Water - Montana's
Treasure
n analysis of water management in IVIontana
A report to the 61 st Montana Legislature
by the Water Policy Interim Committee
I Prepared by Joe Kolman
Montana State Library
3 0864 1005 8646 3
Water - Montana's Treasure
An analysis of water management in Montana
A Report to the 61 st Legislature
September 2008
House Bill No. 304 Study
Water Policy Interim Committee
Water Policy Interim Committee Members - 2007/2008
Sen. Jim Elliott, Chair
Sen. Larry Jent
Sen. Terry Murphy
Sen. Gary Perry, Vice Chair
Rep. Scott Boggio
Rep. Jill Cohenour
Rep. Bill McChesney
Rep. Walter McNutt
Prior members
Sen. Greg Lind
Sen. Bill Tash
Rep. Edward Hilbert
Water Policy Interim Committee Staff
Joe Kolman, Resource Policy Analyst
Krista Lee Evans, Resource Policy Analyst
Greg Petesch, Attorney
Cynthia Peterson, EQC Secretary
Water Policy Interim Committee
State Capitol
P.O. Box 201704
Helena, MT 59620-1704
(406) 444-3742
This report is a summary of the work of the Water
Policy Interim Committee. Volumes of information were
presented to and reviewed by committee members.
Some of that information is referenced here or
included in the appendixes. All of the information,
including written minutes and, in some cases, audio
minutes, is available on the WPIC web site:
http://leg.mt.gov/water
Digitized by the Internet Archive
in 2011 with funding from
IVIontana State Library
http://www.archive.org/details/watermontanastre2008kolm
Table of Contents
Introduction
WPIC Findings and Recommendations
Montana Water Management Framework
Montana Water Law Basics
Legal Issues in Closed Basins
Water Management: Other States
New Law; New Terms
Water Supply and Sewage Disposal
Water Right Enforcement
Water Marketing and Reallocation
On the Road
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Appendices
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Irrigation
Appendix I
Appendix J
WPIC Study Tasks and Responses
House Bill 831 from the 2007 Legislature
Flow chart outlining House Bill 831 permitting process
Who has jurisdiction over Montana's water? Enforcement options
Costs and Uses of Community Wells vs. Single Family Wells, DEQ
Update on Evaluations Significance of Exempt Wells, Nicklin
Effects of Exempt Wells on Existing Water Rights, DNRC
Potential Consequences of Converting From Flood to Sprinkler
Public comment received on draft report and legislation
Proposed legislation
Introduction
It is easy to lend mythical status to
Montana's waters. From the Bitterroot to
the Yellowstone and all the water in
between, Montana's rivers, creeks, lakes,
and man-made reservoirs play a
significant role in the state's history. We
are as connected to the water that cuts
between our mountains and through our
prairies as we ore to the land itself.
Because of that relationship, it is difficult
to overstate the importance of water to
the Treasure State. We depend on water
for irrigating crops, quenching the thirst of
residents and livestock, enabling industry,
generating power, preserving fish and
wildlife habitat, and providing a myriad
of recreational opportunities.
Water — mostly its quantity and
quality — is a biennial topic of debate
among legislators. But it has been more
than a decade since the Legislature
convened an interim committee to
specifically examine water policy.
The creation of the Water Policy Interim
Committee was the result of several things
coming to a head between 2005 and
2007.
In 2005, the Legislature approved a
measure to rejuvenate water rights
adjudication — the judicial process of
decreeing the quantity and priority date
of existing water rights in a basin.' That
historic usage is vital for Montana to
defend its use in the face of demands
from other states and Canada. Final
decrees also are key to settling disputes
between Montana water users.
F
In 2005, the Legislature approved
a measure to rejuvenate water
rights adjudication— the judicial
process of decreeing the quantity
and priority date of existing water
rights in a basin.
In 2006, the state Supreme Court ruled
that the use of ground water wells in the
Smith River Basin was affecting senior
water rights holders on the river, and the
system of permitting used by the state
failed to recognize the connection of
ground water and surface water. To
address that situation, the 2007
' As passed in 2005, House Bill No. 22
imposed a fee on every water right in the state.
Water right claims as well as provisional permits
and certificates granted in the new
appropriations process were required to pay the
fee until the statute terminated in 201 5. However,
the 2007 Legislature repealed the fee provisions
of HB22 and transferred $25 million in general
fund revenue to the water adjudication account to
replace fee revenue and keep the process on the
201 5 timeline.
Wafer — Monfana's Treasure
1
Legislature passed House Bill No. 831
regulating ground water appropriations in
closed basins, those areas deemed off
limits to some new water use permits
because of overappropriation. In general,
the new law requires mitigation for a new
use of ground water that adversely
affects a senior water right holder.
WPIC tour of the Gallatin Valley.
Photo by Cynthia Peterson.
These circumstances set the stage for the
passage of House Bill No. 304, which
created the Water Policy Interim
Committee (WPIC). The committee was
charged with studying a wide range of
water issues in order to guide Montana's
water policy toward ensuring fair and
reasonable use of Montana's water
resources as demands on water increase
while supplies remain the same or
decrease.
The tasks assigned to the committee and a
brief summary of the WPIC responses are
included in Appendix A.
The committee met 1 0 times over the
interim and ventured into closed basins to
hear comments from some of the
Montanans most affected by water
management policies. In addition to
Helena meetings, the WPIC held meetings
in Dillon, Bozeman, Thompson Falls,
Choteau, and Hamilton.
Wafer — Montana's Treasure
WPIC Findings and Recommendations
_^HSBeaH5*»5ii>L
Introduction
The findings below relate to the study tasks assigned to the Water Policy Interim
Committee as well as other issues examined by the committee.
Water Policy
1. Finding: The continued and expanded study of ground water resources is vital to
shaping statewide policy as well as providing the data necessary for local decisions
regarding water.
A. Recommendation: Support appropriation of $4.2 million to the Montana Bureau of
Mines and Geology (MBMG) to produce hydrogeologic models for subbasins.
2. Finding: Water is one of Montana's most important natural resources and is vital to
economic development, agriculture, recreation, wildlife habitat, and the high quality of life
experienced by residents and visitors.
3. Finding: Water policy is a complex subject not easily understood in a short time.
4. Finding: The state water plan is outdated and does not reflect recent court decisions
and legislation. There is a need to set out a progressive program for the conservation,
development, and utilization of the state's water resources and propose the most effective
means by which these water resources may be applied for the benefit of the people, with
due consideration of alternative uses and combinations of uses.
5. Finding: The Legislature is responsible to the citizens of Montana to provide continuous
and comprehensive water planning. The Legislature should play a key role in crafting
Montana water policy and overseeing the implementation of those policies.
A. Recommendation: Make the WPIC a permanent interim committee.
General Water Quantity & Quality
1. Finding: The Controlled Ground Water Area (CGWA) statutes need revision.
2. Finding: The petitions for CGWA could help guide MBMG studies.
3. Finding: To comply with the federal Clean Water Act, the Montana Department of
Transportation (MDT) must obtain federal wetland credits when a highway project affects
an existing wetland.
Wafer — Montana's Treasure 3
4. Finding: A clear mechanism is needed for MDT to establish a water right to protect
wetlands.
A. Recommendation: Create a certificate of water right for aquatic resource activities
carried out by the MDT in compliance with and as required by the federal Clean Water
Act.
5. Finding: Water quality is a concern in closed basins as well as statewide.
6. Finding: Current law requires that aquifer recharge plans utilizing sewage must obtain
discharge permits.
A. Recommendation: Require discharge permits for mitigation and aquifer recharge plan,
if necessary.
7. Finding: There is a need for a statewide hydrogeologic study. Such a study could
provide baseline data for local studies, such as the Ruby Valley analysis, that would
provide planning and decisionmaking information.
A. Recommendation: Support appropriation of $4.2 million to the Montana Bureau of
Mines and Geology to produce hydrogeologic models for subbasins.
Government Issues
1. Finding: The Department of Natural Resources and Conservation (DNRC) averages 245
days to issue a water right, based on a 6-year average.
2. Finding: Permit applications in closed basins generally take the most time to evaluate.
The passage of House Bill No. 831 made evaluating those applications more complex.
3. Finding: Permitting in closed basins as well as statewide should be easier to understand
and more timely.
A. Recommendation: Require notice of receipt of applications, allow DNRC, the applicant,
and affected parties to meet informally on a permit application, require a preliminary
determination and set timelines.
4. Finding: Subdivisions have 60 days to be approved by the Department of
Environmental Quality (DEQ) if there are no denials. Over the last 5 years, 25 percent
were approved in 60 days, 28 percent within 1 20 days and 1 8 percent within 1 80 days.
5. Finding: Both DEQ and DNRC express a desire and willingness to work with each other.
A. Recommendation: The DEQ and the DNRC should continue to coordinate efforts
regarding water issues.
4 Wafer — Montana's Treasure
6. Finding: Not all exempt wells are reported to DNRC. There appears to be discrepancy
between the number of wells reported to DNRC and the MBMG and the number of
subdivision lots with exempt wells recorded by the DEQ.
7. Finding: The DNRC is coordinating with other agencies to improve exempt well tracking
and will start requiring more information on the notice of completion, including flow rate
and volume.
A. Recommendation: The agencies should continue worl<ing to increase the accuracy of
exempt well reporting.
Water Use Enforcement
1 . Finding: The DNRC does not have a system in place to enforce statutory limits on
exempt wells.
2. Finding: While the DNRC does have statutory authority to investigate illegal water
use — and does exercise that authority — there are concerns that senior water rights are not
being protected.
3. Finding: There are several options available to water users to resolve conflicts,
including mediation, filing for court action, and, in some areas, petitioning for a water
commissioner.
4. Finding: The DNRC and county attorneys have limited resources to investigate and
prosecute illegal water use.
5. Finding: As stated in the Constitution, the waters of Montana belong to the state for the
use of its people. The use of those waters is a private property right.
A. Recommendation: When requested by a district court and approved by the chief
water judge, water masters may serve as special masters in certain water disputes.
B. Recommendation: When enforcing water law, priority should be given to protecting
the rights of senior users. The DNRC may attempt to obtain voluntary compliance, but the
Attorney General and the county attorney do not need to attempt to obtain compliance
and they may act independent of a request by the DNRC.
6. Finding: The statewide adjudication of water rights with enforceable decrees is a major
component of water right enforcement that will allow water commissioners to distribute
water by priority date.
7. Finding: New requirements for enforcement of water rights must be accompanied by
adequate resources and should not take precedence over the continued adjudication of
water rights.
Water — Montana's Treasure
Water Supply & Sewage Disposal
1. Finding: Current law does not require a permit for a well with a maximum
appropriation of 35 gallons per minute (GPM) or less, not to exceed 10 acre-feet a year,
except that a combined appropriation from the same source from two or more wells or
developed springs exceeding this limitation requires a permit. As defined by
administrative rule, a combined appropriation is "an appropriation of water from the
same source aquifer by two or more groundwater developments, that are physically
manifold into the same system."
2. Finding: The use of individual water wells exempt from permitting and individual septic
systems is appropriate in many parts of Montana and the use of public water and sewer
systems is not always feasible, practical, or affordable.
3. Finding: Statewide, the DNRC estimates that exempt wells, including stock and domestic
wells, represent less than 5 percent of total consumption.
4. Finding: In some areas, particularly those in closed basins that ore experiencing
population growth, there are concerns about the effect of exempt wells on water quantity
and the effect of individual septic systems on water quality.
5. Finding: DNRC records show 38,372 exempt well certificates since 1 991 when the 35
gpm, 1 0 acre-feet a year limit was implemented.
6. Finding: DNRC estimates that by 2020, there could be between 32,000 and 78,000
additional exempt wells.
7. Finding: Not all exempt wells are filed with the DNRC. For those that are filed, the
DNRC does not meter whether or not the wells are exceeding the allowed rate or volume.
8. Finding: DNRC records show that there are thousands of purposes listed for wells. Some
of the most common include domestic (75%), stock watering (32%), lawn and garden
(24%), irrigation (6.5%), commercial (2.6%), multiple domestic (1.9%), and fish, waterfowl
wildlife, recreation-related purposes (1.7%).
9. Finding: Domestic and multiple domestic purposes automatically include one-quarter
acre of lawn irrigation per household. Therefore, when the purpose "lawn and garden or
irrigation" appears on the certificate, it is for more than one-quarter acre of irrigated
area.
10. Finding: For DEQ subdivision review, the average in-house diversion is about .22
acre-feet per year and much of that is nonconsumptive. Based on an 1 8-week irrigation
season, a quarter-acre lawn takes .55 acre-feet annually.
1 1. Finding: According to the DNRC, the limiting factor to irrigation from an exempt well
would probably be the annual volume, not the rate. It may be possible to irrigate 4 acres
with an exempt well; enough to feed three horses.
1 2. Finding: Exempt wells in Colorado are 1 5 gpm for up to 1 acre of irrigation; Idaho is
1 8 gpm for 1/2 acre; North Dakota 7.6 gpm up to 1 2.5 acre-feet a year for 1 acre; and
Wyoming is 25 gpm for up to 1 acre.
Wafer — Montana's Treasure
13. Finding: The water right permitting process for a public system may take longer and
be more expensive for a subdivision than using exempt wells.
14. Finding: There is a need to address public health issues in areas where there is an
increasing density of single wells and septic systems.
15. Finding: In some areas of Montana, public water systems and public sewer systems
are preferable to individual water wells and septic systems. But installing public water and
sewer systems at the time of development may represent a significant cost to the
developer, which is passed on to the homeowner.
16. Finding: While individual water wells may cost less per lot initially, over time a public
water system may result in less cost to the homeowner.
17. Finding: The WPIC studied several issues related to exempt wells and septic systems
and sought input from the development community as well as the local governments, DEQ,
DNRC and the Department of Fish, Wildlife, and Parks (FWP). The committee finds that
incentives are needed to encourage public water and sewer systems.
18. Finding: There are several existing programs that provide grants and loons to water
and wastewater projects; however, most are aimed at repairing existing systems.
19. Finding: The INTERCAP Loan Program is available for water and sewer projects. The
variable-rate loan must be repaid within 1 5 years or the useful life of the project,
whichever is less. Over the last decade the average interest rate has been 4.1%.
20. Finding: The Renewable Resource Loan Program has historically provided loans for
municipal water and wastewater projects. Loans may be made to improve water use
efficiency and water-related projects that improve water quality. Rates are set by the
Legislature and recently have been between 4% and 5%. Although it is possible that
many projects could qualify for a loan under this program, a revision to the statute would
clarify that extension of existing water and sewer systems, as well as new water and
sewer systems, would qualify for loans.
21. Finding: A governing body implementing the provisions of section 76-3-504 (l)(g)(iii),
MCA, may, subject to the requirements of section 76-3- 511, MCA, require public water
systems, public sewer systems, or both.
A. Recommendation: Local government subdivision regulations should include a
requirement that when a residential subdivision creates 30 or more lots with an average
lot size of less than 3 acres, a subdivider must provide public water and sewer systems
unless an alternative is approved by the local government.
B. Recommendation: These issues are of significant importance to Montanans and should
be addressed during upcoming legislative sessions and interims.
Water — Montana's Treasure
Montana Water Management Framework
■
Similar to other western states, Montana
water law is based on the prior
appropriation doctrine. The prior
appropriation doctrine, which means first
in time, first in right, evolved as western
lands were developed through mining and
agriculture. The eastern United States is
based on a riparian doctrine, which
provides that property owners along the
banks of a surface water source have the
right to use the water that runs through or
is pooled on their property. Those that
aren't located along a surface water
body are not entitled to water.
The riparian doctrine didn't work well in
the arid western United States and the
prior appropriation doctrine emerged as
the predominant method of appropriating
water. Settlers needed access to water for
livestock, farming, and mining operations
that were often not located on a surface
water body, and they moved the water to
where they needed it. Sometimes the
movement of water was extensive and it is
probably safe to say that none was more
extensive than the federal irrigation
projects.
In Montana, a water user had only to put
the water to beneficial use to have a
water right. There was no requirement
that the use of the water be filed.
However, a water user could file the
water use in the county. Some water users
filed and some water users did not. Those
that put water to beneficial use first have
the most "senior" water rights and are
therefore entitled to their share of the
water first. Water is shared among users
on a water source based on priority date
or "first in time, first in right".
The more recent or "junior" a water right,
the less likely the water user will receive
the water in times of low or limited water
supplies. A junior water right holder
receives their water only if all of the
senior water rights have been fulfilled.
Water is shared among users or) a
water source based on priority
date or "first in time, first in right".
mm.
.L^iJlL .ILi .X-LWU-IL .-1-
The Montana Constitution
In 1 972, the Constitutional Convention
recognized the importance of Montana's
water to the future of the state and its
people. The Constitution made it clear that
all waters of the state are the property of
the state for the use of its people. Article
IX, section 3, of the Montana Constitution
provides:
"Section 3. Water rights. (1 )
All existing rights to the use
of any waters for any useful
or beneficial purpose are
8
Wafer — Montana's Treasure
hereby recognized and
confirmed.
(2) The use of all
water that is now or may
hereafter be appropriated
for sale, rent, distribution, or
other beneficial use, the
right of way over the lands
of others for all ditches,
drains, flumes, canals, and
aqueducts necessarily used
in connection therewith, and
the sites for reservoirs
necessary for collecting and
storing water shall be held
to be a public use.
(3) All surface,
underground, flood, and
atmospheric waters within
the boundaries of the state
are the property of the
state for the use of its
people and are subject to
appropriation for beneficial
uses as provided by low.
(4) The legislature
shall provide for the
administration, control, and
regulation of water rights
and shall establish a system
of centralized records, in
addition to the present
system of local records."
Because not all water use was required to
be filed with the state or with the county,
there was no way to quantify the water
rights that are guaranteed through
subsection (1 ) of Article IX, section 3.
Policymakers knew these rights were
recognized and confirmed; they just didn't
know who had the right to use the water,
where the water was put to beneficial use,
how much water was used, when the
water was used, and other important
elements of a water right. The Legislature
recognized this problem and initiated a
statewide water adjudication to quantify
all existing water rights in the state of
Montana that were in effect prior to the
passage of the new Constitution.^
Subsection (4) of Article IX, section 3
required the legislature to provide for the
administration, control, and regulation of
water rights and to establish a system of
centralized records, in addition to the
present system of local records.
The Department of Natural Resources
and Conservation
Water in Montana is managed by the
Department of Natural Resources and
Conservation (DNRC). The water rights
process in the Department is managed by
the Water Rights Bureau and is split into
two program areas — the new
appropriations program and the water
adjudication program.
^ A more detailed description of the
statewide adjudication and ancillary issues can be
found in the Legislative Environmental Policy
Office Publication "Montana's Water - Where is
it? Who can use it? Who decides?" (2004)
(hnp://leg.mt.gov/css/publications/environmental
/default.asp).
V/aier — Montana's Treasure
The water rights process in the
DNRC is managed by the Water
Rights Bureau and is split into two
program areas— the new
appropriations program and the
water adjudication program.
The new appropriations program
addresses applications for state-based
water rights or "new" uses of water (after
the 1 972 Constitution) and "changes in
appropriation rights", which involve
changing an element of an existing water
right. The adjudication program is
responsible for examining claims that
were filed as a part of the statewide
water adjudication process, providing
assistance to the Montana Water Court,
maintaining the centralized water right
records, and updating water right
ownership records.
The DNRC also has other water
management responsibilities. The other
water bureaus that are within the Water
Resources Division are the Water
Management, Water Operations, and
Water Projects Bureaus.
The Water Management Bureau develops
and analyzes policies on statewide water
resource issues, represents and protects
Montana's water interests in regional and
international river basins, and assists local
watershed groups and water users to
solve water management problems by
providing technical support to other DNRC
bureaus, the Reserved Water Rights
Compact Commission, and other
governmental entities.
The Water Operations Bureau administers
the following programs:
■ Dam safety — Ensures that the
approximately 90 dams statewide
that have the potential to cause
loss of life downstream if they fail
are properly constructed,
maintained, and operated.
■ Flood plain management — Assists
the 1 10 locally administered flood
plain management programs
throughout Montana in reducing the
loss of life and structural property
through wise flood plain
development and in reducing the
loss of functional flood plains by
reducing the amount of erosion of
stream banks due to unwise flood
plain development throughout
Montana.
■ Water measurement program —
Provides technical information and
water measurement requirements
regarding diversion from streams
where chronic dewatering has
caused water use disputes or
severe dewatering impacts.
■ Board of Water Well Contractors
— BWWC is responsible for
licensing water well drillers and
contractors and enforcing water
well construction standards.
The Water Projects Bureau administers the
operation and maintenance of state-
owned water projects. These include 22
10
Water — Montana's Treasure
dams, with approximately 250 miles of
irrigation canals and one 10 MW
hydropower facility. The bureau is also
responsible for dam safety of 1 0 dams
owned by the Department of Fish,
Wildlife, and Parks. Most of the DNRC
projects are operated by local water
users associations that use the water for
irrigation. Many of the projects provide
secondary recreational benefits including
camping, fishing, and boating.
In addition to the DNRC there are two
other entities that are intimately involved
with water rights and water management
in the state of Montana.
The Montana Water Court
The Montana Water Court was created in
1979 and is responsible for hearing all
cases regarding water use in Montana.
The Chief Water Judge serves a 4-year
term and is appointed by the Chief Justice
of the Supreme Court. In addition to
hearing cases related to water use, the
Water Court is responsible for issuing
decrees in the statewide water
adjudication. The Water Court has
adopted both procedural rules and claims
examination rules that must be followed
by DNRC when the department is
examining claims filed pursuant to a
Montana Supreme Court order regarding
the statewide water adjudication.
There are four water divisions in Montana
that were created by section 3-7-101,
MCA, to adjudicate existing water rights
and to conduct hearings in cases certified
under section 85-2-309, MCA. The water
divisions boundaries are established as
defined in section 3-7-102, MCA. Each
water division is presided over by a
water judge. These water judges are
district court judges who are also
designated as water judges. Because of
extremely large workloads faced by
district court judges, most certified
hearings and other water-related
controversies are heard by the Water
Court rather than by the water division
water judges. However, based on the
accelerated pace of the statewide
adjudication process, there is a possibility
that this practice may not be able to
continue because of the Water Court
workload related to decree issuance and
addressing all issue remarks prior to
issuance of a final decree.
In addition to hearing cases related
to water use, the Water Court is
responsible for issuing decrees in
I the statewide water adjudication.
The Reserved Water Rights Compact
Commission
The Reserved Water Rights Compact
Commission was created in 1 979 by the
same legislation that created the Water
Court. At the time, the federal government
was involved in litigation on behalf of the
seven reservations for their federal
Water - Montana's Treasure
11
reserved water rights. The Commission
was created in response to uncertainty
about how, and in what court, the
adjudication would proceed.
The Commission is a division of DNRC and
is administratively attached to the
Department for budget purposes. The
Commission's only mandate is to negotiate
an equitable apportionment and division
of the waters of the state between the
tribes that are claiming those waters (as
well as nontribal federal users) and
nontribal state water users. The
Commission is not separate from the
adjudication process but is integral to it,
and the outcome of the entire statewide
adjudication process is critical to the work
of the Commission.
The Compact Commission's only
mandate is to negotiate an
equitable apportionment and
division of the waters of the state
between the tribes that are
claiming those waters (as well as
nontribal federal users) and
nontribal state water users.
