Making claims for water rights in Montana can be a convoluted process. As a general principle, all water belongs to the state. This ownership, however, exists on behalf of all state citizens. The concept of state ownership is part of Montana’s Constitution and state laws. (Montana Constitution, Article IX, section 3(3), and Montana Code Annotated, Section 85-2-422.) Because Montana waters belong to the state, water rights holders do not ownthe water itself. Instead, they possess a right to usethe water, within state guidelines. State law defines a “water right” as the “right to use water.”
Historically, water rights in Montana are based on the prior appropriation doctrine, that is, first in time is first in right. A person’s right to use a specific quantity of water depends on when the use of water began. The first person to use water from a source established the first right; the second person could establish a right to the leftover water, and so on. During dry years, the person with the first right has the first chance to use the available water to fulfill that right. The holder of the second right has the next chance.
Over the years, statutory and administrative steps have been developed to assist one in either obtaining a new water right or defending their existing water right. Water rights that were established prior to July 1, 1973 are administered by the Adjudication Bureau. That is part of the Department of Natural Resources and Conservation. Briefly, its role is to assist the Montana Water Court in the adjudication of all claims to pre July 1, 1973 water rights.
The New Appropriations Program administers new claims for water rights (those established after July 1, 1973) and changes in use or ownership. In those instances, the applicant must work with the Department of Natural Resources and Conservation (DNRC) to submit information that will allow the agency to examine the request for a new water use. The information necessary can be substantial, such as well logs, engineering reports as to the impact of the new use on existing water resources and other uses, or hydrology reports such as the existence of underground aquifers that will be impacted by the new use. Required public notice may result in objections to the proposed new use and result in contested hearings before a department Claims Adjudicator.
Attorneys guide their clients through the labyrinth of the administrative rules and regulations. If disputes arise as to new claims, such as existing users objecting to the new claim, there are a multitude of methods available to address the objections. Therese Fox Hash is familiar with the various methods from the position of the applicant and the objector.