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Ы x x P 7P. i A Z U n i v e r s 2 3| x c N XX 56th Legislature` T$E HB0095.02 c y N STATE INTERNET/BBS COPY * `l"T$I HB 95 y m% HOUSE BILL NO. 95
INTRODUCED BY B. STORY
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 appropriate water.
The term does not mean a private corporation, association, or group. (14)"Salvage" means to make water available for beneficial use from an existing valid appropriation
through application of water-saving methods.
(15)"State water reservation" means a water right created under state law after July 1, 1973, that
reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of
water throughout the year or at periods or for defined lengths of time.
(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 accordance with
85-2-436.
(2)"Beneficial use", unless otherwise provided, means: (a)a use of water for the benefit of the appropriator, other persons, or the public, including but
not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining,
municipal, power, and recreational uses;
(b)a use of water appropriated by the department for the state water leasing program under
85-2-141 and of water leased under a valid lease issued by the department under 85-2-141; and
(c)a use of water by the department of fish, wildlife, and parks pursuant to a lease authorized
under 85-2-436.
(3)"Certificate" means a certificate of water right issued by the department.
(4)"Change in appropriation right" means a change in the place of diversion, the place of use, the
purpose of use, or the place of storage.
(5)"Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.
(6)"Correct and complete" means that the information required to be submitted conforms to the
standard of substantial credible information and that all of the necessary parts of the form requiring the
information have been filled in with the required information.
(7)"Declaration" means the declaration of an existing right filed with the department under section
8, Chapter 452, Laws of 1973.
(8)"Department" means the department of natural resources and conservation provided for in Title
2, chapter 15, part 33.
(9)"Existing right" or "existing water right" means a right to the use of water that would be
protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and Indian
reserved water rights created under federal law and water rights created under state law.
(10)"Ground water" means any water that is beneath the ground surface.
(11)"Late claim" means a claim to an existing right forfeited pursuant to the conclusive
presumption of abandonment under 85-2-226.
(12)"Permit" means the permit to appropriate issued by the department under 85-2-301 through
85-2-303 and 85-2-306 through 85-2-314.
(13)"Person" means an individual, association, partnership, corporation, state agency, political
subdivision, the United States or any agency 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 1.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 the county clerk and recorders. The
applicant shall submit a correct and complete application.
The department shall return a defective
application for correction or completion, together with the reasons for returning it. An application does not
lose priority of filing because of defects if the application is corrected, completed, and refiled with thedepartment 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 2.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 notice
associated 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 3.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 4.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 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, 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. The project
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 5.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 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.
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 6.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 7.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 8.Effective date. [This act] is effective on passage and approval.
j) END