Montana Is the only state with a Compact
Commission. Some other western states
are involved in negotiation with the tribes
and the federal government through their
attorneys general or natural resources
departments. Montana's process has been
successful because negotiations are
conducted in the context of litigation — if a
tribe or federal entity chooses not to
negotiate, then its reserved water rights
will be litigated by the Attorney General,
on behalf of the state, in Montana's
Water Court.
The procedures the Commission follows
are clearly spelled out in statute. The first
step is to negotiate an initial settlement
between the three involved parties — the
state, the claimant of the reserved water
right, and. If the claimant is an Indian
tribe, the federal government as trustee
for the tribe. Once the initial settlement is
reached, and It can take many years, the
compact is then ratified by the Legislature
and becomes a part of the Montana
statutes. Water compacts involving tribal
settlements then go to Congress because
of necessary authorizations and
appropriations for projects or
Improvements. The final step in the process
occurs when the compact is filed with the
Water Court and Is published as a decree
in that water basin. At that time, the 6-
month objection period begins.
The Water Court has statutory authority
to approve or disapprove a compact but
not to amend one, and approval is based
on a consent decree standard. A consent
decree standard is one where all parties
consent to the decree and the decree
conforms to applicable law. To date, the
Legislature has approved five tribal and
several federal water compacts. The
Northern Cheyenne and the Rocky Boy's
Compacts have gone through the entire
12
Wafer — Montana's Treasure
process, and the Fort Peck Compact is in
front of Congress because of concerns of
downstream states over water marketing
provisions, although other provisions are
operational and have been approved by
the Interior and Justice Departments. The
Crow and Fort Belknap Compacts hove
been approved by the Legislature but are
still waiting for federal approval and
necessary legislation. The necessary
federal legislation appears to be moving
forward, but the outcome is unknown at
this time. The Blackfeet Compact, which is
still under negotiation, will be of critical
importance because of the St. Mary
Project located at the headwaters of the
Milk River. The water moving through the
St. Mary Project is so crucial to the entire
Milk River Basin that there is language
included in the Fort Belknap Compact that
if the St. Mary Project is not maintained to
current standards, then the entire Fort
Belknap Compact is void. The
Confederated Sallsh/Kootenai Compact is
also still under negotiation and is of a high
priority because of the permitting freeze
in place on the Flathead Reservation.
The Tribes brought water rights cases
before the Montana Supreme Court and
won, and the Supreme Court placed a
moratorium on new state water rights
permits until the water rights are
quantified.
A federal reserved water right is created
when the federal government reserves
land for an Indian tribe, thereby impliedly
reserving enough water to fulfill the
purposes of the reservation. The federal
reserved water rights doctrine was
decided in 1 908, but it wasn't until the
1 960s that questions arose as to what
that means in terms of quantity. A federal
reserved water right does not lapse from
lack of utilization.
Wafer — Montana's Treasure
13
- *^«SK' wv«*" .-^i^v
Montana Water Law Basics
iiiriiiiiii
In Montana, a person must have a water right prior to appropriating water and putting
the water to beneficial use, unless the use falls under exemptions provided for In section
85-2-306, MCA:
■ A permit is not required before constructing an impoundment or pit and
appropriating water for use by livestock if:
• the maximum capacity of the impoundment or pit is less than 1 5 acre-feet;
• the appropriation is less than 30 acre-feet a year;
• the appropriation is from a source other than a perennial flowing stream;
and
• the impoundment or pit is to be constructed on and will be accessible to a
parcel of land that is owned or under the control of the applicant and that is
40 acres or larger.
■ 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 1 0
acre-feet a year, except that a combined appropriation from the same source from
two or more wells or developed springs exceeding this limitation requires a permit.
(A notice of completion must be filed with DNRC.)
■ An appropriator of ground water by means of a well or developed spring first put
to beneficial use between January 1 , 1 962, and July 1 , 1 973, who did not file a
notice of completion, as required by laws in force prior to April 14, 1 981, with the
county clerk and recorder is now required to file a notice of completion.
Water rights are required for both
surface water appropriations and ground
water appropriations. Montana law does
not provide for conjunctive management
or enforcement of surface water and
ground water rights.
However, after the decision in Montana
Trout Unlimited v. DNRC, 2006 MT 72,
that was issued in 2006 and enactment of
House Bill No. 831 in the 2007 session,
the connectivity between surface water
and ground water in closed basins must
be considered and plays a role in
determining whether or not an application
for a new ground water permit can be
approved.
Closed basins are closed to certain new
water appropriations. Five of the closed
14
Water — Montana's Treasure
basins were closed by the Legislature in
statute. There are also multiple subbasins
and basins that have been closed
administratively pursuant to section 85-2-
31 9, MCA, which can be found in the
Administrative Rules of Montana under
36.1 2.1 01 0, ARM, through 36.1 2.1 021,
ARM.
With the passage of House Bill No. 831,
new ground water appropriations can be
made in closed basins if the applicant for
the water right complies with more
stringent application requirements that
include a hydrogeologic assessment and,
if necessary, a mitigation or aquifer
recharge plan and ensures that a "senior"
or prior surface water appropriator will
not be adversely affected by the new
water use.
The connectivity between surface
water and ground water in closed
basins must be considered and
plays a role in determining
whether or not an application for a
new ground water permit can be
approved.
Applying for a new ground water permit
in a closed basin is complex due in port to
new statutes, case law, and pending
litigation on multiple issues. In general, it is
more difficult to obtain on appropriation
in a closed basin than in other basins.
House Bill No. 831 is included in
Appendix B. A flow chart outlining the
closed basin ground water appropriation
process is included in Appendix C.
Water — Monfana's Treasure
15
Legal Issues in Closed Basins
Two court cases involving exempt uses in
closed basins contributed to the changes
passed in House Bill No. 831 by the 2007
Legislature.
Closed basins in Montana date back to
the administration and statewide
adjudication of water rights for
determining the priority of post- 1973
claims to water. It became clear that there
were significantly more adjudicated and
legitimate nonadjudicated claims to water
than there was available water. The
Legislature responded to this fact by
enacting a moratorium on new
applications in the overappropriated
basins.
jj During the statewide adjudication,
it became clear that there were
significantly more adjudicated and
legitimate nonadjudicated claims
to water than there was available
water.
The Legislature enacted basin closures for
the Teton River basin, sections 85-2-329
and 85-2-330, MCA, the Upper Clark
Fork River basin, sections 85-2-335
through 85-2-338, MCA, the Jefferson
River basin and Madison River basin,
sections 85-2-340 and 85-2-341, MCA,
and the Upper Missouri River basin.
sections 85-2-342 and 85-2-343, MCA,
and a temporary subbasin closure for
Bitterroot River subbasins, section
85-2-344, MCA. In addition, section
85-2-31 9, MCA, provides that in a highly
appropriated basin or subbasin, the
Department of Natural Resources and
Conservation (DNRC) may by rule reject
permit applications or modify or condition
permits already issued.
With certain statutory exceptions, each
basin closure statute provides that the
DNRC may not process or grant an
application for a permit to appropriate
water within the closed basin. New ground
water applications represent one of the
statutory exceptions. The Legislature
recognized, however, that some ground
water bears a close relationship with
surface water and that allowing
unrestricted appropriations of ground
water would defeat the purpose of the
basin closure laws.
Prior to the passage of House Bill No.
831, each basin closure law, with the
exception of the Upper Clark Fork River
basin, defined ground water in a way
that forbid the processing of new
applications for ground water that is
16
Wafer — Monfana's Treasure
"immediately or directly connected" to the
basin's surface water.''
in tiie Upper Clark Fork River basin, an
application for a ground water permit
had to be accompanied by a report
prepared by a professional engineer or
hydrologist addressing the hydrologic
connection between the source of the
ground water and surface water. The
DNRC could not issue a permit to
appropriate ground water in the Upper
Clark Fork River basin unless the applicant
proved by a preponderance of evidence,
in addition to the criteria of section
85-2-3 1 1 , MCA, that the source of the
ground water was not a part of or
substantially or directly connected to
surface water.
The DNRC could issue a permit to
appropriate ground water if the
application included an augmentation
plan and if the applicant proved by a
preponderance of evidence, in addition to
the criteria of section 85-2-31 1, MCA,
that the augmentation plan provided
sufficient augmentation water in amount,
time, and location to replace depletions to
senior water rights.
The legislative history for the basin closure
statutes provides little insight with regard
to the exceptions to the basin closure
statutes and indicates that most of the
concerns giving rise to the bills related to
surface water.
The Connection of Ground Water and
Surface Water
A dispute arose over applications for new
ground water permits in the Smith River
drainage, part of the Upper Missouri
River closed basin. The DNRC prepared a
supplemental environmental assessment
for the Smith River
basin in February
of 2003 and noted
that the Smith River
and its principal
tributaries are
hydrologically
connected to
ground water.
The supplemental
environmental
assessment further Smith River State Park.
noted two ways Montana Fish, Wildlife
, , and Parks photo,
that ground water
pumping affects surface stream flows.
" In House Bill No. 83 1 , see revisions to
sections 85-2-329(2), 85-2-340(2), and
85-2-342(2), MCA.
First, pumping may intercept ground
water that otherwise would have entered
the stream, thereby causing a reduction in
surface flows. This phenomenon is called
the prestream capture of tributary ground
water.
Second, ground water pumping may pull
surface water from the stream toward the
Wafer — Monfana's Treasure
17
well. The DNRC refers to this pulling as
induced infiltration. The DNRC's
hydrogeologist reported that a stream
takes longer to recover from prestream
capture of its tributary ground water than
from depletion through induced
infiltration.
Under the basin closure law, the DNRC
had to determine whether an application
for ground water included ground water
that is "immediately or directly connected
to surface water" for the application to
qualify under the ground water exception.
The Legislature did not define
"immediately or directly connected to
surface water" in any of the basin closure
laws.
The DNRC interpreted the language to
mean that a ground water well could not
pull surface water directly from a stream
or other source of surface water. This
interpretation made no mention of the
potential influence of the prestream
capture of tributary ground water on
surface flow.
The DNRC processed new applications
before making a threshold determination
that the applications fell within an
exception to the Upper Missouri River
basin closure law. Trout Unlimited and
other interested parties initiated suit
against the DNRC.
During the litigation, DNRC adopted ARM
36.1 2.1 01 (33), defining "immediately or
directly connected to surface water" to
mean ground water "which, when pumped
at the flow rate requested in the
application and during the proposed
period of diversion, induces surface water
infiltration." The definition again ignored
water diverted from streams through
prestream capture of tributary ground
water.
In Montana Trout Unlimited v. Montana
Department of Natural Resources and
Conservation, the Montana Supreme Court
stated that the Upper Missouri River basin
closure law serves, in part, to protect
senior water rights holders in the Upper
Missouri River basin."*
The Court noted that the DNRC's
interpretation of "immediately or directly"
indicated that the DNRC considered
ground water to have an immediate or
direct connection to surface water if
ground water "pumped at the flow rate
requested in the application and during
' 2006 MT 72, 331 Mont. 483, 1 33 P.3d
224 (2006). Under section 85-2-308(3), MCA,
individuals whose property, water rights, or
interests are adversely affected by the proposed
application may object. The restriction on
processing applications saves appropriators the
time and expense of having to defend their water
rights every time a new applicant seeks to
appropriate water in the basin. The Legislature
provided interested parties with greater
protection than the right to file objections and
proceed to contested case hearings by insulating
them from the burden and expense of the
objection process.
18
Water — Montana's Treasure
the proposed period of diversion, induces
surface water infiltration." This formal
interpretation embodied in ARM
36.1 2.1 01 (33) comported with the
informal interpretation embodied in a
letter from former Director Bud Clinch to
the Meagher County Conservation District
Administrator.
The Court determined that the DNRC had
failed to account for the direct connection
between surface flows and the prestream
capture of tributary ground water in its
implementation of the Upper Missouri
River basin closure law despite possessing
a wealth of information supporting the
connection.
The DNRC's interpretation of "immediately
or directly connected" failed to account
for impacts to surface flow caused by the
prestream capture of tributary ground
water.
The Court noted that the DNRC's own
hydrogeologist recognized the impact to
surface flows caused by the prestream
capture of tributary ground water. The
Court quoted the DNRC's hydrogeologist
as stating that ground water pumping
produces two separate components that
contribute to total streamflow depletion.
The first component, ground water
capture, is the interception of ground
water flow tributary to the stream that
ultimately reduces the hydraulic gradient
near the stream and baseflow to the
stream. Streamflow depletion from ground
water capture usually continues after
pumping ends and may require long
periods of time to recover.
The second component, induced
streambed infiltration, usually has less
impact on streamflow depletion, and its
effects dissipate soon after pumping ends.
The Court stated that the DNRC's
interpretation of the Upper Missouri River
basin closure law conflicted with the
statute and did not provide sufficient
protection to reasonably effectuate its
purpose — the protection of senior water
rights holders and surface flows along the
Smith River basin.
The Municipal Exemption
House Bill No. 831 also addressed
another issue that came to light in a court
case: the definition of what constituted a
municipal use. In addition to the ground
water exception in the Upper Missouri
River basin closure law, there was an
exception for a permit to appropriate
water for domestic, municipal, or stock
use.
In 2004, the DNRC proposed to define
"municipal use" as "uses associated with a
water system for municipalities and
incorporated or unincorporated towns and
. . II
cities .
During the rulemaking process, the DNRC
then amended the "municipal use"
Water — Monfana's Treasure
19
definition from "uses associated with a
water system for municipalities and
incorporated or unincorporated towns and
cities" to "water appropriated by and
provided for those in and around a
municipality or an unincorporated town".
The agency later decided to eliminate the
definition altogether.
At issue was whether or not the Legislature
intended for private developers to
appropriate water under the exemption.
According to the DNRC, it had issued
numerous permits since 1 973 with
municipal use to entities that were not a
town or city. The DNRC cited Mountain
Water Company, a public utility that
supplies water to the town of Missoula, as
an example. The DNRC stated that the
Legislature would have been aware of
those water rights when it enacted the
basin closure laws in 1991 and 1993.
Therefore, DNRC believed that it was
prudent to revert to the historical practice
rather than enforce a rule that might be
illegal.
The DNRC stated that it would propose a
new rule definition, with the opportunity
for public comment, after further
considering legislative intent, or that the
DNRC might seek clarification directly
from the Legislature. The DNRC also
stated that until a final determination was
promulgated, the DNRC would continue to
operate under its historic practice,
accepting applications for municipal use
from entities who are providing water for
uses that are similar to a municipality such
as commercial, fire protection, watering
parks, and household uses.
In Lohmeier v. State of Montana,
Department of Natural Resources and
Conservation, the plaintiffs sought to have
the decision to eliminate the definition of
"municipal use" from rules declared
invalid.^
Judge Dorothy McCarter stated that
application of liberal definitions to any of
the enumerated exceptions to the basin
closure laws would clearly undermine the
purpose of the laws, which is to protect
the existing water rights.
Expanding the definition of "municipal
use" to permit private developers in the
Upper Missouri River basin to appropriate
water for new subdivisions would most
likely take a significant amount of water
away from the already overappropriated
water source, resulting in not enough
water for the owners of the existing
water. Judge McCarter concluded that the
Legislature intended to preserve the
existing water rights by closing the Upper
Missouri River basin to new
appropriations. She also concluded that
the exceptions to the closure must be
^ Cause No. ADV-2006-454, First Judicial
District (March 2007).
20
Wofer - Montana's Treasure
interpreted narrowly to comply with the
legislative intent.
The striking of the narrowly defined term
"municipal use" in order to enable the
DNRC to apply a more liberal definition
contravened the legislative intent and
placed the existing water rights of the
plaintiffs in jeopardy. The plaintiffs were
granted summary judgment, which had the
effect of reinstating the definition of
II ... 116
municipal use.
This issue was addressed in House Bill No.
831 by allowing the appropriation of
surface water in closed basins by or for a
municipality, which is defined as an
incorporated city or town organized and
incorporated according to state law.
However, the new law only applies to
applications for an appropriation right in
a closed basin filed on or after May 3,
2007. Applications for permits filed prior
to that date will still be governed by the
prior version of the closed basin statutes.
' The DNRC has appealed Lohmeier to
the Montana Supreme Court.
Wafer — Montana's Treasure
21
mm>''x
Water Management: Other States
As the Montana Legislature considers
water law in Montana — including water
management, water availability, and
water rights — it is appropriate to consider
the approaches taken by other western
states that ore subject to the prior
appropriation doctrine. The states
analyzed were chosen because of the
various factors affecting each of them and
their similarities and differences with
regard to water management.
Arizona
The Arizona Department of Water
Resources (ADWR) is the state agency that
manages Arizona's water supply. Arizona
has historically managed ground water
resources and surface water resources
separately. This practice is continued
today. One critical piece of Arizona's
surface water management is the state's
allotment of Colorado River water.
In 2006 the state negotiated a
preliminary agreement among the seven
Colorado River basin states regarding
modification of the operational
framework for the Colorado River,
including preferred alternatives for
conjunctive operation of Lakes Powell and
Mead and shortage criteria for the lower
division states and Mexico. Arizona's
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surface water availability and
management is directly related to how the
Colorado River is managed and activities
of other states and countries that have a
right to a portion of Colorado River
water. One of Arizona's water
management goals is to put all of their
Colorado River allotment to use — in some
areas this includes storing portions of this
water in subsurface aquifers through
aquifer storage and recovery projects.
Arizona requires each new subdivision to
show that there is at least a 1 00 year
22
Water — Moniana's Treasure
supply of water available prior to the
subdivision being approved.
In the early 1 980s the state legislature
recognized that ground water resources
were diminishing and created the 1 980
Groundwater Management Code. The
Legislature enacted the Code to relieve
the problem of ground water overdraft or
"mining" in parts of Arizona that were
designated Active Management Areas or
AMAs. The three primary goals of the
Code are:
■ to control the severe overdraft
occurring in many parts of the state;
■ to provide a means to allocate the
state's limited ground water resources to
most effectively meet the changing needs
of the state; and
■ to offset Arizona's use of ground
water through renewable water supply
development.
The level of management and regulation
related to water use varies based on the
area of the state and its designation. The
least prohibitive and most broad level is
the statewide management provisions,
which include well drilling and
abandonment standards, well registration
requirements, ground water transportation
restrictions, and, outside of an AMA,
adequate water supply requirements.
The second tier of the management
structure is Irrigation Non-Expansion Areas
or INAs. INAs are in effect in areas where
there was significant ground water
overdraft but not severe enough to
warrant an AMA designation. The
management object in an INA is the
prevention of further declines in ground
water supplies primarily through
prohibition of irrigation acreage
expansion. The ADWR generally does not
regulate the quantity of water used within
on INA, although water users are required
to file for underground storage and
recovery permits, file notice of intent to
drill wells, and obtain notices of irrigation
authority to irrigate eligible lands. Also,
owners of nonexempt wells must use
approved measuring devices and submit
annual ground water pumping reports.
The third tier and the most restrictive with
regard to management are the AMAs.
AMAs are statutorily designated areas
within the state that were identified based
on the magnitude of the ground water
overdraft. Three of the four AMAs are
directed to achieve a "safe yield" level
by 2025, which means that those areas
must ensure that the long-term balance
between the amount of ground water
withdrawn and the amount of water
naturally recharged to the aquifer through
rainfall or artificially returned to the
aquifer through recharge projects is
maintained.
Each of the AMAs has a management plan
that is developed by the state and local
water users. Background information and
data concerning water use patterns are
contained in the management plans and
Wafer — Monfana's Treasure
23
help to ensure that water conservation
requirements are implemented.
Information gathered from annual water
use reports is used to estimate the volume
of ground water withdrawals, water
stored, and water recovered in an AMA.
Water budgets are constructed from this
data to illustrate a total supply and
demand for a given year.
"Conversion to non-groundwater sources is
the single most important means of
achieving the management goals within
the AMAs" according to the ADWR annual
report. It is apparent that the state of
Arizona is trying to allocate and use
every available surface water resource
while protecting, saving, and replenishing
their ground water resources. The water
management agency has stated that
additional opportunities must be pursued
to substitute renewable or imported
supplies in place of mined ground water.
Colorado
The Colorado Division of Water Resources
administers all water rights in the state of
Colorado pursuant to the prior
appropriation doctrine. A system for
permitting ground water wells was
established in 1 957 with the passage of
the Colorado Ground Water Law of
1957. After 1969, surface water and
ground water have been administered
together.
In Colorado the state engineer and the
division engineer of the area where a
water right application is submitted work
with the water court for that particular
division in considering applications for a
new appropriation. The application is
filed with the appropriate water court,
which then publishes it in a newspaper to
serve as notice. The division engineer
provides a recommendation to the water
court regarding whether or not the
application should be approved. Parties
who have a concern regarding the
application have an opportunity to
oppose the application. If there is no
opposition, the water court judge makes a
determination and either grants or denies
the application. If the application is
granted, it is entered into the decree and
enforced through the use of water
commissioners. If there is opposition to the
application, unless the opposition can be
alleviated by negotiations between the
applicant and the opposing party, the
case goes before the water court for trial.
If any party is unhappy with the outcome
of a case, the party may appeal the
water court's decision to the Colorado
Supreme Court.
Some priorities on major stream systems in
Colorado date back to the 1 850s.
According to the Colorado Division of
Water Resources, most of the stream
systems have been overappropriated
24
Water — Montana's Treasure
since the 1 890s. Surface water
appropriations may still be allowed if
they can be shut off when a senior water
right is calling for water. The state
discourages domestic surface rights
without augmentation so the domestic
supply does not have to be shut down if
or when a call is made. For the most part,
only small residential and livestock wells
are allowed to be drilled without
providing for protection to senior water
rights.
■ Replacement wells; and
■ Geoexchange systems.
New nonexempt wells must be located
more than 600 feet from any other
production well not owned by the
applicant unless the state engineer
determines otherwise. Subdivision wells
that are part of a subdivision created
after June 1 , 1 972, for the most part are
governed by a water court-approved
augmentation plan.
Ground water permitting in Colorado is
broken into two types of wells — exempt
wells and nonexempt wells.
Exempt wells are limited specifically by
the conditions stated on the permit when it
is issued. Usually the permits limit the
pumping rate to no greater than 1 5
gallons per minute. Except in limited cases,
an exempt well permit will not be issued
where either a municipality or a water
district can provide water to the property
and in most cases only one exempt well
permit will be issued for a single lot. The
following types of wells are considered
exempt wells:
■ Household use only wells;
■ Domestic and livestock wells with
certain conditions;
■ Commercial wells (1/3 ac ft per
year limitation);
■ Unregistered existing wells - had to
be put to beneficial use prior to May 8,
1972;
■ Monitoring and observation wells;
Colorado also has what are called
"Designated Ground Water Basins" or
"Designated Basins". Ground water within
these basins is considered "designated
ground water". Designated ground water
is ground water that, in its natural course,
is not available to or required for the
fulfillment of decreed surface rights, or
ground water in areas not adjacent to a
continuously flowing natural stream. The
Colorado Ground Water Commission is a
regulatory and an adjudicatory body
authorized by the Colorado General
Assembly to manage and control
designated ground water resources within
the state. Ground water applications in
these areas are not subject to water court
involvement as outlined above.
Idaho
The state of Idaho is also a prior
appropriation doctrine state. All surface
and ground water are the property of the
state whose duty it is to supervise their
Wafer — Montana's Treasure
25
appropriation and allotment to those
diverting the water to any beneficial use.
Idaho water Is managed by the Idaho
Department of Water Resources (IDWR).
Idaho has five different types of water
rights. These are:
■ permits - the state issues permits
that allow the development of a water
right;
■ licenses - issued after a water right
is developed;
■ statutory claims;
■ beneficial use claims (Snake River
basin adjudication); and
■ decreed rights - these rights are
issued after an adjudication has been
before the court and represents ownership
of the water right.
