IN THE SUPREME COURT OF THE STATE OF MONTANA 

 No. 86-397 

___________________________________ 

IN RE THE MATTER OF THE REVISIONS TO THE ) 

WATER RIGHT CLAIM EXAMINATION RULES ) ORDER 

AND THE WATER COURT PRACTICE AND ) 

PROCEDURE RULES. ) 

___________________________________ 

On December 30, 2004, the Honorable Bruce C. Loble, Chief Water Judge of the 

Montana Water Court, filed herein a Petition to Revise Water Right Claim Examination 

Rules (Petition). The Petition proposed universal revisions of the Water Right Claim 

Examination Rules adopted by this Court in 1991. The 1991 Water Right Claim 

Examination Rules apply to the water right claim examination duties of the Department of 

Natural Resources and Conservation (DNRC) and to the Water Court’s water adjudication 

duties. The Petition proposed revisions both to the water right claim examination duties of 

DNRC and to the Water Court’s practice and procedure rules. 

We issued an order on January 19, 2005, directing that the bench and bar and any 

interested persons file written comments, suggestions, or criticisms to the Clerk of this Court 

regarding the Petition filed by the Water Court on or before April 30, 2005. We later 

extended the comment deadline to May 31, 2005, at the request of the Water Court, in an 

order dated May 11, 2005. Various entities, including DNRC, the Department of Fish, 

Wildlife and Parks (DFWP), and the Montana Stockgrowers Association (MSGA) filed 

comments on the Petition. 

The Court considered the Petition at its public meeting conducted on August 31, 2005. 

 The Court deferred adoption of the proposed rules until the Water Court and the interested 

parties could collaborate on further revisions. This collaboration resulted in the Water Court 

filing a First Amended Petition to Revise Water Right Claim Examination Rules (First 

Amended Petition). The First Amended Petition supersedes the original Petition filed by the 

Water Court. 

The First Amended Petition focuses on revisions to rules currently used by DNRC in 
2 

conducting its examination of water right claims. We have attached the new Water Right 

Claim Examination Rules to this Order as Exhibit A. DNRC, DFWP, and MSGA submitted 

comments on the proposed Water Right Claim Examination Rules contained in the First 

Amended Petition. All parties supported the adoption of the proposed Water Right Claim 

Examination Rules 1 through 26 and Rules 28 through 46, including the title page and table 

of contents. DFWP objected to the requirement in proposed Rule 27 (h)(5), that the Water 

Court hold a hearing to determine the validity of every wildlife, recreation, and fish and 

wildlife claim, other than claims filed by the DFWP under the Murphy right statutes. MSGA 

filed a response to DFWP’s objection. 

The Water Court filed a Second Amended Petition to Revise Water Right Claim 

Examination Rules (Re: Water Court Practice and Procedure Rules) (Second Amended 

Petition) on May 30, 2006. The Second Amended Petition also supersedes the original 

Petition filed by the Water Court. The Second Amended Petition focuses on the practice and 

procedure rules used by the Water Court. The Second Amended Petition also recommends 

that the title of these practice and procedure rules be changed to Water Right Adjudication 

Rules. We have attached the new Water Right Adjudication Rules to this Order as Exhibit B. 

DNRC and DFWP also submitted comments on the proposed Water Right Claim 

Examination Rules contained in the Second Amended Petition. DFWP objected to proposed 

W.R.Adj.R. 9(b), Notice of Intent to Appear (NIA), on the grounds that it fails to reflect 

Water Court decisions on the scope of NIA participation. 

The Court reviewed the comments submitted by the Water Court, DNRC, DFWP, and 

MSGA to the First Amended Petition and the Second Amended Petition. The Court also 

discussed the First Amended Petition and the Second Amended Petition at its public meetings 

conducted on August 31, 2005, and September 26, 2006. We express our sincere 

appreciation to the Water Court and to all of the interested parties for their participation, 

cooperation, and collaboration in seeking consensus in the revision of the proposed rules. 

The Court first determines that DFWP correctly points out that the Montana Code 

contemplates when hearings are necessary. Section 85-2-248(8), MCA, requires the Water 

Court to hold an evidentiary hearing on any issue remark that remains unresolved by the 
3 

process set out in § 85-2-248(2)-(7), MCA. We agree with DFWP that many of the remarks 

on wildlife, recreation, and fish and wildlife claims likely would be resolved through the 

process set out in § 85-2-248(2)-(7), MCA. As a result, we adopt DFWP’s amended Water 

Right Claim Examination Rule 27(h)(5), as reflected in the attached Exhibit A. 

We next recognize DFWP’s concern of a potential conflict between the Water Court’s 

past decisions on the scope of NIA participation and the scope as allowed under proposed 

Rule 9(b), W.R.Adj.R. We conclude, however, that the better practice would be to resolve 

any conflicts arising between the Water Court’s application of M. R. Civ. P. 24 and its 

application of Rule 9(b), W.R.Adj.R., when a case in controversy exists rather than issue 

what would amount to an advisory opinion. 

The Court has determined that the proposed rules, including the revisions to the claim 

examination rules set forth in the First Amended Petition, and the revisions to the Water 

Court practice and procedure rules set forth in the Second Amended Petition, would benefit 

the Water Court and parties appearing before it, promote the prompt and accurate resolution 

of water right claims and disputes, and facilitate the completion of water rights adjudications 

in Montana. These determinations complete our review and approval of the proposed rules, 

with one exception. 

The one exception involves the issue of the appearance of non-lawyers in the Water 

Court on behalf of parties. DFWP argued that non-lawyers have appeared in Water Court 

proceedings far beyond the parameters of pro se representation allowed in Montana district 

courts. DFWP asked this Court to clarify the Water Court’s policies for non-lawyer 

appearances. The Water Court justifiably relied upon informal advice provided by the Chief 

Justice of the Supreme Court in 1993 regarding the acceptability of the Water Court’s 

historical practice of allowing non-lawyer appearances in circumstances that exceeded the 

parameters of pro se representation allowed in Montana district courts. The time has come, 

however, to move the Water Court into compliance with Montana law regarding the 

unauthorized practice of law. 

The Court agrees with DFWP that the Water Court needs to clarify its policies and 

rules regarding non-lawyer appearances. The Water Court will promulgate, in consultation 
4 

with DNRC, DFWP, and other interested parties, rules regarding non-lawyer appearances in 

Water Court. These proposed rules will apply prospectively only and will reflect the unique 

nature of practice in the Water Court. At the same time, however, these proposed rules must 

comport with the requirements of § 37-61-210, MCA, and the Rules of the Commission on 

the Unauthorized Practice of Law, adopted in 1991, and amended in 2000. 

Therefore, 

IT IS HEREBY ORDERED that the First Amended Petition to Revise the Water Right 

Claim Examination Rules is GRANTED, with the revised rules to take effect upon the date 

of this Order; 

IT IS FURTHER ORDERED that the Second Amended Petition to revise the Water 

Rights Adjudication Rules is GRANTED, with the revised rules to take effect upon the date 

of this Order; 

IT IS FURTHER ORDERED that the Water Court, in consultation with DNRC, 

DFWP, and other interested parties, shall file with this Court within 60 days, proposed rules 

on non-lawyer appearances in Water Court; 

IT IS FURTHER ORDERED that the State Bar of Montana publish in the next 

available issue of The Montana Lawyer a copy of this Order. The notice shall indicate that 

copies of the revised Water Right Claim Examination Rules, attached as Exhibit A, and the 

revised Water Right Adjudication Rules, attached as Exhibit B, are available for review and 

copying on the State Bar of Montana and the Montana State Law Library websites, 

www.montanabar.org and courts.mt.gov/library The Clerks of the District Courts of the 

State of Montana and the Clerk of the Montana Water Court also shall post a copy of this 

Order for public review in these offices. 

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by 

mail to Peggy Probasco, President of the State Bar of Montana; Chris Manos, Executive 

Director, State Bar of Montana; The Honorable C. Bruce Loble, Chief Water Judge, Montana 

Water Court; Tim D. Hall, Legal Counsel, Montana Department of Natural Resources and 

Conservation; G. Steven Brown, Attorney for the Montana Board of Natural Resources and 

Conservation; Mike Murphy, Executive Director of the Montana Water Resources 
5 

Association; Krista Lee Evans, Environmental Quality Council; Judy Meadows, Librarian, 

State Law Library, and Gregory J. Petesch, Code Commissioner. The Clerk of this Court 

also shall give notice by electronic mail to the Clerks of the District Courts of the State of 

Montana. The Clerks of the District Courts of the State of Montana shall, in turn, post a copy 

of this Order for public review in these offices, and shall provide a copy of this Order to the 

respective District Court Judges. 

IT IS FURTHER ORDERED that the Montana Water Court shall mail a copy of this 

Order to the members of the Water Adjudication Advisory Committee. 

DATED this 6th day of December 2006. 

 /S/ KARLA M. GRAY 

 /S/ BRIAN MORRIS 

 /S/ JAMES C. NELSON 

 /S/ W. WILLIAM LEAPHART 

 /S/ PATRICIA COTTER 

 /S/ JOHN WARNER 

 /S/ JIM RICE 
6 

Exhibit A 

WATER RIGHT CLAIM EXAMINATION RULES 

AMENDED BY THE MONTANA SUPREME COURT 

EFFECTIVE 

 DECEMBER 5, 2006

 

 TABLE OF CONTENTS 

 FOR 

 THE WATER RIGHT CLAIM EXAMINATION RULES 

 

 Page 

 

I. Introductory Provisions 

 1. Scope of Rules 1 

 2. Definitions 2 

 3. Centralized Record System 11 

 4. Standard Measurements of Water 13 

 5. Summary Report 14 

II. Irrigation Claims 

 6. Purpose 17 

 7. Owner Name and Address 18 

 8. Point of Diversion (POD) 19 

 9. Means of Diversion 22 

10. Reservoirs 23 

11. Source 25 

12. Place of Use (POU) 27 

13. Priority Date 30 

14. Flow Rate 35 

15. Volume 39 

16. Period of Use 42 

III. Domestic Claims 

17. Reference to Irrigation Chapter 45 

18. Place of Use (POU) 45 

19. Flow Rate and Volume 47 

20. Period of Use 51 

 
7 

 

IV. Stockwater Claims 

21. Reference to Irrigation Chapter 53 

22. Point of Diversion (POD) 53 

23. Place of Use (POU) 53 

24. Flow Rate and Volume 55 

25. Period of Use 59 

V. Other Uses Claims 

26. Reference to Irrigation Chapter 60 

27. Purpose 61 

28. Place of Use (POU) 64 

29. Flow Rate and Volume 65 

30. Period of Use 71 

31. Point of Diversion (POD) and Means of Diversion 73 

 for Instream or Inlake Appropriations 

VI. General Provisions 

32. Public Meetings 74 

33. Clarification 75 

34. Amendments to Claims 77 

35. Implied Claims 79 

36. Claims Filed After April 30, 1982 81 

37. Termination of a Claim 83 

38. Ownership Updates 84 

39. Change in Appropriation Right 86 

40. Supplemental Rights 88 

41. Multiple Use of a Right 89 

42. Irrigation Districts 90 

43. Documenting the Department's Examination 91 

44. Claimant Contact 92 

45. Returned Mail 93 

46. Post-Decree Revisions 95 

 
8 

EXHIBITS 

A. Example of Department's Summary Report with Water Right 

Abstract 

B. Definition of Claimant Contact Regarding Irrigated Acres 

C. Example Claim Amendment Form 

D. Example Claim Termination Form 

WATER RIGHT CLAIM EXAMINATION RULES 

 AMENDED BY THE MONTANA SUPREME COURT 

EFFECTIVE 

 DECEMBER 5, 2006 

I. INTRODUCTORY PROVISIONS 

 RULE 1. SCOPE OF RULES 

 Rule 1(a). Purpose. As provided by § 85-2-101(4), MCA: 

“Pursuant to Article IX, Section 3(1) of the Montana Constitution, it 

is further the policy of the state and a purpose of this chapter to 

recognize and confirm all existing rights. . . for any useful or 

beneficial purpose.” 

Rule 1(b). Role of the department. These water right claim 

examination rules are applicable to the Department of Natural 

Resources and Conservation (department) and specify how water 

right claims are examined prior to decree issuance by the 

department during Montana's general water rights adjudication. 

Throughout the adjudication process, the department is an 

executive agency providing technical assistance and information to 

the water court subject to the direction of water judges, pursuant to 

§ 85-2-243, MCA. The department assists the water court by 

gathering, examining, and reporting data, facts, and issues 

pertaining to the claims of existing rights. In examining claims, the 

department's role is limited to factual analysis and the identification 

of issues. The water right claim examination rules describe how the 
9 

department gathers data and facts pertinent to the claims of 

existing water rights. The water court determines the necessity and 

scope of any preliminary department examination as set out in 

these rules, but in no way influences the results of the directed 

examination. 

 Rule 1(c). Title. These rules shall be known as the Water Right 

Claim Examination Rules and may be cited as Rule ___, W.R.C.E.R. 

 RULE 2. DEFINITIONS 

Rule 2(a). Adjudication definitions. Unless the context 

requires otherwise, the following definitions apply in these rules. 

 

(1) “Abstract” means the computer printout of each claim of 

an existing water right showing the information submitted on the 

original or amended statement of claim, any changes authorized by 

these rules or by the water court, remarks noting any obvious 

factual or legal issues presented by the claim, and other remarks 

explaining the nature and extent of the claimed water right. 

(2) “Acreage” means the number of irrigated acres. 

(3) “Adjudication” means the judicial determination of water 

rights that existed prior to July 1, 1973, including the total or 

partial abandonment of existing water rights occurring at any time 

before the entry of the final decree. 

(4) “Amended Claim” means the contents of a submitted claim 

as altered or changed by the claimant as to any matter contained in 

the original claim and as allowed by the water court. 

(5) “Animal Unit” means a measurement of livestock numbers. 

 For example, one cow and calf pair is one animal unit, three pigs 

are one animal unit, five sheep are one animal unit, and one horse 

is 1.5 animal units. 

(6) “Appropriate” means to divert, impound or withdraw a 

quantity of water for a beneficial use. 

(7) “Associated Rights” means more than one water right used 
10 

at a common point of diversion, place of use or place of storage. 

(8) “Basin Code” means the respective number/letter 

combination used to identify each of the 85 basins in Montana (e.g. 

43QJ) according to the Atlas of Water Resources of Montana 

prepared by the Montana water resources board. 

(9) “Beneficial Use” means a use of water recognized as 

beneficial prior to July 1, 1973 and used for the benefit of the 

appropriator, other persons, or the public and may include but not 

be limited to irrigation, stock, domestic, fish and wildlife, industrial, 

mining, municipal, power generation, and recreational uses. 

(10) “Centralized Record System” means the original, 

electronic, microfilm or scanned records of all claims of existing 

rights, permits, certificates, applications, ownership updates, and 

other documents filed with the department. 

(11) “Change in Appropriation Right” means a change made in 

accordance with § 85-2-402, MCA. 

(12) “Claim” or “Statement of Claim” means a sworn 

statement of claim for an existing water right, as defined in § 85-2-

224, MCA, filed with the department upon order of the Montana 

supreme court. 

(13) “Claimant” means any individual, association, 

partnership, corporation, state agency, political subdivision, Tribe, 

the United States or any agency of the United States, or any other 

entity, who has filed a statement of claim or is successor in interest 

to a statement of claim as identified in the centralized records 

system. 

(14) “Claimant Contact” means communication between the 

department and a claimant or claimant's authorized representative 

regarding the claimed water right. 

(15) “Clarification” means the process by which elements of a 

water right are made more complete, clear, concise and 
11 

interpretable without changing the intent of the claimed 

information. 

(16) “Climatic Area” means areas defined by differing climatic 

and geographic conditions containing similar crop consumptive use 

data as delineated by the United States Department of Agriculture 

Natural Resource Conservation Service. 

(17) “Decree Abstract” means the abstract that is part of a 

water court issued decree. The decree abstract contains the 

original or amended claim information, changes authorized by these 

rules or the water court, and water court ordered data, changes and 

remarks. 

(18) “Decreed Right” means a claimed water right determined 

in a judicial decree prior to the commencement of this adjudication 

or after commencement of this adjudication as provided in § 85-2-

216, MCA. 

(19) “Department” means the Montana Department of Natural 

Resources and Conservation. 

(20) “Enforceable priority date” means a priority date of June 

30, 1973, or later, which is administratively assigned to late claims 

that are subordinate to valid, timely filed claims and certain permits 

in accordance with § 85-2-221(3)(f), MCA. 

(21) “Examination” means the process under these rules of 

examining, gathering information, and reporting data, facts, and 

issues pertaining to the claims of existing water rights. Prior to the 

adoption of the Water Right Claim Examination Rules on July 15, 

1987, this process was referred to as “verification”. 

(22) “Exempt Water Right” means an existing water right for 

which a statement of claim did not have to be filed pursuant to § 

85-2-222, MCA. 

(23) “Existing Water Right” means a right to the use of water 

that would be protected under the law as it existed prior to July 1, 
12 

1973. The term includes federal non-Indian and Indian reserved 

water rights created under federal law and water rights created 

under state law. 

(24) “Field Investigation" means an on-site inspection, under § 

85-2-243, MCA, of physical evidence and features relating to the 

individual elements of a claimed water right. 

(25) “Filed Appropriation Right” means a water right which 

has been filed and recorded in the office of the county clerk and 

recorder as provided by statute prior to July 1, 1973. 

(26) “Final Decree” means the final water court determination 

of existing water rights within a basin or subbasin, as described in 

§ 85-2-234, MCA. 

(27) “Flow Rate” means the rate at which water has been 

diverted, impounded, or withdrawn from the source for beneficial 

use. 

(28) “Groundwater” means any water under the surface of the 

land including the water under the bed of any stream, lake, 

reservoir, or other body of surface water. Section 89-2911, R.C.M. 

1947 (1961 Groundwater Code). 

(29) “Guideline” means an estimate of reasonable use to be 

used as the benchmark for initiating further department review or 

claimant contact under these rules. The estimate of reasonable 

water use is derived from technical data and recommendations of 

the department and adopted by the water court. 

(30) “Historical Irrigation” means irrigation that took place for 

the first time before July 1, 1973. 

(31) “Historical Right” means an existing water right claim. 

 

(32) “Household” means the dwelling, house, or other 

domestic facilities where a person, family or social unit lives. 
13 

(33) “Implied Claim” means a claim authorized by the water 

court to be separated and individually identified when a statement 

of claim includes multiple rights. 

(34) “Interior Drainage” means an area in which water drains 

into a depression from which water only escapes by 

evapotranspiration or subsurface drainage. The scale varies from a 

small kettle in a glaciated area to a large playa lake, such as the 

Great Salt Lake in Utah. 

(35) “Irrigation” means the application of water to the land to 

eliminate the moisture limitation to crop production. (Soil 

Conservation Service, 1979.) 

(36) “Irrigation District” means a statutory district created 

pursuant to Title 85, Chapter 7, MCA. 

(37) “Lake” means a naturally occurring inland body of water. 

 (38) “Late Claim” means a claim to an existing water right 

forfeited pursuant to the conclusive presumption of abandonment 

under § 85-2-226, MCA. 

 (39) “Legal Land Description” means the description given to a 

parcel of land in terms of, but not limited to, quarter section, 

section, township, range, and county. 

(40) “Means of Diversion” means the structures, facilities, or 

methods used to appropriate water from the source of supply. For 

instream or inlake appropriations, the means of diversion is 

“instream.” 

(41) “Microfilm Record” means a photographic film record on a 

reduced scale of all paper documents related to a water right. 

(42) “Multiple Use” means the same appropriation used for 

more than one purpose by a single owner. 

(43) “Natural Overflow” means the water that results in the 

flooding of land adjoining a stream during high flow with no man-
14 

made diversion involved. 

(44) “Natural Subirrigation” means a naturally occurring high 

water table condition that supplies water for crop use. 

(45) “Non-consumptive” means a beneficial use of water that 

does not cause a reduction in the source of supply. 

(46) “On-site visit” means a field investigation conducted at a 

claimant’s invitation. 

(47) “Other Uses” means all uses of water for beneficial 

purposes other than stockwater, domestic, and irrigation uses. 

(48) “Owner” means any person, according to § 85-2-102, 

MCA, who has title or interest in water rights or properties. 

(49) “Ownership Update” means the updating of the 

department’s water right ownership records by the filing of an 

Ownership Update Form, Form #608, formerly known as a water 

right transfer certificate, pursuant to §§ 85-2-421 through 85-2-

426, MCA. The department’s form does not transfer water rights or 

legally determine water right ownership. It updates the 

department’s centralized record system to reflect the ownership 

identified on the legal documents that actually transfer water rights. 

