifers to some new water rights based on factors like water availability, water contamination, or to protect existing water rights. The Bitterroot watershed is a “closed basin” which means that provisional permits cannot be submitted for new surface water rights. This closure was enacted by the legislature and became effective in 1999.
According to the DNRC Water Rights Query System, there are currently 21,179 surface water rights records and 46,646 groundwater rights active in the Bitterroot.
The topic of water rights is vast and complex. If you have specific questions reach out to our local DNRC office in Missoula at (406) 721-4284. Additional information is available on the Bitter Root Water Forum website, brwaterforum.org, or the DNRC website, dnrc.mt.gov/divisions/water/water-rights.
Additional Resources