Senate Bill No. 97

Introduced By grosfield

By Request of the Department of Natural Resources and Conservation



A Bill for an Act entitled: "An Act generally revising the water laws to clarify that the department of natural resources and conservation may issue water permits and change authorizations prior to the completion of an adjudication in a source of supply; clarifying that water reserved under state law is not synonymous with federal and Indian reserved water rights under federal law; ALLOWING THE DEPARTMENT TO NEGOTIATE INTERIM AGREEMENTS WITH TRIBAL GOVERNMENTS; amending sections 85-2-101, 85-2-102, 85-2-217, 85-2-228, 85-2-301, 85-2-302, 85-2-311, 85-2-313, 85-2-316, 85-2-321, 85-2-329, 85-2-331, 85-2-336, 85-2-340, 85-2-341, 85-2-342, 85-2-401, and 85-2-402, MCA; and providing an immediate effective date and a retroactive applicability date."



WHEREAS, the Montana Supreme Court, in In the Matter of the Application for Beneficial Water Use Permit Nos. 66459-76L, Ciotti; 64988-g76L, Starner; and Application for Change of Appropriation Water Right No. G15152-s761, Pope, which was decided August 22, 1996, held that an applicant for a permit or change of use authorization on the Flathead Indian Reservation may not as a matter of law meet the applicant's burden of proof to establish that the proposed use will not interfere unreasonably with planned uses or developments for which water has been reserved until the Confederated Salish and Kootenai Tribes' federal reserved water rights are quantified; and

WHEREAS, in 1973, Montana enacted comprehensive legislation referred to as the Montana Water Use Act of 1973, codified in Title 85, chapter 2, 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, and to implement Article IX making the water of the state subject to appropriation for beneficial use by its citizens; and

WHEREAS, Title 85, chapter 2, as amended, provides for the comprehensive adjudication of water rights and the continued development of Montana's water resources through a permit and change authorization process; and

WHEREAS, historically in Montana, water has been developed, water use rights acquired, and changes in water use completed in the absence of the adjudication of water rights in a source of supply; and

WHEREAS, since July 1, 1973, it has been the intent of the Legislature that provisional permits and change authorizations be issued pursuant to statutory standards in the absence of a completed adjudication in a source of supply; and

WHEREAS, the dissent filed with the Montana Supreme Court decision raises a concern that the majority decision may be interpreted to apply statewide, but that interpretation does not reflect the intent of the Legislature to allow for the continued wise and efficient use of Montana's water resources and Montana's growing economy as required under Title 85, chapter 2.

STATEMENT OF INTENT

THE LEGISLATURE INTENDS THAT THE MONTANA SUPREME COURT'S DECISION IN IN THE MATTER OF THE APPLICATION FOR BENEFICIAL WATER USE PERMIT NOS. 66459-76L, CIOTTI, 64988-G76L, STARNER; AND APPLICATION FOR CHANGE OF APPROPRIATION WATER RIGHT NO. G15152-S761, POPE, 53 ST. REP. 777 AT 784, 923 P.2D 1073, BE NEGATED BY THE PASSAGE AND APPROVAL OF THIS BILL. THE LEGISLATURE FURTHER INTENDS THAT THE DISTRICT COURT DECISION IN UNITED STATES V. DNRC (1ST JUDICIAL DISTRICT, MONTANA, JUNE 15, 1987), NO. 50612, (SEE ALSO THE CONCURRING OPINION IN THE MONTANA SUPREME COURT'S DECISION IN IN THE MATTER OF THE APPLICATION FOR BENEFICIAL WATER USE PERMIT NOS. 66459-76L CIOTTI, 64988-G76L, STARNER; AND APPLICATION FOR CHANGE OF APPROPRIATION WATER RIGHT NO. G15152-S761, POPE, 53 ST. REP. 777 AT 784, 923 P.2D 1073) BE NEGATED BY THE PASSAGE AND APPROVAL OF THIS BILL, SPECIFICALLY BY THE PASSAGE AND APPROVAL OF THE AMENDMENTS TO 85-2-311. A STATEMENT OF INTENT IS DESIRED FOR THIS BILL IN ORDER TO PROVIDE GUIDANCE TO THE DEPARTMENT UNDER 85-2-311 CONCERNING IMPLEMENTATION AND INTERPRETATION OF THE PHYSICAL AVAILABILITY OF WATER AND REASONABLE LEGAL AVAILABILITY OF WATER CRITERIA. TO FIND THAT WATER IS AVAILABLE FOR THE ISSUANCE OF A PERMIT, THE DEPARTMENT SHALL REQUIRE A THREE-STEP ANALYSIS INVOLVING THE FOLLOWING FACTORS: IDENTIFY PHYSICAL WATER AVAILABILITY, IDENTIFY EXISTING LEGAL DEMANDS ON THE SOURCE OF SUPPLY, AND COMPARE AND ANALYZE THE PHYSICAL WATER SUPPLY AT THE PROPOSED POINT OF DIVERSION WITH THE EXISTING LEGAL DEMANDS ON THE SOURCE OF SUPPLY. THE THREE-STEP ANALYSIS MUST BE AS GENERALLY DESCRIBED IN THE PAMPHLET "INFORMATION AND INSTRUCTIONS FOR APPLICATION FOR BENEFICIAL WATER USE PERMIT, FORM NO. 600INS, FORM NO. 600 AND CRITERIA ADDENDUM A", PUBLISHED BY THE MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION.



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



Section 1.  Section 85-2-101, MCA, is amended to read:

"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 which that store and conserve waters for beneficial use, for the maximization of the use of those waters in Montana, for the stabilization of stream flows 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 establishment of a moratorium under 85-2-302 does not limit, expand, alter, or waive state jurisdiction to administer water rights within the exterior boundaries of an Indian reservation."



Section 2.  Section 85-2-102, MCA, is amended to read:

"85-2-102.   (Temporary) Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

(1)  "Appropriate" means to:

(a)  divert, impound, or withdraw (including by stock for stock water) a quantity of water;

(b)  in the case of a public agency, reserve water in accordance with 85-2-316;

(c)  in the case of the department of fish, wildlife, and parks, lease water in accordance with 85-2-436; or

(d)  in the Upper Clark Fork River basin, maintain and enhance streamflows to benefit the fishery resource in accordance with 85-2-439.

