SENATE BILL NO. 248
INTRODUCED BY STORY, WANZENRIED, ROSS, LASLOVICH, NOONAN, BRUEGGEMAN, ELLIOTT, HAWKS, JENT, KAUFMANN, LEWIS, LIND, MOSS, PERRY, M. TROPILA, WEINBERG, WILLIAMS
AN ACT RATIFYING THE UNITED STATES OF AMERICA, DEPARTMENT OF AGRICULTURE, FOREST SERVICE-MONTANA COMPACT; PROVIDING FOR A CHANGE IN APPROPRIATION RIGHT TO INSTREAM FLOW IN CERTAIN INSTANCES; PROVIDING ADDITIONAL CRITERIA THAT MUST BE MET BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE TO BE ABLE TO CHANGE AN APPROPRIATION RIGHT TO INSTREAM FLOW; REQUIRING APPLICANTS TO SUBMIT PROOF OF ANY WRITTEN SPECIAL USE AUTHORIZATION REQUIRED BY FEDERAL LAW TO OCCUPY, USE, OR TRAVERSE NATIONAL FOREST SYSTEM LANDS FOR THE PURPOSE OF DIVERSION, IMPOUNDMENT, STORAGE, TRANSPORTATION, WITHDRAWAL, USE, OR DISTRIBUTION OF WATER IN CERTAIN INSTANCES; REQUIRING THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION TO ADOPT RULES NECESSARY FOR STATE WATER RESERVATIONS; PROVIDING FOR PROCESSING OF STATE WATER RESERVATIONS FOR THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE IN ALL BASINS IN MONTANA; AMENDING SECTIONS 85-2-102, 85-2-302, 85-2-306, 85-2-308, 85-2-310, 85-2-311, 85-2-312, 85-2-316, 85-2-319, 85-2-331, 85-2-336, 85-2-341, 85-2-343, 85-2-344, 85-2-401, AND 85-2-402, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. United States of America, department of agriculture, forest service-Montana compact ratified. The compact entered into by the state of Montana and the United States of America, Department of Agriculture, Forest Service and filed with the secretary of state of the state of Montana under the provisions of 85-2-702 on [date of filing], is ratified. The compact is as follows:
WATER RIGHTS COMPACT
STATE OF MONTANA
UNITED STATES OF AMERICA, DEPARTMENT OF AGRICULTURE, FOREST SERVICE
This Compact is entered into by the State of Montana ("State") and the United States of America ("United States") to settle for all time any and all claims existing on the Effective Date of This Compact to federal reserved water rights for National Forest System Lands administered by the Forest Service, an agency of the United States Department of Agriculture ("Forest Service"), within the State of Montana.
RECITALS
WHEREAS, the State of Montana, in 1979, pursuant to Title 85, chapter 2, of the Montana Code Annotated, commenced a general adjudication of the rights to the use of water within the State of Montana, including all federal reserved and appropriative water rights;
WHEREAS, section 85-2-703, MCA, provides that the State may negotiate compacts concerning the equitable division and apportionment of water between the State and its people and the federal government with claims to non-Indian federal reserved water rights within the State of Montana;
WHEREAS, section 85-2-228, MCA, provides that a federal reserved water right with a priority date of July 1, 1973, or later be subject to the same process and adjudication as a federal reserved water right with a priority date before July 1, 1973;
WHEREAS, the United States wishes to secure water rights to fulfill the purposes of National Forest System Lands in the State of Montana;
WHEREAS, the United States, in quantifying and securing water rights to meet National Forest System purposes, seeks cooperatively to accommodate the interests of the State and its citizens and to avoid the conflict and uncertainty inherent in litigating federal reserved water rights claims. The United States believes that the natural flows needed for favorable conditions of flow, for fisheries, and for other resource management goals and obligations on National Forest System Lands can be achieved, without materially affecting the interests of the United States, through the use of state law as provided in this Compact.
WHEREAS, the United States Attorney General or a duly designated official of the United States Department of Justice has authority to execute this Compact on behalf of the United States pursuant to the authority to settle litigation contained in 28 U.S.C. 516 and 517;
WHEREAS, The Secretary of Agriculture or a duly designated official of the United States Department of Agriculture has authority to execute this Compact on behalf of the United States Department of Agriculture pursuant to 7 U.S.C. 2201 note, Section 1(a);
NOW THEREFORE, the State of Montana and the United States agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Compact only the following definitions shall apply:
(1) "Abstracts" means the documents included in Appendix 1 of this Compact, entitled "Abstracts of Forest Service Federal Reserved Water Rights for Current Discrete Administrative Uses", referenced in this Compact as Appendix 1.
(2) "Concurrently" for the purposes of instream uses means not cumulative to the flow of other instream, nondiversionary water rights on the same reach of stream and for the purposes of in situ uses means not cumulative to the volume or flow of other in situ, nondiversionary water rights from the same source of water.
(3) "Department" means the Montana Department of Natural Resources and Conservation or its successor.
(4) "Discrete Administrative Use" means a federal reserved water right to divert or withdraw water from a source of supply for use authorized under the Organic Administrative Act, 16 U.S.C. 473, et seq., necessary to fulfill the primary purposes of a National Forest at administrative sites on National Forest System Lands and includes but is not limited to federal reserved water rights for the following purposes: water for district offices, ranger stations, guard stations, work centers, and housing; water used for facilities operated for administrative purposes; water used for permanently established tree nurseries and seed orchards; and water for maintaining riding and pack stock used for administrative purposes.
(5) "Dispersed Administrative Use" means a federal reserved water right to divert or withdraw water from time to time, as needed, from a source of supply for use authorized under the Organic Administrative Act, 16 U.S.C. 473, et seq., necessary to fulfill the primary purposes of a National Forest within a specified area on National Forest System Lands and includes but is not limited to federal reserved water rights for the following purposes: water for dust abatement and road construction; water for prescribed fire management; water for reclamation; water used to establish vegetation; water used temporarily for establishment of nursery stock and seed orchards; and water for other incidental administrative purposes.
(6) "Effective Date of This Compact" means the date of the ratification of the Compact by the Montana Legislature, written approval by the United States Department of Agriculture, or written approval by the United States Department of Justice, whichever is later.
(7) "In situ" means water with a surface expression used in the place of its natural occurrence and without need of a diversion structure, measured as a flow, level, or volume of water.
(8) "National Forest System Lands" means all lands within Montana that are owned by the United States and administered by the Secretary of Agriculture through the Forest Service, but does not include any lands within the exterior boundaries of National Forest System units that are not owned by the United States and administered by the Secretary of Agriculture through the Forest Service.
(9) "Parties" means the State and the United States.
(10) "Person" means an individual, association, partnership, corporation, state agency, political subdivision, or any other entity, but does not include the United States.
(11) "South Fork Flathead Wild and Scenic River" means the segment of the South Fork of the Flathead River from its origin to Hungry Horse Reservoir located in Montana that, pursuant to the Wild and Scenic Rivers Act, 16 U.S.C. 1271, et seq., was designated as a component of the National Wild and Scenic Rivers System by Public Law 94-486, 16 U.S.C. 1274(a)(13), on October 12, 1976.
(12) "State" means the State of Montana and all officers, agents, departments, and political subdivisions thereof. Unless otherwise indicated, for purposes of notification or consent, "State" means the Director of the Montana Department of Natural Resources and Conservation or the Director's designee.
(13) "United States" means the United States of America and all officers, agencies, departments, and political subdivisions thereof. Unless otherwise indicated, for purposes of notification or consent other than service in litigation, "United States" means the Secretary of the Department of Agriculture or the Secretary's designee.
(14) "Water Right Recognized Under State Law" means a water right or use created and administered under Montana law and includes all Forest Service water rights created in Article V of this Compact and state water reservations granted, but does not include a federal or tribal reserved water right recognized by the State.
(15) "Wetted Perimeter Methodology" means an instream flow methodology for fisheries flow based on habitat for food production in the shallow, fast-moving water of a stream. The wetted perimeter is the distance across the bottom and sides of a stream channel, measured at a riffle area, that is in contact with the water. A graph of the wetted perimeter versus discharge generally yields two inflection points. The upper inflection point of the graph is the level above which large increases in discharge result in a small increase of the wetted perimeter. The lower inflection point of the graph is the level below which small decreases in discharge result in large decreases of the wetted perimeter.
ARTICLE II
FEDERAL RESERVED WATER RIGHTS
The Parties agree that the following water rights are the federal reserved water rights of the United States for the National Forest System Lands.
A. Discrete Administrative Uses on National Forest System Lands.
The United States has federal reserved water rights for current and future Discrete Administrative Uses on National Forest System Lands, subject to the terms of Article III of this Compact:
1. Current Discrete Administrative Uses on National Forest System Lands.
The United States has federal reserved water rights for current Discrete Administrative Uses on National Forest System Lands as set forth in Table 1 and the specific listing and Abstracts attached to this Compact as Appendix 1. In the event there is a discrepancy between Table 1 and an Abstract contained in Appendix 1, the Abstract in Appendix 1 controls.
2. Future Discrete Administrative Uses on National Forest System Lands.
The United States has federal reserved water rights for future Discrete Administrative Uses on National Forest System Lands as set forth in Table 1.
B. Dispersed Administrative Uses on National Forest System Lands.
The United States has federal reserved water rights for Dispersed Administrative Uses on National Forest System Lands, subject to the terms of Article III of this Compact, as set forth in Table 1. The period of use for Dispersed Administrative Uses on National Forest System Lands can be for any period throughout the year.
