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Montana State Capitol
Montana Water Law

River Bend PhotoWater is a precious and scarce public resource and a valuable common good. It flows across political and private boundaries and, like the air we breath, water must remain unpolluted. To retain its purity water must be protected by municipal, county, state and federal laws. The first water quality law passed in the Montana Legislature was in 1907 as a response to a typhoid epidemic on the Milk River. Sewage and waste water were being dumped into the river and typhoid bacteria spread through the water. Montana is one of the few states in the nation where rivers flow from the Continental Divide eventually into the Atlantic, Pacific and Arctic Oceans. It is one of the greatest of the state's natural resources as well as a chief attraction for visitors and tourists. The state has 51,987 miles of year-round flowing streams.

Rivers and streams evolved over eons of time, long before the coming of humans. One who acquires property along these streams does so - presumably -- with knowledge of the values and the hazards that go with it and a cognizance of the stream's natural, seasonal flow and biological life contained within the stream. Water diversion first began in Montana in 1862 when placer gold miners working within mining districts decided how the water was to be divided and the California “prior appropriations doctrine” in allocating water use was adopted. The first user on the stream possessed the earliest priority date and could use the amount of water that his right allowed. Later farmers and ranchers also adopted the miners' “prior appropriations doctrine” in their allocation of water. Then, in 1908, the court ruled that Indian tribes hold reserved water rights according to their treaty date and have priority over other water rights in the area. The same rule applies to federal government set-asides, whether for National Parks, Forests or Bureau of Land Management lands.

The 1973 Montana Legislature passed the Water Use Act which mandated a general adjudication of all existing water rights in the State. Since then a water use permit process involving 1) filing, 2) public notice, and 3) a public hearing, has replaced the “prior appropriations” method of obtaining new water rights. Water reservations can also be filed for conservation districts or by towns and cities anticipating future growth and need.

Montana State SealMontanans have a constitutional right to a clean and healthful environment. The clean flowing streams of the State belong to the people and are held in trust by the State for the health, safety and use of the people guaranteed in our Constitution. The public trust maintains that the State does not have authority to appropriate water beyond a minimum level needed to protect the aquatic life in our year-round flowing streams. State law says “The public policy is to promote conservation, development and beneficial use of the State's water resources to secure maximum economic and social prosperity for its citizens, and the water must be protected and conserved to assure adequate supplies for recreation and for wildlife and aquatic values.” Montana State law gives the perspective that the stream system and recreation are important enough to allow sufficient quantities of clean water to be left in streams.

Irrigators who rely on streams for water get it on a “first in time, first in right” principle with those holding the oldest water rights getting the first withdrawal of water. Water commissioners appointed by State Judges can require junior water right holders to stop diverting water in dry years so those with more senior rights have sufficient water. Most of Montana's water is legally controlled by ranchers and farmers on the “prior appropriations doctrine” or a “first come, first served” basis.

Three major categories:

1) Claims are rights that were active before the 1973 Legislative Water Adjudication Act
2) Permits are rights issued since 1973
3) Reservations reserve water for future uses.

Montana Constitution 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 appropriations for beneficial uses as provided by law.”

“It is the policy of this State to provide for the wise utilization, development and conservation of the waters of the State for the maximum benefit of its people with the least possible degradation of the natural aquatic ecosystems.”

“The water resources of the State must be protected and conserved to assure adequate supplies for public recreational purposes and for the conservation of wildlife and aquatic life.” ~

Gallatin River at Central Park

Gallatin River at Central Park. Looking down stream from Gallatin Bridge. Very little flow in river is apparent here.

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