Water has been all over the headlines lately, particular in The Monitor.
From Boulder selling bulk water to a posh ranch-resort in the Crazy Mountains to an East Helena subdivision that needs to find a new water source, and from the state refusing to grant East Helena water rights to the former ASARCO smelter lands to Clancy struggling to secure a reliable water source from more than a decade, there’s a great deal of ground to cover.
Thankfully, retired water rights attorney Stan Bradshaw – who literally wrote the “Buyer’s Guide to Montana’s Water Rights” – recently found the time to sit down with me to touch on all these topics as well as the history of water rights and how they’re shaped today.
We chatted for so long, in fact, that the interview had to be broken into multiple articles. Keep your eyes peeled for Part Two next month.
The Monitor: What concepts do you think are the most important for people to understand water rights in Montana?
Stan Bradshaw: The most important one that a lot of people I don’t think understand, is water right is a property right. Not only is it a property right, our Supreme Court has declared it a real property right. So it’s like an attribute of real estate now, that’s not understood by most folks.
The follow-up on that is that a water right doesn’t endow ownership in the water. Under the terms of the state Constitution, Montana owns all the state’s water—groundwater, surface, and atmospheric—in a trust for the use of the people. So, a water right is a right to use water. You’ll hear the axiom “use it or lose it”, which underscores the idea that a right to use water can be lost through non-use, or what’s called abandonment.
If you have a water right and fail to use it for 10 years, and you express, by your actions or words, some intention to no longer use it, you lose that water right. So, it’s not just non-use. It’s non-use with some evidence of intention to not use it. And we actually have some old cases in our judicial history where the water right has been not used for at least a decade plus and the Supreme Court said, well, that doesn’t necessarily mean they didn’t intend to use it.
Monitor: OK, tell me a bit more about that.
SB: Let’s say we have a water right established in 1890 that has been actively used on that property ever since. If the owner sells that land with no mention of the water rights, the ownership of the water right travels with land on that sale. But it is possible to sever the water right from the sale by specifically withholding it within the terms of the conveyance.
Monitor: Is that a reflection of Montana’s historical understanding and handling of water?
SB: Yeah, I think a lot of it is grounded in the 1860s, when folks were taking a lot of water from streams in the course of mining, they’d get in fights over who got the water. It was eventually resolved by establishing a system of first come, first serve, as the bottom. And over time, as we started putting water to new uses—irrigation, domestic uses, other industrial uses–more uses spread over different landscapes. Then, “first in time, first in right” became the standard. This means the date of your first use is the priority date of your right. In water-short years, the rights that date back the farthest are prioritized and more valuable.
Monitor: It does seem terribly complex. Is there a point at which it might be better to just start over on water law and rewrite it?
SB: If you just say we’re going to lay a whole new system on this, what you’ll have then are people with a water right saying, ‘Wait a minute, we can’t do this without due process. This is a piece of our property. You can’t just do that without compensating me.’ I’ve thought about this a lot, and yeah, it has a nice ring to it – we can just go in and start over.
But it would be really, really difficult, and very contentious. People base their lives on this. It’s a weird system, but it’s what we have. If I’d been around in 1860 I would have set it up differently. But now we have 150 years of this. There’s a lot of stuff nobody could have known at the time when they were making these laws. But now that we do know, we have to make laws that make sense.
Monitor: What are some of the biggest misconceptions about water rights?
SB: Some people who buy irrigated land with a water right served by a ditch, they don’t want to irrigate it but they want to keep using the ditch as a nice water feature. They may have been told that they can protect their water right by simply running it down the ditch. Well, the short story is, if you’re irrigating the bottom of the ditch, that’s not a beneficial use. In an overtaxed watershed, this can create a lot of ill will. So, the idea that you have to apply the right through a specific beneficial use at a specifically described place of use is really important.
Monitor: OK. And what are the parameters of actual beneficial use?
SB: I’m not sure that there’s a totally inclusive list, but all the usual suspects: domestic use, municipal use, agricultural use, industrial use, and lots of different iterations of all of those. Prior to 1973 the way people acquired water rights was they went out and put it to use. They’d dig a ditch or whatever, drill a well and put the water to use. And maybe they’d file a piece of paper with the county clerk & recorder’s office that laid claim to water.
But they didn’t have to seek any prior government approval. But the concept of priorities still existed – first come, first serve. So, if somebody felt their right to use water had been harmed by a new use, they could sue and go to court. But the remedy was all reactive. In essence, “I’ll do my thing, and if you don’t like it, you take me to court.” Under that system, prior to 1973 there were actually court cases which determined the rights of all the claimants on a given stream. Once a court decree was entered, the claimants on stream could hire a water commissioner (aka “ditch rider”) to go out and enforce the water rights according to their priority in time, and actually shut headgates as necessary to enforce the decree.