There are exemptions to permitting
requirements for certain ground water
rights as a result of exemptions in the
1 950 ground water statutes. All uses
require a recorded water right except:
■ domestic ground water (no more
than 1 3,000 gpd and 1 /2 acre);
■ other ground water uses (use must
be within .04 cfs and 2,500 gpd); and
■ instream stock watering.
River basin in Idaho. The final result is
more than 1 20,000 decreed water rights.
In Idaho, once the water rights are
decreed or licensed, the state administers
or manages them through water districts
and water masters. State water districts
are entities of the state and the water
users that hold water rights within those
districts elect a water master that is
approved by the department director. It is
the water master's responsibility to
distribute the water rights in the district
pursuant to their priority dates. Outside of
water districts the IDWR director may
regulate and enforce water rights, but it is
done on a case-by-case basis rather than
with a water master.
Idaho also provides for "conjunctive
management", which is defined as the
"legal and hydrologic integration of
administration of the diversion and use of
water under water rights from surface
and ground water sources, including areas
having a common ground water supply."
This issue is currently subject to litigation
that involves a curtailment order on
ground water withdrawals because of a
The state of Idaho has also recently
completed the Snake River basin
adjudication, which was started In 1 987
and addressed more than 1 20,000
claims. This adjudication determined all of
the claims to the use of water in the Snake
26
Water — Montana's Treasure
call made by senior surface water
appropriators/
Idaho also has different types of ground
water designations. Critical ground water
areas are defined as "any ground water
basin, or designated part thereof, not
having sufficient ground water to provide
a reasonably safe supply for irrigation of
cultivated lands, or other uses in the basin
at the then current rates for withdrawal,
or rates of withdrawal projected by
consideration of valid and outstanding
applications and permits, as may be
determined and designated, from time to
time by the director of the Idaho
Department of Water Resources".
The IDWR can propose or require a
management plan in these areas. There is
also a "ground water management area",
which is a bit less stringent than the critical
ground water management area. Under
both the ground water management area
and the critical ground water
management area, the director can issue
a curtailment of ground water use by
some or all of the water right holders.
Washington
The Washington Department of Ecology
manages the state's water resources.
Similar to the other western states, the
state of Washington in both its constitution
and its statutes has stated that "water is a
public resource held in trust for the
people." Washington also functions under
the prior appropriation doctrine.
All adjudications are handled by state
courts and heard by a superior court
judge or by a water referee who hears
the evidence and makes recommended
findings to the court. The Department of
Ecology began a general adjudication of
surface water rights in the Yakima basin in
1 977. This adjudication is still pending in
the superior court.
For surface water permit applications, the
Department of Ecology considers what is
called the "four-part" test, which considers:
(1 ) Is there water available?
(2) Is the application for a
beneficial use?
(3) Will granting the application
adversely affect existing water rights?
and
(4) Will granting the application
be detrimental to the public interest?
More details regarding the curtailment
order and its progress through the court system
can be found at: http://www.idwr.idaho.gov/
about/issues/Curtailment_Order_lnformation/Cur
tailment_lnformation_2008/Curtailment_
Information 2008.htm
Through this four-part test, the Department
of Ecology may also consider water
quality issues as a part of the public
interest criteria. Based on its assessment of
the four-part test, the Department of
Wafer — Montana's Treasure
17
Ecology may grant, deny, or condition the
permit. The agency's decision can be
appealed to the Pollution Control
Hearings Board and from there through
the court system. Interested third parties
may intervene in the action at both the
administrative and judicial level.
Once a permit is granted, the applicant
has a reasonable amount of time to
"perfect" the v/ater right through the
actual appropriation of v/ater to or for a
beneficial use. If this is completed, the
applicant is granted a certificate for the
water right outlining the actual terms of
the water right, including the extent and
nature of the right.
In 1945, the Washington Legislature
adopted a comprehensive law related to
ground water. Prior to the 1 945
legislation, ground water was treated
differently based on case law and
different types of ground water. The
courts interpreted the 1 945 law to only
apply to specific types of ground water,
but in 1 973 the Washington Legislature
amended the definition of ground water
to make it clear that the ground water
law applied to all ground water not only
to "percolating waters".
The 1 973 ground water law made it clear
that a permit was necessary before
ground water could be appropriated.
However, like other western states, the
Legislature provided exemptions to the
permit requirements for certain types of
uses, including for the use of water
reclaimed from wastewater treatment
facilities and certain relatively small
withdrawals, such as:
■ water for stock water;
■ lawn and/or noncommercial
garden watering (may not exceed 1/4
ac);
■ single or group domestic uses (may
not exceed 5000 gpd); and
■ industrial uses (may not exceed
5000 gpd)
In a paper prepared in 2000, the
Washington Attorney General states the
following with regard to exempt uses: "In
recent years there is recognition that the
cumulative effect of exempt withdrawals
may be significant. Since there is no
requirement that the amount and nature
of such withdrawals be reported, the state
has no precise information concerning their
cumulative effect."
In addition to the "four-part" test that is
applied for surface water applications,
the Department of Ecology must also take
into consideration whether or not a
proposal is reasonable and feasible with
regard to the type of pumping that is
being contemplated. The seniority of a
ground water pumping right is limited to
the "reasonable pumping level".
In 1 985, the Legislature again passed a
law related to ground water. This time the
law was an effort to minimize or stop
overdrafting and try to ensure future
28
Wafer — Montana's Treasure
water availability. The Department of
Ecology was directed to adopt ground
water areas and subareas and the
Department was authorized to prioritize
water use within these areas.
The ground water code also covers the
use of water that is returned to the
aquifer through return flows with regard
to who has a right to appropriate the
water. A court case that involved the
Bureau of Reclamation addressed this
issue with regard to whether state or
federal law applied when the return flows
were a result of a federal project.
Wafer — Montana's Treasure
29
' ■S'<?*?--5T3Wr^-::-'
j-«i?>t»j!r>("ii«tVjr"- -""fSSi^xajiBhTpy^ "-^t^' >7«v
New Law; New Terms
In passing House Bill No. 831, the 2007
Legislature clearly outlined in the
preamble to the measure why it was
needed. In part, it noted that there has
been confusion regarding ground water
issues in closed basins and the Department
of Natural Resources and Conservation
needed guidance from the Legislature on
how to proceed. It noted the importance
of protecting senior appropriators as well
as preserving the quality of Montana's
water.
Toward that end, legislators said ground
water development in closed basins should
be able to proceed as long as the
applicant collects the necessary scientific
information to determine if there will be
an adverse effect on a prior appropriator
and takes the necessary actions to
mitigate or prevent any adverse effects
on a prior appropriator.
In also passing House Bill No. 304, which
created the Water Policy Interim
Committee, the Legislature acknowledged
that some of the provisions of House Bill
No. 831 would need further study as they
were implemented.
Several of the study tasks dealt with new
terms introduced into statute, including:
* Aquifer injection - the use of a
well to inject water directly into an
aquifer system without filtration through
the geologic materials overlying the
aquifer system for the purpose of aquifer
recharge or for an aquifer storage and
recovery project.
* Aquifer recharge - either the
controlled subsurface addition of water
directly to the aquifer or controlled
application of water to the ground
surface for the purpose of replenishing the
aquifer to offset adverse effects resulting
from net depletion of surface water.
* Aquifer storage and recovery
project - a project involving the use of an
aquifer to temporarily store water
through various means, including but not
limited to injection, surface spreading and
infiltration, drain fields, or another
department-approved method. The stored
water may be either pumped from the
injection well or other wells for beneficial
use or allowed to naturally drain away
for a beneficial use.
*Hydrogeologic assessment - a
report for the project for or through which
water will be put to beneficial use, the
point of diversion, and the place of use
that describes the geology, hydrogeologic
environment, water quality, and predicted
net depletion, if any, including the timing
of any net depletion, for surface water
30
Wafer — Montana's Treasure
within the closed basins that are subject to
on appropriation right, including but not
limited to rivers, streams, irrigation canals,
or drains that might be affected by the
new appropriation right and any
predicted water quality changes that may
result.^
* Mitigation - the reallocation of
surface water or ground water through a
change in appropriation right or other
means that does not result in surface
water being introduced into an aquifer
through aquifer recharge to offset
adverse effects resulting from net
depletion of surface water.
In general. House Bill No. 831 allowed for
new ground water appropriations in
closed basins if the applicant for the
water right complies with more stringent
application requirements that include a
hydrogeologic assessment and, if
necessary, a mitigation or aquifer
recharge plan that ensures senior water
rights will not will not be adversely
affected. The law also allowed aquifer
storage and recovery projects and
defined those projects as a beneficial use
of water.
Water Quality
Several components of the new law deal
with the possible mingling of water
sources through mitigation or aquifer
recharge. The law requires that an
aquifer recharge plan that uses sewage
from a system that requires a discharge
permit also must obtain a discharge
permit for the aquifer recharge plan.
In general, House Bill No. 831
allowed for new ground water
appropriations in closed basins if
the applicant for the water right
complies with more stringent
application requirements.
The full definition is in section 85-2-361,
MCA.
Wafer — Monfana's Treasure
The minimum requirements for aquifer
recharge plans in this scenario are certain
federal regulations and removal of at
least 60 percent of nitrogen as measured
from the raw sewage load to the system
or a discharge of a total nitrogen effluent
concentration of 24 mg/L or less.
In addition to those requirements, an
aquifer recharge plan that uses aquifer
injection must meet the more stringent of
either primary drinking water standards
pursuant to Title 75, chapter 6, MCA, or
the nondegradation requirements pursuant
to section 75-5-303, MCA, at the point of
discharge.
Several water quality experts appeared
before WPIC and addressed current laws
and possible contamination issues with
introducing surface water into ground
water. There also was debate about the
use of individual septic systems and how
31
they may effect water quality in large
scale developments.
In September 2007, Kate Miller of the
Department of Environmental Quality said
an important question is how mitigation or
recharge water will be used downstream
and whether or not it would be safe to
drink. There are concerns about
pathogens and pharmaceuticals
appearing in drinking water wells. Miller
advocated regular screening as part of a
monitoring program and that any
discharges should be treated to drinking
water standards.
In June 2008, Eric Regensburger of the
DEQ said there are concerns about
ground water quality and subdivision
development, specifically the introduction
of pathogens, nitrogen, phosphorous,
personal care products, and
pharmaceuticals into state waters. He
showed examples of problems in the area
south of Butte, in Helena, in the Billings
area, in the Bozeman area, and in
Boulder.
p Much of the discussion of
mitigation and recharge centered
I around how to supply water for
I new residential development.
Water Quantity
The new law requires that applications for
new ground water use in a closed basin
be accompanied by a hydrogeologic
assessment, a scientific report that predicts
if the new use would result in a net
depletion of surface water in the area
proposed for the use. If it is determined
that a net depletion would adversely
affect a senior water right, then the
amount of water resulting in the adverse
effect must be offset by either a plan of
mitigation or aquifer recharge.
Topics addressed by experts and the
committee included the requirements and
accuracy of the hydrogeologic reports, as
well as how mitigation, aquifer recharge,
and aquifer storage and recovery may
work in various scenarios.
Much of the discussion of mitigation and
recharge centered around how to supply
water for new residential development.
In July 2007, John Westenberg of PBS&J,
a natural resources consulting firm, told
the committee that mitigation could be
complicated because statewide
adjudication is not complete and, In some
cases, the decrees may not be accurate.
He said most water rights are based on
irrigation, and irrigation water rights are
limited to a particular period of diversion
and the irrigation season. How then, he
said, does a water user convert an
irrigation use to a year-round domestic
use? Westenberg said the DNRC must be
flexible in allowing the conversion of
Irrigation rights.
32
Water — Monfana's Treasure
Michael E. Nicklin, a hydrologist, said
there must be a clearer understanding of
when a mitigation plan or aquifer
recharge plan would be required. He said
one should quantify the amount of
evapotranspiration before the proposed
use and after for a given parcel of land.
If the land was irrigated, a comparison
should be made to determine if there is a
net increase or decrease in
evapotranspiration. Nicklin said that if the
projected consumptive use for the parcel
would decrease, then a plan should not be
required.
Jim Potts, a hydrologist with HKM
Engineering, said the keys to a successful
aquifer recharge system would include
high-quality or pretreatment of recharge
water, proper soil and aquifer
characteristics, monitoring, and emergency
backup plans.
Russell Levens, a DNRC hydrologist, said in
September 2007 that it is difficult to
measure the effectiveness of a mitigation
or aquifer recharge because it is difficult
to detect changes from the initial
application or mitigation. Some effects, he
said, may only be significant in times of
water shortages. The best way to have
effective mitigation, he said, is through an
adequate hydrogeoiogic assessment
before the new use is permitted.
Wafer — Montana's Treasure
33
':i:K>fK-.A--x:-^-:-sx:ri
Water Supply and Sewage Disposal
As some parts of Montana experienced
unprecedented population growth in
recent years, controversies about water
supply and sewage disposal have risen to
the fore, mostly in the closed basin areas
of Montana and especially in areas just
outside the borders of cities and towns.
Subdivisions may be served by individual
wells, including those exempt from the
DNRC permit process, as well as individual
septic systems. Other options include
building community systems that serve the
development or connecting to nearby
existing systems.
At the September 2007 meeting, Eric
Regensburger of the DEQ said that over
the last 5 years, three out of every four
lots created in Montana are using exempt
wells for a water supply. About half of
those are lots of less than 2 acres. The
concern, Regensburger said, is that there
is a higher chance of contamination with
high well density.
In October of 2007, Regensburger
explained the options for water supply
and sewage disposal systems. For lots of
1 acre or larger, the type of system is up
to the developer as long as they comply
with current laws and regulations.
MMMMiiidiiiiifiiii^^
Lots of less than 1 acre but larger than
20,000 square feet (about one-half acre)
must have either a community water or
wastewater system. Subdivision lots of less
than 20,000 square feet must have both
community water and sewage systems.'
Regensburger said community wells could
be used on most subdivisions, but there
are limiting factors, including the higher
costs, especially those up-front costs, of
serving larger lots. Information about the
number and costs of exempt and
community wells is included in Appendix E.
Developers are being driven to use
exempt wells because the DNRC
permitting process for water rights takes
too long, Dustin Stewart of the Montana
Building Industry Association said in
October 2007. Stewart suggested that
municipal annexation should be made
easier to allow connections to existing
systems and the Legislature should
consider funding for local communities to
extend services to outlying subdivisions.
Glenn Oppel of the Montana Association
of Realtors said exempt wells allow for
affordable development in rural areas.
' A public water system serves 25 or
more people or 1 5 or more connections for 60
days or more per year.
34
Water — Montana's Treasure
He said a statewide policy on limiting
exempt wells would not work and
suggested a fast-tracking permit process
for public systems.
John Tubbs of the DNRC said exempt well
usage is the least expensive and least
time-consuming option. The costs of
obtaining a permit could be as much as
$1 5,000 and a change of water use right
could be 520,000. On average, it takes
the DNRC 245 days to issue a permit for
a new water right, although it generally
takes longer in closed basins.
Laura Ziemer of Trout Unlimited said that
unlike the new law that requires some
mitigation in closed basins, there is no
mitigation for exempt wells. She
suggested that new exempt wells be
required to purchase a mitigation credit
or be required to go through permitting.
Michael Nicklin, a hydrologist for the
Montana Association of Realtors,
explained to the WPIC in January 2008
some of his findings in the Gallatin Valley.
He wrote that, "In summary, it is my
conclusion that when the overall projected
effects of exempt wells are properly
accounted for using water budget
methods that everyone in the profession of
hydrology should employ, it is difficult to
conceive that there would be any
practical circumstance in any closed basin
in Montana where future growth in
exempt wells would result in any
discernable, detectable, or measurable
adverse impact to any prior surface water
appropriator. If any such circumstance
does exist it would be anomalous. It would
be highly questionable to establish water
policy for the entire state of Montana on
the basis of an anomalous condition."
Nicklin's presentation is included in
Appendix F.
The DNRC contends that ground water
wells have been shown to have an effect
on surface water flows. The agency says
exempt wells may have on impact on
more senior surface water users and
would be difficult to enforce a call against
in a time of water shortage. A DNRC
paper on the effects of exempt wells is
included in Appendix G.
In April of 2008, the WPIC requested
presentations on the Ruby Valley
Groundwater Management Plan, which
was commissioned by the Ruby Valley
Conservation District and the Ruby
Watershed Council with the goal to collect
field data pertinent to management of
ground water and surface water
resources. The study concluded that if the
goal is to protect surface water flows,
water right holders, and aquatic
resources, several things need to be
considered, including:
■ Land use change will drive water
use change.
■ Irrigation is important to aquifer
recharge and late summer river flows.
Water — Montana's Treasure
35
■ New ground water use will
impact surface flows.
In June 2008, the WPIC heard
presentations from several experts on the
effects of different types of irrigation.
John LaFave of the Montana Bureau of
Mines and Geology said that flood
irrigation return flows affect shallow
ground water. More efficient irrigation
techniques, such as sprinklers and lined
canals, reduce aquifer recharge, late
season surface water flows, and wetlands.
The DNRC presented information on the
potential consequences of converting from
flood irrigation to sprinklers related to the
producer, water quality, water quantity,
and ecological conditions. (Appendix G).
36
Water — Montana's Treasure
Water Right Enforcement
Mark Twain supposedly knew that a sip of
whiskey could quench your thirst, but a
grab for water would lead to fisticuffs.'"
The study tasks directed the WPIC to
examine enforcement of exempt wells.
Those statutorily exempt wells are not
monitored or metered by any state
agency. Though the wells are limited to
35 gallons per minute and less than 10
acre-feet a year, the reporting of
excesses would likely fall to another
water user.
But in addition to debate over
enforcement of exempt wells, various
presenters touched on aspects of water
right enforcement in general.
In September 2007, Tim Hall, who at the
time was the chief legal counsel for the
DNRC, provided an overview of water
right enforcement. While the DNRC has
broad statutory authority for enforcement,
disputes involving water rights issued prior
to 1 973 are difficult unless the Water
Court has issued a decree through the
adjudication process.
For water use permits issued since 1 973,
there are a number of options if a user
suspects water is being used illegally.
Those range from having a neighborly
discussion to formal mediation to asking
for a court injunction. A summary of
possible actions is included in Appendix D.
In addition to debate over
enforcement of exempt wells,
various presenters touched on
aspects of water right
enforcement in general.
"Whiskey is for drinking; water is for
fighting over." Many sources attribute this quote
to Mark Twain, but some note that it was never
verified.
If a person is wasting water, using water
unlawfully, preventing water from moving
to another person having a prior right to
use the water, or violating a provision of
the Montana Water Use Act, the DNRC
can investigate and file a court action.
However, Hall said the DNRC does not
have the resources to be a statewide
water rights enforcer.
State law also allows the DNRC to work
with local county attorneys, but Gallatin
County Attorney Marty Lambert told the
WPIC in April 2008 that his office is
already overloaded with civil and criminal
work. He added that water right
enforcement should be consistent
Water — Montana's Treasure
37
statewide, instead of handled differently
county by county.
The WPIC also discussed a provision of
the Prior Appropriation Doctrine which
allows senior water rights holders to make
a call for water against more junior rights.
The question was how a call made by a
senior surface right holder would work
against a junior ground water right
holder.
In short, Montana does not appear to
have had much experience with the
impact of a call by senior surface water
right holders on junior ground water right
holders.
Under the prior appropriation doctrine
and the decision in Montana Trout
Unlimited v. Department of Natural
Resources and Conservation, a call by a
senior water right holder must be
enforced against junior water right
holders in the order of the least priority of
the junior water right holders, whether
those water rights are surface water rights
or ground water rights.
The state of Idaho is experiencing
protracted litigation over this issue. ^^ In its
decision, the Idaho Supreme Court stated
that the priority ordering of the state's
" See American Falls Reservoir District
No. 2 V. Idaho Department of Water Resources,
2007 Opinion 40, Case No. 33249 (Id. March 5,
2007).
version of the prior appropriation doctrine
is not absolute, and that an as yet
undefined reasonableness standard merits
consideration when administering the use
of hydrologically connected surface and
ground water.
An additional factor is Article XV, section
3, of the Idaho Constitution, which gives
priority to domestic water rights but
requires that junior water right holders
must compensate senior water right
holders for any taking of their water.
In Montana, there is no prioritization
among types of water rights. However, it
is much easier to close a headgate on a
ditch during a call by a senior
appropriator than it is to shut off wells. An
additional complicating factor is the legal
ability to continue to develop ground
water through the use of nonpermitted
exempt wells, even in closed basins in
which it is recognized that water is
overappropriated. During a call for water
by a senior appropriator, all junior water
right uses are supposed to be curtailed
according to their priority under sections
85-2-406(1 ) and 85-5-1 01 , MCA.
It has long been established that the
appropriator of water does not become
the owner of water by the act of
appropriation. The appropriator acquires
the right of the use of the water for some
useful purpose. The appropriator for one
useful purpose has no preference or
superior right in law to an appropriator
38
Wafer — Montana's Treasure
for any other purpose. While any person
is permitted to appropriate water for a
useful purpose, it must be used with some
regard for the rights of the public.'^
Even though Montana does not
constitutionally or statutorily prioritize
water rights, a de facto priority for
domestic or municipal use may exist. It
does not require much imagination to
foresee a potential public health crisis if
junior domestic or municipal water rights
were curtailed by a senior appropriator's
call for water. A call for water that
implicated domestic or municipal water
supplies may require that the applicable
government intervene to protect the public
health.
State and local governments have
inherent power to enact reasonable
'^ Fitzpatrick v. Montgomery, 20 Mont.
1 81, 50 P. 41 6 (1 897). Fitzpatrick bases this
conclusion on Basey v. Gallagher, 20 Wall. 670
(1 875), an appeal from Gallagher v. Basey, 1
Mont. 457 (1 872), in which the United States
Supreme Court said: "Water is diverted to propel
machinery in flour mills and saw mills, and to
irrigate land for cultivation, as well as to enable
miners to work their mining claims; and in all such
cases the right of the first appropriator, exercised
within reasonable limits, is respected and
enforced. We say within reasonable limits, for this
right to water, like the right by prior occupancy to
mining or agricultural land, is not
unrestricted. It must be exercised with reference to
the general condition of the country and the
necessities of the people, and not so as to deprive
a whole neighborhood or community of its use,
and vest an absolute monopoly in a single
individual."
legislation for the health, safety, welfare,
or morals of the public, even though the
legislation is an infringement of individual
rights. Police power regulations are
presumed reasonable, and a clear
showing is required for a finding that they
ore unreasonable.^"'
Even though Montana does not
constitutionally or statutorily
prioritize water rights, a de facto
priority for domestic or municipal
use may exist.
The police power of the state, which
enables the state to pass laws for the
health, safety, and general welfare of the
people, must be reasonably adapted to
its purpose and must injure or impair
property rights only to the extent
reasonably necessary to preserve the
public welfare.
Although compensation may be owed to
the senior appropriator if the senior
appropriator's beneficial use is curtailed
to protect the public health pursuant to the
police power, that issue will probably be
resolved on a factually specific basis.
'^ State V. Deitchler, 201 Mont. 70, 651
P.2d 1020 (1982).
'^ See In the Matter of the Adjudication
of the Existing Water Rights of the Yellowstone
River, 253 Mont. 167,832 P.2d 1210(1992),
citing Yellowstone Valley Electric Cooperative v.
