Bean Lake III Decision: The Implications

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Montana Department of Natural Resources and Conservation (DNRC) Water Resources Division The Bean Lake 111 Decision: The Implications In recent weeks, a Montana Supreme Court decision has been much in the news and discussed in private and public forums. This decision, commonly called the Bean Lake /// decision, has been critiqued for the far - reaching impact it is purported to have upon our existing water rights system. As the agency with state water rights responsibilities, the Department of Natural Resources and Conservation (DNRC) would like to help provide some context and clarify certain facts about the practical implications of the case. The Court focused on whether the instream or inlake water rights for fish, wildlife or recreation that have already been filed could proceed in the ongoing Montana Water Court general water rights adjudication, or should they be dismissed because of the lack of a diversion, impoundment, or "capture" of the water. The issue was not whether such instream flow rights for fish and recreation are superior to all other water rights, or whether any such new "senior" rights should be established. The Prior Appropriation Doctrine, which has been in place in Montana since 1865, continues to be the law in the adjudication and administration of water rights today. The Court's decision is based on this doctrine. The Prior Appropriation Doctrine is not a preference system, which provides that certain types of water uses are superior to others. The doctrine and the ruling are based simply on "first in time is first in right" regardless of the purpose of the use. Therefore, the ruling did not take away any existing water rights. Any instream or inlake rights that are ultimately recognized by the Water Court will carry a priority date, and will be administered according to that priority date just like any diversionary water right. . In the Bean Lake /// decision the Court found that fish, wildlife and recreation claims with a diversion could be valid. It also found that claims where no diversion is physically necessary, such as fish, wildlife and recreation claims and stock watering claims, can also be valid "when the facts and circumstances indicate that notice of the appropriator's intent has been given."