TABLE 1
& #160; 0; 160; 0; 160; 0; 160; Discrete 0; 160; 0; 160;Dispersed
& #160; 0; 160; 0; 160; 0; 160; Administrative 0; 160; Adm inistrative
&
#160;
0;
160;
0;
160;
0;
160; Uses
span>MT Priority 160; National Current 0; 160; Future ; 60;Total 60; Volume< /span>
span>Adj Date Forests 60; (AF/YR) 0; 160; (AF/YR) ; (AF/YR) 160; (AF/YR)
Basin
3 9E 1906-09-24 Custer 0.00 0; 160; 2.00 0; 2.00 ; 60; 12.20
3 9F 1906-09-24 Custer 0.25 0; 160; 2.00 0; 2.25 ; 60; 11.90
39FJ
4 0A1902-08-16 Lewis & Clark 0; 160; 0; 160; 0; 160; 90.00
& #160; 0; 1.36 0; 160; 2.00 3.36
& #160; 1906-08-10 160;Gallatin 0; 160; 0; 160; 0; 160; 3.30
4 0B1906-11-05 Lewis & Clark 0.00 160; 0; 2.00 60; 2.00 0; 160; 5.50
4 0C1906-11-05 Lewis & Clark 0.00 160; 0; 2.00 60; 2.00 0; 160; 2.70
4 1A1906-11-05 Beaverhead-Deerlodge2.13 & #160; 0; 2.13 ; 60; 4.26 0; 121.00
4 1B1906-11-05 Beaverhead-Deerlodge1.26 & #160; 0; 2.00 ; 60; 3.26 0; 160; 42.90
4 1C1906-11-05 Beaverhead-Deerlodge8.90 & #160; 0; 8.90 ; 17.80 60; span>70.90
4 1D1906-11-05 Beaverhead-Deerlodge202.27 ; 60; 49.27 60; & #160; 251.54 0; 310.60
4 1E1906-04-12 Beaverhead-Deerlodge ; 60; & #160; 0; 160; 0; 85.50
& #160; 0; 0.00 0; 160; 2.00 2.00
& #160; 1905-05-12 160;Helena & #160; 0; 160; 0; 160; < /span> ; 60; 1.20
4 1F1902-08-16 Beaverhead-Deerlodge ; 60; & #160; 0; 160; 0; 98.50
& #160; 0; 14.62 0; 160; 14.62 160; 29.24
& #160; 1902-08-16 160;Gallatin 0; 160; 0; 160; 0; 160; < /span>69.50
4 1G1906-04-12 Beaverhead-Deerlodge2.50 & #160; 0; 2.50 ; 60; 5.00 0; 160; 81.80
4 1H1906-03-07 Gallatin 0; 14.63 0; 160; 14.6 3 60; 29.26 60; & #160; 147.60
& #160;41I1905-10-03 Gallatin 0; 160; 0; 160; 0; 160; 15.40
& #160; 0; 4.75 0; 160; 4.75 9.50
& #160; 1905-10-03 160;Helena & #160; 0; 160; 0; 160; < /span> ; 169.30
span>41J1905-10-03 Helena 0; 160; 0; 160; 0; 160; 36.00
& #160; 0; 5.51 0; 160; 5.51 11.02
& #160; 1906-11-06 160;Lewis & Clark 0; 160; 0; 160; 0; 102.30
4 1K1897-02-22 Lewis & Clark 6.63 160; 0; 6.63 60; 13.26 60; & #160; 44.80
4 1M1897-02-22 Lewis & Clark 3.01 160; 0; 3.01 60; 6.02 0; 160; 43.50 p>
4 1O1897-02-22 Lewis & Clark 3.75 160; 0; 3.75 60; 7.50 0; 160; 24.40 p>
4 1Q1902-08-16 Lewis & Clark 0.33 160; 0; 2.00 60; 2.33 0; 160; 72.10 p>
41QJ1906-11-06 Lewis & Clark 0; 160; 0; 160; 0; 160; 0.80
& #160; 0; 0.00 0; 160; 2.00 2.00
& #160; 1928-05-17 160;Helena & #160; 0; 160; 0; 160; < /span> ; 17.10
4 1R1903-12-12 Lewis & Clark 0.00 160; 0; 2.00 60; 2.00 0; 160; 9.50
4 1S1902-08-16 Lewis & Clark 2.50 160; 0; 2.50 60; 5.00 0; 160; 96.80 p>
4 1U1897-02-22 Lewis & Clark 0; 160; 0; 160; 0; 160; 11.20
& #160; 0; 0.01 0; 160; 2.00 2.01
& #160; 1928-05-17 160;Helena & #160; 0; 160; 0; 160; < /span> ; 14.40
4 2B 1907-03-02 Custer 0.00 0; 160; 2.00 0; 2.00 ; 60; 13.10
4
2C 1907-03-02 Custer
39.35
60; &
#160;
39.35
78.7
0
60; 133.70
p>
span>42J 1907-03-02 Custer
0;0.00
;
60; &
#160; 2.00
160;
2.00
0; 11.20 4
3A1906-08-10 Gallatin
0; 1.51
;
60; &
#160;
2.00
0; 3.51
;
60; 43.40 4
3B1902-09-04 Gallatin
0; 14.33
0;
160;
14.3
3
60; 28.66
60; &
#160; 136.10 43BJ1902-09-04
Gallatin
0; 9.64
;
60; &
#160;
9.64
19.28
0; 22.50 43BV1902-09-0
4 Gallatin
60; 0.00
0;
160;
0;2.00
; 2.00
0;
160; 8.20 4
3C 1902-09-04 Custer
3.00
0;
160;
3.00
0; 6.00
;
60; 34.50 4
3D1902-09-04 Gallatin
0;
160;
0;
160;
0;
160;
0; 3.40 &
#160;
0;
2.25
0;
160;
2.25
4.50
&
#160; 1902-09-04
160; Custer &
#160;
0;
160;
0;
160;
0;
160; 25.50 4
3N 1906-11-06 Custer
0.00
0;
160;
2.00
0; 2.00
;
60; 14.40 4
3P 1906-11-06 Custer
0.10
0;
160;
2.00
0; 2.10
;
60; 9.90 7
6B1906-08-13 Kootenai
60; 0.02
0;
160;
0;2.00
; 2.02
0; 129.10 7
6C1907-03-02 Kootenai
60; 1.00
0;
160;
0;2.00
; 3.00
0; 110.00 7
6D1907-03-02 Kootenai
60; 9.60
0;
160;
0;9.60
; 19.20
60; 384.30 7
6E1905-10-03 Beaverhead-Deerlodge
;
60; &
#160;
0;
160;
0; 76.90 &
#160;
0;
4.00
0;
160;
4.00
8.00
&
#160;
1905-10-03 Lolo
60; &
#160;
0;
160;
0;
160;
0; 52.10 7
6F1928-05-17 Helena
0;
160;
0;
160;
0;
160;
65.90 &
#160;
0;
19.40
0;
160; 19.40
160;
38.80 &
#160;
1906-11-06 Lolo
60; &
#160;
0;
160;
0;
160;
0; 123.70 7
6G1906-04-12 Beaverhead-Deerlodge
0;
160;
0;
160;
0;
160; 112.30 &
#160;
0;
85.75
0;
160; 9.75
60; &
#160; 95.50 &
#160; 1906-04-12
160;Helena &
#160;
0;
160;
0;
160; <
/span>
; 35.00 &
#160;
1905-10-03 Lolo
60; &
#160;
0;
160;
0;
160;
0; 17.00 76GJ1905-10-03
Beaverhead-Deerlodge0.00
0;
160;2.00
60;
span>2.00
160; <
/span>51.90 7
6H1897-02-22 Bitterroot
60; &
#160;
0;
160;
0;
160;
0; 280.20 &
#160;
0;
96.82
0;
160; 75.00
160;
171.82 &
#160;
1897-02-22 Lolo
60; &
#160;
0;
160;
0;
160;
0; 59.00 &
#160;76I1897-02-22 Flathead
; 0.02
0;
160;
2.00
0; 2.02
;
60; 22.30
span>76J1897-02-22 Flathead
; 4,247.75
160;
0; 2.16
; 4,249.91
120.
00 7
6K1897-02-22 Flathead
0; 241.51
60; &
#160;
241.51
0; 483.02 &
#160;
97.10
span>76L1907-03-02 Flathead
0;
160;
0;
160; <
/span>
;
60; &
#160;
3.40 &
#160;
0;
0.00
0;
160;
2.00
2.00
&
#160;
1907-03-02 Lolo
60; &
#160;
0;
160;
0;
160;
0; 8.50 76LJ190
7-03-02 Flathead
60; &
#160;
0;
160;
0;
160;
0; 246.40 &
#160;
0;
5.78
0;
160;
5.78
11.56 &
#160; 1897-02-22
160;Kootenai
0;
160;
0;
160;
7
6M 1906-11-06
0; Lolo
; 1,000.28
160;
335.
28
160; 1335.56
0; 337.90 7
6N1907-03-02 Kootenai
60; &
#160;
0;
160;
0;
160;
0; 138.80 &
#160;
0;
4.26
0;
160;
4.26
8.52
&
#160;
1907-03-02 Lolo
60; &
#160;
0;
160;
0;
160;
0; 168.40 C. Emergency Fire Suppression. The use of water for emergency fire suppression
benefits the public and is necessary for the primary purposes of the National Forest System Lands
in Montana. The United States has a federal reserved water right to divert or withdraw water on
National Forest System Lands, with the priority date for
each Water Court basin set forth in Table 1 of this Compact, from a stream, lake, or pond, as
needed for emergency fire suppression for the benefit of
National Forest System Lands, and without a definition of the specific elements of a recordable
water right, subject to the terms of Article III. Use of water
for emergency fire suppression shall not be considered an exercise of the United States' federal
reserved water rights for Discrete Administrative Uses
as described in Article II, section A., or Dispersed Administrative Uses as described in Article II,
section B. D. South
Fork Flathead Wild and Scenic River. The United States has a federal reserved water
right with a priority date of October 12, 1976, for instream flow on the South Fork Flathead Wild
and
Scenic River in the amount of the entire flow of the river, less any of the United States' Discrete
Administrative Uses as described in Article II, section A.,
and Dispersed Administrative Uses as described in Article II, section B., provided that the
instream flow water right is subordinate to all Water Rights
Recognized Under State Law with a priority date before the Effective Date of This Compact.
This federal reserved water right ends at the point where
the South Fork Flathead Wild and Scenic River flows into Hungry Horse Reservoir. ARTICLE III IMPLEMENTATION OF FEDERAL RESERVED WATER RIGHTS A. Abstracts. Abstracts for all the United States' federal
reserved water rights for Current Discrete Administrative Use on National Forest System Lands
are set forth
in Appendix 1. The Parties prepared the Abstracts to comply with the requirements for a final
decree as set forth in 85-2-234, MCA, and in an effort to
assist the state courts in the process of entering decrees accurately and comprehensively
reflecting the rights for current Discrete Administrative Uses
as described in this Compact. The rights specified in the Abstracts are subject to the terms of this
Compact. B. Enforcement and Administration of Federal Reserved Water Rights. 1. When a controversy arises between the
United States' federal reserved water rights described by this Compact and another holder of a
Water Right
Recognized Under State Law or, for enforcement pursuant to Article VIII, section B., when there
is a question concerning the use of water on National
Forest System Lands under this Compact, the United States, the State, or a holder of a Water
Right Recognized Under State Law may petition a court
of competent jurisdiction for relief. Resolution of any controversy must be governed by the terms
of this Compact when applicable or, to the extent not
applicable, by appropriate federal or state law. 2. For the purpose of the administration of
federal reserved water rights provided for in Article II, the United States agrees that a water
commissioner
or other official appointed by a court of competent jurisdiction may enter National Forest System
Lands to collect data, inspect structures for the diversion
and measurement of water, and distribute the federal reserved water rights in Article II. The
terms of entry or distribution may be limited, as appropriate,
by an order of a court of competent jurisdiction. Nothing in this Compact waives the right of the
United States, with respect to a specific action or
anticipated action by a water commissioner or other official under this subsection, to seek terms
of entry or distribution consistent with federal law if in
conflict with state law. 3. The Department may enter National Forest
System Lands for which a federal reserved water right is described in Article II for the purposes
of data
collection on Forest Service water diversions or notice requirements by the United States,
pursuant to Article III, section C.3., of this Compact. C. Use of
Federal Reserved Water Rights. 1. Federal
Reserved Water Rights. The rights of the United States described in
Article II of this Compact are federal reserved water rights. Non-use of all or a part of the federal
reserved
water rights described in this Compact shall not constitute abandonment of the right. 2. Development of Future Discrete Administrative Uses. The United States, without prior approval of the
Department, may develop a Discrete Administrative Use after the Effective Date of This
Compact as
described in Article II, section A.2., provided that: (a) the purpose of use of the water is for a
Discrete Administrative Use as defined in Article I(4) and described in Article II, section
A.2.; (b) the quantity of water for Discrete
Administrative Uses diverted or withdrawn shall not exceed the total amount as set forth in
Article II, Table 1; and (c) the use shall not adversely affect a senior
Water Right Recognized Under State Law. 3. Use of
Dispersed Administrative Uses. The United States, without prior approval of the
Department, may use its federal reserved water right for Dispersed Administrative Uses, as
needed,
provided that: (a) the purpose of use of the water is for a
Dispersed Administrative Use as defined in Article I(5) and described in Article II, section
B.; (b) the total quantity of water for Dispersed
Administrative Uses diverted or withdrawn shall not exceed the amount as set forth in Article II,
Table 1; (c) the Forest Service shall provide notice of a
Dispersed Administrative Use as follows: (i) for uses of 20,000 gallons or less per day
from a single source of supply, no notice is required; (ii) for uses greater than 20,000 gallons per day
and less than 60,000 gallons per day from a single source of supply, a notice must be posted at
the
site of the diversion or withdrawal for the entire period during which water is being diverted or
withdrawn. The notice posted shall be clearly legible and
visible and provide the following information: (A) source of water; (B) purpose of use; (C) starting and ending date of
diversion; (D) place of use; (E) diversion flow rate; (F) maximum volume of water to be diverted
or withdrawn per day; and (G) name and contact information for the
contractor, the local Forest Service Ranger District, and the local Department Water Resources
Regional
Office. (iii) for uses greater than 60,000 gallons per
day from a single source of supply, the local Department Water Resources Regional Office must
be
notified at least 10 days but not more than 45 days in advance of the initial use of the water.