(2)  "Beneficial use", unless otherwise provided, means:

(a)  a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and recreational uses;

(b)  a use of water appropriated by the department for the state water leasing program under 85-2-141 and of water leased under a valid lease issued by the department under 85-2-141;

(c)  a use of water by the department of fish, wildlife, and parks pursuant to a lease authorized under 85-2-436; or

(d)  a use of water to maintain and enhance streamflows to benefit the fishery resource in the Upper Clark Fork River basin as part of the Upper Clark Fork River basin instream flow pilot program authorized under 85-2-439.

(3)  "Certificate" means a certificate of water right issued by the department.

(4)  "Change in appropriation right" means a change in the place of diversion, the place of use, the purpose of use, or the place of storage.

(5)  "Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.

(6)  "Correct and complete" means that the information required to be submitted conforms to the standard of substantial credible information and that all of the necessary parts of the form requiring the information have been filled in with the required information.

(7)  "Declaration" means the declaration of an existing right filed with the department under section 8, Chapter 452, Laws of 1973.

(8)  "Department" means the department of natural resources and conservation provided for in Title 2, chapter 15, part 33.

(9) "Existing right" or "existing water right" means a right to the use of water that would be protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and Indian reserved water rights created under federal law and water rights created under state law.

(10) "Ground water" means any water that is beneath the ground surface.

(11) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of abandonment under 85-2-226.

(12) "Permit" means the permit to appropriate issued by the department under 85-2-301 through 85-2-303 and 85-2-306 through 85-2-314.

(13) "Person" means an individual, association, partnership, corporation, state agency, political subdivision, the United States or any agency of the United States, or any other entity.

(14) "Political subdivision" means any county, incorporated city or town, public corporation, or district created pursuant to state law or other public body of the state empowered to appropriate water. The term does not mean a private corporation, association, or group.

(15) "Salvage" means to make water available for beneficial use from an existing valid appropriation through application of water-saving methods.

(16) "State water reservation" means a water right created under state law after July 1, 1973, that reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of water throughout the year or at periods or for defined lengths of time.

(16)(17) "Substantial credible information" means probable, believable facts sufficient to support a reasonable legal theory upon which the department should proceed with the action requested by the person providing the information.

(17)(18) "Waste" means the unreasonable loss of water through the design or negligent operation of an appropriation or water distribution facility or the application of water to anything but a beneficial use.

(18)(19) "Water" means all water of the state, surface and subsurface, regardless of its character or manner of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage effluent.

(19)(20) "Water division" means a drainage basin as defined in 3-7-102.

(20)(21) "Water judge" means a judge as provided for in Title 3, chapter 7.

(21)(22) "Water master" means a master as provided for in Title 3, chapter 7.

(22)(23) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It does not include ditches, culverts, or other manmade constructed waterways.

(23)(24) "Well" means any artificial opening or excavation in the ground, however made, by which ground water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn. (Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)

85-2-102.   (Effective July 1, 1999) Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

(1)  "Appropriate" means:

(a)  to divert, impound, or withdraw (including by stock for stock water) a quantity of water;

(b)  in the case of a public agency, to reserve water in accordance with 85-2-316; or

(c)  in the Upper Clark Fork River basin, to maintain and enhance streamflows to benefit the fishery resource in accordance with 85-2-439.

(2)  "Beneficial use", unless otherwise provided, means:

(a)  a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and recreational uses;

(b)  a use of water appropriated by the department for the state water leasing program under 85-2-141 and of water leased under a valid lease issued by the department under 85-2-141; or

(c)  a use of water to maintain and enhance streamflows to benefit the fishery resource in the Upper Clark Fork River basin as part of the Upper Clark Fork River basin instream flow pilot program authorized under 85-2-439.

(3)  "Certificate" means a certificate of water right issued by the department.

(4)  "Change in appropriation right" means a change in the place of diversion, the place of use, the purpose of use, or the place of storage.

(5)  "Correct and complete" means that the information required to be submitted conforms to the standard of substantial credible information and that all of the necessary parts of the form requiring the information have been filled in with the required information.

(6)  "Declaration" means the declaration of an existing right filed with the department under section 8, Chapter 452, Laws of 1973.

(7)  "Department" means the department of natural resources and conservation provided for in Title 2, chapter 15, part 33.

(8)  "Existing right" or "existing water right" means a right to the use of water that would be protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and Indian reserved water rights created under federal law and water rights created under state law.

(9) "Ground water" means any water that is beneath the ground surface.

(10) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of abandonment under 85-2-226.

(11) "Permit" means the permit to appropriate issued by the department under 85-2-301 through 85-2-303 and 85-2-306 through 85-2-314.

(12) "Person" means an individual, association, partnership, corporation, state agency, political subdivision, the United States or any agency of the United States, or any other entity.

(13) "Political subdivision" means any county, incorporated city or town, public corporation, or district created pursuant to state law or other public body of the state empowered to appropriate water. The term does not mean a private corporation, association, or group.

(14) "Salvage" means to make water available for beneficial use from an existing valid appropriation through application of water-saving methods.

(15) "State water reservation" means a water right created under state law after July 1, 1973, that reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of water throughout the year or at periods or for defined lengths of time.

(15)(16) "Substantial credible information" means probable, believable facts sufficient to support a reasonable legal theory upon which the department should proceed with the action requested by the person providing the information.

(16)(17) "Waste" means the unreasonable loss of water through the design or negligent operation of an appropriation or water distribution facility or the application of water to anything but a beneficial use.

(17)(18) "Water" means all water of the state, surface and subsurface, regardless of its character or manner of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage effluent.

(18)(19) "Water division" means a drainage basin as defined in 3-7-102.

(19)(20) "Water judge" means a judge as provided for in Title 3, chapter 7.

(20)(21) "Water master" means a master as provided for in Title 3, chapter 7.

(21)(22) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It does not include ditches, culverts, or other manmade constructed waterways.

(22)(23) "Well" means any artificial opening or excavation in the ground, however made, by which ground water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn. (Terminates June 30, 2005--sec. 14, Ch. 487, L. 1995.)

