Our question this week comes from a listener in Helena named Bob Flipovich, who wants to know who owns the most water rights in Montana.
Water rights determine who can take water out of our lakes and streams, and how much they can take. And that becomes especially important in times of water shortage. If you’re a rancher, this could literally mean your livelihood. If you’re an angler, who’s using all the water could affect how you recreate. If you’re in the water world, this stuff can be contentious.
Austin Amestoy Welcome to The Big Why, a series from Montana Public Radio driven by your curiosity about Montana. I'm your host, Austin Amestoy. This is a show about listener-powered reporting. We'll answer questions, large or small, about anything under the Big Sky. By Montanans, for Montana, this is the Big Why.
In this episode, reporter Jon Hooks has a question about water in Montana.
John Hooks That's right. Our question this time came from a listener in Helena named Bob Flipovich, who wanted to know who owns the most water rights in Montana.
Austin Amestoy All right. I'm intrigued. So what are water rights exactly?
John Hooks Probably the simplest way to explain it is that water rights determine who can take water out of our lakes and streams and how much they can take. And that becomes especially important in times of water shortage. If you're a rancher, this could literally mean your livelihood. Or if you're, say, an angler, who's using all the water could affect how you recreate. If you're in the water world, this stuff can get contentious.
Austin Amestoy Okay, so sounds kind of high stakes. How did you go about figuring out who has the most water rights?
John Hooks Well, there's a part of the State Department of Natural Resources and Conservation that's called the Water Resources Division, and they're in charge of all the water rights in the state. So I figured calling them up would be a good place to start. If anybody would know the answer, it's them.
And no one there knew of the top of their heads. And I actually got the sense no one had ever asked them that specific question before.
Eventually they told me they’d put someone on it, but it would take a little time.
Austin Amestoy So what did you do while they were looking into the data?
John Hooks I dove into water rights in Montana, and it turns out that they have a deep and complicated history. And understanding that history is important to understanding who has the most water rights today. So let's rewind and go back to the Constitutional Convention of 1972.
Archival tape Montana citizens came to the state Capitol well aware of the issues and determined to write a new Constitution.
John Hooks One of the big problems that they had to deal with at the convention was water law, because up until that point, there was no standardized system of recording who had the rights to use it.
Michelle Bryan From statehood until 1972 you could create a water right in Montana by putting it to use. You did not have to record its existence anywhere ...
John Hooks That's Michelle Bryan, an environmental law professor at the University of Montana. She'll be our guide through the system of water law in the state.
Michelle Bryan ... and so you can imagine after that many years that there would be systems where there were a lot of water rights, no clear records about those water rights, and they may have been over claims.
John Hooks That means there's a real risk without reliable record keeping. If a river is over claimed, people could be allowed to pull more water out of the river than is actually running through it.
Austin Amestoy I can see why that would be a problem. So what solution did the convention come up with?
[The 1972 Constitutional Convention ] established this idea that's still really important, which is 'first in time, first in right.' Which just means whoever established a water right first has first dibs.
John Hooks Well, the first thing that they did was they established this idea that's still really important, which is 'first in time, first in right.' Which just means whoever established a water right first has first dibs. But that meant that they had to find a way to prove who was using any given body of water first. And that's where things got messy, especially considering that they had to go back centuries. The oldest water rights are owned by Indigenous tribes, and they're literally dated time immemorial. So it was quite a task.
Austin Amestoy So how did they do it?
John Hooks Well, eventually they decided that they were going to have to do a full, comprehensive review of every water right that came before 1973.
Michelle Bryan It's ambitious. There's no other state that just said, 'we're going to decree the whole state.'
John Hooks And there were multiple parts to this. The state had to negotiate water compacts with tribes and the federal government. At the same time, individual landowners had to file claims of their pre-1973 rights with the DNRC.
Austin Amestoy How many of those claims were filed?
John Hooks When all is said and done, more than 200,000.
Austin Amestoy Wow. That is a huge number of claims.
John Hooks It's a ton. And so the state then had to go and look at all these claims and figure out who used water first and therefore gets priority rights. Initially the Legislature was optimistic that this could be done in a few years, but the process has been ongoing for decades and is still years away from completion.
