HOUSE BILL NO. 33
INTRODUCED BY C. YOUNKIN
AN ACT AUTHORIZING A SHORT-TERM LEASE OF A WATER RIGHT FOR ROAD CONSTRUCTION OR DUST ABATEMENT WITHOUT APPROVAL BY THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION; AMENDING SECTIONS 85-2-122, 85-2-402, 85-2-407, AND 85-2-419, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Short-term lease of appropriation right. (1) An appropriator may lease for a term not to exceed 90 days all or part of an appropriation right for road construction or dust abatement without the prior approval of the department, subject to the requirements of this section. The lease agreement must include the following information:
(a) the name and address of the lessee;
(b) the name of the owner of the appropriation right;
(c) the number of the appropriation right;
(d) the purpose of use of water for which the lease is being made;
(e) the source of water to be appropriated;
(f) the starting and ending date of the proposed use of water;
(g) the proposed point of diversion;
(h) the proposed place of use;
(i) the diversion flow rate and volume of water to be used during the period of use; and
(j) a description of how the existing use of water will be reduced to accommodate the temporary change of use of the appropriation right, including the number and location of acres to be removed from irrigation, if applicable.
(2) A short-term lease of an appropriation right under this section may not exceed 60,000 gallons a day or the amount of the appropriation right, whichever is less. Any combination of short-term leases cannot exceed 120,000 gallons a day for one project.
(3) The following information must be submitted to the department at least 2 days prior to the use of water by a lessee under this section:
(a) a copy of the publication notice or copies of the individual notice required under subsection (4);
(b) a copy of the lease agreement; and
(c) for a combination of short-term leases greater than 60,000 gallons a day for one project, an analysis by the lessee of any potential adverse effects and a description of planned actions to mitigate any potential adverse effects to appropriators in the area of the proposed point of diversion.
(4) The lessee of an appropriation right under this section shall, 30 days prior to the use of the water, publish a notice of the proposed use of water once in a newspaper of general circulation in the area of the diversion or mail individual notice to potentially affected appropriators in the area of the proposed point of diversion. The published notice or the individual notice must contain the information listed in subsections (1)(a) through (1)(j) and (3)(c).
(5) (a) The owner of a water right, whether the right is prior or subsequent in priority to the short-term lease acquired by a person under this section, who cannot satisfy in full the owner's right during the time that the short-term lessee is diverting water may make a complaint to the department and cause the short-term lessee's diversion to be discontinued.
(b) The diversion is discontinued until the owner's right is satisfied or until the lessee establishes to the department that the discontinuance has had no effect on the owner's water right. Upon establishment that discontinuance has not had an effect, the department shall enter an order allowing the diversion to continue.
(6) If a person purposely, with malicious intent, causes the discontinuance of a short-term diversion through the complaint process provided in subsection (5)(a) and the complaint is found to be invalid and frivolous, the person is, upon conviction, guilty of a misdemeanor and shall be fined in an amount not to exceed $500.
(7) This section does not limit the remedies available to an appropriator to enjoin or to seek damages from a person appropriating water under this section.
(8) A civil action instituted to enjoin or seek damages from a person appropriating water pursuant to this section must be commenced against the lessee. The lessor is not a necessary party to a civil action. The lessee has the burden of establishing that the lessee's use does not have an adverse effect on a prior appropriator of water.
Section 2. Section 85-2-122, MCA, is amended to read:
"85-2-122. Penalties. (1) A person who violates or refuses or neglects to comply with the provisions of this chapter, any order of the department, or any rule of the department is guilty of a misdemeanor.
(2) A Except as provided in [section 1(6)], a person who violates or refuses or neglects to comply with the provisions of
85-2-114, any order of the department, or any rule of the department is subject to a civil penalty not to exceed $1,000 per
violation. Each day of violation constitutes a separate violation.
(3) Fines collected by the department or a district court under subsection (2) must be deposited in the account established in 85-2-318 for use by the department in the enforcement of 85-2-114."
Section 3. Section 85-2-402, MCA, is amended to read:
"85-2-402. (Temporary) Changes in appropriation rights. (1) The right to make a change subject to the provisions
of this section in an existing water right, a permit, or a state water reservation is recognized and confirmed. In a change
proceeding under this section, there is no presumption that an applicant for a change in appropriation right cannot establish
lack of adverse effect prior to the adjudication of other rights in the source of supply pursuant to this chapter. An Except as
provided in [section 1], an appropriator may not make a change in an appropriation right except, as permitted under this
section, by applying for and receiving without 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 change in appropriation right will not adversely affect the use of the existing water rights of other persons or other perfected or planned uses or developments for which a permit or certificate has been issued or for which a state water reservation has been issued under part 3.
(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 or 85-2-439 for instream flow to benefit the fishery resource, 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.
(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) for the withdrawal and transportation of appropriated water for out-of-state use, 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 federal non-Indian and Indian 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 the proposed change might adversely affect the rights of other persons.
(8) The department or the legislature, if applicable, may approve a change subject to the 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; sec. 14, Ch. 487, L. 1995.)
