montana water right transfer question?

“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)).”