Mont. Code Ann. » TITLE 85. WATER USE · CHAPTER 2. SURFACE WATER AND GROUND WATER · Part 1. General Provisions
Montana Code Annotated

Mont. Code Ann. § 85-2-101 (2026)

Declaration Of Policy And Purpose

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 85
  3. CHAPTER 2
  4. Part 1
  5. 85-2-101 Declaration of policy and purpose

TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 1. General Provisions

Declaration Of Policy And Purpose

85-2-101. Declaration of policy and purpose. (1) Pursuant to Article IX of the Montana constitution, the legislature declares that any use of water is a public use and that the waters within the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided in this chapter.

(2) A purpose of this chapter is to implement Article IX, section 3(4), of the Montana constitution, which requires that the legislature provide for the administration, control, and regulation of water rights and establish a system of centralized records of all water rights. The legislature declares that this system of centralized records recognizing and establishing all water rights is essential for the documentation, protection, preservation, and future beneficial use and development of Montana's water for the state and its citizens and for the continued development and completion of the comprehensive state water plan.

(3) It is the policy of this state and a purpose of this chapter to encourage the wise use of the state's water resources by making them available for appropriation consistent with this chapter and to provide for the wise utilization, development, and conservation of the waters of the state for the maximum benefit of its people with the least possible degradation of the natural aquatic ecosystems. In pursuit of this policy, the state encourages the development of facilities that store and conserve waters for beneficial use, for the maximization of the use of those waters in Montana, for the stabilization of streamflows, and for ground water recharge.

(4) Pursuant to Article IX, section 3(1), of the Montana constitution, it is further the policy of this state and a purpose of this chapter to recognize and confirm all existing rights to the use of any waters for any useful or beneficial purpose.

(5) It is the intent of the legislature that the statutory determinations for issuing new water use permits and authorizing changes do not require the adjudication of all water rights in the source of supply. The legislature recognizes the unique character and nature of water resources of the state. Because water is a resource that is subject to use and reuse, such as through return flows, and because at most times all water rights on a source will not be exercised to their full extent simultaneously, it is recognized that an adjudication is not a water availability study. Consequently, the legislature has provided an administrative forum for the factual investigation into whether water is available for new uses and changes both before and after the completion of an adjudication in the source of supply. To allow for orderly permitting in the absence of a complete adjudication in the source of supply, permits issued under this chapter are provisional. A provisional permit is subject to reduction, modification, or revocation by the department as provided in 85-2-313 upon completion of the general adjudication.

(6) It is the intent of the legislature that the state, to fulfill its constitutional duties and to exercise its historic powers and responsibilities to its citizens living on and off reservations, comprehensively adjudicate existing water rights and regulate water use within the state. It is further the legislature's intent that the state, to the fullest extent possible, retain and exercise its authority to regulate water use and provide forums for the protection of water rights, including federal non-Indian and Indian water rights, and resolve issues concerning its authority over water rights and permits, both prior to and after the final adjudication of water rights. In furtherance of this legislative intent:

(a) all permits issued are provisional, and it is the intent of the legislature that this status provide enforceable legal protection for existing rights; and

(b) any judicial determination of the state's authority to issue provisional permits on or off reservations should be decided in the appropriate state forum.

History: En. Sec. 2, Ch. 452, L. 1973; R.C.M. 1947, 89-866; amd. Sec. 1, Ch. 497, L. 1997.

