Senate Bill No. 363

Introduced By grosfield



A Bill for an Act entitled: "An Act allowing emergency ground water use to benefit the fishery resource; granting abandonment protection for voluntary nonuse of water; exempting emergency ground water use from the provisions of basin closures; revising the water leasing program; amending sections 85-2-102, 85-2-306, 85-2-311, 85-2-319, 85-2-402, 85-2-404, and 85-2-437, MCA, SECTION 11, CHAPTER 658, LAWS OF 1989, AND SECTIONS 4 AND 7, CHAPTER 740, LAWS OF 1991; and providing an immediate effective date and a retroactive applicability date."



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



NEW SECTION. Section 1.  Emergency ground water use to benefit fishery resource -- limitations -- criteria. In accordance with the provisions of 85-2-311 or 85-2-402, the department shall accept and process an application for a permit to appropriate ground water for emergency instream use to benefit the fishery resource if the ground water to be used is not immediately or directly connected to surface water.



Section 2.  Section 85-2-102, MCA, is amended to read:

"85-2-102.   (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; or

(d)  in the Upper Clark Fork River basin, maintain and enhance streamflows to benefit the fishery resource in accordance with 85-2-439; or

(e) use ground water to benefit the fishery resource in accordance with [section 1].

(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" means a right to the use of water that would be protected under the law as it existed prior to July 1, 1973.

(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) "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 manmade 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, 1999--sec. 4, Ch. 740, L. 1991.)

85-2-102.   (Effective July 1, 1999) Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

(1)  "Appropriate" means:

(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; or

(c)  in the Upper Clark Fork River basin, to maintain and enhance streamflows to benefit the fishery resource in accordance with 85-2-439; or

(d) to use ground water to benefit the fishery resource in accordance with [section 1].

(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" means a right to the use of water that would be protected under the law as it existed prior to July 1, 1973.

(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) "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.

(16) "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.

(17) "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.

(18) "Water division" means a drainage basin as defined in 3-7-102.

(19) "Water judge" means a judge as provided for in Title 3, chapter 7.

(20) "Water master" means a master as provided for in Title 3, chapter 7.

(21) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It does not include ditches, culverts, or other manmade waterways.

(22) "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.   (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; or

(c)  in the case of the department of fish, wildlife, and parks, to lease water in accordance with 85-2-436; or

(d) use ground water to benefit the fishery resource in accordance with [section 1].

(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" means a right to the use of water that would be protected under the law as it existed prior to July 1, 1973.

(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 thereof 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) "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 manmade 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."



Section 3.  Section 85-2-306, MCA, is amended to read:

"85-2-306.   Exceptions to permit requirements. (1) Ground Except for emergency use of ground water to benefit the fishery resource in accordance with [section 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. 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 per minute or less, not to exceed 10 acre-feet per 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. 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 minute or less, not to exceed 10 acre-feet per 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 (a) Subject to the provisions of subsection (3)(c), a A permit is not required before constructing an impoundment or pit and appropriating water for use by livestock if:

(i) the maximum capacity of the impoundment or pit is less than 15 acre-feet; and

(ii) the appropriation is less than 30 acre-feet per year and is from a source other than a perennial flowing stream; and

(iii) 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 (3), "perennial flowing stream" means a stream that historically has flowed continuously during all seasons of the year, during dry as well as wet years.

(b) Subject to the provisions of subsection (3)(c) (3)(D), a permit is not required prior to an emergency ground water use to benefit the fishery resource in accordance with [section 1].

(c) However, within Within 60 days after constructing the impoundment or pit under subsection (3)(a) or using ground water in accordance with [section 1], 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 or an application for emergency ground water use to benefit the fishery resource in accordance with [section 1], the department shall then automatically issue a provisional permit. If, based on a valid objection filed under 85-2-308 pursuant to notice as required under 85-2-307, 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 or emergency ground water use and may then make the permit subject to terms, conditions, restrictions, or limitations that it considers necessary to protect the rights of other appropriators.

