_________ Bill No. _______

Introduced By _______________________________________________________________________________

By Request of the Department of Natural Resources and Conservation

A Bill for an Act entitled: "An Act limiting the power of the Department of Natural Resources and Conservation to designate a watercourse as chronically dewatered; allowing the department to consider water use management plans when determining whether a watercourse is chronically dewatered; amending sections 85-2-113 and 85-2-150, MCA; and providing an effective date."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 85-2-113, MCA, is amended to read:

"85-2-113.   Department powers and duties. (1) The department may prescribe fees or service charges for any public service rendered by the department under this chapter, including fees for the filing of applications or for the issuance of permits and certificates, for rulemaking hearings under 85-2-319, for administrative hearings conducted under this chapter, for investigations concerning permit revocation, for field verification of issued and completed permits, and for all change approvals. There may not be fees for any action taken by the department at the request of the water judge or for the issuance of certificates of existing rights.

(2)  The department may adopt rules necessary to implement and carry out the purposes and provisions of this chapter. These rules may include but are not limited to rules to:

(a)  govern the issuance and terms of interim permits authorizing an applicant for a regular permit under this chapter to begin appropriating water immediately, pending final approval or denial by the department of the application for a regular permit;

(b)  require the owner or operator of appropriation facilities to install and maintain suitable controlling and measuring devices, except that the department may not require a meter on a water well outside of a controlled ground water area or proposed controlled ground water area unless the maximum appropriation of the well is in excess of the limitation contained in 85-2-306(1);

(c)  require the owner or operator of appropriation facilities to report to the department the readings of measuring devices at reasonable intervals and to file reports on appropriations; and

(d)  regulate the construction, use, and sealing of wells to prevent the waste, contamination, or pollution of ground water.

(3)  The department shall adopt rules providing for and governing temporary emergency appropriations, without prior application for a permit, necessary to protect lives or property.

(4)  (a) The department shall adopt rules to require the owner or operator of an appropriation facility on a watercourse or portions of a watercourse identified designated as chronically dewatered by the department under 85-2-150 to acquire, install, and maintain a suitable controlling and measuring device no later than 2 years after designation of the watercourse or portions of the watercourse as chronically dewatered, except that when the department specifically finds that the installation of measuring devices along the entire watercourse or portions of the watercourse is not practicable within the 2-year deadline, it may establish a later deadline.

(b)  For the purposes of this subsection (4), an appropriation facility includes but is not limited to any method used to divert, impound, or withdraw water from a watercourse. Hydroelectric facilities that are using recognized methods of flow measurement, as determined by the department, are in compliance with this subsection (4)."

Section 2.  Section 85-2-150, MCA, is amended to read:

"85-2-150.   Chronically dewatered watercourse -- identification designation. (1) Using the factors in subsection (2) as guidelines, the department, in consultation with other agencies and groups, shall identify designate chronically dewatered watercourses or portions of watercourses. The department may not designate as chronically dewatered a watercourse for which the department finds that a representative group of water users and water interests in the affected basin or subbasin have developed and implemented a water use management plan addressing stream dewatering. If the department finds that a representative group of water users and water interests in the affected basin or subbasin is in the process of developing a water use management plan that addresses stream dewatering, the department may decide not to designate a watercourse as chronically dewatered.

(2)  The factors the department shall consider when identifying designating chronically dewatered watercourses or portions of watercourses include but are not limited to the:

(a)  extent, duration, and frequency of the dewatering;

(b)  impact of the dewatering on fish, wildlife, or other natural resources;

(c)  particular species of fish and wildlife impacted;

(d)  impact of dewatering on other off-stream uses, including but not limited to agricultural, industrial, municipal, and recreational uses;

(e)  probable cause of the dewatering;

(f)  existence of temporary or final decrees;

(g)  history, if any, of conflict among water rights holders on the watercourse;

(h)  practicality and reasonableness of installing measuring devices on diversions along the watercourse; and

(i)  likelihood that the installation of measuring devices will significantly help to:

(i)  solve the chronically dewatered condition of the watercourse; or

(ii) resolve conflicts among water rights holders on the watercourse."

NEW SECTION. Section 3. 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.

NEW SECTION. Section 4.  Effective date. [This act] is effective July 1, 1997.

-END-