(50) “Period of Diversion” means the period in a calendar year 

when water is diverted, impounded or withdrawn from the source. 

(51) “Period of Use” means the period in a calendar year when 

water is used for a specified beneficial use. 

(52) “Place of Use” (POU) means the lands, facilities, or sites 

where water is beneficially used. 

(53) “Point of Diversion” (POD) means the location or locations 

where water is diverted from the source. For instream or inlake 

appropriations, the point of diversion is the portion of the source in 

which the instream or inlake use occurs.
15 

(54) “Preliminary Decree” means the preliminary water court 

determination of existing water rights within a basin or subbasin as 

described in § 85-2-231, MCA, which precedes the final decree. 

(55) “Priority Date” means the allocation date associated with 

a beneficial use of water which determines ranking among water 

rights, usually expressed by day, month, and year. 

(56) “Regional Office” means a branch office established by the 

department to provide water right information and assistance to the 

public or public agencies. 

(57) “Remarks” means statements added to the decree 

abstract by the department or the water court to limit or define a 

water right, to explain unique aspects of the water right, and to 

identify potential factual and legal issues. Remarks that limit, 

define, or explain unique aspects of a claim are “clarifying” or 

“information” remarks. Remarks that identify potential factual and 

legal issues are “issue” remarks. 

(58) “Reserved Water Rights” means a right to use water that 

is expressly or impliedly reserved by treaty, an act of Congress, or 

an executive order. 

(59) “Reservoir” means a storage facility, created or 

augmented by manmade means that impounds and stores water for 

beneficial use. 

(60) “Scanned Record” means a digitally scanned record of 

paper documents related to a water right. 

(61) “Service List” means the list of persons notified of all 

future hearings or proceedings relevant to a specific claim or case. 

This list may include the claimants and their representatives, any 

objectors and their representatives, any persons filing a notice of 

intent to appear and their representatives, any counterobjectors 

and their representatives, any intervenors and their representatives, 

and other persons receiving courtesy notification. 
16 

(62) “Source” means the specific supply from which water is 

taken for a beneficial use. 

(63) “Split Claim” means the division of one water right claim 

into two or more separate claims. When a claim is split, one portion 

of the claim maintains the original claim number and the other 

separated portions are assigned new claim numbers. 

(64) “Spring” means a naturally occurring extrusion of 

groundwater upon the land surface. 

 (i) “Developed Spring” means a spring with some manmade development at or below the point of extrusion that brings 

additional flow to the surface which would not naturally be 

available for use and is classified as groundwater. 

 (ii) “Undeveloped Spring” means the flow from the spring 

is not increased by some development at its point of extrusion from 

the ground and is classified as surface water. 

(65) “Subbasin” means a designated area that drains surface 

water to a common point within a basin. 

(66) “Summary Report” means the department’s report to the 

Montana water court consisting of individual abstracts, the claimed 

and clarified data and a summary of the department's examination 

findings for each claim within a basin or subbasin. 

(67) “Supplemental Rights” means separate water rights for 

the same purpose, owned by the same claimant, and used on 

overlapping places of use. 

(68) “Surface water” means water occurring at or on the 

surface of the ground, including but not limited to any river, 

stream, creek, ravine, coulee, undeveloped spring, lake and other 

source of water. 

(69) “Temporary Preliminary Decree” means a water court 
17 

decree, prior to the issuance of the preliminary decree, as necessary 

for the orderly administration of existing water rights pursuant to § 

85-2-231, MCA. 

(70) “Type of Historical Right” refers to the historical basis of 

an existing water right as a decreed right, filed appropriation right, 

reserved right or use right. 

(71) “Use Right” means a claimed existing water right 

perfected by appropriating and putting water to beneficial use 

without written notice, filing, or decree. 

(72) “Volume” means the amount of water which has been 

diverted, impounded, or withdrawn from the source over a period of 

time for beneficial use, usually measured in acre-feet per year. 

(73) “Water Court” means the water division of the state 

courts, presided over by water judges responsible for adjudicating 

existing water rights in Montana, as provided for in Title 3, Chapter 

7, MCA. 

(74) “Water Judge” means a judge responsible for adjudicating 

existing water rights as provided for in Title 3, Chapter 7, Part 2, 

MCA. 

(75) “Water Master” means a person appointed by a water 

judge to assist in the adjudication of existing water rights as 

provided for in Title 3, Chapter 7, Part 3, MCA, and Rule 53 of the 

Montana Rules of Civil Procedure. 

(76) “Water Resources Survey” (WRS) means a survey of water 

resources and water rights in Montana on a county basis by the 

former state engineer's office or water resources board, 

predecessors of the department. 

(77) “Water Spreading” means surface flood irrigation 

involving the diversion of occasional (flood or runoff) surface water 

from natural, usually nonperennial, watercourses by means of 

dams, dikes, or ditches, or a combination of these. It differs from 
18 

conventional irrigation because it is totally dependent on and 

regulated by the availability of water, not crop needs. 

(78) “Well” means any artificial opening or excavation in the 

ground, however made, by which groundwater can be obtained or 

through which it flows under natural pressure or is artificially 

withdrawn. Section 89-2911, R.C.M. 1947(1961 Groundwater 

Code). 

Rule 2(b). Non-adjudication definitions. For additional 

definitions concerning post June 30, 1973 terms, see § 85-2-102, 

MCA. 

 RULE 3. CENTRALIZED RECORD SYSTEM 

Rule 3(a). Maintaining records. The centralized record system 

for the adjudication is maintained by the department in three parts 

as follows: 

 (1) numbered files of the original claim forms and 

documentation submitted by the claimant along with related 

materials added by the water court or the department; 

(2) a computer record system which is initially the claimed 

information as clarified by the department; and 

(3) a microfilm or scanned record of each numbered claim file. 

Rule 3(b). Finding information. All water right information as 

claimed can be found in the claim file or microfilm or scanned 

records maintained by the department. Additionally, the claim files 

and the microfilm or scanned records will be updated to document 

each stage of the adjudication process. 

Rule 3(c). Data. The data in the computer record system, 

initially the clarified claimed information, is used as the 

adjudication process advances to prepare the department's 

summary report and, ultimately, to produce the final decrees. 

Rule 3(d). Changing water right claims. The department will 
19 

not change the claimed elements of an existing water right in the 

computer record system except as follows: 

(1) prior to issuance of a decree: 

(i) to implement procedures as authorized in these rules; 

(ii) to comply with § 85-2-103, MCA, § 85-2-402, MCA, and 

§§ 85-2-421 through 85-2-426, MCA; 

(iii) to reflect a claimant's amendments to a claim according 

to Rule 34 W.R.C.E.R.; 

(iv) to correct a department data entry error; or 

(v) as specifically ordered or directed in writing by the 

water court. 

(2) after issuance of a decree: 

(i) as specifically ordered or directed in writing by the water 

court; 

(ii) in compliance with § 85-2-402, MCA and §§ 85-2-421 

through 85-2-426, MCA; 

(iii) to change an owner address; or 

(iv) to remove asterisks identifying changes to claimed 

elements. 

Rule 3(e). Public records. All records pertaining to the 

centralized record system are public records and therefore open to 

inspection by any person as provided in § 2-6-102, MCA. Prior to 

final decree anything in the file is part of a work in progress and 

may be subject to change. 

Rule 3(f). Reproducing materials. For parties requesting 

reproductions of department materials, fees will be charged and 
20 

collected at rates established by the department. Reproduced 

materials for which costs will be recovered include, but are not 

limited to, photocopies, copies from microfilm, copies of microfilm, 

and computer generated materials. 

Rule 3(g). Fees for decrees. Any person may obtain a copy of 

a water court decree from the department for a fee covering the cost 

of the printed or electronic copy. Indexes of decrees may be 

obtained for a fee covering the cost of the printed or electronic copy. 

RULE 4. STANDARD MEASUREMENTS OF WATER 

Rule 4(a). Converting measurements. The department will 

use the following conversions in determining equivalent flow rates 

and volumes: 

(1) forty (40) statutory or miner's inches equals 1.0 cubic 

foot per second (cfs); 

(2) one (1) miner's inch equals 11.22 gallons per minute 

(gpm); 

(3) one (1) cubic foot per second (cfs) equals 448.8 gallons 

per minute (gpm); and 

(4) one (1) acre-foot of water equals 325,851 gallons. 

Rule 4(b). Units of water measurement. The decree abstract 

and the department's summary report to the water court shall 

identify units of water measurement in compliance with § 85-2-103, 

MCA, as follows: 

(1) for flow rates: 

(i) less than one (1) cfs will be in units of gallons per 

minute; 
21 

(ii) equal to or greater than one (1) cfs will be in units of 

gallons per minute or cubic feet per second, as claimed or based on 

the customary reference for the method of diversion; 

(2) volumes will be in acre-feet or gallons. 

RULE 5. SUMMARY REPORT 

Rule 5(a). Summary report. The department will prepare a 

summary report for each claim in a basin or subbasin as directed 

by the water court, which will be submitted to the water court for 

its review and use in adjudicating existing rights. An example is 

shown as Exhibit A. The summary report of a claimed water right 

is an abstract which includes: 

(1) the claimed or clarified data, unless otherwise directed by 

these rules, for the following elements: 

(i) owner and address; 

(ii) purpose; 

(iii) source; 

(iv) type of irrigation system; 

(v) priority date; 

(vi) type of historical right; 

(vii) flow rate; 

(viii) volume; 

(ix) maximum acres; 

(x) period of use; 

 (xi) point of diversion and means of diversion; 
22 

(xii) reservoir; and 

(xiii) place of use. 

 (2) The department's data may supersede the claimed data. 

 Changes to claimed information made during the department's 

examination will be denoted on the abstract. 

(3) Other information necessary to describe a water right 

will be listed on each abstract, where appropriate: 

(i) basin code; 

(ii) water right identification number; 

(iii) surface water or groundwater designation; 

(iv) climatic area for irrigation; 

(v) number of households; and 

(vi) period of diversion. 

(4) Remarks limiting supplemental rights and multiple 

uses of a right will be added according to Rules 40 and 41, 

W.R.C.E.R. 

(5) Other data and remarks to identify unique aspects or 

features of the water right as required by these rules. 

(6) Remarks concerning unresolved issues or questions 

about an element identified during the examination of a water right 

claim. When the department's examination substantiates or does 

not appear to contradict those elements as claimed, no additional 

facts, data, or issues will be reported. 

Rule 5(b). Examining materials. The department's summary 

report will be sent to the water court. The examination materials, 
23 

including but not limited to, computations, data and facts, and 

correspondence are maintained in the claim file. 

(1) The examination materials and summary report will be 

available for inspection and copying by all persons. 

(2) A microfilm or scanned copy of the examination 

materials for a basin, when completed, will be located at the local 

water resources regional office and the department's central office 

in Helena. 

(3) A printed, microfilmed or scanned copy of the summary 

report for a basin, when completed, will be located at the water 

court. The summary report at the water court must be returned to 

the department five years after the decree is issued. The 

department must maintain the summary report as a public 

document as required by law. 

(4) Inquiries concerning the examination materials and 

summary report may be directed to the local water resources 

regional office, or the department's central office in Helena. Any 

legal issues raised shall be referred to the water court. 

II. IRRIGATION CLAIMS 

RULE 6. PURPOSE

Rule 6(a). Identifying purpose. Facts and information 

concerning the purpose of a water right will be identified using the 

information in the claim together with any other data gathered by 

the department. 

Rule 6(b). Examining purpose. When the claimed purpose 

cannot be substantiated, the department will gather further facts 

and data pertaining to the specific claim. The claimant may be 

contacted pursuant to Rule 44, W.R.C.E.R. In addition, an on-site 

visit may be conducted pursuant to Rule 44, W.R.C.E.R. 

Discrepancies in the claimed purpose that may require claimant 

contact or an on-site visit include, but are not limited to: 
24 

(1) the purpose cannot be discerned from the information 

in the claim; 

(2) the water use appears to be for a purpose other than 

that claimed; 

(3) the claimed purpose cannot be substantiated; or 

(4) several purposes are indicated in the claim as multiple 

uses of the right. Fire protection will be considered an incidental 

use. 

Rule 6(c). Multiple uses. All claims under one ownership will 

be reviewed to identify multiple uses of a right pursuant to Rule 41, 

W.R.C.E.R. 

Rule 6(d). Changing purpose. The claimed purpose of a water 

right will not be changed during the department's examination 

unless: 

(1) amended by the claimant; or 

(2) clarified by the department to identify similar purposes 

consistently. 

Rule 6(e). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the purpose of a right: 

(1) the claimed or clarified purpose; 

(2) identification of unique aspects or features of the 

purpose; 

(3) for irrigation claims, the type of irrigation system; 

(4) a notation of changes made during the department's 

examination; and 
25 

(5) remarks concerning unresolved issues or questions 

about the claimed purpose such as the following situations: 

(i) the right apparently has not been used for the 

claimed purpose for 10 or more consecutive years; 

(ii) the right apparently has not been perfected; or 

(iii) the type of irrigation is natural overflow. 

RULE 7. OWNER NAME AND ADDRESS 

Rule 7(a). Examining owner name and address. The name 

and address on all water right claims by the same ownership will be 

made consistent and current as follows: 

(1) the name and address given for all water right claims 

belonging to each claimant in a basin will be reviewed. 

Discrepancies will be identified by comparing the claimant's name 

and address with information on record with the department's 

centralized record system, telephone directories, other sources, and 

if necessary, claimant contact data; and 

(2) ownership shall be updated in compliance with §§ 85-2-

421 through 85-2-426, MCA pursuant to Rule 38, W.R.C.E.R. 

Rule 7(b). Changing owner name and address. The 

department, as a result of its examination, may revise the 

claimant's name or address to make them consistent and current. 

 RULE 8. POINT OF DIVERSION (POD) 

Rule 8(a). Identifying point of diversion. The claimed POD 

will be identified and described by the nearest reasonable and 

concise legal land description. 

(1) The information in the claim, aerial photographs, 

topographic maps, Water Resources Survey information, county 

land ownership records, and other sources available to the 

department may be used to review the claimed POD. 
26 

(2) When the claimed POD cannot be substantiated, the 

department will gather further facts and data pertaining to the 

specific claim. The claimant may be contacted pursuant to Rule 44, 

W.R.C.E.R. In addition, an on-site visit may be requested pursuant 

to Rule 44, W.R.C.E.R. 

(3) A diversion structure used for more than one claim will 

have a consistent legal land description specified on all respective 

claims. 

Rule 8(b). Reviewing basin codes. Claims having diversions 

within a common drainage basin or subbasin will be identified with 

a common basin code. The basin code will be reviewed to confirm 

that the claim has been grouped in the correct basin. 

(1) If the department finds that a claim was omitted from a 

basin where a decree has been issued, the water court shall be 

notified. 

(2) If the department finds that a claim was omitted from a 

basin where a decree has not been issued, the department will 

change the basin code in the claim file and in the centralized record 

system. 

Rule 8(c). Identifying interbasin transfers. When the POD is 

in one basin and the place of use, or a portion thereof, is in another 

basin, an interbasin transfer shall be identified for the basin of the 

POU as well as the basin of the POD. 

Rule 8(d). Changing point of diversion. The claimed point of 

diversion of a water right will not be changed during the 

department's examination unless: 

(1) amended by the claimant; 

(2) clarified by the department to the nearest reasonable 

and concise legal land description; or 
27 

(3) revised to identify and describe a POD used by more 

than one claim consistently. 

Rule 8(e). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the point of diversion: 

(1) the basin code designated by the department; 

 (2) the claimed or clarified legal land description; 

(3) additional legal land descriptions identified by the 

department such as government lots, subdivisions, certificates of 

survey, homestead entry surveys, and mineral surveys; 

(4) identification of named ditches or canals; 

(5) identification of unique aspects or features of the point 

of diversion; 

(6) a notation of changes made during the department's 

examination; 

(7) a remark identifying an interbasin transfer of water; 

Examples: 

THIS APPROPRIATION OF WATER TAKES WATER FROM THE 

_____ RIVER DRAINAGE (BASIN _____) AND USES IT IN THE 

_____ RIVER DRAINAGE (BASIN _____). ANY OBJECTION TO 

THIS RIGHT MAY BE FILED DURING THE OBJECTION 

PERIODS FOR EITHER THE POINT OF DIVERSION OR PLACE 

OF USE BASIN. 

THIS APPROPRIATION OF WATER TAKES WATER FROM THE 

_____ RIVER DRAINAGE (BASIN _____) AND USES IT IN THE 

_____ RIVER DRAINAGE (BASIN _____) AND THE _____ RIVER 

DRAINAGE (BASIN _____). ANY OBJECTION TO THIS RIGHT 

MAY BE FILED DURING THE OBJECTION PERIODS FOR 

EITHER THE POINT OF DIVERSION OR PLACE OF USE BASIN. 
28 

and 

(8) remarks concerning unresolved issues or questions 

about the claimed point of diversion such as the point of diversion 

legal land description could not be refined. 

RULE 9. MEANS OF DIVERSION 

Rule 9(a). Identifying means of diversion. Facts and 

information concerning the means of diversion of a water right will 

be identified using the information in the claim, aerial photographs, 

topographic maps, Water Resources Survey information, and other 

sources available to the department. 

Rule 9(b). Examining means of diversion. When the means 

of diversion cannot be substantiated, the department will gather 

further facts and data pertaining to the specific claim. The claimant 

may be contacted pursuant to Rule 44, W.R.C.E.R. In addition, an 

on-site visit may be requested pursuant to Rule 44, W.R.C.E.R. 

Rule 9(c). Changing means of diversion. The claimed means 

of diversion of a water right will not be changed during the 

department's examination unless: 

(1) amended by the claimant; or 

(2) clarified by the department to identify similar means of 

diversion consistently. 

Rule 9(d). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the means of diversion: 

(1) the claimed or clarified means of diversion; 

(2) identification of unique aspects or features of the means 

of diversion; 

 (3) a notation of changes made during the department's 
29 

examination; and 

 (4) remarks concerning unresolved issues or questions about 

the means of diversion, such as “the means of diversion cannot be 

identified.” 

 RULE 10. RESERVOIRS 

Rule 10(a). Identifying reservoirs. When stored water is 

claimed, the legal land description of the impoundment structure, 

onstream and offstream designation, and the period of diversion will 

be identified. When available, the following reservoir data will be 

included: 

(1) dam height; 

(2) surface area; 

(3) reservoir depth; 

(4) maximum reservoir storage capacity; and 

(5) reservoir name. 

Rule 10(b). Reservoir data. The information in the claim 

along with other data gathered by the department will be used to 

check the reservoir designation. 

(1) The legal land description will be identified to the 

nearest reasonable and concise legal land description. 

(2) When a reservoir is claimed, the claimant will be 

contacted pursuant to Rule 44, W.R.C.E.R., to determine the period 

of diversion. 

(3) When the claimed volume is greater than 15 acre-feet 

and less than 50 acre-feet, and data are not sufficient to identify the 

size of the reservoir, the claimant may be contacted pursuant to 

Rule 44, W.R.C.E.R., or the size of the reservoir may be estimated 

by the department. 
30 

(4) When the claimed volume is greater than 50 acre-feet, 

the claimant will be contacted pursuant to Rule 44, W.R.C.E.R. A 

questionnaire may be sent to the claimant. 

In addition, an on-site visit may be conducted pursuant to 

Rule 44, W.R.C.E.R. Information to be obtained may include: 

(i) dam height; 

(ii) surface area; 

(iii) reservoir depth; 

(iv) maximum reservoir storage capacity; 

(v) date constructed; 

(vi) period of diversion into storage; 

(vii) period of use from storage; 

(viii) volume of use per year; 

(ix) carry-over storage; and 

(x) number of fills per year. 

Rule 10(c). Flow rate guidelines. The flow rate guidelines for 

claims involving reservoirs are found in the respective flow rate rule 

of the irrigation, domestic, stock, and other uses chapters. 

Rule 10(d). Volume guidelines. The volume guidelines for 

uses involving reservoirs are found in the respective volume rule of 

the irrigation, domestic, stock, and other uses chapters. 