(D) WITHIN 60 DAYS AFTER APPROPRIATING GROUND WATER IN ACCORDANCE WITH [SECTION 1], THE APPROPRIATOR SHALL APPLY FOR A PERMIT AS PRESCRIBED BY THIS PART. UPON RECEIPT OF A CORRECT AND COMPLETE APPLICATION FOR EMERGENCY GROUND WATER USE TO BENEFIT THE FISHERY RESOURCE, THE DEPARTMENT SHALL AUTOMATICALLY ISSUE A PROVISIONAL PERMIT. IF, BASED UPON A VALID OBJECTION FILED UNDER 85-2-308 PURSUANT TO THE NOTICE REQUIRED UNDER 85-2-307, THE DEPARTMENT DETERMINES THAT THE RIGHTS OF OTHER APPROPRIATORS HAVE BEEN OR WILL BE ADVERSELY AFFECTED, THE DEPARTMENT MAY REVOKE THE PERMIT OR REQUIRE THE PERMITTEE TO MODIFY THE EMERGENCY GROUND WATER USE AND MAY MAKE THE PERMIT SUBJECT TO TERMS, CONDITIONS, RESTRICTIONS, OR LIMITATIONS THAT THE DEPARTMENT 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 4.  Section 85-2-311, MCA, is amended to read:

"85-2-311.   Criteria for issuance of permit. (1) Except as provided in subsections (3) and (4), the department shall issue a permit if the applicant proves by a preponderance of evidence that the following criteria are met:

(a)  there are unappropriated waters in the source of supply at the proposed point of diversion:

(i)  at times when the water can be put to the use proposed by the applicant;

(ii) in the amount that the applicant seeks to appropriate; and

(iii) during the period in which the applicant seeks to appropriate, in the amount requested and that is reasonably available;

(b)  the water rights of a prior appropriator will not be adversely affected;

(c)  the proposed means of diversion, construction, and operation of the appropriation works are adequate;

(d)  the proposed use of water is a beneficial use;

(e)  the proposed use will not interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved;

(f)  except for appropriations in accordance with [section 1], the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use, OR FOR APPROPRIATIONS IN ACCORDANCE WITH [SECTION 1], THE APPLICANT HAS A POSSESSORY INTEREST OR WRITTEN CONSENT OF THE PERSON WITH A POSSESSORY INTEREST IN THE PROPERTY WHERE THE GROUND WATER IS TO BE DEVELOPED;

(g)  the water quality of a prior appropriator will not be adversely affected;

(h)  the proposed use will be substantially in accordance with the classification of water set for the source of supply pursuant to 75-5-301(1); and

(i)  the ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(2)  The applicant is required to prove that the criteria in subsections (1)(g) through (1)(i) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (1)(g), (1)(h), or (1)(i), as applicable, may not be met. For the criteria set forth in subsection (1)(h), only the department of environmental quality or a local water quality district established under Title 7, chapter 13, part 45, may file a valid objection.

(3)  The department may not issue a permit for an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the applicant proves by clear and convincing evidence that:

(a)  the criteria in subsection (1) are met;

(b)  the rights of a prior appropriator will not be adversely affected;

(c)  the proposed appropriation is a reasonable use. A finding must be based on a consideration of the following:

(i)  the existing demands on the state water supply, as well as projected demands, such as reservations of water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii) the benefits to the applicant and the state;

(iii) the effects on the quantity and quality of water for existing beneficial uses in the source of supply;

(iv) the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi) the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(4)  (a) The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the criteria in this subsection (4) must be met before out-of-state use may occur.

(b)  The department may not issue a permit for the appropriation of water for withdrawal and transportation for use outside the state unless the applicant proves by clear and convincing evidence that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (1) or (3) are met;

(ii) the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii) the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(c)  In determining whether the applicant has proved by clear and convincing evidence that the requirements of subsections (4)(b)(ii) and (4)(b)(iii) are met, the department shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages within the state of Montana;

(iii) the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv) the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(d)  When applying for a permit or a lease to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation, lease, and use of water.