Ostermiller, 1 87 Mont. 8, 608 P.2d 491 (1 980).
Wafer — Montana's Treasure
39
It is even possible that the police power of
the state can be exercised even though
provision for compensation to the owner
of property has not been made.^^
During his presentation in Choteau, Tim
Hall described a decision by the
Fourteenth Judicial District Court for
Musselshell County involving a water
purchase contract in which the District
Court ruled that the "remaining stored
water level in Deadman's Basin Reservoir
has reached a critical level" and that the
reservoir water was needed to maintain
the Musselshell River flow "to supply
domestic, municipal, stock and wildlife
water usage."
The District Court prohibited the irrigation
of crops from the Musselshell River
between August 1 2 and September 30,
2000, so long as the reservoir maintained
its critically low level. On appeal, the
Montana Supreme Court determined that
the District Court simply made a priority
determination regarding domestic and
irrigation water consumption based on its
own inclinations. In so doing, the District
Court exceeded its authority to simply "fill
in" a water decree with further
delineations.
The Supreme Court ruled that the case
was merely one of contractual
interpretation and enforcement. Because
the case was reversed and remanded, the
Supreme Court declined to address the
issue of whether the water right holder
was entitled to compensation for a
"taking" of the water for public
purposes.^*^
'^ Ruona v. Billings, 1 36 Mont. 554, 323
P.2d 29 (1958).
" In the Matter of the Petition of the
Deadman's Basin Water Users Association to
Appoint a Water Commissioner to Distribute
Stored Water, 2002 MT 15, 308 Mont. 168, 40
P.3d 387 (2002).
40
Wafer — Montana's Treasure
The Water Policy Interim Committee
studied water marketing and water
reallocation options available in Montana,
including:
* leasing water rights, water
banking, water trading, and water sales;
* the lease-to-sale ratio of water
rights in Montana;
* the number of market purchases
that have been completed in Montana;
* the purposes for which water
trades or sales have taken place;
* the feasibility of creating and
operating a water bank in Montana; and
* the administrative procedures
and costs that would be necessary to
establish and operate a water bank in
Montana.
In Montana and other states, private
people do not own water. But the right to
use water for a beneficial use is held by
individuals, corporations, and other
entities and water rights can be sold or
leased.
Property rights are often described as a
bundle of sticks associated with a parcel
of land. However, each stick has value
independent of the bundle. While there
are differences in how different rights
may be marketed, a water right is one of
those sticks. For the purposes of this
discussion, the term water marketing
covers the buying, selling, transferring, or
leasing of water rights.
Water marketing is not a new debate
topic in Montana. In 1 984, the
Legislature's Select Committee on Water
Marketing published a voluminous report
and several suggestions for future
legislation.'^
"These recommendations concern a
strategy for a water policy for Montana
in an interstate setting," wrote Sen. Jean
Turnage, who chaired the panel. "This
agenda is too important and too complex
to be addressed by one interim committee
or one legislative session. These issues
significantly affect the future of Montana.
The deliberations around them must be
ongoing."
Though those words were written nearly a
quarter century ago, water markets are
still in their infancy, according to Water
Strategist, a newsletter that analyzes
water policy, marketing, finance,
legislation, and litigation in 17 western
states.
''' http://leg.mt.gov/content/publications
/environmental/ 1 984watermarketing.pdf.
Wafer — Montana's Treasure
41
"Water assets are not traded westwide;
no indicator can measure overall activity
in water markets," the newsletter said In
its April 2006 edition. "The economic
value of water depends upon the
reliability of the underlying water right,
quantity, quality, uses and the location
and availability of competing sources of
supply."
However, in Montana and other states,
competing demands for water are driving
water marketing discussions. The 2007
Legislature passed House Bill No. 831
regulating ground water appropriations in
closed basins. Mitigation plans required
under that statute may contain some
aspect of water marketing. The strategic
plan for the Water Resources Division of
the Department of Natural Resources and
Conservation includes the tasks of
determining where water is physically and
legally available for development and
creating a report of what rights might be
available for sale or change.^®
Water Marketing in Montana
At the suggestion of the water marketing
committee, the 1985 Legislature
established a water leasing program
administered by the Department of
Natural Resources and Conservation. The
statute allows the Department to acquire
water through appropriation in its own
name, by agreement or purchase with
another water right holder, or by contract
for water in certain reservoirs. The water
may be leased for beneficial uses.^'
The statute was amended in 2007.
Previously, the program was limited to
leasing 50,000 acre-feet. Now, the
Department may lease up to 1 million
acre-feet of water under contract with the
federal government from Fort Peck, Tiber,
Canyon Ferry, Hungry Horse, Koocanusa,
or Yellowtail or from other reservoirs. Of
that 1 million acre-feet, up to 50,000
acre-feet may be leased for beneficial
uses outside Montana. ^°
In Montana and other states,
competing demands for water are
driving water marketing
discussions.
'^ DNRC Water Resources Division
Strategic Plan 2005-2010.
http://dnrc.mt.gov/wrd/pdfs/wrd_
strategicplan05.pdf
"Section 85-2-141, MCA.
^° Senate Bill No. 376.
http://data.opi.mt.gov/bills/2007/billhtml/
SB0376.htm
42
Wafer — Montana's Treasure
Since its inception, no water has been
leased under this statute.^'
However, the 2005 Legislature passed a
resolution urging the DNRC to enter into
negotiations with the federal Bureau of
Reclamation to determine the availability
and cost of water stored behind Hungry
Horse Dam in hopes that the state might
contract for water and then lease it for
water development in the Clark Fork River
basin."
In 2007, the Legislature appropriated
$260,000 to pay for a Hungry Horse
leasing study. The DNRC, the Bureau of
Reclamation, and others are working on
the study now.
revenue from hydropower generation
supplements funds for state water project
rehabilitation costs.^"'
Other water marketing provisions in
Montana law are mostly utilized by
private parties, although some nonprofit
corporations and the Department of Fish,
Wildlife, and Parks also play roles.
The law allows for temporary changes in
appropriation rights with department
approval for 10 years, subject to 10-year
renewals. In coses where new water
conservation or a storage project is
involved, the change may be approved
for up to 30 years, again subject to 1 0-
year renewals.^"
Montana owns several of its own water
projects around the state, such as
Deadman's Basin Dam in Wheatland
County and the Tongue River Dam in Big
Horn County. The state, through DNRC's
state Water Projects Bureau, owns water
rights in these projects and leases them
primarily for irrigation. The Bureau
administers almost 2,000 water marketing
contracts for nearly 300,000 acre-feet of
water annually though local water user
associations. Revenue from the water
purchase contracts, leases of lands
associated with the projects, and net
^' Rich Moy, DNRC
" http://data.opi.mt.gov/bills/2005/
billhtml/HJ0003.htm
Water may be leased for up to 90 days
without DNRC approval for road
construction or dust abatement projects.^^
In 1 989, in response to drought conditions
that left some streams dry and killed fish,
the Legislature passed a bill to allow FWP
to lease consumptive water rights for
instream flows for terms up to 1 0 years.
This statute. Section 85-2-436, MCA,
underwent significant changes in the 2007
report.
" State Water Projects Bureau 2006
'" Section 85-2-407, MCA.
" Section 85-2-410, MCA.
Wafer — Moniana's Treasure
43
session.'* Until July 1, 2019, FWP may
change consumptive use appropriation
rights that it holds in fee simple to
instream flow purposes on up to 1 2
stream reaches without any time
constraints. The Department may enter
into leases for instream flow purposes on
an unlimited number of stream reaches for
terms up to 1 0 years, with 1 0 year
renewals. However, after June 30, 201 9,
the agency may not enter into new lease
agreements or renew leases that expire
after that date. Any change in purpose or
place of use must be approved by the
Department and is subject to other criteria
to protect the rights of other
appropriators from adverse impacts.^''
The owner of a consumptive water right
also may either convert the use of that
right or lease the right for instream flow
to benefit fishery resources.'^
The lease of an existing right to FWP
pursuant to section 85-2-436, MCA, or the
temporary change of a right under section
85-2-407 or 85-2-408, MCA does not
constitute and abandonment of the right.''
^'Senate Bill 128.
http://data.opi.mt.gov/bills/2007/billhtml/
SB0128.htm
'" The 201 9 dote, as well as other
portions of the low, may be amended by future
Legislatures.
'^ Section 85-2-408, MCA.
A water right holder also may lease or
sell water saved through conservation.
Lining a ditch to reduce seepage or other
measures may result in this so-called
II 1 _| i "30
salvaged water.
Except for the temporary change for road
projects and dust abatement, the
appropriators in each of these changes
must prove by a preponderance of
evidence that the change meets several
criteria, including:''^
* The proposed change will not
adversely affect the use of the existing
water rights of other persons, permitted
uses, or reserved uses.
* Except for instream flow changes,
the proposed means of diversion,
construction, and operation of the
appropriation works are adequate.
* The proposed use of water is a
beneficial use.
* Except for instream flow changes,
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.
* 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. The water
quality of an appropriator will not be
adversely affected.
29
Section 85-2-404, MCA.
44
^"Section 85-2-4 19, MCA.
^' Section 85-2-402, MCA.
Wafer — Monfana's Treasure
* The ability of a discharge
permitholder to satisfy effluent limitations
surface water discharge permit will not be
adversely affected.
Much of the leasing in Montana under
these statutes has been done by the
Department Fish, Wildlife, and Parks;
Trout Unlimited; and the Montana Water
Trust.
landowners on instream flow leases. The
organization holds 15 leases on about
2,600 acre-feet of water per year. In
2007, the Water Trust paid about
$63,000 for water.
In addition to these, the DNRC has
recorded 23 change authorizations by
individuals who changed a part of their
water right to instream flow since 1 991 ?"
Since it was granted the authority to lease
water, FWP has signed 17 agreements
for instream flow. One lease on Tin Cup
Creek could not be renewed and is now
held by the Montana Water Trust. Three
have been terminated. Most of the leases
are with private parties, but one is with a
water and sewer district and one is with
the Forest Service. The quantity of water
leased and the cost varies. A complete
history is available in Figure 2 of the
2006 leasing report. There were no new
leases in 2007.^^
Montana Trout Unlimited holds six leases,
all in the Blackfoot River Valley. The
amount leased varies as does the cost per
acre-foot, ranging from 75 cents to more
than $25 an acre-foot.''^
Water rights also may be sold, although
unless the owner severs the right from the
land, it passes with the conveyance of the
parcel. ^^ Until action by the 1 985
Legislature, the DNRC tracked the number
of change authorizations for severed
water rights. There are 70 recorded. "^"^ In
2007, the Legislature mandated that
starting this July, a water right holder who
severs the right from the land must alert
the DNRC.^^
i
f Water rights also may be sold,
although unless the owner severs
I the right from the land, it passes
with the conveyance of the parcel.
The Montana Water Trust, a nonprofit
organization founded in 2001, works with
" 2006 FWP Annual Progress Report
Water Leasing Study.
33
Trout Unlimited. Terms of Instream Flow
Transactions in the Blackfoot.
Wafer — Monfana's Treasure
^^ Terri McLaughlin, DNRC
" Section 85-2-403, MCA.
36 ■
Terri McLaughlin, DNRC
37
http://data.opi.mt.gov/bills/2007/billhtml/
HB0039.htm
45
It is important to note that Montana water
may be marketed for uses out of state;
however, there are criteria that must be
met, including:''®
* the proposed use must conform to
permit requirements, including that the
water is legally available and that senior
water right holders are not adversely
affected;
* the proposed out-of-state use of
water is not contrary to water
conservation;
* the proposed out-of-state use of
water is not otherwise detrimental to the
public welfare of the citizens of Montana.
Water Banking
Under the umbrella of water marketing is
water banking. But water banking is a
multifaceted term as well. In general, a
water bank is an institutional process that
facilitates the transfer of water to new
uses. In one sense, the water bank
operates like a broker, bringing together
buyers and sellers. However, the
institutional nature of a water bank comes
with set procedures and some sort of
public sanction for its actions:^'
Statewide water banking in Montana is
not addressed in statute.'"^ The leasing
laws the state has in place might constitute
what is called a lease bank, where a
single lessee solicits and temporarily
obtains water from one or more lessors
for a specific use, often for environmental
purposes. In contrast, a water bank
involves the exchange of water
entitlements through the interaction of
multiple sellers and multiple buyers."^
The goal of a water bank is to facilitate
the transfer of water from one use to
another use by bringing buyers and
sellers together. Doing so may meet one
or more of the following objectives:"^
* create a reliable water supply
during dry years;
^^ Section 85-2-311, MCA
^'Lawrence J. MacDonnell, "Water Banks:
Untangling the Gordian Knot of Western Water."
'*° The Fort Belknap-Montano Compact,
codified in Title 85, chapter 20, part 1 0, MCA,
establishes a water bank for implementation in
years of significant short-term water shortage.
However, the compact must still be ratified by
Congress, so no water banking activity has taken
place. The provisions provide for grants to
purchase water, pricing alternatives and
requirements, how banked water is allocated, and
a clause providing that the water bank
established in the compact is not intended to
preclude a more comprehensive water marketing
system within the Milk River Basin.
'" Peggy Clifford; Clay Landry; Andrea
Larsen-Hayden. "Analysis of Water Banks in the
Western States," Washington Department of
Ecology and WestWater Research. July 2004.
http://www.ecy.wa.gov/biblio/041 101 1 .html.
'^ Ibid.
46
\Naier — Monfana's Treasure
* ensure a future water supply for
people, farms, and fish;
* promote water conservation by
encouraging right holders to conserve and
deposit rights
into the bank;
* act as a market mechanism;
* resolve issues of inequity
between groundwater and surface water
users;
* ensure compliance with intrastate
agreements of instream flow.
P The goal of a water bank is to '
* facilitate the transfer of water
from one use to another use by
bringing buyers and sellers
together. I
Water banks may be structured in many
ways, but they can be broken down into
these general categories:"'^
* Institutional bank. This might be
called a paper bank. It functions as a way
to exchange water rights and other
entitlements. Institutional banks are
developed for areas where physical
water storage is limited or for large
geographic areas. These banks also may
be used for natural flow rights or a
combination of natural flow and storage
rights.
* Surface storage bank. In this
case, the exchange of water is backed by
water stored in reservoirs or other storage
facilities.
* Ground water bank. Ground
water banking exchange credits or
entitlements for water withdrawals from
an aquifer. Under conjunctive use
programs, excess surface water is injected
or infiltrated into the ground water
aquifer to be extracted during times of
limited surface water supply. Ground
water banking programs also are being
developed to provide mitigation in areas
with excessive surface water withdrawals.
The entity that administers the bank will
likely affect the cost to establish and
administer the bank. The administration of
the bank also may play a part in the level
of trust and participation by water
44
users.
Examples of administrative structures
include:"^
* Public. Most existing water banks
are operated by a federal, state, or local
governmental agency or an administrative
board specifically developed to provide
administrative oversight.
* Private nonprofit. This could be a
new organization composed of
representatives from stakeholder groups
or a contract with an existing nonprofit.
Ibid.
" Ibid.
'' Ibid.
Water — Montana's Treasure
47
* Private for profit corporation.
There have been limited attempts at this
model.
* Public-private partnership. In this
model, a private corporation and a public
entity jointly invest capital and operate
the water bank.
The administrative costs also v/ill be
affected by what services a water bank
chooses to offer. At the least, a water
bank might aggregate water supplies
from willing sellers and facilitate the sale
to buyers. Other services may include:"**
* registry of water rights or
entitlements;
* regulating or setting market
prices.;
* setting and implementing
long-term strategic policies and daily
operations;
* establishing whether the bank
operates on a year-by-year or continual
basis;
* determining which rights can be
banked;
* quantifying the bankable water;
* specifying who can purchase or
rent from the bank;
* setting transfer or contract terms;
* dealing with any regulatory
agencies;
* resolving disputes;
Policy Questions
Water marketing is a vast topic and can
spur discussion on a variety of issues. But a
few policy questions to consider may
include:
* Are current lease and change laws
working? Are changes needed?
* What role should the state play in water
marketing?
* Is an intermediary such as a water bank
necessary?
* Would a water bank be a statewide
entity, or would it apply to specific basins?
* Should a water bank operate year-
round, during a growing season, or only
during droughts?
* How would a water bank protect the
water rights of users who are not part of
the water bank from adverse effects?
As part of a wide-ranging water study,
the 2004 Environmental Quality Council
studied some aspects of water banking in
Montana. The EQC decided that while
water banking works in some states,
Montana has water marketing alternatives
in place and there was no need to add
more. The panel also found that Montana
lacks the physical strictures needed for
water banking in the state."*^
Ibid.
■"^ http://leg.mt.gov/content/publications
/environmental/2005 waterreport.pdf.
48
Wafer — Montana's Treasure
1
Additional Information
Two publications that examine water
marketing in Montana are "Private Water
Leasing: A Montana Approach", produced
by Trout Unlimited/^ and "Saving our
Streams: Harnessing Water Markets,"
produced by the Property and
Environmental Research Center/'
Much of the information about water
banks in this report comes from the
"Analysis of Water Banks in the Western
States," a 2004 report from the
Washington Department of Ecology and
WestWater Research.^"
In 2005, the Montana Water Center at
Montana State University-Bozeman
oversaw a student analysis of water
banking in western states.^^
'"' http://www.tu.org/atf/cf/
%7B0D18ECB7-7347-445B-A38E-65B282BBBD
8A%7D/MT_WaterReport.pdf.
http://www.perc.org/pdf/
sos_2007.pdf.
Wafer — Montana's Treasure
^° http://www.ecy.wa.gov/biblio/
041 101 l.html.
51
hnp://leg. mt.gov/content/committees/interim/
2007_2008/water_policy/staffmemos/
watermarketing 1 0 1 .pdf .
49
On the Road
From the outset, the Water Policy
Committee wanted to hear from
Montanans most affected by water issues.
They decided to visit closed
basins — areas where the issuance of new
permits may be limited because of
concerns about water quantity.
The committee held meetings in Dillon,
Bozeman, Thompson Falls, Choteau, and
Hamilton. At each meeting, panelists
discussed issues outlined in the House Bill
No. 304 study, but local perspectives
also were given.
At the Dillon meeting, the committee
heard overviews of many of the key
water issues in Montana and how water is
managed in other western states. They
also reviewed staff research on the
history of closed basins and legal issues,
including implications of the Trout
Unlimited decision.
Presentations from John Tubbs of DNRC,
David Schmidt of Water Rights Solutions,
hydrologist Jim Potts of HKM Engineering,
and Cindy Younkin, a water rights
attorney, compared mitigation,
augmentation, and aquifer recharge
options and alternatives for applying the
concepts in Montana water law.
Another panel explained methods for the
management of water to ensure
compliance with closed basin law,
including the artificial recharge of ground
water. Those speakers included Rich Moy
of the DNRC, Steve Kilbreath of the DEQ,
consultant John Westenberg of PBS&J,
hydrologist Michael Nicklin, and attorney
Bill Hritsco.
To see some of these issues on the
ground, the committee toured the area
with stops at the Clark Canyon Dam, the
East Bench Irrigation Diversion, the Tash
Ranch, Schuett Farms, and Cottom Farms.
WPIC tour of the Beaverhead Valley.
Photo by Cynthia Peterson.
Water quality was a main theme at the
Bozeman meeting.
The WPIC was asked to analyze water
quality testing requirements to ensure
50
Wafer — Montana's Treasure
that the use of mitigation, augmentation,
or aquifer recharge does not adversely
affect ground water quality. Panelists
included Tom Reid of the DEQ, Julie
DalSoglio of the EPA, John Tubbs of the
DNRC, MSU geologist Steve Custer, Kate
Miller of the DEQ, MSU microbiologist Tim
Ford, MSU civil engineer Warren Jones,
research hydrologist Gary Icopini of
MBMG, John Metesh of MBMG, and Tom
Patton of MBMG.
The committee also wanted to know if
potential applicants are provided with a
clear process to follow that ensures the
protection of water quality and prior
appropriators while allowing
development in Montana. Speaking to
that issue were attorney Russ McElyea of
Moonlight Basin Ranch, Gallatin County
Planner Greg Sullivan, Tim Roark, the
Gallatin County director of environmental
health, and Holly Franz of PPL Montana.
WPIC tour of the Gallatin Valley.
Photo by Cynthia Peterson.
Tom Reid of the DEQ, Julie DalSoglio of
the EPA, John Tubbs of the DNRC, MSU
geologist Steve Custer, Kate Miller of the
DEQ, MSU microbiologist Tim Ford, MSU
civil engineer Warren Jones, research
hydrologist Gary Icopini of MBMG, John
Metesh of MBMG, and Tom Patton of
MBMG spoke about water quality
associated with storage or introduction of
surface water to ground water resources.
Also at the Bozeman meeting, the
committee heard about other issues
related to mitigation, augmentation, or
aquifer recharge in Montana to facilitate
continued economic development and
growth while providing reasonable
protections to senior appropriators and
water quality of surface and ground
water resources. Panelists included
attorney Russ McElyea of Moonlight Basin
Ranch, Gallatin County Planner Greg
Sullivan, Tim Roark, the Gallatin County
director of environmental health, and
Holly Franz of PPL Montana.
The WPIC toured the Upper Missouri and
Gallatin Valley. Alan English, the
manager of the Gallatin Local Water
Quality District, provided an overview of
the basins. The tour included the following
sites:
• Utility Solutions, including the
water supply and sewage treatment
facilities.
• Flying A Holdings, including the
aquifer storage and recovery water
supply system and water quality testing.
• JTL Gravel Pit, examining the
relation of ground water to surface
Water — Monfana's Treasure
51
water, and the issues of water quality
and water right permit requirements.
• City of Manhattan, including the
municipal water supply and sewage
treatment facilities.
Additional photos from the Dillon and
Bozeman tours are available at
www.leg.mt.gov/water
In September of 2007, the committee
went to Thompson Falls. Topics discussed
there included aquifer recharge and
mitigation, in addition to exempt wells
and enforcement. Topics of regional
interest included discussion of the Milltown
Dam water rights and an update on the
Clark Fork Task Force by Gerald Mueller.
John Carter of the Confederated Salish
and Kootenai Tribes gave an update on
the water rights compact negotiation.
The Choteau meeting included a
presentation by the Teton River
Watershed Group as well as a
hydrologic overview of the Teton River
by the DNRC. Water Court Judge Bruce
Loble and others discussed adjudication in
the area.
The January meeting in Hamilton was the
committee's first look at possible
legislation. Several residents of the area
provided comments.
52
Wofer — Montana's Treasure
Appendix A
WPIC Study Tasks & Responses
Introduction
The 2007-08 Water Policy Interim Committee (WPIC) conducted a detailed study of water
quantity, water quality, and water use in Montana. House Bills 304 and 831, both passed in the
2007 Legislature, defined the scope of the study. Many issues in the study related to issues in
closed basins but also could have statewide implications.
This document details how the WPIC addressed each assigned study tasks. This is only a brief
outline of the issues the WPIC analyzed. More documentation, including minutes of meetings and
all documents received by the committee, are available at: www.leg.mt.gov/water
Assigned Study Tasks
1. Study Task: Review current Montana law related to mitigation, augmentation, or aquifer
recharge.
WPIC Response: Reviewed staff research on HB 831 issues and legal analysis of related
cases. Received regular updates from the DNRC on rulemaking and implementation of HB 831
provisions. Heard public comment on HB 831 provisions, including presentations from applicants
dealing with the new law.
Presentations in June 2008 by DNRC, the MBMG, and Dave Pruitt, on irrigator and former
water commissioner on the effects of different types of irrigation.