Notice must be posted at the site of the diversion or
withdrawal, as provided in Article III, section C.3.(c)(ii). Notification to the Department Water
Resources Regional Office must provide the following
information: (A) source of water; (B) legal description of the point of diversion
or withdrawal; (C) place of use; (D) map showing preceding three
items; (E) purpose of use; (F) starting and ending date of
use; (G) diversion flow rate; (H) maximum volume of water to be diverted
or withdrawn per day; and (I) name and contact information for the
contractor and the local Forest Service Ranger District. (d) the diversion or withdrawal of water for a
Dispersed Administrative Use shall not adversely affect a senior Water Right Recognized Under
State
Law; and (e) if notified that the diversion or withdrawal
for a Dispersed Administrative Use is adversely affecting a senior Water Right Recognized
Under State
Law, the Forest Service will immediately cease diversion or withdrawal from that source of
supply. To resume the diversion or withdrawal, the Forest
Service can move the diversion or withdrawal to another source of supply or satisfy the senior
user and the Department Water Resources Regional Office
Manager that use will not adversely affect the senior user or users. D. Change in
Use of Federal Reserved Water Rights. 1. Discrete
Administrative Uses. The United States, without approval of the
Department, may change a Discrete Administrative Use described in Article II, section A.,
provided that: (a) the purpose of use of the water remains a
Discrete Administrative Use as defined in Article I(4) and described in Article II, section
A.; (b) the quantity of water for Discrete
Administrative Uses diverted or withdrawn shall not exceed the total amount as set forth in
Article II, Table 1; and (c) the change shall not adversely affect a
Water Right Recognized Under State Law. 2. Dispersed
Administrative Uses. The United States' federal reserved water right
to divert or withdraw water for Dispersed Administrative Uses as described in Article II, section
B., shall
not be changed to any other use. 3. Emergency
Fire Suppression. The United States' federal reserved water right
to divert or withdraw water for Emergency Fire Suppression as described in Article II, section C.,
shall
not be changed to any other use. 4. South Fork
Flathead Wild and Scenic River. The United States' federal reserved water right
for instream flow for the South Fork Flathead Wild and Scenic River, as described in Article II,
section
D., shall not be changed to any other use. E. Reporting
Requirements. 1. The Forest Service agrees to provide a report
to the Department on an annual basis or on a periodic basis agreed to by the Parties containing
information on development of Discrete Administrative Uses, as described in Article III, section
C.2., and any change of a Discrete Administrative Use,
as described in Article III, section D.1. 2. Upon request by the Department, the Forest
Service shall report to the Department information it has regarding water use for Emergency Fire
Suppression, as described in Article II, section C. 3. For Dispersed Administrative Uses, as
described in Article III, section C.3.(c)(ii) and (iii), upon request by the Department, the Forest
Service shall
provide copies of notice postings for the stream or basin requested. 4. For Dispersed Administrative Uses, as
described in Article III, section C.3.(c)(i), upon request by the Department, the Forest Service
shall report
information it has available. In the event the Department requests additional information for
future reports on a stream or basin for enforcement or water
distribution purposes, the Forest Service agrees to comply with the request. F. Ownership
Interest in Water for Purposes of Statewide Adjudication. The federal reserved water rights for
Administrative Uses and Emergency Fire Suppression described in Article II, sections A., B., and
C., are
ownership interests in water and its use for each water source within National Forest System
Lands that has been affected by a temporary preliminary
decree or preliminary decree. ARTICLE IV STATE LAW PROVISIONS A. Compact
Principles. In order to promote settlement of issues
between the United States and the State, the United States agrees to relinquish any and all claims
to federal
reserved water rights for instream flows on National Forest System Lands. The State agrees that,
in consideration for the United States' agreement not
to pursue federal reserved water rights for instream flows on National Forest System Lands, the
following principles, subject to the terms of this Compact,
shall be included in state law: 1. Forest
Service Water Rights Recognized Under Law Created in This Compact. There shall be created by this Compact Water
Rights Recognized Under State Law held by the Forest Service as set forth in Article V, Table
2. 2. State
Water Reservation Process. (a) There shall be a state water reservation
process providing a means for the United States to appropriate state-law-based water rights for a
minimum
instream flow, level, or quality of water that provides an opportunity for hearing and judicial
review. (i) Any appropriation granted under this
process will result in a water right held by the United States that is protectable and enforceable
under state
law, and shall not be subject to periodic review or reallocation. (ii) The date of appropriation for water rights
granted under the state water reservation process will be the date of filing of the application for
state water
reservations and will be senior in priority to any applications for state water reservations filed
after that date. (b) The Parties agree that the language of
85-2-316, MCA, on the Effective Date of This Compact and the terms of Article VI of this
Compact satisfy
the principles in Article IV, section A.2. 3. New State
Water Reservation Section. The United States shall have the right to apply
for a state water reservation under a new specific procedure in limited circumstances for state
water
reservations as set forth in Article VI, section B. 4. Standing. In the ongoing statewide adjudication, the
United States shall have the right to object to and participate as an objector to any water right
claim for water
use or storage on or water conveyed across National Forest System Lands. The Parties agree that
the language of 85-2-233, MCA, on the Effective Date
of This Compact satisfies the principles in Article IV, section A.4. B. State Law
Adopted as a Condition Precedent to This Compact. Subject to Article VIII, section D., the Parties
agree that as a condition precedent to this Compact, the following provisions will be adopted as
state
law: 1. Sequencing. (a) The permitting process for water
appropriations under state law and the permitting for the access and use of National Forest
System Lands in
relation to water appropriations will be sequenced to avoid conflict between state and federal
permitting. (b) The applicant is required to show proof of
federal authorization before the application for a new appropriation of water or a change of
appropriation
will be correct and complete when: (i) a state permit is required prior to a new
appropriation of water, including ground water, or a change of appropriation; and (ii) a federal authorization is required to
occupy, use, or traverse National Forest System Lands for the purpose of diversion,
impoundment, storage,
transportation, withdrawal, use, or distribution of water for the appropriation or change of
appropriation. (c) The state permit for a new appropriation
shall be subject to any terms, conditions and limitations related to the use of water contained in
the
required federal authorization. (d) The Parties agree that the language of
85-2-302, 85-2-310, 85-2-311, 85-2-312, and 85-2-402, MCA, on the Effective Date of This
Compact
satisfies this condition precedent. 2. Change of
Diversionary Use to Instream Flow. In addition to any other process available under
state law, the Forest Service may apply for a change of use from an appropriation right to divert
or
withdraw water on land owned by the United States that is located within or immediately
adjacent to the exterior boundaries of National Forest System
Lands on the Effective Date of This Compact to an instream flow water right on National Forest
System Lands within or immediately adjacent to the
exterior boundaries of National Forest System Lands on the Effective Date of This Compact in
accordance with procedures required under state law. The
Parties agree that the language of [section 2] on the Effective Date of This Compact satisfies the
principles in Article IV, section B.2. ARTICLE V WATER RIGHTS RECOGNIZED UNDER STATE LAW There is created by this Compact appropriations
of Water Rights Recognized Under State Law held by the Forest Service for instream flow or in
situ
use as set forth in Article V. A. Water
Rights Recognized Under State Law TABLE
2
60; &
#160;
0;
160;
Low
er Stream
Point
0;
160; Upper Stream Point Water
160; Flow Right
60; Rate
0;
160; QTR
160; QTR Number S
ource (CFS) SEC
60; TWP RGE
SEC SEC
60; TWP RGE
SEC 41F-30023850 Horse
Creek
0; 3.0
25 10S
; 01W NESE 2
9 10S 01W
160; SWNW 41F-30023851 Sheep
Creek
0; 4.0
1 12S
02E SWSE 20
12S 03E
0; SWNW 41H-30023852 East Fork Hyalite
Creek
7.0 23
; 04S 06E
60; SWNW 12
;05S 06E SWSW 41H-30023853 Hyalite
Creek
0; 28.0
0;14 03S 05E
SESW 15
60; 04S 06E &
#160;NWSW 41H-30023854 West Fork Hyalite
Creek
12.0 26
0;04S 06E NWNW&
#160; 23 05S
06E NW 41I-30023855 Beaver
Creek
0; 10.0
0; 19 12N 02W
SWNE 11
160; 12N 02W
SENE 41J-30023856 Sheep
Creek
0; 27.0
0; 2 12N 05E&
#160; NWSW 5
0; 12N 06E
160; SESE 41J-30023857 Tenderfoot
Creek
0;15.0 30 14N
05E NENE &
#160; 22 14N
05E NWSW 41S-30023858 Dry Wolf
Creek
0; 5.0 28
60; 15N 10E &
#160; SWNW 31
60; 15N 10E S
WSW 41S-30023859 South Fork Judith
River
3.5 1
12N 11E
60; NENE 4 &
#160;11N 11E SENE
43B-30023860 Little Mission
Creek
2.5&
#160; 14 03S
11E NENW &
#160; 27 03S 1
1E NWNE 43B-30023861 Pine
Creek
0;
4.0 8 04S
60; 10E NWSW
0; 16 04S
60;10E NWSW 43B-30023862 South Fork Deep
Creek
7.0 5
04S 10E
0; NENW 14
04S 10E NW
NW 43B-30023863 Upper Deer
Creek
0;2.0 13 02S
14E NENW &
#160; 29 03S
14E SESE 76B-30023864 North Fork Yaak
River
24.0 15
0; 37N 31W &
#160; SWNE 4
; 37N 31W NE
76B-30023865 Pete
Creek
0; 15.0
0; 5 35N
0; 32W NENW
;29 36N 32W
SWNW 76B-30023866 Seventeenmile
Creek
40.0
27 34N 33W &
#160; NWSE 5
; 33N 32W
160;NWNW 76B-30023867 South Fork Yaak
River
19.0 2
; 35N 32W
160; NENE 5 3
4N 31W SWSW 76B-30023868 Spread
Creek
0; 50.0 3
60; 35N 33W
SWSE 29
60; 36N 33W
SENE 76B-30023869 West Fork Yaak
River
30.0 32
0; 37N 31W &
#160; NWNE 35
60; 37N 32w N
ENE 76C-30023870 East
Fisher
0; 15.0
0; 31 26N
60; 29W NWNE
0;31 26N 29W
NENE 76C-30023871 Silver Butte/Fisher
River
34.0 17
0;26N 29W NENE
160; 35 26N &
#160; 30W SENW 76C-30023872 West Fisher
River
28.0 1 26N
30W NWNW
4 26N
30W SWSE 76D-30023873 Barron
Creek
0; 2.0
27 32N
0;29W SWNW 21
160; 32N 30W
NW 76D-30023874 Big Cherry
Creek
0;40.0 27 29N
31W SWSW
3 28N
31W NENE 76D-30023875 Big
Creek
0; 19.
