How do I get a Water Right?
You may already have one! If you are currently diverting, withdrawing, or impounding the water and are putting the water to beneficial use, you “may” already have a valid and viable water right. You may have acquired a valid water right along with your land if;
- Water was used on your property before you acquired it,
- The person you acquired your property from either filed a claim with the Montana Water Court claiming pre-July 1, 1973 use or,
- The person you acquired the property from received a permit from the Montana Department of Natural Resources and Conservation and
- The person you acquired the property from did not “reserve” the water right in the deed conveying the property to you,
- And the water right has not been abandoned from non-use, or the permit has not been revoked because of non-perfection or noncompliance with permit conditions.
Montana DNRC maintains records of water right permits, claims and decrees. You can look up your water rights here (hyperlink to query system).
What if I need a new or increased Water Right?
You may need a new water right for an existing use of water if a water right was not properly established for the existing use (for example, if a use of surface water started after July 1, 1973 without applying to DNRC for a permit.) A new water right is also needed for a new use of water. If you wish to establish a new water right, then there are certain procedures you will need to follow.
What if I need more than 10 acre feet and 35 gpm?
First you must file an Application for a Permit with Montana DNRC. The information that must be included in the application is described by statute and in rules and regulations of DNRC. (See “Understanding the Application Processes”)
Montana DNRC must then review the application, and if the application meets the requirements of the statute and the rules and regulations, the application is deemed Correct and Complete. After reviewing the factual and legal basis of the application, the Department makes an initial determination and publishes notice of this decision. If no valid objections are filed the permit is issued. The permit describes the appropriation to be made and the deadline within which the appropriation must be completed.
Prior to the end of the period in which the appropriation must be completed, DNRC sends the permit holder a notice that the deadline is approaching and that the permit holder must submit proof of perfection. When a permit is perfected it means that the appropriation has been put to beneficial use as described in the permit.
If you need help with this complex process, give us a call.
What are the types of water rights and how do I establish one?
There are several types of water rights in Montana that were acquired in accordance with laws in effect at the time. Some of the more common rights are explained here and elsewhere in our website. See also “Understanding Montana’s 14 Types of Water Rights!!
- Use Rights – Most water rights prior to July 1, 1973, were called use rights. These are water rights that were acquired by merely appropriating and beneficially using the water. No recording, approval from a government agency, or other written record of the right was required. The priority date of use rights is generally the date the water was first put to beneficial use.
- Filed Rights – are water rights that were filed with local county Clerk and Recorder’s offices under an optional system that was first statutorily recognized in 1885 and that continued until July 1, 1973, the effective date of the Water Use Act.
- Claimed Water Rights – A claim is a “claim” of water right describing how water was used prior to July 1, 1973. In Montana this is referred to as a “statement of claim” which indicates that it is subject to the adjudication process. Each statement of claim had to include:
- The name and address of the claimant
- The name of the watercourse or water source from which a right was claimed
- The quantities and times of claimed water use
- A legal description of the point of diversion and place of claimed water use
- The purpose of use and the number of acres irrigated, if applicable
- An approximate starting date of beneficial use
- A sworn statement that the claim is true and correct, and
- Support evidence, such as maps, plats, aerial photos, or decrees (Sec 85-2-224,MCA)
Before the Water Court evaluates a basin, DNRC staff must examine each claim to determine if it is complete, accurate, and reasonable. If an examination uncovers excessive claims or other discrepancies, the DNRC contacts the claimant to resolve any errors. If the DNRC is not able to come to an agreement with a claimant on a discrepancy that the DNRC has found with the claim, an issue remark is placed on the claim. All issue remarks must be finally resolved before a final decree can be issued. After examining all claims in a basin, the DNRC issues a Summary Report to the Water Judge who uses the information to prepare the basin decree.
- Ditch Right (AKA “Ditch Water Right”) – Some persons have the right to receive water that is represented by shares in a ditch company. In such cases, the ditch company has the appropriation, and the water users have a right to receive water from the ditch company.
What if I need to divert surface water?
A person must apply for and receive a permit to appropriate water before beginning to construct division works or diverting water from a surface water source. Those seeking a permit must plan ahead – – the application process takes a great deal of time to complete. The applicant for a permit must provide the following evidence:
- The physical availability of water at the point of diversion during the requested period of diversion;
- The legal demands on the course;
- A comparison of the physical water available and the existing legal demands;
- The effects of the proposed use on existing water rights;
- An analysis of the effects of existing water rights on the water supply within the source;
- 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 (and point of diversion)
The exception to this law is for small livestock pits or reservoirs located on nonperennial flowing streams. Within 60 days of completion, an Application for a Provisional Permit for Completed Stockwater Pit or Reservoir, Form 605, must be submitted to the DNRC. A provisional permit subject to prior water rights will then be issued. If the reservoir adversely affects prior water rights, the DNRC can revoke the permit or require an applicant to modify the reservoir.
