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HOUSE BILL NO. 95
INTRODUCED BY B. STORY
BY REQUEST OF THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
AN ACT GENERALLY REVISING THE MONTANA WATER USE LAWS; CLARIFYING PROCEDURES FOR CORRECT AND COMPLETE PERMIT APPLICATIONS; CLARIFYING WHAT CONSTITUTES A VALID OBJECTION; CHANGING PROCEDURAL ASPECTS OF CERTAIN HEARINGS AND MAILINGS; ALTERING PROCEDURES FOR REQUESTING AN EXTENSION TO COMPLETE THE REQUIREMENTS FOR A WATER RIGHT PERMIT; AMENDING SECTIONS 85-2-302, 85-2-308, 85-2-309, 85-2-310, AND 85-2-312, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 85-2-302, MCA, is amended to read:
"85-2-302. Application for permit. Except as otherwise provided in
(1) through (3) of 85-2-306(1) through (3), a
person may not appropriate water or commence construction of diversion, impoundment, withdrawal, or related distribution
works therefor except by applying for and receiving a permit from the department. The application shall must be made on a
form prescribed by the department. The department shall make the forms available through its offices and the offices of the
county clerk and recorders. The applicant shall submit a correct and complete application. The department shall return a
defective application for correction or completion, together with the reasons for returning it. An application does not lose
priority of filing because of defects if the application is corrected, completed, and refiled with the department within 30
days after its return to the applicant or within a further time as the department may allow. If an application is not corrected
and completed within 30 days or within a further time as the department allows, up to 3 months, the priority date of the
application shall be the date of refiling the application with the corrections with the department. An application not
corrected within 3 months shall be terminated. The department shall notify the applicant of any defects in an application.
An application does not lose priority of filing because of defects if the application is corrected or completed within 30 days
of the date of notification of the defects or within a further time as the department may allow, but not to exceed 90 days
from the date of notification. If an application is made correct and complete after the mandated time period, but within 90
days of the date of notification of the defects, the priority date of the application is the date the application is made correct
and complete. An application not corrected or completed within 90 days from the date of notification of the defects is
Section 2. Section 85-2-308, MCA, is amended to read:
"85-2-308. Objections. (1) (a) An objection to an application for a permit must be filed by the date specified by the department under 85-2-307(2).
(b) The objection to an application for a permit must state the name and address of the objector and facts
show indicating that one or more of the criteria in 85-2-311 are not met.
(2) For an application for a change in appropriation rights, the objection must state the name and address of the objector
tending to show indicating that one or more of the criteria in 85-2-402 are not met.
(3) A person has standing to file an objection under this section if the property, water rights, or interests of the objector would be adversely affected by the proposed appropriation.
(4) For an application for a reservation of water, the objection must state the name and address of the objector and facts
tending to show indicating that one or more of the criteria in 85-2-316 are not met.
(5) An objector to an application under this chapter shall
timely file a correct and complete objection on a form
prescribed by the department within the time period stated on the public notice associated with the application. The
department shall notify the objector of any defects in an objection. An objection not corrected or completed within 15 days
from the date of notification of the defects is terminated.
(6) An objection is valid if the objector has standing pursuant to subsection (3), has filed a correct and complete objection within the prescribed time period, and has stated the applicable information required under subsection (1), (2), or (4)."
Section 3. Section 85-2-309, MCA, is amended to read:
"85-2-309. Hearings on objections -- jurisdiction. (1) If the department determines that an objection to an application
for a permit or change approval under 85-2-402 states a valid objection, it shall hold a
public contested case hearing,
pursuant to Title 2, chapter 4, part 6, on the objection within 60 days from the date set by the department for the filing of
objections, after serving notice of the hearing by certified first-class mail upon the applicant and the objector, unless the
department certifies an issue to the district court for determination by a water judge under subsection (2). The department
may consolidate hearings if more than one objection is filed to an application. The department shall file in its records proof
of the service by affidavit of the department.
(2) (a) At any time prior to commencement or before the conclusion of a hearing as provided in subsection (1), the department may in its discretion certify to the district court all factual and legal issues involving the adjudication or determination of the water rights at issue in the hearing, including but not limited to issues of abandonment, quantification, or relative priority dates. Certified controversies must be given priority by a water judge over all other adjudication matters.
(b) If the department fails to certify an issue as provided in this section after a timely request by a party to the hearing, the department shall include its denial to certify as part of the record of the hearing.
(c) Upon determination of the issues certified to it by the department, the court shall remand the matter to the department for further processing of the application under this chapter.
(3) Subsection (2) does not apply in the case of a matter considered at a hearing under this section pursuant to 85-2-316 or 85-2-322."