Rule 10(e). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning reservoirs including: 
31 

(1) a notation of the reservoir as onstream or offstream; 

(2) the legal land description of the impoundment 

structure; 

(3) additional legal land descriptions identified by the 

department such as government lots, subdivisions, certificates of 

survey, homestead entry surveys, and mineral surveys; 

(4) the period of diversion; 

(5) the dam height, the surface area, reservoir depth, and 

reservoir name, when available; 

(6) identification of unique aspects or features of the 

reservoir; 

(7) a notation of changes made during the department 

examination; and 

(8) remarks concerning unresolved issues or questions 

about the claimed reservoir such as the following situations: 

(i) existence of the reservoir is unconfirmed; or 

(ii) maximum claimed storage capacity differs from 

department estimates. 

RULE 11. SOURCE 

Rule 11(a). Identifying source name. The source name will 

be identified using information in the claim along with other data 

gathered by the department. Source names for all claims on a 

particular source will be made consistent. 

(1) The United States Geological Survey (USGS) 

topographic maps will serve to substantiate the claimed source 

name. 

(2) If the source or source name cannot be substantiated 
32 

on the USGS maps, the department will review Water Resources 

Survey (WRS) maps, other published maps, or other available 

information to substantiate the claimed source name. In addition 

the claimant may be contacted pursuant to Rule 44, W.R.C.E.R. 

Rule 11(b). Identifying and reviewing multiple sources. 

When more than one source is indicated in a claim, the multiple 

sources will be identified according to this rule. The claimant may 

be contacted pursuant to Rule 44, W.R.C.E.R. When it appears 

that more than one water right is claimed, the claim will be sent to 

the water court requesting a review for possible implied claims 

pursuant to Rule 35, W.R.C.E.R. 

Rule 11(c). Changing claimed source. The department, as a 

result of its examination, may revise the claimed source name using 

the following standard descriptions to identify the same sources 

consistently: 

(1) streams, lakes, reservoirs, and named springs shall be 

standardized using, in order of preference, USGS topographic 

map, WRS map, or other published maps; 

(2) the most common colloquial name will serve to identify 

the source when not in conflict with the USGS or WRS maps; 

 (3) unnamed springs flowing into a named hydrological 

feature shall be named "Spring Unnamed Tributary of ________”; 

(4) named wells and unnamed wells shall be named 

"Well"; 

(5) unnamed streams, lakes, and reservoirs flowing into a 

named hydrological feature shall be named "Unnamed Tributary of 

 ____________”; and 

(6) other standard descriptions which accurately and 

consistently describe the source. 

Rule 11(d). Summary report. In the summary report to the 
33 

water court, the department shall provide on each abstract the 

following data and facts concerning the source: 

(1) the claimed source name or the standardized source 

name as identified by the department; 

(2) identification of the source type (surface water or 

groundwater); 

(3) identification of unique aspects or features of the 

source; 

(4) a notation of changes made during the department's 

examination; and 

(5) remarks concerning unresolved issues or questions 

about the claimed source. 

 RULE 12. PLACE OF USE (POU) 

Rule 12(a). Identifying place of use. The claimed POU will 

be identified and described by the nearest reasonable and concise 

legal land description and the associated irrigated acreage. 

(1) The information in the claim, aerial photographs, 

topographic maps, Water Resources Survey information, county 

land ownership records, U. S. National Forest Service maps, 

Bureau of Land Management maps, as well as other sources 

available to the department may be used to review the claimed 

POU and associated claimed acreage. 

(2) When the claimed legal land descriptions or claimed 

acreage cannot be substantiated, the claimant may be contacted 

pursuant to Rule 44, W.R.C.E.R. In addition, an on-site visit may 

be conducted pursuant to Rule 44, W.R.C.E.R. Discrepancies in 

the claimed place of use that may require claimant contact or an 

on-site visit include, but are not limited to: 

(i) no legal land description is given for the claimed 
34 

place of use; 

(ii) the claimed legal land description or claimed 

acreage is vague or incomplete; or 

(iii) the claimed legal land description or claimed 

acreage is inconsistent with the source, point of diversion, or other 

documentation or data. 

Rule 12(b). Examining place of use. The claimant's map 

and two or more post-priority date data sources, if available, will 

be used to examine the claimed irrigated acreage. 

(1) If the acreage identified by the department on any data 

source differs significantly from the claimed acreage, additional 

information will be gathered. 

(2) Acreage differences exceeding the amount defined in 

Exhibit B will require claimant contact pursuant to Rule 44, 

W.R.C.E.R. If additional facts are needed, the department may 

conduct an on-site visit pursuant to Rule 44, W.R.C.E.R. 

Rule 12(c). Overlapping place of use. When the department 

identifies a claimed POU of one party overlapping any portion of 

the claimed POU of another party, both parties will be contacted 

pursuant to Rule 44, W.R.C.E.R. If the parties do not reach 

agreement among themselves resolving the overlapping POUs, the 

overlap shall be identified as an issue in the summary report to 

the water court. This section may not apply when one or more of 

the parties is a ditch company or other water supply organization. 

Rule 12(d). Changing place of use. The claimed place of use 

and acreage irrigated of a water right will not be changed during 

the department's examination unless: 

(1) amended by the claimant; or 

(2) clarified by the department to the nearest reasonable 
35 

and concise legal land description. 

Rule 12(e). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the place of use: 

(1) the claimed or clarified acreage; 

(2) the claimed or clarified legal land description; 

(3) additional legal land descriptions identified by the 

department such as government lots, subdivisions, certificates of 

survey, homestead entry surveys, and mineral surveys; 

(4) identification of unique aspects or features of the place 

of use; 

(5) a notation of changes made during the department's 

examination; and 

(6) remarks concerning unresolved issues or questions 

about the claimed place of use such as the following situations: 

(i) the acreage found on a data source differs from 

the acreage claimed by more than the amount specified in Exhibit 

B; 

Example: 

USDA AERIAL PHOTOGRAPH NO. 179-150, DATED 11-05-79, 

APPEARS TO INDICATE 50.00 ACRES IRRIGATED. A 

DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. 

or 

(ii) overlapping places of use on claims by different 

owners. 
36 

Example: 

THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT 

WERE FILED BY DIFFERENT PARTIES WHO CLAIM 

OVERLAPPING PLACES OF USE. 000000-00, 000000-00, 

000000-00, 000000-00. 

 RULE 13. PRIORITY DATE 

Rule 13(a). Identifying priority date. The claimed priority 

date and claimed type of historical right will be identified from the 

submitted documentation in the claim along with other data 

gathered by the department. 

Rule 13(b). Type of historical right. The type of 

historical right (i.e., use right, filed appropriation right, decreed 

right, reserved right) will be identified based on the definitions in 

Rule 2, W.R.C.E.R. 

(1) If the claimed type of historical right differs from the 

definitions, or the information available is insufficient to 

substantiate the type of historical right, the claimant will be 

contacted pursuant to Rule 44, W.R.C.E.R. 

(2) Claims for reserved rights will not be examined while 

negotiations for the conclusion of a compact under Title 85, 

Chapter 2, Part 7, MCA, are being pursued except as directed by 

the water court. 

Rule 13(c). Standardizing incomplete priority date. Each 

claim will be reviewed to identify that the priority date (i.e., day, 

month, and year) on the claim form is complete and consistent 

with the submitted documentation. 

(1) When no specific day, month, season, or year date is 

on the claim form, information in the claim file will be checked to 

see if a complete priority date exists. 

(2) The priority date on the claim form will be compared 

with the priority date referred to in the submitted documentation. 
37 

(3) Late claims will be reviewed to determine their 

subordination status pursuant to 85-2-221(3), MCA. An 

enforceable priority date of June 30, 1973 (11:59 P.M.) will be 

assigned to late claims that are subordinate to valid, timely filed 

claims under § 85-2-221(3)(f)(i), MCA. 

Rule 13(d). Examining priority date. When the claimed 

priority date is inconsistent, the department will gather further 

facts and data pertaining to the specific claim. The claimant may 

be contacted pursuant to Rule 44, W.R.C.E.R. Discrepancies in 

the claimed priority date that may require claimant contact 

include, but are not limited to: 

(1) documentation to support a decreed or filed 

appropriation right was not submitted; 

(2) no priority date has been claimed; 

(3) the priority date on the claim form of a decreed right 

differs or cannot be identified from the submitted documentation; 

(4) the priority date on the claim form of a filed surface 

water appropriation (1885 surface water statutes) is other than the 

earliest date on the document; 

(5) the priority date on the claim form of a filed 

groundwater appropriation (1961 groundwater statutes, sections 

89-2911 et seq., RCM 1947) is not supported with documentation 

or is other than the date the documentation was filed with the 

county clerk and recorder; 

 (6) the priority date on the claim form of a use right is 

other than the date of first use or as specified in the 

documentation; 

(7) the source or POU on the claim form differs 

significantly from the source or POU provided in the priority date 
38 

documentation; 

(8) duplicate claims of the same water right filed by the 

same individual are identified; 

(9) the claimed priority date is post-June 30, 1973; 

(10) the claimed priority date is earlier than settlement 

within a basin or subbasin according to historical records; 

(11) a sprinkler system is claimed with a priority date 

preceding 1950; or 

(12) the claimed priority date of any claim based on the 

same documentation is inconsistent. 

Rule 13(e). Multiple priority dates. When more than one 

priority date is indicated in a claim, the multiple priority dates will 

be identified according to this rule. The claimant may be 

contacted pursuant to Rule 44, W.R.C.E.R. When the two or more 

priority dates are confirmed, the claim will be sent to the water 

court requesting a review for possible implied claims pursuant to 

Rule 35, W.R.C.E.R. 

Rule 13(f). Changing priority dates. The claimed type of 

water right or priority date will not be changed during the 

department's examination unless: 

(1) amended by the claimant; and 

(2) clarified by the department; 

(3) to complete day, month, season date or general year 

when the claimed priority date is incomplete: 

(i) if no day date, the last day of the month will be 

used; 
39 

(ii) if no month date, the last month of the year will 

be used; 

(iii) if a general year is claimed, the date at the end 

of the period will be used; 

(iv) if a season is claimed, the following dates will be 

used: 

(A) Fall - December 19, 

(B) Winter - March 19, 

(C) Spring - June 19, 

(D) Summer - September 19; 

(4) to reflect the date a GW2 or GW3 groundwater notice 

was filed with the county clerk in compliance with the 1961 

groundwater statutes. The following remark shall be added to the 

water right abstract: 

Example: 

THE PRIORITY DATE OF THIS WATER RIGHT HAS BEEN 

CHANGED TO THE DATE OF FILING THE NOTICE OF 

COMPLETION OF GROUNDWATER APPROPRIATION (FORM 

GW2/GW3). THE PRIORITY DATE MAY BE CONTESTED BY 

PROPER OBJECTION. 

or 

(5) to reflect the date the claim form was received by the 

department when no indication that a groundwater notice was 

filed in compliance with the 1961 groundwater statutes. The 

following remarks shall be added to the water right abstract: 

Examples: 

THIS IS AN EXISTING RIGHT. ITS POST 1973 PRIORITY DATE 
40 

IS DECREED PURSUANT TO SECTION 85-2-306(2) MCA. 

THE PRIORITY DATE OF THIS WATER RIGHT HAS BEEN 

CHANGED TO THE FILING DATE OF THE STATEMENT OF 

CLAIM. THE PRIORITY DATE MAY BE CONTESTED BY 

PROPER OBJECTION. 

Rule 13(g). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the priority date: 

(1) the claimed or clarified type of historical right; 

(2) the claimed or clarified priority date, or the priority 

date as specified in these rules; 

(3) identification of unique aspects or features of the 

priority date; 

(4) a notation of changes made during the department's 

examination; and 

(5) remarks concerning unresolved issues or questions 

about the claimed priority date such as the following situations: 

(i) questions concerning the claimed priority date or 

claimed type of historical right as specified in this rule; 

(ii) a use right or a filed right appears improperly 

claimed on a prior decreed source; or 

(iii) no priority date has been claimed. 

 RULE 14. FLOW RATE 

Rule 14(a). Identifying flow rate. Facts and information 

concerning flow rate for the claimed system will be identified using 

information in the claim along with other data gathered by the 

department. 
41 

Rule 14(b). Guideline. The guideline for irrigation within a 

basin or subbasin will be the flow rate necessary to reasonably 

irrigate one acre of crop. 

(1) The flow rate guideline will be 17 gallons per minute 

per acre (gpm/ac) and was based on: 

(i) the commonly accepted method of irrigation; 

(ii) the peak consumptive use of alfalfa during a 

drought year growing season; and 

(iii) a reasonable efficiency for the method of 

irrigating the field. 

(2) The flow rate guideline for reservoirs associated with 

irrigation use claims will be as follows: 

(i) for onstream reservoirs a flow rate guideline will 

not be identified. 

(ii) for offstream reservoirs the flow rate guideline for 

storage will be the capacity of the diversion and conveyance 

system. If there is no information regarding the capacity of the 

diversion and conveyance system, or the system is shared by more 

than one claimant, the flow rate guideline of 17 gpm/ac will be 

used. 

(3) The department, in conjunction with the water court, 

may hold public meetings within the basin or subbasin to gather 

further facts, data, and public comment so that reasonable water 

use guidelines are identified for the area. See Rule 32, W.R.C.E.R. 

Rule 14(c). Examining flow rate. When the claimed flow rate 

differs from the guideline, the department may gather further data 

and facts in an attempt to determine the actual flow rate for the 

specific claim. The claimant may be contacted pursuant to Rule 
42 

44, W.R.C.E.R. In addition, an on-site visit may be conducted 

pursuant to Rule 44, W.R.C.E.R. Discrepancies that may require 

claimant contact include, but are not limited to: 

(1) the claimed flow rate on a per acre basis exceeds the 

guideline using the acreage identified by the department; 

(2) the claimed flow rate appears insufficient to satisfy the 

purpose; and 

(3) no flow rate was claimed. 

Rule 14(d). Type of historical right. Changes may be made 

to the claimed flow rates for the following types of irrigation 

claims. 

(1) For irrigation claims based on prior decreed rights, no 

changes to the claimed flow rate will be made. If the 

claimed flow exceeds 17 gpm/ac guideline, a remark shall be 

added to the water right abstract: 

Example: 

THE CLAIMED FLOW RATE EXCEEDS THE 17 GPM PER 

ACRE GUIDELINE AND CANNOT BE CONFIRMED DUE TO 

LACK OF DATA. THE FLOW RATE EQUALS XX.XX GPM PER 

ACRE. 

(2) For irrigation claims based on filed appropriation or 

use rights, where an onstream reservoir is not the primary means 

of diversion, flow rates exceeding 17 gpm/ac will be reduced to 

this guideline unless: 

(i) information in the claim file clearly substantiates 

the claimed flow rate; or 

(ii) information to support the actual flow rate is 

obtained through claimant contact. 
43 

When a claimed flow rate is reduced to the 17 gpm/ac guideline, a 

remark shall be added to the water right abstract: 

Example: 

THE FLOW RATE OF THIS CLAIM HAS BEEN REDUCED TO 

THE GUIDELINE OF 17 GPM PER ACRE. THE FLOW RATE 

MAY BE CONTESTED BY PROPER OBJECTION. 

(3) For irrigation claims involving only water from 

onstream reservoirs based on filed appropriation or use rights, a 

flow rate will not be decreed. A remark shall be added to the water 

right abstract: 

Example: 

A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR 

THIS USE FROM THIS ONSTREAM RESERVOIR. 

(4) For irrigation claims involving a reservoir where stored 

water is not utilized, a flow rate will be decreed. A remark shall be 

added to the water right abstract: 

Example: 

PRIMARILY A DIRECT FLOW SYSTEM; FLOW RATE 

RETAINED. 

(5) For direct flow water spreading irrigation systems 

without reservoirs, a flow rate will not be decreed. A remark shall 

be added to the water right abstract: 

Example: 

A SPECIFIC FLOW RATE HAS NOT BEEN DECREED 

BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER 

SPREADING. 

(6) For natural subirrigation or natural overflow, a flow 

rate will not be decreed. A remark shall be added to the water 

right abstract: 
44 

Examples: 

NO FLOW RATE HAS BEEN DECREED FOR THIS USE OF 

NATURAL SUBIRRIGATION. 

NO FLOW RATE HAS BEEN DECREED FOR THIS NATURAL 

OVERFLOW METHOD OF IRRIGATION. 

Rule 14(e). Decree exceeded. When the flow rate of a prior 

decreed water right has been exceeded by respectively filed claims, 

the parties involved will be contacted pursuant to Rule 44, 

W.R.C.E.R. If the parties do not reach agreement among 

themselves to correct the over-claimed flow rate, the issue shall be 

identified in the department's summary report to the water court. 

Rule 14(f). Changing flow rates. The claimed flow rate will 

not be changed during the department's examination unless: 

(1) amended by the claimant; 

(2) clarified by the department; 

(3) as authorized in part (d) of this rule; and 

(4) standardized as to units of measure according to Rule 

4, W.R.C.E.R. 

Rule 14(g). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the flow rate: 

(1) the claimed or clarified flow rate, or changes 

authorized by this rule; 

(2) identification of unique aspects or features of the flow 

rate; 

(3) a notation of changes made during the department's 

examination; and 
45 

(4) remarks concerning unresolved issues or questions 

about the claimed flow rate, such as the claimed flow rate appears 

excessive for the specific application and delivery methods. 

 RULE 15. VOLUME 

Rule 15(a). Identifying volume. Facts and information 

concerning the volume of the claimed system will be identified 

using information in the claim along with other data gathered by 

the department. 

Rule 15(b). Identifying climatic area. The climatic area of 

the claimed place of use will be identified on the abstract of each 

irrigation right. The climatic area identification will be determined 

from the United States Department of Agriculture Natural 

Resource Conservation Service climatic area map of Montana. 

Rule 15(c). Direct flow irrigation claims. For direct flow 

irrigation claims, except water spreading systems and irrigation 

systems involving reservoirs, a volume will not be decreed. A 

remark shall be added to the abstract of direct flow irrigation 

rights. 

Example: 

THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED 

THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 

Rule 15(d). Direct flow irrigation claims decreed by 

volume in prior decree. If a direct flow irrigation claim has been 

decreed by volume in a prior decree, the claimed volume shall be 

included on the water right abstract. A remark shall be added: 

Example: 

THIS VOLUME WAS DECREED IN A PRIOR DECREE, CASE 

NUMBER 2345, MISSOULA COUNTY, MONTANA. 
46 

Rule 15(e). Decreeing volume for water spreading irrigation 

systems without reservoirs. A volume for water spreading 

irrigation systems without reservoirs will be decreed. The volume 

guideline for these systems will be the peak consumptive use of 

alfalfa in a drought year growing season. 

(1) The peak consumptive uses of alfalfa in a drought year 

growing season, listed by climatic area are: 

(i) Climatic Area I 2.3 acre-feet per acre; 

(ii) Climatic Area II 2.0 acre-feet per acre; 

(iii) Climatic Area III 1.9 acre-feet per acre; 

(iv) Climatic Area IV 1.7 acre-feet per acre; and 

(v) Climatic Area V 1.4 acre-feet per acre. 

(2) When the claimed volume on a water spreading claim 

exceeds the guideline, the volume will be reduced to the guideline 

unless: 

(i) information in the claim file clearly substantiates 

the claimed volume; or 

(ii) information to support the actual volume is 

obtained through claimant contact. 

When the claimed volume is reduced to the water spreading 

guideline, a remark shall be added to the water right abstract: 

Example: 

THE VOLUME OF THIS CLAIM HAS BEEN REDUCED TO THE 

GUIDELINE OF X.XX ACRE FEET PER ACRE. THE VOLUME 

MAY BE CONTESTED BY PROPER OBJECTION. 

Rule 15(f). Decreeing volume for irrigation systems with 
47 

stored water from reservoirs. The claimed volume for irrigation 

systems using stored water from reservoirs will be decreed. There 

is no specific volume guideline for these systems. To confirm the 

claimed volume, facts and data will be collected by the department 

following the procedures specified in Rule 10(b), W.R.C.E.R. 

For irrigation claims involving a reservoir where stored water is 

not utilized, a volume will not be decreed. A remark shall be 

added to the water right abstract: 

Example: 

PRIMARILY A DIRECT FLOW SYSTEM; VOLUME NOT 

DECREED. 

Rule 15(g). Changing volume. The claimed volume will not 

be changed during the department's examination unless: 

(1) amended by the claimant; 

(2) clarified by the department; 

(3) as authorized in parts (c) and (e) of this rule; or 

(4) standardized as to units of measure according to Rule 

4, W.R.C.E.R. 

