Managing Montana’s Water:
Challenges Facing the Prior
Appropriation Doctrine
in the 21st Century
by the Clark Fork River Basin
Task Force • July 2008
Photo Credits
Bull Trout by Bart L. Gamett
Rafts, fisherman and kayak by Travel Montana
Graphic Design
Martha Hodder
Managing Montana’s Water: Challenges Facing the Prior Appropriation Doctrine in the 21st Century
T
his paper is prepared by the Clark
Fork River Basin Task Force (Task
Force)1 to review the status of Montana’s
water allocation and management system
and then to examine the challenges facing
it. Montana water law is based on the
prior appropriation doctrine which is
commonly summarized by “first-in-time,
first-in-right.”2 First-in-time, first-in-right
means that water use is based on water
rights with a priority determined by
when water was first put to a beneficial
use. Increased competition for water
resources and increased management
complexity are creating challenges
for implementation of this doctrine.
The challenges result from reliance on
individual water users for administration
and enforcement that threatens the
viability of water rights, ground water
development that impacts surface water,
choices related to domestic water sources,
and federal statutes and regulations that
constrain the operation of federal water
projects and river flow.
The Clark Fork River Basin Task Force was
created in 2001 pursuant to a state statute,
85-2-350 MCA. This statute requires that
members of the Task Force be representative of
the water interests and sub-basins in the Clark
Fork River basin. It charged the Task Force
with developing a water management plan
for the basin that identified options to protect
the security of water rights and provided for
the orderly development and conservation of
water in the future. The Task Force presented
the Clark Fork Basin Watershed Management
Plan to Montana’s governor and legislature in
September 2004. The Plan was subsequently
adopted by the Montana Department of Natural
Resources and Conservation into the State
Water Plan. For more information about the
Task Force see http://dnrc.mt.gov/wrd/water_
mgmt/clarkforkbasin_taskforce/default.asp.
1
In 1894, the Montana Territorial Legislature
established the riparian doctrine as the means
of allocating water. In this system, title to
water is granted to landowners whose property
2
History of Montana Water
Allocation and Management
Pre-1973
Prior to the passage in 1973 of the Montana
Water Use Act, the right to use water in
Montana was obtained simply by putting it
to a beneficial use.3 No central compilation
of water rights existed. Resolution of water
right disputes and adjudication of water
rights occurred in local courts in actions
brought by individuals.4
For more
information about
the Clark Fork Task
Force see
http://dnrc.mt.gov/
wrd/water_mgmt/
clarkforkbasin_
taskforce/
Post 1973
In 1972, Montanans adopted a revised
Constitution. Article IX, Section 3 of
the new Constitution includes several
provisions regarding water and water
rights. It recognizes and confirms existing
water rights. It asserts that “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...” It subjects state waters “...to
appropriation for beneficial uses as
is adjacent to rivers and streams. It was not
until 1921 that the Montana Supreme Court
rejected the riparian system in favor of prior
appropriation. See Shovers, “Diversions, Ditches,
and District Courts,” Montana - The Magazine of
Western History, Spring 2005.
Stone, Selected Aspects of Montana Water Law,
1978, page 28.
3
In 1903, the Montana Legislature established
the Montana State Engineer’s Office and charged
the State Engineer with surveying the state’s
water systems to determine annual flows and
with overseeing implementation of an 1894
federal statute that allowed private companies
to develop irrigation systems. In 1934, the
Legislature created the Montana State Water
Conservation Board (SWCB) and authorized
it to investigate and fund water storage and
irrigation projects. In 1965, the Legislature
abolished the Montana State Engineer’s Office.
Two years later, it replaced the Montana
State Water Conservation Board with the
4
Clark Fork River
1
Managing Montana’s Water: Challenges Facing
the Prior Appropriation Doctrine
in the 21st Century
provided by law,” and requires the
legislature both to “...provide for the
administration, control, and regulation
of water rights and ... establish a system
of centralized records, in addition to
the present system of local records.” In
response to latter directive, the Montana
legislature passed the Montana Water
Use Act in 1973. This Act established
a centralized record system for water
rights and required that all water rights
existing prior to July 1, 1973 must be
finalized through a state-wide water
rights adjudication in state courts. It
also provided that a new water right or
a change to an existing right requires a
permit from the Montana Department
of Natural Resources and Conservation
(DNRC).5
Adjudication
To “expedite and facilitate” the state-wide
water right adjudication, the legislature
passed SB 76 in 1979. SB 76 mandated a
comprehensive adjudication of all pre1973 water rights in a newly created
Montana Water Court. It also created
Montana Water Resources Board (MWRB)
and directed it to prepare a state water plan.
See Shovers, “Diversions, Ditches, and District
Courts,” Montana - The Magazine of Western
History, Spring 2005. According to Shovers, the
same 1967 statute required “...that all waterright holders must make a declaration of their
appropriation to their county clerk, who, in turn,
would forward them to the board in Helena to
be compiled into a comprehensive inventory
of water resources.” The Board did not compile
a comprehensive inventory. Neither the State
Engineer, SWCB, or MWRB had the authority to
resolve water right disputes or adjudicate water
rights. This authority remained in local courts.
Water Rights in Montana, published by the
Montana Department of Natural Resources and
Conservation, the Legislative Environmental
Quality Council, and the Montana University
System Water Center, February 2006, page 3.