(5)  To meet the preponderance of evidence standard in this section, the applicant, in addition to other evidence demonstrating that the criteria of subsection (1) have been met, shall submit hydrologic or other evidence, including but not limited to water supply data, field reports, and other information developed by the applicant, the department, the U.S. geological survey, or the U.S. natural resources conservation service and other specific field studies.

(6)  An appropriation, diversion, impoundment, use, restraint, or attempted appropriation, diversion, impoundment, use, or restraint contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized appropriation, diversion, impoundment, use, or other restraint. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to appropriate, divert, impound, use, or otherwise restrain or control waters within the boundaries of this state except in accordance with this section.

(7)  The department may adopt rules to implement the provisions of this section."



Section 5.  Section 85-2-319, MCA, is amended to read:

"85-2-319.   Permit action in highly appropriated basins or subbasins -- exceptions. (1) With regard to a highly appropriated basin or subbasin, the legislature may by law preclude permit applications or the department may by rule reject permit applications or modify or condition permits already issued.

(2)  A rule may be adopted under this section only upon a petition that is signed by at least 25% or 10, whichever is less, of the users of water in the source of supply within a basin or subbasin or upon petition of the department of environmental quality that alleges facts under subsection (2)(d). The petition must be in a form prescribed by the department and must allege facts showing that throughout or at certain times of the year or for certain beneficial uses:

(a)  there are no unappropriated waters in the source of supply;

(b)  the rights of prior appropriators will be adversely affected;

(c)  further uses will interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved; or

(d)  in the case of a petition filed by the department of environmental quality:

(i)  the water quality of an appropriator will be adversely affected by the issuance of permits;

(ii) further use will not be substantially in accordance with the classification of water set for the source of supply pursuant to 75-5-301(1); or

(iii) the ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will be adversely affected by the issuance of permits.

(3)  Within 60 days after submission of a petition, the department shall:

(a)  deny the petition in writing, stating its reasons for denial;

(b)  inform the petitioners that the department shall study the allegations further before denying or proceeding further with the petition; or

(c)  initiate rulemaking proceedings in accordance with 2-4-302 through 2-4-305.

(4)  Title 2, chapter 4, parts 1 through 4, govern rulemaking proceedings conducted under this section, except that in addition to the notice requirements of those parts, the department notice of the rulemaking hearing must be published at least once in each week for 3 successive weeks, not less than 30 days before the date of the hearing, in a newspaper of general circulation in the county or counties in which the source is located. The department shall serve by mail a copy of the notice, not less than 30 days before the hearing, upon each person or public agency known from the examination of the records of the department to be a claimant, appropriator, or permitholder of water in the source.

(5)  The department may adopt rules to implement the provisions of this section.

(6) Permit applications for the emergency use of ground water to benefit the fishery resource under [section 1] are not subject to the provisions of this section unless the law or rule adopted pursuant to subsection (1) specifically provides that a permit may not be issued under [section 1]."



Section 6.  Section 85-2-402, MCA, is amended to read:

"85-2-402.   (Temporary) Changes in appropriation rights. (1) An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use will not adversely affect the water rights of other persons or other planned uses or developments for which a permit has been issued or for which water has been reserved.

(b)  Except for a lease authorization pursuant to 85-2-436, a temporary change authorization for instream use to benefit the fishery resource pursuant to 85-2-408, or water use pursuant to 85-2-439 when authorization does not require appropriation works, the proposed means of diversion, construction, and operation of the appropriation works are adequate.

(c)  The proposed use of water is a beneficial use.

