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SENATE BILL NO. 371
INTRODUCED BY K. MESAROS, B. TASH, L. GROSFIELD, S. ROSE
AN ACT REQUIRING A PERSON DEVELOPING A GROUND WATER SOURCE OF 35 GALLONS A MINUTE OR LESS, WHEN THE SOURCE IS ON ANOTHER PERSON'S LAND, TO NOTIFY THE OTHER LANDOWNER IN ADVANCE OF THE PROPOSED DEVELOPMENT AND APPROPRIATION; AMENDING SECTION 85-2-306, MCA; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 85-2-306, MCA, is amended to read:
"85-2-306. Exceptions to permit requirements. (1) 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 another person has rights in the ground water development works, with the written consent
of the person with those property rights. 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. 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 per 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. 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 at its offices and at the offices of the county clerk and recorders.
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 or within a
further time as the department may allow, not to exceed 6 months. 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. 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 as necessary under this subsection. 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.
(2) 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 (1), 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 (1),
of this section or the date
of the filing of the claim of existing water right. An appropriation under this subsection is an existing right, and a permit is
not required ; however. 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 per a minute or less, not to exceed 10 acre-feet per 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.
(3) A permit is not required before constructing an impoundment or pit and appropriating water for use by livestock if
the maximum capacity of the impoundment or pit is less than 15 acre-feet and the appropriation is less than 30 acre-feet
a year and is from a source other than a perennial flowing stream and 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. As
used in this subsection, "perennial flowing stream" means a stream that historically has flowed continuously during all
seasons of the year, during dry as well as wet years. However, within 60 days after constructing the impoundment or pit, the
appropriator shall apply for a permit as prescribed by this part. Upon receipt of a correct and complete application for a
stockwater provisional permit, the department shall then 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.
(4) 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 2. Effective date. [This act] is effective July 1, 1999.
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Latest Version of SB 371 (SB0371.ENR)
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