What if I need to use (divert) groundwater?
Anyone who anticipates using more than 35 gallons a minute or 10 acre-feet a year of groundwater is required to obtain a permit to appropriate water before any development begins or water is used. In a controlled groundwater area, a permit may be required to appropriate any amount of water, depending on the terms of the groundwater area.
A person is not required to apply for a permit to develop a well or a groundwater spring with an anticipated use of 35 gallons a minute or less, not to exceed 10 acre-feet per year (Section 85-2-306,MCA). The first step is to drill the well or develop the spring. A Well Log Report, form 603, is completed by the driller and sent to the Bureau of Mines and Geology within 60 days. A copy is also given to the well owner.
Within 60 days after the development is put to use, the owner must submit a Notice of Completion of Groundwater Development, form 602, along with a filing fee, to the DNRC. The priority date of the water right is the date that the DNRC receives the completed form 602. The DNRC will review the form to ensure that it is correct and complete. A person must have possessory interest in the property where the water right is put to beneficial use or written notification 30 days prior to the intent to appropriate groundwater. Also a person must have exclusive property rights in the groundwater development works or written consent from the person with the property rights. A Certificate of Water Right will then be issued to the owner for the specified use.
The 2011 Legislature extended the exemption to allow development of an appropriation made by a local governmental fire agency for emergency fire protection and for nonconsumptive geothermal heating or cooling exchange applications.
What are Riparian Rights? (NOT recognized in Montana!)
You may also have heard of something called “riparian rights”. In some other states, an owner of land has the right to make a “reasonable use” of groundwater underneath his/her land, or water naturally flowing on, through or along the borders of his/her land. A riparian right to make use of the water is not limited by priority date and it cannot be lost by non-use. Montana law does not recognize a “riparian right” to divert and use water. JUST BECAUSE A DITCH, CREEK OR A RIVER RUNS THROUGH YOUR PROPERTY, OR A LAKE FRONT EXISTS ON YOUR PROPERTY, IT DOES NOT MEAN THAT YOU CAN USE THE WATER!
Can a water right be changed?
The place of diversion, place of use, purpose of use, or the place of storage of a water right may be changed so long as the change meets certain conditions as described below. After July 1, 1973, any person wishing to make a change in use of the water right must file an application of transfer with DNRC for approval of the change. DNRC shall approve the proposed change if it:
- Will not hurt other water rights
- The means of diversion, construction, and operation of the appropriation works are adequate
- The use is a beneficial use
- The applicant has permission to use the place of use (and point of diversion)
DNRC may approve the change in whole, in part, or approve it subject to conditions where necessary to meet the four requirements. If the proposed change does not meet all requirements (ask us about the 17-step procedure), then the proposed change is not approved and the application for change is denied. A special note: MCA Sections 85-2-407 provide for an abbreviated process for changing a water right temporarily in certain situations. MCA 85-2-408 provides a procedure to temporarily change a water right to a purpose of instream flow, subject to certain limitations.
How do I transfer a water right?
By law, a water right automatically transfers with a piece of property when it is sold unless specific provisions are made by the seller at the time of the sale. When filling out the Realty Transfer Certificate (RTC) which is filed (but not recorded) with the deed at the county, the seller must disclose his plans for the water right. A revised RTC form will identify the possible scenarios, which include the following:
- An outright transfer of the water right to the new owners, or
- A division of the water right among two or more owners (this may occur when a parcel of land is subdivided), or
- An exemption or reservation of the water right from the sale of the property. This means the water right remains with the seller even though the property changes hands, or
- A water right can also be “severed” from a parcel of land. In this scenario, the water right is removed from the property and the owner sells the water right but keeps the property. These transactions require the owner to file a paper ownership update form with DNRC. The completed RTC form is then “filed” (but not recorded) by the closing party or closing company at the county clerk and recorder’s office, along with the deed, which actually is recorded and therefore becomes “Public Information”. If the water right was divided or reserved, the RTC form and deed must be accompanied by a certification that the water right ownership update form and fee is in escrow or will be filed with the DNRC within 5 days of filing the deed. The DNRC will provide the form to the sellers or closing companies.
- The closing company will generally collect the DNRC update filing fee whether the water right transfers, is divided, or reserved. If the property has been divided, the county clerk will then assign the property a new geo-code, which will go into the Department of Revenue’s database. Each month, DOR will send DNRC the latest batch of new owners with geocodes, enabling DNRC to update its records.