2. Study Task: Analyze other states' laws and rules related to mitigation, augmentation, or
aquifer recharge and the other states' experiences with applying and using mitigation,
augmentation, and aquifer recharge.
WPIC Response: Reviewed staff comparison of water management in Arizona, Colorado,
Idaho, and Washington. Panel discussion in July 2007 included presentations from DNRC, DEQ,
consultants, hydrologists, and attorneys involved in various aspects of water use in Montana. In
September 2007, a review of aquifer storage and recovery in Washington by Linton Wildrick of
the Pacific Groundwater Group. In March 2008, John Metesh presented a summary of an aquifer
storage, recovery and recharge seminar he attended.
3. Study Task: Compare mitigation, augmentation, and aquifer recharge options and alternatives
for applying the concepts in Montana water law.
WPIC Response: Panel discussion in July 2007 included presentations from John Tubbs of
DNRC, David Schmidt of Water Rights Solutions, hydrologist Jim Potts of HKM Engineering, and
A-1
Cindy Younkin, a water rights attorney. In September 2007, Kirk Waren of the MBMG discussed
the feasibility of aquifer storage and recovery in Montana. Presentation in April 2008 of the
Ruby Valley Groundwater Management Plan by KirK Engineering and Ann Schwend, the Ruby
Watershed Coordinator. Presentations in June by DNRC, the MBMG, and Dave Pruitt, an irrigator
and former water commissioner on the effects of different types of irrigation.
4. Study Task: Analyze water quality testing requirements to ensure that the use of mitigation,
augmentation, or aquifer recharge does not adversely affect ground water quality.
WPIC Response: Panel presentations in August 2007 from Tom Reid of the DEQ, Julie
DalSoglio of the EPA, John Tubbs of the DNRC, MSU geologist Steve Custer, Kate Miller of the
DEQ, MSU microbiologist Tim Ford, MSU civil engineer Warren Jones, research hydrologist Gary
Icopini of MBMG, John Metesh of MBMG, and Tom Patton of MBMG.
Presentation in June 2008 by Eric Regensburger of the DEQ on water quality issues.
5. Study Task: Analyze data developed to determine the type and amount of research, data,
and analysis necessary to develop a scientifically defensible hydrogeologic assessment to be
used in making informed decisions with regard to mitigation, augmentation, or aquifer recharge
activity in Montana.
WPIC Response: Multiple presentations from the MBMG study regarding potential ground
water withdrawal impacts on surface water and the adequacy of any additional recommended
minimum standards and criteria for hydrogeologic assessments. Presentation in June 2008 of
report commissioned by the Montana Association of Realtors.
6. Study Task: Study appropriate monitoring requirements to determine the effectiveness of
mitigation, augmentation, or aquifer recharge plans.
WPIC Response: Presentations in September 2007 from Dr. William Woessner, professor
of hydrology at the University of Montana, Russell Levens, a DNRC hydrologist, Kate Miller from
the DEQ, and a water user. Randy Overton of RLK Hydro. Presentation on cumulative impact on
water quantity in September 2007 from Mike Roberts, a DNRC surface water hydrologist, Steve
Fry of Avista, a senior appropriator, and an applicant. Marc Spratt of RLK Hydro, Inc.
7. Study Task: Identify gaps in data necessary to determine appropriate locations to conduct
artificial recharge of ground water.
WPIC Response: Presentations from various experts. Presentation in April 2008 of the
Ruby Valley Groundwater Management Plan by Kirk Engineering and Ann Schwend, the Ruby
Watershed Coordinator. Presentations in June by DNRC, the MBMG, and Dave Pruitt, an irrigator
and former water commissioner on the effects of different types of irrigation.
8. Study Task: Examine other issues related to mitigation, augmentation, or aquifer recharge in
Montana to facilitate continued economic development and growth while providing reasonable
protections to senior appropriators and water quality of surface and ground water resources.
A-2
WPIC Response: Panel presentations in August 2007 from attorney Russ McElyec of
Moonlight Basin Ranch, Gallatin County Planner Greg Sullivan, Tim Roark, the Gallatin County
director of environmental health, and Holly Franz of PPL Montana.
Multiple presentations from the MBMG study regarding potential ground water
withdrawal impacts on surface water and the adequacy of any additional recommended minimum
standards and criteria for hydrogeologic assessments.
Presentation in April 2008 of the Ruby Valley Groundwater Management Plan by Kirk
Engineering and Ann Schwend, the Ruby Watershed Coordinator. Presentations in June by DNRC,
the MBMG, and Dave Pruitt, an irrigator and former water commissioner on the effects of
different types of irrigation.
9. Study Task: Study methods for the management of water to ensure compliance with closed
basin law, including the artificial recharge of ground water.
WPIC Response: Reviewed staff research on the history of closed basins and legal issues,
including implications of Trout Unlimited decision. Presentations in July 2007 from Rich Moy of the
DNRC, Steve Kilbreath of the DEQ, consultant John Westenberg of PBS&J, hydrologist Michael
Nicklin, and attorney Bill Hritsco. Presentation in March 2008 from Michelle Bryan Mudd, a UM
law professor, on land use and water law.
Presentation in April 2008 of the Ruby Valley Groundwater Management Plan by KirK
Engineering and Ann Schwend, the Ruby Watershed Coordinator. Presentations in June by DNRC,
the MBMG, and Dave Pruitt, an irrigator and former water commissioner on the effects of
different types of irrigation.
10. Study Task: Review drinking water standards and effluent treatment standards in other
jurisdictions and recommend appropriate treatment standards for the purposes of aquifer
recharge and mitigation.
WPIC Response: Presentations in September from Randy Overton of RLK Hydro, and Kate
Miller from the DEQ.
1 1. Study Task: Identify research necessary, if any, to determine alternatives and options for
conducting water management through artificial recharge of ground water.
WPIC Response: Presentation in August 2007 by Tom Reid of the DEQ. Presentations in
September from Randy Overton of RLK Hydro, and Kate Miller from the DEQ.
12. Study Task: Conduct a water quality analysis associated with storage or introduction of
surface water to ground water resources.
WPIC Response: Panel presentations in August 2007 from Tom Reid of the DEQ, Julie
DalSoglio of the EPA, John Tubbs of the DNRC, MSU geologist Steve Custer, Kate Miller of the
DEQ, MSU microbiologist Tim Ford, MSU civil engineer Warren Jones, research hydrologist Gary
Icopini of MBMG, John Metesh of MBMG, and Tom Patton of MBMG.
A-3
13. Study Task: Identify the extent to which cumulative impacts are analyzed from a water
quantity and a water quality perspective and whether or not the two findings are assessed jointly
and determine the appropriate level of coordination.
WPIC Response: Presentations in September 2007 from Dr. William Woessner, professor
of hydrology at the University of Montana, Russell Levens, a DNRC hydrologist, Kate Miller from
the DEQ and a water user, Randy Overton of RLK Hydro. Presentation on cumulative impact on
water quantity in September 2007 from Mike Roberts, a DNRC surface water hydrologist, Steve
Fry of Avista, a senior appropriator, and an applicant. Marc Spratt of RLK Hydro, Inc.
14. Study Task: Determine an appropriate, accurate, and time-efficient process for coordinating
water quality requirements with the water appropriations process.
WPIC Response: Presentations in September 2007 from Bonnie Lovelace of the DEQ, land
use attorney Myra Shults, Sanders County sanitarian Barbara Woodbury, and Jim Carlson, the
environmental health director for Missoula County. Multiple presentations from DEQ and DNRC.
Convened a work group of interested parties.
Formed a work group in 2008 of more than 20 participants that met twice in an effort to
find consensus on various issues before the committee.
15. Study Task: Evaluate how the Department of Environmental Quality and the Department of
Natural Resources and Conservation issue permits that affect ground water or surface water
quality and whether or not the water appropriation process and the water quality process are
coordinated.
WPIC Response: Presentations in September 2007 from Bonnie Lovelace of the DEQ, land
use attorney Myra Shults, Sanders County sanitarian Barbara Woodbury, and Jim Carlson, the
environmental health director for Missoula County. Multiple presentations from DEQ and DNRC.
Convened a work group of interested parties.
Formed a work group in 2008 of more than 20 participants that met twice in an effort to
find consensus on various issues before the committee.
16. Study Task: Determine if potential applicants are provided with a clear process to follow that
ensures the protection of water quality and prior appropriators while allowing development in
Montana.
WPIC Response: Panel presentations in August 2007 from attorney Russ McElyea of
Moonlight Basin Ranch, Gallatin County Planner Greg Sullivan, Tim Roark, the Gallatin County
director of environmental health, and Holly Franz of PPL Montana. A January 2008 presentation
from Lee Wolfe of East Gate Village in East Helena. Multiple presentations from DEQ and DNRC.
Convened a work group of interested parties.
Presentation in June of Bostwick case in Gallatin County where DNRC was ordered to issue
a permit, despite various concerns, because the agency violated time limits for reviewing the
application.
A-4
Formed a work group in 2008 of more than 20 participants that met twice in an effort to
find consensus on various issues before the committee.
17. Study Task: Determine the number of exempt wells in Montana and estimate of the number of
exempt wells expected to be developed by 2020.
WPIC Response: Presentation in September 2007 from Curt Martin of the DNRC, as well
as presentations from other DNRC staff, DEQ, the Montana Association of Realtors, and the
Montana Building Industry Association.
18. Study Task: Determine the types of beneficial uses to which water from exempt wells is
applied.
WPIC Response: September 2007 report from Curt Martin of the DNRC.
19. Study Task: Evaluate the hydrogeologic analysis necessary to determine consumptive use on
a per-acre or fraction-of-an-acre basis and on a per-use basis.
WPIC Response: October 2007 presentations by John LaFave of the Montana Bureau of
Mines and Geology and Bill Uthman, a DNRC hydrogeologist.
20. Study Task: Analyze the amount of water reasonably necessary for the various beneficial
uses and compare the reasonable use standard with current statutory limits, including volume, flow
rote, and other criteria that the committee determines are necessary to provide for accurate and
adequate measurement of water use through exempt wells.
WPIC Response: Presentations in October 2007 from Eric Regensburger of the DEQ, Larry
Dolan of the DNRC, and Dr. Steve Custer, professor of geology at MSU.
21. Study Task: Examine options and alternatives for enforcing statutory limitations regarding
exempt well usage.
WPIC Response: October 2007 presentations from Tim Hall, DNRC legal counsel, Dustin
Stewart of the Montana Building Industry Association, and John Youngberg of the Montana Farm
Bureau Federation.
22. Study Task: Determine the necessity and reasons for providing a process that is exempt from
the permitting.
WPIC Response: October 2007 presentations from Dustin Stewart of the Montana
Building Industry Association, Glenn Oppel of the Montana Association of Realtors, John
Youngberg of the Montana Farm Bureau Federation, Rich Moy of the DNRC, and Laura Ziemer of
Trout Unlimited.
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23. Study Task: Analyze water marketing and water reallocation options available in Montana,
including the leasing of water rights, water banking, water trading, and water sales; the
lease-to-sale ratio of water rights; the number of market purchases completed; the purposes of
water trades or sales; the feasibility of creating and operating a water bank; and the
administrative procedures and costs necessary to establish and operate a water bank.
WPIC Response: Reviewed staff research on applicable Montana laws as well as an
overview of water banking options. Presentations from the Departments of Natural Resources and
Conservation and Fish, Wildlife, and Parks, as well as from Property and Environment Research
Center, the Montana Water Trust, Trout Unlimited, the Farm Bureau Federation, and the Bureau of
Reclamation.
24. Study Task: Gather appropriate information that the committee determines is necessary to
make sound and well-reasoned policy decisions to guide the management and use of Montana's
ground water resource into the future.
WPIC Response: The WPIC held 1 0 meetings over the interim. In addition to Helena
meetings, the WPIC visited Dillon, Bozeman, Thompson Falls, Choteau, and Hamilton. Each meeting
included testimony from various water experts, agency personnel, and interested members of the
public. The WPIC addressed each study task assigned by the Legislature and delved into other
areas not specifically referenced by the enabling legislation.
Formed a work group in 2008 of more than 20 participants that met twice in an effort to
find consensus on various issues before the committee.
June 2008 presentation by Anna Miller of the DNRC on various funding programs
available for community water and sewer systems.
Presentation in April 2008 of the Ruby Valley Groundwater Management Plan by KirK
Engineering and Ann Schwend, the Ruby Watershed Coordinator. Presentations in June by the
DNRC, the MBMG, and Dave Pruitt, an irrigator and former water commissioner on the effects of
different types of irrigation.
25. Study Task: Present long-term goals and policy proposals for water management related to
ground water resources.
WPIC Response: The WPIC held 10 meetings over the interim. In addition to Helena
meetings , the WPIC visited Dillon, Bozeman, Thompson Falls, Choteau, and Hamilton. Each
meeting included testimony from various water experts, agency personnel and interested
members of the public. The WPIC addressed each study task assigned by the Legislature and
delved into other areas not specifically referenced by the enabling legislation.
26. Study Task: Submit a report to the 61 st Legislature that provides clear policy direction and
necessary legislation to guide Montana's water policy and that ensures fair and reasonable use
of Montana's water resource as demands on water increase while supplies remain the same or
decrease.
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WPIC Response: Held meetings in closed basins where demands on water supplies are
highest in an effort to elicit concerns about water management from those who deal with the issue
daily. Reviewed research, solicited expert opinions and debated policy options throughout the
interim.
Reviewed process for developing the state water plan.
Formed a subcommittee with the Environmental Quality Council to debate options for
making water policy a permanent interim study issue.
Other Issues Examined
1. General Enforcement of Water Rights
WPIC Response: Presentations in April 2008 from Water Court Judge Bruce Loble, DNRC
legal counsel Candy West, Sarah Bond of the Attorney General's office, Gallatin County
Attorney Marty Lambert, and Lezlie Kinne, a water commissioner.
2. The Growing Communities Doctrine
WPIC Response: Presentations in March 2008 from Greg Petesch, WPIC attorney, Elena
Zlatnik of Mountain Water, and Candy West, DNRC legal counsel.
3. Instream Flows and Fishing Closures
WPIC Response: Presentation in January 2008 from Bill Schenk of the Department of Fish,
Wildlife, and Parks.
4. Opencut Mining
WPIC Response: The WPIC discussed opencut mining in April 2008 as it relates to water
quality as well as permitting. The DEQ explained the ramifications of recent court decisions, and
two residents of Gallatin County provided testimony.
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Appendix B
1 HOUSE BILL NO. 831
2 INTRODUCED BY MCNUTT, POMNICHOWSKI, COHENOUR, VAN DYK. SMALL-EASTMAN
3
4 A BILL FOR AN ACT ENTITLED: "AN ACT REVISING WATER LAWS IN CLOSED BASINS; DEFINING TERMS
5 IN WATER USE LAWS; AMENDING REQUIREMENTS FOR AN APPLICATION TO APPROPRIATE GROUND
6 WATER IN A CLOSED BASIN; PROVIDING THAT CERTAIN APPLICATIONS TO APPROPRIATE SURFACE
7 WATER ARE EXEMPT FROM CLOSED BASIN REQUIREMENTS; PROVIDING REQUIREMENTS FOR
8 HYDROGEOLOGIC ASSESSMENTS, MITIGATION PLANS, AND AQUIFER RECHARGE PLANS; PROVIDING
9 MINIMUM WATER QUALITY STANDARDS FOR CERTAIN DISCHARGES OF EFFLUENT; REQUIRING THAT
10 PREVIOUSLY APrROVCD PLANS Tl lAT WERE NOT LOCATED IN Tl IE CLARK FORK DAGIN MUST MEET
11 CERTAIN CRITERIA; REQUIRING THAT DATA BE SUBMITTED TO THE BUREAU OF MINES AND
1 2 GEOLOGY; PROVIDING FOR RULEMAKING; PROVIDING FOR A CASE STUDY AND REQUIREMENTS AND
13 A FEE FOR PARTICIPATION IN THE CASE STUDY; RECOGNIZING AND CONFIRMING EXISTING
14 APPROPRIATION RIGHTS IN CERTAIN INSTANCES; PROVIDING AN APPROPRIATION; AMENDING
15 SECTIONS 85-2-102, 85-2-302, 85-2-311, 85-2-329, 85-2-330, 85-2-335, 85-2-336, OG-2-337, 85-2-340,
1 6 85-2-341 , 85-2-342, 85-2-343, 85-2-344, 05-2-402, AND 85-2-506, MCA; REPEALINGSECTION85-2-337.MCA;
17 DIRECTING THE AMENDMENT OF ARM 36.12.101 AND 36.12.120; AND PROVIDING AN IMMEDIATE
1 8 EFFECTIVE DATE AND APPLICABILITY DATES AN APPLICABILITY DATE."
19
20 WHEREAS, it is the policy of this state to encourage the wise use of the state's water resources by
21 making them available for appropriation and to provide wise utilization, development, and conservation of the
22 water of the state for the maximum benefit of its people with the least possible degradation of the state's natural
23 aquatic ecosystems; and
24 WHEREAS, there has been confusion regarding ground water issues in closed basins and the
25 Department of Natural Resources and Conservation needs guidance from the Legislature on how to proceed;
26 and
27 WHEREAS, the basin closure laws were passed to protect senior appropriators while the state water
28 adjudication is ongoing; and
29 WHEREAS, ground water development in closed basins should be able to proceed as long as the
30 applicant collects the necessary scientific information to determine if there will be an adverse effect on a prior
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1 appropriator and takes the necessary actions to mitigate or prevent any adverse effects on a prior appropriator;
2 and
3 WHEREAS, it is critical that the Legislature develop state water policies in a way that protects the prior
4 appropriation doctrine while at the same time protecting the quality of Montana's water and the ability to
5 appropriate water consistent with section 85-1-101 , MCA, and Article IX, section 3, of the Montana Constitution;
6 and
7 WHEREAS, augmentation is statutorily authorized for the Clark Fork River Basin only; and
8 WHEREAS, the Department of Natural Resources and Conservation has developed administrative rules
9 and applied augmentation through these administrative rules to all basins even though not specifically statutorily
10 authorized; and
1 1 WHEREAS, administrative rules and rulemaking must comply with section 2-4-305, MCA, and may not
12 engraft material not contemplated by the Legislature; and
13 WHEREAS, this bill provides definitions and a new procedure for mitigation and aquifer recharge.
14
15 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
16
17 Section 1. Section 85-2-102, MCA, is amended to read:
1 8 "85-2-1 02. (Temporary) Definitions. Unless the context requires otherwise, in this chapter, the following
19 definitions apply:
20 (1) "Appropriate" means:
21 (a) to divert, impound, or withdraw, including by stock for stock water, a quantity of water for a beneficial
22 use;
23 (b) in the case of a public agency, to reserve water in accordance with 85-2-316;
24 (c) in the case of the department of fish, wildlife, and parks, to lease water in accordance with 85-2-436;
25 Of
26 (d) temporary changes or leases for instream flow to maintain or enhance instream flow to benefit the
27 fishery resource in accordance with 85-2-408;
28 (e) a use of water for aquifer recharge or mitigation as provided in Tsections 45 14 and 4t^ 16]; or
29 (f) a use of water for an aquifer storage and recovery project as provided in [section 20],
30 (2) "Aquifer recharge" means either the controlled subsurface addition of water directly to the aquifer or
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1 controlled application of water to the ground surface for the purpose of replenishing the aquifer to offset adverse
2 EFFECTS RESULTING FROM net depletion of surface water m-a closed basin resulting from a new appropriation mht
3 or certain changes in an appropriation right.
4 (3) "Aquifer storage and recovery project" means a project involving the use of an aquifer to temporarily
' 5 store water through various means, including but not limited to injection, surface spreading and infiltration, drain
6 fields, or another department-approved method. The stored water may be either pumped from the injection well
7 or other wells for beneficial use or allowed to naturally drain away for matntenance or enhancement oHhe
8 streamflow a beneficial use.
9 (2)(4J "Beneficial use", unless otherwise provided, means:
10 (a) a use of water for the benefit of the appropriator, other persons, or the public, including but not limited
1 1 to agricultural^ (including stock water), domestic, fish and wildlife, industrial, irrigafion, mining, municipal, power,
, 12 and recreafional uses;
'13 (b) a use of water appropriated by the department for the state water leasing program under 85-2-1 41
I 1 4 and of water leased under a valid lease issued by the department under 85-2-1 41 ;
15 (c) a use of water by the department offish, wildlife, and parks pursuant to a lease authorized under
I 16 85-2-436; Of
! 17 (d) a use of water through a temporary change in appropriafion right or lease to enhance instream flow
18 to benefit the fishery resource in accordance with 85-2-408;
19 (e) a use of water for aquifer recharge or mitigation as provided in [sections +5 14 and 4t^ 161: or
20 (f) a use of water for an aguifer storage and recovery project as provided in [section 201.
21 (^{5} "Certificate" means a certificate of water right issued by the department.
22 H)(6) "Change in appropriafion right" means a change in the place of diversion, the place of use, the
23 purpose of use, or the place of storage.
24 f5)(7) "Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.
25 f6)(8) "Correct and complete" means that the information required to be submitted conforms to the
26 standard of substanfial credible informafion and that all of the necessary parts of the form requiring the
27 informafion have been filled in with the required informafion.
28 ffl(9) "Declaration" means the declarafion of an existing right filed with the department under secfion
29 8, Chapter 452, Laws of 1 973.
30 (6)(10j "Department" means the department of natural resources and conservafion provided for in Tifie
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1 2, chapter 15, part 33.
2 f^(11) "Developed spring" means any artificial opening or excavation in the ground, however made,
3 including any physical alteration at the point of discharge regardless of whether it results in any increase in the
4 yield of ground water, from which ground water is sought or can be obtained or through which it flows under
5 natural pressures or is artificially withdrawn.
6 (+9)(12j "Existing right" or "existing water right" means a right to the use of water that would be protected
7 under the law as it existed prior to July 1 , 1 973. The term includes federal non-Indian and Indian reserved water
8 rights created under federal law and water rights created under state law.
9 W-)(13) "Ground water" means any water that is beneath the ground surface.
1 0 (+2)(14] "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption
1 1 of abandonment under 85-2-226.
12 (15) "Mitigation" means the reallocation of surface water or ground water through a change in
13 appropriation right or other means that does not result in surface water being introduced into an aquifer through
14 aquifer recharge to offset adverse effects resulting from net depletion of surface water in a closed-bastn
15 resulting from a new appropriation right or certain changes in an appropriation right.
16 (16) "Municipality" means an incorporated city or town organized and incorporated under Title 7, chapter
17 2, f
18 fB)£17} "Permit" means the permit to appropriate issued by the department under 85-2-301 through
1 9 85-2-303 and 85-2-306 through 85-2-31 4.
20 (+4)(18} "Person" means an individual, association, partnership, corporation, state agency, political
21 subdivision, the United States or any agency of the United States, or any other entity.
22 H-&)(19) (a) "Political subdivision" means any county, incorporated city or town, public corporation, or
23 district created pursuant to state law or other public body of the state empowered to appropriate water.
24 [b] The term does not mean a private corporation, association, or group.
25 f46)(20] "Salvage" means to make water available for beneficial use from an existing valid appropriation
26 through application of water-saving methods.
27 Ht^(21) "State water reservation" means a water right created under state law after July 1 , 1973, that
28 reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of water
29 throughout the year or at periods or for defined lengths of time.
30 fW)(22) "Substantial credible information" means probable, believable facts sufficient to support a
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1 reasonable legal theory upon which the department should proceed with the action requested by the person
2 providing the information.