5
2
the Montana Reserved Water Rights
Compact Commission and charged it with
negotiating federal and tribal reserved
water rights.6 Twenty-five years later, the
Water Court had issued 42 temporary
preliminary decrees, 14 preliminary
decrees, and 6 decrees that are sometimes
labeled as final, but will have to be reopened.7 A major reason for the slow pace
of the adjudication was insufficient staff
and funding for the DNRC to carry out its
claims examination responsibilities.8 In
2005, the legislature passed a water rights
fee to increase funding to DNRC and the
Montana Water Court in an attempt to
complete the adjudication by 2020. DNRC
hired 30 additional staff and was on pace
to complete its examination work by 2015.
Surface Water Appropriations
Historically, under the prior appropriation
doctrine, Montanans obtained water
for new uses by acquiring new surface
water rights. However, by 2007 the era
of new surface water rights supporting
new uses was essentially over. Many
of Montana’s major river basins were
Federal reserved water rights were created by
the United States Supreme Court in its ruling in
Winters v. United States [206 U.S. § 564 (1908)].
The Supreme Court held that when Congress or
the President sets aside land out of the public
domain for a specific federal purpose, such as an
Indian reservation, National Park, or National
Forest, a quantity of water is impliedly reserved
which is necessary to fulfill that primary
federal purpose. A federal reserved water right
has a priority date as of the date the land was
withdrawn and the reservation was created; it
cannot be lost through nonuse.
6
See Mont. Code Ann. § 85-2-237 (reopening
and review of decrees).
7
“White Paper on the Montana Water Rights
Adjudication” issued by the Upper Clark Fork
River Basin Steering Committee on March 2,
2004, page 8.
8
closed to new surface water rights,
with specific exceptions for some uses.
The closed basins included the upper
Missouri, Jefferson, Madison, Teton,
upper Clark Fork, Bitterroot, and the
Musselshell. The mainstem of the Milk
River was closed. The unquantified Salish
and Kootenai Tribal water rights and a
2006 DNRC hearing’s officer ruling may
have effectively closed the Clark Fork
River basin to new surface water rights.9
Several individual creeks were also closed
by petition and administrative orders
during a portion of each year. Water
right compacts with federal agencies and
Indian tribes had closed certain water
In denying water the right permit Application No.
76N-30010429 submitted by the Thompson River
Lumber Company, DNRC found additional water
from the Clark Fork River not to be “reasonably
available” and that the proposed diversion would
adversely affect a prior appropriation at Noxon
Dam. DNRC determined that the applicant
proved that water is “...only available when Clark
Fork River flows exceed 50,000 cfs which is only
on average 16-24 days per year.” Outside of this
period, the applicant would be subject to a call by
Avista. DNRC also concluded that the applicant
did not prove that Avista would not be adversely
affected by diminished flows in the amount of the
applicant’s proposed diversion on the days where
flows do not exceed 50,000 cfs. DNRC’s decision
was not appealed to district court. In a June 9, 2008
memo, John Tubbs, Administrator of the DNRC
Water Resources Division, clarified the Thompson
Falls Lumber Company decision by excluding the
Flathead River and its tributaries upstream of the
Flathead Indian Reservation Boundary from the
precedent it created. He stated that these basins
remain open to new surface water rights.
9
3
Managing Montana’s Water: Challenges Facing
the Prior Appropriation Doctrine
in the 21st Century
sources to new appropriations.10 Even
in areas not closed, a new surface water
right would be the most junior for a given
water source. The new user would be
entitled to “wet” water only after all other
senior rights are satisfied.
Water Reservations
The 1973 Water Use Act allowed state or
federal agencies or political subdivisions
of the state to apply to the Board of
Natural Resources and Conservation
to reserve surface and ground water
for present and future beneficial uses,
including municipal, irrigation, instream
flows, and water quality.11 Large instream
flow reservations were granted for
the upper and lower Missouri River
basins and the Yellowstone River basin.
No reservations have been granted in
Montana basins west of the Continental
Divide to reserve water for future use.12
Mechanisms to Provide for
New Water Uses
The ending of the era of new surface
water rights means that new water uses
will depend on one or more of three
mechanisms: changes to existing water
rights, contracting for stored water, or
using ground water. Ground water will be
For a complete listing of closures created by
statute, administrative action, and compact, see
Water Rights in Montana, February 2006, pages
36-40.
10
Draft Environmental Impact Statement,
Upper Clark Fork Basin Water Reservation
Applications, Montana DNRC, December 1988,
page 1-2, 85-2-316(1) MCA.
11
In 1987, Granite Conservation District and the
Montana Department of Fish, Wildlife and Parks
filed competing applications for reservations
of surface water in the upper Clark Fork River
basin. Processing these applications was
suspended by basin closure established by
85-2-336. This same statute sets the priority
12
4
discussed in the next section of this paper.
The efficacy of changes to or purchases
of existing rights depends on two things,
completion of the water right adjudication
so that one can be confident in the status
of a pre-1973 water right and the user
friendliness of the administrative system
for changing water rights. While some
water may be available from privately or
state owned reservoirs and other water
bodies, the most likely source of storage
for new water uses is the large federally
owned reservoirs: Fort Peck, Tiber,
Canyon Ferry, Hungry Horse, Koocanusa,
and Yellowtail. Contracts from these
reservoirs will also be discussed below.
Another possibility is aquifer storage and
recovery - injection of surplus surface
water into aquifers for latter drafting by
wells.
Ground Water Appropriations
Montana first began to regulate ground
water development in 1961 when the
legislature passed a ground water code
establishing a system for appropriation
of ground water.13 The 1973 Water Use
Act required DNRC permits for ground
water developments of 100 gallons per
minute or more. In 1991, the legislature
recognized the significance of ground
date for these applications to be May 1, 1991.
Pursuant to 85-20-1401, the United States Forest
has applied for a reservation of the waters of
Chicken Creek, a tributary to the West Fork of
the Bitterroot River. Forest Service reservations
must be for instream flow only.