85-2-402. (Effective July 1, 2005) Changes in appropriation rights. (1) The right to make a change subject to the
provisions of this section in an existing water right, a permit, or a state water reservation is recognized and confirmed. In a
change proceeding under this section, there is no presumption that an applicant for a change in appropriation right cannot
establish lack of adverse effect prior to the adjudication of other rights in the source of supply pursuant to this chapter. An
Except as provided in [section 1], an appropriator may not make a change in an appropriation right except, as permitted
under this section, by applying for and receiving without 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 change in appropriation right will not adversely affect the use of the existing water rights of other persons or other perfected or planned uses or developments for which a permit or certificate has been issued or for which a state water reservation has been issued under part 3.
(b) Except for a lease authorization pursuant to 85-2-436 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) 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.
(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) for the withdrawal and transportation of appropriated water for out-of-state use, 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 federal non-Indian and Indian 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 the proposed change might adversely affect the rights of other persons.
(8) The department or the legislature, if applicable, may approve a change subject to the terms, conditions, restrictions, and limitations 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, 2009--sec. 9, Ch. 123, L. 1999.)
85-2-402. (Effective July 1, 2009) Changes in appropriation rights. (1) The right to make a change subject to the
provisions of this section in an existing water right, a permit, or a state water reservation is recognized and confirmed. In a
change proceeding under this section, there is no presumption that an applicant for a change in appropriation right cannot
establish lack of adverse effect prior to the adjudication of other rights in the source of supply pursuant to this chapter. An
Except as provided in [section 1], an appropriator may not make a change in an appropriation right except, as permitted
under this section, by applying for and receiving without 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 change in appropriation right will not adversely affect the use of the existing water rights of other persons or other perfected or planned uses or developments for which a permit or certificate has been issued or for which a state water reservation has been issued under part 3.
(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 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.
(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) for the withdrawal and transportation of appropriated water for out-of-state use, 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 the proposed change might adversely affect the rights of other persons.
(8) The department or the legislature, if applicable, may approve a change subject to the terms, conditions, restrictions, and limitations 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 4. Section 85-2-407, MCA, is amended to read:
"85-2-407. Temporary changes in appropriation right. (1) An Except as provided in [section 1], an appropriator
may not make a temporary change in appropriation right for the appropriator's use or another's use except with department
approval in accordance with 85-2-402 and this section.
(2) A temporary change in appropriation right may be approved for a period not to exceed 10 years. A temporary change in appropriation right may be approved for consecutive or intermittent use.
(3) An authorization for a temporary change in appropriation right may be renewed by the department for a period not to exceed 10 years. Renewal of an authorization for a temporary change in appropriation right requires application to the department by the appropriator. Upon application, the department shall notify other appropriators potentially affected by the renewal and shall allow 30 days for submission of new evidence of adverse effects to other water rights. A temporary change authorization may not be renewed by the department if it determines that the right of an appropriator, other than an appropriator described in subsection (7), is adversely affected.
(4) (a) During the term of the original temporary change authorization, the department may modify or revoke its authorization for a temporary change if it determines that the right of an appropriator, other than an appropriator described in subsection (7), is adversely affected.
(b) An appropriator, other than an appropriator identified in subsection (7), may object:
(i) during the initial temporary change application process;
(ii) during the temporary change renewal process; and
(iii) once during the term of the temporary change permit.
(5) The priority of appropriation for a temporary change in appropriation right is the same as the priority of appropriation of the right that is temporarily changed.
(6) Neither a change in appropriation right nor any other authorization right is required for reversion of the appropriation right to the permanent purpose, place of use, point of diversion, or place of storage after the period for which a temporary change was authorized expires.
(7) A person issued a water use permit with a priority of appropriation after the date of filing of an application for a temporary change in appropriation right under this section may not object to the exercise of the temporary change according to its terms, the renewal of the authorization for the temporary change, or the reversion of the appropriation right to its permanent purpose, place of use, point of diversion, or place of storage. Persons described in this subsection must be notified of the existence of any temporary change authorizations from the same source of supply.
(8) If a water right for which a temporary change has been approved is transferred as an appurtenance of real property, the temporary change remains in effect unless another change in appropriation right is authorized by the department."
Section 5. Section 85-2-419, MCA, is amended to read:
"85-2-419. Salvaged water. It is the declared policy of the state in 85-1-101 to encourage the conservation and full use
of water. Consistent with this policy, holders of appropriation rights who salvage water may retain the right to the salvaged
water for beneficial use. Any Except for a short-term lease pursuant to [section 1], any use of the right to salvaged water for
any purpose or in any place other than that associated with the original appropriation right must be approved by the
department as a change in appropriation right in accordance with 85-2-402. Sale of the right to salvaged water must also be
in accordance with 85-2-403, and the lease of the right to salvaged water for instream flow purposes must be in accordance
with 85-2-408, [section 1], 85-2-436, or 85-2-439."
Section 6. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 85, chapter 2, part 4, and the provisions of Title 85, chapter 2, part 4, apply to [section 1].
Section 7. Effective date. [This act] is effective on passage and approval.
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Latest Version of HB 33 (HB0033.ENR)
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