Notes of Decisions
Cited in 35 cases (2 in the last 5 years), 1979–2025 · leading case: Clark Fork Coalition v. Montana Wel, 2016 MT 229 (Mont. 2016).
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Clark Fork Coalition v. Montana Wel, 2016 MT 229 (Mont. 2016). · cites it 15× “This is consistent with the purpose of the Act as a remedial statute designed to strictly adhere to the prior appropriation doctrine and to provide for the “administration, control, and regulation of water rights .”
Hohenlohe v. State, Dep't of Nat. Resources & Conservation, 2010 MT 203 (Mont. 2010). · cites it 22× “" Section 85-2-101, MCA. ¶ 50 Hohenlohes submitted information as to historic diverted use and ditch capacity.”
Clark Fork Coalition v. Tubbs, 2017 MT 184 (Mont. 2017). · cites it 12× “This is consistent with the purpose of the Act as a remedial statute designed to strictly adhere to the prior appropriation doctrine and to provide for the “administration, control, and regulation of water rights .”
In Re the Adjudication of the Existing Rights to the Use of All the Water, 2002 MT 216 (Mont. 2002). · cites it 12× “” Section 85-2-101(1)(a), MCA (emphasis added).”
State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). · cites it 15× “Section 85-2-101(1), MCA. The Act defined state policy regarding Montana's water resources as follows: "It is the policy of this state and a purpose of this chapter to encourage the wise use of the state's water resources by making them available for appropriation consistent…”
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151 (Mont. 2011). · cites it 10× “ublic policy of the state to conserve water by protecting, maintaining and improving water quality for public water supplies, wildlife, fish, aquatic life, agriculture, industry, recreation and other beneficial uses); § 85-1-101, MCA (water resources must be protected and…”
Dep't of State Lands v. Pettibone, 702 P.2d 948 (Mont. 1985). · cites it 6× “In the alternative, respondents argue that section 77-6-115, MCA, and the principles of the Water Use Act set forth in section 85-2-101, MCA, and the prior appropriation doctrine, give rise to an implied severance of water from land in the school trust land leases, and that the…”
Castillo v. Kunnemann, 642 P.2d 1019 (Mont. 1982). · cites it 10× “If Kunnemann effectively reserved the Grannis rights and severed them from the land to which they had been appurtenant, did existing law require him to obtain approval of the Department of Natural Resources pursuant to the provisions of the Montana Surface and Groundwater Act,…”
State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). · cites it 6× “1972; Section 85-2-101, MCA. Indian reserved water rights are created or recognized by federal treaty, federal statutes or executive order, and are governed by federal law.”
Montana Power Co. v. .Carey, 685 P.2d 336 (Mont. 1984). · cites it 9× “The Water Use Act, Section 85-2-101 et seq., MCA, was enacted in 1973.”
Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63 (Mont. 2007). · cites it 4× “; § 85-2-101(4), MCA. CONCLUSION ¶ 42 Before DNRC can process the Axes' change of use application, the District Court must decide whether DNRC has the sovereign authority to conduct such proceedings.”
McTaggart v. Montana Power Co., 602 P.2d 992 (Mont. 1979). · cites it 6× “Section 85-2-101, MCA, of the 1973 Montana Water Use Act, provides: “Pursuant to Article IX of the Montana constitution, the legislature declares that any use of water is a public use and that the waters within the state are the property of the state and for the use of its…”
Show all 35 citing cases →
— Mont. Code Ann. § 85-2-101(1) — 2 cases
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151 (Mont. 2011). “ublic policy of the state to conserve water by protecting, maintaining and improving water quality for public water supplies, wildlife, fish, aquatic life, agriculture, industry, recreation and other beneficial uses); § 85-1-101, MCA (water resources must be protected and…”
State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). “Section 85-2-101(1), MCA. The Act defined state policy regarding Montana's water resources as follows: "It is the policy of this state and a purpose of this chapter to encourage the wise use of the state's water resources by making them available for appropriation consistent…”