Rule 15(h). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the volume: 

(1) the claimed or clarified volume, or changes authorized 

by this rule; 

(2) climatic area; 

(3) identification of unique aspects or features of the 

volume; 

(4) a notation of changes made during the department's 
48 

examination; and 

(5) remarks concerning unresolved issues or questions 

about the claimed volume, such as the following situations: 

(i) the maximum feasible volume when the flow rate 

to be decreed cannot deliver the volume to be decreed during the 

claimed period of use; 

(ii) when a claimed volume to be decreed is greater 

than two times the capacity of the reservoir or exceeds a 

reasonable number of fills; or 

(iii) no volume claimed. 

RULE 16. PERIOD OF USE 

Rule 16(a). Identifying period of use. Facts and information 

concerning the period of use will be identified using information in 

the claim along with other data gathered by the department. The 

period of use will be identified by the earliest month and day to the 

latest month and day that water has been used within a calendar 

year. 

(1) The claimed period of use of flood and sprinkler systems 

will be compared to the following irrigation period of use 

guidelines: 

(i) Climatic Area I: March 15 to November 15; 

(ii) Climatic Area II: April 1 to October 30; 

(iii) Climatic Area III: April 15 to October 15; 

(iv) Climatic Area IV: April 20 to October 10; and 

(v) Climatic Area V: April 25 to October 5. 

(2) The period of use guideline for claims involving water 
49 

spreading systems, natural subirrigation and natural overflow will 

be year round use. 

(3) The documentation will be examined for conditions or 

limitations that may exist on the period of use. 

Rule 16(b). Examining period of use. When the claimed 

period of use is incomplete or inconsistent, the department will 

gather further facts and data pertaining to the specific claim. The 

claimant may be contacted pursuant to Rule 44, W.R.C.E.R. 

Discrepancies in the claimed period of use that may require 

claimant contact include, but are not limited to: 

(1) no period of use is claimed; 

(2) the claimed period of use differs significantly from the 

period of use guidelines specified in this rule; or 

(3) the period of use on the claim form differs significantly 

from the period of use specified in the documentation. 

Rule 16(c). Changing period of use. The claimed period of 

use of a water right will not be changed during the department's 

examination unless: 

(1) amended by the claimant; 

(2) clarified by the department; or 

(3) to complete the period of use to year round for claims 

involving water spreading systems, natural subirrigation and 

natural overflow when no period of use has been claimed or the 

period of use claimed is not year round and there are no reasons 

in accordance with these examination rules to contact the 

claimant. 

Rule 16(d). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 
50 

following data and facts concerning the period of use: 

(1) the claimed or clarified period of use, or changes 

authorized by this rule; 

 

 (2) identification of unique aspects or features of the 

period of use, such as: the right includes or is limited to high or 

flood waters. 

(3) a notation of changes made during the department's 

examination; and 

(4) remarks concerning unresolved issues or questions 

about the claimed period of use such as the claimed period of use 

exceeds the guidelines for the climatic area. 

Example: 

THE CLAIMED PERIOD OF USE EXCEEDS THE USUAL 

GROWING SEASON FOR THIS CLIMATIC AREA WHICH IS 

APRIL 15 TO OCTOBER 19. 

III. DOMESTIC CLAIMS 

 RULE 17. REFERENCE TO IRRIGATION CHAPTER 

This chapter applies to claims for domestic, multiple domestic and 

lawn and garden uses. Except as specifically provided in this 

chapter, the department's examination of domestic claims shall 

follow the procedures described in Chapter II for irrigation claims. 

 This chapter contains specific examination procedures for the 

following elements of a domestic water right: 

(1) place of use; 

(2) flow rate and volume; and 

(3) period of use. 

 RULE 18. PLACE OF USE (POU) 
51 

Rule 18(a). Identifying place of use. The place of use for 

domestic purposes will be identified and described by the nearest 

reasonable and concise legal land description and the associated 

irrigated acreage. The POU may include the house, garden or 

other facilities for this purpose. 

(1) The information in the claim, topographic maps, aerial 

photographs, Water Resources Survey information, county land 

ownership records, U. S. National Forest Service maps, Bureau of 

Land Management maps, as well as other sources available to the 

department may be used to review the claimed POU and 

associated claimed acreage. 

(2) When the claimed legal land description or claimed 

acreage cannot be substantiated, the department will gather 

further facts and data. The claimant may be contacted for 

additional information pursuant to Rule 44, W.R.C.E.R. 

Discrepancies in the claimed place of use that may require 

claimant contact include, but are not limited to: 

(i) no legal land description is given for the claimed 

place of use; 

(ii) the claimed legal land description or claimed 

acreage is vague or incomplete; 

(iii) the claimed legal land description or claimed 

acreage is inconsistent with the source, point of diversion, or 

purpose claimed; and 

(iv) a claimed POU of one party overlaps any portion 

of the claimed POU of another party. 

Rule 18(b). Examining place of use. The claimant's map(s) 

and at least one other post-priority date data source, when 

available, will be used to examine the acreage claimed. 

(1) When the acreage claimed exceeds a reasonable 
52 

acreage, generally 5 acres, for lawn and garden or shelterbelt 

purposes, the claimant will be contacted pursuant to Rule 44, 

W.R.C.E.R. 

(2) When the acreage identified by the department differs 

from the acreage claimed by more than the amount specified in 

exhibit B, the claimant will be contacted pursuant to Rule 44, 

W.R.C.E.R. 

Rule 18(c). Changing place of use. The claimed place of use 

of a water right will not be changed during the department's 

examination unless: 

(1) amended by the claimant; or 

(2) clarified by the department to the nearest reasonable 

and concise legal land description. 

Rule 18(d). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the place of use: 

(1) the claimed or clarified irrigated acreage; 

(2) the claimed or clarified legal land description; 

(3) additional legal land descriptions identified by the 

department such as government lots, subdivisions, certificates of 

survey, homestead entry surveys, and mineral surveys; 

(4) identification of unique aspects or features of the place 

of use; 

(5) a notation of changes made during the department's 

examination; and 

(6) remarks concerning unresolved issues or questions 

about the claimed place of use such as the following situations: 
53 

(i) the acreage found on a data source differs from 

the acreage claimed by more than the amount specified in Exhibit 

B; or 

(ii) the claimed place of use could not be identified. 

 RULE 19. FLOW RATE AND VOLUME 

Rule 19(a). Identifying flow rate and volume. Facts and 

information concerning flow rate and volume for domestic use will 

be identified using information in the claim along with other data 

gathered by the department. 

Rule 19(b). Guidelines. The flow rate and volume guidelines 

for domestic use within a basin or subbasin will be as follows: 

(1) the flow rate guideline that would reasonably supply 

domestic use will be 35 gallons per minute; 

(2) the volume guideline will be: 

(i) one and one-half acre-feet per household; 

(ii) two and one-half acre-feet per acre of lawn and 

garden or shelter belt up to a reasonable amount for domestic 

irrigation (generally 5 acres or less); 

(3) the flow rate and volume guidelines for reservoirs 

associated with domestic use claims will be as follows: 

(i) for domestic use involving only water from 

onstream reservoirs a flow rate guideline will not be identified, and 

a flow rate will not be decreed. A remark shall be added to the 

water right abstract; 

Example: 

A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR 

THIS USE FROM THIS ONSTREAM RESERVOIR. 
54 

(ii) for offstream reservoirs the flow rate guideline for 

storage will be the capacity of the diversion and conveyance 

system. If there is no information regarding the capacity of the 

diversion and conveyance system, or the system is shared by more 

than one claimant, the flow rate guideline of 35 gallons per minute 

will be used; 

(iii) the volume guideline will be one and one half 

acre-feet per household and two and one-half acre-feet per acre of 

lawn and garden or shelterbelt, plus a reasonable amount for 

evaporation. The minimum volume guideline for domestic use will 

be 1.5 acre-feet. 

Rule 19(c). Identifying number of households. The 

department will use the information in the claim as well as other 

information to identify the number of households served by the 

water right in the place of use. 

(1) Domestic claims - the number of households for a 

domestic claim is one. 

(2) Multiple domestic claims - the number of households 

may be calculated based on: 

(i) the number of persons or households indicated in 

the claim (five persons will be considered equivalent to one 

household); or 

(ii) the number of dwellings indicated on a map or 

an aerial photograph of the place of use. 

(3) When the number of households cannot be identified 

from the claim or available information, the claimant will be 

contacted pursuant to Rule 44, W.R.C.E.R. 

Rule 19(d). Examining flow rate and volume. When the 

claimed flow rate or volume differs from the guideline, the 
55 

department will gather further data and facts in an attempt to 

determine the actual flow rate or volume for the specific claim. 

The claimant may be contacted pursuant to Rule 44, W.R.C.E.R. 

Discrepancies that may require claimant contact include, but are 

not limited to: 

(1) the number of households or the number of acres of 

domestic irrigation cannot be determined; 

(2) the claimed flow rate exceeds the guideline; 

(3) the claimed volume exceeds the guideline for number 

of households plus lawn and garden or shelterbelt acreage; or 

(4) the claimed flow rate or claimed volume appear to be 

in error, inconsistent, or insufficient to satisfy the purpose. 

Rule 19(e). Decree exceeded. When the flow rate of a prior 

decreed water right has been exceeded by respectively filed claims, 

the parties involved may be contacted pursuant to Rule 44, 

W.R.C.E.R. If the parties do not reach agreement among 

themselves and correct the over claimed flow rate, the issue shall 

be identified in the department's summary report to the water 

court. 

Rule 19(f). Changing flow rate and volume. The claimed 

flow rate and volume of a water right will not be changed during 

the department's examination unless: 

(1) amended by the claimant; 

(2) clarified by the department; 

(3) as authorized in part (b) of this rule; or 

(4) standardized as to units of measure according to Rule 

4, W.R.C.E.R. 
56 

Rule 19(g). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the flow rate and volume: 

(1) the claimed or clarified flow rate, or changes 

authorized by this rule; 

(2) the claimed or clarified volume, or changes authorized 

by this rule; 

(3) identification of unique aspects or features of the flow 

rate and volume; 

(4) a notation of changes made during the department's 

examination; and 

(5) remarks concerning unresolved issues or questions 

about the claimed flow rate and volume such as the following 

situations: 

(i) the claimed flow rate or volume cannot be 

confirmed or appears excessive for this purpose; or 

(ii) the claimed volume exceeds the maximum 

feasible volume when the claimed flow rate cannot deliver the 

claimed volume during the claimed period of use. 

 RULE 20. PERIOD OF USE 

Rule 20(a). Identifying period of use. Facts and information 

concerning the period of use for domestic purposes will be 

identified using the information in the claim together with any 

other data gathered by the department. The period of use will be 

identified by the earliest month and day to the latest month and 

day that water has been used within a calendar year. 

(1) The period of use guideline for domestic and multiple 

domestic purposes will be year round use. 
57 

(2) The irrigation period of use guidelines specified in Rule 

16, W.R.C.E.R. will be the criteria for examining lawn and garden 

purposes. 

(3) The documentation will be examined for conditions or 

limitations that may exist on the period of use. 

Rule 20(b). Examining period of use. When the claimed 

period of use is incomplete or inconsistent, the department will 

gather further facts and data pertaining to the specific claim. The 

claimant may be contacted pursuant to Rule 44, W.R.C.E.R. 

Discrepancies in the claimed period of use that may require 

claimant contact include, but are not limited to: 

(1) no period of use is claimed; 

(2) the claimed period of use differs significantly from the 

period of use guidelines specified in this rule; or 

(3) the period of use on the claim form differs significantly 

from the period of use specified in the documentation. 

Rule 20(c). Changing periods of use. The claimed period of 

use of a water right will not be changed during the department's 

examination unless: 

(1) amended by the claimant; 

(2) clarified by the department; or 

(3) to complete the period of use to year round for 

domestic and multiple domestic claims when no period of use has 

been claimed. 

Rule 20(d). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the period of use: 
58 

(1) the claimed or clarified period of use, or changes 

authorized by this rule; 

(2) identification of unique aspects or features of the 

period of use; 

(3) a notation of changes made during the department's 

examination; and 

(4) remarks concerning unresolved issues or questions 

about the claimed period of use as specified in this rule. 

IV. STOCKWATER CLAIMS 

 RULE 21. REFERENCE TO IRRIGATION CHAPTER 

 Except as specifically provided in this chapter, the 

department's examination of stockwater claims shall follow the 

procedures described in Chapter II for irrigation claims. This 

chapter contains specific examination procedures for the following 

elements of a stock water right: 

(a) point of diversion; 

(b) place of use; 

(c) flow rate and volume; and 

(d) period of use. 

 RULE 22. POINT OF DIVERSION (POD) 

The department's examination of the claimed POD for 

stockwater claims shall follow the procedures described in Rule 8, 

W.R.C.E.R. In addition, the following procedures will apply to the 

examination of the POD for stockwater claims. 
59 

 (a) For direct instream surface water stock use, the legal land 

description of the POD will be the same as the legal land 

description of the POU. 

 (b) The claimed POD may be revised by the department so that 

the POD and POU legal land descriptions for direct instream 

surface water stock use will be the same. 

 RULE 23. PLACE OF USE (POU) 

RULE 23(a). Identifying place of use. The place of use for 

stock purposes will be identified and described by the nearest 

reasonable and concise legal land description. The POU is the 

actual place where the stock drink the water. 

(1) The information in the claim, topographic maps, aerial 

photographs, U. S. National Forest Service maps, Bureau of Land 

Management maps, Water Resources Survey information, county 

land ownership records, as well as other sources available to the 

department may be used to review the POU legal land 

descriptions. 

(2) When the claimed legal land description cannot be 

substantiated, the department will gather further facts and data. 

The claimant may be contacted for additional information 

pursuant to Rule 44, W.R.C.E.R. Discrepancies in the claimed 

place of use that may require claimant contact or an on-site visit 

include, but are not limited to: 

(i) no legal land description is given for the claimed 

place of use; 

(ii) the claimed legal land description is incomplete; 

and 

(iii) the claimed legal land description is inconsistent 

with the source, point of diversion, or purpose claimed. 

RULE 23(b). Changing place of use. The claimed place of 
60 

use of a water right will not be changed during the department's 

examination unless: 

(1) amended by the claimant; 

(2) clarified by the department to the nearest reasonable 

and concise legal land description; or 

(3) revised so that the POU and POD legal land 

descriptions for direct instream surface water stock use will be the 

same. 

RULE 23(c). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the place of use: 

(1) the claimed or clarified legal land description or 

changes authorized by this rule; 

(2) additional legal land descriptions identified by the 

department such as government lots, subdivisions, certificates of 

survey, homestead entry surveys, and mineral surveys; 

(3) identification of unique aspects or features of the place 

of use; 

(4) a notation of changes made during the department's 

examination; and 

(5) remarks concerning unresolved issues or questions 

about the claimed place of use such as the claimed place of use 

could not be identified. 

 RULE 24. FLOW RATE AND VOLUME 

RULE 24(a). Identifying flow rate and volume. Facts and 

information concerning flow rate and volume for stockwater use 

will be identified using information in the claim along with other 

data gathered by the department. 
61 

RULE 24(b). Flow rate guideline. The flow rate guideline for 

stock use within a basin or subbasin will be as follows: 

(1) The flow rate guideline for wells, developed springs, 

pumped diversions, or gravity flow pipelines will be 35 gallons per 

minute. 

(2) There will be no flow rate guideline for stock drinking 

from the source either directly, from a ditch system, or from an 

undeveloped spring. For these types of stock use, a specific flow 

rate will not be decreed. A remark shall be added to the water 

right abstract. 

Example: 

A SPECIFIC FLOW RATE HAS NOT BEEN DECREED 

BECAUSE THIS USE CONSISTS OF STOCK DRINKING 

DIRECTLY FROM THE SOURCE OR FROM A DITCH SYSTEM. 

 THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT 

HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. 

(3) The flow rate guideline for reservoirs associated with 

stockwater use claims will be as follows: 

(i) For stockwater claims involving only water from 

on-stream reservoirs a flow rate guideline will not be identified, 

and a flow rate will not be decreed. A remark shall be added to the 

water right abstract. 

Example: 

A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR 

THIS USE FROM THIS ONSTREAM RESERVOIR. THE FLOW 

RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY 

NECESSARY TO SUSTAIN THIS PURPOSE. 
62 

(ii) For offstream reservoirs the flow rate guideline 

for storage will be the capacity of the diversion and conveyance 

system. If there is no information regarding the capacity of the 

diversion and conveyance system, or the system is shared by more 

than one claimant, the flow rate guideline of 35 gallons per minute 

will be used. 

RULE 24(c). Volume guideline. A volume for stockwater 

claims will not be quantified except as directed by the water court. 

 When a volume is not quantified, the following remark shall be 

added to the water right abstract. 

Example: 

THIS RIGHT INCLUDES THE AMOUNT OF WATER 

CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES 

AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. 

ANIMAL UNITS SHALL BE BASED ON REASONABLE 

CARRYING CAPACITY AND HISTORICAL USE OF THE AREA 

SERVICED BY THIS WATER SOURCE. 

If the water court directs that volumes be quantified for certain 

stockwater claims, the water court, in consultation with the 

department, shall determine appropriate volume guidelines. 

RULE 24(d). Examining flow rate and volume. When the 

claimed flow rate or volume differs from the guideline, the 

department will gather further data and facts in an attempt to 

determine the actual flow rate or volume for the specific claim. 

The claimant may be contacted pursuant to Rule 44, W.R.C.E.R. 

Discrepancies that may require claimant contact include, but are 

not limited to: 

(1) the claimed flow rate exceeds the guideline established 

for wells, developed springs, pumped diversion or gravity flow 

pipelines; or 

(2) the claimed flow rate for wells, developed springs, 

pumped diversion or gravity flow pipelines appears to be in error, 
63 

inconsistent or insufficient to satisfy the purpose. 

RULE 24(e). Decree exceeded. When the flow rate of a prior 

decreed water right has been exceeded by respectively filed claims, 

the parties involved may be contacted pursuant to Rule 44, 

W.R.C.E.R. If the parties do not reach agreement among 

themselves and correct the over claimed flow rate, the issue shall 

be identified in the department's summary report to the water 

court. 

RULE 24(f). Changing flow rate or volume. The claimed 

flow rate and claimed volume of a water right will not be changed 

during the department's examination unless: 

 (1) amended by the claimant; 

(2) clarified by the department; 

(3) as authorized in parts (b) and (c) of this rule; or 

(4) standardized as to units of measure according to Rule 

4, W.R.C.E.R. 

RULE 24(g). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the flow rate and volume: 

(1) the claimed or clarified flow rate, or changes 

authorized by this rule; 

(2) the claimed or clarified volume, or changes authorized 

by this rule; 

(3) identification of unique aspects or features of the flow 

rate and volume; 

(4) a notation of changes made during the department's 

examination; and 
64 

(5) remarks concerning unresolved issues or questions 

about the claimed flow rate and volume such as the claimed flow 

rate or volume to be decreed cannot be confirmed or appears 

excessive for this purpose. 

 RULE 25. PERIOD OF USE 

RULE 25(a). Identifying period of use. Facts and data 

concerning period of use for stockwater purposes will be identified 

using information in the claim along with other data gathered by 

the department. The period of use will be identified by the earliest 

month and day to the latest month and day that water has been 

used within a calendar year. 

(1) The period of use guideline for stockwater will be year 

round use. 

(2) The documentation will be examined for conditions or 

limitations that may exist on the period of use. 

RULE 25(b). Examining period of use. When the claimed 

period of use is incomplete or inconsistent, the department will 

gather further facts and data pertaining to the specific claim. The 

claimant may be contacted pursuant to Rule 44, W.R.C.E.R. 

Discrepancies in the claimed period of use that may require 

claimant contact include, but are not limited to: 

(1) no period of use is claimed; 

(2) the claimed period of use differs significantly from the 

period of use guideline specified in this rule; or 

(3) the period of use on the claim form differs significantly 

from the period of use specified in the documentation. 

RULE 25(c). Changing period of use. The claimed period of 

use of a water right will not be changed during the department's 

examination unless: 
65 

(1) amended by the claimant; 

(2) clarified by the department; or 

(3) no period of use was claimed for the stock claim and 

claimant contact is non-responsive, then the period of use may be 

changed to match a multiple use irrigation claim which shares the 

same point and means of diversion. 

RULE 25(d). Summary report. In the summary report to the 

water court, the Department shall provide on each abstract the 

following data and facts concerning the period of use: 

(1) the claimed or clarified period of use, or changes 

authorized by this rule; 

(2) identification of unique aspects or features of the 

period of use; 

(3) a notation of changes made during the department's 

examination; and 

(4) remarks concerning unresolved issues or questions 

about the claimed period of use as specified in this rule. 

