Water Rights: A Critical Montana Issue (Part 3 of 4)
Author: Eliza DuBose, Reporter for The Monitor; Boulder, Montana
Water Rights: A Critical Montana Issue (Part 3 of 4)
Eliza DuBose
Reporter for The Monitor; Boulder, Montana
This article was originally published in the inaugural East Helena Monitor December 17, 2025. It is reprinted with permission of The Monitor in Boulder, Montana.
Water has been all over the headlines lately, particularly 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 the 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.
This is part 3 of 4
------------------------------------------------------------------------------------------------------------------------------
Monitor: Could you tell us about water rights adjudication?
SB: Prior to 1973, the 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 minuscule 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 the 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 straightforward, 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 water rights 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 that 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.
Article Images
Click on Image Thumbnail(s) to view fullsize image
PhotoCredit: The Boulder Monitor
Image 1 Caption: Eliza DuBose, Boulder Monitor Reporter
