It’s a new year, but water remains one of the most urgent issues facing Montana. Water access is likely to define future development, as with the former ASARCO rights in East Helena and the exempt well troubles in Red Fox Meadows and other subdivisions.
In December, retired water rights attorney Stan Bradshaw sat down with The Monitor to discuss all this and much more. A former attorney for Montana’s Fish, Wildlife and Parks, and for Trout Unlimited, Bradshaw literally wrote the “Buyer’s Guide to Montana’s Water Rights.” He also successfully argued before the state’s supreme court that the public had the right to use water for recreation, regardless of who owned the streambed, crafted Montana’s Stream Access Law and helped reform in-stream flow legislation.
In part one of our interview, Bradshaw laid out some of the essential definitions and key concerns in today’s water discussion. In part two he dives even deeper into the complex and contradictory state of water rights in Montana, explaining water as a dwindling resource, the drawn out process of water adjudication, and what the future may look like.
Monitor: Could you tell us about water rights adjudication?
SB: Prior to 1973, resolution of water rights claims happened haphazardly, when parties on a given stream or drainage went to court to resolve those disputes. When a court rendered judgment in those cases, it would often appoint a water commissioner to physically go to the ditches in dispute and measure the water that claimants were actually diverting. But such court decrees represent a miniscule part of the water rights claimed within the state. So as a practical matter, the totality of water use in Montana was largely unknown.
Hoping to get a handle on how water is claimed and used within the state, the 1973 legislature enacted two measures; one that required any new proposed uses — with some exceptions— to apply to the state DNRC for approval, ensuring it would not harm any existing uses; and second, that the state embark on a statewide adjudication to quantify existing claims.
The adjudication effort would require every water right claimant in state — including state agencies — to file water right claims with Montana DNRC. The process works as follows: First, the claim is filed. Second, DNRC examines the claim. Third, DNRC issues a summary report and forwards it to the Water Court. Fourth, the Water Court issues a preliminary decree. Fifth, claimants file objections to the preliminary decree, which can lead to full-blown evidentiary hearings. And sixth, after all objections within a basin are resolved, the court issues a final decree. Pretty straight-forward, right?
Monitor: Right, so why is a project that began in the 1970s still dragging on?
SB: The state has been divided into five divisions, which are then subdivided by basins. For instance, The Upper Missouri Division includes the Boulder River basin, which is basin 41E. For each basin, DNRC’s task included the examination of each claim to see that the required information was included on the claim form, and then follow up with the claimant to complete the information. Needless to say, this was a highly work-intensive process. Once DNRC has completed its effort (which is still ongoing in some basins), the water court issues a temporary decree, which triggers the right for claimants to challenge water rights claims of others. The result is that, 40-plus years on in the process, while there have been a few final decrees issued, there are still a substantial number of basins still to be finally decreed. In fact, in the upper Missouri Basin the Water Court has yet to issue a final decree.
Technically, adjudication won’t conclude until the last final decree is issued and all appeals are resolved. As to when that will be, is anybody’s guess. A Water Policy Interim Committee report for the 2017 legislature estimated that all final decrees would be issued by 2028. Given where things are as of January 2026, that seems pretty optimistic to me. For a long time, I held out the hope that it would happen in my lifetime. Now, at 76, I am not so sure that will happen.
Monitor: Could the adjudication play into the state’s decision with the former ASARCO water rights in East Helena?
SB: As a practical matter, given that the Montana Environmental Custodial Trust has proposed to transfer (and may already have transferred) the rights that it offered to the City of East Helena to Montana Fish, Wildlife, and Parks, the status of those rights as affected by the adjudication may be moot. Water rights can be transferred and their places and purposes of use can be changed while the adjudication is ongoing. Regardless of who owns those rights, the adjudication will, at least theoretically, determine the amount of water represented by each water right claim.
If East Helena had accepted the State’s offer for the industrial-use water, the city would have had to apply to DNRC to seek a change in purpose of use and prove the amount claimed in the adjudication was in fact accurate, and show that the change in purpose, place of use, etc., would not adversely affect other water rights. All of that could be done before the adjudication is complete.
Monitor: OK, and if someone has a right to water connected to the Gallatin River, what happens to that claim when the water is gone?
SB: One of the things that would happen is adjudication would provide a roadmap for water commissioners in each basin, for ditch riders to review. But again, other states have this in spades. We don’t. I think the legislature passed a bill that says if you have a preliminary decree in your basin, you can get a water commissioner to regulate water use in that basin with this temporary decree. It’s not final, and some things in that decree may change, but it provides a way to address that priority.
But even if the system goes into place and we have water commissioners on critical streams, and the Gallatin is one of those, if things continue the way they are in terms of snowpack and climate change, what I can imagine happening is that you’re going to see the water go away from the most junior of those rights. They’re not going to have anything they can use.
As it gets worse, senior rights holders will begin to experience the same thing. And in part, that’s what drove a lot of these basin closures. It was to say, let’s not keep adding to the pain here. But there’s not a happy answer here. The likelihood is that even if we do everything we can within the constraints of the law to make this work – everybody gets their monitoring devices and we have water commissioners who know what they’re doing – even with all of that there’s going to be some people who drop off this cliff because they’re junior.
Monitor: And is it mostly surface water, or groundwater, these people have rights to?
SB: It’s connected. An awful lot of the early subdivision stuff around here, those are all wells, city or municipal groundwater. Here [in Helena] it’s a combination of 10 Mile Creek, some groundwater coming up, Orofino Gulch, and the Missouri. So a lot of it’s surface water. Water folks here will tell you the best water we have is 10 Mile Creek. But it’s not enough. In the summer months, they have to switch to Missouri River water. The cost increase of delivering that water to the households is enormous.
