For Montana’s senior water right holders, a proposed new water use or change to an existing use is more than another person’s paperwork. It can affect the timing, amount, location, and reliability of water available to satisfy an established right, particularly in dry years.
Montana law is built on a simple rule: first in time, first in right. In general, a senior appropriator is entitled to satisfy their water right before a later priority user receives water. But protecting that principle requires water users to understand when and how a new permit or change application may affect them, how to follow the application, and when to raise concerns.
What Is a Permit and What Is a Change?
A permit is generally required for a new appropriation of water, meaning a new or expanded use of surface water or groundwater initiated on or after July 1, 1973. Before the Montana Department of Natural Resources and Conservation (DNRC) may grant a permit, the applicant must demonstrate, among other things, that water is physically available and legally available and that the proposed appropriation will not adversely affect prior water rights.
A change authorization is generally required when the owner of an water right proposes to change one or more key elements of that right, including its:
- Point of diversion
- Place of use
- Purpose of use
- Place of storage
A change of water use is not simply a private decision by the water right owner. The applicant must show that the proposed change will not adversely affect other water rights, permits, certificates of water right, reserved water rights, state water reservations, or certain planned developments. The applicant also must establish the extent of the historical use of the right being changed, because a changed right is generally limited to the historic diversion and historic consumptive use of the original right.
For a senior water right holder, the practical question is the same in either proceeding: Could this proposal reduce, delay, intercept, deplete, or otherwise interfere with water needed to satisfy my established right.
Criteria Analysis Provides Protection
For both new permits and change application, the required statutory criteria provide important protection for prior appropriators.
For a new permit, the applicant must show that:
- Water is physically available at the proposed point of diversion.
- Water is legally available in light of existing demands.
- Prior water rights will not be adversely affected.
- The proposed diversion, its construction, and operation are adequate.
- The proposed water use is beneficial use.
- The applicant has a possessory interest, or written consent, for the proposed place of use.
For a change authorization, the applicant must show that:
- The change will not adversely affect the use of other water rights.
- The proposed diversion, construction, and operation are adequate.
- The proposed use is beneficial use.
- The applicant has the necessary possessory interest in the place where the water will be used.
These questions are often technical in nature. They may involve hydrology, groundwater and surface water interaction, irrigation efficiencies, historic consumptive use, conveyance losses, return flows, seasonal demand, and mitigation.
Why the Process Takes Time
Montana’s permit and change process can be costly, technical, and time-consuming. Applicants may need to prepare hydrologic and water right analyses, document historical use, evaluate groundwater and surface water connections, develop mitigation where necessary, and respond to DNRC review, public comments, and possible objections.
That level of review can be frustrating, but it reflects the reality that water is limited, shared, and sources are often over-appropriated. A new use or change in one location can affect a water user elsewhere through reduced streamflow, changed return flows, or delayed groundwater depletion.
The process places the burden on the applicant, not existing water users, to show that an application meets Montana’s legal criteria and will not adversely affect prior rights. DNRC review, public comments, and the opportunity for formal objections are important safeguards for senior water right holders to protect their interests.
In short, the process may be demanding, but it helps ensure that a new project does not shift the cost or risk of development onto senior water right holders.
Mitigation May Be Part of the Proposal
In some areas, particularly highly appropriated or closed basins, a proposed new groundwater use may be expected to deplete a connected surface-water source. If that depletion could adversely affect senior water right holders, the applicant may propose mitigation as part of its permit application.
Mitigation is intended to offset a predicted impact to water availability. In simple terms, the applicant must show how water will be provided, stored, recharged, released, or otherwise managed so that the proposed new use does not impair existing rights. The mitigation must be sufficient in amount, timing, and location to prevent impact on senior users.
To learn more about mitigation, please see the January content
Two Opportunities to Participate
1. Public Comment on the Draft Decision
After DNRC completes its initial review, it issues a draft preliminary determination to grant or deny the application. If the draft determination is to grant the application, DNRC provides a 30-day comment period. This is the earliest opportunity for an existing user to identify concerns.
A person has standing to comment if the proposal would adversely affect that person’s property, water rights, or interests. Comments must identify how one or more approval criteria are not adequately addressed.
DNRC considers and responds to comments before issuing its preliminary determination—the next decision, which may approve, modify, or deny the application. If no public comments are received, the draft decision becomes final without a separate objection opportunity.
For senior water users, this comment period is significant. It allows concerns to be placed before DNRC before the matter reaches the more formal and potentially more expensive objection and hearing stage.
2. Objection to the Preliminary Determination
If comments are received and DNRC subsequently proposes approval, it provides a 30-day objection period. A person with standing may file a formal objection using DNRC’s objection form and paying the required fee.
A valid objection must explain how the objector would be adversely affected and provide probable, believable facts supporting a reasonable legal theory that one or more approval criteria are not satisfied. Objections are limited to issues previously identified in a properly filed public comment or raised in an applicant hearing. That makes timely public comment particularly important.
If no valid objections are filed, DNRC may grant the permit or change authorization. If valid objections are filed, DNRC conducts a hearing and issues a final order based on the and legal criteria. The outcome may include approval with conditions or modifications, or denial. A final order may be appealed to district court or, where authorized, the Montana Water Court.
How Public Notice Works—and How to Stay Informed
DNRC provides public notice through newspaper publication, website posting, and mailed notice to appropriators who may be affected. Notice is provided for both the public comment period and the objection period.
DNRC has also developed the Water Rights Notification Tool, or WRNT. The tool provides customizable email alerts for permit and change applications. It is intended to complement the traditional public notice. Sign up here for the WRNT.
Senior water right holders should consider using more than one way to stay informed:
- Register for email alerts through the Water Rights Notification Tool.
- Monitor notices in the local newspaper and on DNRC’s website.
- Stay in contact with neighbors, ditch companies, irrigation districts, watershed groups, and water-user associations.
- Keep current ownership and mailing-address information associated with your water rights on file with DNRC (https://dnrc.mt.gov/Water-Resources/Water-Rights/Update-Ownership-of-Water-Rights ).
To learn more about your water right, please see the February content
Seniority Is Valuable—But Participation Matters
A senior priority date is a powerful legal protection, but it does not automatically prevent every impact from a new appropriation or proposed change. Montana’s permit and change application processes are designed to evaluate whether an application can proceed without harming other water rights. That protection works best when potentially affected users review notices and participate early.
The central message for senior water right holders is straightforward: know your right, monitor proposed actions around you, and speak up when an application may affect your water supply.
This article is intended as general educational information, not legal advice. The facts, local hydrology, status of basin closures, applicable compacts, and terms of an individual water right can all change the analysis. For a specific proposal, review the complete application record and consult DNRC’s regional office and, when appropriate, qualified technical or legal counsel.
