WPC
2 Z B
- 0 7 Bills Printer IIID - Rm118 x x P 7 P HB0095 CL2195 LC0153
# Ы x x P 7P. i A Z U n i v e r s 2 3| x 3'Archive c N XX 56th Legislature` T$E HB0095.01 c y N STATE INTERNET/BBS COPY * `l"T$I HB 95 y h% HOUSE BILL NO. 95
INTRODUCED BY STORY B
BY REQUEST OF THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING THE MONTANA WATER USE LAWS;
CLARIFYING THAT TO APPROPRIATE WATER INCLUDES HOLDING A FEDERAL NON-INDIAN OR
INDIAN RESERVED WATER RIGHT CREATED UNDER FEDERAL LAW; CLARIFYING PROCEDURES FOR
CORRECT AND COMPLETE PERMIT APPLICATIONS; CLARIFYING WHAT CONSTITUTES A VALID
OBJECTION; CHANGING PROCEDURAL ASPECTS OF CERTAIN HEARINGS AND MAILINGS;
ALTERING PROCEDURES FOR REQUESTING AN EXTENSION TO COMPLETE THE REQUIREMENTS
FOR A WATER RIGHT PERMIT; AMENDING SECTIONS 85-2-102, 85-2-302, 85-2-308, 85-2-309,
85-2-310, AND 85-2-312, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1.ĠSection 85-2-102 , MCA, is amended to read:
"85-2-102.
٠(Temporary)
Definitions. Unless the context requires otherwise, in this chapter,
the following definitions apply:
(1)"Appropriate" means to:
(a)divert, impound, or withdraw (including by stock for stock water) a quantity of water;
(b)in the case of a public agency, reserve water in accordance with 85-2-316;
(c)in the case of the department of fish, wildlife, and parks, lease water in accordance with
85-2-436;
(d) in the case of a federal agency or Indian tribe, hold a federal non-Indian or Indian reserved
water right created under federal law; or
(d)
(e)Ġin the Upper Clark Fork River basin, maintain and enhance streamflows to benefit the
fishery resource in accordance with 85-2-439.
(2)"Beneficial use", unless otherwise provided, means:
(a)a use of water for the benefit of the appropriator, other persons, or the public, including
but not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation,
mining, municipal, power, and recreational uses; (b)a use of water appropriated by the department for the state water leasing program under
85-2-141 and of water leased under a valid lease issued by the department under 85-2-141;
(c)a use of water by the department of fish, wildlife, and parks pursuant to a lease
authorized under 85-2-436; or
(d)a use of water to maintain and enhance streamflows to benefit the fishery resource in the
Upper Clark Fork River basin as part of the Upper Clark Fork River basin instream flow pilot program
authorized under 85-2-439.
(3)"Certificate" means a certificate of water right issued by the department.
(4)"Change in appropriation right" means a change in the place of diversion, the place of use,
the purpose of use, or the place of storage.
(5)"Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.
(6)"Correct and complete" means that the information required to be submitted conforms to
the standard of substantial credible information and that all of the necessary parts of the form
requiring the information have been filled in with the required information.
(7)"Declaration" means the declaration of an existing right filed with the department under
section 8, Chapter 452, Laws of 1973.
(8)"Department" means the department of natural resources and conservation provided for in
Title 2, chapter 15, part 33.
(9)"Existing right" or "existing water right" means a right to the use of water that would be
protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and
Indian reserved water rights created under federal law and water rights created under state law.
(10)"Ground water" means any water that is beneath the ground surface.
(11)"Late claim" means a claim to an existing right forfeited pursuant to the conclusive
presumption of abandonment under 85-2-226.
(12)"Permit" means the permit to appropriate issued by the department under 85-2-301
through 85-2-303 and 85-2-306 through 85-2-314.
(13)"Person" means an individual, association, partnership, corporation, state agency, political
subdivision, the United States or any agency of the United States, or any other entity.
(14)"Political subdivision" means any county, incorporated city or town, public corporation, or
district created pursuant to state law or other public body of the state empowered to appropriate
water. The term does not mean a private corporation, association, or group. (15)"Salvage" means to make water available for beneficial use from an existing valid
appropriation through application of water-saving methods.
