In spite of cooler fall weather, Montana’s drought continue to be severe. More than two-thirds of the state is considered to be in “extreme” or “exceptional” drought status.

But does a drought mean water rights holders increasingly seek enforcement and protection of their rights? Data and observations are mixed.

As a prior appropriation state, Montanans have a right to use water based primarily on when that water was first put to beneficial use. As the saying goes, “first in time, first in right.” (See the Water Policy Interim Committee’s report, “Prospects for a Future Water Court.”)

For much of the state, many of the oldest water rights date back to the pioneer or settlement eras of the late 1800s. (All of these rights are trumped by any “time immemorial” water rights held by Indian tribes.)

Water rights holders can petition a district court enforce their right through the appointment of a “water commissioner.” The commissioner ensures that all users are diverting their legal limit of water; if the source gets low, then junior users may get a reduced diversion or even no water.

Montana water users have about 360,000 claims to water within the state’s 85 main hydrologic basins. Of these, only a few thousand rights are part of “enforcement projects” or “water distribution projects,” where users have petitioned for and received a water commissioner to manage water diversions.

(DNRC)

The number of enforcement projects has risen lately, perhaps as a reaction to increased water scarcity (see graphic). But longtime observers say that during drought or fluvial (water-rich) periods, users don’t seek enforcement because they know there isn’t much water or there’s too much.

“The largest amount of enforcement activity occurs in between those two extremes,” Water Court Judge Russ McElyea told the WPIC Oct. 13.

According to staff at the Department of Natural Resources and Conservation, population growth, property transfers, and increased diversions of water, and subdividing water rights is more likely to prompt the formation of new enforcement projects.