85-2-102.   (Effective July 1, 2005) Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

(1)  "Appropriate" means to:

(a)  divert, impound, or withdraw (including by stock for stock water) a quantity of water;

(b)  in the case of a public agency, to reserve water in accordance with 85-2-316; or

(c)  in the case of the department of fish, wildlife, and parks, to lease water in accordance with 85-2-436.

(2)  "Beneficial use", unless otherwise provided, means:

(a)  a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and recreational uses;

(b)  a use of water appropriated by the department for the state water leasing program under 85-2-141 and of water leased under a valid lease issued by the department under 85-2-141; and

(c)  a use of water by the department of fish, wildlife, and parks pursuant to a lease authorized under 85-2-436.

(3)  "Certificate" means a certificate of water right issued by the department.

(4)  "Change in appropriation right" means a change in the place of diversion, the place of use, the purpose of use, or the place of storage.

(5)  "Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.

(6)  "Correct and complete" means that the information required to be submitted conforms to the standard of substantial credible information and that all of the necessary parts of the form requiring the information have been filled in with the required information.

(7)  "Declaration" means the declaration of an existing right filed with the department under section 8, Chapter 452, Laws of 1973.

(8)  "Department" means the department of natural resources and conservation provided for in Title 2, chapter 15, part 33.

(9) "Existing right" or "existing water right" means a right to the use of water that would be protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and Indian reserved water rights created under federal law and water rights created under state law.

(10) "Ground water" means any water that is beneath the ground surface.

(11) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of abandonment under 85-2-226.

(12) "Permit" means the permit to appropriate issued by the department under 85-2-301 through 85-2-303 and 85-2-306 through 85-2-314.

(13) "Person" means an individual, association, partnership, corporation, state agency, political subdivision, the United States or any agency thereof of the United States, or any other entity.

(14) "Political subdivision" means any county, incorporated city or town, public corporation, or district created pursuant to state law or other public body of the state empowered to appropriate water. The term does not mean a private corporation, association, or group.

(15) "Salvage" means to make water available for beneficial use from an existing valid appropriation through application of water-saving methods.

(16) "State water reservation" means a water right created under state law after July 1, 1973, that reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of water throughout the year or at periods or for defined lengths of time.

(16)(17) "Substantial credible information" means probable, believable facts sufficient to support a reasonable legal theory upon which the department should proceed with the action requested by the person providing the information.

(17)(18) "Waste" means the unreasonable loss of water through the design or negligent operation of an appropriation or water distribution facility or the application of water to anything but a beneficial use.

(18)(19) "Water" means all water of the state, surface and subsurface, regardless of its character or manner of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage effluent.

(19)(20) "Water division" means a drainage basin as defined in 3-7-102.

(20)(21) "Water judge" means a judge as provided for in Title 3, chapter 7.

(21)(22) "Water master" means a master as provided for in Title 3, chapter 7.

(22)(23) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It does not include ditches, culverts, or other manmade constructed waterways.

(23)(24) "Well" means any artificial opening or excavation in the ground, however made, by which ground water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn."



Section 3.  Section 85-2-217, MCA, is amended to read:

"85-2-217.   Suspension of adjudication. While negotiations for the conclusion of a compact under part 7 are being pursued, all proceedings to generally adjudicate reserved Indian water rights and federal reserved water rights of those tribes and federal agencies which that are negotiating are suspended. The obligation to file water rights claims for those federal non-Indian and Indian reserved rights is also suspended. This suspension shall be is effective until July 1, 1999, as long as negotiations are continuing or ratification of a completed compact is being sought. If approval by the state legislature and tribes or federal agencies has not been accomplished by July 1, 1999, the suspension shall must terminate on that date. Upon termination of the suspension of this part, the tribes and the federal agencies shall be are subject to the special filing requirements of 85-2-702(3) and all other requirements of the state water adjudication system provided for in Title 85, chapter 2. Those tribes and federal agencies that choose not to negotiate their federal non-Indian and Indian reserved water rights are subject to the full operation of the state adjudication system and may not benefit from the suspension provisions of this section."



Section 4.  Section 85-2-228, MCA, is amended to read:

"85-2-228.   Federal reserved water rights with priority date of July 1, 1973, or later -- process and adjudication -- purpose. (1) The purpose of this section is to ensure that a federal reserved water right with a priority date of July 1, 1973, or later be is subject to the same process and adjudication as a federal reserved water right with a priority date before July 1, 1973.

(2)  Under authority granted to the states by 43 U.S.C. 666, a federal reserved water right that has a priority date of July 1, 1973, or later and that is asserted by a federal agency is subject to the claim filing requirements and all other applicable requirements of the state water adjudication system provided for in Title 85, chapter 2, parts 2 and 7.

(3)  At the request of a federal agency, the reserved water rights compact commission may negotiate to conclude a compact under Title 85, chapter 2, part 7, for a federal reserved water right with a priority date of July 1, 1973, or later.

(4)  Whenever necessary, a water judge may reopen any decree issued pursuant to Title 85, chapter 2, to process the asserted or negotiated federal reserved water right."



Section 5.  Section 85-2-301, MCA, is amended to read:

"85-2-301.   Right to appropriate -- recognition and confirmation of permits issued after July 1, 1973. (1) After July 1, 1973, a person may not appropriate water except as provided in this chapter. A person may only appropriate water only for a beneficial use.

(2)  (a) Only the department may appropriate water by permit in either of the following instances:

(i)  for transport outside the following river basins:

(A)  the Clark Fork River and its tributaries to its confluence with Lake Pend Oreille in Idaho;

(B)  the Kootenai River and its tributaries to its confluence with Kootenay Lake in British Columbia;

(C)  the St. Mary River and its tributaries to its confluence with the Oldman River in Alberta;

(D)  the Little Missouri River and its tributaries to its confluence with Lake Sakakawea in North Dakota;

(E)  the Missouri River and its tributaries to its confluence with the Yellowstone River in North Dakota; and

(F)  the Yellowstone River and its tributaries to its confluence with the Missouri River in North Dakota; or

(ii) whenever water in excess of 4,000 acre-feet a year and 5.5 cubic feet per second, for any use, is to be consumed.

(b)  Water for these purposes or in these amounts may be leased from the department by any person under the provisions of 85-2-141.