(d)  Except for a lease authorization pursuant to 85-2-436, or a temporary change authorization pursuant to 85-2-408 for instream flow to benefit the fishery resource, or an emergency use of ground water to benefit the fishery resource in accordance with [section 1], the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use. FOR CHANGE AUTHORIZATIONS INVOLVING APPROPRIATIONS UNDER [SECTION 1], THE APPLICANT MUST HAVE A POSSESSORY INTEREST, OR THE WRITTEN CONSENT OF THE PERSON WITH POSSESSORY INTEREST, IN THE PROPERTY WHERE THE GROUND WATER DEVELOPMENT IS LOCATED.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(a)  the criteria in subsection (2) are met; and

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii)  the benefits to the applicant and the state;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to terms, conditions, restrictions, and limitations as that it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section. (Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)

85-2-402.   (Effective July 1, 1999) Changes in appropriation rights. (1) An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use will not adversely affect the water rights of other persons or other planned uses or developments for which a permit has been issued or for which water has been reserved.

(b)  Except for a temporary change authorization pursuant to 85-2-408 or for water use pursuant to 85-2-439 that does not require appropriation works, the proposed means of diversion, construction, and operation of the appropriation works are adequate.

(c)  The proposed use of water is a beneficial use.

(d)  Except for a temporary change authorization pursuant to 85-2-408 for instream flow to benefit the fishery resource, or an emergency use of ground water to benefit the fishery resource in accordance with [section 1], the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use. FOR CHANGE AUTHORIZATIONS INVOLVING APPROPRIATIONS UNDER [SECTION 1], THE APPLICANT MUST HAVE A POSSESSORY INTEREST, OR THE WRITTEN CONSENT OF THE PERSON WITH POSSESSORY INTEREST, IN THE PROPERTY WHERE THE GROUND WATER DEVELOPMENT IS LOCATED.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(a)  the criteria in subsection (2) are met; and

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii)  the benefits to the applicant and the state;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that such a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to such terms, conditions, restrictions, and limitations as that it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section. (Terminates June 30, 2005--sec. 6, Ch. 322, L. 1995.)

85-2-402.   (Effective July 1, 2005) Changes in appropriation rights. (1) An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use will not adversely affect the water rights of other persons or other planned uses or developments for which a permit has been issued or for which water has been reserved.

(b)  The proposed means of diversion, construction, and operation of the appropriation works are adequate.

(c)  The proposed use of water is a beneficial use.

(d)  The Except for an emergency use of ground water to benefit the fishery resource in accordance with [section 1], the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use. FOR CHANGE AUTHORIZATIONS INVOLVING APPROPRIATIONS UNDER [SECTION 1], THE APPLICANT MUST HAVE A POSSESSORY INTEREST, OR THE WRITTEN CONSENT OF THE PERSON WITH POSSESSORY INTEREST, IN THE PROPERTY WHERE THE GROUND WATER DEVELOPMENT IS LOCATED.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(a)  the criteria in subsection (2) are met;

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(ii)  the benefits to the applicant and the state;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that such a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to such terms, conditions, restrictions, and limitations as that it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section."



Section 7.  Section 85-2-404, MCA, is amended to read:

"85-2-404.   (Temporary) Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of an appropriation right with the intention of wholly or partially abandoning the right or if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right is, to that extent, considered abandoned and must immediately expire expires.

(2)  If an appropriator ceases to use all or part of an appropriation right or ceases using the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for use, there is a prima facie presumption that the appropriator has abandoned the right in whole or for the part not used.

(3)  If an appropriator ceases to use all or part of an appropriation right because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:

(a)  the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and

(b)  the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.

(4)  The lease of an existing right pursuant to 85-2-436, the use of water pursuant to 85-2-439, or a temporary change pursuant to 85-2-407 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of all or any part of the right.

(5) The voluntary limited use or nonuse of an existing right to benefit the fishery resource during periods of low flow LOW-FLOW EMERGENCY CONDITIONS FOR THE FISHERY RESOURCE does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of all or any part of the right.