“Managing Montana’s Water” at http://water.
montana.edu/pdfs/headwaters/headwaters6.pdf,
page 4. Prior to the effective date of the ground
water code, January 1, 1962, ground water
could be appropriated only if it flowed in a
“permanent, defined, and known channel.” See
Doney, Montana Law Handbook, published by
the State Bar of Montana, October 1981, page
13-14 and 18-19.
13
water as a supply for Montana water users
and passed the Montana Ground Water
Assessment Act establishing the Montana
Ground Water Assessment Program
to characterize and monitor the state’s
ground water and conduct long-term,
statewide monitoring of ground water
quality and water levels.14 Also in 1991,
the legislature changed the definition
of ground water developments exempt
from DNRC water right permitting to 35
gallons per minute or less and 10 acre-feet
per year or less.15
Federal Storage Reservoirs
Beginning in the 1930s and continuing
through the 1970s, the federal
government constructed several large
dams and reservoirs in Montana. In order
of construction, these included the Fort
Peck, Hungry Horse, Canyon Ferry, Tiber,
Yellowtail, and Libby Dams. The agencies
charged with operating these dams, the
United States Bureau of Reclamation
(BOR) and the United States Army Corp
of Engineers (COE) filed water rights with
the state claiming the right to store water
to market it to water users for various
purposes.16 In response to concerns
about the marketing of Montana water
for industrial purposes, especially for
coal slurry pipelines, the 1983 Montana
legislature created the Select Committee
on Water Marketing (Committee). In
response to recommendations from the
Committee,17 the 1985 legislature created
http://www.mbmg.mtech.edu/grw/
grwassessmemt.asp
14
a state water leasing program for the
purposes of limiting the total amount
of water that the state could lease and
providing revenue to the state. The limit
was 50,000 acre-feet. The Committee
recommended and the legislature
authorized the state to obtain water for
any beneficial use from existing federal
reservoirs, Fort Peck, Hungry Horse,
Canyon Ferry, Tiber, and Yellowtail,
provided that the state had an agreement
between the state and federal government
to share the revenue from marketing the
water.18 The state negotiated a contract
with the COE for Fort Peck water, but did
not market any of it. This contract expired
in 1980s, and was not renewed.
In 2007, the Task Force successfully
sought legislation to raise the cap from
50,000 to 1,000,000 acre-feet on the
amount of water that the state can lease
for beneficial uses when the source
of the water is a federal reservoir and
when the water leased is not used out
of the basin in which the reservoir is
located. The legislation also eliminated
the requirement that water marketing
revenue be shared between the state
and federal government. The Task Force
sought this legislation to use Hungry
Horse water to provide for future water
uses in the Clark Fork River basin and to
protect uses of water in the basin that are
junior to lower basin hydroelectric water
rights.19
on Water Marketing to the 49th Legislature,
January 1985.
15
Montana Session Laws Sec. 4, Ch. 805, L. 1991.
18
COE constructed and operates Fort Peck and
Libby Dams, and BOR constructed and operates
Hungry Horse, Canyon Ferry, Tiber, and
Yellowtail Dams.
19
16
85-2-141(3) MCA.
Clark Fork Basin Watershed Management Plan,
Chapter 6, Hydropower Water Rights and Basin
Water Use, pages 73-78, September 2004.
Summary of the Report of the Select Committee
17
5
Managing Montana’s Water: Challenges Facing
the Prior Appropriation Doctrine
in the 21st Century
Challenges Facing the
Prior Appropriation System
Administrative and Enforcement
Challenges
Article IX, Section 3(3) states, “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.”
However, the authority of DNRC, the
agency assigned with the task of providing
for the administration, control, and
regulation of water rights, is limited. In his
article entitled “Diversion, Ditches, and
District Courts” published in Montana
the Magazine of Western History, Brian
Shovers wrote that Montana irrigators
historically “... preferred the uncertainty
and cost of litigation to established
limits imposed by a centralized system.”
Rather than DNRC, the responsibility for
adjudicating and enforcing water rights
and resolving water disputes has been
“...entrusted to ditch riders, water masters,
and district court judges.”20
DNRC is not the state’s water cop. It
plays a limited role in enforcing pre-1973
water rights. Since the passage of the 1973
Water Use Act, it can seek to enforce
water right permits by filing actions
in district court. However, because of
staffing and funding limitations, DNRC
has almost never used its authority to go
to court.
In the adjudication process, DNRC’s
role is limited to examining water rights
claims, and placing remarks identifying
problems on them. DNRC does not act
as an institutional objector, an entity
assigned with examining all claims
and filing objections to errant claims.
Individual water right holders in a given
decree bear this burden. In a policy paper
discussing the implications of completing
the state-wide water rights adjudication,
the Upper Clark Fork River Basin Steering
Committee wrote, “In larger basins with
The enforcement burden falls almost
entirely on individual water right holders.
Individuals can make calls on junior
users and file lawsuits in district court
to enforce their water rights. Water
users within an enforceable water rights
decree can petition district court to
appoint a water commissioner to act
as the court’s agent and allocate the
available supply of water according to
the decree water right priority dates.
The cost of the water commissioner is
borne only by those water users receiving
water pursuant to the commissioner’s
action rather than by all those subject
Shovers, “Diversions, Ditches, and District
Courts,” Montana - The Magazine of Western
History, Spring 2005, page 14.
Adjudication” issued by the Upper Clark Fork
River Basin Steering Committee on March 2,
2004, pages 5-6.
