House Bill No. 390

Introduced By _______________________________________________________________________________



A Bill for an Act entitled: "An Act allowing voluntary pooling of irrigation water rights; amending section

85-2-404, MCA; and providing an immediate effective date."



Be it enacted by the Legislature of the State of Montana:



NEW SECTION. Section 1.  Voluntary pooling of irrigation water rights. (1) Two or more persons with an existing water right, permit, or certificate on a source of water, a person with multiple irrigation rights on the same source of water, or any combination of the listed persons whose irrigation rights may be admeasured and distributed pursuant to the provision of chapter 5 may enter into a water right pooling agreement for the pooling of irrigation rights.

(2) A water right pooling agreement is a written agreement covering all or a part of an irrigation season that provides for the pooling of irrigation rights so that the parties to the water right pooling agreement may use the pooled irrigation rights to more expeditiously and efficiently irrigate the lands appurtenant to the pooled irrigation rights. The pooling of irrigation water rights is a voluntary sharing of water rights that does not increase the total amount of water that would otherwise have been used.

(3) A water right pooling agreement must specify:

(a) for each irrigation right to be pooled, the owner of the right, the water right number according to the department's records, the flow amount of the right, the place of diversion, the place of use, the acreage irrigated with the right, the period of use, and the total volume of water currently authorized to be appropriated on an annual basis;

(b) a description of how and where the pooled water rights will be used during the irrigation season for which the water right pooling agreement has been entered;

(c) the term of the agreement if it is for less than a full irrigation season; otherwise the term is the full irrigation season as defined by the irrigation right with the shortest irrigation period; and

(d) the certifications required under subsection (5).

(4) A water right pooling agreement may not be entered into:

(a) to expand the acres irrigated under a water right;

(b) to expand the cumulative acres irrigated or cumulative volume of water appropriated, as determined on an annual basis; or

(c) that adversely affects the water rights or the delivery of water to other persons.

(5) When a water commissioner has been appointed on a source of supply pursuant to 85-5-101, a water right pooling agreement may be executed and filed with the district court. The water right pooling agreement filed with the district court must contain a certification that a copy of the water right pooling agreement has been delivered to the water commissioner, the department, and each person entitled to notice under this subsection at least 3 days prior to the filing of the water right pooling agreement. Prior to filing the water right pooling agreement with the district court, the parties to the agreement shall inspect the records of the department and serve a copy of the water right pooling agreement and a notice by first-class mail or personal delivery on each appropriator of water or applicant for or holder of a permit whose rights are on the source being regulated by the water commissioner. The notice must specify the date on which the water right pooling agreement will be filed with the district court and a statement that an objection to the implementation of the water right pooling agreement may be filed with the district court.

(6) An objection to a water right pooling agreement must be filed within 5 days of the filing of the water right pooling agreement to enjoin implementation of it without a hearing before the district court judge. If an objection is not filed with the district court within 5 days after the date of the filing of the water right pooling agreement, the water commissioner shall admeasure and distribute the water in accordance with the terms of the water right pooling agreement until directed otherwise by order of the district court judge. If an objection is filed with the district court within 5 days after the date of the filing of the water right pooling agreement, the water commissioner may not admeasure and distribute the water in accordance with the terms of the water right pooling agreement until directed by order of the district court judge. When relief is requested under this subsection pursuant to the filing of an objection, the matter must be set for hearing at the earliest possible time and takes precedence over all matters except prior matters of the same character. The district court judge may modify or nullify the water right pooling agreement if the objector's water rights have been or will be adversely affected.

(7) The liability of the parties to a water right pooling agreement that when implemented results in damages to a person who is not a party to the water right pooling agreement is not altered or modified by this section regardless of whether an objection is filed to the water right pooling agreement. A water commissioner may not be held liable for damages resulting from the water commissioner's furnishing or performing of services under this section.

(8) This section does not affect the rights or priority dates of any existing right, permit, or certificate. This section does not imply an intent to not comply with the terms and conditions attached to a pooled irrigation right.



Section 2.  Section 85-2-404, MCA, is amended to read:

"85-2-404.   (Temporary) Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of an appropriation right with the intention of wholly or partially abandoning the right or if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right is, to that extent, considered abandoned and must immediately expire.

(2)  If an appropriator ceases to use all or part of an appropriation right or ceases using the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for use, there is a prima facie presumption that the appropriator has abandoned the right in whole or for the part not used.

(3)  If an appropriator ceases to use all or part of an appropriation right because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:

(a)  the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and

(b)  the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.

(4)  The lease of an existing right pursuant to 85-2-436, the use of water pursuant to 85-2-439, or a temporary change pursuant to 85-2-407 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of any part of the right.

(5) Participation in a water right pooling agreement under [section 1] does not represent an intent by an appropriator to wholly or partially abandon the appropriation right.

(5)(6)  Subsections (1) and (2) do not apply to existing rights until they have been determined in accordance with part 2 of this chapter. (Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)

85-2-404.   (Effective July 1, 1999) Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of an appropriation right with the intention of wholly or partially abandoning the right or if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right is, to that extent, considered abandoned and must immediately expire.

(2)  If an appropriator ceases to use all or part of an appropriation right or ceases using the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for use, there is a prima facie presumption that the appropriator has abandoned the right in whole or for the part not used.

(3)  If an appropriator ceases to use all or part of an appropriation right because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:

(a)  the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and

(b)  the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.

(4)  The use of water pursuant to 85-2-439 or a temporary change pursuant to 85-2-407 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of any part of the right.

(5) Participation in a water right pooling agreement under [section 1] does not represent an intent by an appropriator to wholly or partially abandon the appropriation right.

(5)(6)  Subsections (1) and (2) do not apply to existing rights until they have been determined in accordance with part 2 of this chapter. (Terminates June 30, 2005--sec. 14, Ch. 487, L. 1995.)

85-2-404.   (Effective July 1, 2005) Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of his an appropriation right with the intention of wholly or partially abandoning the right or if he the appropriator ceases using his the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right shall is, to that extent, be deemed considered abandoned and shall must immediately expire.

(2)  If an appropriator ceases to use all or part of his an appropriation right or ceases using his the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for his use, there shall be is a prima facie presumption that the appropriator has abandoned his the right in whole or for the part not used.

(3)  If an appropriator ceases to use all or part of his an appropriation right because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:

(a)  the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and

(b)  the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.

(4)  A temporary change pursuant to 85-2-407 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of any part of the right.

(5) Participation in a water right pooling agreement under [section 1] does not represent an intent by an appropriator to wholly or partially abandon the appropriation right.

(5)(6)  Subsections (1) and (2) do not apply to existing rights until they have been determined in accordance with part 2 of this chapter."



NEW SECTION. Section 3.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 85, chapter 2, part 4, and the provisions of Title 85, chapter 2, part 4, apply to [section 1].



NEW SECTION. Section 4.  Effective date. [This act] is effective upon passage and approval.

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