The purpose of this article is to help prospective buyers of property in Montana determine if any water rights go with the land. This guide will not make you an expert on Bozeman Water Rights. It should provide you with some basic information when looking at property with water rights.
The State of Montana owns all the water in the state. Water wells, developed springs, and large ponds all require a Montana Water Right. The owners of Water Rights possess only the right to use some of that water. Article IX of the Montana Constitution covers the critical language:
“All surface, underground, flood, and atmospheric waters within the
boundaries of the state are the property of the state for the use of its people
and are subject to appropriation for beneficial uses as provided by law.”
If you are buying a piece of real estate that has water rights on it, when you purchase that real estate, the water rights typically transfer to the buyer but it is important to confirm that with the closing agent(typically a title company).
Like most of the western United States, Montana operates under what is known as the Doctrine of “Prior Appropriation.” This doctrine says that those who first put water to beneficial use get to continue using it first when water is scarce. This “first in time, first in right” priority system ensures that water users whose forebears first put water to use—so-called “Senior Users” — can rightfully demand that their needs from a stream be fulfilled before the interests of junior users. Some senior water rights in Montana go back to the late 1860s. In years when water is too scarce to satisfy all water rights, senior users get water and junior users often don’t.
This is becoming increasingly important to understand, as there is a Bozeman Water Shortage.
Not all water rights are created equal. In a dry year, a 1910 water right for 10 cubic feet per second(CFS) may not provide as much water to the user as an 1875 water right for 2 cubic feet per second(CFS).
Another key provision of this doctrine of prior appropriation is that water must be put to a Beneficial Use. The key to protecting a water right is to apply it to a beneficial use. If a Water Right has not been put to beneficial use, it does not exist. Beneficial use is limited by the reasonable need of the particular use. In the case of irrigation that means actually irrigating a crop vs. just having an irrigation ditch. In addition, establishing a beneficial Likewise, pouring enough water on fifty acres to
irrigate 400 acres doesn’t establish a beneficial use in the
excess water. Your
Abandonment. Abandonment is the intentional, prolonged, non-use of a water right, resulting in the loss of the right. See more under “Montana Water Law in a Nutshell” below.
Abstract (or “general abstract”). This is a term that you may hear used. It is another way to describe the
“Statement of Existing Water Right Claim.” So if you hear the term used elsewhere, that is what it refers to.
Acre-foot. This is a term used to describe a volume of water. An acre-foot equals 325,851 gallons, or enough to cover one acre in one foot of water (43,560 sq. ft., or about the size of a football field). An acre-foot is also enough water to meet the demands of a family of four for a year.
Adjudication. In the context of Montana water law this refers to the statewide judicial proceeding to determine the type and extent of all water rights claimed before July 1, 1973.
Adverse effect. In water rights, something that impedes the ability of a water user to make use of water. Change in use must avoid an adverse effect to other water users.
Appropriate. The acts necessary to create a water right.
Appropriation right. A long-winded way of saying water right. A water right is a right to put water to a beneficial use.
Appropriator. One who applies water to a beneficial use. An appropriator owns a water right.
Beneficial use. A use of water for the benefit of the appropriator, other persons, or the public, including but
not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining,
municipal, power, and recreational uses; fa use of water to maintain and enhance streamflows to benefit fisheries pursuant to conversion or a lease of a consumptive use right. Note: simply diverting water down a ditch and letting it run back to the stream is not a “beneficial use.”
Change in appropriation right. A change in the place of diversion, the place of use, the purpose of use, or the place of storage of a water right. These changes need the approval of the Department of Natural Resources and Conservation (DNRC) to assure that the change will cause no adverse effect to other water users.
Consumptive use. A beneficial use of water that reduces the source of supply, such as irrigation or municipal use.
Cubic feet per second (cfs). 448.8 gallons per minute. Cfs is a measurement of flow. A flow of 1.0 cfs over 24 hours will yield a volume of 1.98 acre feet.
DNRC. The Montana Department of Natural Resources and Conservation, the state agency responsible for permitting new water rights and changes in appropriation rights.
Flow rate. A measurement of the rate at which water flows are diverted,
impounded, or withdrawn from the source of supply for beneficial use, and commonly measured in cubic feet per second (cfs) or gallons per minute (gpm). Put in every day terms, when you turn on the faucet in your kitchen sink, the water comes out at a certain rate of flow (gpm).
Instream flow or use. Water left in a stream or river for nonconsumptive uses such as a fishery use.
Junior Appropriator. A secondary user on a water course. One who does not have the most senior rights.
Miner’s inch. An archaic description of flow rate that you’ll occasionally hear. In Montana, one cfs equals 40 minor’s inches. Or one miner’s inch equals 11.22 gallons per minute. One caveat for the strict constructionists among you—a miner’s inch in Montana isn’t necessarily the same a miner’s inch in another state.
Nonconsumptive use. A beneficial use of water that does not reduce quantity, quality, or timing of water in the source of supply, such as an instream use.
NRCS. The Natural Resources Conservation Service. This is the federal agency that implements the federal farm bill, and has local and regional offices around the state. It is a source of information and assistance on agricultural irrigation practices, soil types, weed control, grazing practices, and other ranch management issues. It also has a variety of programs providing partial funding for irrigation improvements and some habitat restoration.
Perfected. A water right claim is perfected when it is actually put to use. Under the traditional system one could file a notice of a claim in the county clerk and recorder’s office without first having put the water to use. And under the modern permitting system (since July 1, 1973), an applicant for a water use permit must get DNRC approval before putting the water to use. In either instance, if the water is not
subsequently put to use, then the water right has not been perfected, and it may not be valid. Remember, a water right is defined by its actual beneficial use.
Place of Use. The place at which a water right is put to use. Point of Diversion. The place on a water source at which water is diverted. Senior appropriator. As between two or more users on a source, the water user with the earliest priority date.
Return flow. Part of a diverted flow that is applied to irrigated land and is not consumed and returns underground to its original source or another source of water, and to which other water users are entitled to a continuation, as part of their water right.
Volume. On the Statement of Claim, the volume of the water right is indicated in acre-feet (see definition above). This indicates the total amount of water that can be diverted from the stream at the specified flow rate. In many cases, you may see this comment on the “maximum volume” line on the Statement of Claim: “The total volume of this water right shall not exceed the amount put to historical and beneficial use.”
Waste Water. That part of a diverted flow which is not consumptively used and which returns as surface water to any surface water source, and which other water users can appropriate, but have no legal right to its continuance. For example, if an irrigator puts so much water on his field that some of it flows off his land as surface flow, that surface flow is waste water.
Water Court. Located in Bozeman, the Water Court’s primary function is to carry out the state-wide adjudication. Disputes between water right holders are still handled in local district court, and the local district courts still oversee any water commissioners in their area.
Contact one of our Real Estate Agents if you have questions about Bozeman Water Rights. Our experienced agents will answer your questions, and can put you in touch with lawyers who specialize in Montana Water Rights.