SENATE BILL NO. 160
INTRODUCED BY L. GROSFIELD
BY REQUEST OF THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
A BILL FOR AN ACT ENTITLED: "AN ACT CLARIFYING THAT WATER USE THAT IS NOT A BENEFICIAL USE DOES NOT REQUIRE AN APPROPRIATION PERMIT; AMENDING THE DEFINITIONS OF "APPROPRIATE", "BENEFICIAL USE", AND "WASTE"; DEFINING "PROTECTABLE INTEREST"; AMENDING SECTIONS 85-2-102 AND 85-2-302, 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 to obtain a legal right to use a quantity of water, including:
(a) to divert, impound, or withdraw (including by stock for stock water) a quantity of water for a beneficial use in
accordance with a permit or an exemption authorized pursuant to part 3 of this chapter;
(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; or
(d) in the Upper Clark Fork River basin,
(c) to maintain and enhance streamflows to benefit the fishery resource in accordance with 85-2-408, 85-2-436, or 85-2-439.
(2) "Beneficial use", unless otherwise provided, means:
(a) a use of water that requires a protectable interest and that is 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 in accordance with
85-2-408, 85-2-436, or 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) "Protectable interest" means a legal interest in the use of water that allows a senior water user to make a demand on a junior water user to reduce or cease appropriation of water in order to accomplish the underlying purpose of the senior water user's use of water.
(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 in a manner that results in an
unreasonable loss of water without a substantial benefit.
(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 to obtain a legal right to use a quantity of water, including:
(a) to divert, impound, or withdraw (including by stock for stock water) a quantity of water for a beneficial use in
accordance with a permit or an exemption authorized pursuant to part 3 of this chapter;
(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 that requires a protectable interest and that is 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 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) "Protectable interest" means a legal interest in the use of water that allows a senior water user to make a demand on a junior water user to reduce or cease appropriation of water in order to accomplish the underlying purpose of the senior water user's use of water.
(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 in a manner that results in an
unreasonable loss of water without a substantial benefit.
(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 to obtain a legal right to use a quantity of water, including:
(a) to divert, impound, or withdraw (including by stock for stock water) a quantity of water for a beneficial use in
accordance with a permit or an exemption authorized pursuant to part 3 of this chapter; 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 that requires a protectable interest and that is 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) "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) "Protectable interest" means a legal interest in the use of water that allows a senior water user to make a demand on a junior water user to reduce or cease appropriation of water in order to accomplish the underlying purpose of the senior water user's use of water.
(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 in a manner that results in an
unreasonable loss of water without a substantial benefit.
(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. (1) Except as otherwise provided in 85-2-306(1) through (3) and subject to
subsection (2) of this section, a person may not appropriate water or commence construction of diversion, impoundment,
withdrawal, or related distribution works for a beneficial use 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 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.
(2) A permit to appropriate water is not required for the diversion, impoundment, or withdrawal of water when the use of the water is not a beneficial use. The underlying purpose of use of water may not be waste. This subsection does not limit the remedies available to a prior appropriator to enjoin or to seek damages from a person who is not required to obtain a permit to appropriate water under this section."
NEW SECTION. Section 3. 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 4. Effective date. [This act] is effective on passage and approval.
- END -
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