V. OTHER USES CLAIMS 

 RULE 26. REFERENCE TO IRRIGATION CHAPTER 

Except as specifically provided in this chapter, the 

department's examination of other uses claims shall follow the 

procedures described in Chapter II for irrigation claims. This 

chapter contains specific examination procedures for the following 

elements of an "other uses" water right: 

(a) purpose; 

(b) place of use; 
66 

(c) flow rate and volume; 

 (d) period of use; and 

(e) point of diversion and means of diversion for instream or 

inlake appropriations. 

 RULE 27. PURPOSE 

Water right purposes categorized as “other uses” and governed 

by this rule include all uses of water for purposes other than 

stockwater, domestic, and irrigation. For example, these may 

include, but are not limited to: 

 (a) agricultural spraying; 

 (b) commercial; 

 (c) fire protection; 

 (d) fish and wildlife; 

 (e) fish raceways; 

 (f) industrial; 

 (g) institutional; 

 (h) mining; 

 (i) municipal; 

 (j) navigation; 

 (k) oil well flooding; 

 (l) power generation; 

 (m) recreation; and 

 (n) wildlife. 
67 

RULE 27(b). Identifying purpose. Facts and information 

concerning the purpose of a water right will be identified using the 

information in the claim together with any other data gathered by 

the department. 

Rule 27(c). Examining purpose. When the claimed purpose 

cannot be substantiated, the department will gather further facts 

and data pertaining to the specific claim. The claimant may be 

contacted pursuant to Rule 44, W.R.C.E.R. In addition, an on-site 

visit may be conducted pursuant to Rule 44, W.R.C.E.R. 

Discrepancies in the claimed purpose that may require claimant 

contact or an on-site visit include, but are not limited to: 

(1) the purpose cannot be discerned from the information 

in the claim; 

(2) the water use appears to be for a purpose other than 

that claimed; 

(3) the claimed purpose cannot be substantiated; or 

(4) several purposes are indicated in the claim as multiple 

uses of the right. Fire protection will be considered an incidental 

use. 

RULE 27(d). Questionnaire. A questionnaire requesting data 

concerning specific other uses may be sent to claimants. The 

questionnaire serves to gather facts and data describing the 

history, status, and operation of the claimed purpose. 

RULE 27(e). Municipal uses. A water right claim for 

municipal use that meets the presumption of nonabandonment 

provisions of 85-2-227, MCA must be examined following the 

procedures described in Rule 6, W.R.C.E.R. The department shall 

not add an issue remark regarding nonuse. The department shall 

 add the following clarifying remark to the water right abstract: 

Example: 
68 

THIS WATER RIGHT IS PRESUMED TO NOT BE 

ABANDONED PURSUANT TO 85-2-227, MCA. 

RULE 27(f). Multiple uses. All claims under one ownership 

will be reviewed to identify multiple uses of a right pursuant to 

Rule 41, W.R.C.E.R. 

RULE 27(g). Changing purpose. The claimed purpose of a 

water right will not be changed during the department's 

examination unless: 

(1) amended by the claimant; and 

(2) clarified by the department to identify similar 

purposes consistently. 

RULE 27(h). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the purpose of a right: 

(1) the claimed or clarified purpose; 

(2) identification of unique aspects or features of the 

purpose; 

(3) a notation of changes made during the department's 

examination; 

(4) remarks concerning unresolved issues or questions 

about the claimed purpose; and 

 (5) wildlife, recreation, and fish and wildlife claims that 

do not receive a factual or legal issue remark as a result of the 

claims examination process will receive the following remark: 

BECAUSE THIS CLAIM DID NOT RECEIVE A FACTUAL OR LEGAL 

ISSUE REMARK DURING THE CLAIMS EXAMINATION PROCESS, 

THE WATER COURT WILL NOT HOLD A HEARING ON THIS 
69 

CLAIM UNDER Matter of the Adjudication of Existing Rights in Basin 

41I, 2002 MT 216, 311 Mont. 327, 55 P.3d 396 UNLESS A VALID 

OBJECTION IS FILED UNDER SECTION 85-2-233, MCA, OR THE 

WATER COURT CALLS THE CLAIM IN ON ITS OWN MOTION 

UNDER RULE 8, W.R.ADJ.R. 

 (6) wildlife, recreation, and fish and wildlife claims that 

receive a factual or legal issue remark as a result of the claims 

examination process will receive the following remark: THE 

WATER COURT WILL HOLD A HEARING ON THIS CLAIM TO 

DETERMINE ITS VALIDITY SUBJECT TO SECTION 85-2-248, 

MCA, AND Matter of the Adjudication of Existing Rights in Basin 41I, 

2002 MT 216, 311 Mont. 327, 55 P.3d 396. A HEARING MAY 

ALSO BE HELD ON THIS CLAIM IF A VALID OBJECTION IS 

FILED UNDER SECTION 85-2-233, MCA, OR THE WATER COURT 

CALLS THE CLAIM IN ON ITS OWN MOTION UNDER RULE 8, 

W.R.ADJ.R. 

 RULE 28. PLACE OF USE (POU) 

RULE 28(a). Identifying place of use. The place of use for 

other use purposes will be identified and described to the nearest 

reasonable and concise legal land description. 

(1) The information in the claim, topographic maps, aerial 

photographs, Water Resources Survey information, county land 

ownership records, U. S. National Forest Service maps, Bureau of 

Land Management maps, as well as other sources available to the 

department may be used to review the POU legal land 

descriptions. 

(2) When the claimed POU cannot be substantiated, the 

department will gather further facts and data. The claimant may 

be contacted pursuant to Rule 44, W.R.C.E.R. In addition, an onsite visit may be requested, pursuant to Rule 44, W.R.C.E.R. 

Discrepancies in the claimed POU that may require claimant 

contact or an on-site visit include, but are not limited to: 

(i) no legal land description is given for the claimed 
70 

place of use; 

(ii) the claimed legal land description is vague or 

incomplete; or 

(iii) the claimed legal land description is inconsistent 

with the source, point of diversion, or purpose claimed; 

RULE 28(b). Changing place of use. The claimed legal land 

description will not be changed during the department's 

examination unless: 

(1) amended by the claimant; 

(2) clarified by the department to the nearest reasonable 

and concise legal land description; or 

(3) revised so that the POU and POD legal land 

descriptions for instream surface water use will be the same. 

RULE 28(c). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the place of use: 

(1) the claimed or clarified legal land description; 

(2) additional legal land descriptions identified by the 

department such as government lots, subdivisions, certificates of 

survey, homestead entry surveys, and mineral surveys; 

(3) identification of unique aspects or features of the place 

of use; 

(4) a notation of changes made during the department's 

examination; and 

(5) remarks concerning unresolved issues or questions 
71 

about the claimed place of use such as the claimed place of use 

could not be identified. 

 RULE 29. FLOW RATE AND VOLUME 

RULE 29(a). Identifying flow rate and volume. Facts and 

information concerning flow rate and volume for other uses will be 

identified using information in the claim along with other data 

gathered by the department. 

RULE 29(b). Guidelines for claims with a diversion but 

without a reservoir. The flow rate and volume guidelines for the 

following types of other uses claims within a basin or subbasin, 

involving a diversion but not involving a reservoir, will be: 

(1) All other uses except mining, fire protection, 

municipal, agricultural spraying. 

(i) The flow rate guideline will be the capacity of the 

diversion and conveyance system using information in the claim 

and other data gathered by the department. 

(ii) The volume guideline will be identified as that 

which appears reasonable and customary for the specific purpose 

using information in the claim and other data gathered by the 

department. 

(2) Mining. 

(i) The flow rate guideline will be the capacity of the 

diversion and conveyance system using information in the claim 

and other data gathered by the department. 

(ii) A volume guideline will not be identified, and a 

volume will not be decreed. A remark will be added to the water 

right abstract. 

Example: 

THIS RIGHT IS LIMITED TO THE VOLUME OF WATER 
72 

HISTORICALLY USED FOR MINING PURPOSES. 

(3) Fire Protection. 

(i) The flow rate guideline will be the capacity of the 

diversion and conveyance system using information in the claim 

and other data gathered by the department. 

(ii) A volume guideline will not be identified, and no 

volume will be decreed. A remark will be added to the water right 

abstract. 

Example: 

THE VOLUME OF THIS RIGHT IS LIMITED TO THE MINIMUM 

AMOUNTS NECESSARY FOR FIRE PROTECTION PURPOSES. 

(4) Municipal. 

(i) The flow rate guideline will be the capacity of the 

diversion and conveyance system using information in the claim 

and other data gathered by the department. 

(ii) The volume guideline will be 250 gallons per 

capita per day. 

(5) Agricultural Spraying. 

(i) The flow rate guideline will be the capacity of the 

diversion and conveyance system using information in the claim 

and other data gathered by the department. 

(ii) The volume guideline will be 2 acre-feet per year 

or 4 acre-feet per year if a reservoir is involved. 

RULE 29(c). Guidelines for claims with reservoirs. The flow 

rate guideline and volume guideline for other uses claims with 

reservoirs will be as follows: 
73 

 (1) for other uses claims involving only water from onstream reservoirs, a flow rate guideline will not be identified, and a 

flow rate will not be decreed. The following remark shall be added 

to the water right abstract: 

Example: 

A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR 

THIS USE FROM THIS ONSTREAM RESERVOIR. 

(i) For offstream reservoirs the flow rate guideline for 

storage will be the capacity of the diversion and conveyance 

system. If there is no information regarding the capacity of the 

diversion and conveyance system, or the system is shared by more 

than one claimant, the flow rate guideline will be that which 

appears reasonable and customary for the specific purpose. 

(ii) The volume for other uses claims involving 

reservoirs will be decreed. The volume guideline for these systems 

will be as follows: 

(A) When the claimed volume is less than 15 

acre-feet, it will generally be accepted as claimed; 

(B) When the claimed volume is greater than 15 

acre-feet, facts and data will be collected by the department 

following the procedures specified in Rule 10, W.R.C.E.R. The 

volume guideline will be the maximum storage capacity plus the 

estimate of evaporation. 

RULE 29(d). Guidelines for instream use. For all instream 

other uses claims, other than claims filed by the Montana 

Department of Fish, Wildlife and Parks on Murphy Right streams 

as identified under section 85-801, R.C.M. 1947 (1969), the flow 

rate and volume guidelines will be the minimum amount 

necessary to sustain the specific purpose using information in the 

claim and other data gathered by the department. 

RULE 29(e). Examining flow rate and volume. When the 
74 

claimed flow rate or claimed volume differs from the guideline for 

the identified purpose, the department may gather further data 

and facts in an attempt to determine the actual flow rate or 

volume for the specific claim. The claimant may be contacted 

pursuant to Rule 44, W.R.C.E.R. In addition, an on-site visit may 

be conducted pursuant to Rule 44, W.R.C.E.R. Discrepancies that 

may require claimant contact or an on-site visit include, but are 

not limited to: 

(1) a guideline for flow rate or volume cannot be determined 

from the available information; 

(2) the claimed flow rate or claimed volume exceeds the 

guideline for the identified purpose; or 

(3) the claimed flow rate or claimed volume appear to be 

in error, inconsistent or insufficient to satisfy the identified 

purpose. 

Rule 29(f). Flow rate and volume for Murphy right claims. 

For all claims filed by the Montana Department of Fish, Wildlife 

and Parks on Murphy Right streams as identified under section 

85-801, R.C.M. 1947 (1969), the claimed flow rate and volume 

will be decreed. 

Rule 29(g). Type of historical right. Changes may be made 

to the claimed flow rates and claimed volumes for the following 

types of other uses claims: 

(1) for other uses claims based on prior decreed rights, no 

changes to the claimed flow rate will be made; 

(2) for other uses claims based on filed appropriation or 

use rights, flow rates will be reduced to the guideline unless: 

(i) information in the claim file clearly substantiates 

the claimed flow rate and volume; or 
75 

(ii) information to support the actual flow rate and 

volume is obtained through claimant contact. 

When a claimed flow rate or volume is reduced to the 

guideline, a remark shall be added to the water right abstract: 

Examples: 

THE FLOW RATE OF THIS CLAIM HAS BEEN REDUCED TO 

THE GUIDELINE OF _____________. THE FLOW RATE MAY 

BE CONTESTED BY PROPER OBJECTION. 

THE VOLUME OF THIS CLAIM HAS BEEN REDUCED TO 

THE GUIDELINE OF _____________. THE VOLUME MAY BE 

CONTESTED BY PROPER OBJECTION. 

Rule 29(h). Decree exceeded. When the flow rate of a prior 

decreed water right has been exceeded by respectively filed claims, 

the parties involved must be contacted pursuant to Rule 44, 

W.R.C.E.R. If the parties do not reach agreement among 

themselves and correct the over claimed flow rate, the issue shall 

be identified in the department's summary report to the water 

court. 

Rule 29(i). Changing flow rate and volume. The claimed 

flow rate and claimed volume of a water right will not be changed 

during the department's examination unless: 

(1) amended by the claimant; 

(2) clarified by the department; 

(3) as authorized in this rule; or 

(4) standardized as to units of measure according to Rule 

4, W.R.C.E.R. 

Rule 29(j). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 
76 

following data and facts concerning the flow rate and volume: 

(1) the claimed or clarified flow rate, or changes 

authorized by this rule; 

(2) the claimed or clarified volume, or changes authorized 

by this rule; 

(3) identification of unique aspects or features of the flow 

rate and volume; 

(4) a notation of changes made during the department's 

examination; and 

(5) remarks concerning unresolved issues or questions 

about the claimed flow rate and volume such as the following 

situations: 

(i) the claimed flow rate or volume appears excessive 

for the purpose; 

(ii) the claimed volume exceeds the maximum 

feasible volume when the claimed flow rate cannot deliver the 

claimed volume during the claimed period of use; or 

(iii) the claimed flow rate or volume cannot be 

confirmed. 

RULE 30. PERIOD OF USE 

RULE 30(a). Examining period of use. Facts and data 

concerning period of use for other uses purposes will be identified 

using information in the claim together with other data gathered 

by the department. The period of use will be identified by the 

earliest month and day to the latest month and day that water has 

been used within a calendar year. 

(1) The usual and customary period of use for other uses 
77 

claims will vary for the specific purpose identified. The claimed 

period of use will be reviewed for reasonableness for the purpose 

identified. 

 (2) The documentation will be examined for conditions or 

limitations that may exist on the period of use. 

RULE 30(b). Incomplete or inconsistent period of use. 

When the claimed period of use is incomplete or inconsistent, the 

department will gather further facts and data pertaining to the 

specific claim. The claimant may be contacted pursuant to Rule 

44, W.R.C.E.R. Discrepancies in the claimed period of use that 

may require claimant contact include, but are not limited to: 

(1) no period of use is claimed; 

(2) the claimed period of use differs significantly from that 

which is usual and customary for the specific purpose identified; 

(3) insufficient information is available to determine the 

usual and customary period of use for the purpose identified; or 

(4) the period of use on the claim form differs significantly 

from the period of use specified in the documentation. 

RULE 30(c). Changing period of use. The claimed period of 

use of a water right will not be changed during the department's 

examination unless: 

(1) amended by the claimant; or 

(2) clarified by the department. 

RULE 30(d). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the period of use: 

(1) the claimed or clarified period of use; 
78 

(2) identification of unique aspects or features of the 

period of use; 

(3) a notation of changes made during the department's 

examination; and 

(4) remarks concerning unresolved issues or questions 

about the claimed period of use such as the following situations: 

(i) questions about the claimed period of use as 

specified in this rule; or 

(ii) use of the water is not feasible during winter 

months. 

Example: 

THE CLAIMED PERIOD OF USE MAY BE QUESTIONABLE. 

USE OF THIS WATER MAY NOT BE FEASIBLE DURING 

WINTER MONTHS. 

 RULE 31. POINT OF DIVERSION (POD) AND MEANS OF 

DIVERSION FOR INSTREAM OR INLAKE APPROPRIATIONS 

 The department’s examination of the claimed POD for instream 

or inlake other uses claims shall follow the procedures described 

in Rule 8, W.R.C.E.R. In addition, the following procedures will 

apply to the examination of the POD for such claims. 

 (a) For instream water use, the legal land description of the 

POD will be the same as the legal land description of the POU. 

 (b) The claimed POD may be revised by the department so that 

the POD and POU legal land descriptions for instream water use 

will be the same. 

 (c) A clarifying remark should be added to the point of 

diversion to provide a general geographic description of the 

instream reach claimed and to promote the public’s ability to 
79 

understand the extent of the claim. 

Example: 

THIS RIGHT FOR INSTREAM USE APPLIES FROM SMITH DAM 

IN JONES COUNTY DOWNSTREAM TO THE CONFLUENCE OF 

THE NORTH FORK OF ROCK CREEK WITH THE GREEN 

RIVER IN MACON COUNTY. 

(d) For all instream or inlake surface appropriations, the 

claimed means of diversion will be changed during the 

department’s examination to “INSTREAM” or “INLAKE.” 

 

VI. GENERAL PROVISIONS 

 RULE 32. PUBLIC MEETINGS 

RULE 32(a). Purpose of public meetings. The department, if 

directed by the water court pursuant to § 85-2-243, may conduct 

public meetings in each basin or subbasin. The purpose of these 

meetings may include: 

(1) gathering facts and data related to flow rate, volume, 

and period of use for irrigation that may include the usual and 

customary method of irrigation, crops grown, and growing season 

within a basin or subbasin; 

(2) gathering facts and data related to flow rate, volume, 

and period of use for other uses of water within a basin or 

subbasin; and 

(3) gathering facts and data addressing any other specific 

issues that may affect the basin or subbasin. 

RULE 32(b). Public meetings in conjunction with water 

court. The department may conduct public meetings in each 

basin or subbasin to provide the public with information on 

availability of materials at the regional offices and any technical 

information or procedures used by the department during 

examination. These meetings may be held in conjunction with the 
80 

water court. 

RULE 32(c). Time and place. Public meetings will be held at 

a time and place appropriate to the material being presented and 

convenient to the participants. 

RULE 32(d). Notice. Meetings will be announced using one 

or more of the following: radio stations, newspapers, or television 

stations which have general coverage in the appropriate area. In 

addition, notices may be posted in various public locations in the 

area. The water court will be notified in writing at least 10 

working days prior to announcement. 

 RULE 33. CLARIFICATION 

RULE 33(a). Clarification of claimed information. 

Elements of a water right may be clarified during the department's 

examination of claims to make elements complete, clear, concise 

and interpretable as long as the intent of the claimed information 

is unchanged. Claimed information may be clarified except when 

an amendment is required pursuant to Rule 34, W.R.C.E.R. 

Changes to claimed data made as clarifications will be denoted on 

the water right abstract. 

RULE 33(b). Clarification without claimant contact. 

Discrepancies in the claimed information, such as the following, 

may be edited for standardization and consistency without 

claimant contact as long as the intent of the claimed information 

is clear: 

(1) priority date, period of use, source, POD, POU, means 

of diversion and type of historical right are not on the claim form 

but are clearly stated in the documentation; 

(2) similar purposes are not referenced consistently; 

(3) owner names and addresses are not consistent; 
81 

(4) POD and POU discrepancies: 

(i) claimed legal land descriptions are not described 

to the nearest reasonable and concise legal land description; 

(ii) legal land descriptions on the claim form and the 

claimant’s map disagree; 

(iii) claimed legal land descriptions for direct surface 

water stock use are not the same; 

(iv) legal land descriptions are reversed; or 

(v) N, S, E, or W are not indicated in the legal land 

description for township or range; 

(5) common points of diversion or similar means of 

diversion are not referenced consistently; 

(6) source names are not referenced consistently; 

(7) flow rate or volume discrepancies: 

(i) claimed flow rate or volume units are 

inconsistent; 

(ii) units for flow rate are not on the claim form but 

are clearly indicated in the documentation; or 

(8) priority date discrepancies. 

RULE 33(c). Clarification with claimant contact. When a 

claim exhibits discrepancies or clerical errors as described in Rule 

33(b), W.R.C.E.R. and the claimed intent is unclear, the 

department will contact the claimant pursuant to Rule 44, 

W.R.C.E.R. The correct interpretation of the claimed information 

will be clearly denoted by the department in the claim file. 
82 

Clarifications of this type may be implemented upon instruction 

from the claimant. 

RULE 33(d). Correcting clerical errors. When an abstract of 

a claim exhibits clerical errors by the department, such as the 

following, the discrepancy will be corrected in the computer 

record: 

(1) claimed items were not entered into the computer; 

(2) claimed items were entered into the computer 

incorrectly; or 

(3) claimed items were previously clarified incorrectly. 