20
“White Paper on the Montana Water Rights
21
6
thousands and in some instances tens
of thousands of water rights claims,
individual water users cannot be expected
to have the knowledge, willingness, and
financial resources necessary to scrutinize
every claim and to pursue more than
a few objections.”21 Ameliorating this
concern somewhat is the fact that claims
with DNRC issue remarks to which no
objections are filed by individual water
right holders must be heard before the
Water Court. DNRC staff must appear and
explain their remarks. The Montana Water
Court must address DNRC issue remarks
prior to the issuance of final decrees.22
Water Rights in Montana, page 12-13.
22
to the decree. Water commissioners
generally work only during the irrigation
season and are not provided benefits
such as health insurance, sick leave,
or worker’s compensation insurance.
While the existing water commissioner
mechanism has worked in some areas, in
others, finding someone willing to serve
as a commissioner has already been a
challenge. As local water right decrees are
integrated in the adjudication process,
enforcing decrees will become more
challenging and may involve a hierarchy
of commissioners.
DNRC’s administrative permit process
for obtaining and changing water rights
also places a substantial time and cost
burden on water users. As is the case
with the adjudication process, individual
water rights holders have the right to
object to permit applications for new or
changed uses. Because these objections
are heard in a contested case procedure,
participants generally choose to be
represented by legal counsel. DNRC
has estimated that the average time
for processing a water right permit
application is 245 days. If an objection is
filed to it, processing takes more time.23
Because of Montana’s reliance on the
judicial system and contested case
administrative processes, the burden
on individual water users to adjudicate,
enforce, protect, and make changes to
existing rights can literally take years and
tens of thousands of dollars. This burden
Permit processing time was reported by John
Tubbs to the Water Policy Interim Committee
meeting on April 29, 2008.
23
Shovers, pages 6-7. Also, see “How Will
Completion of the Adjudication Affect Water
Management in Montana?” prepared by
the Upper Clark Fork River Basin Steering
24
is increasingly problematic for traditional
water users such as farmers and ranchers.
Water administration and management
has generally followed a more centralized
approach in the other western states
than has been the case in Montana.24
An example of the centralized model
is Wyoming. Article 8, Section 2 of
Wyoming’s 1889 constitution provides:
There shall be constituted a board of
control, to be composed of the state
engineer and superintendents of the
water divisions; which shall, under such
regulations as may be prescribed by
law, have the supervision of the waters
of the state and of their appropriation,
distribution and diversion, and of the
various officers connected therewith.
Its decisions to be subject to review by
the courts of the state.25
Granting DNRC more authority to
administer and enforce water rights could
reduce the burden on individual water
users. DNRC could be directly authorized
to investigate and enforce existing water
rights and resolve disputes. It could,
for example, hire, train, and provide
technical and administrative support to
water commissions who would enforce
water rights decrees. Given clear criteria
for doing so, DNRC could also play a
more authoritative role in administration
processes reducing the role of objections
to expedite decisions. Individuals could
be allowed to appeal DNRC decisions to
district court.
Committee, February 2006, pages 6-9. This
paper is available at http://dnrc.mt.gov/
wrd/water_mgmt/clarkfork_steeringcomm/
completionof_adjud_rpt.pdf.
A copy of the Wyoming Constitution
is available at http://soswy.state.wy.us/
informat/05Const.pdf.
25
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Managing Montana’s Water: Challenges Facing
the Prior Appropriation Doctrine
in the 21st Century
These changes to create a more
centralized water right process would
require legislation to increase DNRC’s
authority, staffing and budget. They would
also require a greater willingness on the
part of individual water right holders to
trust and accept a more assertive and
intrusive DNRC. Maintaining the existing
system based on local control with its
burden on individual responsibility may
come at the cost of an effective loss
of water rights by those for whom the
time and expense of hiring attorneys
and pursuing court action is increasing
unaffordable.
The State of Idaho provides somewhat
of a middle ground between state and
local control. Water users within local
water districts elect water masters, who
are charged with distributing water in
the order of priority to those water users
entitled to its use. The water district
sets the level of compensation for water
masters, who, once hired, become state
employees.26
Another portion of the State Constitution
may complicate water right enforcement.
Article II, Section 3 states that Montanans’
inalienable rights include, “...the right
to a clean and healthful environment
and the rights of pursuing life’s basic
necessities...” Although neither statute
nor court rulings have done so, the clean
and healthful environment provision
might be construed to prevent DNRC
from allocating or managing water in
a manner detrimental to “a clean and
Webmaster Handbook, Idaho Department of
Water Resources, page 8. This publication is
available at http://www.idwr.idaho.gov/water/
districts/Water%20District%20Publications/
watermaster_handbook.pdf.
26
See 85-2-342(3) MCA, 2005. This language
27
8
healthful environment,” irrespective of
the prior appropriation doctrine. As will
be discussed below, Article II, Section 3
may also affect appropriations of water for
people’s “basic necessities.”
Ground Water and Surface Water
Interactions
Another challenge to the first-in-time,
first-in-use, prior appropriation system is
the increased acknowledgment of ground
and surface water interactions.
In a recent decision, Montana Trout
Unlimited (TU) vs. DNRC, the Montana
Supreme Court clarified the regulation of
those interactions. The Court noted that
Montana basin closure laws recognized
the close relationship between surface
and ground water, and defined ground
water to mean “...water that is beneath
the land surface or beneath the bed of a
stream, lake, reservoir, or other body of
surface water and that is not immediately
or directly connected to surface water.”27
Because these statutes did not define
“immediately or directly connected,”
DNRC interpreted this phrase to mean
“...that a ground water development could
not pull surface water directly from a
stream or other source of surface water.”28
The Montana Supreme Court invalidated
this interpretation in the Montana
Trout Unlimited (TU) vs. DNRC case
because it “...recognizes only immediate
connections to surface flow caused by
induced infiltration and ignores the less
immediate, but no less direct, impact
of the prestream capture of tributary
was included in the basin closure statutes for
the Upper Missouri, Teton, Jefferson, Madison,
Teton, and Upper Clark Fork River basin closures.
