HOUSE BILL NO. 114
INTRODUCED BY B. STORY
AN ACT GENERALLY REVISING THE MONTANA WATER USE LAWS; DEFINING "DEVELOPED SPRING"; ELIMINATING THE REQUIREMENT TO MAKE WATER RIGHT APPLICATION FORMS, NOTICES OF COMPLETION FORMS, AND WELL LOG FORMS AVAILABLE AT THE OFFICES OF COUNTY CLERK AND RECORDERS; CLARIFYING THAT NOTIFICATION OF INTENT TO APPROPRIATE GROUND WATER FROM GROUND WATER DEVELOPMENT WORKS DOES NOT CREATE AN EASEMENT; AMENDING SECTIONS 85-2-102, 85-2-302, 85-2-306, AND 85-2-516, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. 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:
(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;
(c) in the case of the department of fish, wildlife, and parks, to lease water in accordance with 85-2-436; or
(d) 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;
(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) "Developed spring" means any artificial opening or excavation in the ground, however made, including any physical alteration at the point of discharge regardless of whether it results in any increase in the yield of ground water, from which ground water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn.
(9)(10) "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)(11) "Ground water" means any water that is beneath the ground surface.
(11)(12) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of
abandonment under 85-2-226.
(12)(13) "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)(14) "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)(15) "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)(16) "Salvage" means to make water available for beneficial use from an existing valid appropriation through
application of water-saving methods.
(16)(17) "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.
(17)(18) "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.
(18)(19) "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.
(19)(20) "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.
(20)(21) "Water division" means a drainage basin as defined in 3-7-102.
(21)(22) "Water judge" means a judge as provided for in Title 3, chapter 7.
(22)(23) "Water master" means a master as provided for in Title 3, chapter 7.
(23)(24) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It
does not include ditches, culverts, or other constructed waterways.
(24)(25) "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:
(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 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) "Developed spring" means any artificial opening or excavation in the ground, however made, including any physical alteration at the point of discharge regardless of whether it results in any increase in the yield of ground water, from which ground water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn.
(9)(10) "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)(11) "Ground water" means any water that is beneath the ground surface.
(11)(12) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of
abandonment under 85-2-226.
(12)(13) "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)(14) "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)(15) "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)(16) "Salvage" means to make water available for beneficial use from an existing valid appropriation through
application of water-saving methods.
(16)(17) "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.
(17)(18) "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.
(18)(19) "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.
(19)(20) "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.
(20)(21) "Water division" means a drainage basin as defined in 3-7-102.
(21)(22) "Water judge" means a judge as provided for in Title 3, chapter 7.
(22)(23) "Water master" means a master as provided for in Title 3, chapter 7.
(23)(24) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It
does not include ditches, culverts, or other constructed waterways.
(24)(25) "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, 2009--sec. 9, Ch. 123, L. 1999.)
85-2-102. (Effective July 1, 2009) 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; or
(b) in the case of a public agency, to reserve water in accordance with 85-2-316.
(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; or
(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.
(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) "Developed spring" means any artificial opening or excavation in the ground, however made, including any physical alteration at the point of discharge regardless of whether it results in any increase in the yield of ground water, from which ground water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn.
(8)(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.
(9)(10) "Ground water" means any water that is beneath the ground surface.
(10)(11) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of
abandonment under 85-2-226.
(11)(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.
(12)(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.
(13)(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.
(14)(15) "Salvage" means to make water available for beneficial use from an existing valid appropriation through
application of water-saving methods.
(15)(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 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 2. Section 85-2-302, MCA, is amended to read:
"85-2-302. Application for permit. Except as otherwise provided in 85-2-306(1) through (3), a person may not
appropriate water or commence construction of diversion, impoundment, withdrawal, or related distribution works except
by applying for and receiving a permit from the department. The application 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 department shall make the forms available through its offices. The applicant shall submit a correct and
complete application. The department shall notify the applicant of any defects in an application. An application does not
lose priority of filing because of defects if the application is corrected or completed within 30 days of the date of
notification of the defects or within a further time as the department may allow, but not to exceed 90 days from the date of
notification. If an application is made correct and complete after the mandated time period, but within 90 days of the date of
notification of the defects, the priority date of the application is the date the application is made correct and complete. An
application not corrected or completed within 90 days from the date of notification of the defects is terminated."
