February 21, 2015: What Makes a Great Water Right?
Nancy Zalutsky
What Makes a Great Water Right?

A great water right is one that has the most potential to provide water, as opposed to a water right that looks good on paper, but does not provide very much water.  I have worked with Montana water rights for 20 years and in that time I have developed my own system for rating water rights.  First, I compare the relative priority dates of the rights on a single source.  Once I find the first right on the creek, I look at other factors to see how that water right stacks up against the others because the first right may not be the best right.  The Water Sage Rating System looks at priority and all of the other factors for you.

As the Water Sage Rating was developed, I rated the rating system, and I really dug into what makes a 5-star water right beyond seniority.  The process of refining our approach to rating drove home the importance of many of the non-priority aspects of water rights. Two of these factors are the number of diversions and their proximity to the place of use.  More diversions means more flexibility in managing your water and less chance of losing all the use of your water if you have to repair the headgate or ditch.  Also, closer diversions cut back on carriage loss, conveyance failures or other interruptions to your water.

The rating system compares the period of use and the proximity of other water rights to determine how much competition there is for water.  The Water Sage Rating also looks at the whether the right has been reviewed by the Water Court, so the claimed flow rate and priority date are less likely to be changed. In practical terms, this could mean the difference between a full ditch and a dry ditch. As I reviewed rights and our ratings, it struck me that the Water Sage Rating score was an indicator that, for certain rights, I needed to dig into all the details, as sometimes there is more than meets the eye.

How Do You Use the Water Sage Ratings System

You are comparing several ranches in Montana, and the description for each states that the ranch has great historic water rights.  You have looked at the abstracts for the water rights and you know that Montana water rights are first in time, first in right. So if you choose the ranch that has the most senior water rights, maybe you will get the most usable water rights. But then, again, maybe you won’t.  The more you look at the abstracts, factors other than seniority complicate your decision because it just doesn’t seem like seniority tells the whole story.  The new Water Sage Rating system incorporates all the factors to assess and compare the usability of water rights. Let’s compare the irrigation water rights for different ranches.

Ranch #1

This ranch is located near the source of the creek and has the five most senior rights on the creek, a total of 10 cfs with dates ranging from 1870 to 1880, and there is a ditch that can convey the whole 10 cfs of water four miles to the fields. The period of use allows water use from May 15 to August 30. The water rights are located in an area that has not yet been adjudicated by the Water Court; the basin is open to future appropriations.

Ranch #2

The second ranch, located downstream from Ranch #1, has a 2-cfs senior water right from the same source as Ranch #1 and 5 cfs of water from several junior water rights from tributaries to the source.  The stream flows through the ranch. The priority dates range from 1878 to 1900.  There are other ranches diverting water from the stream between Ranch #1 and Ranch #2. They are all junior to Ranch #1, and some are junior to Ranch #2.  Ranch #2 is able to divert the junior water either directly from the tributaries or from a point of diversion on the main source downstream from the tributaries.  There is a 3-cfs downstream senior water right. The ranch also has a water right for an irrigation well drilled in the 1950s. The period of use allows water use throughout the irrigation season.  The water rights are located in an area that has been adjudicated by the Water Court. The basin is closed to future appropriations.

Ranch #3

Ranch #3 has two direct flow irrigation rights, appropriated in 1905 and 1907, and one water right for an irrigation reservoir built in the 1940s.  The direct flow irrigation rights are diverted from the source at the field boundaries and can be used throughout the irrigation season.  The reservoir can only be filled once a year, but water can be diverted into storage year round. The water rights are located in an area that has been adjudicated by the Water Court. The basin is open to future appropriations.

What Does a Star Rating Tell You?

At first glance, Ranch #1 appears to have the best water rights, but if you consider the possible ditch loss from the four miles of ditch and the prospect that the flow rate of the water rights could be decreased during adjudication, maybe the right wouldn’t look as good.  Although the senior priority dates prevent calls on water to Ranch #1 during its period of use, the period of use is short, and its location near the source of the stream means that the ranch has no one to call for water if anything happens to affect flow.  Also, the location in an open basin could result in future conflict as competition for water increases.  The Water Sage Rating System would evaluate all these factors and the water rights would not have a top rating but all five rights would have the same 3-star or 4-star rating.

The senior water right used on Ranch #2 would have a higher rating than the senior water rights on Ranch # 1 because it has been adjudicated and the abstract reflects the actual legal water right.  Also, there is less ditch loss because the water is diverted close to the place of use. The senior water right for Ranch #2 has upstream juniors it can call for water. It may have a 5-star rating.  Part of the junior water can be called by the downstream senior, meaning a portion of the junior rights may essentially be high-water rights available only in the spring and would be rated accordingly, but the well can be used to irrigate in the latter part of the irrigation season.  Since the well is rated separately from the surface water rights, its rating would reflect its value to the ranch.

Ranch #3 has two high water rights that probably only last until the end of June, but the water can be diverted into the reservoir during times of the year when there is no other water use. The star rating for the juniors may only be 2 stars, but the reservoir’s usefulness will be reflected in its rating.

A lot of different factors make a great- or not-so-great water right.  While it can be difficult to evaluate a single right, it is nearly impossible to make a quick assessment of all the water rights associated with a property. Water Sage Ratings simplify this challenge.