0 3 34N
0; 29W NWNW
0; 34 35N
60;30W NWNW 76D-30023876 Bobtail
Creek
0; 5.0
20 31N
0;31W NWSW 8
60; 31N 31W
NESW 76D-30023877 Bristow
Creek
0; 12.0 14
160; 32N 29W
NWNW 8
160; 32N 29W
NESE 76D-30023878 Callahan
Creek
0; 60.0 24
160; 31N 34W
NWNW 21 31N
0; 34W NWSE 76D-30023879 Canyon
Creek
0; 4.0
22 31N 29W &
#160; SWSE 29
0; 31N 28W &
#160;SWSW 76D-30023880 Cripple Horse
Creek
8.0 &
#160; 2 31N &
#160; 29W NESE
60;5 31N 28W
SWSW 76D-30023881 Five Mile
Creek
0; 4.0 17
60; 32N 28W
SWNW 19
160;32N 27W NENE
76D-30023882 Granite
Creek
0; 21.0 2
60; 29N 31W
NWNW 5
160; 29N 31W
NESE 76D-30023883 Libby
Creek
0; 40.0
0; 16 28N
60;30W NWNW 18&
#160; 28N 30W
0; SESE 76D-30023884 Midas
Creek
0; 1.5
31 28N
0; 30W SWNW
0;8 27N 30W
SWSE 76D-30023885 North Fork Big
Creek
14.0
28 35N 30W &
#160; SWSE 31
0; 36N 30W &
#160;SWSE 76D-30023886 Parmenter
Creek
0;10.0 7 30N
31W SWNE
18 30N
0; 32W SWSW 76D-30023887 Quartz
Creek
0; 17.5
0;12 31N 32W
SESW 2
0; 31N 32W &
#160;SWNE 76D-30023888 Ross
Creek
0; 20.0
0; 8 28N
0;33W NENE 17
60; 28N 34W
SWNW 76D-30023889 South Fork Big
Creek
20.0
33 35N 30W &
#160; SENE 5
32N 30W
60;NENE 76D-30023890 Therriault
Creek
0; 4.0 3
0; 35N 26W &
#160;SWNW 3 35N&
#160; 26W SENW
p>
76D-30023891 Young
Creek
0; 6.0
17 37N
0;28W NESE 8
; 37N 29W
160; SE 76E-30023892 Middle Fork Rock
Creek
41.0 18
0; 04N 15W N
ENE 25 04N &
#160; 16W NWSW 76E-30023893 Rock Creek at Bitterroot
Flat 150.0 7&
#160; 08N 17W
0; NWNW 7 &
#160; 07N 16W
0;SESE 76E-30023894 Rock Creek at
Mouth
; 250.0 13
160; 11N 17W
SENE 30
60; 11N 16W
SWNW 76E-30023895 West Fork Rock
Creek
12.0 35
0; 06N 16W &
#160; NESE 2
05N 17W NWSW 76F-30023896 Clearwater River at Lake
Alva 13.0 24
18N 16W
60; SWSE 24
18N 16W
60;NWSE 76F-30023897 Copper
Creek
0; 11.0 26
160; 15N 08W
SENE 9
0; 15N 08W N
ENE 76F-30023898 Morrell
Creek
0; 12.0
0;35 17N 15W
SWSE 1
0; 17N 15W &
#160;NESE 76F-30023899 North Fork Blackfoot
River 39.0
160; 2 15N
160; 11W NWNW
160; 27 16N 1
1W NESE 76F-30023900 Placid
Creek
0; 7.0
13 16N
0; 16W SWSW
0;10 16N 16W
NWNW 76F-30023901 Poorman
Creek
0; 7.0 8
0; 13N 08W &
#160; NWSW 24
60;13N 08W SENE
span> 76G-30023902 Little Blackfoot
River
17.0
30 09N 06W&
#160; NENW 12
60; 08N 07W
SWNE 76G-30023903 Schwartz
Creek
0; 10.0 4
60; 11N 17W
NWNW 8 11N
; 17W SESW 76H-30023904 Lolo Creek
0;
160; 41.0
160; 29 12N &
#160;22W NENE 25
12N 23W
60; NENW 76H-30023905 South Fork Lolo
Creek
15.0 6
; 11N 21W
160; NWNW 7
;11N 21W NWNW
span> 76J-30023906 Wounded Buck
Creek
11.0
17 29N 18W &
#160; SWNW 30
60; 29N 18W
SWSW 76K-30023907 Bond
Creek
0; 6.0
24 25N
0; 18W NWNW
0; 17 25N 17W
NWSE 76K-30023908 Cedar
Creek
0; 7.0
12 22N
0; 18W NENW
;21 22N 18W
SESE 76K-30023909 Cold
Creek
0; 22.0
0; 28 21N
60; 17W SWNE
0;33 21N 18W
NENW 76K-30023910 Elk
Creek
0; 25.0 16 20N
60; 17W NENE
0; 23 20N
60; 18W SENW 76K-30023911 Goat
Creek
0; 11.0
0; 17 23N
60; 17W NWSW
60;12 23N 17W
0; NWNE 76K-30023912 Groom
Creek
0; 2.5
12 25N
0;18W SWSW 5
60; 25N 17W
SE 76K-30023913 Hall
Creek
0;
160;2.5 11 25
N 18W SENE
11 25N
0; 18W NENE 76K-30023914 Lion
Creek
0; 19.0
0; 8 22N
0; 17W SWNE
; 10 22N 16W
NWSW 76K-30023916 North Fork Lost
Creek
6.0 &
#160;27 25N 17W
160; NWSE 5
24N 16W
60; NESE 76K-30023917 Piper
Creek
0; 9.0
8 22N
17W SWSW
33 22N 18W&
#160; NENW 76K-30023918 Scout
Creek
0; 1.5
12 23N
0; 17W NWNE
; 19 23N 16W
SESE 76K-30023919 South Fork Lost
Creek
6.0 6
24N 16W
60; SWSW 19
24N 16W
60;NWSE 76LJ-30023920 Red Meadow
Creek
16.0
7 35N 21W
160; SWNW 11
0; 35N 22W &
#160; NWNW 76LJ-30023921 Trail
Creek
0; 37.0
0; 34 37N
60;22W SESE 28
60; 37N 22W
SESW 76M-30023922 Rattlesnake
Creek
17.0
2 13N
19W NWNE
14 14N 18W&
#160; NENW 76M-30023923 Trout
Creek
0; 28.0
0; 23 16N
60;26W SWSW 5
160; 15N 26W
NESW 76N-30023924 Bull
River
0; 29.0 14 28N
60; 33W NWNW
60; 14 28N
160; 33W NENW 76N-30023925 Graves
Creek
0; 28.0 36
160; 23N 30W
SWSW 36
160; 23N 30W
NWNE 76N-30023926 Trout
Creek
0; 14.0
0; 24 24N
60;32W NENE 28
160; 24N 32W
SWSW 76N-30023927 Vermilion
River
0; 110.0 14 &
#160;24N 31W SWS
E 7 24N
0; 30W NWSW Water
Right
Volume
0;
160; QTR Number Source(AF/YR)
SEC TWP
160;RGE SEC
; 76M-30023928 Shoofly
Meadow
60; &
#160;50.75 4
14N 17W SW
B. Priority
Date. The priority date of each of the Forest Service
Water Rights Recognized Under State Law created in Article V, section A., is the Effective Date
of This
Compact. C. Purpose of
Use. Except for Water Right Number
76M-30023928, the purpose of use of each of the Forest Service Water Rights Recognized Under
State Law created
in Article V, section A., is fishery. The purpose of use for Water Right Number 76M-30023928,
created in Article V, section A., is wildlife, which includes
habitat. D. Period of
Use. The period of use of each of the Forest Service
Water Rights Recognized Under State Law created in Article V, section A., is January 1 to
December
31. E. Limitation
on Objections to Changes. A Forest Service Water Right Recognized
Under State Law created in Article V, section A., shall not be the basis to preclude a change in
point of
diversion, means of diversion, or place of use of a senior, direct-from-source, stock water right
within an allotment on National Forest System Lands if
the change is for dispersing stock in the allotment and the proposed change does not expand
historic consumptive use of the stock water right. F. Administration and Enforcement. The Forest Service Water Rights Recognized
Under State Law created in Article V, section A., are appropriations under state law and, as such,
will
be administered by the State and enforced in accordance with state law. The United States, as
owner and user of these water rights, is entitled to the
same benefits and is subject to the same regulations as all other holders of a Water Right
Recognized Under State Law. G. Concurrent With Other Instream Flow Uses. The Forest Service Water Rights Recognized
Under State Law created in Article V, section A., are for instream uses or in situ nonconsumptive
use,
meaning that there is no diversion, impoundment, or withdrawal associated with the use and the
use does not cause a net loss of water in the source
of supply. The Forest Service Water Rights Recognized Under State Law created in Article V,
section A., shall run Concurrently with other instream flow
or in situ rights. ARTICLE VI APPLICATIONS FOR STATE WATER RESERVATIONS UNDER STATE
LAW A. State
Water Reservation. The Forest Service may apply for a state water
reservation to maintain a minimum flow, volume, level, or quality of water on National Forest
System
Lands under 85-2-316, MCA, in all basins within the State including basins or subbasins closed
to new appropriations on or after the Effective Date of
This Compact, subject to the terms of this Compact, for any purpose authorized by federal law
applicable to National Forest System Lands. Any purpose
authorized by federal law applicable to National Forest System Lands shall be considered a
beneficial use under state law for the purposes of this
Compact but shall set no precedent as to whether such purposes are beneficial uses under state
law outside the terms of this Compact. A state water
reservation issued under 85-2-316, MCA, is a Water Right Recognized Under State
Law. B. Specific
Procedure in Limited Circumstances. 1. (a) For a state water reservation application
pursuant to Article VI, section A., when the purpose of the reservation is to maintain a minimum
flow
for fish and the amount requested is based on the Wetted Perimeter Methodology or other
methodology adopted pursuant to Article VI, section B.1.(b),
a correct and complete application shall constitute: (i) conclusive evidence of the purpose of the
reservation; (ii) conclusive evidence of the need for the
reservation; (iii) prima facie evidence that the amount
requested is accurate and suitable: (A) at the lower inflection point of the Wetted
Perimeter Methodology; or (B) at the upper inflection point of the Wetted
Perimeter Methodology or other methodology adopted pursuant to Article VI, section B.1.(b),
when the
purpose of the reservation is for an existing population of bull trout, westslope cutthroat trout,
Yellowstone cutthroat trout, Columbia River redband trout,
arctic grayling, or any other fish species listed in the future under the Endangered Species Act of
1973, 16 U.S.C. 1531, et seq.; and (iv) prima facie evidence that the reservation is
in the public interest. (b) By mutual agreement of the Parties, the
Department may propose an administrative rule under the Montana Administrative Procedure
Act, Title
2, chapter 4, of the Montana Code Annotated, to establish a methodology, other than the Wetted
Perimeter Methodology, for an application for a state
water reservation to maintain a minimum flow under Article VI, section B.1.(a), for fish species
identified in Article VI, section B.1.(a)(iii)(B). Rulemaking
under this subsection shall not be considered a modification of this Compact. The Department
may adopt a rule under this subsection only if it finds,
based on scientific and technical evidence in the administrative record, that: (i) the proposed methodology enjoys
acceptance in the scientific community as a methodology for establishment of minimum flow for
pertinent fish
species based on evidence that includes the existence of peer-reviewed studies, testimony or
publications by experts in the field, and previous use in
Montana or another relevant location; and (ii) the results of the proposed methodology
with respect to the stream that is the subject of the application are either based on field data
collected
with respect to the stream or susceptible to verification based on field data. 2. For purposes of Article VI, section B., a
correct and complete application shall be substantially in the form attached to this Compact as
Appendix
3. Appendix 3 may be modified at any time by the consent of both Parties and shall not be
considered a modification of the Compact. 3. For the purposes of Article VI, section B.,
the Department shall issue a state water reservation unless an objector proves by a preponderance
of
the evidence that: (a) the amount of water under the Wetted
Perimeter Methodology or other methodology adopted pursuant to Article VI, section B.1.(b),
was not
accurately measured or calculated, that the Wetted Perimeter Methodology or other methodology
adopted pursuant to Article VI, section B.1.(b), could
not suitably be applied to the stream reach applied for, or that there is not an existing population
of the fish species set forth in Article VI, section
B.1.(a)(iii)(B), identified in the application for state water reservation in the stream reach applied
for; or (b) for the public interest, there is a projected
water development project: (i) that is feasible; (ii) that is reliably projected to be commenced
within ten (10) years or within ten (10) years after a basin closure is removed; (iii) in which the objector has or can reasonably
obtain a possessory interest or the written consent of the Person or Party with the possessory
interest
in the property where the water is to be diverted, impounded, stored, transported, and put to
beneficial use; (iv) for which the amount of water needed for
the project is reasonable; (v) for which water needed for the project is
not reasonably available from any other water source; (vi) for which the water needed for the project,
based on amount and period of use, would be unavailable if the proposed reservation was
granted; (vii) that would not be feasible with water
either in a lesser amount or at a different location if the reservation was granted; and (viii) that serves a significant public
need. 4. If the Department determines that proofs
under Article VI, section B.3.(a), are met or that proofs for all criteria under Article VI, section
B.3.(b), are
met, the Department may issue, modify, or deny the reservation or may subordinate the
reservation to the actual development of the project identified
in Article VI, section B.3.(b). C. General
Provisions. 1. The Forest Service's ability to apply for a
state water reservation pursuant to Article VI in any basin or subbasin terminates thirty (30) years
after
the state court issues a final decree for that water basin under 85-2-234(1), MCA, or thirty (30)
years after the Effective Date of This Compact, whichever
is later. The termination of the Forest Service's ability to apply for a state water reservation
pursuant to Article VI under this subsection shall not restrict
the Forest Service's ability to apply for a water right in any process available to the Forest Service
under state law, including 85-2-316, MCA, provided
that, the terms of this Compact shall not apply. 2. A state water reservation issued to the Forest
Service under Article VI shall not be the basis to preclude a change in point of diversion, means
of
diversion, or place of use of a senior, direct-from-source, stock water right within an allotment on
National Forest System Lands if the change is for
dispersing stock in the allotment and the proposed change does not expand historic consumptive
use of the stock water right. 3. In any contested case proceeding held under
the Montana Administrative Procedure Act, Title 2, chapter 4, of the Montana Code Annotated,
pursuant to this Compact, the common law and statutory rules of evidence shall apply only upon
stipulation of all entities who are involved in a proceeding. 4. Any appeal of an administrative decision
under Article VI shall be in state court and shall be filed at the First Judicial District in Helena,
and the
review shall be conducted according to the procedures for judicial review of contested cases
under the Montana Administrative Procedure Act, Title 2,
chapter 4, of the Montana Code Annotated. 5. A state water reservation issued to the Forest
Service pursuant to Article VI is not subject to periodic review by the Department as set forth in
85-2-316(10), MCA. A state water reservation issued to the Forest Service pursuant to Article VI
shall not be reallocated to another qualified reservant
with a retained priority date as set forth in 85-2-316(11), MCA. Unless provided in this Compact,
all other provisions of state law apply to a state water
reservation issued to the Forest Service. D. Administration and Enforcement. Any state water reservation issued pursuant to
Article VI is a Water Right Recognized Under State Law and, as such, will be administered by
the State
and enforced in accordance with state law. The United States, as owner and user of these water
rights, is entitled to the same benefits and is subject to
the same regulations of water use as all other holders of a Water Right Recognized Under State
Law. E. Concurrent
With Other Instream Flow Uses. Any state water reservation issued pursuant to
Article VI is a Water Right Recognized Under State Law for instream uses or in situ
nonconsumptive
uses, meaning that there is no diversion, impoundment, or withdrawal associated with the use
and the use does not cause a net loss of water in the source
of supply. Unless otherwise provided in the terms and conditions, a state water reservation issued
pursuant to Article VI shall run Concurrently with other
instream flow rights. F. Department Reporting to Montana Legislature. For the period of time set forth in Article VI,
section C.1., the Department shall biennially report to the Environmental Quality Council or
other
appropriate legislative committee the state water reservations applied for by the Forest Service
since the previous report and the Department action on
applications for state water reservations by the Forest Service since the previous
report. ARTICLE VII GENERAL PROVISIONS A. No Effect
on Tribal Rights or Other Federal Reserved Water Rights. 1. The relationship between the water rights of
the Forest Service described in this Compact and any rights to water of an Indian tribe in
Montana or
of any federally derived water right of an individual or of the United States on behalf of such
tribe or individual shall be determined by the rule of priority.
