Table Of Content

53-4^6.0«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