Montana Supreme Court decision in Case
Number 05-069, Trout Unlimited vs. DNRC,
page 6, April 11, 2006.
28
ground water.”29 This decision halted
DNRC processing of water right permit
applications in statutorily closed basins
incorporating the “immediate and direct”
definition of ground water.
In response to this Supreme Court
decision, the 2007 legislature passed
House Bill 831. HB 831 was entitled:
“An act revising water laws in closed
basins; defining terms in water use
laws; amending requirements for an
application to appropriate ground
water in a closed basin; providing that
certain applications to appropriate
surface water are exempt from
closed basin requirements; providing
requirements for hydrogeologic
assessments, mitigation plans, and
aquifer recharge plans; providing
minimum water quality standards
for certain discharges of effluent;
requiring that previously approved
plans that were not located in
the Clark Fork basin must meet
certain criteria; requiring that
data be submitted to the Bureau of
Mines and Geology; providing for
rulemaking; providing for a case
study and requirements and a fee
for participation in the case study;
recognizing and confirming existing
appropriation rights in certain
instances; providing an appropriation;
amending sections 85-2-102,
85-2-302, 85-2-311, 85-2-329,
85-2-330, 85-2-335, 85-2-336,
85-2-337, 85-2-340, 85-2-341,
85-2-342, 85-2-343, 85-2-344,
85-2-402, and 85-2-506, MCA;
repealing section 85-2-337, MCA;
directing the amendment of ARM
36.12.101 and 36.12.120; and providing
an immediate effective date and
applicability dates an applicability date.”
This title befitted the complexity of the
legislation’s content. HB 831 required
an applicant for a new well in a closed
basin to provide a hydrologic assessment
conducted by a hydrologist, qualified
scientist, or qualified licensed professional
engineer demonstrating whether the
new appropriation would result in a
net depletion of surface water. If a net
depletion would result, the applicant
must also assess whether it would result
in an adverse effect on an existing water
right. If an adverse effect is predicted, the
applicant must file a plan for mitigating
that impact. The bill also appropriated
$500,000 to the Montana Bureau of Mines
and Geology to conduct a case study
to determine minimum standards and
criteria for the hydrologic assessments.
Although the TU vs. DNRC decision
and HB 831 apply strictly only to basins
closed to most new surface water rights,
the requirement to address prestream
capture of tributary ground water, i.e., the
interception of ground water that would
otherwise flow to a surface water body,
and for mitigation plans may be applied
to all ground water permitting. DNRC
cannot issue a permit for a new water
right or a change to an existing right
without finding that the new or changed
use would not adversely affect any existing
right. Applying the adverse affects test to
new ground water developments requires
assessing prestream capture. Ground
water applicants whose development
would result in both prestream capture
and an adverse effect will likely have the
opportunity to offer plans to mitigate it.
DNRC’s proposed rules for determining
net depletions pursuant to HB 831
require an applicant to determine the
“Propagation of draw down from a well
Ibid, page 19.
29
9
Managing Montana’s Water: Challenges Facing
the Prior Appropriation Doctrine
in the 21st Century
or other ground water diversion and
rate, timing, and location of any resulting
surface water depletion effects.”30 Timing
is a key issue for managing and enforcing
surface and ground water rights in a prior
appropriation system. The impacts of
ground water development on surface
flows may take place over months or
years rather than immediately.31 Although
Montana’s laws may not specifically
provide for conjunctive management or
enforcement of surface and ground water,
neither do they preclude it. As ground
water development continues, surface
water holders may decide that protecting
their rights requires enforcement of their
priority dates against wells. Water rights
calls on wells have occurred in Idaho
to protect surface rights. Montana law
allows junior users to defend against calls
by seniors if the call would be futile, i.e.,
that the call would not result in water for
use by the senior right holder.32 How futile
calls would be applied to ground water
wells with a delayed impact on surface
water is not known. DNRC has written,
“Ground-water use is difficult to curtail
to avoid impacts to surface water users
during water shortages under a prior
appropriations system.”33
The complexity of ground water
development and use and its interaction
with surface water does not bode well
for the strict application of the prior
appropriation doctrine.
DNRC, “Notice of Public Hearing On Proposed
Amendment in the Matter of the Proposed
Amendment of Arm 36.12.101, Definitions and
Arm 36.12.120, Basin Closure Area Exceptions
and Compliance,” August 13, 2007, available
at http://dnrc.mt.gov/About_Us/notices/
august/36-22-12.pdf.
30
Kendy, E. and J.D. Bredehoeft, 2006, “Transient
effects of ground water pumping and surface31
10
Adverse Affects Test
The nature of the test to determine
whether an adverse affect has occurred
has become controversial. Before DNRC
issues a permit to appropriate water
or to change an existing water right, it
must find that no existing right would
be adversely affected. In his March 30,
2006 Proposal for Decision in the Matter
of Application for Beneficial Water Use
Permit No. 76N 30010429 by Thompson
River Lumber Company, a DNRC Hearing
Examiner, wrote, “Adverse affect must
be determined based on a consideration
of an applicant’s plan for the exercise of
the permit that demonstrates that the
applicant’s use of water will be controlled
so the water rights of a prior appropriator
will be satisfied.” DNRC evaluates the
adverse affect test on a calculated rather
than a measured basis, i.e., an adverse
effect need not be measurable. For
example, measuring the impact of a small
upstream diversion on a hydropower
generator’s use of water to produce
electricity may not be possible. Measuring
devices are generally accurate only to
within 5-10% of the flow. However, as long
as the hydropower water right holder can
show a calculable impact of the diversion,
an adverse effect would exist. The impact
of ground water withdrawals on surface
water is also generally calculated rather
than measured. An attempt was made
unsuccessfully in the 2007 legislature to
overturn DNRC’s calculated rather than
water irrigation returns on stream flow,” Water
Resources Research, V. 42.