Section 4. Section 85-2-310, MCA, is amended to read:
"85-2-310. Action on application. (1) The department shall grant, deny, or condition an application for a permit in
whole or in part within 120 days after the last date of publication of the notice of application if no objections have been
received and within 180 days if a hearing is held or objections have been received. However, in either case the time may be
extended upon agreement of the applicant, or, in those cases where an environmental impact statement must be prepared or
in other extraordinary cases, not more than 60 days upon order of the department. If the department orders the time
extended, it shall serve a notice of the extension and the reasons
therefor for the extension by certified first-class mail upon
the applicant and each person who has filed an objection as provided by 85-2-308.
(2) However, an application may not be approved in a modified form or upon terms, conditions, or limitations specified
by the department or denied, unless the applicant is first granted an opportunity to be heard. If no objection is filed against
the application but the department is of the opinion that the application should be approved in a modified form or upon
terms, conditions, or limitations specified by it or that the application should be denied, the department shall prepare a
statement of its opinion and
the its reasons therefor for the opinion. The department shall serve a statement of its opinion by
certified first-class mail upon the applicant, together with a notice that the applicant may obtain a hearing by filing a request
therefor within 30 days after the notice is mailed. The notice shall must further state that the application will be modified in
a specified manner or denied, unless a hearing is requested.
(3) The department may cease action upon an application for a permit and return it to the applicant when it finds that the
application is not in good faith or does not show a bona fide intent to appropriate water for a beneficial use. An application
any either of these reasons shall must be accompanied by a statement of the reasons for which it was returned,
and there shall be no is not a right to a priority date based upon the filing of the application. Returning an application
pursuant to this subsection shall be deemed is a final decision of the department.
(4) For all applications filed after July 1, 1973, the department shall find that an application is not in good faith or does not show a bona fide intent to appropriate water for a beneficial use if:
(a) an application is not corrected and completed as required by 85-2-302;
(b) the appropriate filing fee is not paid;
(c) the application does not document:
(i) a beneficial use of water;
(ii) the proposed place of use of all water applied for;
(iii) for an appropriation of 4,000 acre-feet a year or more and 5.5 cubic feet
per a second or more, a detailed project
plan describing when and how much water will be put to a beneficial use. The project plan must include a reasonable time
line for the completion of the project and the actual application of the water to a beneficial use.
(iv) for appropriations not covered in subsection (4)(c)(iii), a general project plan stating when and how much water will be put to a beneficial use; and
(v) if the water applied for is to be appropriated above that which will be used solely by the applicant or if it will be marketed by the applicant to other users, information detailing:
(A) each person who will use the water and the amount of water each person will use;
(B) the proposed place of use of all water by each person;
(C) the nature of the relationship between the applicant and each person using the water; and
(D) each firm contractual agreement for the specified amount of water for each person using the water; or
(d) the appropriate environmental impact statement fee, if any, is not paid as required by 85-2-124."
Section 5. Section 85-2-312, MCA, is amended to read:
"85-2-312. Terms of permit. (1) The department may issue a permit for less than the amount of water requested, but
no case may it not issue a permit for more water than is requested or than can be beneficially used without waste for the
purpose stated in the application. The department may require modification of plans and specifications for the appropriation
or related diversion or construction. The department may issue a permit subject to terms, conditions, restrictions, and
limitations it considers necessary to satisfy the criteria listed in 85-2-311, and it may issue temporary or seasonal permits. A
permit shall must be issued subject to existing rights and any final determination of those rights made under this chapter.
(2) The department shall specify in the permit or in any authorized extension of time provided in subsection (3), the time limits for commencement of the appropriation works, completion of construction, and actual application of the water to the proposed beneficial use. In fixing those time limits, the department shall consider the cost and magnitude of the project, the engineering and physical features to be encountered, and, on projects designed for gradual development and gradually increased use of water, the time reasonably necessary for that gradual development and increased use. The department shall issue the permit or authorized extension of time subject to the terms, conditions, restrictions, and limitations it considers necessary to ensure that the work on the appropriation is commenced, conducted, and completed and that the water is actually applied in a timely manner to the beneficial use specified in the permit.
(3) The department shall by rule or by condition to a permit establish a process allowing for the extension of the time
limits specified in the permit for commencement of the appropriation works, completion of construction, and actual
application of water to the proposed beneficial use.
The department may not accept a request for extension of time that is
filed less than 30 days prior to the time limit specified in the permit. If a permit is not completed within the time limit
specified or within an extension of that time limit, the permit is void upon lapse of the time limit.
(4) The original of the permit
shall must be sent to the permittee, and a copy shall must be kept in the office of the
department in Helena."
Section 6. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
Section 7. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell band of Chippewa.
Section 8. Effective date. [This act] is effective on passage and approval.
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Latest Version of HB 95 (HB0095.ENR)
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