(3)  A right to appropriate water may not be acquired by any other method, including by adverse use, adverse possession, prescription, or estoppel. The method prescribed by this chapter is exclusive.

(4) All permit actions of the department after July 1, 1973, are recognized and confirmed subject to this part and any terms, conditions, and limitations placed on a permit by the department."



Section 6.  Section 85-2-302, MCA, is amended to read:

"85-2-302.   Application for permit. (1) Except as otherwise provided in (1) through (3) of 85-2-306 (1) through (3), a person may not appropriate water or commence construction of diversion, impoundment, withdrawal, or distribution works therefor for water except by applying for and receiving a permit from the department. The application shall must be made on a form prescribed by the department. The department shall make the forms available through its offices and the offices of the county clerk and recorders. The applicant shall submit a correct and complete application. The department shall return a defective application for correction or completion, together with the reasons for returning it. An application does not lose priority of filing because of defects if the application is corrected, completed, and refiled with the department within 30 days after its return to the applicant or within a further time as the department may allow. If an application is not corrected and completed within 30 days or within a further time as the department allows, up to 3 months, the priority date of the application shall must be the date of refiling the application with the corrections with the department. An application not corrected within 3 months shall must be terminated.

(2) Prior to final adjudication and while negotiations for the conclusion of a compact under part 7 are being pursued or until July 1, 2003, whichever occurs first, there is a moratorium on the processing of permit applications for surface water on an affected Indian reservation."



Section 7.  Section 85-2-311, MCA, is amended to read:

"85-2-311.   Criteria for issuance of permit. (1) A permit may be issued under this part prior to the adjudication of existing water rights in a source of supply. In a permit proceeding under this part there is no presumption that an applicant for a permit cannot meet the statutory criteria of this section prior to the adjudication of existing water rights pursuant to this chapter. Except as provided in subsections (3) and (4), the department shall issue a permit if the applicant proves by a preponderance of evidence that the following criteria are met:

(a)  there are unappropriated waters in the source of supply is water physically available at the proposed point of diversion:

(i)  at times when the water can be put to the use proposed by the applicant;

(ii) in the amount that the applicant seeks to appropriate; and

(iii) during the period in which the applicant seeks to appropriate, in the amount requested and that is reasonably available;

(b)  the water rights of a prior appropriator UNDER AN EXISTING WATER RIGHT, A CERTIFICATE, A PERMIT, OR A STATE WATER RESERVATION will not be adversely affected. In this subsection (1)(b), adverse effect must be determined based on a consideration of:

(i) whether water can reasonably be considered IS REASONABLY legally available DURING THE PERIOD IN WHICH THE APPLICANT SEEKS TO APPROPRIATE, IN THE AMOUNT REQUESTED, based on the records of the department and other evidence provided to the department; and

(ii) an applicant's plan for the exercise of the permit that demonstrates that the applicant's use of the water will be controlled so the water right of a prior appropriator will be satisfied;.

(c)  the proposed means of diversion, construction, and operation of the appropriation works are adequate;

(d)  the proposed use of water is a beneficial use;

(e)  the proposed use will not interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved;

(f)(e)  the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use;

(g)(f)  the water quality of a prior appropriator will not be adversely affected;

(h)(g)  the proposed use will be substantially in accordance with the classification of water set for the source of supply pursuant to 75-5-301(1); and

(i)(h)  the ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(2)  The applicant is required to prove that the criteria in subsections (1)(g) (1)(f) through (1)(i) (1)(h) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (1)(g) (1)(f), (1)(h) (1)(g), or (1)(i) (1)(h), as applicable, may not be met. For the criteria set forth in subsection (1)(h) (1)(g), only the department of environmental quality or a local water quality district established under Title 7, chapter 13, part 45, may file a valid objection.

(3)  The department may not issue a permit for an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the applicant proves by clear and convincing evidence that:

(a)  the criteria in subsection (1) are met;

(b)  the rights of a prior appropriator will not be adversely affected;

(c)(b)  the proposed appropriation is a reasonable use. A finding must be based on a consideration of the following:

(i)  the existing demands on the state water supply, as well as projected demands, such as reservations of water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii) the benefits to the applicant and the state;

(iii) the effects on the quantity and quality of water for existing beneficial uses in the source of supply;

(iv) the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi) the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(4)  (a) The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for federal non-Indian and Indian reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the criteria in this subsection (4) must be met before out-of-state use may occur.

(b)  The department may not issue a permit for the appropriation of water for withdrawal and transportation for use outside the state unless the applicant proves by clear and convincing evidence that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (1) or (3) are met;

(ii) the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii) the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(c)  In determining whether the applicant has proved by clear and convincing evidence that the requirements of subsections (4)(b)(ii) and (4)(b)(iii) are met, the department shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages within the state of Montana;

(iii) the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv) the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(d)  When applying for a permit or a lease to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation, lease, and use of water.

(5)  To meet the preponderance of evidence standard in this section, the applicant, in addition to other evidence demonstrating that the criteria of subsection (1) have been met, shall submit hydrologic or other evidence, including but not limited to water supply data, field reports, and other information developed by the applicant, the department, the U.S. geological survey, or the U.S. natural resources conservation service and other specific field studies.

(6)  An appropriation, diversion, impoundment, use, restraint, or attempted appropriation, diversion, impoundment, use, or restraint contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized appropriation, diversion, impoundment, use, or other restraint. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to appropriate, divert, impound, use, or otherwise restrain or control waters within the boundaries of this state except in accordance with this section.

(7)  The department may adopt rules to implement the provisions of this section."



Section 8.  Section 85-2-313, MCA, is amended to read:

"85-2-313.   Provisional permit. A permit issued prior to a final determination of existing water rights is provisional and is subject to that final determination. The Upon petition, the amount of the appropriation granted in a provisional permit shall must be reduced or, modified, or revoked by the department in FOLLOWING a show cause hearing where when IN WHICH IT IS DETERMINED THAT REDUCTION, MODIFICATION, OR REVOCATION IS necessary to protect and guarantee existing water rights determined in the final decree. Because a provisional permit is issued on a reasonable determination of legal availability under 85-2-311(1)(b), in a show cause hearing under this section, legal availability must be determined on a consideration of the final decree in the affected basin or subbasin. A person may not obtain any vested right to an appropriation obtained under a provisional permit by virtue of construction of diversion works, purchase of equipment to apply water, planting of crops, or other action where the permit would have been denied or modified if the final decree had been available to the department."