The Parties to this agreement recognize that the water rights described in This Compact are
junior to any tribal water rights with a priority date before
the Effective Date of This Compact, including aboriginal rights, if any, in the basins
affected. 2. Nothing in this Compact may be construed
or interpreted in any manner to establish the nature, extent, or manner of administration of the
rights
to water of any other federal agency or federal lands in Montana other than National Forest
System Lands. 3. Nothing in this Compact may be construed
or interpreted in any manner to establish the nature, extent, or manner of administration of the
rights
to water of any Indian tribes and tribal members in Montana. 4. Nothing in this Compact is otherwise
intended to conflict with or abrogate a right or claim of any Indian tribe regarding boundaries or
property
interests in the State of Montana. B. General
Disclaimers. Nothing in this Compact may be construed or
interpreted: 1. as a precedent for the litigation of federal
reserved water rights or the interpretation or administration of future compacts between the
United States
and the State or between the United States and any other state; 2. as a waiver by the United States of its right
under state law to raise objections in state court to individual water rights claimed pursuant to
state law
on National Forest System Land in the basins affected by this Compact or any right to raise
objections in an appropriate forum to individual water rights
subject to a provisional permit under state law in the basins affected by this
Compact; 3. to establish a precedent for other agreements
between the State and the United States or an Indian tribe; 4. to determine the relative rights, inter sese, of
Persons using water under the authority of state law or to limit the rights of the Parties or a
Person
to litigate an issue not resolved by this Compact; 5. to create or deny substantive rights through
headings or captions used in this Compact; 6. to expand or restrict any waiver of sovereign
immunity existing pursuant to federal law as of the Effective Date of This Compact; 7. with respect to federal reserved water rights,
to affect the right of the State to seek fees or reimbursement for costs or the right of the United
States
to contest the imposition of such fees or costs pursuant to a ruling by a court of competent
jurisdiction or Act of Congress; 8. to affect in any manner the entitlement to or
quantification of other federal water rights. This Compact is only binding on the United States
with
regard to the water rights of the Forest Service and does not affect the water rights of any other
federal agency that is not a successor in interest to the
water rights subject to this Compact; 9. to prevent the United States from seeking a
permit to appropriate water under state law from a source not closed to new permits by law;
or 10. to expand or restrict rights of the United
States under federal law except as expressly provided in this Compact. C. Reservation of Rights. The Parties expressly reserve all rights not
granted, described, or relinquished in this Compact. D. Severability. Except as provided in Article VIII, section C.,
the provisions of this Compact are not severable. E. Multiple
Originals. This Compact is executed in quintuplicate.
Each of the five (5) Compacts bearing original signatures shall be deemed an
original. F. Notice. Unless otherwise specifically provided for in
this Compact, service of notice required under this Compact, except service in litigation, shall
be: 1. State: Upon the Director of the Department
or other officials that the Director may designate in writing. 2. United States: Upon the Secretary of
Agriculture or other officials that the Secretary may designate in writing. ARTICLE VIII FINALITY OF COMPACT AND DISMISSAL OF CLAIMS A. Binding
Effect. 1. The Effective Date of This Compact is the
date of the ratification of this Compact by the Montana Legislature, written approval by the
United States
Department of Agriculture, or written approval by the United States Department of Justice,
whichever occurs later. Subject to Article VIII, section C., once
effective, all of the provisions of this Compact shall be binding on: (a) the State and a Person or entity of any
nature whatsoever using, claiming, or in any manner asserting a right under the authority of the
State to
the use of water; and (b) except as otherwise provided in Article VII,
section A., the United States and a Person or entity of any nature whatsoever using, claiming, or
in
any manner asserting a right under the authority of the United States to the use of
water. 2. Following the Effective Date of This
Compact, this Compact shall not be modified without the consent of both Parties. Unilateral
substantive
modification of the terms of this Compact by either Party, as determined by a court of competent
jurisdiction, shall render this Compact voidable at the
election of the other Party. 3. On approval of this Compact by a court of
competent jurisdiction and entry of a decree by such court confirming the rights described in this
Compact,
this Compact and such rights are binding on all Persons bound by the final order of the
court. 4. If an objection to this Compact is sustained
under 85-2-233, MCA, this Compact shall be voidable by action of and without prejudice to
either Party. B. Enforcement of Compact. 1. Either Party may seek enforcement of the
terms of this Compact in a court of competent jurisdiction, subject to the limitations of remedies
provided
in Article VIII, section C. 2. When the enforcement action involves
issues of notice or reporting required under Article III, sections C.3.(c) and E., the State shall
provide written
notice to the Forest Service and allow a reasonable opportunity to resolve the issue prior to filing
an enforcement action. 3. Except as provided in Article VIII, section
C., the remedy for an action for enforcement of the terms of this Compact shall not include
termination
of the Compact in whole or in part. C. Exclusive
Remedy for Changes in State Law. 1. For the time period set forth in subsection
11, if the State enacts a law that results in an alleged material impairment of any principle set
forth in
Article IV, section A.2., A.3., or A.4., the United States may, within 90 days of the effective date
of the law, provide notice to the State of the alleged
material impairment. If the United States fails to provide notice within 90 days of the effective
date of the law, the United States is barred from taking any
action under this section regarding alleged material impairment by enactment of the
law. 2. Following the receipt of notice provided in
subsection 1, the Parties shall meet within 30 days to discuss the alleged material impairment.
The
Parties may each appoint a negotiator and may utilize a neutral third party to discuss resolution of
the alleged material impairment. 3. If the State does not agree that the legislation
has resulted in material impairment within 90 days or such time as the Parties may agree or if no
other alternative resolution has been found, the United States may seek a judgment in a court of
competent jurisdiction declaring that the specified act
of the Montana Legislature has resulted in material impairment of a principle set forth in Article
IV, section A.2., A.3., or A.4. The only remedy available
under this subsection is a declaratory judgment as to whether or not the change in state law
results in a material impairment of a principle set for in Article
IV, section A.2., A.3., or A.4. The Parties shall jointly request the court to retain jurisdiction
through all proceedings under this section. 4. If the State agrees or if a court finds that
changes to state law have materially impaired a principle set forth in Article IV, section A.2.,
A.3., or A.4.,
the United States may take no action under subsection 5 until the final adjournment of the next
regular session of the Montana Legislature. If the material
impairment is cured through enacted legislation to the satisfaction of the United States, the
United States is barred from taking further action under this
section. 5. If, in the opinion of the United States, the
State has failed to enact legislation that cures a material impairment as provided in subsection 4,
the
United States may initiate severance and termination of portions of the Compact as provided in
subsection 8 by sending notice to the State within 90 days
from the end of the regularly scheduled legislative session. If this notice is not served within the
90-day period, the United States is barred from severing
and terminating portions of the Compact based on material impairment. 6. If the State has enacted a law to cure the
material impairment and the United States does not agree that the material impairment has been
cured
by the enactment, the State shall have the opportunity within 90 days from receipt of the notice
served by the United States to seek a judgment declaring
that the specific enactment has cured the material impairment of a principle set forth in Article
IV, section A.2., A.3., or A.4., either by: (a) invoking any retained jurisdiction of the
court; or (b) if no court has retained jurisdiction over the
dispute, seeking a judgment in a court of competent jurisdiction. 7. If the State does not file an action within the
90-day period provided in subsection 6, the notice served by the United States becomes effective
at
the expiration of the 90-day period. If the State files for declaratory judgment and the court finds
that legislation enacted by the State cures the material
impairment, then the notice served by the United States does not operate to sever or terminate
portions of the Compact under subsection 8. If the court
finds that the enacted legislation does not cure the material impairment, the notice served by the
United States becomes effective when the court's
judgment becomes final either through the exhaustion of all available appeals or the running of
the time for taking an appeal. 8. If the United States elects to sever and
terminate portions of the Compact under this section, the Parties agree that Article IV, section
A.2., A.3.,
and A.4., and Article VI together and in their entirety are severed from the Compact and all rights
and obligations under those provisions are terminated.
All other provisions of this Compact remain in force and effect. If the portions of the Compact
are severed and terminated, the Parties agree that the United
States shall retain all water rights contained in Articles II and V and state water reservations
granted to the United States prior to severance and
termination under this subsection. 9. If the United States severs and terminates
portions of the Compact as provided in subsection 8, the United States may file federal reserved
water
right claims in the state general stream adjudication, in the Montana Water Court or other state
court that succeeds to the Montana Water Court's
jurisdiction to conduct the general stream adjudication, for instream flow for any stream on
which the United States has not been granted a Water Right
Recognized Under State Law for an instream flow or an in situ right. The United States shall file
all federal reserved water right claims for instream flow
with the state court within twelve (12) months after severance and termination of portions of the
Compact become effective. The United States agrees
that, regardless of the dates of the reservation of the National Forest System Lands for which a
federal reserved water right is claimed, the priority date
of the federal reserved water right claim will be the Effective Date of This Compact. 10. The remedy provided in Article VIII,
section C., is the exclusive remedy for actions brought as a result of changes to state law that
materially impair
the provisions of Article IV, section A.2., A.3., or A.4. There is no remedy under this Compact
for changes to state law except as applied under this section
to Article IV, section A.2., A.3., and A.4., and as provided in Article VIII, section
A.2. 11. This section and the procedure and remedy
provided under this section shall remain in effect for a period of thirty (30) years after the state
court
issues a final decree for all water basins under 85-2-234(1), MCA, that contain National Forest
System Lands. This period of time under this subsection
is tolled for any period of time during which state law materially impaired the interest of the
United States as agreed to by the State or determined by a
court of competent jurisdiction. After this period, all rights and remedies under this section
terminate. D. Limits on
Article IV, Section B. Article IV, section B., is not an enforceable
term of this Compact, and changes to the provisions of state law as described in Article IV,
sections B.1.
