Water
is a precious and scarce public resource and a valuable common
good. It flows across political and private boundaries and, like
the air we breath, water must remain unpolluted. To retain its
purity water must be protected by municipal, county, state and
federal laws. The first water quality law passed in the Montana
Legislature was in 1907 as a response to a typhoid epidemic on
the Milk River. Sewage and waste water were being dumped into
the river and typhoid bacteria spread through the water. Montana
is one of the few states in the nation where rivers flow from
the Continental Divide eventually into the Atlantic, Pacific
and Arctic Oceans. It is one of the greatest of the state's natural
resources as well as a chief attraction for visitors and tourists.
The state has 51,987 miles of year-round flowing streams.
Rivers
and streams evolved over eons of time, long before the coming of
humans. One who acquires property along these streams does so -
presumably -- with knowledge of the values and the hazards that
go with it and a cognizance of the stream's natural, seasonal flow
and biological life contained within the stream. Water diversion
first began in Montana in 1862 when placer gold miners working
within mining districts decided how the water was to be divided
and the California “prior appropriations doctrine” in
allocating water use was adopted. The first user on the stream
possessed the earliest priority date and could use the amount of
water that his right allowed. Later farmers and ranchers also adopted
the miners' “prior appropriations doctrine” in their
allocation of water. Then, in 1908, the court ruled that Indian
tribes hold reserved water rights according to their treaty date
and have priority over other water rights in the area. The same
rule applies to federal government set-asides, whether for National
Parks, Forests or Bureau of Land Management lands.
The
1973 Montana Legislature passed the Water Use Act which mandated
a general adjudication of all existing water rights in the State.
Since then a water use permit process involving 1) filing, 2) public
notice, and 3) a public hearing, has replaced the “prior appropriations” method
of obtaining new water rights. Water reservations can also be filed
for conservation districts or by towns and cities anticipating
future growth and need.
Montanans
have a constitutional right to a clean and healthful environment.
The clean flowing streams of the State belong to the people and
are held in trust by the State for the health, safety and use of
the people guaranteed in our Constitution. The public trust maintains
that the State does not have authority to appropriate water beyond
a minimum level needed to protect the aquatic life in our year-round
flowing streams. State law says “The public policy is to promote
conservation, development and beneficial use of the State's water
resources to secure maximum economic and social prosperity for
its citizens, and the water must be protected and conserved to
assure adequate supplies for recreation and for wildlife and aquatic
values.” Montana State law gives the perspective that the
stream system and recreation are important enough to allow sufficient
quantities of clean water to be left in streams.
Irrigators
who rely on streams for water get it on a “first in time,
first in right” principle with those holding the oldest water
rights getting the first withdrawal of water. Water commissioners
appointed by State Judges can require junior water right holders
to stop diverting water in dry years so those with more senior
rights have sufficient water. Most of Montana's water is legally
controlled by ranchers and farmers on the “prior appropriations
doctrine” or a “first come, first served” basis.
Three major categories:
1) Claims are
rights that were active before the 1973 Legislative Water Adjudication
Act
2) Permits are rights issued since 1973
3) Reservations
reserve water for future uses.
Montana Constitution
states:
“All surface,
underground, flood and atmospheric waters within the boundaries
of the State are the property of the State for the use of its
people and are subject to appropriations for beneficial uses
as provided by law.”
“It is the policy
of this State to provide for the wise utilization, development
and conservation of the waters of the State for the maximum benefit
of its people with the least possible degradation of the natural
aquatic ecosystems.”
“The water resources
of the State must be protected and conserved to assure adequate
supplies for public recreational purposes and for the conservation
of wildlife and aquatic life.” ~
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Gallatin
River at Central Park. Looking down stream from Gallatin
Bridge. Very little flow in river is apparent here.
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