Section 9.  Section 85-2-316, MCA, is amended to read:

"85-2-316.   Reservation State reservation of waters. (1) The state, or any political subdivision or agency of the state, or the United States or any agency of the United States may apply to the department to reserve waters acquire a state water reservation for existing or future beneficial uses or to maintain a minimum flow, level, or quality of water throughout the year or at periods or for a length of time that the department designates.

(2)  (a) Water may be reserved for existing or future beneficial uses in the basin where it is reserved, as described by the following basins:

(i)  the Clark Fork River and its tributaries to its confluence with Lake Pend Oreille in Idaho;

(ii) the Kootenai River and its tributaries to its confluence with Kootenay Lake in British Columbia;

(iii) the St. Mary River and its tributaries to its confluence with the Oldman River in Alberta;

(iv) the Little Missouri River and its tributaries to its confluence with Lake Sakakawea in North Dakota;

(v)  the Missouri River and its tributaries to its confluence with the Yellowstone River in North Dakota; and

(vi) the Yellowstone River and its tributaries to its confluence with the Missouri River in North Dakota.

(b)  A state water reservation may be made for an existing or future beneficial use outside the basin where the diversion occurs only if stored water is not reasonably available for water leasing under 85-2-141 and the proposed use would occur in a basin designated in subsection (2)(a).

(3)  Upon receiving a correct and complete application, the department shall proceed in accordance with 85-2-307 through 85-2-309. After the hearing provided for in 85-2-309, the department shall decide whether to reserve the water for the applicant. The department's costs of giving notice, holding the hearing, conducting investigations, and making records incurred in acting upon the application to reserve water, except the cost of salaries of the department's personnel, must be paid by the applicant. In addition, a reasonable proportion of the department's cost of preparing an environmental impact statement must be paid by the applicant unless waived by the department upon a showing of good cause by the applicant.

(4)  (a) The department may not adopt an order reserving water unless the applicant establishes to the satisfaction of the department by a preponderance of evidence:

(i)  the purpose of the reservation;

(ii) the need for the reservation;

(iii) the amount of water necessary for the purpose of the reservation;

(iv) that the reservation is in the public interest.

(b)  In determining the public interest under subsection (4)(a)(iv), the department may not adopt an order reserving water for withdrawal and transport for use outside the state unless the applicant proves by clear and convincing evidence that:

(i)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(ii) the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(c)  In determining whether the applicant has proved by clear and convincing evidence that the requirements of subsections (4)(b)(i) and (4)(b)(ii) are met, the department shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages within the state of Montana;

(iii) the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv) the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(d)  When applying for a state water reservation to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation, lease, use, and reservation of water.

(5)  If the purpose of the state water reservation requires construction of a storage or diversion facility, the applicant shall establish to the satisfaction of the department by a preponderance of evidence that there will be progress toward completion of the facility and accomplishment of the purpose with reasonable diligence in accordance with an established plan.

(6)  The department shall limit any state water reservations after May 9, 1979, for maintenance of minimum flow, level, or quality of water that it awards at any point on a stream or river to a maximum of 50% of the average annual flow of record on gauged streams. Ungauged streams can be allocated at the discretion of the department.

(7)  After the adoption of an order reserving waters, the department may reject an application and refuse a permit for the appropriation of reserved waters or may issue the permit subject to terms and conditions that it considers necessary for the protection of the objectives of the reservation.

(8)  (a) A person desiring to use water reserved to a conservation district for agricultural purposes shall make application for the use with the district, and the district, upon approval of the application, shall inform the department of the approved use and issue the applicant an authorization for the use. The department shall maintain records of all uses of water reserved to conservation districts and be responsible, when requested by the districts, for rendering technical and administrative assistance within the department's staffing and budgeting limitations in the preparation and processing of the applications for the conservation districts. The department shall, within its staffing and budgeting limitations, complete any feasibility study requested by the districts within 12 months of the time that the request was made. The department shall extend the time allowed to develop a plan identifying projects for using a district's reservation as long as the conservation district makes a good faith effort, within its staffing and budget limitations, to develop a plan.

(b)  Upon actual application of water to the proposed beneficial use, the authorized user shall notify the conservation district. The notification must contain a certified statement by a person with experience in the design, construction, or operation of project works for agricultural purposes describing how the reserved water was put to use. The department or the district may then inspect the appropriation to determine if it has been completed in substantial accordance with the authorization.

(9)  Except as provided in 85-2-331, the priority of appropriation of a state water reservation and the relative priority of the reservation to permits with a later priority of appropriation must be determined according to this subsection (9), as follows:

(a)  A state water reservation under this section has a priority of appropriation dating from the filing with the department of a notice of intention to apply for a state water reservation in a basin in which no other notice of intention to apply is currently pending. The notice of intention to apply must specify the basin in which the applicant is seeking a state water reservation.

(b)  Upon receiving a notice of intention to apply for a state water reservation, the department shall identify all potential state water reservation applicants in the basin specified in the notice and notify each potential applicant of the opportunity to submit an application and to receive a state water reservation with the priority of appropriation as described in subsection (9)(a).

(c)  To receive the priority of appropriation described in subsection (9)(a), the applicant shall submit a correct and complete state water reservation application within 1 year after the filing of the notice of intention to apply. Upon a showing of good cause, the department may extend the time for preparing the application.

(d)  The department may by order subordinate a state water reservation to a permit issued pursuant to this part if:

(i)  the permit application was accepted by the department before the date of the order granting the reservation; and

(ii) the effect of subordinating the reservation to one or more permits does not interfere substantially with the purpose of the reservation.

(e)  The department shall by order establish the relative priority of state water reservations approved under this section that have the same day of priority. A state water reservation may not adversely affect any rights in existence at that time.

(10) The department shall, periodically but at least once every 10 years, review existing state water reservations to ensure that the objectives of the reservation reservations are being met. When the objectives of the a state water reservation are not being met, the department may extend, revoke, or modify the reservation. Any undeveloped water made available as a result of a revocation or modification under this subsection is available for appropriation by others pursuant to this part.