(5)(6)  Subsections (1) and (2) do not apply to existing rights until they have been determined in accordance with part 2 of this chapter. (Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)

85-2-404.   (Effective July 1, 1999) Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of an appropriation right with the intention of wholly or partially abandoning the right or if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right is, to that extent, considered abandoned and must immediately expire expires.

(2)  If an appropriator ceases to use all or part of an appropriation right or ceases using the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for use, there is a prima facie presumption that the appropriator has abandoned the right in whole or for the part not used.

(3)  If an appropriator ceases to use all or part of an appropriation right because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:

(a)  the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and

(b)  the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.

(4)  The use of water pursuant to 85-2-439 or a temporary change pursuant to 85-2-407 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of all or any part of the right.

(5) The voluntary limited use or nonuse of an existing right to benefit the fishery resource during periods of low flow LOW-FLOW EMERGENCY CONDITIONS FOR THE FISHERY RESOURCE does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of all or any part of the right.

(5)(6)  Subsections (1) and (2) do not apply to existing rights until they have been determined in accordance with part 2 of this chapter. (Terminates June 30, 2005--sec. 14, Ch. 487, L. 1995.)

85-2-404.   (Effective July 1, 2005) Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of his an appropriation right with the intention of wholly or partially abandoning the right or if he the appropriator ceases using his the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right shall is, to that extent, be deemed considered abandoned and shall immediately expire expires.

(2)  If an appropriator ceases to use all or part of his an appropriation right or ceases using his the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for his use, there shall be is a prima facie presumption that the appropriator has abandoned his the right in whole or for the part not used.

(3)  If an appropriator ceases to use all or part of his an appropriation right because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:

(a)  the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and

(b)  the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.

(4)  A temporary change pursuant to 85-2-407 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of all or any part of the right.

(5) The voluntary limited use or nonuse of an existing right to benefit the fishery resource in periods of low flow does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of all or any part of the right.

(5)(6)  Subsections (1) and (2) do not apply to existing rights until they have been determined in accordance with part 2 of this chapter."



Section 8.  Section 85-2-437, MCA, is amended to read:

"85-2-437.   (Temporary) Department designation DECLARATION of eligible stream reaches. (1) The department of fish, wildlife, and parks, with the consent of the commission, may apply to the department for designation of stream reaches for which water leasing to maintain or enhance streamflows pursuant to 85-2-436 may occur.

(2)  The department OF FISH, WILDLIFE, AND PARKS may declare a stream reach eligible for leasing pursuant to 85-2-436 only if it finds that water leasing is necessary to maintain or enhance streamflows for fisheries.

(3)  The department may designate no more than 20 stream reaches in the state where water leasing pursuant to 85-2-436 may occur. If the department of fish, wildlife, and parks determines that a water lease cannot be reasonably obtained on a designated stream reach, the department may remove the designation from that stream reach and designate another stream reach pursuant to this section. (Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)"



SECTION 9. SECTION 11, CHAPTER 658, LAWS OF 1989, IS AMENDED TO READ:

"Section 11. Termination. [This act] terminates [Sections 1 through 3 and 5 through 11] terminate June 30, 1993 1999."



SECTION 10. SECTION 4, CHAPTER 740, LAWS OF 1991, IS AMENDED TO READ:

"Section 4. Section 11, Chapter 658, Laws of 1989, is amended to read:

"Section 11. Termination. [This act] terminates [Sections 1 through 3 and 5 through 11] terminate June 30, 1993 1999.""



SECTION 11. SECTION 7, CHAPTER 740, LAWS OF 1991, IS AMENDED TO READ:

"Section 7. Termination. [This act] terminates [Sections 1 and 3 through 8] terminate June 30, 1999."



NEW SECTION. Section 12.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 85, chapter 2, part 3, and the provisions of Title 85, chapter 2, part 3, apply to [section 1].



NEW SECTION. Section 13.  Retroactive applicability. [This act] applies retroactively, within the meaning of 1-2-109, to all existing legislative and administrative basin closures.



NEW SECTION. Section 14.  Effective date. [This act] is effective on passage and approval.

-END-