Clark Fork Basin Watershed Management
Plan, Chapter 4, Legal Framework for Water
Management, page 66, September 2004.
32
DNRC unpublished paper provided to the
Water Policy Interim Committee for its January
15-16, 2008 meeting.
33
measured interpretation by defining
adverse effect quantitatively such as a
percentage reduction in water supply to a
senior user.
Domestic Water Supply
As previously noted, Article II, Section 3
of the Montana Constitution recognizes
the right to pursue “life’s basic necessities”
as one of Montanans’ inalienable rights.
Some may argue that because water is a
basic necessity, Montana water law should
give domestic use priority. All other
states subject to the prior appropriation
doctrine except Washington provide such
a priority to some extent in either their
constitution or by statute.34 In Montana,
with two exceptions, priority of water
Arizona and California apply prior appropriation
to surface water, but not ground water. Colorado
exempts small wells outside of designated ground
water basins from water rights administration
under the priority system. In designated ground
water basins, in-house uses are exempt, while
outdoor lawn watering, etc., is not. See Division of
Water Resources, Colorado Department of Natural
Resources, Guide to Colorado Well Permits, Water
Rights, and Water Administration, January, 2008,
pg. 2. Article XV, Sec. 3, Constitution of the State
of Idaho states “...priority of appropriation shall
give the better right as between those using water;
but when the waters of any natural stream are
not sufficient for the service of all those desiring
the use of the same, those using the water for
domestic purposes shall (subject to the limitations
as may be prescribed by law) have the preference
over those claiming for any other purpose...” This
provision applies to all water including ground
water. In Nevada, the only ground water rights
that are subject to curtailment are those that are
in “designated ground water basins,” and even
in those basins, domestic uses are exempt. See
Nevada Revised Statutes Sec. 534.180. With the
exception of two specially designated domestic
well management areas, domestic wells in New
Mexico are generally not subject to curtailment.
See 72-12-1.1 New Mexico Statutes Annotated
and 19.27.5.14 New Mexico Administrative Code
(adopted in 2006). Section 536.310(12) of Oregon’s
statutes provides “When proposed uses of water
34
use depends only on the date on which
water was first put to a beneficial use or
on which a permit was acquired. One
exception applies within a controlled
ground water area. In such an a area,
“...preferences can be imposed on existing
rights to withdraw ground water, with
domestic and livestock uses having first
preference.”35 The other exception is
a priority of water reservations in the
Yellowstone River basin over certain
water permits.36 Cities and towns have
the right to condemn water rights to
provide a water supply for municipal and
domestic water systems.37 Individuals
do not. Condemnation requires “just
compensation” to those whose rights are
taken.38
are in mutually exclusive conflict or when available
supplies of water are insufficient for all who
desire them, preference shall be given to human
consumption purposes over all other purposes and
for livestock consumption over any other use...”
Section 83-3-21 of the Utah Code states “...[I]n
times of scarcity, while priority of appropriation
shall give the better right as between those using
water for the same purpose, the use for domestic
purposes, without unnecessary waste, shall have
preference over use for all other purposes...”
Wyoming Statutes provide in Section 41-3-102(b)
that “Preferred water uses shall have preference
rights in the following order: (i) water for drinking
purposes for both man and beast; (ii) water for
municipal purposes...”
Doney, Ibid, page 3485-2-507(4)(c) MCA.
35
85-2-603(2) provides, “A reservation established
before an application for permit is granted is a
preferred use over the right to appropriate water
pursuant to the permit, and the permit, if granted,
must be issued subject to that preferred use.”
36
Doney, Ibid, page 33.
37
70-31-301 MCA.
38
11
Managing Montana’s Water: Challenges Facing
the Prior Appropriation Doctrine
in the 21st Century
Some western states have incorporated
the “growing communities doctrine”
into their statutes. Under this doctrine,
a city or town maintains the right to
more water than it is actually using so
that it can meet the expanding domestic
water needs of growing populations.
This doctrine appears to contradict the
prior appropriation doctrine because
municipal water rights would not be
limited to historic beneficial use and
would not be subject to abandonment for
nonuse. DNRC has written that neither
the Montana Water Use Act nor Montana
case law provides for this doctrine.39
One aspect of current Montana water
law has had a large impact on the way
people develop water for domestic use.
As previously mentioned, since passage
of the 1973 Water Use Act, certain
ground water developments have been
exempt from DNRC permit requirements.
Current law provides that:
Outside the boundaries of a controlled
ground water area, a permit is not
required before appropriating ground
water by means of a well or developed
spring with a maximum appropriation
of 35 gallons a minute (gpm) or less,
not to exceed 10 acre-feet a year
(ac-ft/yr), except that a combined
appropriation from the same source
from two or more wells or developed
springs exceeding this limitation
requires a permit.40
See the January 31, 2008 letter from DNRC
Regional Manager Bill Schultz to Stephen R.
Brown, Garlington, Lohn & Robinson.
39
85-2-306(3)(a) MCA.
40
85-2-306(3)(b) MCA
41
36.12.101(14) ARM.