Austin Amestoy So are we not going to know the answer to our question of who owns the most water rights, until this process is finished?
John Hooks Luckily for us, the process is far along enough that there are centralized records of almost 400,000 water rights that are housed at the Water Resource Division of the DNRC.
Austin Amestoy Those were the folks from earlier you called up to try and get an answer.
John Hooks Exactly. And so a little while after presenting them with our question, I got in the car and took a little trip to Helena in order to tour the Water Resource Division and meet with Nate Ward, the bureau chief, and with Mallory Scharf, who who's the new appropriations specialist who actually dove into the data for us.
Austin Amestoy Is that where all the 400,000 water rights records are stored?
John Hooks Actually, no. Those paper records are kept at a secure warehouse somewhere else.
Mallory Scharf I don't even know where it is. But it is in Helena, right?
John Hooks It's an undisclosed location?
Nate Ward Yeah, I think it's down by the train tracks.
Mallory Scharf It's in Nevada.
Nate Ward Right? Underground somewhere.
Austin Amestoy So what did they make of our question? Did they find out who owns the most water rights?
John Hooks They sure did.
We do have a team of folks that work behind the scenes doing database management. And so I asked one of them to run a query for me and got an Excel spreadsheet of, you know, over half a million lines ...Mallory Scharf, Montana DNRC Water Rights Division
Mallory Scharf We do have a team of folks that work behind the scenes doing database management. And so I asked one of them to run a query for me and got an Excel spreadsheet of, you know, over half a million lines and ...
Austin Amestoy Oh, wow. Did she say a spreadsheet with half a million lines?
Mallory Scharf Yes, it was making my computer work pretty hard with those half million rows.
Austin Amestoy So what's our answer?
John Hooks Well, we got a couple different answers. We got an answer for who owns the most water rights — as in who has the most unique claims on file in the records. And we got another answer for who claims the highest volume of water, because those two things might not be the same for the question of who owns the most unique claims. The answer is resoundingly the federal government. The Forest Service and the Bureau of Land Management have close to 40,000 claims.
Austin Amestoy And what about the volume question? Who's using the most water?
John Hooks So in the volume department, NorthWestern Energy and the Confederated Salish and Kootenai Tribes each claim roughly 50 million acre-feet of water. For some comparison, one acre foot is about one eight-lane swimming pool. So 50 million of those is a lot of water.
Hydroelectric power uses a massive amount of water in Montana. So it's not surprising to see NorthWestern and the CSKT up there, especially after the tribes took over control of the Seli’š Ksanka Qlispe’ Dam. But first place in volume goes to Montana Fish Wildlife and Parks, which claims a whopping 82 million acre-feet.
Austin Amestoy Ah, another government agency. So are there any deeper insights our listeners can take away from these numbers, John?
Roughly a third of Montana is public land, and all of it has water somewhere. And the same way that land is used for the access and the benefit of the public, so is the water.
John Hooks Well the most striking thing about those results is how much water is claimed by the state and federal government. But what that really comes down to is the massive amount of public land we have in the state. Roughly a third of Montana is public land, and all of it has water somewhere.
And the same way that land is used for the access and benefit of the public, so is the water. A lot of the water claimed by the BLM, for example, is used for livestock, irrigation, wildlife. And many of FWP’s claims go toward making sure enough water stays in our rivers to keep fish alive and ecosystems healthy. While government agencies have the most claims, they’re aren’t necessarily the oldest or most senior claims.
And I think another takeaway here is that the fact that we were able to get a pretty good answer to this question shows how close to completion this process that started 50 years ago is. The whole thing is one truly huge bureaucratic feat, and it's one that's going to be really important for the future of water management in Montana, especially as we reckon with population growth and climate change. Here's Michelle Bryan again.
Michelle Bryan On a system, then, where we're having — like we have definitely been having — a Montana drought, users now know who has to cut off their diversion, to turn it off first. So I think it's going to create a little bit more certainty, at least as far as the rates on paper. We can't predict the weather.
Austin Amestoy Well, thanks for your reporting, John.
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