should any groundwater pumping be exempt?

I've refrained from jumping into the middle of the exempt well discussion. I can't hold myself back any longer. I'll keep it short. See image above. With rapidly declining aquifer levels, should any groundwater pumping be exempt?

montana water right transfer question?

I just received the following email:

Hi Chris,

What is Montana's policy or law regarding irrigation water that can be sold? Leased? Is it the calculated amount of consumptive use, amount diverted, amount specified in the water right or?

This represents a great question and one frequently asked. Rather than reply to the email, I've decided to answer the question below. If you are not in the mood to read, and just want to know the short answer, I'd recommend scrolling down to the very bottom for the Cliff Notes Version.

First, I've touched on this topic in three previous post:

1. Do efficiency projects save marketable water?

2. Consumptive Use is King: Water Market Volumes

3. Water Marketing: What is Marketable Water?

Although, I've yet to provide a direct answer focused on Montana. The most recent answer to this question was provided in the notice of adoption for amendments of ARM 36.12.1901, Filing a Change Application and 36.12.1902, Change Application -Historic Use. These rule adoptions became effective on 11/26/09. Nevertheless, this notice provides the following information regarding the question at hand:

"Elements of a water right include the priority date; flow rate; volume; point of diversion and place of use. A water right that has been preliminarily decreed may not show a figure for the volume (acre-foot) limit of the right, but the right is decreed with the statement that the volume is limited to the historic use. In a change proceeding, previous case law and department orders limit the change to the historic diverted flow rate, historic diverted volume, and the historic consumptive use cannot be increased. An increase in historic consumptive use would generally reduce return flows. While the limit of a water right for the purposes of changing the right has is historic consumptive use, this figure has not typically been recorded on the water right. The DNRC is not reducing the right through a change process. It is identifying those figures so that the record contains that information for future changes to the water right. The identification of the consumed volume by a change applicant is critical to both junior and senior water right owners. That water not consumed generally creates return flows upon which seniors and juniors are entitled to rely. If the historic consumptive use is unknown, it would be difficult in a change proceeding for applicants to prove that it will not be increasing the amount of water consumed from the source."

"A water right owner who wishes to change the point of diversion of a water right still has the right to the flow rate of water historically diverted and may divert under the same diversion practices as has been done previously; however, at present the water right will show a figure that identifies the amount of water currently consumed. A water right owner who wants to change the purpose from irrigation to municipal use, can only change the amount of water diverted from the source, less the amount of water returned to a source. If the change were not limited to the historic consumptive use, the operation of the right could reduce the return flow of water to which others have a right (see "Thompson v. Harvey" (1974), 164 Mont. 133, 519 P.2d 963; "McIntosh v. Graveley" (1972), 159 Mont. 72, 495 P.2d 186; "Head v. Hale" (1909), 38 Mont. 302, 100 P. 222 [cannot so change water use as to deprive lower appropriators of their rights, already acquired]; "Gassert v. Noyes" (1896), 18 Mont. 216, 44 P. 959 [change unlawful, downstream water users entitled to return flow]). The portion of a water right not changed due to lack of proof of historic use remains as stated under the applicable Statement of Claim. Water rights are not forfeited through a change process (see Beck, Robert E., Water and Water Rights at § 14.04(c)(1)(b), pp. 14-50, 51 (1991 edition); Wells A. Hutchins, "Water Rights and Laws in the Nineteen Western States", at 624 (1971))."

Furthermore, existing ARM 36.12.1902(2) states:

"The amount of water being changed for each water right cannot exceed or increase the flow rate historically diverted under the historic use, nor exceed or increase the historic volume consumptively used under the existing use."

Cliff Notes Version

Water sold or leased will most likely require a change application. This change is limited to the historic diverted flow rate, historic diverted volume, and the historic consumptive use. A water right changed from irrigation to another use, can only protect - downstream of the historic point of diversion- the amount of water diverted from the source, less the amount of water returned to a source. AKA the consumptive use.

With that said, there is always exceptions to the rule and the transferable volume will remain dependent on the specific transaction.

water marketing: what is marketable water?

With water right basin closures and moratoriums occurring across the West, there is an increasing demand for existing irrigation water rights. In the last year, I've found myself, more frequently, using the term "MARKETABLE WATER." As I defined previously, marketable water is water that can be transfered to another use or appropriated to additional acreage. An increasingly popular stance from state water agencies is that an irrigation water right's transferable water represents the water associated with its consumptive use. For example, if alfalfa has a consumptive of 1 acre-foot per acre and a water right historically irrigated 100 acres of alfalfa, the water right's consumptive use is approximately 100 acre-feet per year.

This value represents the water that is consumptively used through evaporation and transpiration. This value represents water not available to other water users. This value represents the water can be bought, sold, traded to other water users with the least amount of adverse impact. This value represents the MARKETABLE WATER.