 RULE 34. AMENDMENTS TO CLAIMS 

RULE 34(a). Claimant request to modify claim. A claimant 

may request and authorize a modification of their claim prior to 

that claim’s inclusion in an interlocutory decree issued for the 

particular basin. 

RULE 34(b). Amendment of claim. An amendment is 

required to alter any element of a claim when that element cannot 

be clarified or changed in accordance with these rules. 

RULE 34(c). Amendment form. An amendment form or a 

written request must be submitted by the claimant to authorize an 

amendment. An amendment form is attached as Exhibit C. 

(1) The amendment request, whether on an amendment 

form or other written request, must include the amendment and 

the date. 

(2) The amendment request must contain the notarized 

signature of all current owners of the right as listed in the 

centralized record system or a legal authorized representative. The 

amendment may not be submitted by a non-owner (e.g., tenant, 
83 

ranch manager, forest service district employee). 

(3) The amendment request may include the reasons for 

the amendment and may be supplemented with maps, letters, 

copies of documents, or other materials. 

RULE 34(d). Processing of amendment. An amendment 

received by the department will be processed in the following 

manner: 

(1) if received prior to printing the decree, it will be 

microfilmed or scanned, added to the claim file, and the respective 

elements will be amended in the centralized record system; or 

(2) if received after printing of the decree, it will be 

microfilmed or scanned and sent to the water court. 

RULE 34(e). Examination of amendment. The department 

will examine amendments according to the procedures in the rule 

governing the amended element. 

RULE 34(f). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the amended claim: 

(1) the claimed or clarified element as amended; 

(2) a remark indicating the date the amendment was 

received and the water right element changed; 

Example: 

THE FLOW RATE WAS AMENDED BY THE CLAIMANT ON 

 04-15-87. 

(3) the department's examination information which may 

include an identification of any other pertinent data, facts or 

issues; and 
84 

(4) remarks concerning unresolved issues or questions 

about the amendment such as the amendment was not signed by 

all current owners, or was not notarized. 

Examples: 

AN AMENDMENT WAS SUBMITTED ON 08-01-98 

REQUESTING TO AMEND THE PLACE OF USE. THE 

AMENDMENT HAS NOT BEEN IMPLEMENTED AS IT HAS NOT 

BEEN SIGNED BY ALL OWNERS OF DNRC RECORD. 

AN AMENDMENT WAS SUBMITTED 06-11-98 ADJUSTING 

THE POINT OF DIVERSION, PLACE OF USE, PRIORITY DATE, 

SOURCE, FLOW RATE, PURPOSE AND PLACE OF STORAGE. 

 THE AMENDMENT SUBSTANTIALLY CHANGES THE 

ORIGINALLY FILED STATEMENT OF CLAIM. 

 

RULE 35. IMPLIED CLAIMS 

RULE 35(a). Water court review of implied claims. 

Whenever a single claim appears to contain more than one right, 

the claim will be sent to the water court requesting a review for 

possible implied claims. 

RULE 35(b). Authorization of implied claims. When the 

water court, in writing, authorizes implied claims to separate the 

individual rights, the claimant will be contacted pursuant to Rule 

44, W.R.C.E.R. to assist in separating the rights into individual 

claims. 

RULE 35(c). Procedure. The following items and procedures 

will apply to implied claims. 

(1) The implied claim shall include the items required 

pursuant to § 85-2-224, MCA. 

(2) The claimant's signature and notarization is required, 

unless otherwise ordered by the water court. 
85 

(3) The date received on the implied claim will be the 

same date as that on the original claim. 

RULE 35(d). Processing implied claims. Implied claims 

authorized by the water court shall be processed by the 

department as follows: 

(1) filing fees will be collected pursuant to § 85-2-225, 

MCA; 

(2) the original claim will be referenced on the implied 

claim; 

(3) the implied claim will be clarified, microfilmed or 

scanned, and entered into the centralized record system; and 

(4) the implied claim will be examined by the department 

according to the rules governing the purpose identified. 

RULE 35(e). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the implied claim: 

(1) the implied claim information; 

(2) a remark referring to the original claim; 

Example: 

THIS IMPLIED CLAIM WAS AUTHORIZED BY THE WATER 

COURT BASED ON INFORMATION IN CLAIM NO. 000000-00. 

and 

(3) the department's examination information which may 

include an identification of any other pertinent facts, data, and 

issues. 

RULE 36. CLAIMS FILED AFTER APRIL 30, 1982. 
86 

RULE 36(a). Identification. A claim filed with the 

department after the 5:00 p.m. April 30, 1982 filing deadline and 

physically submitted or postmarked on or before July 1, 1996 is a 

late claim, unless it was exempt from the filing requirements by § 

85-2-222, MCA. Late claims were forfeited pursuant to the 

conclusive presumption of abandonment under § 85-2-226, MCA. 

The legislature provided limited remission of the forfeiture of late 

claims in § 85-2-221(3), MCA, based on the late claim filing date. 

Claims for exempt rights filed after 5:00 p.m. April 30, 1982 and 

physically submitted or postmarked on or before July 1, 1996 are 

not late claims. 

Rule 36(b). Claims submitted after July 1, 1996. 

Claims physically submitted or postmarked after July 1, 

1996 will not be accepted by the department. 

RULE 36(c). Examination of claims. The department will 

examine claims filed after April 30, 1982 according to the 

procedures in these rules for the identified purpose. The date the 

claim was filed will be specified in a remark. 

RULE 36(d). Summary report. The summary report to the 

water court shall include all forfeited late claims, remitted late 

claims, and claims for exempt rights filed between 5:00 p.m. April 

30, 1982 and physically submitted or postmarked on or before 

July 1, 1996, along with all pertinent data and facts. This 

includes an abstract of the water right listing the late claim 

information and the department’s examination information. In 

addition, remarks denoting the type of late claim will be added as 

follows: 

 (1) For a late claim placed in the United States mail and 

postmarked on or before 5:00 p.m. April 30, 1982, or, if there is no 

evidence of the date of mailing, there is evidence of execution on or 

before 5:00 p.m. April 30, 1982, and actual receipt by the 

department on or before May 7, 1982, a clarifying remark shall be 

added to the water right abstract: 
87 

Example: 

CLAIM FILED LATE 05/03/82. AS MANDATED BY SECTION 

85-2-221(3), MCA, THIS CLAIM IS SUBORDINATE, AND 

THERFORE JUNIOR, TO ALL INDIAN AND FEDERAL 

RESERVED WATER RIGHTS. 

 (2) For all other late claims physically submitted to the 

department or postmarked on or before July 1, 1996, a clarifying 

remark and an issue remark shall be added to the water right 

abstract: 

Examples: 

CLAIM FILED LATE 08/01/85. AS MANDATED BY SECTION 

85-2-221(3), MCA, THIS CLAIM IS SUBORDINATE, AND 

THEREFORE JUNIOR, TO ALL INDIAN AND FEDERAL 

RESERVED WATER RIGHTS AND ALL VALID TIMELY FILED 

CLAIMS BASED ON STATE LAW. 

CLAIM FILED LATE 08/01/85. IN ADDITION TO BEING 

SUBORDINATE TO ALL INDIAN AND FEDERAL RESERVED 

WATER RIGHTS AND ALL VALID TIMELY FILED CLAIMS 

BASED ON STATE LAW, THIS RIGHT MAY ALSO BE 

SUBORDINATE TO CERTAIN PERMITS AND RESERVATIONS 

OF WATER. SEE SECTION 85-2-221 MCA. 

 (3) For an exempt water right claim filed after 5:00 p.m. 

April 30, 1982 and physically submitted or postmarked on or 

before July 1, 1996, a remark shall be added to the water right 

abstract: 

Example: 

CLAIM FILED 08/01/85. THIS RIGHT IS AN EXEMPT RIGHT 

VOLUNTARILY FILED UNDER SECTION 85-2-222, MCA.

 RULE 37. TERMINATION OF A CLAIM

RULE 37(a). Procedure for terminating a claim. The 

department shall terminate a water right claim only when it has 

been withdrawn at the request of the claimant(s). 
88 

(1) A written request must be submitted by the claimant 

to withdraw a claim. An example request to withdraw form to 

withdraw a claim from the adjudication process is attached as 

Exhibit D. 

(2) The withdrawal request must be dated with notarized 

signatures of all current owners of the right as listed in the 

centralized record system. 

(3) The reason for the withdrawal may be included. 

RULE 37(b). Processing a withdrawal request. A withdrawal 

request and claim will be processed in the following manner. 

(1) The withdrawal request will be microfilmed or scanned 

and entered into the centralized record system. 

(2) The claimed information in the centralized record 

system will be retained but will be denoted as terminated for 

reference purposes. 

(3) The withdrawal request and claim will be maintained 

by the department. 

RULE 37(c). Availability of owner name and address. The 

owner name and address will be available to the water court for 

notice purposes. 

RULE 37(d). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning the terminated claim 

including: 

(1) the water right file number; 

(2) the owner name and address; 

(3) the purpose, source, and point of diversion; 
89 

(4) a remark indicating a withdrawn claim 

Example: 

THIS CLAIM WAS WITHDRAWN FROM THE ADJUDICATION 

PROCESS AT THE REQUEST OF THE CLAIMANT ON 04/15/87. 

and 

(5) the department's examination information which may 

include an identification of any other pertinent facts, data, and 

issues. 

 RULE 38. OWNERSHIP UPDATES 

RULE 38(a). Purpose. The department shall process 

ownership updates to water rights in compliance with §§ 85-2-421 

through 85-2-426, MCA. The ownership update does not transfer 

water rights or legally determine water right ownership. It updates 

the department’s centralized ownership records reflected on the 

legal documents that actually transfer water rights. 

RULE 38(b). Procedure. When a water right ownership update 

has been received, the department will revise the ownership of the 

right in the centralized record system as follows: 

(1) When the entire water right is conveyed to a new owner, 

the name and address of the new owner will be listed as the owner 

of the right. A remark may be added indicating the date the 

ownership update was received. 

Example: 

WATER RIGHT OWNERSHIP UPDATE RECEIVED 04/15/87. 

(2) When the ownership update denotes a conveyance of a 

portion of the water right to a new owner: 

(i) The water right may be split by the department 
90

upon written authorization of all of the claimants. Remarks may 

be added to the original claim: 

Examples: 

WATER RIGHT OWNERSHIP UPDATE RECEIVED 04/15/87. 

 

 SPLIT CLAIM NO. ______ WAS GENERATED. 

Remarks may be added to the split claim: 

Examples: 

WATER RIGHT OWNERSHIP UPDATE RECEIVED 

 04/15/87 

 THIS SPLIT CLAIM WAS GENERATED BY THE 

DEPARTMENT BASED ON INFORMATION IN CLAIM NO. 

________. 

 

 

 THIS CLAIM NUMBER WAS NOT INCLUDED IN THE 

 BASIN (NAME) DECREE ISSUED ON (DATE). 

(ii) The water right may not be split by the 

department if all claimants have not provided written authorization 

to split the right. Remarks may be added indicating that an 

ownership update has been received: 

Examples: 

WATER RIGHT OWNERSHIP UPDATE RECEIVED 04/15/87. 

OWNERSHIP UPDATE PROCESSED TO ADD NEW OWNERS. 

THE WATER RIGHT MAY BE SPLIT INTO SEPARATE WATER 

RIGHTS AFTER FINAL DECREE UPON REQUEST OF THE 

OWNERS. 

(iii) The name and address of a new owner will be 

added as an additional owner of the right. 

 
91

 (3) When the ownership update identifies a contract for 

deed, the seller’s name may be retained in the department’s 

computer database. 

RULE 38(c). Owners involved with an updated water right will 

be notified by the department using the following procedures: 

(1) When a water right ownership update is filed before the 

printing of the decree, both the buyer and the seller will be notified 

of the receipt and recording of the ownership update and any split 

claims resulting from that ownership update. 

 (2) When a water right ownership update is filed after the 

printing of the decree, the department will notify both the buyer, 

the seller, and the water court. If the right is being split, the 

reviewer should prepare a memorandum detailing the split to be 

made and send the memorandum and claim file(s) to the water 

court to implement the split. 

 RULE 39. CHANGE IN APPROPRIATION RIGHT 

RULE 39(a). Procedure for pre-July 1, 1973 claims. When a 

pre-July 1, 1973 water right for which a statement of claim has 

been received is changed pursuant to § 85-2-402, MCA, the 

department will proceed as follows: 

(1) The department will create a new record for the change 

in the centralized record system. 

(2) The department will not update the original claim 

information to reflect the change when a notice of completion has 

been received until after the final decree. 

RULE 39(b). Procedure for post-June 30, 1973 claims. 

When the department finds that a statement of claim appears to 

reflect a post-June 30, 1973 change, the claimant will be contacted 

pursuant to Rule 44, W.R.C.E.R. for additional information. In 

addition, an on-site visit may be conducted pursuant to Rule 44, 

W.R.C.E.R. 
92

(1) If an amended claim is submitted to identify the right 

as it existed before July 1, 1973, the department will process the 

amended claim according to the rules governing the purpose 

identified. 

(2) If an amended claim is not submitted to identify the 

right as it existed before July 1, 1973, the department will examine 

the claim as originally submitted. 

RULE 39(c). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning a change in appropriation right: 

(1) A remark referring to the status of the change 

application; 

Example: 

AUTHORIZATION TO CHANGE POINT OF DIVERSION 

COMPLETED 04/15/87. FILE REFLECTS RIGHT AS IT 

EXISTED PRIOR TO JULY 1, 1973. APPROVED CHANGES 

WILL BE UPDATED IN THE CENTRALIZED RECORDS SYSTEM 

AFTER FINAL DECREE. SEE G(W) 000000-00. 

(2) The department's examination information which may 

include: 

(i) an issue remark when the claimed right appears to 

reflect an unauthorized post-June 30, 1973 change; 

Example: 

IT APPEARS THAT AN UNAUTHORIZED POST-JUNE 30, 1973 

CHANGE IN POINT OF DIVERSION MAY BE REFLECTED IN 

THIS CLAIM. 

or 

(ii) an identification of any other pertinent facts, data, 

and issues. 
93

 RULE 40. SUPPLEMENTAL RIGHTS 

RULE 40(a). Identifying supplemental rights. Supplemental 

rights occur when a claimed place of use of a water right overlaps 

the claimed place of use on another water right having the same 

purpose and belonging to the same owner. The place of use for all 

claims of one ownership, except claims for stockwater and domestic 

use, will be reviewed for supplemental rights. 

RULE 40(b). Supplemental rights remark. For irrigation 

claims, irrigation district claims and "other uses" claims, the 

supplemental rights relationship will be identified by a remark on 

the water right abstract. The remark will identify and limit the flow 

rate, place of use, and volume and will list the supplemental water 

rights involved. 

RULE 40(c). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning supplemental rights: 

(1) a remark indicating supplemental rights; 

Example (Irrigation and Irrigation District Claims): 

THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE 

SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE 

OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE 

COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. 

EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE 

OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL 

VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED 

THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 

 000000-00, 000000-00, 000000-00, 000000-00. 

Example (Other Uses Claims): 

WHENEVER THE WATER RIGHTS FOLLOWING THIS 

STATEMENT ARE COMBINED TO SUPPLY WATER FOR THE 

CLAIMED PURPOSE, EACH IS LIMITED TO THE 

HISTORICAL FLOW RATE AND PLACE OF USE OF THAT 
94

INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE 

WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT 

TO HISTORICAL AND BENEFICIAL USE. 000000-00, 

000000-00, 000000-00, 000000-00. 

and 

(2) the department's examination information which may 

include: 

(i) an issue remark when the combined flow rates of 

supplemental irrigation rights exceed the guideline by 60 gpm per 

acre; or 

(ii) an identification of any other pertinent facts, data, 

and issues. 

 RULE 41. MULTIPLE USE OF A RIGHT 

RULE 41(a). Identifying multiple use. A multiple use of a 

water right occurs when the same appropriation has been used for 

more than one purpose by the original claimant. 

RULE 41(b). Examining multiple use. All claims filed by the 

original claimant will be examined to identify multiple uses of a 

right. The information in the claim, especially priority date, 

purpose, type of right, and documentation, together with other data 

gathered by the department will be used. In addition, the claimants 

may be contacted pursuant to Rule 44, W.R.C.E.R. 

RULE 41(c). Multiple use remark. The multiple use of a water 

right will be identified by a remark on the abstract. 

RULE 41(d). Summary report. In the summary report to the 

water court, the department shall provide on each abstract the 

following data and facts concerning multiple use of a right: 

(1) a remark indicating multiple use; 

Example: 
95

THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT 

ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT 

AND BASED ON THE SAME RIGHT. THE USE OF THIS RIGHT 

FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT 

OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO 

ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE 

WATER IN ACCORD WITH HISTORICAL PRACTICES. 000000-

00, 000000-00. 

(2) and the department's examination information which 

may include an identification of any other pertinent facts, data, 

and issues. 

 RULE 42. IRRIGATION DISTRICTS

 The irrigation district claim form differed from the standard 

irrigation, domestic, stock, or other uses claim forms in that several 

water rights from one source for the same place of use could be 

identified on one form. The intent of the form was that lengthy 

place of use descriptions would be listed only once for several 

rights. The form was not limited to irrigation districts but could be 

used by any claimant for any claimed purpose. 

(a) Claims filed on irrigation district forms will be examined by 

the department according to the rules governing the purpose 

identified. 

(b) All irrigation districts will have their place of use examined 

by the department. 

(c) The place of use descriptions will be identified on the 

abstract of all water rights identified on a irrigation district form. 

(d) In its summary report to the water court, the department 

shall identify irrigation districts created under Title 85, Chapter 7, 

MCA. 

 RULE 43. DOCUMENTING THE DEPARTMENT'S EXAMINATION 

RULE 43(a). Purpose. The claim file, maintained by the 

department as part of the centralized record system, will serve as 
96

the repository of all claimed information and other materials related 

to the department's examination. All documents related to § 85-2-

402, MCA and §§ 85-2-421 through 85-2-426, MCA, will be placed 

in the claim file. Additionally, all materials added to the claim file 

will be filmed or scanned for the microfilm or electronic record. 

RULE 43(b). Worksheet. The department's examination of 

each element of a water right will be documented on a worksheet. 

The worksheet will contain an abstract of the clarified claimed 

information and will serve as a checklist of items to be examined. 

In addition, the claimed and examined acres for irrigation claims 

will be mapped. 

RULE 43(c). Documentation. Telephone contact, personal 

interviews and field investigations pertaining to a claim will be 

documented and placed in the claim file. The documentation may 

include but not be limited to: 

(1) persons contacted; 

(2) date and time; 

(3) location; 

(4) address or phone number; 

(5) topics discussed; and 

(6) facts, data, and issues identified. 

RULE 43(d). Correspondence. Copies of all written 

correspondence sent or received by the department pertaining to a 

claim will be added to the claim file. All written correspondence 

sent by the department will include the date and the names of 

addressee and signatory. 

RULE 44. CLAIMANT CONTACT 

RULE 44(a). Purpose. The department will use claimant 

contact as the primary means of gathering facts and data pertaining 
97

to issues on claims unresolved by routine examination procedures. 

RULE 44(b). Means. The department will initiate contact by 

the means capable of providing the necessary facts and data in the 

least intrusive and most efficient manner. The department will 

attempt to review all claims of an owner to consolidate issues before 

claimant contact. Claimant contact may be through telephone 

interviews, written correspondence, or personal interviews, or onsite visits at claimant’s invitation. 

RULE 44(c). Documentation. Claimant contact activity will be 

documented in the claim file and may include such items as the 

name of the department employee, the name of person contacted, 

date, means of contact, telephone number, location, issues covered, 

and conclusions reached. 

(1) All written correspondence and interview reports will be 

added to the claim file. 

(2) The department may send a letter of confirmation to the 

claimant for data gathered by telephone. 

RULE 44(d). Examining information. When the department 

gathers data and facts concerning a claim, the information will be 

examined according to the rule governing the purpose identified. 

Pertinent new information will be entered into the centralized record 

system. 

RULE 44(e). Summary report. In the summary report to the 

water court, the department shall provide pertinent information 

gathered through claimant contact. 

 

 RULE 45. RETURNED MAIL 

RULE 45(a). Notice of availability. When a decree is issued, 

the water court serves, by mail, a notice of availability and abstract 

of water right to each person who has filed a claim of existing water 

right or to that person’s successor in interest as shown in the 

department’s updated ownership record. The notice of availability 

is also sent to other persons specified by the water court. 
98

Additional notice proceedings occur as the adjudication of a basin 

or subbasin advances to final decree. 