3 (4^(23] "Waste" means the unreasonable loss of water through the design or negligent operation of an
4 appropriation or water distribution facility or the application of water to anything but a beneficial use.
5 (26)(24) "Water" means all water of the state, surface and subsurface, regardless of its character or
6 manner of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage effluent.
7 (2^(25} "Water division" means a drainage basin as defined in 3-7-102.
8 f££)[26j "Water judge" means a judge as provided for in Title 3, chapter 7.
9 (23)(27j "Water master" means a master as provided for in Title 3, chapter 7.
10 (24)(28j "Watercourse" means any naturally occurring stream or river from which water is diverted for
1 1 beneficial uses. It does not include ditches, culverts, or other constructed waterways.
1 2 (25)(29J "Well" means any artificial opening or excavation in the ground, however made, by which ground
1 3 water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn.
14 (Terminates June 30, 2009-sec. 9, Ch. 123, L. 1999.)
1 5 85-2-1 02. (Effective July 1 , 2009) Definitions. Unless the context requires otherwise, in this chapter,
16 the following definitions apply:
17 (1) "Appropriate" means:
18 (a) to divert, impound, or withdraw, including by stock for stock water, a quantity of water for a beneficial
19 use;
20 (b) in the case of a public agency, to reserve water in accordance with 85-2-316; ©f
21 (c) temporary changes or leases for instream flow to maintain or enhance instream flow to benefit the
22 fishery resource in accordance with 85-2-408;
23 (d) a use of water for aquifer recharge or mitigation as provided in [sections 45 14 and 47 16]; or
24 (e) a use of water for an aquifer storage and recovery project as provided in [section 201.
25 (2) "Aquifer recharge" means either controlled subsurface addition of water directly to the aquifer or
26 controlled application of water to the qround surface for the purpose of replenishinq the aquifer to offset adverse
27 EFFECTS RESULTING FROM net depletion of surface water tit-a-elosed basin resulting from a new appropriation right
28 or certain changes in an appropriation right.
29 (3) "Aquifer storaqe and recovery project" means a project involvinq the use of an aquifer to temporarily
30 store water throuqh various means, including but not limited to injection, surface spreading and infiltration, drain
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1 fields, or another department-approved method. The stored water may be either pumped from the injection well
2 or other wells for beneficial use or allowed to naturally drain away for maintenance or enhancement of the
3 streamflow A beneficial use.
4 (2)(4j "Beneficial use", unless otherwise provided, means:
5 (a) a use of water for the benefit of the appropriator, other persons, or the public, including but not limited
6 to agricultural^ (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal, power,
7 and recreational uses;
8 (b) a use of water appropriated by the department for the state water leasing program under 85-2-141
9 and of water leased under a valid lease issued by the department under 85-2-1 41 ; of
10 (c) a use of water through a temporary change in appropriation right or lease to enhance instream flow
1 1 to benefit the fishery resource in accordance with 85-2-408;
12 (d) a use of water for aquifer recharge or mitigation as provided in [sections 45 14 and ^ 16]; or
13 (e) a use of water for an aquifer storage and recovery project as provided in [section 201.
1 4 f^(5) "Certificate" means a certificate of water right issued by the department.
15 W(6) "Change in appropriation right" means a change in the place of diversion, the place of use, the
1 6 purpose of use, or the place of storage.
17 f5)(7) "Correct and complete" means that the information required to be submitted conforms to the
18 standard of substantial credible information and that all of the necessary parts of the form requiring the
19 information have been filled in with the required information.
20 (€)(8} "Declaration" means the declaration of an existing right filed with the department under section
21 8, Chapter 452, Laws of 1 973.
22 fB(9) "Department" means the department of natural resources and conservation provided for in Title
23 2, chapter 15, part 33.
24 (6)(10] "Developed spring" means any artificial opening or excavation in the ground, however made,
25 including any physical alteration at the point of discharge regardless of whether it results in any increase in the
26 yield of ground water, from which ground water is sought or can be obtained or through which it flows under
27 natural pressures or is artificially withdrawn.
28 f9)(11) "Existing right" or "existing water right" means a right to the use of water that would be protected
29 under the law as it existed prior to July 1 , 1 973. The term includes federal non-Indian and Indian reserved water
30 rights created under federal law and water rights created under state law.
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1 (+6)(12j "Ground water" means any water that is beneath the ground surface.
2 t4+)(13} "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption
3 of abandonment under 85-2-226.
4 (14) "Mitigation" means the reallocation of surface water or ground water through a change in
5 appropriation right or other means that does not result in surface water being introduced into an aguifer through
6 aguifer recharge to offset adverse effects resulting from net depletion of surface water in a closed hasm
7 resulting from a new appropriation right or certain changes in an appropriation riqM.
8 (15) "Municipality" means an incorporated city or town organized and incorporated under Title 7, chapter
9 Z
10 H^(16) "Permit" means the permit to appropriate issued by the department under 85-2-301 through
1 1 85-2-303 and 85-2-306 through 85-2-314.
12 f4^(17) "Person" means an individual, association, partnership, corporation, state agency, political
13 subdivision, the United States or any agency of the United States, or any other entity.
14 f44)(18) (a) "Political subdivision" means any county, incorporated city or town, public corporation, or
1 5 district created pursuant to state law or other public body of the state empowered to appropriate water.
16 {b] The term does not mean a private corporation, association, or group.
1 7 f45^19) "Salvage" means to make water available for beneficial use from an existing valid appropriation
18 through application of water-saving methods.
19 (46)(20] "State water reservation" means a water right created under state law after July 1 , 1973, that
20 reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or guality of water
21 throughout the year or at periods or for defined lengths of time.
22 (4t^(21) "Substantial credible information" means probable, believable facts sufficient to support a
23 reasonable legal theory upon which the department should proceed with the action reguested by the person
24 providing the information.
25 (+8)(22j "Waste" means the unreasonable loss of water through the design or negligent operation of an
26 appropriation or water distribution facility or the application of water to anything but a beneficial use.
27 (+9)(23] "Water" means all water of the state, surface and subsurface, regardless of its character or
28 manner of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage effluent.
29 (20)(24} "Water division" means a drainage basin as defined in 3-7-102.
30 (2^(25] "Water judge" means a judge as provided for in Title 3, chapter 7.
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1 (22)(26] "Water master" means a master as provided for in Title 3, chapter 7.
2 f23)(27] "Watercourse" means any naturally occurring stream or river from which water is diverted for
3 beneficial uses. It does not include ditches, culverts, or other constructed waterways.
4 (24){28] "Well" means any artificial opening or excavation in the ground, however made, by which ground
5 water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn."
6
7 Section 2. Section 85-2-302, MCA, is amended to read:
8 "85-2-302. Application for permit. (1 ) Except as provided in 85-2-306 and for the purpose of test wells
9 for conducting the hydroqeoloqic assessment and monitoring pursuant to fsections 15 through 17 and 22}
10 [SECTION 211. a person may not appropriate water or commence construction of diversion, impoundment,
1 1 withdrawal, or related distribution works except by applying for and receiving a permit from the department.
12 (2) The department shall adopt rules that are necessary to determine whether or not an application is
1 3 correct and complete, based on the provisions applicable to issuance of a permit under this part. The rules must
14 be adopted in compliance with Title 2, chapter 4.
15 (3) The application must be made on a form prescribed by the department. The department shall make
16 the forms available through its offices.
17 (4) The applicant shall submit a correct and complete application. The determination of whether an
1 8 application is correct and complete must be based on rules adopted under subsection (2) that are in effect at the
19 time the application is submitted.
20 (5) The department shall notify the applicant of any defects in an application within 1 80 days. The defects
21 must be identified by reference to the rules adopted under subsection (2). If the department does not notify the
22 applicant of any defects within 1 80 days, the application must be treated as a correct and complete application.
23 (6) An application does not lose priority of filing because of defects if the application is corrected or
24 completed within 30 days of the date of notification of the defects or within a further time as the department may
25 allow, but not to exceed 90 days from the date of notification. If an application is made correct and complete after
26 the mandated time period, but within 90 days of the date of notification of the defects, the priority date of the
27 application is the date the application is made correct and complete.
28 (7) An application not corrected or completed within 90 days from the date of notification of the defects
29 is terminated."
30
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1 Section 3. Section 85-2-31 1 , IVICA, is amended to read:
2 "85-2-311. Criteria for issuance of permit. (1) A permit may be issued under this part prior to the
3 adjudication of existing water rights In a source of supply. In a permit proceeding under this part^ there is no
4 presumption that an applicant for a permit cannot meet the statutory criteria of this section prior to the adjudication
5 of existing water rights pursuant to this chapter, in making a determination under this section, the department may
6 not alter the terms and conditions of an existing water right or an issued certificate, permit, or state water
7 reservation. Except as provided in subsections (3) and (4), the department shall issue a permit if the applicant
8 proves by a preponderance of evidence that the following criteria are met:
9 (a) (i) there is water physically available at the proposed point of diversion in the amount that the
10 applicant seeks to appropriate; and
1 1 (ii) water can reasonably be considered legally available during the period in which the applicant seeks
12 to appropriate, in the amount requested, based on the records of the department and other evidence provided
13 to the department. Legal availability is determined using an analysis involving the following factors:
14 (A) identification of physical water availability;
15 (B) identification of existing legal demands on the source of supply throughout the area of potential
16 impact by the proposed use; and
17 (C) analysis of the evidence on physical water availability and the existing legal demands, including but
1 8 not limited to a comparison of the physical water supply at the proposed point of diversion with the existing legal
19 demands on the supply of water.
20 (b) the water rights of a prior appropriator under an existing water right, a certificate, a permit, or a state
21 water reservation will not be adversely affected. In this subsection (1)(b), adverse effect must be determined
22 based on a consideration of an applicant's plan for the exercise of the permit that demonstrates that the
23 applicant's use of the water will be controlled so the water right of a prior appropriator will be satisfied;
24 (c) the proposed means of diversion, construction, and operation of the appropriation works are
25 adequate;
26 (d) the proposed use of water is a beneficial use;
27 (e) the applicant has a possessory interest, or the written consent of the person with the possessory
28 interest, in the property where the water is to be put to beneficial use;
29 (f) the water quality of a prior appropriator will not be adversely affected;
30 (g) the proposed use will be substantially in accordance with the classification of water set for the source
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1 of supply pursuant to 75-5-301(1); and
2 (h) the ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance
3 with Title 75, chapter 5, part 4, will not be adversely affected.
4 (2) The applicant is required to prove that the criteria in subsections (1 )(f) through (1 )(h) have been met
5 only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the
6 satisfaction of the department that the criteria in subsection (1 )(f), (1 )(g), or (1 )(h), as applicable, may not be met.
7 For the criteria set forth in subsection (1 )(g), only the department of environmental quality or a local water quality
8 district established under Title 7, chapter 13, part 45, may file a valid objection.
9 (3) The department may not issue a permit for an appropriation of 4,000 or more acre-feet of water a
1 0 year and 5.5 or more cubic feet per second of water unless the applicant proves by clear and convincing evidence
1 1 that:
12 (a) the criteria in subsection (1 ) are met;
13 (b) the proposed appropriation is a reasonable use. A finding must be based on a consideration of the
14 following:
15 (i) the existing demands on the state water supply, as well as projected demands, such as reservations
16 of water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum
1 7 streamflows for the protection of existing water rights and aquatic life;
18 (ii) the benefits to the applicant and the state;
19 (iii) the effects on the quantity and quality of water for existing beneficial uses in the source of supply;
20 (iv) the availability and feasibility of using low-quality water for the purpose for which application has been
21 made;
22 (v) the effects on private property rights by any creation of or contribution to saline seep; and
23 (vi) the probable significant adverse environmental impacts of the proposed use of water as determined
24 by the department pursuant to Title 75, chapter 1 , or Title 75, chapter 20.
25 (4) (a) The state of Montana has long recognized the importance of conserving its public waters and the
26 necessity to maintain adequate water supplies for the state's water requirements, including requirements for
27 federal non-Indian and Indian reserved water rights held by the United States for federal reserved lands and in
28 trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes
29 that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict
30 with the public welfare of its citizens or the conservation of its waters, the criteria in this subsection (4) must be
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1 met before out-of-state use may occur.
I 2 (b) The department may not issue a permit for the appropriation of water for withdrawal and
3 transportation for use outside the state unless the applicant proves by clear and convincing evidence that:
4 (i) depending on the volume of water diverted or consumed, the applicable criteria and procedures of
5 subsection (1) or (3) are met;
6 (ii) the proposed out-of-state use of water is not contrary to water conservation in Montana; and
7 (iii) the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens
8 of Montana.
9 (c) In determining whether the applicant has proved by clear and convincing evidence that the
10 requirements of subsections (4)(b)(ii) and (4)(b)(iii) are met, the department shall consider the following factors:
1 1 (i) whether there are present or projected water shortages within the state of Montana;
12 (ii) whether the water that is the subject of the application could feasibly be transported to alleviate water
13 shortages within the state of Montana;
I 14 (iii) the supply and sources of water available to the applicant in the state where the applicant intends to
I 15 use the water; and
' 16 (iv) the demands placed on the applicant's supply in the state where the applicant intends to use the
j 17 water.
18 (d) When applying for a permit or a lease to withdraw and transport water for use outside the state, the
1 9 applicant shall submit to and comply with the laws of the state of Montana governing the appropriation, lease, and
20 use of water.
21 (5) iFo Subject to [section 45 14], to meet the preponderance of evidence standard in this section, the
22 applicant, in addition to other evidence demonstrating that the criteria of subsection (1) have been met, shall
23 submit hydrologic or other evidence, including but not limited to water supply data, modeling iNroRMATiOHr field
24 reports, and other information developed by the applicant, the department, the U.S. geological survey, or the U.S.
25 natural resources conservation service and other specific field studies.
26 (6) An appropriation, diversion, impoundment, use, restraint, or attempted appropriation, diversion,
27 impoundment, use, or restraint contrary to the provisions of this section is invalid. An officer, agent, agency, or
28 employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized appropriation,
29 diversion, impoundment, use, or other restraint. A person or corporation may not, directly or indirectly, personally
30 or through an agent, officer, or employee, attempt to appropriate, divert, impound, use, or othenwise restrain or
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1 control waters within the boundaries of this state except in accordance with this section.
2 (7) The department may adopt rules to implement the provisions of this section.
3 (8) For an application for ground water in a basin closed pursuant to 85-2-330, 85-2-336, 85-2-341 .
4 85-2-343, or 85-2-344 or during the period of closure for any basin that is administratively closed
5 pursuant to 85-2-319. the applicant shall comply with the provisions of [section 141 in addition to the
6 requirements of this section."
7
8 Section 4. Section 85-2-329, MCA, is amended to read:
9 "85-2-329. Definitions. Unless the context requires othenwise, in 85-2-330 and this section, the following
10 definitions apply:
11 ( 1 ) "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state
1 2 water reservation pursuant to 85-2-31 6.
13 (2) "Ground water" means water that is beneath the land surface or beneath the bed of a stream, lake,
14 reservoir, or other body of surface water and that is not immediately or directly connected to surface water.
15 (^(2j "Nonconsumptive use" means a beneficial use of water that does not cause a reduction in the
1 6 source of supply and in which substantially all of the water returns without delay to the source of supply, causing
17 little or no disruption in stream conditions.
18 (4)(3] "Teton River basin" means the drainage area of the Teton River and its tributaries above the
1 9 confluence of the Teton and Marias Rivers."
20
21 Section 5. Section 85-2-330, MCA, is amended to read:
22 "85-2-330. Basin closure ~ exceptions. (1 ) As provided in 85-2-319 and subject to the provisions of
23 subsection (2) of this section, the department may not process or grant an application for a permit to appropriate
24 water or for a reservation to reserve water within the Teton River basin.
25 (2) The provisions of subsection (1) do not apply to:
26 (a) an application for a permit to appropriate ground water if the applicant complies with the provisions
27 of [section +5 141:
28 (b) an application for a permit to appropriate water for a nonconsumptive use;
29 (c) an application for a permit to appropriate water for^
30 (i) domestic use from surface water or pursuant to 85-2-306:; municipal, or
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1 (ii] stock use; or
2 (ill) use OF SURFACE WATER by OR FOR a municipality:
3 (d) an application to store water during high spring flows; ef
4 (e) emergency temporary emergency appropriations as provided for in 85-2-1 13(3); or
5 (f) an application for a permit to appropriate surface water to conduct response actions related to natural
6 resource restoration required for:
7 (i) remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation,
8 and Liability Act of 1980, 42 U.S.C. 9601 , et seq.;
9 (ii) aquatic resource activities carried out in compliance with and as required by the federal Clean Water
10 Act of 1 977, 33 U.S.C. 1 251 through 1 387: or
11 (iii) remedial actions taken pursuant to Title 75, chapter 10, part 7.
12 (3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(f) may
13 not be used for dilution.
14 (4) A chanqe of use authorization for chanqinq the purpose of use may not be issued for any permit
15 issued pursuant to subsection (2)(b), (2)(c), (2)(e), or (2)(f)."
16
17 Section 6. Section 85-2-335, MCA, is amended to read:
18 "85-2-335. Definitions. Unless the context requires othenwise, in 85-2-335^ through 85-2-336, and
19 85-2-338, the following definitions apply:
20 (1 ) "Application" means an application for a beneficial water use permit pursuant to 85-2-302.
21 (2) "Upper Clark Fork River basin" means the drainage area of the Clark Fork River and its tributaries
22 above Milltown dam."
23
24 Section 7. Section 85-2-336, MCA, is amended to read:
25 "85-2-336. Basin closure ~ exception. (1 ) As provided in 85-2-319 and subject to the provisions of
26 subsection (2) of this section, the department may not process or grant an application for a permit to appropriate
27 water within the Upper Clark Fork River basin.
28 (2) The provisions of subsection (1) do not apply to:
29 (a) an application for a permit to appropriate ground water if the applicant complies with the provisions
30 offsection+5 141:
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1 (b) an application filed prior to January 1 , 2000, for a permit to appropriate water to conduct response
2 actions or remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and
3 Liability Act of 1980, as amended, or Title 75, chapter 10, part 7, at sites designated as of January 1, 1994. The
4 total flow rates for all permits issued under this subsection (2)(b) may not exceed 10 cubic feet per second. A
5 permit issued to conduct response actions or remedial actions may not be used for dilution and must be limited
6 to a term not to exceed the necessary time to complete the response or remedial action, and the permit may not
7 be transferred to any person for any purpose other than the designated response or remedial action an
8 application for a permit to appropriate surface water to conduct aquatic resource activities carried out in
9 compliance with and as required by the federal Clean Water Act of 1 977, 33 U.S.C. 1 251 through 1 387. A permit
10 issued to conduct aquatic resource actions may not be used for dilution.
1 1 (c) an application for a permit to appropriate water for stock use;
12 (d) an application to store water; or
13 (e) an application for power generation at existing hydroelectric dams. The department may not approve
14 a permit for power generation if approval results in additional consumption of water.
15 (3) A change of use authorization for chanqinq the purpose of use may not be issued for any permit
16 issued pursuant to subsection (2)(b) or (2)(c).
17 {4] Applications for state water reservations in the Upper Clark Fork River basin filed pursuant to
18 85-2-316 and pending as of May 1, 1991, have a priority date of May 1, 1991. The filing of a state water
1 9 reservation application does not provide standing to object under 85-2-402.
20 (4)(5] The department may not process or approve applications for state water reservations in the Upper
21 Clark Fork River basin filed pursuant to 85-2-316."
22
23 Section 7. Section 85-2-337, MCA, is amended to read:
24 "85-2-337. Ground water permit applications ■■ report required. (1 ) During the period of basin closure
25 provided in 85-2-336(1 ), an applicant for a ground water permit in the Upper Clark fork River basin shall submit
26 a report prepared by a professional engineer or hydrologist addressing the hydrologic connection between the
27 source of the ground water and surface water. If the applicant fails to submit the report required in this section,
28 the application is considered defective and must be processed pursuant to 85-2-302 comply with the provisions
29 of [section 1-5^7
30 (2) Except as provided in subsection (3), the department may not issue a permit to appropriate ground
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1 water in the Upper Clark fork River basin unless the applicant proves by a preponderance of evidence, in
2 addition to the criteria of 65-2-31 1 , that the source of the ground water is not a part of or substantially or directly
3 connected to surface water.
4 (3)[2] The department may issue a permit to appropriate ground water if the application includes an
5 augmentation plan and if the applicant proves by a preponderance of evidence, in addition to the criteria of
6 65-2-311, that the augmentation plan provides sufficient augmentation water in amount, time, and location to
7 replace depletions to senior water rights pursuant to [section 15]."
8
9 Section 8. Section 85-2-340, MCA, is amended to read:
1 0 "85-2-340. Definitions. Unless the context requires otherwise, in 85-2-341 and this section, the following
1 1 definitions apply:
12 (1 ) "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state
13 water reservation pursuant to 85-2-316.
14 (2) "Ground water" means water that is beneath the land surface or beneath the bed of a stream, lake,
15 reservoir, or other body of surface water and that is not immediately or directly connected to surface water has
16 the meaning provided in 85-2-102.
17 (3) "Jefferson River basin" means the drainage area of the Jefferson River and its tributaries above the
18 confluence of the Jefferson and Missouri Rivers.
19 (4) "Madison River basin" means the drainage area of the Madison River and its tributaries above the
20 confluence of the Madison and Jefferson Rivers.
21 (5) "Nonconsumptive use" means a beneficial use of water that does not cause a reduction in the source
22 of supply and in which substantially all of the water returns without delay to the source of supply, causing little
23 or no disruption in stream conditions."
24
25 Section 9. Section 85-2-341 , MCA, is amended to read:
26 "85-2-341. Basin closure ~ exceptions. (1) As provided in 85-2-319 and subject to the provisions of
27 subsection (2) of this section, the department may not process or grant an application for a permit to appropriate
28 water or for a state water reservation to reserve water within the Jefferson River basin or Madison River basin.
29 (2) The provisions of subsection (1 ) do not apply to:
30 (a) an application for a permit to appropriate ground water if the applicant complies with the provisions
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1 of [section 45 14];
2 (b) an application for a permit to appropriate water for a nonconsumptive use;
3 (c) an application for a permit to appropriate water for;
4 (i] domestic use from surface water or pursuant to 85-2-3Q6t; municipal, or
5 [ii] stock use; or
6 (iii) use of surface water by or for a municipality;
7 (d) an application to store water during high spring flows; er
8 (e) temporary emergency appropriations as provided for in 85-2-113(3); or
9 (f) an application for a permit to appropriate surface water to conduct response actions related to natural
10 resource restoration required for:
11 (i) remedial actions pursuant to the federal ComprehensJye Environmental Response, Compensation.
12 and Liability Act of 1980. 42 U.S.C. 9601. et sea.;
13 (ii) aquatic resource activities carried out in compliance with and as required by the federal Clean Water
14 Act of 1977. 33 U.S.C. 1251 through 1387; or
15 (iii) remedial actions taken pursuant to Title 75. chapter 10. part 7.
16 (3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(f) may
17 not be used for dilution.
18 (4) A chanqe of use authorization for changing the purpose of use may not be issued for any permit
19 issued pursuant to subsection (2)(b). (2)(c). (2)(e). or (2)(f)."
20
21 Section 10. Section 85-2-342, MCA, is amended to read;
22 "85-2-342. Definitions. Unless the context requires otherwise, in 85-2-343 and this section, the following
23 definitions apply:
24 (1 ) "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state
25 water reservation pursuant to 85-2-316.