(11) The department may modify an existing or future order originally adopted to reserve water for the purpose of maintaining minimum flow, level, or quality of water, so as to reallocate the state water reservation or portion of the reservation to an applicant who is a qualified reservant under this section. Reallocation of reserved water reserved pursuant to a state water reservation may be made by the department following notice and hearing if the department finds that all or part of the reservation is not required for its purpose and that the need for the reallocation has been shown by the applicant to outweigh the need shown by the original reservant. Reallocation of reserved water may not adversely affect the priority date of the reservation, and the reservation retains its priority date despite reallocation to a different entity for a different use. The department may not reallocate water reserved under this section on any stream or river more frequently than once every 5 years.

(12) A reservant may not make a change in a state water reservation under this section, except as permitted under 85-2-402 and this subsection. If the department approves a change, the department shall give notice and require the reservant to establish that the criteria in subsection (4) will be met under the approved change.

(13) A state water reservation may be transferred to another entity qualified to hold a reservation under subsection (1). Only the entity holding the reservation may initiate a transfer. The transfer occurs upon the filing of a water right transfer certificate with the department, together with an affidavit from the entity receiving the reservation establishing that the entity is a qualified reservant under subsection (1), that the entity agrees to comply with the requirements of this section and the conditions of the reservation, and that the entity can meet the objectives of the reservation as granted. If the transfer of a state water reservation involves a change in an appropriation right, the necessary approvals must be acquired pursuant to subsection (12).

(14) Nothing in this section vests the department with the authority to alter a water right that is not a state water reservation.

(15) The department shall undertake a program to educate the public, other state agencies, and political subdivisions of the state as to the benefits of the state water reservation process and the procedures to be followed to secure the reservation of water. The department shall provide technical assistance to other state agencies and political subdivisions in applying for reservations under this section.

(16) Water reserved under this section is not subject to the state water leasing program established under 85-2-141."



Section 10.  Section 85-2-321, MCA, is amended to read:

"85-2-321.   Milk River basin -- suspension of action on permits -- proposal -- priority in adjudication process. (1) (a) In order to balance the need for the continued development of Montana's water and for protection of existing rights in the Milk River basin, the department may suspend action on a class of applications or may close a source in the basin and refuse to accept a class of applications, or both, for a permit under this part to appropriate from that source in the basin.

(b)  Suspension or closure, or both, may only be proposed by the department.

(c)  The proposal must state the source in the basin and class of applications for which suspension or closure, or both, is being proposed and any of the following allegations:

(i)  that the frequency of occurrence of unappropriated waters is such that:

(A)  any new appropriation from the source for the class of applications will adversely affect the rights of a prior appropriation from the source; or

(B)  any new appropriation from the source for the class of applications will interfere unreasonably with another planned use or development for which a permit has been given or for which water has been reserved pursuant to this part in the source; or

(ii) that significant disputes or enforcement problems regarding priority of rights or amounts or duration of water in use by appropriators are in progress or will arise.

(2)  After April 8, 1985, the chief water judge shall make issuance of a temporary preliminary decree in the Milk River basin the highest priority in the adjudication of existing water rights pursuant to Title 85, chapter 2, part 2."



Section 11.  Section 85-2-329, MCA, is amended to read:

"85-2-329.   Definitions. Unless the context requires otherwise, in 85-2-330 and this section, the following definitions apply:

(1)  "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state water reservation pursuant to 85-2-316.

(2)  "Ground water" means water that is beneath the land surface or beneath the bed of a stream, lake, reservoir, or other body of surface water and that is not immediately or directly connected to surface water.

(3)  "Nonconsumptive use" means a beneficial use of water that does not cause a reduction in the source of supply and in which substantially all of the water returns without delay to the source of supply, causing little or no disruption in stream conditions.

(4)  "Teton River basin" means the drainage area of the Teton River and its tributaries above the confluence of the Teton and Marias Rivers."



Section 12.  Section 85-2-331, MCA, is amended to read:

"85-2-331.   Reservations within Missouri River basin and Little Missouri River basin. (1) The state, or an agency or political subdivision of the state, or the United States or an agency of the United States that desires to apply for a state water reservation of water in the Missouri River basin or in the Little Missouri River basin shall file an application pursuant to 85-2-316 no later than:

(a)  July 1, 1989, for reservation of water above Fort Peck dam; or

(b)  July 1, 1991, for reservation of water below Fort Peck dam and in the Little Missouri River basin.

(2)  Subject to legislative appropriation, the department shall provide technical and financial assistance to other state agencies and political subdivisions in applying for state water reservations within the Missouri River basin and the Little Missouri River basin.

(3)  (a) The department shall make a final determination in accordance with 85-2-316 on all applications filed before July 1, 1989, for state water reservations of water in the Missouri River basin above Fort Peck dam.

(b)  The department shall make a final determination in accordance with 85-2-316 on all applications filed before July 1, 1991, for state water reservations of water in the Missouri River basin below Fort Peck dam and in the Little Missouri River basin.

(c)  The department shall determine which applications or portions of applications are considered to be above or below Fort Peck dam.

(4)  Water State water reservations approved by the department under this section have a priority date of July 1, 1985, in the Missouri River basin and a priority date of July 1, 1989, in the Little Missouri River basin. If the department issues a permit under Title 85, chapter 2, part 3, prior to the granting of a state water reservation under this section, the department may subordinate the state water reservation to the permit if it finds that the subordination does not interfere substantially with the purpose of any state water reservation. The department shall by order establish the relative priority of applications approved under this section."



Section 13.  Section 85-2-336, MCA, is amended to read:

"85-2-336.   Basin closure -- exception. (1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not process or grant an application for a permit to appropriate water within the Upper Clark Fork River basin.