and B.2., after the Effective Date of This Compact shall not give rise to any cause of action in
law or in equity or provide any remedy under this Compact. E. State Court
Filing. Subject to the following stipulations and within
one hundred eighty (180) days of the Effective Date of This Compact, the Parties shall submit
this
Compact to an appropriate state court having jurisdiction over this matter in an action
commenced pursuant to 43 U.S.C. 666, for approval in accordance
with state law and for the incorporation of the federal reserved water rights described in this
Compact into a decree or decrees entered in the court. The
Parties understand and agree that the submission of this Compact to a state court, as provided for
in this Compact, does not expand or restrict the
jurisdiction of the state court or expand or restrict in any manner the waiver of sovereign
immunity of the United States in the McCarran Amendment, 43
U.S.C. 666, or other provision of federal law. F. Dismissal
of Filed Claims. At the time the state courts approve the federal
reserved water rights described in Article II of this Compact and enter a decree or decrees
confirming
the rights described, such courts shall dismiss, with prejudice, all of the water right claims
specified in Appendix 2 of this Compact for National Forest
Service Lands. If this Compact fails approval or a federal reserved water right described in this
Compact is not confirmed, the specified claims shall not
be dismissed. G. Consent
Decree. This Compact may be filed as a consent decree
in federal court if it is finally determined in a judgment binding on the State of Montana that the
state
courts lack jurisdiction over some or all of the water rights described in this Compact. Within
one (1) year of such judgment, the United States agrees to
commence such proceedings in the federal district court for the District of Montana as may be
necessary to judicially confirm the water rights described
in this Compact. H. Settlement
of Claims. The Parties intend that the water rights
described in this Compact, together with the rights and obligations set forth in Article IV, are in
full and final
settlement of all federal reserved water right claims filed by the United States or that could have
been filed by the United States as of the Effective Date
of This Compact for the primary purposes of the National Forest System Lands in the State of
Montana. Pursuant to this settlement, the United States
hereby relinquishes forever on the Effective Date of This Compact all said federal reserved water
right claims. I. Defense of
Compact. The Parties agree to defend the provisions and
purposes of this Compact from all challenges and attacks. IN WITNESS WHEREOF the representatives
of the State of Montana and the United States have signed this Compact on the ____ day of
_____, 2007. Section
2. Change in appropriation right authorization for instream flow -- United States
department of agriculture, forest service. (1) (a)
The department shall accept and process an application by the United States department of
agriculture, forest service for a change in appropriation right
under the provisions of 85-2-402 and this section to protect, maintain, or enhance streamflows to
benefit the fishery or other resources on national forest
system lands. (b) As used in this section, "national forest
system lands" has the same meaning as that provided in [section 1, Article I]. (c) To change an appropriation right, the
United States department of agriculture, forest service must own the appropriation right that it
seeks to change
to an instream flow right, the diversion or withdrawal that is to be changed to instream flow must
be located within or immediately adjacent to the exterior
boundaries of national forest system lands on the date provided in [section 1, Article IV.B.2.],
and the stream reach in which the streamflow is to be
protected, maintained, or enhanced must be located within or immediately adjacent to the
exterior boundaries of national forest system lands as of the
date provided in [section 1, Article IV.B.2.]. The application for a change in appropriation right
must: (i) include specific information on the length
and location of the stream reach in which the streamflow is to be protected, maintained, or
enhanced;
and (ii) provide a detailed streamflow measuring
plan that describes the point where and the manner in which the streamflow must be
measured. (2) In addition to the requirements of 85-2-402,
when applying for a change in appropriation right pursuant to this section, the United States
department
of agriculture, forest service, shall prove by a preponderance of the evidence that: (a) the change in appropriation right
authorization to protect, maintain, or enhance streamflows to benefit the fishery or other
resources, as measured
at a specific point, will not adversely affect the water rights of other persons; and (b) the amount of water for the proposed
instream flow use is needed to protect, maintain, or enhance streamflows to benefit the fishery or
other
resources. (3) The proposed method of measurement of
the water to protect, maintain, or enhance streamflows to benefit the fishery or other resources
must
be approved by the department before a change in appropriation right may be
approved. (4) The department is not responsible for costs
associated with installing devices or providing personnel to measure streamflows according to
the
measurement plan submitted under this section. (5) If an appropriation right is changed
pursuant to this section, the priority of the appropriation right remains the same as the
appropriation right that
was changed. (6) A change in appropriation right
authorization under this section does not create a right of access across private property or allow
any infringement
of private property rights. (7) The maximum quantity of water that may
be subject to a change in appropriation right authorization to protect, maintain, or enhance
streamflows
to benefit the fishery or other resources is the amount historically diverted. However, only the
amount historically consumed or a smaller amount if
specified by the department in the change in appropriation right authorization may be used to
protect, maintain, or enhance streamflows to benefit the
fishery or other resources below the existing point of diversion. (8) The department may modify or revoke the
change in appropriation right up to 10 years after it is approved if an appropriator with a priority
of
appropriation that is earlier than the change in appropriation right that was granted submits new
evidence that was not available at the time the change
in appropriation right was approved that proves by a preponderance of evidence that the
appropriator's water right is adversely affected. Section
3. 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 for a beneficial
use; (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; (d) in
the case of the United States department of agriculture, forest service,: (i)
instream flows and in situ use of water created in [section 1, Article V]; or (ii) to
change an appropriation right to divert or withdraw water under subsection (1)(a) to instream
flow to protect, maintain, or enhance streamflows
in accordance with [section 2]; or (d)(e) temporary changes or leases for instream flow to maintain
or enhance instream flow to benefit the fishery resource in accordance with
85-2-408. (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 through a
temporary change in appropriation right or lease to enhance instream flow to benefit the fishery
resource in accordance
with 85-2-408. (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. (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. (11) "Ground water" means any water
that is beneath the ground surface. (12) "Late claim" means a claim to an
existing right forfeited pursuant to the conclusive presumption of abandonment under
85-2-226. (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. (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. (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. (16) "Salvage" means to make water
available for beneficial use from an existing valid appropriation through application of
water-saving methods. (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. (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. (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. (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. (21) "Water division" means a drainage
basin as defined in 3-7-102. (22) "Water judge" means a judge as
provided for in Title 3, chapter 7. (23) "Water master" means a master as
provided for in Title 3, chapter 7. (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. (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 for a beneficial
use; (b) in the case of a public agency,
to reserve water in accordance with 85-2-316; (c) in
the case of the United States department of agriculture, forest service,: (i)
instream flows or in situ use of water created in [section 1, Article V]; or (ii) to
change an appropriation right to divert or withdraw water under subsection (1)(a) to instream
flow to protect, maintain, or enhance streamflows
in accordance with [section 2]; or (c)(d) temporary changes or leases for instream flow to maintain
or enhance instream flow to benefit the fishery resource in accordance with
85-2-408. (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 through a
temporary change in appropriation right or lease to enhance instream flow to benefit the fishery
resource in accordance
with 85-2-408. (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. (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. (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. (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. (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. (20) "Water division" means a drainage
basin as defined in 3-7-102. (21) "Water judge" means a judge as
provided for in Title 3, chapter 7. (22) "Water master" means a master as
provided for in Title 3, chapter 7. (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. (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
4. Section 85-2-302, MCA, is amended to
read: "85-2-302. Application for permit -- definition. (1) Except as provided in 85-2-306, 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. (2) The department shall adopt
rules that are necessary to determine whether or not an application is correct and complete, based
on the provisions
applicable to issuance of a permit under this part. The rules must be adopted in compliance with
Title 2, chapter 4. (3) The application must be
made on a form prescribed by the department. The department shall make the forms available
through its offices. (4) (a) Subject to subsection (4)(b), the The applicant shall submit a correct and complete application. The
determination of whether an application
is correct and complete must be based on rules adopted under subsection (2) that are in effect at
the time the application is submitted. (b) If
an application is for a permit to appropriate water with a point of diversion, conveyance, or place
of use on national forest system lands, the
application is not correct and complete under this section until the applicant has submitted proof
of any written special use authorization required by federal
law to occupy, use, or traverse national forest system lands for the purpose of diversion,
impoundment, storage, transportation, withdrawal, use, or
distribution of water under the permit. (c)
As used in this part, "national forest system lands" has the same meaning as that provided in
[section 1, Article I]. (5) The department shall notify
the applicant of any defects in an application within 180 days. The defects must be identified by
reference to the rules
adopted under subsection (2). If the department does not notify the applicant of any defects
within 180 days, the application must be treated as a correct
and complete application. (6) 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. (7) An application not corrected
or completed within 90 days from the date of notification of the defects is
terminated." Section
5. Section 85-2-306, MCA, is amended to
read: "85-2-306. Exceptions to permit requirements. (1) (a) Except as provided in subsection (1)(b), ground
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 (b)
If another person has rights in the ground water development works, water may be appropriated with the written consent of
the person with those
property rights or, if the ground water development
works are on national forest system lands, with any prior written special use authorization
required
by federal law to occupy, use, or traverse national forest system lands for the purpose of
diversion, impoundment, storage, transportation, withdrawal,
use, or distribution of water under the certificate. (c) 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. (2) Inside the boundaries of a
controlled ground water area, ground water may be appropriated only: (a) according to a permit
received pursuant to 85-2-508; or (b) according to the requirements
of an order issued pursuant to 85-2-507. (3) (a) 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. (b) (i) 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 through its
offices. (ii) 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. (iii) 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. (c) 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 or a written federal special use
authorization as necessary under subsection (1). 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. (4) 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 (3), 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 (3), or the date of the filing of
the claim of existing water right. (5) An appropriation under
subsection (4) 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. (6) A permit is not required
before constructing an impoundment or pit and appropriating water for use by livestock
if: (a) the maximum capacity of the
impoundment or pit is less than 15 acre-feet; (b) the appropriation is less than
30 acre-feet a year; (c) the appropriation is from a
source other than a perennial flowing stream; and (d) 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. (7) (a) Within 60 days after constructing an impoundment or pit, the
appropriator shall apply for a permit as prescribed by this part. Upon Subject to
subsection (7)(b), upon receipt of a correct and complete application for a stockwater stock water provisional permit, the department shall 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. (b) If
the impoundment or pit is on national forest system lands, an application is not correct and
complete under this section until the applicant has
submitted proof of any written special use authorization required by federal law to occupy, use,
or traverse national forest system lands for the purpose
of diversion, impoundment, storage, transportation, withdrawal, use, or distribution of water
under the permit. (8) 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
6. Section 85-2-308, MCA, is amended to
read: "85-2-308. Objections. (1) (a) An objection to an application
under this chapter must be filed by the date specified by the department under
85-2-307(2). (b) The objection to an
application for a permit must state the name and address of the objector and facts indicating that
one or more of the criteria
in 85-2-311 are not met. (2) For an application for a
change in appropriation rights, the objection must state the name and address of the objector and
facts indicating that one
or more of the criteria in 85-2-402 and [section 2], if
applicable, are not met. (3) A person has standing to file
an objection under this section if the property, water rights, or interests of the objector would be
adversely affected
by the proposed appropriation. (4) For an application for a
reservation of water, the objection must state the name and address of the objector and facts
indicating that one or more
of the criteria in 85-2-316 are not met. (5) An objector to an application
under this chapter shall file a correct and complete objection on a form prescribed by the
department within the time
period stated on the public notice associated with the application. In order to assist both
applicants and objectors, the department shall adopt rules in
accordance with this chapter delineating the components of a correct and complete objection. For
instream flow water rights for fish, wildlife, and
recreation, the rules must require the objector to describe the reach or portion of the reach of the
stream or river subject to the instream flow water right
and the beneficial use that is adversely affected and to identify the point or points where the
instream flow water right is measured and monitored. The
department shall notify the objector of any defects in an objection. An objection not corrected or
completed within 15 days from the date of notification
of the defects is terminated. (6) An objection is valid if the
objector has standing pursuant to subsection (3), has filed a correct and complete objection
within the prescribed time
period, and has stated the applicable information required under this section and rules of the
department." Section
7. Section 85-2-310, MCA, is amended to
read: "85-2-310. Action on application for permit or change in appropriation
right. (1) The department shall grant, deny, or condition an application
for a permit or change in appropriation right in whole or in part within 120 days after the last date
of publication of the notice of application if no objections
have been received and within 180 days if a hearing is held or objections have been received.