42
12
To obtain a water right for a beneficial use
of ground water subject to this exemption,
the developer need only file a notice of
completion with DNRC within 60 days of
completing the well or developed spring.41
This exemption, together with
DNRC’s interpretation of “combined
appropriation,” has influenced how
subdivisions have been developed in
Montana, particularly in the fastest
growing areas in the western portion
the state. DNRC rules provide that a
combined appropriation means,
“...an appropriation of water from the
same source aquifer by two or more
ground water developments, that are
physically manifold into the same
system.”42 (Emphasis added.) This
definition and the exemption allows a
subdivision developer to avoid the time
and expense of obtaining DNRC permits
before water can be developed and used.43
Instead of providing the subdivision with
a community water supply and system,
the developer can sell lots and leave
each purchaser to dig an individual well.
Over the last five years, 80% of the lots
approved by DEQ had exempt wells rather
than community water systems.44
Between July 1, 1973 and September 1,
2007, DNRC issued 104,142 certificates
of water rights for exempt ground water
developments. Seventy-five percent of all
of the 104,142 certificates listed domestic
Water Rights in Montana, page 18 and
17.38.202(5) ARM.
43
Private communication from Curt Martin,
December 19, 2007. This information was
provided by the DEQ Subdivision Bureau to the
Water Policy Interim Committee on October 24,
2007.
44
use as a purpose of use.45 DNRC estimates
that by the end of 2007, it will have issued
about 40,000 certificates for exempt
wells using the 35 gpm/10 ac-ft/yr
definition that came into effect in 1991.
Over half of the 40,000 will have been
issued in Gallatin, Lewis and Clark,
Missoula, Ravalli, and Flathead Counties,
and over 80% will have been issued in just
14 counties, only 3 of which are outside
of western Montana.46 DNRC estimates
that if the current ground water permit
exemption remains in effect, somewhere
between 32,000 and 78,000 additional
certificates for exempt wells will be issued
by January 1, 2020.
While an individual 35 gpm/10 ac-ft/yr
ground water development may have
a negligible impact on an aquifer and
surface water connected to it, the
impact of multiple exempt wells may
be significant. As written above, before
DNRC issues a permit to appropriate
water or to change an existing water right,
it must determine whether any existing
right would be adversely affected. Existing
right holders have the opportunity to
object to a permit application to protect
their rights. However, because they
do not require DNRC permits, exempt
ground water users avoid these tests.
DNRC has noted that new exempt wells
are not subject to the provisions of HB
831 which were designed to ensure that
ground water pumping does not adversely
affect senior surface water right users.47
Senior water rights holders can make
“Wells Exempt from the Permitting Process”,
presentation by Curt Martin to the Water Policy
Interim Committee on the September 13, 2007.
45
The 14 counties are Ravalli, Flathead, Gallatin,
Lewis and Clark, Missoula, Yellowstone,
Lincoln, Madison, Park, Lake, Jefferson, Carbon,
Cascade, and Sanders.
46
call on junior exempt wells. However,
the delayed impact of ground water
withdrawals on surface water may make
calls problematic and expensive to prove
in court.
Another important source for local
domestic water supplies is irrigation
which charges local aquifers. In Montana,
two changes are occurring that may
threaten this source. First, irrigated lands
are being sold and converted to other land
uses. Second, flood irrigation has been
converted to sprinklers to better match
water application to crop needs. Both
changes reduce the flow of water to the
aquifer and may, therefore, reduce the
amount of water available for domestic
wells depending on local conditions.
The eastside benches in the Bitterroot
Valley below the Bitterroot Irrigation
District ditches, the Daly ditches, and the
Supply ditch and areas west of Billings
are examples of areas in which reductions
in irrigated agriculture are adversely
affecting domestic wells. Current law does
not provide tools for domestic ground
water users to protect against such
changes.
Domestic water use inside a house is for
the most part non-consumptive. Use
outside the home is more consumptive.
Depending on the method of waste
water treatment, individual septic system
or sewage treatment plant, in-house
domestic use may recharge the local
aquifer or be discharged to surface water.
Unpublished DNRC paper entitled “Effects
of Exempt Wells on Existing Water Rights”
provided to the Water Policy Interim Committee
at is January 15-16, 2008 meeting.
47
13
Managing Montana’s Water: Challenges Facing
the Prior Appropriation Doctrine
in the 21st Century
The demand for water for domestic use
will continue to increase. In portions of
western Montana, water use by people
for their homes, lawns, and gardens
may be the predominant new use.
Ground water permit exemptions do
not create a domestic use priority. They
are, however, providing an incentive
resulting in development of individual
wells rather than community public water
supply systems. Large scale increases
in individual wells are likely to further
complicate water allocation under the
“first-in-time, first-in-use” system.
Federal Constraints
The 1952 McCarran Amendment
subjected federal water rights to state
general water right adjudications and
administration.48 However, water use
in Montana is subject not only to state
water law, but also to federal statutes,
regulations and licenses. Several
Montana rivers host dams and reservoirs
constructed by the federal government as
well as private parties such as investorowned utilities. The operation of dams
and reservoirs and the river flows that
they support are affected by laws such
as the Endangered Species Act (ESA),
the Clean Water Act, and Flood Control
Acts, by licenses issued by the Federal
Energy Regulatory Commissions, by
federal treaties, and by contracts among
utilities.49 These constraints are outside
of the state water right framework
and, in theory, do not conflict with
water rights. However, by requiring
reservoir drawdowns, spill at dams,
66 Stat. 560, 43 U.S.C. § 666.
48
For specific examples of such constraints
applicable to the Clark Fork River Basin, see
Clark Fork Basin Watershed Management Plan,
Chapter 5, Legal and Regulatory Constraints to
Water Management, pages 68-72, September 2004.