(16)"State water reservation" means a water right created under state law after July 1,
1973, that reserves water for existing or future beneficial uses or that maintains a minimum flow,
level, or quality of water throughout the year or at periods or for defined lengths of time.
(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.
(Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)
85-2-102.
٠(Effective July 1, 1999)
Definitions. Unless the context requires otherwise, in this
chapter, the following definitions apply:
(1)"Appropriate" means to:
(a)
to
divert, impound, or withdraw (including by stock for stock water) a quantity of water;
(b)in the case of a public agency,
to
reserve water in accordance with 85-2-316;
(c) in the case of a federal agency or Indian tribe, hold a federal non-Indian or Indian reserved
water right created under federal law; or
(c)
(d)Ġin the Upper Clark Fork River basin,
to
maintain and enhance streamflows to benefit the
fishery resource in accordance with 85-2-439. (2)"Beneficial use", unless otherwise provided, means:
(a)a use of water for the benefit of the appropriator, other persons, or the public, including
but not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation,
mining, municipal, power, and recreational uses;
(b)a use of water appropriated by the department for the state water leasing program under
85-2-141 and of water leased under a valid lease issued by the department under 85-2-141; or
(c)a use of water to maintain and enhance streamflows to benefit the fishery resource in the
Upper Clark Fork River basin as part of the Upper Clark Fork River basin instream flow pilot program
authorized under 85-2-439.
(3)"Certificate" means a certificate of water right issued by the department.
(4)"Change in appropriation right" means a change in the place of diversion, the place of use,
the purpose of use, or the place of storage.
(5)"Correct and complete" means that the information required to be submitted conforms to
the standard of substantial credible information and that all of the necessary parts of the form
requiring the information have been filled in with the required information.
(6)"Declaration" means the declaration of an existing right filed with the department under
section 8, Chapter 452, Laws of 1973.
(7)"Department" means the department of natural resources and conservation provided for in
Title 2, chapter 15, part 33.
(8)"Existing right" or "existing water right" means a right to the use of water that would be
protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and
Indian reserved water rights created under federal law and water rights created under state law.
(9)"Ground water" means any water that is beneath the ground surface.
(10)"Late claim" means a claim to an existing right forfeited pursuant to the conclusive
presumption of abandonment under 85-2-226.
(11)"Permit" means the permit to appropriate issued by the department under 85-2-301
through 85-2-303 and 85-2-306 through 85-2-314.
(12)"Person" means an individual, association, partnership, corporation, state agency, political
subdivision, the United States or any agency of the United States, or any other entity.
(13)"Political subdivision" means any county, incorporated city or town, public corporation, or
district created pursuant to state law or other public body of the state empowered to appropriatewater. The term does not mean a private corporation, association, or group.
(14)"Salvage" means to make water available for beneficial use from an existing valid
appropriation through application of water-saving methods.
(15)"State water reservation" means a water right created under state law after July 1,
1973, that reserves water for existing or future beneficial uses or that maintains a minimum flow,
level, or quality of water throughout the year or at periods or for defined lengths of time.
(16)"Substantial credible information" means probable, believable facts sufficient to support a
reasonable legal theory upon which the department should proceed with the action requested by the
person providing the information.
(17)"Waste" means the unreasonable loss of water through the design or negligent operation
of an appropriation or water distribution facility or the application of water to anything but a beneficial
use.
(18)"Water" means all water of the state, surface and subsurface, regardless of its character
or manner of occurrence, including but not limited to geothermal water, diffuse surface water, and
sewage effluent.
(19)"Water division" means a drainage basin as defined in 3-7-102.
(20)"Water judge" means a judge as provided for in Title 3, chapter 7.
(21)"Water master" means a master as provided for in Title 3, chapter 7.
(22)"Watercourse" means any naturally occurring stream or river from which water is diverted
for beneficial uses. It does not include ditches, culverts, or other constructed waterways.
(23)"Well" means any artificial opening or excavation in the ground, however made, by which
ground water is sought or can be obtained or through which it flows under natural pressures or is
artificially withdrawn.