26 (2) "Ground water" means water that is beneath the land surface or beneath the bed of a stream, lake,
27 reservoir, or other body of surface water and that is not immediately or directly connected to surface water.
28 i^diZl "Nonconsumptive use" means a beneficial use of water that does not cause a reduction in the
29 source of supply and in which substantially all of the water returns without delay to the source of supply, causing
30 little or no disruption in stream conditions.
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"• W(3) "Upper Missouri River basin" means the drainage area of the Missouri River and its tributaries
2 above Morony dam."
3
4 Section 11. Section 85-2-343, MCA, is amended to read:
5 "85-2-343. Basin closure - exceptions. (1) As provided in 85-2-319 and subject to the provisions of
6 subsection (2) of this section, the department may not process or grant an application for a permit to appropriate
7 water or for a reservation to reserve water within the upper Missouri River basin until the final decrees have been
8 issued in accordance with part 2 of this chapter for all of the subbasins of the upper Missouri River basin.
9 (2) The provisions of subsection (1) do not apply to:
10 (a) an application for a permit to appropriate ground water if the applicant complies with the provisions
11 of [section 45 141:
12 (b) an application for a permit to appropriate water for a nonconsumptive use;
13 (c) an application for a permit to appropriate water for;
14 [i] domestic use from surface water or pursuant to 85-2-306t: municipal, or
1 5 (iij stock use: or
16 (iii) use OF SURFACE WATER bv OR FOR a municipality:
17 (d) an application to store water during high spring flows;
18 (e) an application for a permit to use water from the Muddy Creek drainage, which drains to the Sun
1 9 River, if the proposed use of water will help control erosion in the Muddy Creek drainage; ©r
20 (f) temporary emergency appropriations as provided for in 85-2-1 1 3(3); or
21 (q) an application for a permit to appropriate surface water to conduct response actions related to natural
22 resource restoration required for:
23 (i) remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation,
24 and Liability Act of 1 980. 42 U.S.C. 9601 . et seq.:
25 (ii) aquatic resource activities carried out in compliance with and as required by the federal Clean Water
26 Act of 1977. 33 U.S.C. 1251 throuqh 1387: or
27 (iii) remedial actions taken pursuant to Title 75, chapter 10. part 7.
28 (3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(q)
29 may not be used for dilution.
30 (4) A change of use authorization for chanqinq the purpose of use may not be issued for any permit
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1 issued pursuant to subsection (2)(b), (2)(c). (2)(e). (2)(f). or (2)(q)."
2
3 Section 12. Section 85-2-344, IVICA, is amended to read:
4 "85-2-344. Bitterroot River subbasin temporary closure ~ definitions ~ exceptions. (1 ) Unless the
5 context requires otherwise, in this section, the following definitions apply:
6 (a) "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state
7 water reservation pursuant to 85-2-31 6.
8 (b) "Bitterroot River basin" means the drainage area of the Bitterroot River and its tributaries above the
9 confluence of the Bitterroot River and Clark Fork of the Columbia River and designated as "Basin 76H".
10 (c) "Bitterroot River subbasin" means one of the following hydrologically related portions of the Bitterroot
1 1 River basin:
12 (i) the mainstem subbasin, designated as "Subbasin 76HA";
13 (ii) the north end subbasin, designated as "Subbasin 76HB";
14 (iii) the east side subbasin, designated as "Subbasin 76HC";
15 (iv) the southeast subbasin, designated as "Subbasin 76HD";
16 (v) the south end subbasin, designated as "Subbasin 76HE";
17 (vi) the southwest subbasin, designated as "Subbasin 76HF";
18 (vii) the west central subbasin, designated as "Subbasin 76HG"; or
19 (viii) the northwest subbasin, designated as "Subbasin 76HH".
20 (2) As provided in 85-2-319, the department may not process or grant an application for a permit to
21 appropriate waterorfor a state water reservation within a Bitterroot River subbasin until the closure for the basin
22 is terminated pursuant to subsection (3) of this section, except for:
23 (a) an application for a permit to appropriate ground water if the applicant complies with the provisions
24 of [section 45 141:
25 (b) an application for a permit to appropriate water for a municipal water supply use of surface water
26 by OR FOR a municipalitv:
27 (c) temporary emergency appropriations pursuant to 85-2-1 1 3(3); or
28 (d) an application to store water during high spring flow in an impoundment with a capacity of 50
29 acre-feet or more; or
30 (e) an application for a permit to appropriate surface water to conduct response actions related to natural
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1 resource restoration required for:
2 (i) remedial actions pursuant to the federal Comprehensive Environmental Response. Compensation,
3 andLiabilitvActof 1980. 42 U.S. C. 9601, etseq.;
4 (ii) aquatic resource activities carried out in compliance with and as required by the federal Clean Water
5 Act of 1977, 33 U.S.C. 1251 through 1387: or
6 (iii) remedial actions taken pursuant to Title 75, chapter 10. part 7.
7 (3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(e)
8 may not be used for dilution
9 (4) A change of use authorization for chanqinq the purpose of use may not be issued for any permit
10 issued pursuant to subsection (2)(b), (2)(c), or (2)(e).
1 1 0)(5) Each Bitterroot River subbasin is closed to new appropriations and new state water reservations
1 2 until 2 years after all water rights in the subbasin arising under the laws of the state are subject to an enforceable
13 and administrable decree as provided in 85-2-406(4)."
14
15 Section 13. Section 05-2-402, MCA, is amended to read:
16 "85-2-402. (Temporary) Changes in apprepriatien rights. (1 ) The right to make a change subject to
I 17 the provisions of this section in an existing water right, a permit, or a state water reservation is recognized and
18 confirmed. In a change proceeding under this section, there is no presumption that an applicant for a change in
19 appropriation right cannot establish lack of adverse effect prior to the adjudication of other rights in the source
20 of supply pursuant to this chapter. Except as provided in 85-2-410 and subsections (15) and (16) of this section,
21 an appropriator may not make a change in an appropriation right without the approval of the department or, if
22 applicable, of the legislature. An applicant shall submit a correct and complete application.
23 (2) Except as provided in subsections (4) through (6), (15), and (16) and subject to subsection (17), the
24 department shall approve a change in appropriation right if the appropriator proves by a preponderance of
25 evidence that the following criteria are met;
26 (a) The proposed change in appropriation right will not adversely affect the use of the existing water
27 rights of other persons or other perfected or planned uses or developments for which a permit or certificate has
28 been issued or for which a state water reservation has been issued under part 3.
29 (b) Except for a lease authorization pursuant to 85-2-436 or a temporary change in appropriation right
30 authorization to maintain or enhance streamflows to benefit the fishery resource pursuant to 85-2-408, the
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1 proposed means of diversion, construction, and operation of the appropriation works are adequate.
2 (c) The proposed use of water is a beneficial use.
3 (d) Except for a lease authorization pursuant to 05-2-436 or a temporary change in appropriation right
4 authorization pursuant to 85-2-408, the applicant has a possessory interest, or the written consent of the person
5 with the possessory interest, in the property where the water is to be put to beneficial use.
6 (e) If the change in appropriation right involves salvaged water, the proposed water-saving methods will
7 salvage at least the amount of water asserted by the applicant.
8 (f) The water quality of an appropriator will not be adversely affected.
9 (g) The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance
10 with Title 75. chapter 5, part 4, will not be adversely affected.
11 (3) The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only
12 if a valid objection is filed. A valid objection must contain substantial credible information establishing to the
13 satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.
14 (4) The department may not approve a change in purpose of use or place of use of an appropriation of
15 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator
16 proves by a preponderance of evidence that:
17 (a) the criteria in subsection (2) are met; and
18 (b) — the proposed change is a reasonable use. A finding of reasonable use must be based on a
19 consideration of:
20 (i) the existing demands on the state water supply, as well as projected demands for water for future
21 beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the
22 protection of existing water rights and aquatic life;
23 (ii) the benefits to the applicant and the state;
24 (iii) the effects on the quantity and quality of water for existing uses in the source of supply;
25 (iv) the availability and feasibility of using low-quality water for the purpose for which application has been
26 made;
27 (v) the effects on private property rights by any creation of or contribution to saline seep; and
28 (vi) the probable significant adverse environmental impacts of the proposed use of water as determined
29 by the department pursuant to Title 75, chapter 1 , or Title 75, chapter 20.
30 (5) The department may not approve a change in purpose of use or place of use for a diversion that
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1 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
2 unless:
3 (a) tlie applicant proves by clear and convincing evidence and the department finds that the criteria in
4 subsections (2) and (4) are met; and
5 (b) for the withdrawal and transportation of appropriated water for out-of-state use, the department then
6 petitions the legislature and the legislature affirms the decision of the department after one or more public
7 hearings.
8 (6) The state of Montana has long recognized the importance of conserving its public waters and the
9 necessity to maintain adequate water supplies for the state's water requirements, including requirements for
10 federal non-Indian and Indian reserved water rights held by the United States for federal reserved lands and in
11 trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes
12 that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict
13 with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before
14 out-of-state use may occur:
15 (a) The department and, if applicable, the legislature may not approve a change in appropriation right
16 for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator
17 proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public
18 hearings that:
19 (i) depending on the volume of water diverted or consumed, the applicable criteria and procedures of
20 subsection (2) or (4) are met;
21 (ii) the proposed out-of-state use of water is not contrary to water conservation in Montana; and
22 (iii) the proposed out-of-state use of water is not othen/vise detrimental to the public welfare of the citizens
23 of Montana.
24 (b) — In determining whether the appropriator has proved by clear and convincing evidence that the
25 requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature
26 shall consider the following factors:
27 (i) whether there are present or projected water shortages within the state of Montana;
28 (ii) whether the water that is the subject of the proposed change in appropriation might feasibly be
29 transported to alleviate water shortages within the state of Montana;
30 (iii) the supply and sources of water available to the applicant in the state where the applicant intends to
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1 use the water; and
2 (iv) the demands placed on the applicant's supply in the state where the applicant intends to use the
3 water.
4 (c) When applying for a change in appropriation right to withdraw and transport water for use outside
5 the state, the applicant shall submit to and comply with the laws of the state of Montana governing the
6 appropriation and use of water.
7 (7) for any application for a change in appropriation right involving 4,000 or more acre-feet of water a
8 year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change
9 in accordance with 85-2-307 and shall hold one or more hearings in accordance with 05-2-309 prior to its
10 approval or denial of the proposed change. The department shall provide notice and may hold one or more
11 hearings upon any other proposed change in appropriation right if it determines that the proposed change might
12 adversely affect the rights of other persons.
13 (8) The department or the legislature, if applicable, may approve a change in appropriation right subject
14 to the terms, conditions, restrictions, and limitations that it considers necessary to satisfy the criteria of this
15 section, including limitations on the time for completion of the change. The department may extend time limits
16 specified in the change approval under the applicable criteria and procedures of 85-2-312(3).
17 (©) — Upon actual application of water to the proposed beneficial use within the time allowed, the
18 appropriator shall notify the department that the appropriation has been completed. The notification must contain
19 a certified statement by a person with experience in the design, construction, or operation of appropriation works
20 describing how the appropriation was completed.
21 (10) If a change in appropriation right is not completed as approved by the department or legislature or
22 if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department
23 may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval
24 should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify
25 or revoke the change approval.
26 (1 1 ) The original of a change approval issued by the department must be sent to the applicant, and a
27 duplicate must be kept in the office of the department in Helena.
28 (1 2) A person holding an issued permit or change approval that has not been perfected may change the
29 place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant
30 to this section.
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1 ( 1 3) A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent,
2 agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change
3 in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent,
4 officer, or employee, attempt to change an appropriation right except in accordance with this section.
5 (14) The department may adopt rules to implement the provisions of this section.
6 (15) (a) An appropriator may change an appropriation right for a replacement well without the prior
7 approval of the department if:
8 (i) the appropriation right is for:
9 (A) ground water outside the boundaries of a controlled ground water area; or
10 (D) ground water inside the boundaries of a controlled ground water area and if the provisions of the
11 order declaring the controlled ground water area do not restrict such a change;
12 (ii) the change in appropriation right is to replace an existing well and the existing well will no longer be
13 used;
14 (iii) the rate and volume of the appropriation from the replacement well are equal to or less than that of
15 the well being replaced and do not exceed:
16 (A) 450 gallons a minute for a municipal well; or
17 (D) 35 gallons a minute and 10 acre-feet a year for all other wells;
18 (iv) the water from the replacement well is appropriated from the same aquifer as the water appropriated
19 from the well being replaced; and
20 (v) a timely, correct and complete notice of replacement well is submitted to the department as provided
21 in subsection (15)(b).
22 (b) (i) After completion of a replacement well and appropriation of ground water for a beneficial use, the
23 appropriator shall file a notice of replacement well with the department on a form provided by the department.
24 (ii) The department shall review the notice of replacement well and shall issue an authorization of a
25 change in an appropriation right if all of the criteria in subsection (15)(a) have been met and the notice is correct
26 and complete.
27 (iii) The department may not issue an authorization of a change in appropriation right until a correct and
28 complete notice of replacement well has been filed with the department. The department shall return a defective
29 notice to the appropriator, along with a description of defects in the notice. The appropriator shall refile a
30 corrected and completed notice of replacement well within 30 days of notification of defects or within a further
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1 time as the department may allow, not to exceed 6 months.
2 (iv) If a notice of replacement well is not completed within the time allowed, the appropriator shall:
3 (A) cease appropriation of water from the replacement well pending approval by the department; and
4 (D) submit an application for a change in appropriation right to the department pursuant to subsections
5 (1) through (3).
6 (c) The provisions of this subsection (15) do not apply to an appropriation right abandoned under
7 05-2-404.
8 (d) for each well that is replaced under this subsection (15), the appropriator shall follow the well
9 abandonment procedures, standards, and rules adopted by the board of water well contractors pursuant to
10 37-43-202.
11 (e) The provisions of subsections (2), (3), (9), and (10) do not apply to a change in appropriation right
12 that meets the requirements of subsection (15)(a).
13 (16) (a) An appropriator may change an appropriation right without the prior approval of the department
14 for the purpose of constructing a redundant water supply well in a public water supply system, as defined in
15 75-6-1 02, if the redundant water supply well:
16 (i) withdraws water from the same ground water source as the original well; and
17 (ii) is required by a state or federal agency.
18 (b) The priority date of the redundant water supply well is the same as the priority date of the original
19 well. Only one well may be used at one time.
20 (c) Within 60 days of completion of a redundant water supply well, the appropriator shall file a notice of
21 construction of the well with the department on a form provided by the department. The department may return
22 a defective notice of construction to the appropriator for correction and completion.
23 (d) The provisions of subsections (9) and ( 1 0) do not apply to a change in appropriation right that meets
24 the requirements of this section.
25 (17) for an application for a change in appropriation riqhtforqround water or to ground water in a basin
26 closed pursuant to 05-2-330, 05-2-336, 85-2-341 , 85-2-343, or 05-2-344 or during the period of closure for any
27 basin that is administratively closed pursuant to 05-2-319, the applicant shall comply with the provisions-of
28 fsection 1 51 in addition to the requirements of this section. (Terminates June 30, 2009"Sec. 9. Ch. 1 23, L. 1 999.)
29 85-2-402. (Effective July 1 , 2009) Changes in appropriation rights. (1 ) The right to make a change
30 subject to the provisions of this section in an existing water right, a permit, or a state water reservation is
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1 recognized and confirmed. In a change proceeding under this section, there is no presumption that an applicant
, 2 for a change in appropriation right cannot establish lack of adverse effect prior to the adjudication of other rights
3 in the source of supply pursuant to this chapter. Cxcept as provided in 85-2-410 and subsections (15) and (16)
i 4 of this section, an appropriator may not make a change in an appropriation right without the approval of the
5 department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.
6 (2) Except as provided in subsections (4) through (6), (15). and (16) and subject to subsection (17), the
7 department shall approve a change in appropriation right if the appropriator proves by a preponderance of
8 evidence that the following criteria are met:
; 9 (a) The proposed change in appropriation right will not adversely affect the use of the existing water
10 rights of other persons or other perfected or planned uses or developments for which a permit or certificate has
I
I 11 been issued or for which a state water reservation has been issued under part 3.
12
-(b) — except for a temporary change in appropriation right authorization to maintain or enhance
13 streamflows to benefit the fishery resource pursuant to 85-2-408, the proposed means of diversion, construction,
14 and operation of the appropriation works are adequate.
15 (c) The proposed use of water is a beneficial use.
16
(d) Except for a temporary change in appropriation right authorization pursuant to 85-2-408, the applicant
17 has a possessory interest, or the written consent of the person with the possessory interest, in the property where
18 the water is to be put to beneficial use.
19
(e) If the change in appropriation right involves salvaged water, the proposed water-saving methods will
20 salvage at least the amount of water asserted by the applicant.
21 (f) The water quality of an appropriator will not be adversely affected.
22
(g) The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance
23 with Title 75, chapter 5, part 4, will not be adversely affected.
24 (3) The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only
25 if a valid objection is filed. A valid objection must contain substantial credible information establishing to the
26 satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.
27 (4) The department may not approve a change in purpose of use or place of use of an appropriation of
28 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator
29 proves by a preponderance of evidence that:
30
(a) the criteria in subsection (2) are met; and
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1 fb) — the proposed change is a reasonable use. A finding of reasonable use must be based on a 1
2 consideration of:
3 (i) the existing demands on the state water supply, as well as projected demands for water for future
4 beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the j
5 protection of existing water rights and aquatic life;
6 (ii) the benefits to the applicant and the state;
7 (iii) the effects on the quantity and quality of water for existing uses in the source of supply;
8 (iv) the availability and feasibility of using low-quality water for the purpose for which application has been
9 made;
10 (v) the effects on private property rights by any creation of or contribution to saline seep; and
11 (vi) the probable significant adverse environmental impacts of the proposed use of water as determined
12 by the department pursuant to Title 75, chapter 1 , or Title 75, chapter 20.
13 (5) The department may not approve a change in purpose of use or place of use for a diversion that
14 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
15 unless:
16 (a) the applicant proves by clear and convincing evidence and the department finds that the criteria in
17 subsections (2) and (4) are met; and
18 (b) for the withdrawal and transportation of appropriated water for out-of-state use, the department then
19 petitions the legislature and the legislature affirms the decision of the department after one or more public
20 hearings.
21 (6) The state of Montana has long recognized the importance of conserving its public waters and the
22 necessity to maintain adequate water supplies for the state's water requirements, including requirements for
23 federal non-Indian and Indian reserved water rights held by the United States for federal reserved lands and in
24 trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes
25 that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict
26 with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before
27 out-of-state use may occur:
28 (a) The department and, if applicable, the legislature may not approve a change in appropriation right
29 for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator
30 proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public
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1 hearings that:
2 (i) depending on the volume of water diverted or consumed, the applicable criteria and procedures of
3 subsection (2) or (4) are met;
4 (ii) the proposed out-of-state use of water is not contrary to water conservation in Montana; and
5 (iii) the proposed out-of-state use of water is not othenwise detrimental to the public welfare of the citizens
6 of Montana.
7 fjsrj — In determining whether the appropriator has proved by clear and convincing evidence that the
8 requirements of subsections (6)(a)(ii) and (G)(a)(iii) will be met, the department and, if applicable, the legislature
9 shall consider the following factors:
10 (i) whether there are present or projected water shortages within the state of Montana;
11 (ii) whether the water that is the subject of the proposed change in appropriation might feasibly be
12 transported to alleviate water shortages within the state of Montana;
13 (iii) the supply and sources of water available to the applicant in the state where the applicant intends to
14 use the water; and
15 (iv) the demands placed on the applicant's supply in the state where the applicant intends to use the
1 b water,
17 (c) When applying for a change in appropriation right to withdraw and transport water for use outside
18 the state, the applicant shall submit to and comply with the laws of the state of Montana governing the
19 appropriation and use of water.
20 (7) for any application for a change in appropriation right involving 4,000 or more acre-feet of water a
21 year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change
22 in accordance with 85-2-307 and shall hold one or more hearings in accordance with 05-2-309 prior to its
23 approval or denial of the proposed change. The department shall provide notice and may hold one or more
24 hearings upon any other proposed change in appropriation right if it determines that the proposed change might
25 adversely affect the rights of other persons.
26 (8) The department or the legislature, if applicable, may approve a change in appropriation right subject
27 to the terms, conditions, restrictions, and limitations that it considers necessary to satisfy the criteria of this
28 section, including limitations on the time for completion of the change. The department may extend time limits
29 specified in the change approval under the applicable criteria and procedures of 85-2-312(3).
30 (^) — Upon actual application of water to the proposed beneficial use within the time allowed, the
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1 appropriator shall notify the department that the appropriation has been completed. The notification must contain
2 a certified statement by a person with experience in the design, construction, or operation of appropriation works
3 describing how the appropriation was completed.
4 (1 0) If a change in appropriation right is not completed as approved by the department or legislature or
5 if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department
6 may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval
7 should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify
8 or revoke the change approval.
9 (1 1 ) The original of a change approval issued by the department must be sent to the applicant, and a
10 duplicate must be kept in the office of the department in I lelena.
11 (12) A person holding an issued permitorchangeapproval that has not been perfected may change the
12 place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant
13 to this section.
14 (13) A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent,
15 agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change
16 in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent,
17 officer, or employee, attempt to change an appropriation right except in accordance with this section.
18 (14) The department may adopt rules to implement the provisions of this section.
19 (15) (a) An appropriator may change an appropriation right for a replacement well without the prior
20 approval of the department if:
21 (i) the appropriation right is for:
22 (A) ground water outside the boundaries of a controlled ground water area; or
23 (B) ground water inside the boundaries of a controlled ground water area and if the provisions of the
24 order declaring the controlled ground water area do not restrict such a change;
25 (ii) the change in appropriation right is to replace an existing well and the existing well will no longer be
26 osedt
27 (iii) the rate and volume of the appropriation from the replacement well are equal to or less than that of
28 the well being replaced and do not exceed:
29 (A) 450 gallons a minute for a municipal well; or
30 (B) 35 gallons a minute and 1 0 acre-feet a year for all other wells;
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1 (iv) the water from the replacement well is appropriated from the same aquifer as the water appropriated
2 from the well being replaced: and
3 (v) a timely, correct and complete notice of replacement well is submitted to the department as provided
4 in subsection (15)(b).
5 (b) (i) After completion of a replacement well and appropriation of ground water for a beneficial use, the
6 appropriator shall file a notice of replacement well with the department on a form provided by the department.
7 (ii) The department shall review the notice of replacement well and shall issue an authorization of a
8 change in an appropriation right if all of the criteria in subsection (15)(a) have been met and the notice is correct
9 and complete.
10 (iii) The department may not issue an authorization of a change in appropriation right until a correct and
11 complete notice of replacement well has been filed with the department. The department shall return a defective
12 notice to the appropriator, along with a description of defects in the notice. The appropriator shall refile a
13 corrected and completed notice of replacement well within 30 days of notification of defects or within a further
14 time as the department may allow, not to exceed 6 months.
15 (iv) If a notice of replacement well is not completed within the time allowed, the appropriator shall:
16 (A) cease appropriation of water from the replacement well pending approval by the department; and
17 (B) submit an application for a change in appropriation right to the department pursuant to subsections
18 (1) through (3).
19 (c) The provisions of this subsection (15) do not apply to an appropriation right abandoned under
20 05-2-404.
21 (d) for each well that is replaced under this subsection (15), the appropriator shall follow the well
22 abandonment procedures, standards, and rules adopted by the board of water well contractors pursuant to
23 37-43-202.