But in 1973 the legislature said, hereafter, if you want a new water right, you come to DNRC and apply for a permit. Now if you want to change your water right or create a new water right, you have to apply for approval. When DNRC receives an application for new use or a change in use, it requires the applicant to show that this new water use or change in use is not going to adversely affect any other water rights. So, there is some protection in the process, for existing water rights, at least on paper. In short, the burden is now all on the applicant to show they aren’t going to harm any existing water right, which is dramatically different from pre-1973 when the burden was on existing water rights claimants to show harm.
Monitor: I’ve heard a lot in my reporting about closed basins. What is that exactly?
SB: Starting in the 1960s, Montana law provided that if any groundwater area showed signs of depletion or degradation, the department, on petition from local governmental entities or people with groundwater rights, could form a controlled groundwater area and restrict new depletions.
Then in the early 90s, after several seriously dry years, there was a growing conviction among agricultural water rights holders, municipalities, and instream flow advocates in many basins that, between the sheer number of existing claims and recurring instances of drought, available water supplies were being seriously stressed. So, starting in 1991 and continuing in 1993, the legislature passed a series of statutes that effectively closed specific basins—including the upper Missouri Basin above Morony dam—to most new consumptive-use appropriations.
Ironically, the 1993 legislature also passed a statute specifically closing the Jefferson and Madison River basins to new appropriations, even though they are part of the upper Missouri River Basin. The basin closure statutes have changed the approach to new water uses in the basins where they are in effect.
Now, except during spring runoff – when the available water often exceeds demand – instead of going out and seeking a new water right, anybody seeking water must change the use of an existing water right.
Monitor: Like in East Helena’s Red Fox Meadows subdivision, they’re potentially trying to figure out how to find and transfer water rights.
SB: When I read about that I thought this is just a quagmire. Unfortunately, it’s one that the DNRC aided in because they came up with really expansive permissions for doing a whole bunch of stuff, and Red Fox Meadows is one of those. DNRC, for a long time, turned a blind eye to how even smaller irrigation wells collectively do this. And it’s not necessarily the fault of the people. They’re the ones stuck with the burden, right? The problem is the whole idea of the closed basins, of having one exempt well. But if you go in and you have one exempt, it’s really 10 or 50 or however many it is.
The law says, if you do a whole bunch of those and they’re the same water table, then you can’t just pretend each one is separate. If they’re all brought from the same aquifer and it’s the same development – and that’s part of what Red Fox is running into here right now – then they shouldn’t be treated as separate. You should have to basically go through the process of explaining what the impacts are going to be, and maybe even having to put in a system that’s going to serve all those people. From a developer standpoint, that’s really expensive, but it is probably the more appropriate response.
We’ve looked at the direct and immediate connections of groundwater to surface water, and that’s what they’re running up against. That’s why the whole idea of exempt wells has come under the microscope, because there are places where they can show an impact, typically in smaller drainages. Would you see the impact of Red Fox Meadows on the Missouri? No, but you might see it on tributary streams.
The thing is, we behaved for the first 130 years of our existence as a state where water was an unlimited resource. And the relatively recent imposition of things like closed basins, controlled groundwater areas and required permits for changes to water rights – these are increasingly acknowledging that we don’t have unlimited supply. And I think, to be fair, we’re still struggling institutionally. We’re just struggling with how to make that work.
Monitor: I see. But how would the DNRC or users know their use is impacting other users?
SB: When they review a well for its impact on surface water, there’s two ways that it can affect surface water. One is that when you drill the well, you create what’s called a cone of depression. As you start cutting into that well, it draws water out of the table around the well, and that cone could make a direct impact on a stream. If the cone of depression and stream are intersecting it’s taking water out of this water table that eventually would have made it down to this tree, for instance. That’s a direct impact. That’s a threat. And the statute reads that if there’s a direct or immediate path, then you either can’t do it or you have to make some sort of adjustment.
As to impacts on other groundwater users, it’s often a matter of measuring the existing water table and projecting supply and depletions. This sort of thing provides livelihoods for a lot of consultants.
Monitor: Let’s get into historic use. Please explain how it’s important.
SB: Historic use is most often the focus of proposed changes to water rights. If we’re going to change a water right to accommodate new uses, we have to determine how that water right has been used—how much water is diverted and how much consumed (lost to evaporation and transpiration), and the patterns and timings.
If a proposed change would harm the use of an existing water right, DNRC may deny the application. In effect, the review of a proposed new use or change of an existing use is largely about protecting existing historic uses.
Monitor: And that’s why historic use is so important.
SB: Yeah, and a lot of the due diligence has to be not simply looking at that abstract, but going out on the ground and looking to see what went on. It’s looking at local records, talking to landowners who might still be alive. I’ve actually gotten affidavits from landowners to say, X, Y and Z happened on these acres. And so if you can really dive into the weeds on it, and if it’s a serious enough issue, that’s what you can do. When buying a piece of property and reactivating a right, you really want to be as solid as you can, maybe go back prior to 1973. And if it doesn’t have a pre-1973 date, it’s not much of a water right.
This interview has been edited and condensed for clarity and flow.