(2)  The provisions of subsection (1) do not apply to:

(a)  an application for a permit to appropriate ground water;

(b)  an application filed prior to January 1, 2000, for a permit to appropriate water to conduct response actions or remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or Title 75, chapter 10, part 7, at sites designated as of January 1, 1994. The total flow rates for all permits issued under this subsection (2)(b) may not exceed 10 cubic feet per second. A permit issued to conduct response actions or remedial actions may not be used for dilution and must be limited to a term not to exceed the necessary time to complete the response or remedial action, and the permit may not be transferred to any person for any purpose other than the designated response or remedial action;

(c)  an application for a permit to appropriate water for stock use;

(d)  an application to store water; or

(e)  an application for power generation at existing hydroelectric dams. The department may not approve a permit for power generation if approval results in additional consumption of water.

(3)  Applications for state water reservations in the Upper Clark Fork River basin filed pursuant to 85-2-316 and pending as of May 1, 1991, have a priority date of May 1, 1991. The filing of a state water reservation application does not provide standing to object under 85-2-402.

(4)  The department may not process or approve applications for state water reservations of water in the Upper Clark Fork River basin filed pursuant to 85-2-316."



Section 14.  Section 85-2-340, MCA, is amended to read:

"85-2-340.   Definitions. Unless the context requires otherwise, in 85-2-341 and this section, the following definitions apply:

(1)  "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state water reservation pursuant to 85-2-316.

(2)  "Ground water" means water that is beneath the land surface or beneath the bed of a stream, lake, reservoir, or other body of surface water and that is not immediately or directly connected to surface water.

(3)  "Jefferson River basin" means the drainage area of the Jefferson River and its tributaries above the confluence of the Jefferson and Missouri Rivers.

(4)  "Madison River basin" means the drainage area of the Madison River and its tributaries above the confluence of the Madison and Jefferson Rivers.

(5)  "Nonconsumptive use" means a beneficial use of water that does not cause a reduction in the source of supply and in which substantially all of the water returns without delay to the source of supply, causing little or no disruption in stream conditions."



Section 15.  Section 85-2-341, MCA, is amended to read:

"85-2-341.   Basin closure -- exceptions. (1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not process or grant an application for a permit to appropriate water or for a state water reservation to reserve water within the Jefferson River basin or Madison River basin.

(2)  The provisions of subsection (1) do not apply to:

(a)  an application for a permit to appropriate ground water;

(b)  an application for a permit to appropriate water for a nonconsumptive use;

(c)  an application for a permit to appropriate water for domestic, municipal, or stock use;

(d)  an application to store water during high spring flows; or

(e)  temporary emergency appropriations as provided for in 85-2-113(3)."



Section 16.  Section 85-2-342, MCA, is amended to read:

"85-2-342.   Definitions. Unless the context requires otherwise, in 85-2-343 and this section, the following definitions apply:

(1)  "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state water reservation pursuant to 85-2-316.

(2)  "Ground water" means water that is beneath the land surface or beneath the bed of a stream, lake, reservoir, or other body of surface water and that is not immediately or directly connected to surface water.

(3)  "Nonconsumptive use" means a beneficial use of water that does not cause a reduction in the source of supply and in which substantially all of the water returns without delay to the source of supply, causing little or no disruption in stream conditions.

(4)  "Upper Missouri River basin" means the drainage area of the Missouri River and its tributaries above Morony dam."



Section 17.  Section 85-2-401, MCA, is amended to read:

"85-2-401.   Priority -- recognition and confirmation of changes in appropriations issued after July 1, 1973. (1) As between appropriators, the first in time is the first in right. Priority of appropriation does not include the right to prevent changes by later appropriators in the condition of water occurrence, such as the increase or decrease of streamflow or the lowering of a water table, artesian pressure, or water level, if the prior appropriator can reasonably exercise his the water right under the changed conditions.

(2)  Priority of appropriation made under this chapter dates from the filing of an application for a permit with the department, except as otherwise provided in 85-2-301 through 85-2-303, 85-2-306, 85-2-310(3), and 85-2-313.

(3)  Priority of appropriation perfected before July 1, 1973, shall must be determined as provided in part 2 of this chapter.

(4) All changes in appropriation rights actions of the department after July 1, 1973, are recognized and confirmed subject to this part and any terms, conditions, and limitations placed on a change in appropriation authorization by the department."



Section 18.  Section 85-2-402, MCA, is amended to read:

"85-2-402.   (Temporary) Changes in appropriation rights. (1) The right to make a change subject to the provisions of this section in an existing water right, a permit, or a state water reservation is recognized and confirmed. In a change proceeding under this section, there is no presumption that an applicant for a change in appropriation right cannot establish lack of adverse effect prior to the adjudication of other rights in the source of supply pursuant to this chapter. An applicant for a change in appropriation right must be given the opportunity to establish lack of adverse effect as an evidentiary matter by showing by reference to the applicant's own existing water right and historic water use practices that the proposed change in appropriation right will not increase the amount of water consumed or adversely alter the timing or pattern of flow for perfected uses in the source of the supply. An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use change in appropriation right will not adversely affect the use of the existing water rights of other persons or other perfected or planned uses or developments for which a permit or certificate has been issued or for which water has been reserved a state water reservation has been issued under part 3.

(b)  Except for a lease authorization pursuant to 85-2-436, a temporary change authorization for instream use to benefit the fishery resource pursuant to 85-2-408, or water use pursuant to 85-2-439 when authorization does not require appropriation works, the proposed means of diversion, construction, and operation of the appropriation works are adequate.

(c)  The proposed use of water is a beneficial use.

(d)  Except for a lease authorization pursuant to 85-2-436 or a temporary change authorization pursuant to 85-2-408 for instream flow to benefit the fishery resource, the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(a)  the criteria in subsection (2) are met; and

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii)  the benefits to the applicant and the state;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for federal non-Indian and Indian reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to terms, conditions, restrictions, and limitations as it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section. (Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)

85-2-402.   (Effective July 1, 1999) Changes in appropriation rights. (1) The right to make a change subject to the provisions of this section in an existing water right, a permit, or a state water reservation is recognized and confirmed. In a change proceeding under this section, there is no presumption that an applicant for a change in appropriation right cannot establish lack of adverse effect prior to the adjudication of other rights in the source of supply pursuant to this chapter. An applicant for a change in appropriation right must be given the opportunity to establish lack of adverse effect as an evidentiary matter by showing by reference to the applicant's own existing water right and historic water use practices that the proposed change in appropriation right will not increase the amount of water consumed or adversely alter the timing or pattern of flow for perfected uses in the source of the supply. An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use change in appropriation right will not adversely affect the use of the existing water rights of other persons or other perfected or planned uses or developments for which a permit or certificate has been issued or for which water has been reserved a state water reservation has been issued under part 3.