Section 3. Section 85-2-306, MCA, is amended to read:
"85-2-306. Exceptions to permit requirements. (1) Ground water may be appropriated only by a person who has a
possessory interest in the property where the water is to be put to beneficial use and exclusive property rights in the ground
water development works or, if another person has rights in the ground water development works, with the written consent
of the person with those property rights. If the person does not have a possessory interest in the real property from which
the ground water may be appropriated, the person shall provide to the owner of the real property written notification of the
works and the person's intent to appropriate ground water from the works. The written notification must be provided to the
landowner at least 30 days prior to constructing any associated works or, if no new or expanded works are proposed, 30
days prior to appropriating the water. The written notification under this subsection is a notice requirement only and does
not create an easement in or over the real property where the ground water development works are located. Outside the
boundaries of a controlled ground water area, a permit is not required before appropriating ground water by means of a well
or developed spring with a maximum appropriation of 35 gallons a minute or less, not to exceed 10 acre-feet a year, except
that a combined appropriation from the same source from two or more wells or developed springs exceeding this limitation
requires a permit. Within 60 days of completion of the well or developed spring and appropriation of the ground water for
beneficial use, the appropriator shall file a notice of completion with the department on a form provided by the department
at its offices and at the offices of the county clerk and recorders through its offices. Upon receipt of the notice, the
department shall review the notice and may, before issuing a certificate of water right, return a defective notice for
correction or completion, together with the reasons for returning it. A notice does not lose priority of filing because of
defects if the notice is corrected, completed, and refiled with the department within 30 days of notification of defects or
within a further time as the department may allow, not to exceed 6 months. If a notice is not corrected and completed
within the time allowed, the priority date of appropriation is the date of refiling a correct and complete notice with the
department. A certificate of water right may not be issued until a correct and complete notice has been filed with the
department, including proof of landowner notification as necessary under this subsection. The original of the certificate
must be sent to the appropriator. The department shall keep a copy of the certificate in its office in Helena. The date of
filing of the notice of completion is the date of priority of the right.
(2) An appropriator of ground water by means of a well or developed spring first put to beneficial use between January 1, 1962, and July 1, 1973, who did not file a notice of completion, as required by laws in force prior to April 14, 1981, with the county clerk and recorder shall file a notice of completion, as provided in subsection (1), with the department to perfect the water right. The filing of a claim pursuant to 85-2-221 is sufficient notice of completion under this subsection. The priority date of the appropriation is the date of the filing of a notice, as provided in subsection (1), or the date of the filing of the claim of existing water right. An appropriation under this subsection is an existing right, and a permit is not required. However, the department shall acknowledge the receipt of a correct and complete filing of a notice of completion, except that for an appropriation of 35 gallons a minute or less, not to exceed 10 acre-feet a year, the department shall issue a certificate of water right. If a certificate is issued under this section, a certificate need not be issued under the adjudication proceedings provided for in 85-2-236.
(3) A permit is not required before constructing an impoundment or pit and appropriating water for use by livestock if the maximum capacity of the impoundment or pit is less than 15 acre-feet and the appropriation is less than 30 acre-feet a year and is from a source other than a perennial flowing stream and the impoundment or pit is to be constructed on and will be accessible to a parcel of land that is owned or under the control of the applicant and that is 40 acres or larger. As used in this subsection, "perennial flowing stream" means a stream that historically has flowed continuously during all seasons of the year, during dry as well as wet years. However, within 60 days after constructing the impoundment or pit, the appropriator shall apply for a permit as prescribed by this part. Upon receipt of a correct and complete application for a stockwater provisional permit, the department shall then automatically issue a provisional permit. If the department determines after a hearing that the rights of other appropriators have been or will be adversely affected, it may revoke the permit or require the permittee to modify the impoundment or pit and may then make the permit subject to terms, conditions, restrictions, or limitations that it considers necessary to protect the rights of other appropriators.
(4) A person may also appropriate water without applying for or prior to receiving a permit under rules adopted by the department under 85-2-113."
Section 4. Section 85-2-516, MCA, is amended to read:
"85-2-516. Well logs. Within 60 days after any well is completed, the driller shall file with the department a well log
report on a form provided by the department at its offices and at the offices of the county clerk and recorders through its
offices. The department may return the report for refiling if it is incomplete or incorrect. The department shall provide a
copy of the complete and correct well log to the Montana bureau of mines and geology."
Section 5. 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.
Section 6. Effective date. [This act] is effective on passage and approval.
- END -
Latest Version of HB 114 (HB0114.ENR)
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