(Terminates June 30, 2005--sec. 14, Ch. 487, L. 1995.)
85-2-102.
٠(Effective July 1, 2005)
Definitions. Unless the context requires otherwise, in this
chapter, the following definitions apply:
(1)"Appropriate" means to:
(a)divert, impound, or withdraw (including by stock for stock water) a quantity of water;
(b)in the case of a public agency,
to
reserve water in accordance with 85-2-316;
(c) in the case of a federal agency or Indian tribe, hold a federal non-Indian or Indian reserved
water right created under federal law; or
(c)
(d)Ġin the case of the department of fish, wildlife, and parks,
to
lease water in accordancewith 85-2-436.
(2)"Beneficial use", unless otherwise provided, means:
(a)a use of water for the benefit of the appropriator, other persons, or the public, including
but not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation,
mining, municipal, power, and recreational uses;
(b)a use of water appropriated by the department for the state water leasing program under
85-2-141 and of water leased under a valid lease issued by the department under 85-2-141; and
(c)a use of water by the department of fish, wildlife, and parks pursuant to a lease
authorized under 85-2-436.
(3)"Certificate" means a certificate of water right issued by the department.
(4)"Change in appropriation right" means a change in the place of diversion, the place of use,
the purpose of use, or the place of storage.
(5)"Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.
(6)"Correct and complete" means that the information required to be submitted conforms to
the standard of substantial credible information and that all of the necessary parts of the form
requiring the information have been filled in with the required information.
(7)"Declaration" means the declaration of an existing right filed with the department under
section 8, Chapter 452, Laws of 1973.
(8)"Department" means the department of natural resources and conservation provided for in
Title 2, chapter 15, part 33.
(9)"Existing right" or "existing water right" means a right to the use of water that would be
protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and
Indian reserved water rights created under federal law and water rights created under state law.
(10)"Ground water" means any water that is beneath the ground surface.
(11)"Late claim" means a claim to an existing right forfeited pursuant to the conclusive
presumption of abandonment under 85-2-226.
(12)"Permit" means the permit to appropriate issued by the department under 85-2-301
through 85-2-303 and 85-2-306 through 85-2-314.
(13)"Person" means an individual, association, partnership, corporation, state agency, political
subdivision, the United States or any agency of the United States, or any other entity.
(14)"Political subdivision" means any county, incorporated city or town, public corporation, ordistrict 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 2.ĠSection 85-2-302 , MCA, is amended to read:
"85-2-302.Application for permit. Except as otherwise provided in
(1) through (3) of
85-2-306(1) through (3), a person may not appropriate water or commence construction of diversion,
impoundment, withdrawal, or related distribution works
therefor
except by applying for and receiving
a permit from the department. The application
shall
must be made on a form prescribed by the
department. The department shall make the forms available through its offices and the offices of thecounty clerk and recorders. The applicant shall submit a correct and complete application.
The
department shall return a defective application for correction or completion, together with the reasons
for returning it. An application does not lose priority of filing because of defects if the application is
corrected, completed, and refiled with the department within 30 days after its return to the applicant
or within a further time as the department may allow. If an application is not corrected and completed
within 30 days or within a further time as the department allows, up to 3 months, the priority date of
the application shall be the date of refiling the application with the corrections with the department.
An application not corrected within 3 months shall be terminated.
The department shall notify the
applicant of any defects in an application. An application does not lose priority of filing because of
defects if the application is corrected or completed within 30 days of the date of notification of the
defects or within a further time as the department may allow, but not to exceed 90 days from the
date of notification. If an application is made correct and complete after the mandated time period,
but within 90 days of the date of notification of the defects, the priority date of the application is the
date the application is made correct and complete. An application not corrected or completed within
90 days from the date of notification of the defects is terminated."
Section 3.ĠSection 85-2-308 , MCA, is amended to read:
"85-2-308.Objections. (1)(a) An objection to an application for a permit 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
tending to show
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
tending to show
indicating that one or more of the criteria in
85-2-402 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
tending to show
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
timely
file a correct and complete
objection on a form prescribed by the department within the time period stated on the public noticeassociated with the application.
