THE 1973 MONTANA 

 WATER USE ACT 



By: Grant Buswell 



The passage of the 1973 Montana 

 Water Use Act (Senate Bill 444) by the 

 43rcl Legislative Assembly effected 

 sweeping changes in Montana's water 

 right laws. On July 1, 1973 the new 

 law became effective and the Department 

 of Natural Resources and Conservation 

 was charged with administrative respon- 

 sibility. 



Anyone proposing to appropriate 

 waters of the State of Montana arter 

 July 1, 1973, must apply for a benefi- 

 cial water use permit on Form No. 600. 

 Failure to do so is in violation of 

 the new Act. The only exception to 

 this provision is the appropriation of 

 ground water for domestic, agricultural 

 or livestock purposes by means of a 

 developed well or spring with a maximum 

 yield of less than 100 gallons per 

 minute and located outside the boun- 

 daries of an established controlled 

 ground-water area. Under this only 

 exception. Form No. 602 must be filed 

 with the Department within sixty (60) 

 days after the development is completed. 



The newly created Water Rights 

 Bureau of the Department has been re- 

 ceiving applications for permits to 

 appropriate water as required by the 

 Act. The proposed new water uses have 

 included domestic, stockwater, irriga- 

 tion, recreation, fish propagation, in- 

 dustrial, commercial and municipal 

 purposes. 



The Department has become concerned 

 about non-compliance with certain pro- 

 visions of the new Act. Among these is 

 the lack of filings of Notices of Com- 

 pletion of Water Development (Form No. 

 602) by the water well owners as pro- 

 vided in Section 16(4) of the Act. It 

 is imperative that Form No. 602 be filed 

 before the Department can issue a 

 Certificate of Water Right (Form No. 

 604), which is the formal recognition 

 of the v;ater right. 



As a result of the large amount of 

 correspondence received by the Depart- 

 ment, it is apparent that a great deal 

 of confusion still exists regarding 

 the distinction between "existing 

 water rights" and "new water rights". 

 An "existing water right" is defined 



in the Act as a right to the use of 

 water which would be protected under the 

 law as it existed prior to July 1, 1973. 

 "New water rights" are those rights ac- 

 quired according to the provioions of 

 the new Act on any new water aevelopment 

 after July 1 , 1973. If you should have 

 a question on existing or new water 

 rights, please contact the Department 

 for assistance. 



It is among the primary purposes of 

 the new Act to "recognize and confirm" 

 all "existing water rights", and a per- 

 son who has such rights need not be con- 

 cerned about losing them as long as some 

 proof is available. Many individuals 

 are still attempting to refile or de- 

 clare their "existing water rights", 

 which is completely premature and un- 

 necessary at this time, even if the 

 water use was never previously filed 

 according to the water laws that existed 

 prior to July 1, 1973. These "existing 

 water rights" may have been documented 

 by recorded evidence or substantiated 

 only by beneficial use. If there is no 

 recorded evidence of an "existing water 

 right", commonly called a "use" right, 

 the holder of such right will be re- 

 quired as will other water right holders 

 to produce such evidence at the time the 

 area or source is selected by the Depart- 

 ment for determination of "existing 

 water rights" as required by the new Act. 

 However, it would be beneficial for the 

 claimant of a "use" right to commence 

 gathering evidence of his water right 

 at this time. Such information as the 

 date that the appropriation was initially 

 placed to a beneficial use, the purpose 

 of the use, the amount beneficially used, 

 the point of diversion and place of use 

 described by legal land description, the 

 source or stream from which the water 

 was diverted, and any other related in- 

 formation will be required to be submit- 

 ted by the appropriator when notified by 

 the Department to do so. Sworn affida- 

 vits by witnesses who are aware of your 

 water development will be of consider- 

 able value in dete'^mining a "use" right. 



The Department has selected, but not 

 formally announced the Powder River 

 drainage basin as the first priority 

 area for determination of "existing 

 water rights." 