RULE 45(b). Investigation. The department shall investigate 

the reason mail associated with the issuance of a decree is returned 

by the U.S. Postal Service. An attempt will be made to research and 

process returned mail within the time allotted by the water court for 

claimant action. 

RULE 45(c). Extent of investigation. The department's 

research to determine the current owner name or current owner 

address shall include but not be limited to claimant contact, 

telephone directories, and county records. 

RULE 45(d). Processing address changes. The results of the 

department's research will be processed as follows. 

(1) When the addressee has a new address, the department 

will correct the address in the centralized record system. The 

addressees will be sent their abstract of water right and notice of 

availability. 

(2) When there has been an unrecorded change in 

ownership, the department will send the current owner a notice of 

availability, the abstract(s) of water right and a request to file a 

water right ownership update form pursuant to § 85-2-421 through 

§ 85-2-426, MCA. 

(3) When the proper owner or address is not found by the 

department, the results of the research will be placed in the claim 

file. 

RULE 45(e). General certificate of mailing. The department 

shall send the water court a general certificate of mailing certifying 

that the returned mail has been researched and processed. The 

general certificate of mailing will identify the water rights where the 

current owner or address could not be found. 
99

RULE 45(f). Documentation. Documents and records involved 

in processing returned mail shall be placed in the respective water 

right claim file. 

RULE 45(g). Miscellaneous. Returned mail associated with 

other stages of the adjudication process will be researched 

according to procedures similar to this rule. Previously researched 

mail where the owner or address could not be found will not be 

researched again. 

 RULE 46. POST-DECREE REVISIONS 

RULE 46(a). Review of decrees. The department may review 

water court decrees during the objection period. If clerical errors, 

computation errors, and other errors or omissions are identified, 

the water court and claimant shall be notified by the department by 

an objection or a letter. The department will add copies of all 

correspondence and other materials relating to errors to the claim 

file. 

RULE 46(b). Error in decreed water right. When an error is 

identified in a decreed water right after the objection period has 

expired, the department shall notify the water court and claimant 

by letter. The letter will include how the error was discovered, the 

water right elements in error, the proposed correction, any 

documentation, a copy of the decree abstract with the correction 

delineated, whether the claimant agrees with the correction, and, 

when possible, a signed claimant authorization to make the 

correction. The department will add copies of all correspondence 

and other materials relating to errors to the claim file. 

RULE 46(c). Correcting errors. Except as allowed in Rule 

3(d), W.R.C.E.R. the department may change the centralized record 

system to correct errors in claims or include claims post-decree only 

by written authorization of a water judge or water master. Upon 

written authorization from the water judge or water master, the 

authorization will be microfilmed or scanned, the correction entered 

into the centralized record system, and a corrected abstract sent to 

the water court. 
100
August 15,2005 

41E 30014863 

Page 1 of 2 

Summary Report - Page 1 

SUMMARY REPORT TO THE WATER COURT 

BY THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION 

PART A: ABSTRACT OF WATER RIGHT CLAIM 

BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER 

BASIN 41 E 

THE FOLLOWING INFOWVIATION IS NOT THE DECREE OF THE MONTANA WATER 

COURT. IT IS AN INFORMATIONAL ABSTR4CT PREPARED BY THE DEPARTiMENT OF 

NATURAL RESOURCES AND CONSERVATION (DNRC) AND PROVIDED TO THE WATER 

COURT FOR ITS USE IN PREPARING THE DECREE FOR THIS BASIN. 

AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY THE DNRC 

DURING THE EXAMINATION PROCESS. THESE CHANGES ARE AUTHORIZED BY THE 

MONTANA SUPREME COURT WATER RIGHT CLAILMS EXAlkllNATION RULES OR BY 

ORDER OF THE WATER COURT. 

Water Right Number: 41 E 30014863 STATEMENT OF CLAIM 

Version: 1 -- ORIGINAL RIGHT 

Status: ACTIVE 

Owners: SCHMANSKY RANCH CO 

% FRED SCHMANSKY 

FLOODPLAIN, MT 59000 

"Priority Date: JUNE 19,1866 

Enforceable Priority Date: JUNE 19, 1866 

Type of Historical Right: FILED 

Purpose (use): IRRIGATION 

Irrigation Type: SPRINKLERIFLOOD 

Flow Rate: 63.00 CFS 

*Volume: 6,440 AC-FT 

Climatic Area: 4 - MODERATELY LOW 

Maximum Acres: 920.00 

"Source: LONG CREEK 

Source Type: SURFACE WATER 

*Point of Diversion and Means of Diversion: 

Govt Lot Otr Sec Sec Twp R* County 

NENENE 4 6N 7W JEFFERSON 

Diversion Means: HEADGATE 

2 SESWSW 5 6N 7W JEFFERSON 

Diversion Means: HEADGATE 

POINT OF DIVERSION NO. 2 IS ON AN UNNAMED TRIBUTARY LONG CREEK. 
August 15,2005 

4 1 E 3001 4863 

* *EXHIBIT A continued ** Summary Report - Page 2 

Page 2 of 2 

Reservoir: OFFSTREAM Reservoir Name: SCHMANSKY POND 

Govt Lot Otr Sec Sec Twu Egg County 

SWSWSW 4 6N 7W JEFFERSON 

Surface Area: 0.70 ACRES 

Capacity: 17.50 ACRE-FEET 

SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDITIONAL 

INFORMATION. 

Period of Diversion: JANUARY 1 to DECEMBER 31 

Period of Use: APRIL 15 to AUGUST 15 

*Place of Use: 

Acres GovtLot Qtr Sec Sec Twr, & County 

1 360.00 5 6N 7W JEFFERSON 

2 320.00 E2 32 6N 7W JEFFERSON 

3 160.00 NE 8 7N 7W JEFFERSON 

4 - 80.00 N2SE 30 7N 7W JEFFERSON 

Total: 920.00 

Remarks: 

THE WATER RIGHTS FOLLOWING THlS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE 

RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE 

ONLY OVERLAPPING PARCELS OF THE CLAIMANT'S TOTAL ACRES. EACH RIGHT IS LIMITED TO 

THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF 

THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL 

USE. 

30001 224 30001225 30001 226 30001 227 30001228 3000 1229 

30001 230 300 14863 

THE WATER RIGHTS LISTED FOLLOWING THlS STATEMENT ARE MULTIPLE USES OF THE SAME 

RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT 

OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE 

USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 

30001218 30001220 30001 224 3001 4863 

.................................................................................................................................................................................................. PART B: EXAMINATION FIEPORT 

THE DNRC EXAMINATION OF THIS CLAIM FOUND NO SIGNIFICANT FACTS, DATA, OR 

ISSUES TO REPORT TO THE WATER COURT. 5...................,...............I.................................................,......................................,...........................................,.,...,.....,......,.. ? 
Definition for Claimant Contact Concerning Irrigated Acreage 

10 100 1000 

TOTAL CLAIMED ACRES (X) 
AMENDMENT 

TO STATEMENT OF CLAIM 

Claim Nos.: 

Owner@): 

I make the following amendment@) to the above statement of claim@): 

(Complete only those sections that require amendment.) 

1. Owner of Water Right: See attachment 

(last, first, middle initial) 

Co-owner or Other 

Interested Owner: 

(last, first, middle initial) 

City, State, Zip Code 

Home Phone No. (-1 Business Phone No. ( ) 

2. Purpose (use): 

a. If irrigation, method of irrigation use Sprinkler C] Flood Water spreading 

Subirrigation Natural Overflow 

b. If domestic, number of households served: 

c. If stock, total number and type of livestock served: 

3. Source of Water: Tributary of 

4. Point of Diversion: County - See attachment 

- Lot - Block - % % - % Section T- R 

Lot - Block - % - % - % Section T- R- 

- Lot - Block - % - % - % Section T- R 

Lot - Block - % - % - % Section T- RLot - Block - 'A - ?4 - 'A Section T- RLot - Block - % - % - 'A Section T- R 

Subdivision: 

C] Replaces claimed information Supplements claimed information C] Addendum included 

Please attach a map showing all points of diversion for this water right. 

5. Means of Diversion: Well lnstream Use Dam 

Headgate Pump: Capacity - gPm 

Other - 

6. Means of Conveyance: Ditch C] Pipeline C] lnstream Use 

Other - 
* *EXHIBIT C continued ** 

AMENDMENT 

7. Place of Use: County - See attachment 

- acres - Lot - Block - % - % - % Section - T- R- 

- acres - Lot - Block - % - % - % Section - T- R- 

- acres - Lot - Block - % % - M Section - T- R- 

- acres - Lot - Block - % % - M Section - T- R- 

- acres - Lot - Block - % - % - M Section - T- RTotal Acres. Subdivision - 

Replaces claimed information Supplements claimed information Addendum included 

Please attach map showing entire place of use for this water right 

cubic feet per second 

8. Flow Rate Claimed: gallons per minute 

miner's inches 

9. Volume Claimed: acre-feet per year 

10. Period(s) of Use: 

(MonthIDay TO MonthiDay) 

11. Priority Date: (date of first use) - 

(Hour Month/Day/Year) 

12. Type of Historical Right: Decreed Right 

C] Filed Appropriation Right 

C] Use Right rioritv date or tvpe of right. 

13. Reasons for Amendment: 

14. Comments: 

15. Notarized Statement Signed by Owner: C] See attachment 

I, having been duly sworn, depose and say that I, being of legal age and being the owner of this 

claim of existing water right know the contents of this amendment and that the matters and things 

stated there are true and correct. (All current owners of the right as listed in the DNRC centralized 

record system are required to sign.) 

Signature Date 

Signature Date 

STATE OF MONTANA 

County of 

Subscribed and sworn before me this day of 

(notary seal) Residing at 

My commission expires 
REQUEST TO WITHDRAW STATEMENT OF CLAIM 

I /We, hereby request the 

withdrawal of mytour Statement of Claim number 

The reason for this request is: 

I /We have an existing right which is exempt from filing. 

This claim is for a use of water after July 1, 1973. 

I /We have no existing water right to claim. 

Other: 

Signature Date 

Signature Date 

STATE OF MONTANA 

County of 

Subscribed and sworn before me this day of ,20 

Notary Seal 

Notary Public for the State of Montana 

Residing at 

My commission expires 
101

Exhibit B 

WATER RIGHT ADJUDICATION RULES 

AMENDED BY THE MONTANA SUPREME COURT 

 EFFECTIVE 

 DECEMBER 5, 2006 

 

 TABLE OF RULES 

Rule 

 

1. Purpose of rules and summary of adjudication process 

 (a) Authority of Montana water court 

 (b) The adjudication process 

2. Water court practice and procedures 

 (a) Citation 

 (b) Application of other rules 

 (c) Water Court 

3. Issuing a decree 

4. Preliminary, temporary preliminary, other interlocutory 

 decree 

5. Procedure for filing objection to preliminary or temporary 

 preliminary decrees 

 (a) Notice of objection 

 (b) Service of objection 

 (c) Filing of objection 

 (d) Extension of objection period 

6. Notice of the filing of an objection an opportunity to file 

 counterobjection 

 (a) Notice 

 (b) Counterobjection 

 (c) Service and filing 

7. Issue remarks 

8. Claims called in on motion of the water court 

9. Notice that objections and counterobjections have been 

 filed and opportunity to file notice of intent to appear 

 (a) Objection list 

 (b) Notice of intent to appear 

10. Motions to Amend 
102

11. Masters 

 (a) Appointment 

 (b) Order of reference 

 (c) Powers and duties 

12. Department assistance 

 (a) Direction 

 (b) Requests for assistance 

 (c) Field investigations 

13. Department data 

 (a) Admissibility 

 (b) Limitations 

14. Continuances 

15. Discovery 

16. Settlement conferences and mediation 

17. Settlements 

 (a) Approval required 

 (b) Expansion of claim 

 (c) Reduction of claim 

18. Pretrial conference 

19. Burden of proof 

20. No right to jury trial 

21. Hearings 

 (a) Subpoenas 

 (b) Recordings 

 (c) Procedure in evidentiary hearings involving only 

 the claimant 

 (d) Procedure in evidentiary hearin gs involving the 

 claimants and other parties 

 (e) Modification of abstract 

 (f) Enforcement 

22. Sanctions 

23. Master’s Report 

24. Final decrees 

 (a) Issuance 

 (b) Notice of entry 

 (c) Inspection of final decree 

25. Appeals 

26. Split claims 
103

27. Public notice of adjudication proceedings 

28. Perpetuation of testimony 

29. Miscellaneous fees 

30. Late claim administrative costs and expenses 

31. Water court decree enforcement 

 (a) Preliminary procedure 

 (b) Identification of diversions and instream uses 

 (c) Public meetings 

 (d) Tabulations 

 (e) Controversies 

32. Assistance to district courts 

 RULE 1. PURPOSE OF RULES AND SUMMARY OF 

ADJUDICATION PROCESS 

 

Rule 1(a). Authority of Montana water court. The Montana 

water court has a statutory obligation and the exclusive authority to 

adjudicate claims of existing water rights. The Montana supreme 

court establishes these special Montana water court rules of 

practice and procedure to guide the adjudication of pre-July 1, 

1973 water rights. 

Rule 1(b). The adjudication process. Briefly, the 

adjudication process consists of the following steps: 

 (1) upon order of the Montana supreme court, the filing of 

statements of claim for uses of water that existed prior to July 1, 

1973; 

 (2) a review of the submitted claim and accompanying 

materials for clarity and completeness with editing to allow entry 

into computerized storage; 

 (3) the compiling of the claim information into a 

centralized record system by the Department of Natural Resources 

and Conservation (hereinafter referred to as the department); 
104

 (4) under the direction of the water court pursuant to § 

85-2-243, MCA, the department's examination of claims and the 

reporting of facts, data, and issues pertaining to the claims as set 

forth in these rules; 

 (5) the issuance, by the water court, of interlocutory, 

temporary preliminary, or preliminary decrees based upon the 

information on the sworn claims, data submitted by the 

department, additional information obtained by the water judge, 

and, where appropriate, the contents of approved compacts or the 

filings for Indian and federal reserved water rights; 

 (6) the notice and opportunity for interested persons to 

review and object to the interlocutory, temporary preliminary, or 

preliminary decrees for good cause; 

 (7) judicial hearing by the water court on issues raised in 

these proceedings; 

 (8) the issuance, by the water court, of final decrees based 

upon the previous decrees and the judicial determinations made 

upon hearings; and, 

 (9) the opportunity for interested parties to review and 

appeal the final decrees under § 85-2-235, MCA. 

 

RULE 2. WATER COURT PRACTICE AND PROCEDURES 

 Rule 2(a). Citation. These rules shall be known as the Water 

Right Adjudication Rules and may be cited as Rule __, W.R.Adj.R. 

Rule 2(b). Application of other rules. Unless the context of 

these Rules requires otherwise, the Montana Rules of Civil 

Procedure (M.R.Civ.P.), the Montana Rules of Evidence (M.R.Evid.), 

and the Montana Uniform District Court Rules govern the practice 

of the water courts. Unless the context requires otherwise, the 

definitions in Rule 2, W.R.C.E.R. apply to these Rules. 
105

Rule 2(c). Water court. The term "water court" in these 

practice and procedure rules includes water judges and water 

masters. 

RULE 3. ISSUING A DECREE. The chief water judge shall 

issue an order of reference assigning a basin to a water master. 

The water master shall review the department’s summary report. 

The water master shall advise the chief water judge in writing when 

the decree is ready for issuance. If the chief water judge is not 

satisfied with the decree, the chief water judge may make the 

necessary modifications and issue the decree. If the water court 

modifies a claim abstract during the summary report review, it 

must state its reasons in writing and the department shall place 

that documentation in the claim file. Upon determination that the 

decree is ready for issuance, the chief water judge will issue an 

order for the department to proceed with printing all of the 

abstracts of existing water rights to be included in the decree. The 

order shall identify the type of decree to be issued. 

RULE 4. PRELIMINARY, TEMPORARY PRELIMINARY, OR 

OTHER INTERLOCUTORY DECREE. "Preliminary decree," as used 

in these rules, means a preliminary decree issued in accordance 

with § 85-2-231, MCA. Any other decree of a water court, not a 

final decree under § 85-2-234, MCA, shall be considered a 

temporary preliminary decree or interlocutory decree. 

RULE 5. PROCEDURE FOR FILING OBJECTION TO 

PRELIMINARY OR TEMPORARY PRELIMINARY DECREES. 

 Rule 5(a). Notice of objection. The water judge shall provide 

notice of the objection period in accordance with § 85-2-232, MCA. 

Notices of objection must be filed in compliance with § 85-2-233, 

MCA. The water court shall provide objection forms. The objector 

shall include a statement of: 

 (1) the findings and conclusions with which the objector 

disagrees; 
106

 (2) the elements or part of the claim abstract which the 

objector believes should be modified; and 

 

 (3) the grounds and evidence on which the objection is 

based. 

Rule 5(b). Service of objection. The objector must mail a 

completed copy of the objection to each claimant and complete the 

certificate of mailing on the objection form before filing the original 

objection with the water court. If the objector is the sole claimant 

on the claim, no certificate of mailing is necessary. 

Rule 5(c). Filing of objection. Objections must be filed within 

180 days after entry of the decree. The water judge may, for good 

cause shown, extend this time limit up to two additional 90-day 

periods if application for an extension is made prior to the 

expiration of the original 180-day period or any extension of it. 

Section 85-2-233(2), MCA. 

Rule 5(d). Extension of objection period. Applications for 

extensions may be made on forms supplied by the water court. An 

extension for one objector in a basin is an extension for all other 

objectors. Any order of extension shall state the specific calendar 

date on which the period of extension ends. 

RULE 6. NOTICE OF THE FILING OF AN OBJECTION AND 

OPPORTUNITY TO FILE COUNTEROBJECTION. 

Rule 6(a). Notice. Pursuant to § 85-2-233, MCA, the water 

court shall notify each person whose claim received an objection 

that an objection was filed. The notice shall set forth the name of 

each objector and shall allow an additional 60 days for the person 

whose claim received an objection to file a counterobjection to any 

claim of the objector in the decree. Counterobjections are limited to 

those claims included within the specific decree issued by the water 

court. 

Rule 6(b). Counterobjection. Counterobjections must be filed 

in compliance with § 85-2-233, MCA. The water court shall provide 
107

counterobjection forms. The counterobjector shall include a 

statement of: 

 (a) the elements or part of the claim abstract which the 

counterobjector believes should be modified; and 

 (b) the grounds and evidence on which the 

counterobjection is based. 

Rule 6(c). Service and filing. The counterobjector must mail 

a copy of the completed counterobjection to the claimants of the 

claim to which the counterobjection is filed and complete the 

certificate of mailing on the counterobjection form before filing the 

original counterobjection with the water court. 

RULE 7. ISSUE REMARKS. If not otherwise resolved by the 

objection process, the water court shall review, resolve, and remove 

all issue remarks appearing on the abstracts of any claim as 

directed by §§ 85-2-247 through 85-2-250, MCA. 

RULE 8. CLAIMS CALLED IN ON MOTION OF THE WATER 

COURT. The water court may issue such orders on its own motion 

as may be reasonably required to allow it to determine whether a 

claim accurately reflects its claimed pre-July 1, 1973 beneficial use. 

 The order calling any claim in on motion shall state the basis of the 

water court's decision to review the claim and shall identify the 

elements of the claim and the issues to be reviewed. In reviewing 

claims called in on its own motion, the water court shall generally 

follow the procedures set forth in § 85-2-248, MCA. 

RULE 9. NOTICE THAT OBJECTIONS AND 

COUNTEROBJECTIONS HAVE BEEN FILED AND OPPORTUNITY 

TO FILE NOTICE OF INTENT TO APPEAR. 

Rule 9(a). Objection list. After expiration of the time for filing 

counterobjections, the water court shall compile an objection list 

which identifies all claims to which objections or counterobjections 

were filed, all issue remarks reported by the department, and any 

claim which the court knows at the time of the compilation of the 
108

list will be called in on the court’s own motion. The water court 

shall notify in writing each party named in the water court decree or 

the successor in interest as documented in the department’s 

centralized record system that the objection list has been compiled, 

where the objection list can be reviewed, and from where copies of 

the objection list, objections, counterobjections, and issue remarks 

may be obtained. The written notice shall set a date on or before 

which persons other than the claimants, objectors, or 

counterobjectors to a particular claim shall file a notice of intent to 

appear with the water court. The water court shall notify the 

Montana Attorney General, and may also notify other interested 

parties identified in § 85-2-232, MCA, and other water users that 

the objection list has been prepared. The clerk or person 

designated by the water judge to mail the written notice shall make 

a general certificate of mailing certifying that a copy of the notice 

has been placed in the U.S. Mail, postage prepaid, addressed to 

each party required to be served the notice. The certificate shall be 

conclusive evidence of due legal notice that objections and 

counterobjections have been filed. The notice may also be 

published once in at least one newspaper of general circulation in 

the area where the basin, subbasin, or drainage is located. 