— Mont. Code Ann. § 85-2-101(1)(a) — 1 case
In Re the Adjudication of the Existing Rights to the Use of All the Water, 2002 MT 216 (Mont. 2002). “” Section 85-2-101(1)(a), MCA (emphasis added).”
— Mont. Code Ann. § 85-2-101(1)(c) — 1 case
In Re the Adjudication of the Existing Rights to the Use of All the Water, 2002 MT 216 (Mont. 2002). “” Section 85-2-101(1)(a), MCA (emphasis added).”
— Mont. Code Ann. § 85-2-101(2) — 6 cases
Clark Fork Coalition v. Tubbs, 2017 MT 184 (Mont. 2017). “This is consistent with the purpose of the Act as a remedial statute designed to strictly adhere to the prior appropriation doctrine and to provide for the “administration, control, and regulation of water rights .”
Castillo v. Kunnemann, 642 P.2d 1019 (Mont. 1982). “If Kunnemann effectively reserved the Grannis rights and severed them from the land to which they had been appurtenant, did existing law require him to obtain approval of the Department of Natural Resources pursuant to the provisions of the Montana Surface and Groundwater Act,…”
State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). “Section 85-2-101(1), MCA. The Act defined state policy regarding Montana's water resources as follows: "It is the policy of this state and a purpose of this chapter to encourage the wise use of the state's water resources by making them available for appropriation consistent…”
Lohmeier v. State, Montana Dep't of Nat. Resources & Conservation, 2008 MT 307 (Mont. 2008).
Scott Ranch, LLC, 2017 MT 230 (Mont. 2017).
— Mont. Code Ann. § 85-2-101(2X4) — 1 case
Clark Fork Coalition v. Montana Wel, 2016 MT 229 (Mont. 2016). “This is consistent with the purpose of the Act as a remedial statute designed to strictly adhere to the prior appropriation doctrine and to provide for the “administration, control, and regulation of water rights .”
— Mont. Code Ann. § 85-2-101(3) — 6 cases
State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). “Section 85-2-101(1), MCA. The Act defined state policy regarding Montana's water resources as follows: "It is the policy of this state and a purpose of this chapter to encourage the wise use of the state's water resources by making them available for appropriation consistent…”
Hohenlohe v. State, Dep't of Nat. Resources & Conservation, 2010 MT 203 (Mont. 2010). “" Section 85-2-101, MCA. ¶ 50 Hohenlohes submitted information as to historic diverted use and ditch capacity.”
Teton Coop Canal Co. v. Teton Coop Reservoir Co., 2018 MT 20 (Mont. 2018).
Eldorado Co-Op Canal Co. v. Lower T, 2014 MT 272 (Mont. 2014).
Teton Coop. Reservoir Co. v. Farmers Coop. Canal Co., 2015 MT 208 (Mont. 2015).
— Mont. Code Ann. § 85-2-101(4) — 9 cases
Clark Fork Coalition v. Montana Wel, 2016 MT 229 (Mont. 2016). “This is consistent with the purpose of the Act as a remedial statute designed to strictly adhere to the prior appropriation doctrine and to provide for the “administration, control, and regulation of water rights .”
Clark Fork Coalition v. Tubbs, 2017 MT 184 (Mont. 2017). “This is consistent with the purpose of the Act as a remedial statute designed to strictly adhere to the prior appropriation doctrine and to provide for the “administration, control, and regulation of water rights .”
In Re the Adjudication of the Existing Rights to the Use of All the Water, 2002 MT 216 (Mont. 2002). “” Section 85-2-101(1)(a), MCA (emphasis added).”
Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63 (Mont. 2007). “; § 85-2-101(4), MCA. CONCLUSION ¶ 42 Before DNRC can process the Axes' change of use application, the District Court must decide whether DNRC has the sovereign authority to conduct such proceedings.”
State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). “1972; Section 85-2-101, MCA. Indian reserved water rights are created or recognized by federal treaty, federal statutes or executive order, and are governed by federal law.”
— Mont. Code Ann. § 85-2-101(5) — 3 cases
Hohenlohe v. State, Dep't of Nat. Resources & Conservation, 2010 MT 203 (Mont. 2010). “" Section 85-2-101, MCA. ¶ 50 Hohenlohes submitted information as to historic diverted use and ditch capacity.”
Confederated Salish & Kootenai Tribes v. Clinch, 1999 MT 342 (Mont. 1999).
Elk Grove v. Four Corners, 2020 MT 195 (Mont. 2020).
— Mont. Code Ann. § 85-2-101(6) — 1 case
Trout Unlimited v. DNRC, 2025 MT 1 (Mont. 2025).
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