However, in either case the time may be extended upon
agreement of the applicant or, in those cases where an environmental impact statement must be
prepared or in other extraordinary cases, may be
extended by not more than 60 days upon order of the department. If the department orders the
time extended, it shall serve a notice of the extension and
the reasons for the extension by first-class mail upon the applicant and each person who has filed
an objection as provided by 85-2-308. (2) If
an application is to appropriate water with a point of diversion, conveyance, or place of use on
national forest system lands, any application
approved by the department is subject to any written special use authorization required by federal
law to occupy, use, or traverse national forest system
lands for the purpose of diversion, impoundment, storage, transportation, withdrawal, use, or
distribution of the water applied for and any terms, conditions,
and limitations related to the use of water contained in any special use authorization required by
federal law . (2)(3) However,
an Except as provided in subsection (2),
an application may not be denied or approved in a modified form or upon terms,
conditions,
or limitations specified by the department, unless the applicant is first granted an opportunity to
be heard. If no an objection is not filed
against the
application but the department is of the opinion that the application should be denied or approved
in a modified form or upon terms, conditions, or
limitations specified by it, the department shall prepare a statement of its opinion and its reasons
for the opinion. The department shall serve a statement
of its opinion by first-class mail upon the applicant, with a notice that the applicant may obtain a
hearing by filing a request within 30 days after the notice
is mailed. The notice must further state that the application will be modified in a specified
manner or denied unless a hearing is requested. (3)(4) The department may cease action upon an application for a
permit or change in appropriation right and return it to the applicant when it finds
that the application is not in good faith or does not show a bona fide intent to appropriate water
for a beneficial use. An application returned for either of
these reasons must be accompanied by a statement of the reasons for which it was returned, and
for a permit application there is not a right to a priority
date based upon the filing of the application. Returning an application pursuant to this subsection
is a final decision of the department. (4)(5) For
all applications filed after July 1, 1973, the department shall find that an application is not in
good faith or does not show a bona fide intent
to appropriate water for a beneficial use if: (a) an application is not corrected
and completed as required by 85-2-302; (b) the appropriate filing fee is
not paid; (c) the application does not
document: (i) a beneficial use of
water; (ii) the proposed place of use of all water
applied for; (iii) for an appropriation of 4,000
acre-feet a year or more and 5.5 cubic feet per second or more, a detailed project plan describing
when and how much
water will be put to a beneficial use. The project plan must include a reasonable timeline for the
completion of the project and the actual application of
the water to a beneficial use. (iv) for appropriations not covered in
subsection (4)(c)(iii), a general project plan stating when and how much water will be put to a
beneficial use; and (v) if the water applied for is to
be appropriated above that which will be used solely by the applicant or if it will be marketed by
the applicant to other
users, information detailing: (A) each person who will use the
water and the amount of water each person will use; (B) the proposed place of use of
all water by each person; (C) the nature of the relationship
between the applicant and each person using the water; and (D) each firm contractual
agreement for the specified amount of water for each person using the water; or (d) the appropriate environmental
impact statement costs or fees, if any, are not paid as required by 85-2-124." Section
8. 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. In making a
determination under this section, the department may not alter the
terms and conditions of an existing water right or an issued certificate, permit, or state water
reservation. 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) (i) there is water
physically available at the proposed point of diversion in the amount that the applicant seeks to
appropriate; and (ii) water can reasonably be considered
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. Legal
availability is determined using an analysis involving the following
factors: (A) identification of physical
water availability; (B) identification of existing
legal demands on the source of supply throughout the area of potential impact by the proposed
use; and (C) analysis of the evidence on
physical water availability and the existing legal demands, including but not limited to a
comparison of the physical
water supply at the proposed point of diversion with the existing legal demands on the supply of
water. (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
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 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, or if the proposed use has a point
of diversion, conveyance, or place of use on national forest system lands, the applicant has any
written special use authorization required by federal law to occupy, use, or traverse national
forest system lands for the purpose of diversion,
impoundment, storage, transportation, withdrawal, use, or distribution of water under the
permit; (f) the water quality of a prior
appropriator will not be adversely affected; (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 (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)(f) through (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)(f), (1)(g), or (1)(h), as
applicable, may not be met. For the criteria set forth in subsection (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 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
9. Section 85-2-312, MCA, is amended to
read: "85-2-312. Terms of permit. (1) (a) The department may issue a permit for less than the amount of water
requested, but may not issue a permit for
more water than is requested or than can be beneficially used without waste for the purpose
stated in the application. The department may require
modification of plans and specifications for the appropriation or related diversion or
construction. The department may issue a permit subject to terms,
conditions, restrictions, and limitations it considers necessary to satisfy the criteria listed in
85-2-311 and subject to subsection (1)(b), and
it may issue
temporary or seasonal permits. A permit must be issued subject to existing rights and any final
determination of those rights made under this chapter. (b) If
the permit is for use of water with a point of diversion, conveyance, or place of use on national
forest system lands, the permit is subject to any
written special use authorization required by federal law to occupy, use, or traverse national
forest system lands for the purpose of diversion,
impoundment, storage, transportation, withdrawal, use, or distribution of the water under the
permit and any terms, conditions, and limitations related to
the use of water contained in any special use authorization required by federal
law. (2) The department shall specify
in the permit or in any authorized extension of time provided in subsection (3), the time limits for
commencement
of the appropriation works, completion of construction, and actual application of the water to the
proposed beneficial use. In fixing those time limits, the
department shall consider the cost and magnitude of the project, the engineering and physical
features to be encountered, and, on projects designed
for gradual development and gradually increased use of water, the time reasonably necessary for
that gradual development and increased use. The
department shall issue the permit or authorized extension of time subject to the terms, conditions,
restrictions, and limitations it considers necessary to
ensure that the work on the appropriation is commenced, conducted, and completed and that the
water is actually applied in a timely manner to the
beneficial use specified in the permit. (3) The department shall by rule
or by condition to a permit establish a process allowing for the extension of the time limits
specified in the permit for
commencement of the appropriation works, completion of construction, and actual application of
water to the proposed beneficial use. If a
permit
commencement of the appropriation works, completion
of construction, or the actual application of water to the proposed beneficial use is not
completed
within the time limit specified or within an extension of that time limit, the permit is void upon
lapse of the time limit. (4) The original of the permit
must be sent to the permittee, and a copy must be kept in the office of the department in
Helena." Section
10. Section 85-2-316, MCA, is amended to
read: "85-2-316. State reservation of waters. (1) The state, 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 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)
(a) The department shall adopt rules that are necessary to determine whether or not an application
is correct and complete based on the provisions
applicable to issuance of a state water reservation. The rules must be adopted in compliance with
Title 2, chapter 4. (b)
An applicant shall submit a correct and complete application. The determination of whether an
application is correct and complete must be based
on rules adopted under this subsection (3) that are in effect at the time the application is
submitted. The department shall proceed in accordance with
85-2-302 with regard to any defects in the application. (c)
The application must be made on a form prescribed by the department. The department shall
make the forms available through its offices. (3)(d) 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 analysis must be paid by the applicant unless waived
by the department upon a showing of good cause by the applicant. (4) (a) The Except as provided in [section 1], the department may not adopt an order reserving water unless
shall issue a state water reservation if
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 shall issue a
water reservation for withdrawal and transport for use outside the state if 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 may be allocated
at the discretion of the department are not
subject to the limit under this subsection. (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. A state
water reservation issued under this section has a priority of appropriation dating from the filing
of a correct and complete application with the department. (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 or a certificate for ground water
development issued pursuant to
this part if: (i) the permit application or
the notice of completion of ground water development was accepted by the department before the
date of the order
granting the reservation; (ii) the effect of subordinating the
reservation to one or more permits or certificates for ground water development does not
interfere substantially with
the purpose of the reservation; and (iii) in the case of a certificate for
ground water development, the reservant consents to the subordination. (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. (9) A
state water reservation issued under this section may not adversely affect any rights in existence
at that time. The department may issue a state
water reservation subject to terms, conditions, restrictions, and limitations it considers necessary
to satisfy the criteria of this section. (10) The Upon issuing a state water
reservation for the purpose of maintaining a minimum flow, level, or quality of water, the
appropriation of water
is complete. Except as provided in [section 1], the department shall, periodically but at
least once every 10 years, review existing state water reservations
to ensure that the objectives of the reservations are being met. When the objectives of 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 Except as provided in
[section 1], 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 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 ownership
update form 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) This section does not vest 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
11. Section 85-2-319, MCA, is amended to
read: "85-2-319. Permit action in highly appropriated basins or
subbasins. (1) With regard to a highly appropriated basin or subbasin, except as
provided in [section 1], the legislature may by law preclude permit applications or the
department may by rule reject permit applications or modify or
condition permits already issued. (2) A rule may be adopted under
this section only upon a petition that is signed by at least 25% or 10, whichever is less, of the
users of water in the
source of supply within a basin or subbasin or upon petition of the department of environmental
quality that alleges facts under subsection (2)(d). The
petition must be in a form prescribed by the department and must allege facts showing that
throughout or at certain times of the year or for certain
beneficial uses: (a) there are no unappropriated
waters in the source of supply; (b) the rights of prior
appropriators will be adversely affected; (c) further uses will interfere
unreasonably with other planned uses or developments for which a permit has been issued or for
which water has been
reserved; or (d) in the case of a petition filed
by the department of environmental quality: (i) the water quality of an
appropriator will be adversely affected by the issuance of permits; (ii) further use will not be substantially
in accordance with the classification of water set for the source of supply pursuant to
75-5-301(1); or (iii) the ability of a discharge
permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter
5, part 4, will be adversely
affected by the issuance of permits. (3) Within 60 days after
submission of a petition, the department shall: (a) deny the petition in writing,
stating its reasons for denial; (b) inform the petitioners that the
department shall study the allegations further before denying or proceeding further with the
petition; or (c) initiate rulemaking
proceedings in accordance with 2-4-302 through 2-4-305. (4) Title 2, chapter 4, parts 1
through 4, govern rulemaking proceedings conducted under this section, except that in addition
to the notice requirements
of those parts, the department notice of the rulemaking hearing must be published at least once in
each week for 3 successive weeks, not less than 30
days before the date of the hearing, in a newspaper of general circulation in the county or
counties in which the source is located. The department shall
serve by mail a copy of the notice, not less than 30 days before the hearing, upon each person or
public agency known from the examination of the
records of the department to be a claimant, appropriator, or permitholder of water in the
source. (5) The department may adopt
rules to implement the provisions of this section." 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 Except as provided in [section 1], the state, 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 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) Except as provided in [section 1], the department shall: (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 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 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) State Except as provided in
[section 1], 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 issued 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. If the department issued a certificate for
ground water development under Title 85, chapter 2, part 3, prior to the granting of a reservation
under this section, the department may subordinate the
reservation to the certificate if it finds that the subordination does not interfere substantially with
the purpose of any reservation and the reservant consents
to the subordination. 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 submitted pursuant to [section 1, Article VI]; or (e)(f) 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 Except as provided
in [section 1], 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 Except as provided in
[section 1], the department may not process or approve applications for state water
reservations in the Upper Clark
Fork River basin filed pursuant to 85-2-316." Section
14. 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; (e)
an application submitted pursuant to [section 1, Article VI]; or (e)(f) temporary emergency appropriations as provided for in
85-2-113(3)." Section
15. Section 85-2-343, MCA, is amended to
read: "85-2-343. 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 reservation to
reserve water within the upper Missouri River basin until
the final decrees have been issued in accordance with part 2 of this chapter for all of the
subbasins of the upper Missouri 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; (e) an application for a permit to
use water from the Muddy Creek drainage, which drains to the Sun River, if the proposed use of
water will help control
erosion in the Muddy Creek drainage; (f) an
application submitted pursuant to [section 1, Article VI]; or (f)(g) temporary emergency appropriations as provided for in
85-2-113(3)." Section
16. Section 85-2-344, MCA, is amended to
read: "85-2-344. Bitterroot River subbasin temporary closure -- definitions --
exceptions. (1) Unless the context requires otherwise, in this section,
the following definitions apply: (a) "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. (b) "Bitterroot River basin"