(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 subsection (1), (2), or (4)."
Section 4.ĠSection 85-2-309 , MCA, is amended to read:
"85-2-309.Hearings on objections -- jurisdiction. (1) If the department determines that an
objection to an application for a permit or change approval under 85-2-402 states a valid objection, it
shall hold a
public
contested case hearing, pursuant to Title 2, chapter 4, part 6, on the objection
within 60 days from the date set by the department for the filing of objections, after serving notice of
the hearing by
certified
first-class mail upon the applicant and the objector, unless the department
certifies an issue to the district court for determination by a water judge under subsection (2). The
department may consolidate hearings if more than one objection is filed to an application. The
department shall file in its records proof of the service by affidavit of the department.
(2)(a)At any time prior to commencement or before the conclusion of a hearing as provided
in subsection (1), the department may in its discretion certify to the district court all factual and legal
issues involving the adjudication or determination of the water rights at issue in the hearing, including
but not limited to issues of abandonment, quantification, or relative priority dates. Certified
controversies must be given priority by a water judge over all other adjudication matters.
(b)If the department fails to certify an issue as provided in this section after a timely request
by a party to the hearing, the department shall include its denial to certify as part of the record of the
hearing.
(c)Upon determination of the issues certified to it by the department, the court shall remand
the matter to the department for further processing of the application under this chapter.
(3)Subsection (2) does not apply in the case of a matter considered at a hearing under this
section pursuant to 85-2-316 or 85-2-322."
Section 5.ĠSection 85-2-310 , MCA, is amended to read:
"85-2-310.Action on application. (1) The department shall grant, deny, or condition an
application for a permit 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 orobjections 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, 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
therefor
for the
extension by
certified
first-class mail upon the applicant and each person who has filed an objection as
provided by 85-2-308.
(2)However, an application may not be approved in a modified form or upon terms,
conditions, or limitations specified by the department or denied, unless the applicant is first granted an
opportunity to be heard. If no objection is filed against the application but the department is of the
opinion that the application should be approved in a modified form or upon terms, conditions, or
limitations specified by it or that the application should be denied, the department shall prepare a
statement of its opinion and
the
its reasons
therefor
for the opinion. The department shall serve a
statement of its opinion by
certified
first-class mail upon the applicant,
together
with a notice that the
applicant may obtain a hearing by filing a request
therefor
within 30 days after the notice is mailed.
The notice
shall
must further state that the application will be modified in a specified manner or
denied, unless a hearing is requested.
(3)The department may cease action upon an application for a permit 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
any
either of these reasons
shall
must be accompanied by a statement of the reasons for which it was returned, and there
shall be no
is not a right to a priority date based upon the filing of the application. Returning an application
pursuant to this subsection
shall be deemed
is a final decision of the department.
(4)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
a second or
more, a detailed project plan describing when and how much water will be put to a beneficial use. Theproject plan must include a reasonable time line 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 fee, if any, is not paid as required by
85-2-124."
Section 6.ĠSection 85-2-312 , MCA, is amended to read:
"85-2-312.Terms of permit. (1) The department may issue a permit for less than the amount
of water requested, but
in no case
may
it
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 it may issue temporary
or seasonal permits. A permit
shall
must be issued subject to existing rights and any final
determination of those rights made under this chapter.
(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 theappropriation 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.
The
department may not accept a request for extension of time that is filed less than 30 days prior to the
time limit specified in the permit.
If a permit 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
shall
must be sent to the permittee, and a copy
shall
must be
kept in the office of the department in Helena."
NEW SECTION.ĠSection 7.Severability. If a part of [this act] is invalid, all valid parts that are
severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its
applications, the part remains in effect in all valid applications that are severable from the invalid
applications.
NEW SECTION.ĠSection 8.Notification to tribal governments. The secretary of state shall
send a copy of [this act] to each tribal government located on the seven Montana reservations and to
the Little Shell band of Chippewa.
NEW SECTION.ĠSection 9.Effective date. [This act] is effective on passage and approval.
j) END