 Rule 9(b). Notice of intent to appear. Any person other than 

the claimant or objector who intends to appear and participate in 

further proceedings for any claims or issues included on the 

objection list must file a notice of intent to appear in compliance 

with § 85-2-233, MCA. The water court shall provide notice of 

intent to appear forms. The person filing a notice of intent to 

appear shall specify the claim number and include a statement of 

the appearing person's legal rights that might be affected by the 

resolution of the objections or issues involving the specified claim, 

and the purposes for which further participation is sought. Persons 

who file notices of intent to appear as provided in this rule shall 

receive notice of all future proceedings involving the claims specified 

in their notice and are entitled to participate in the resolution of the 

issues associated with those claims.

RULE 10. MOTIONS TO AMEND. Pursuant to § 85-2-233(6), 
109

MCA, claimants may file motions to amend their own claims and 

objectors may file motions to amend their own objections. A motion 

to amend must specify the requested amendment and the grounds 

for such amendment. Upon review, the water court will determine 

the notice required pursuant to § 85-2-233(6), MCA, and issue an 

appropriate order. 

RULE 11. MASTERS. 

Rule 11(a). Appointment. Water judges may appoint one or 

more water masters for the water court or for a particular water 

division, basin, subbasin, or case. 

Rule 11(b). Order of reference. The order of reference to a 

master may specify or limit the master's powers or may direct the 

master to report only upon particular issues or to do or perform 

particular acts or to receive or report evidence only, and may fix the 

time or place for beginning or closing the hearings before the filing 

of the master's report. Subject to the specifications or limitations 

stated in the order, the master has and shall exercise the power to 

regulate all proceedings in every hearing before the master and to 

take all measures necessary and proper for the efficient 

performance of the master’s duties specified under the order. 

Rule 11(c). Powers and duties. The water master has the 

general powers and duties granted a master by Rule 53(c), (d), and 

(e), M.R.Civ.P. 

RULE 12. DEPARTMENT ASSISTANCE. 

Rule 12(a). Direction. The water court may at any time direct 

the department to provide such information and assistance as may 

be required by the water court to adjudicate claims of existing 

rights, as provided in § 85-2-243, MCA. 

Rule 12(b). Requests for assistance. 

 (1) All water court requests for department assistance 

issued after the expiration of the notice of intent to appear filing 

period and directed at the adjudication of a specific claim or claims 
110

contained in the decree shall be made in writing, delivered to the 

department, and served upon all parties in the water court 

proceeding that are identified on the water court service list 

involving the claim or claims which are the subject of the request 

for assistance. The request for assistance shall: 

 (i) state the basis for the request for assistance. If 

the request for assistance has been initiated at the request of the 

department, the water court's written request for assistance shall 

identify the information conveyed to the water court by the 

department and the department employee who conveyed the 

information to the water court; 

 (ii) specify the elements of each water right claim or 

claims to be reviewed by the department; 

 (iii) if known, identify the department employee who 

will conduct the review; 

 (iv) notify all persons on the water court service list 

of their right to submit written information to the department 

concerning the elements of the water right claim or claims being 

reviewed by the department and shall require all persons who 

submit information to mail a complete copy to all persons on the 

water court service list; 

 (v) specify a time period for completion of the 

department’s review and the submission of the department’s 

memorandum; and 

 (vi) direct the department to file the original 

memorandum with the water court and mail a complete copy of the 

memorandum to all persons on the water court service list. 

 (2) The department must document all contact with the 

claimant or any other person regarding the water right claim as 

provided in Rules 43 and 44 W.R.C.E.R. All persons on the water 

court service list are entitled to notice and reasonable opportunity 
111

to be present during any field investigation conducted in 

conjunction with the request for assistance. 

 (3) If necessary during the course of the review, the 

department may communicate in writing with the presiding water 

judge or water master to discuss the substance of the review being 

conducted by the department. All such communication and court 

response must be in writing with full service upon all persons on 

the water court service list. 

 Rule 12 (c). Field investigations. Upon written order of the 

water court, the department shall conduct field investigations of 

claims. Unless otherwise directed by the water court, a field 

investigation shall be conducted with the claimant or a claimant’s 

representative in attendance. The other persons on the water court 

service list may attend for the purpose of observing the 

department’s field investigation. 

 (1) The water court’s written order for field investigation 

shall: 

 (i) state the basis for the order; 

 (ii) specify the elements of each water right claim or 

claims to be field investigated by the department; 

 (iii) if known, identify the department employee who 

will conduct the field investigation; 

 (iv) specify a time period for completion of the field 

investigation and the submission of the department’s field 

investigation report; and 

 (v) direct the department to file the original field 

investigation report with the water court and mail a complete copy 

of the report to all persons on the water court service list. 

 

 (2) When the water court orders a field investigation, the 
112

department shall contact the claimant or the claimant’s 

representative to establish the date and time of the field 

investigation and, when necessary, to arrange access. The date and 

time for the field investigation shall be confirmed through a letter 

from the department to the claimant with a copy sent to the water 

court, the person who has arranged access, and all other persons 

on the water court service list. 

 (3) The department shall send its confirmation letter at 

least 20 days before the intended date of the field investigation. The 

20-day notice period may be shortened by order of the water court, 

or waived by written agreement of all persons on the water court 

service list. 

 (4) The field investigation data will be documented in 

accord with Rules 43 and 44 W.R.C.E.R. The department shall file 

the original field investigation report with the water court and mail 

a complete copy of the report, including a certificate of mailing, to 

all persons on the water court service list. 

 (5) If necessary, the department may communicate in 

writing with the presiding water judge or water master to discuss 

the substance of the field investigation. All such written 

communication must be served upon all persons on the water court 

service list. 

(6) The water court may set a deadline for parties to 

comment on the department’s final memoranda for requests for 

assistance or on the department’s field investigation reports. 

(7) This Rule does not limit the authority of the water 

court to issue appropriate orders under the provisions of Rule 34, 

M.R.Civ.P., or Rule 614, M.R.Evid. 

RULE 13. DEPARTMENT DATA. 

Rule 13(a). Admissibility. In any proceedings before the 

water court, any investigative reports, data, or other written 

information produced or promulgated by the department during 
113

examination or under the direction of the water court pursuant to § 

85-2-243, MCA, shall be admissible without further foundation and 

not subject to the hearsay objection in situations where the 

department is not itself a party. Due provisions shall be made by 

the water court to allow any party to cross-examine the department 

employee who provided the assistance under § 85-2-243, MCA, and 

to controvert the report, data, or other information by other 

evidence. 

Rule 13(b). Limitations. If the department fails to comply 

with the protocols specified in Rule 12, W.R.Adj.R., the water court, 

upon appropriate motion by any party, may issue an order 

prohibiting or limiting the department employee's testimony at a 

hearing on the water right claim, and may strike all or portions of 

the memorandum prepared in response to the request for 

assistance or a field investigation report prepared by the 

department. 

RULE 14. CONTINUANCES. Requests for continuance of any 

hearing or proceedings in the water court must be made in 

accordance with the Uniform District Court Rules, and served upon 

all interested parties not less than 5 days before the date set for 

hearing or proceedings. The water court will grant the continuance 

upon a substantial showing of good cause. The water court may 

grant an untimely request for a continuance upon a showing of 

exigent circumstances. 

RULE 15. DISCOVERY. Parties may obtain discovery as 

provided by the Montana Rules of Civil Procedure. The water court, 

upon motion of a party or on its own initiative, may enter an order 

controlling or directing the course of discovery. 

 

RULE 16. SETTLEMENT CONFERENCES AND MEDIATION. 

The water court may require parties to participate in settlement 

conferences or may assign the matter to a mediator. In the event 

the water court assigns an outside mediator, the parties shall share 

and pay the expense of hiring the mediator as directed by the water 

court. 
114

RULE 17. SETTLEMENTS. 

Rule 17(a). Approval required. The water court is not bound 

by settlement agreements. Any settlement reached by the parties is 

subject to review and approval by the water court. Settlement 

includes the documents filed by a claimant in cases where the 

claimant is the only party. 

Rule 17(b). Expansion of claim. If a settlement seeks to 

enlarge or expand an element of a claim and the documentation 

provided by the parties does not include sufficient evidence to meet 

the burden of proof, the water court shall provide notice to the 

settling parties of the deficient documentation and allow reasonable 

time for the parties to file additional supporting evidence. If 

sufficient evidence to meet the burden of proof is not presented 

within the time allowed, the water court shall not enlarge or expand 

the element of the claim. 

Rule 17(c). Reduction of claim. The claimant of a water right 

claim may waive the advantage of § 85-2-227, MCA. If a claimant 

agrees to reduce or limit an element of a claim, the water court does 

not need to determine whether the burden of proof has been met. 

The water court may accept a claimant’s requested reduction or 

limitation without further presentation of evidence, unless there is 

an unresolved issue remark on the claim, in which case § 85-2-248, 

MCA, must be applied. 

 

RULE 18. PRETRIAL CONFERENCE. Pretrial conferences 

shall be conducted in accordance with and governed by Rule 16, 

M.R.Civ.P., and Uniform District Court Rule 5, insofar as the same 

is applicable to procedures in the water courts. Final pretrial 

conferences shall be the rule rather than the exception. The water 

court may order such preliminary pretrial conferences as may serve 

to expedite formulation of issues of law or fact or the course of the 

litigation. 

RULE 19. BURDEN OF PROOF. A properly filed Statement of 

Claim for Existing Water Right is prima facie proof of its content 

pursuant to § 85-2-227, MCA. This prima facie proof may be 
115

contradicted and overcome by other evidence that proves, by a 

preponderance of the evidence, that the elements of the claim do 

not accurately reflect the beneficial use of the water right as it 

existed prior to July 1, 1973. This is the burden of proof for every 

assertion that a claim is incorrect including for claimants objecting 

to their own claims. 

RULE 20. NO RIGHT TO JURY TRIAL. Right to trial by jury 

does not exist in this adjudication of existing water rights. 

RULE 21. HEARINGS. 

 Rule 21(a). Subpoenas. The parties may procure the 

attendance of witnesses before the water court by the issuance and 

service of subpoenas as provided in Rule 45, M.R.Civ.P. Failure by 

any person, without adequate excuse, to obey a subpoena served 

upon that person may subject that person to the consequences, 

penalties, and remedies provided in Rules 37 and 45, M.R.Civ.P. 

Rule 21(b). Recordings. All hearings held before the water 

court may be recorded by audio tape, audio-visual, stenographic, 

electronic, or other appropriate means. If a hearing was held before 

a water master, the water master shall file a transcript or recording 

of the proceedings and of the evidence and the original exhibits. 

RULE 21(c). Procedure in evidentiary hearings involving 

only the claimant. In an evidentiary hearing involving only the 

claimant, the order of procedure shall be: 

 (1) introductory and explanatory remarks by the water 

court; 

 (2) discussion of the format of the proceeding; 

 (3) testimony of the department and introduction of any 

report, data, or other written information prepared by the 

department; 

 (4) cross-examination of the department by the claimant; 
116

 (5) opening statement of the claimant; 

 (6) introduction of evidence and testimony by the claimant 

and the claimant’s witnesses; 

 (7) closing statement of the claimant; and 

 (8) optional briefing schedule for the claimant. 

 Rule 21(d). Procedure in evidentiary hearing involving the 

claimants and other parties. In an evidentiary hearing involving 

the claimant and other parties, the order of procedure shall be 

formulated during the final prehearing conference as required by 

Rule 16(d), M.R.Civ.P., and included in the final prehearing order. 

 Rule 21(e). Modification of abstract. Following the 

conclusion of the evidentiary hearing and the expiration of any 

post-hearing briefing schedule, the water court shall review the 

evidence in the record, render its written decision in accordance 

with the burden of proof set forth in Rule19, W.R.Adj.R., and modify 

the abstract of each applicable claim in accordance with the written 

decision. 

Rule 21(f). Enforcement. Until a water judge adopts or 

modifies a master’s report, any claim modified by the master’s 

report may not be enforced under Rule 31, W.R.Adj.R. 

RULE 22. SANCTIONS. If a claimant, objector, or intervenor 

fails to appear at a scheduled conference or hearing, or fails to 

comply with an order issued by the water court, the water court, 

upon motion, or its own initiative, may issue such orders of 

sanction with regard thereto as are just. Sanctions applied against 

claimants may include termination of the claim; or modification of 

the claim to conform with data provided by the department, 

information obtained by the court, or information included in an 

objection. Sanctions applied against objectors and intervenors may 

include dismissal of the objector or intervenor from the proceeding. 
117

RULE 23. MASTER’S REPORT. As stated in Rule 53(e), 

M.R.Civ.P., the master shall prepare a report upon the matters 

submitted to the master by the order of reference. If required to 

make findings of fact and conclusions of law, the master shall set 

them forth in the report. The master shall file the report with the 

clerk of the water court unless otherwise directed by the order of 

reference. The clerk of the water court shall serve notice of the filing 

and a copy of the report on all parties who appeared before the 

master and who were not previously dismissed from the proceeding. 

 At the discretion of the water court, notice of the filing and a copy 

of the master’s report may also be given to other claimants or other 

persons not otherwise appearing before the master in that 

proceeding. 

 Subject to Rule 6, M.R.Civ.P., any party to the proceeding 

before the master may file written objections with the water court 

within 10 days after the service date of the notice of filing of the 

master's report. In more complex cases, the water master may 

enlarge the objection period to 30 days. Upon request, a 10-day 

extension to the objection period may be freely granted. Any party 

filing objections shall also serve a copy of the objections upon the 

other parties on the service list. A hearing will not be held on the 

objections unless requested by a party or deemed necessary by the 

water judge. The water judge shall accept the master’s findings of 

fact unless they are clearly erroneous. After reviewing the report, 

the water judge may adopt, modify, or reject the report, in whole or 

in part, or may receive further evidence or recommit it with 

instructions. 

RULE 24. FINAL DECREES. 

Rule 24(a). Issuance. A final decree shall be issued for a 

basin, subbasin, or drainage after all objections, counterobjections, 

and issue remarks have been resolved; all motions to amend and on 

motion proceedings have been completed; and the requirements of § 

85-2-237(1), MCA, within the water division have been satisfied. 

Rule 24(b). Notice of entry. Notice of entry of a final decree 

shall be sent to all parties named in the decree whose rights are 
118

stated, determined or affected thereby. The notice of entry of the 

final decree shall also be published once in a newspaper of general 

circulation in the area where the basin, subbasin, or drainage set 

forth in the decree is located. 

Rule 24(c). Inspection of final decree. The notice of entry of 

final decree shall be in writing, and shall state where in the water 

division and for what period of time a copy of the final decree may 

be examined by the parties or interested persons. Any person may 

obtain a copy of the final decree upon payment of a fee covering the 

cost of printing or electronic copying. 

 

RULE 25. APPEALS. Appeals to the Montana supreme court 

by those parties entitled to an appeal under § 85-2-235, MCA, shall 

be taken in the manner specified in Rule 72, M.R.Civ.P., and made 

within the time frames permitted in Rule 5, M.R.App.P. The notice 

of appeal shall be in the form prescribed by Rule 4(c), M.R.App.P. 

The notice of appeal must also include a specific listing of all water 

right numbers for which the appeal is taken. Within 30 days of the 

filing of the notice of appeal, the water court may revise the caption 

of the proceeding to reflect the current status and posture of the 

parties, file a copy with the clerk of supreme court, and serve a copy 

on the parties. 

RULE 26. SPLIT CLAIMS. The water court may split claims 

into separate claims at any time prior to the final decree upon 

request of the claimants, or on its own initiative. The remarks in 

Rule 38(b), W.R.C.E.R. or similar remarks may be added. 

RULE 27. PUBLIC NOTICE OF ADJUDICATION 

PROCEEDINGS. The water court may provide notice of 

adjudication proceedings to the public through direct mail, 

newspaper advertising, public meetings, radio and television, the 

internet, or by other means. 

 

RULE 28. PERPETUATION OF TESTIMONY. A person who 

desires to perpetuate testimony regarding the historical beneficial 

use of any water right claim filed in accordance with § 85-2-221, 

MCA, may file a verified petition with the water court. The 
119

procedure set forth in Rule 27, M.R.Civ.P., shall be followed, but 

each reference in that rule to the district court shall refer to the 

water court and notice to expected adverse parties shall be served 

by mail to the most recently updated address documented in the 

department’s centralized record system. If the completed deposition 

is filed with the water court, it may be placed in the claim file of the 

claim involved in the deposition. If more than one claim is involved, 

the deposition will be placed in the lowest numbered claim file of 

the claims involved and a notice of that filing location shall be 

inserted in the other claim files involved in the deposition. 

Alternatively, the depositions may be placed in the case file 

containing the verified petition and a notice of filing location shall 

be placed in the file of the claims identified in the deposition. 

RULE 29. MISCELLANEOUS FEES. The chief water judge 

shall periodically establish a schedule of fees for copies of filed and 

microfiche documents and for fax and other electronic 

transmissions that do not exceed the highest fee charged for similar 

services by the state law library, clerks of court, or the department. 

RULE 30. LATE CLAIM ADMINISTRATIVE COSTS AND 

EXPENSES. On or before July 1 of each odd numbered year, the 

chief water judge shall establish a schedule of administrative costs 

and expenses to assess against late claimants as required by § 85-

2-225, MCA. The assessment shall be determined by calculating 

the number of hours a water judge or master works on a late claim 

and multiplying that number against a uniform hourly rate. The 

uniform hourly rate shall be derived by dividing the water court’s 

annual budget by 2080 hours and dividing that quotient by the 

number of FTEs authorized by the legislature for the water court. 

If late claims are consolidated and reviewed with non-late claims 

and the time devoted to the late claim cannot be separately 

assessed to a late claim, the water court shall prorate the 

assessment to fairly allocate the costs of working on a late claim. 

Unless the fees are waived by the water court, the minimum 

assessment will be $20.00. If the assessment is not paid within 60 

days after notice is provided, the water court shall hold a show 

cause hearing to determine why the late claim or claims should not 

be terminated for failing to pay the assessment. If the assessment 
120

is not paid or adequate explanation provided, the claim may be 

terminated. Late claim costs and expenses will not be assessed 

against withdrawn or terminated claims. 

RULE 31. WATER COURT DECREE ENFORCEMENT. Upon 

written request from a district court, water court decrees may be 

enforced pursuant to §§ 3-7-212, 85-2-406(3) and (4), and 85-5-

101, MCA. 

Rule 31(a). Preliminary procedure. Upon receipt of a district 

court request for enforcement, the water court shall: 

 (1) determine the scope of the enforcement project and 

project staffing in consultation with the department; and 

 (2) assess the status of all proceedings within the 

proposed enforcement area to confirm that all objections have been 

resolved and that the decree is ready for enforcement. 

Rule 31(b). Identification of diversions and instream uses. 

If the decree is ready for enforcement, the water court will: 

(1) identify every diversion and instream use within the 

enforcement area; 

(2) map diversions and instream uses as needed; 

(3) identify ditch names as necessary; 

(4) note any point of diversion discrepancies or other 

issues that might adversely affect the distribution of water 

under the water court’s tabulation of existing water rights; and 

(5) notify the claimant of these discrepancies or issues. 

The water court may resolve any discrepancy or issue through 

the procedures set forth in §§ 85-2-233(6) and 85-2-248, MCA. 

Rule 31(c). Public meetings. The water court may conduct 

public meetings on any proposed decree enforcement. 
121

Rule 31(d). Tabulations. The water court shall provide 

tabulations of existing water rights within the proposed 

enforcement area to the district courts. 

Rule 31(e). Controversies. If a water distribution controversy 

arises on a source that is included in the enforcement project, a 

dissatisfied water user may file a complaint with the district court 

pursuant to § 85-5-301, MCA, and petition the district court to 

certify the matter to the chief water judge pursuant to § 85-2-

406(2)(b), MCA. 

RULE 32. ASSISTANCE TO DISTRICT COURTS. The water 

court may assist the district courts in developing water user billing 

systems, water commissioner training, and any other requirement 

to facilitate the distribution of water under the water court decree 

and tabulations. 
122