49
14
and flow augmentation measures, these
requirements affect the physical and/
or legal availability of water. Because
of the Supremacy Clause of the United
States Constitution, conflicts between
implementation of federal statutes and
state law may be resolved in favor of
federal obligations.
The operation of Hungry Horse and
Libby dams in the Clark Fork River and
Kootenai River basins are illustrative.
Both are subject to requirements resulting
from the listing of anadromous fish
stocks downstream in the Columbia
Basin. As a result of litigation, a United
States District Judge has rejected the
2000 and 2004 biological opinions for
the Federal Columbia River Power
System written by the National Marine
Fisheries Service (NMFS) to satisfy
the legal requirements of the ESA. In
the absence of an acceptable biological
opinion, this judge has adopted specific
requirements for the operation of the
Columbia River dams, including Hungry
Horse and Libby, addressing reservoir
drawdowns, spill, and flow augmentation.
The judge has recently written that
should NMFS fail again to produce an
acceptable biological opinion, he may
issue a “...permanent injunction directing
the Federal Defendants to implement
additional spill and flow augmentation
measures, to obtain additional water from
the upper Snake and Columbia River,
or to implement reservoir drawdowns
to enhance in-river flows.”50 Because the
Libby and Hungry Horse reservoirs are
James A. Redden, United States District Judge,
District of Oregon, memorandum to Counsel
of Record in Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., CV 01-640 RE, and American
Rivers v. NOAA Fisheries, CV 04-00061 RE,
December 7, 2007.
50
two of the four largest storage reservoirs
in the Columbia River basin, these spill,
flow, and drawdown measures may limit
the water available from them for use
by Montana water users. The Montana
Department of Fish, Wildlife and Parks
has proposed a draw down limit to benefit
bull trout in Hungry Horse reservoir
that has been included in the Columbia
River Basin Fish and Wildlife Program
adopted by the Northwest Power and
Conservation Council and in the recently
released NOAA Fisheries Federal
Columbia River Power System Biological
Opinion.51 ESA and other constraints also
affect the operation of federal resources
east of the Continental Divide in the
Missouri River basin.
appropriation states, Montana does not
provide a general priority for domestic
water uses. The ground water permit
exemption and DNRC’s interpretation
of combined appropriations of ground
water has increased reliance on individual
wells for domestic water supply. The
burden measured in time and dollars
on individual water right holders to
define, enforce, protect, and/or change
water rights threatens the viability
of the rights themselves. A right that
cannot be defined, enforced, protected,
and/or changed, has little or no value.
In addition, federal laws, regulations
and licenses increasingly constrain
water management and use outside the
framework of state water law.
Summary
Montana water law is governed by the
doctrine of prior appropriation, firstin-time, first-in-use. As this paper
has shown, the lack of institutional
capabilities and resources and growing
demands for a limited resource are
eroding the effect of this doctrine. The
era in which new and expanded water
uses are provided via new surface water
rights is essentially over. The growing
development of ground water and recent
court rulings and legislation increases
both the importance and complexity
of managing ground and surface
water interactions. Unlike other prior
See 2003 Mainstem Amendments to the
Columbia River Basin Fish and Wildlife
Program, Columbia River Basin Fish and
Wildlife Program, Portland, Oregon, 2003,
available at http://www.nwcouncil.org/
library/2003/2003-11.pdf ; and the NOAA
Fisheries Federal Columbia River Power System
Biological Opinion, May 5, 2008 page 6, available
through http://www.nwr.noaa.gov/SalmonHydropower/Columbia-Snake-Basin/final-BOs.
cfm.
51
15
Clark Fork River Basin Task Force
Name
Organization
Area/Interest
Represented
Contact
Information
Marc Spratt
Flathead Conservation District
Flathead Basin above Flathead Lake
752-2025
Nate Hall
Avista
Hydropower Utilities
847-1281
Holly Franz
PPL Montana
Hydropower Utilities
442-0005
Gail Patton
Sanders County Commissioner
Basin Local Governments
827-6942
Arvid Hiller
Mountain Water Company
Municipal water companies and
Clark Fork River watershed between
confluence of the Blackfoot River and
Clark Fork River and confluence of
Clark Fork River and Flathead River
721-5570
Caryn Miske
Flathead Basin Commission
Flathead Lake
626-5789
Ted Williams
Flathead Lakers
Flathead Lake
251-4960
Steve Hughes
Joint Board of Control
Flathead River watershed below
Flathead Lake to confluence
with Clark Fork River
883-3475
Harvey Hackett
Bitter Root Water Forum
Bitterroot River watershed
777-3214
Fred Lurie
Blackfoot Challenge
Blackfoot River watershed
859-3461
Jim Dinsmore
Granite Conservation District &
Upper Clark Fork River Basin
Steering Committee
Upper Clark Fork River watershed
288-3393
Brianna Randall
Clark Fork Coalition
Conservation/environmental
organizations
542-0539
George Culpepper,
Jr.
Northwest Montana Association
of Realtors
Real estate
752-4197
Verdell Jackson,
Ex Officio
State Senator
Senate District 5
756-8344
®
The Clark Fork Task Force is the only entity with the statutory responsibility to plan for the management of the water in
the Clark Fork River basin, which encompasses almost all of Montana west of the Continental Divide, a 22,000 square
mile area with a population in excess of 320,000. The Task Force is working to secure a source of water for future basin
consumptive uses and to increase the security of existing water rights.
Montana Department of
Natural Resources and Conservation
Water Resources Division
300 copies of this document were published at a total cost of $1,698.00.