(b)  Except for a temporary change authorization pursuant to 85-2-408 or for water use pursuant to 85-2-439 that does not require appropriation works, the proposed means of diversion, construction, and operation of the appropriation works are adequate.

(c)  The proposed use of water is a beneficial use.

(d)  Except for a temporary change authorization pursuant to 85-2-408 for instream flow to benefit the fishery resource, the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(a)  the criteria in subsection (2) are met; and

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii)  the benefits to the applicant and the state;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for federal non-Indian and Indian reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that such a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to such terms, conditions, restrictions, and limitations as it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section. (Terminates June 30, 2005--sec. 6, Ch. 322, L. 1995.)

85-2-402.   (Effective July 1, 2005) Changes in appropriation rights. (1) The right to make a change subject to the provisions of this section in an existing water right, a permit, or a state water reservation is recognized and confirmed. In a change proceeding under this section, there is no presumption that an applicant for a change in appropriation right cannot establish lack of adverse effect prior to the adjudication of other rights in the source of supply pursuant to this chapter. An applicant for a change in appropriation right must be given the opportunity to establish lack of adverse effect as an evidentiary matter by showing by reference to the applicant's own existing water right and historic water use practices that the proposed change in appropriation right will not increase the amount of water consumed or adversely alter the timing or pattern of flow for perfected uses in the source of the supply. An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use change in appropriation right will not adversely affect the use of the existing water rights of other persons or other perfected or planned uses or developments for which a permit or certificate has been issued or for which water has been reserved a state water reservation has been issued under part 3.

(b)  The proposed means of diversion, construction, and operation of the appropriation works are adequate.

(c)  The proposed use of water is a beneficial use.

(d)  The applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(a)  the criteria in subsection (2) are met;

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii)  the benefits to the applicant and the state;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that such a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to such terms, conditions, restrictions, and limitations as it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section."



NEW SECTION. SECTION 19.  WATER ADMINISTRATION AGREEMENTS WITHIN INDIAN RESERVATIONS.  (1) BECAUSE IT APPEARS TO BE TO THE COMMON ADVANTAGE OF THE STATE AND INDIAN TRIBES TO COOPERATE IN MATTERS INVOLVING THE PERMITTING AND USE OF WATER WITHIN THE EXTERIOR BOUNDARIES OF AN INDIAN RESERVATION PRIOR TO THE FINAL ADJUDICATION OF INDIAN RESERVED WATER RIGHTS AND BECAUSE THE STATE DOES NOT INTEND BY ENACTMENT OF THIS SECTION TO LIMIT, EXPAND, ALTER, OR WAIVE STATE JURISDICTION TO ADMINISTER WATER RIGHTS WITHIN THE EXTERIOR BOUNDARIES OF AN INDIAN RESERVATION, PURSUANT TO THE REQUIREMENTS OF TITLE 18, CHAPTER 11, THE DEPARTMENT MAY NEGOTIATE AND CONCLUDE AN INTERIM AGREEMENT WITH THE TRIBAL GOVERNMENT OF ANY INDIAN TRIBE IN MONTANA PRIOR TO FINAL ADJUDICATION OF INDIAN RESERVED WATER RIGHTS FOR THE PURPOSE OF IMPLEMENTING A WATER ADMINISTRATION PLAN AND A PERMITTING PROCESS FOR THE ISSUANCE OF WATER RIGHTS AND CHANGES IN WATER RIGHT USES WITHIN THE EXTERIOR BOUNDARIES OF AN INDIAN RESERVATION.

(2) AN AGREEMENT ENTERED INTO PURSUANT TO SUBSECTION (1) MUST:

(A) PROVIDE FOR THE RETENTION OF EXCLUSIVE AUTHORITY BY THE STATE TO ISSUE PERMITS TO APPLICANTS WHO ARE NOT MEMBERS OF THE TRIBE AND TO ISSUE CHANGE OF USE AUTHORIZATIONS;

(B) PROVIDE THAT ANY PERMITS MUST BE ISSUED IN ACCORDANCE WITH THE CRITERIA ESTABLISHED BY STATE LAW; AND

(C) PROVIDE THAT PERMITS MAY BE ONLY FOR NEW USES WITH A DATE OF PRIORITY IN COMPLIANCE WITH STATE LAW.

(3) PRIOR TO CONCLUDING ANY AGREEMENT UNDER THIS SECTION, THE DEPARTMENT SHALL HOLD PUBLIC MEETINGS, AFTER PROPER PUBLIC NOTICE OF THE MEETINGS HAS BEEN GIVEN AND THE PROPOSED AGREEMENT HAS BEEN MADE AVAILABLE FOR PUBLIC REVIEW, TO AFFORD THE PUBLIC AN OPPORTUNITY TO COMMENT ON THE CONTENTS OF THE AGREEMENT.



NEW SECTION. Section 20.  Notification to tribal governments.  The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations.



NEW SECTION. SECTION 21.  CODIFICATION INSTRUCTION.  [SECTION 19] IS INTENDED TO BE CODIFIED AS AN INTEGRAL PART OF TITLE 85, CHAPTER 2, AND THE PROVISIONS OF TITLE 85, CHAPTER 2, APPLY TO [SECTION 19].



NEW SECTION. SECTION 22.  IF SENATE BILL NO. 59 IS NOT PASSED AND APPROVED, THEN:

(1) [SECTION 6 OF THIS ACT], AMENDING 85-2-302, IS VOID; AND

(2) SUBSECTION (6) OF 85-2-101, INSERTED IN [SECTION 1 OF THIS ACT] IS VOID.



NEW SECTION. Section 23.  Saving clause.  [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].



NEW SECTION. Section 24.  Retroactive applicability.  [Section 1] applies retroactively, within the meaning of 1-2-109, to all permits and change authorizations issued by the department of natural resources and conservation after July 1, 1973.



NEW SECTION. Section 25.  Effective date.  [This act] is effective on passage and approval.

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