means the drainage area of the Bitterroot River and its tributaries above the confluence of the
Bitterroot River and Clark
Fork of the Columbia River and designated as "Basin 76H". (c) "Bitterroot River subbasin"
means one of the following hydrologically related portions of the Bitterroot River
basin: (i) the mainstem subbasin,
designated as "Subbasin 76HA"; (ii) the north end subbasin, designated as
"Subbasin 76HB"; (iii) the east side subbasin, designated as
"Subbasin 76HC"; (iv) the southeast subbasin, designated as
"Subbasin 76HD"; (v) the south end subbasin,
designated as "Subbasin 76HE"; (vi) the southwest subbasin, designated
as "Subbasin 76HF"; (vii) the west central subbasin,
designated as "Subbasin 76HG"; or (viii) the northwest subbasin, designated
as "Subbasin 76HH". (2) As provided in 85-2-319, the
department may not process or grant an application for a permit to appropriate water or for a state
water reservation
within a Bitterroot River subbasin until the closure for the basin is terminated pursuant to
subsection (3) of this section, except for: (a) an application for a permit to
appropriate ground water; (b) an application for a permit to
appropriate water for a municipal water supply; (c) temporary emergency
appropriations pursuant to 85-2-113(3); (d)
an application submitted pursuant to [section 1, Article VI]; or (d)(e) an
application to store water during high spring flow in an impoundment with a capacity of 50
acre-feet or more. (3) Each Bitterroot River
subbasin is closed to new appropriations and new state water reservations until 2 years after all
water rights in the subbasin
arising under the laws of the state are subject to an enforceable and administrable decree as
provided in 85-2-406(4)." 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 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) 85-2-310(4), and 85-2-313. (3) Priority of appropriation
perfected before July 1, 1973, 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 -- definition. (1) (a) 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. Except as provided in 85-2-410 and subsections (15)
and (16) of this section, an appropriator may not make
a change in an appropriation right without the approval of the department or, if applicable, of the
legislature. An applicant shall submit a correct and
complete application. (b) If
an application involves a change in a point of diversion, conveyance, or place of use located on
national forest system lands, the application
is not correct and complete until the applicant has submitted proof to the department of any
written special use authorization required by federal law for
the proposed change in occupancy, use, or traverse of national forest system lands for the purpose
of diversion, impoundment, storage, transportation,
withdrawal, use, or distribution of water. (c)
As used in this part, "national forest system lands" has the same meaning as that provided in
[section 1, Article I]. (2) Except as provided in
subsections (4) through (6), (15), and (16) and, if
applicable, subject to subsection (17), 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 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 a
state water reservation has been issued under part 3. (b) Except for a lease
authorization pursuant to 85-2-436 or a temporary change in appropriation right authorization to
maintain or enhance
streamflows to benefit the fishery resource pursuant to 85-2-408 or a change in appropriation right to instream flow to protect, maintain, or enhance
streamflows pursuant to [section 2], 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 in appropriation right authorization
pursuant to 85-2-408 or a change
in appropriation right to instream flow to protect, maintain, or enhance streamflows pursuant to
[section 2], 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 or, if the proposed change
involves a point of diversion, conveyance, or place of use on national forest system lands, the
applicant has any written special use authorization required
by federal law to occupy, use, or traverse national forest system lands for the purpose of
diversion, impoundment, storage, transportation, withdrawal,
use, or distribution of water. (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) for the withdrawal and
transportation of appropriated water for out-of-state use, 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 in appropriation right if it determines that the proposed change might adversely
affect the rights of other persons. (8) The department or the
legislature, if applicable, may approve a change in appropriation right subject to the terms,
conditions, restrictions, and
limitations that 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 in appropriation right 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. (15) (a) An appropriator may
change an appropriation right for a replacement well without the prior approval of the department
if: (i) the appropriation right is
for: (A) ground water outside the
boundaries of a controlled ground water area; or (B) ground water inside the
boundaries of a controlled ground water area and if the provisions of the order declaring the
controlled ground water area
do not restrict such a change; (ii) the change in appropriation right is to
replace an existing well and the existing well will no longer be used; (iii) the rate and volume of the
appropriation from the replacement well are equal to or less than that of the well being replaced
and do not exceed: (A) 450 gallons a minute for a
municipal well; or (B) 35 gallons a minute and 10
acre-feet a year for all other wells; (iv) the water from the replacement well
is appropriated from the same aquifer as the water appropriated from the well being replaced;
and (v) a timely, correct and
complete notice of replacement well is submitted to the department as provided in subsection
(15)(b). (b) (i) After completion of
a replacement well and appropriation of ground water for a beneficial use, the appropriator shall
file a notice of replacement
well with the department on a form provided by the department. (ii) (A) The department shall review the notice of replacement well and
shall issue an authorization of a change in an appropriation right if all of the
criteria in subsection (15)(a) have been met and the notice is correct and complete. (B) If
the replacement well is located on national forest system lands, the notice is not correct and
complete under this subsection (15) until the
appropriator has submitted proof of any written special use authorization required by federal law
to occupy, use, or traverse national forest system lands
for the purpose of constructing the replacement well. (iii) The department may not issue an
authorization of a change in appropriation right until a correct and complete notice of
replacement well has been
filed with the department. The department shall return a defective notice to the appropriator,
along with a description of defects in the notice. The
appropriator shall refile a corrected and completed notice of replacement well within 30 days of
notification of defects or within a further time as the
department may allow, not to exceed 6 months. (iv) If a notice of replacement well is not
completed within the time allowed, the appropriator shall: (A) cease appropriation of water
from the replacement well pending approval by the department; and (B) submit an application for a
change in appropriation right to the department pursuant to subsections (1) through
(3). (c) The provisions of this
subsection (15) do not apply to an appropriation right abandoned under 85-2-404. (d) For each well that is replaced
under this subsection (15), the appropriator shall follow the well abandonment procedures,
standards, and rules
adopted by the board of water well contractors pursuant to 37-43-202. (e) The provisions of subsections
(2), (3), (9), and (10) do not apply to a change in appropriation right that meets the requirements
of subsection
(15)(a). (16) (a) An appropriator may
change an appropriation right without the prior approval of the department for the purpose of
constructing a redundant
water supply well in a public water supply system, as defined in 75-6-102, if the redundant water
supply well: (i) withdraws water from the
same ground water source as the original well; and (ii) is required by a state or federal
agency. (b) The priority date of the
redundant water supply well is the same as the priority date of the original well. Only one well
may be used at one time. (c) Within 60 days of completion
of a redundant water supply well, the appropriator shall file a notice of construction of the well
with the department
on a form provided by the department. The department may return a defective notice of
construction to the appropriator for correction and completion.
If the redundant water supply well is located on
national forest system lands, the notice is not correct and complete under this subsection until the
appropriator has submitted proof of any written special use authorization required by federal law
to occupy, use, or traverse national forest system lands
for the purpose of constructing the redundant water supply well. (d) The provisions of subsections
(9) and (10) do not apply to a change in appropriation right that meets the requirements of this
section subsection
(16). (17)
The department shall accept and process an application for a change in appropriation right to
instream flow to protect, maintain, or enhance
streamflows pursuant to [section 2] and this section. (Terminates June 30, 2009--sec. 9,
Ch. 123, L. 1999.) 85-2-402. (Effective July 1, 2009) Changes in appropriation rights -- definition. (1) (a) 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. Except as provided in 85-2-410 and subsections
(15) and (16) of this section, an appropriator may not make
a change in an appropriation right without the approval of the department or, if applicable, of the
legislature. An applicant shall submit a correct and
complete application. (b) If
an application involves a change in a point of diversion, conveyance, or place of use located on
national forest system lands, the application
is not correct and complete until the applicant has submitted proof to the department of any
written special use authorization required by federal law for
the proposed change in occupancy, use, or traverse of national forest system lands for the purpose
of diversion, impoundment, storage, transportation,
withdrawal, use, or distribution of water. (c)
As used in this part, "national forest system lands" has the same meaning as that provided in
[section 1, Article I]. (2) Except as provided in
subsections (4) through (6), (15), and (16) and, if
applicable, subject to subsection (17), 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 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 a
state water reservation has been issued under part 3. (b) Except for a temporary
change in appropriation right authorization to maintain or enhance streamflows to benefit the
fishery resource pursuant
to 85-2-408 or a change in appropriation right to
instream flow to protect, maintain, or enhance streamflows pursuant to [section 2], 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 in appropriation right authorization pursuant to 85-2-408 or a change in appropriation right to instream flow to
protect, maintain, or enhance streamflows pursuant to [section 2], 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 or, if the proposed change involves a point of diversion,
conveyance,
or place of use on national forest system lands, the applicant has any written special use
authorization required by federal law to occupy, use, or traverse
national forest system lands for the purpose of diversion, impoundment, storage, transportation,
withdrawal, use, or distribution of water. (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) for the withdrawal and
transportation of appropriated water for out-of-state use, 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 in appropriation right if it determines that the proposed change might adversely
affect the rights of other persons. (8) The department or the
legislature, if applicable, may approve a change in appropriation right subject to the terms,
conditions, restrictions, and
limitations that 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 in appropriation right 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. (15) (a) An appropriator may
change an appropriation right for a replacement well without the prior approval of the department
if: (i) the appropriation right is
for: (A) ground water outside the
boundaries of a controlled ground water area; or (B) ground water inside the
boundaries of a controlled ground water area and if the provisions of the order declaring the
controlled ground water area
do not restrict such a change; (ii) the change in appropriation right is to
replace an existing well and the existing well will no longer be used; (iii) the rate and volume of the
appropriation from the replacement well are equal to or less than that of the well being replaced
and do not exceed: (A) 450 gallons a minute for a
municipal well; or (B) 35 gallons a minute and 10
acre-feet a year for all other wells; (iv) the water from the replacement well
is appropriated from the same aquifer as the water appropriated from the well being replaced;
and (v) a timely, correct and
complete notice of replacement well is submitted to the department as provided in subsection
(15)(b). (b) (i) After completion of
a replacement well and appropriation of ground water for a beneficial use, the appropriator shall
file a notice of replacement
well with the department on a form provided by the department. (ii) The department shall review the
notice of replacement well and shall issue an authorization of a change in an appropriation right
if all of the criteria
in subsection (15)(a) have been met and the notice is correct and complete. If the replacement well is located on national forest system
lands, the notice
is not correct and complete under this subsection (15) until the appropriator has submitted proof
of any written special use authorization required by federal
law to occupy, use, or traverse national forest system lands for the purpose of constructing the
replacement well. (iii) The department may not issue an
authorization of a change in appropriation right until a correct and complete notice of
replacement well has been
filed with the department. The department shall return a defective notice to the appropriator,
along with a description of defects in the notice. The
appropriator shall refile a corrected and completed notice of replacement well within 30 days of
notification of defects or within a further time as the
department may allow, not to exceed 6 months. (iv) If a notice of replacement well is not
completed within the time allowed, the appropriator shall: (A) cease appropriation of water
from the replacement well pending approval by the department; and (B) submit an application for a
change in appropriation right to the department pursuant to subsections (1) through
(3). (c) The provisions of this
subsection (15) do not apply to an appropriation right abandoned under 85-2-404. (d) For each well that is replaced
under this subsection (15), the appropriator shall follow the well abandonment procedures,
standards, and rules
adopted by the board of water well contractors pursuant to 37-43-202. (e) The provisions of subsections
(2), (3), (9), and (10) do not apply to a change in appropriation right that meets the requirements
of subsection
(15)(a). (16) (a) An appropriator may
change an appropriation right without the prior approval of the department for the purpose of
constructing a redundant
water supply well in a public water supply system, as defined in 75-6-102, if the redundant water
supply well: (i) withdraws water from the
same ground water source as the original well; and (ii) is required by a state or federal
agency. (b) The priority date of the
redundant water supply well is the same as the priority date of the original well. Only one well
may be used at one time. (c) Within 60 days of completion
of a redundant water supply well, the appropriator shall file a notice of construction of the well
with the department
on a form provided by the department. The department may return a defective notice of
construction to the appropriator for correction and completion.
If the redundant water supply well is located on
national forest system lands, the notice is not correct and complete under this subsection until
after the
appropriator has submitted proof of any written special use authorization required by federal law
to occupy, use, or traverse national forest system lands
for the purpose of constructing the redundant water supply well. (d) The provisions of subsections
(9) and (10) do not apply to a change in appropriation right that meets the requirements of this
section subsection
(16). (17)
The department shall accept and process an application for a change in appropriation right to
instream flow to protect, maintain, or enhance
streamflows pursuant to [section 2] and this section." Section
19. Codification instruction. (1) [Section 1] is intended to be codified as
an integral part of Title 85, chapter 20, and the provisions of Title
85, chapter 20, apply to [section 1]. (2) [Section 2] 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
2]. Section
20. Effective date. [This act] is effective on passage and
approval. - END - Latest
Version of SB 248 (SB0248.ENR) New
language in a bill appears underlined, deleted material appears stricken. Sponsor names are handwritten on introduced bills, hence do not appear on the bill
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status of this bill for the bill's primary sponsor. Status of this Bill | 2007
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