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SENATE BILL NO. 235
INTRODUCED BY J. WELLS, G. BECK, T. BECK, D. HAINES,
B. MCCARTHY, R. MENAHAN, E. SWANSON, C. SWYSGOOD, C. YOUNKIN
AN ACT SPECIFYING CRITERIA FOR A PRESUMPTION OF NONABANDONMENT FOR MUNICIPAL WATER RIGHTS IN WATERS CLASSIFIED AS "A-CLOSED"; AMENDING SECTION 85-2-227, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
WHEREAS, waters classified A-Closed pursuant to ARM 17.30.621 represent the highest quality waters in Montana; and
WHEREAS, almost all A-Closed drainages originate in remote, largely inaccessible, alpine settings that afford maximum natural protection for water quality; and
WHEREAS, there is either no habitation or development or extremely limited habitation or development in A-Closed drainages; and
WHEREAS, the existing municipal water rights in each of those drainages have been used for municipal supply purposes and will be needed in many of the drainages; and
WHEREAS, the high elevation alpine settings of A-Closed drainages provide gravity flowing systems that reduce the need for pumping facilities and related energy costs for Montana citizens; and
WHEREAS, the superior mineral, radiological, and microbiological quality of A-Closed waters renders them especially suitable as a raw source of municipal drinking water; and
WHEREAS, there are few gravity flow alternative sources for high quality municipal water, and therefore the loss of the right to use these high quality waters would result in the loss of a unique and irreplaceable natural resource.
THEREFORE, the 56th Legislature of the State of Montana finds that it is appropriate to enact legislation to establish a limited presumption of nonabandonment for municipal water rights situated in A-Closed basins.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 85-2-227, MCA, is amended to read:
"85-2-227. Claim to constitute prima facie evidence -- relevant evidence -- abandonment -- criteria for presumption of municipal nonabandonment. (1) For purposes of adjudicating rights pursuant to this part, a claim of an existing right filed in accordance with 85-2-221 or an amended claim of existing right constitutes prima facie proof of its content until the issuance of a final decree. For purposes of administering water rights, the provisions of a temporary preliminary decree or a preliminary decree, as modified after objections and hearings, supersede a claim of existing right until a final decree is issued.
(2) A water judge may consider all relevant evidence in the determination and interpretation of existing water rights. Relevant evidence under this part may include admissible evidence arising before or after July 1, 1973.
A Subject to the provisions of subsection (4), a water judge may determine all or part of an existing water right to be
abandoned based on a consideration of all admissible evidence that is relevant, including, without limitation, evidence
relating to acts or intent occurring in whole or in part after July 1, 1973.
(4) In a determination of abandonment made under subsection (3), the legislature finds that a water right that is claimed for municipal use from a water classified by the board of environmental review before January 1, 1999, as A-Closed under administrative rule is a unique water suited to municipal water use and that such a claim by a city, town, or other public or private entity that operates a public water supply system, as defined in 75-6-102, is presumed to not be abandoned if the city, town, or other private or public entity has used any part of the water right or municipal water supply and there is admissible evidence that the city, town, or other public or private entity also has:
(a) obtained a filtration waiver under the federal Safe Drinking Water Act, 42 U.S.C. 300(f), et seq.;
(b) acquired, constructed, or regularly maintained diversion or conveyance structures for the future municipal use of the water right;
(c) conducted a formal study, prepared by a registered professional engineer or qualified consulting firm, that includes a specific assessment that using the water right for municipal supply is feasible and that the amount of the water right is reasonable for foreseeable future needs; or
(d) maintained facilities connected to the municipal water supply system to apply the water right to an emergency or supplemental municipal water supply."
Section 2. 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.
Section 3. Effective date. [This act] is effective on passage and approval.
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Latest Version of SB 235 (SB0235.ENR)
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