In Gallatin County municipalities, their surface water is rapidly going towards failure, and they’ve launched residential water conservation efforts. We’ve tried to do that here, but it’s not been as successful. And one step they’re talking about now is a pipeline from Canyon Ferry Reservoir to Bozeman, which would be enormously expensive.
Monitor: Looking forward, how do you see Montana water law evolving? What reforms might make the state’s water regulations more transparent or successful?
SB: One key is getting Montana’s water administration to the point where we have a handle on existing uses. That adjudication process, for all my frustration with it, is still one of those pieces of the evolution that’s taking us from here to there.
For places like Red Fox subdivision this probably isn’t feeling like an evolution right now. But we are seeing growing awareness that we can’t just keep doing this accumulation of groundwater wells in developments that are fairly intensive users. At the same time, sometimes solutions come out of conflict. The Crazy Mountain Resorts and Red Foxes –they could drive some of the evolution. Hopefully there’s a critical mass by the next legislative session.
It’s about recognizing that if you’re going to build something that invites people to come, you need to at least on paper look at it on the front end and establish a limit. In the Broadwater case [Horse Creek Hills, which spurred the February 2024 decision against exempt wells], they didn’t look at it at the front end. They just accepted the development.
We need to have a culture of review when it comes to the water, the DNRC piece of it, and the county level, reviewing these developments that are going to increase demand. Right now, we don’t have that culture and it doesn’t work very well. But I think we’ve at least seen baby steps towards that, such as in the Broadwater case, and maybe we’ll see more as we go down the road.
The goal is to get to a point in our culture where we say, “Okay, you’re going to put in a development here, a Horse Creek Hills or Red Fox, that’s fine. But we’ve looked at it on the front end and you don’t get to have four acres of lawn. You don’t get to have this or that.” We can come up with a laundry list of water conservation measures that must happen in those developments. And if they don’t, you don’t get approval.
A lot of dealing with existing challenges and growth is going to be changing the culture to making clear that the nice bluegrass lawn and 20-minute showers and other craziness we have now needs to go away. And some of that will be by acculturation. DNRC has an arm, the Drought Planning Office, and a lot of their work is educational. They go into basins and work to get people to do things that are more drought-resistant. I know some people there, and they’re doing good work, but I don’t know if they are empowered enough to expand the reach of that.
We need to find a way to educate a decent chunk of our population, to bring their hearts and minds to the idea that we have to change behaviors so we’re not just using up our water resources. That would go along with a more vigilant review and regulatory process, plus the DNRC could change new water rights and have, parallel to that, a good outreach and educational program for people who might be contemplating doing it and people ready to be more sustainable. The Southwest US has done more of this sort of thing than any place else, some successfully.
Monitor: And what steps might ranchers take to be more water-efficient?
SB: One of the things they can do is have on their diversion some form of measuring device. If it’s in a ditch, it’ll be what they call a flume. Flumes have to be placed necessarily precisely to get the water flow. That’s something that is increasingly getting done. Measuring devices allow for diversions but don’t block off the entire stream, and that’s a good thing.
As we get further down the road on this, water disputes are going to crop up more. The whole thing is going to get more contentious, so having accurate measurement of your water is going to be really important. In terms of things you can do to be more efficient in your use of water, you can line your ditch. That’s not a cheap option. But it’s something that some places have done so they’re not losing a lot of water out of the bottom of the ditch.
Some of the other things that come up have to do more with how they apply their water and where they apply their water. Scrapers do that very efficiently, but they’re not necessarily the least consumptive thing that you can do. The classic example is, I can grow one pound of hay per acre as quickly as three tons of hay per acre. But that’s three times as much water going to the plants, so the whole issue of what makes us more efficient is fraught with its own complications.
For a lot of the full-time ditches, reducing the flow was always very cumbersome – the effort it takes to adjust that. Now some of the better funded ranches have started turning to remote control, like one of my old leases in the Blackfoot. They can remotely get a reading and control the diversion to reduce flows. As technology advances, there’s going to be an awful lot of challenges for modifying these things.
Monitor: That’s often the problem with conservation: it’s great once you’ve done it, and usually saves money in the long run, but it’s very expensive to get there.
SB: Other states are way out in front on this. They have more stuff going on in terms of restoration work and flow and leadership among the agricultural community that has led the change. It’s been interesting to see that play out, because it’s been very clear to me that a lot of the older hands in Montana don’t have the resources. But if you can work with them, not only will they work with you, but they’ll become your advocates.
Whereas, I did some projects with wealthier ranchers, and when they didn’t quite get what they thought they wanted, all of a sudden I was Satan’s right hand man. That’s given me a lot of heartburn, because I see it happening more and more all over the state, like the golf course in the Crazies (to which Boulder sold bulk water).
Monitor: OK, so what keeps you up at night about the current system?
SB: The possibility that we’ve passed some tipping point and that even everything we can do will not be enough to fix this.
In Rock Creek, where I worked years ago, the water always ran across an open flat all the way into the fall. But in the last two years, there’s nothing. And I don’t know if there’s been any major change in water use out there. What I do know is that the snowpack has been less. It’s gone away quickly. And it’s a system that is very much water table-driven.
All these pieces are dependent upon snowpack and water table and everything else. Right now, it’s feeling like it’s not enough, and I don’t know what enough is. So that’s what keeps me up at night, watching stuff that we worked on with really good people doing some amazing work, it’s like spitting into the wind.
This interview has been edited and condensed for clarity and flow.