Reading Montana Water Right Abstracts
In Montana, like many places in the American West, water is extremely valuable. Whether used for irrigation, stock water, recreation, fish and wildlife, domestic, industrial, municipal or power production, water rights are a tremendous asset. Both buyers and sellers should understand how water rights are prioritized, used, changed, and transferred. If you want to first familiarize yourself with the basics, check out our Montana Water Rights blog post.
In this article, we dig deeper into water rights and examine an actual water right abstract (although we’ve changed certain details for privacy reasons) from the Montana Department of Natural Resources and Conservation (DNRC) and review what information is provided within the abstract. If you are buying or selling property and conveying water rights, Western Ranch Brokers always recommends that you consult a qualified broker or consultant who has experience assessing the value of water rights and understands the associated legal requirements.
Where can I find a water right abstract?
If you believe there are water rights associated with a particular property, you can visit the DNRC’s Water Right Query website and search by owner name, geocode or water right number. Property geocodes (a 17 digit number) are often found on property tax records or can be searched on the Montana Cadastral website by map or parcel data. There may be more than one water right associated with a property, and each right will have its own abstract.
The DNRC Water Right Query provides information on the water right number and the status and details of each right. A map of the property associated with the water right, a copy of the general abstract and images of the complete statements of claim and other pertinent documents are available on the website as well.
How to Read a Water Right Abstract
The general abstract provided by the DNRC includes detailed information about the water right, its source and location, use and ownership. Be advised that sometimes water right abstracts assert only the claims of the previous right holder and may not be an accurate representation of actual water rights.
The image below is that of an active water right abstract and can be referred to as we explain the information included in the general abstract.
Water Right Number/Owners:
This identifies the water right number and the name and address of the legal owner.
Water Right Type:
Claims for existing water rights (established prior to 1973) are known as statements of claim and are typically the most senior of water right types. Other water right types include exemptions to the 1973 water adjudication and new appropriations (after 1973) that require a permit or groundwater certificate from the DNRC before they can be put to use. There are also special water right types for the federal government, Indian reservations and for future water use for municipalities and conservation districts.
Priority Date/Enforceable Priority Date:
The priority date refers to the date that beneficial use was first established, important for Montana’s “first in time, first in right” approach to prioritizing water rights. If the water right is a new appropriation, meaning the right has been changed from its original use or point of diversion, the priority date is recorded as the date that the application was received by the DNRC.
The enforceable priority date is often the same as the priority date, meaning the water right originated prior to July 1, 1973 and a statement of claim was filed to document the right during the allowable period (1979-1982 and 2015-2019) established by the Montana Water Use Act. If the claim was filed late, the enforceable priority date is recorded as June 30, 1973 or later. The enforceable priority date may be used to determine which water rights take priority during a dispute.
Type of Historical Right:
For statements of claim on existing water rights, the type of right was either established by beneficial use of the water or by filing a right with the county clerk and recorder’s office prior to 1973.
The purpose, or beneficial use, is designated here. Any changes to the use must be approved by the DNRC. Beneficial uses for water include but are not limited to irrigation, stock water, recreation, fish and wildlife, domestic, industrial, municipal and power.
Flow Rate and Volume:
This information refers to the maximum rate (gallons per minute or cubic feet per second) and volume that the water included in the right can be diverted from the source during the period of use. If these metrics are not specified, the maximum flow and volume are usually defined by the beneficial use and the amount that was historically used.
As in the water right example included above, if the purpose or use is irrigation the climatic area is referenced. The irrigation climatic areas are defined by the 1986 Irrigation Climatic Areas of Montana map and indicate the amount of irrigation use in a geographic area, ranging from high consumptive use to low consumptive use.
Maximum acres refers to the maximum amount of acreage that the water can be used on and is further defined in the Place of Use section.
Source Name and Type:
This section lists the name of the source of the water included in the right and the type of source, either surface or groundwater. Surface water sources include streams, rivers, lakes and undeveloped springs and groundwater sources are either wells or developed springs.
Point of Diversion and Means of Diversion:
The point of diversion is where the water is first diverted from the source, such as a dam or headgate for surface water, a reach in a stream, or a well for groundwater. The place can be identified by legal description including township, range, section/quarter section, and county.
The period of diversion identifies the time of year the water can be diverted from the source and the means of diversion are the method by which the water is diverted. Essentially where, when and how the water can be diverted from the source.
Period and Place of Use:
The period of use defines what time of year the water in the right can be used, whereas the place of use contains the legal description of the land (township, range, section/quarter section, county, number of acres) where the water can be put to the beneficial use. The period of use may differ from the period of diversion if the water is stored, meaning it can be diverted at one time of year and used during another.
Comments in the remarks section vary widely, and may include information on ownership transfers, pending actions, supplemental or associated water rights, corrections and more.
Reviewing a water right abstract is just the first step in evaluating the water rights associated with a property. Western Ranch Brokers recommends verifying the information contained in the abstract and consulting a seasoned professional before entering in a real estate transaction that includes water rights. Another helpful resource is the Buyers Guide to Water Rights published by Stan Bradshaw for the Montana Water Project. The guide contains a helpful due diligence checklist for buyers, but also strongly recommends seeking counsel with someone experienced in Montana water law.
Need more information or don’t know where to start when it comes to water rights? Contact Caleb Campbell, Western Ranch Brokers expert on water rights, to get the conversation started.