Water Rights: A Critical Montana Issue (Part 2)
Author: Eliza DuBose, Reporter for The Monitor; Boulder, Montana
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 2 of 4
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.
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PhotoCredit: The Boulder Monitor
Image 1 Caption: Eliza DuBose, Boulder Monitor Reporter