24 (e) The provisions of subsections (2), (3), (9), and (10) do not apply to a change in appropriation right
25 that meets the requirements of subsection (15)(a).
26 (16) (a) An appropriator may change an appropriation right without the prior approval of the department
27 for the purpose of constructing a redundant water supply well in a public water supply system, as defined in
28 75-6-1 02, if the redundant water supply well:
29 (i) withdraws water from the same ground water source as the original well; and
30 (ii) is required by a state or federal agency.
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1 (b) The priority date of the redundant water supply well is the same as the priority date of the original
2 well. Only one well may be used at one time.
3 (c) Within 60 days of completion of a redundant water supply well, the appropriator shall file a notice of
4 construction of the well with the department on a form provided by the department. The department may return
5 a defective notice of construction to the appropriator for correction and completion.
6 (d) The provisions of subsections (9) and (1 0) do not apply to a change in appropriation right that meets
7 the requirements of this section.
8 (17) for an application for a change in appropriation riqhtforqround water or to ground water in a basin
9 closed pursuant to 05-2-330. 05-2-336, 85-2-341 , 85-2-343, or 05-2-344 or during the period of closure for any
10 basin that is administratively closed pursuant to 85-2-319, the applicant shall comply with the provisions of
11 [section 151 in addition to the requirements of this section."
12
13 Section 13. Section 85-2-506, MCA, is amended to read:
14 "85-2-506. Controlled ground water areas - designation or modification. (1 ) The department may
1 5 designate or modify controlled ground water areas as provided in this part.
16 (2) Designation or modification of an area of controlled ground water use may be proposed to the
1 7 department on its own motion, by petition of a state or local public health agency for identified public health risks,
18 or by petition signed by at least 20 or one-fourth of the users^ (whichever is the lesser number)^ of ground water
19 in a ground water area in which there are alleged to be facts showing that:
20 (a) that ground water withdrawals are in excess of recharge to the aquifer or aquifers within the ground
21 water area;
22 (b) that excessive ground water withdrawals are very likely to occur in the near future because of
23 consistent and significant increases in withdrawals from within the ground water area;
24 (c) that significant disputes regarding priority of rights, amounts of ground water in use by appropriators,
25 or priority of type of use are in progress within the ground water area;
26 (d) that ground water levels or pressures in the area in question are declining or have declined
27 excessively;
28 (e) that excessive ground water withdrawals would cause contaminant migration;
29 (f) that ground water withdrawals adversely affecting ground water quality within the ground water area
30 are occurring or are likely to occur; or
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1 (g) that water quality within the ground water area is not suited for a specific beneficial use defined by
2 05-2-102(2)(a) 85-2-1 Q2(4)(a).
3 (3) When a proposal is made, the department shall fix a time and place for a hearing, which ttme may
4 not be less than 90 days from the making of the proposal. The place for the hearing must be within or as close
5 as practical to the controlled ground water area.
6 (4) The department shall publish a notice of the hearing, setting forth:
7 (a) the names of the petitioners;
8 (b) the description by legal subdivisions (section, township, range) of all lands included in or proposed
9 to be included in the ground water area or subarea;
10 (c) the purpose of the hearing; and
1 1 (d) the time and place of the hearing where any interested person may appear, either in person or by
1 2 attorney, file written objections to the granting of the proposal, and be fully heard.
13 (5) (a) The notice of hearing must be published at least once tn each week for 3 successive weeks not
1 4 less than 30 days before the date of the hearing in a newspaper of general circulation in the county or counties
15 in which the ground water area or subarea is located. The department shall also cause a copy of the notice,
16 together with a copy of the petition, to be served by mail, not less than 30 days before the hearing, upon^
17 ([) each well driller licensed in Montana whose address is within anycounty in which any part of the area
18 in question is located; ttpon
1 9 (ii) each person or public agency known from an examination of the records in the department's office
20 to be a claimant or appropriator of ground water in the area in question (claimant or appropriator meaning one
21 who diverts, impounds, or withdraws ground water and not merely one who uses or obtains ground water from
22 another who diverts, impounds, or withdraws ground water); upon
23 [iii] the bureau; and ttpon
24 (iv) the mayor or presiding officer of the governing body of each incorporated municipality located in
25 whole or in part within the proposed ground water area.
26 (b) The department may also serve notice upon any other person or state or federal agency that the
27 department feels may be interested in or affected by the proposed designation or modification of a controlled
28 ground water area. The petition need not be served on any petitioner. A copy of the notice, together with a copy
29 of the proposal, must be mailed to each person at the person's last-known address, and service is complete upon
30 depositing it in the post office, postage prepaid, addressed to each person on whom it is to be served. Publication
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1 and mailing of the notice as prescribed in this section, when completed, is considered to be sufficient notice of
2 the hearing to all interested persons.
3 (c) As used in subsection (5)(a), "claimant or appropriator" means a person who diverts, impounds, or
4 withdraws ground water and not merely a person who uses or obtains ground water from another person who
5 diverts, impounds, or withdraws ground water."
6
7 NEW SECTION. Section 14. Ground water appropriation right in closed basins. (1) An application
8 for a ground water appropriation right in a basin closed pursuant to 85-2-330, 85-2-336, 85-2-341 , 85-2-343, or
9 85-2-344 or administratively closed pursuant to 85-2-31 9 or an application for a change in appropriation right for
10 an appropriation right located within a closed basin pursuant to 85-2-402(17) must be accompanied by a
1 1 hydrogeologic assessment that has been conducted pursuant to [section 46 15] to predict whether the proposed
12 appropriation right or change in appropriation right will result in a net depletion of surface water and must be
13 accompanied by a plan as provided in [section 47^ 16], if necessary.
14 (2) If the hydrogeologic assessment conducted pursuant to [section 46 15] predicts that the proposed
15 appropriation right or change in appropriation right will not result in a net depletion of surface water, the
1 6 department shall proceed under the criteria provided in 85-2-31 1 .
17 (3) (a) fii If the hydrogeologic assessment predicts that the proposed appropriation right or change in
1 8 appropriation right will result in a net depletion of surface water, the applicant shall determine if analyze whether
19 the net depletion results in an adverse effect on a prior appropriator. If the applicant provides substantial
20 CRCDiDLC iNroRMATiON Gi lowiNG Ti lAT there is no adverse effect on a prior appropriator a correct and complete
21 application and the department agrees with this determination, the department shall proceed to process the
22 application as provided in 85-2-307 through 85-2-31 1 [section 171.
23 (II) If there is ti ic applicant tails to providc substantial crcdidlc inpormation gi iowing ti IE LAC^^eF
24 on adverse effect on a prior appropriator from net PErLCTiONS, the department may not grant the permit unless^
25 IN ADDITION TO ALL OTi lER APPLICABLE CRITERIA, the applicant Complies with subsection (4).
26 (b) If the applicant has used the water for the purpose of conducting the hydrogeologic assessment, the
27 applicant shall terminate the use of the water. Failure to terminate use of the water must result in a fine of not
28 more than $1 ,000 for each day of the violation.
29 (4) (a) If the hydrogeologic assessment predicts that there will be net depletion as provided in subsection
30 (3)(a)ftti, the department may proceed to process the APPLICATION PURSUANT TO [SECTION 1 7] IF. IN ADDITION
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1 TO OTHER APPLICABLE CRITERIA, the applicant may receive an appropriation right if the applicant complies with
2 [section 4^ 16] sfifi the department determines that the amount of net depletion that causes provcg dvh'V
3 PREPONDCRANCC Of Ti IE cviDCNCC Ti lAT the adverse effect causcd by ti IE NCT DCPLCTiON will be offset.
4 (b) The department shall analyze the plan submitted pursuant to [section 17], The department shall
5 determine if the amount of net depletion that will result in an adverse effect will be offset. If the department
6 determines that the amount of net depletion that will result in an adverse effect will be offset, the department shall
7 proceed under the criteria of 85-2-307 through 85-2-311. If the amount of net depletion that the department
8 determines will result in an adverse effect will not be offset, the department shall reject the application.
9 (5) For the purposes of [sections 45 14 through "F? 16], the prediction of net depletion does not mean
1 0 that an adverse effect on a prior appropriator will occur or if an adverse effect does occur that the entire amount
1 1 of net depletion is the cause of the adverse effect. A determination of whether or not there is an adverse effect
12 on a prior appropriator as the result of a new appropriation right or a change in appropriation right is a
1 3 determination that must be made by the department based on the amount, location, and duration of the amount
14 of net depletion that causes the adverse effect relative to the historic beneficial use of the appropriation right that
1 5 is claimed to may be adversely affected.
16 (6) This section may not be interpreted to change the parameters of any water reservation as it was
17 granted within any closed basin.
18 (6) The priority date for an appropriation right that is granted to an ENTITY WHOSE PERMIT
19 APPLICATION WAS RETURNED AFTER APRIL 1 1 , 2006, AND BEFORE [THE EFFECTIVE DATE OF THIS ACT] BECAUSE OF THE
20 DEPARTMENT'S INTERPRETATION OF A COURT DECISION IS THE DATE OF THE INITIAL APPLICATION TO THE DEPARTMENT.
21
22 NEW SECTION. Section 15. Hydrogeologic assessment -- definition ~ minimum requirements.
23 (1 ) (a) For the purposes of [sections +5 14 through "F? 16], "hydrogeologic assessment" means a report for the
24 project for or through which water will be put to beneficial use, the point of diversion, of and the place of use that
25 describes the geology, hydrogeologic environment, water balance, water quality with regard to the provisions of
26 [sections 18 and 19], and predicted net depletion, if any, including the timing of any net depletion, for surface
27 water within the area described in subsection (2)(a)(i) within the closed basins that are subject to an appropriation
28 right, including but not limited to rivers, streams, irrigation canals, or drains that might be affected by the new
29 appropriation right or change in appropriation right and any predicted water quality changes that may result.
30 (b) In predicting net depletion of surface water from a proposed use, consideration must be given, at a
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1 minimum, to:
2 (i) the actual amount to be diverted according to historical practice;
3 (tt)(ij the actual amount diverted for like beneficial uses;
4 (itt)(ii) any amounts that will likely be lost in conveyance, if any, and v»/hether any lost amounts are lost
5 to the system through evaporation or other means or whether those amounts are returned to the system through
6 percolation or other means; and
7 (iv)(lll] any return flows from the proposed use, including but not limited to any treated wastewater return
8 flows if the treated wastewater that is considered effluent meets the requirements of [sections 1 8 and 1 9].
9 (2) (a) A hydrogeologic assessment that will be used to predict net depletion of surface water resulting
1 0 from a new appropriation right or a change in appropriation right must include a hydrogeologic data or a model
1 1 developed by a hydrogeologist, a qualified scientist, or a qualified licensed professional engineer that incorporates
1 2 for the new appropriation or the change in appropriation right:
13 (i) the area or estimated area of ground water that will be affected not to exceed the boundaries of the
14 drainage subdivisions established by the office of water data coordination. United States geological survey, and
15 USED BY THE WATER COURT, UNLESS THE APPLICANT CHOOSES TO EXPAND THE BOUNDARIES;
16 (ii) the geology in the area identified in subsection (2)(a)(i), including stratigraphy and structure;
17 (iii) the parameters of the aquifer system within the area identified in subsection (2)(a)(i) to include, at a
18 minimum, estimates for:
19 (A) the lateral and vertical extent of the aquifer;
20 (B) whether the aquifer is confined or unconfined;
21 (C) the effective hydraulic conductivity of the aquifer;
22 (D) transmissivity and storage coefficient related to the aquifer; and
23 (E) the estimated flow direction or directions of ground water and the rate of movement;
24 (iv) the locations of surface waters within the area described in subsection (2)(a)(i) that are subject to an
25 appropriation right, including but not limited to springs, creeks, streams, or rivers that may or may not show a net
26 depletion;
27 (v) evidence of water availability; and
28 (vi) the locations of all wells or other sources of ground water of record within the area identified in
29 subsection (2)(a)(i).
30 (b) A hydrogeologic assessment must also include a water quality report that includes:
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1 (i) the location of existing documented hazards that could be affected or exacerbated by the
2 appropriation right or change in appropriation right, such as areas of subsidence, along with a plan to mitigate
3 any conditions or impacts;
4 (ii) the chemical and physical composition of the source water or waters and any water quality impacts
5 that may occur:
6 (itt)(ii] other water quality information necessary to comply with [sections 1 8 and 1 9] and to determine any
7 cumulative water quality impacts based on the impacts of the proposed appropriation right or change in
8 appropriation and any return flow when considered in association with projects putting water to beneficial use or
9 discharges that have been permitted since the effective date of the basin closure; and
1 0 (tv)(iiij a description of any water treatment method that will be used at the time of any type of injection
11 or introduction of water to the aquifer to ensure compliance with [sections 18 and 19] and the water quality laws
12 under Title 75, chapter 5.
13 (3) The hydrogeologic assessment must include an analysis of whether the information required by
1 4 subsection (2) predicts, by a preponderance of the evidence, that there may be a net depletion of surface water
15 in the area described in subsection (2)(a)(i) and the extent of the depletion, if any.
16 (4) (a) The hydrogeologic assessment, the model if provided, the test well data, jhe monitoring well
17 data, and other related information must be submitted to the department. The department shall submit this
1 8 information to the bureau of mines and geology.
19 (b) The bureau of mines and geology shall examine the data and provide feedback to the department
20 regarding the scientific adequacy of the assessment. If the bureau of mines and geology has not provided a
21 written opinion regarding the scientific adequacy of the assessment within 90 days of receiving the information
22 from the department, the assessment must be considered scientifically adequate and the department shall
23 proceed with its determination.
24 fe) The bureau of mines and geology shall ensure that information submitted pursuant to this section is
25 entered into the ground water information center database as part of the ground water assessment program.
26 (5) An entity that has previously conducted some type of hydrogeologic assessment may submit the
27 information from that assessment as the hydrogeologic assessment required by this section if the information
28 meets the criteria and requirements of this section.
29
30 NEW SECTION. Section 16. Aquifer recharge or mitigation plans in closed basins - minimum
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1 requirements. (1) An applicant whose hydrogeologic assessment conducted pursuant to [section 46 15] predicts
2 that there will be a net depletion of surface water that will result in an adverse effect on a prior appropriator as
3 described in [section 15 14] n-^ay shall offset the net depletion that results in the adverse effect through a
4 mitigation plan or an aquifer recharge plan.
5 (2) A mitigation plan must be approved by the department prior to approving a change in appropriation
6 right or a new appropriation right that relies on mitigation to offset net depletion of surface water. A mitigation plan
7 must include:
8 (a) where and how the water in the plan will be put to beneficial use;
9 (b) when and where, generally, water reallocated through exchange or substitution will be required;
10 (c) the amount of water reallocated through exchange or substitution that is required;
.11 (d) how the proposed project or beneficial use for which the mitigation plan is required will be operated;
12 (e) evidence that an application for a change in appropriation right, if necessary, has been submitted;
13 (f) evidence of water availability; and
14 (g) evidence that of how the mitigation plan will be effective in offsetting offset the required amount
15 of net depletion of surface water in a manner that will offset an adverse effect on a prior appropriator.
16 (3) An aquifer recharge plan must be approved by the department prior to approving a change in
17 appropriation right or a new appropriation right that relies on aquifer recharge to offset net depletion of surface
18 water. An aquifer recharge plan must include:
19 (a) evidence that the appropriate water quality related permits have been granted pursuant to Title 75,
20 chapter 5, and pursuant to [sections 18 and 19];
21 (b) where and how the water in the plan will be put to beneficial use;
22 (c) when and where, generally, water reallocated through exchange or substitution will be required;
23 (d) the amount of water reallocated through exchange or substitution that is required;
24 (e) how the proposed project or beneficial use for which the aquifer recharge plan is required will be
25 operated;
26 (f) evidence that an application for a change in appropriation right, if necessary, has been submitted;
27 (g) a description of the process by which water will be reintroduced to the aquifer;
28 (h) evidence of water availability; and
29 (i) evidence that of how the aquifer recharge plan will be effective in offsetting offset the required
30 amount of net depletion of surface water in a manner that will offset any adverse effect on a prior appropriator.
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1 (4) The department may not require an applicant, through a mitigation plan or an aquifer recharge plan,
2 to provide more water than the quantity needed to offset the predicted adverse effects ON A prior appropriator
3 CAUSED BY THE net depletion.
4 (5) An appropriation right that relies on a mitigation plan or aquifer recharge plan to offset net depletion
5 of surface water that results in an adverse effect on a prior appropriator must be issued as a conditional permit
6 that requires that the mitigation plan or aquifer recharge plan must be exercised when the appropriation right is
7 exercised.
8
9 NEW SECTION. Section 1 7. Process for combining decisions on ground water permit applications
10 IN CLOSED BASINS. ( 1 ) AN APPLICANT FOR A PERMIT TO APPROPRIATE GROUND WATER IN A CLOSED BASIN SHALL SUBMIT
11 TO THE DEPARTMENT A COMBINED APPLICATION CONSISTING OF A HYDROGEOLOGIC ASSESSMENT WITH AN ANALYSIS OF
12 NET DEPLETION. A MITIGATION PLAN OR AQUIFER RECHARGE PLAN IF REQUIRED. AN APPLICATION FOR A BENEFICIAL WATER
13 USE PERMIT OR PERMITS, AND AN APPLICATION FOR A CHANGE IN APPROPRIATION RIGHT OR RIGHTS IF NECESSARY.
14 (2) The DEPARTMENT SHALL REVIEW THE APPLICATION TO DETERMINE IF IT IS CORRECT AND COMPLETE UNDER
15 THE PROCESS AND REQUIREMENTS OF 85-2-302.
16 (3) (A) OnCC AN APPLICATION I lAO DCCN DCTCRMINCD TO DC CORRECT AND COMPLCTC, Tl IE DCrARTMCNT Gl lALL
17 IGGUC A GTATEMCNT Of Tl IE DEPARTMENT'S OPINION AND Tl IE REAGONG FOR ITS OPINION, INCLUDING A CRITERIA
18 AGGEOOMENT GTATING Wl lETI ICR Tl IE DEPARTMENT IS Of Tl IE OPINION Tl lAT Tl IE APPLICATION Gl lOULD DE APrRe¥E&7
19 DENICD, OR APPROVED IN A MODIFIED FORM OR UPON TERMO, CONDITIONG, OR LIMITATIONO GPECiriED BY THE
20 DEPARTMENT. Tl IE CRITERIA AGGEGOMENT MUGT DE PROVIDED TO Tl IE APPLICANT AND MADE AVAILABLE TO Tl IE PtBHe
21 PRIOR TO PUBLIC NOTICE Of Tl IE APPLICATION . Tl IE DEPARTMENT Gl lALL PREPARE A NOTICE AND PUDLIGI I IT AG PROVIDED
22 UNDER 85-2-3e?T
23 (D) If no VALID OBJECTION IG FILED TO Tl IE APPLICATION AND Tl IE CRITERIA AGGEGGMENT PREPARED DY^FHE
24 DEPARTMENT GTATCG Tl lAT Tl IE DEPARTMENT 10 Of Tl IE OPINION Tl lAT Tl IE APPLICATION Gl lOULD DE APPROVED, Tl IC
25 DEPARTMENT Gl lALL IGOUE Tl IE PERMIT AND A I lEARING MAY NOT DE I lELD.
26 (C) If NO VALID OBJECTION IG FILED TO Tl IE APPLICATION AND Tl IE CRITERIA AGGEGGMENT PREPARED DY^FHE
27 DEPARTMENT STATEG THAT THE DEPARTMENT IG OF THE OPINION THAT THE APPLICATION SHOULD DE DENIED OR
28 APPROVED IN A MODIFIED FORM OR UPON TERMO, CONDITIONG, OR LIMITATIONG OPECIFIED BY Tl IE DEPARTMENT, Tl E
29 DEPARTMENT Gl lALL PROCEED TO PROCEOO Tl IE APPLICATION PURGUANT TO 85-2-31-6(5^
30 (D) If a VALID OBJECTION IG FILED TO Tl IE APPLICATION, Tl IE DEPARTMENT 01 lALL PROCEED TO PROCEOO Tl IE
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1 APPLICATION PURSUANT TO 85-2-308 Tl IROUGI 1 85-2-31 1 . If Tl IE APPLICANT GATIGriCS Tl IE CRITERIA Of 85-2-31 1 AHB
2 85-2-402, ir neceggary, and proves by a preponderance or ti ie evidence ti iat net depletion, ir any, will not
3 ADVERSELY ArrECTAPRIORAPPROPRIATOR paged on THE applicant's mitigation plan OR AQUIFER recharge PLAN,
4 Tl IE DEPARTMENT Gl lALL IGGUE Tl IE PERMIT.
5 (3) (A) Once an application has been determined to be correct and complete, the department SHALL
6 PREPARE A notice AND PUBLISH IT AS PROVIDED UNDER 85-2-307.
7 (B) If no VALID objection to the application IS FILED AND THE APPLICANT PROVES THAT THE CRITERIA OF
8 85-2-31 1 OR 85-2-402. IF NECESSARY, HAVE BEEN SATISFIED, THE APPLICATION MUST BE GRANTED OR APPROVED IN A
9 MODIFIED FORM OR UPON TERMS, CONDITIONS, OR LIMITATIONS SPECIFIED BY THE DEPARTMENT.
10 (C) If no VALID OBJECTION TO THE APPLICATION IS FILED AND THE APPLICANT HAS NOT PROVED THAT THE
11 CRITERIA OF 85-2-31 1 OR 85-2-402, IF NECESSARY, HAVE BEEN SATISFIED. THE APPLICATION MUST BE DENIED.
12 (d) If A VALID OBJECTION TO THE APPLICATION IS FILED, THE DEPARTMENT SHALL PROCEED TO PROCESS THE
13 APPLICATION PURSUANT TO 85-2-308 THROUGH 85-2-31 1 . IF THE APPLICANT SATISFIES THE CRITERIA OF 85-2-31 1 OR
14 85-2-402, IF NECESSARY, AND PROVES BY A PREPONDERANCE OF THE EVIDENCE THAT NET DEPLETION, IF ANY, WILL NOT
15 ADVERSELY AFFECT A PRIOR APPROPRIATOR BASED ON THE APPLICANT'S MITIGATION PLAN OR AQUIFER RECHARGE PLAN.
16 THE DEPARTMENT SHALL ISSUE THE PERMIT.
17
18 NEWSECTION. Section 18. Department permit coordination -requirements for aquifer recharge
19 plans. To ensure that the department and the department of environmental QUALITY ARE COORDINATING
20 THEIR RESPECTIVE PERMITTING ACTIVITIES:
21 (1 ) An AN applicant for a new appropriation right or a change in appropriation right pursuant to [section
22 +5 14] that involves aquifer recharge or mitigation shall provide the department with a copy of a relevant
23 discharge permit if necessarv:: and
24 (2) The THE department may not grant a new appropriation right or a change in appropriation right
25 pursuant to [section +5 14] that involves aquifer recharge or mitigation until the discharge permit, if necessary,
26 has been obtained and presented to the department.
27
28 NEW SECTION. Section 19. Water quality of return flows and discharges associated with
29 mitigation plan or aquifer recharge plan ~ minimum requirements. (1 ) A person who proposes to use sewage
30 FROM A SYSTEM REQUIRING A WATER QUALITY PERMIT for the purposes of aquifer recharge or mitigation pursuant
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1 to [section 4^ 16] or plans to use sewage from a system requiring a water quality permit as a return flow to
2 minimize the amount of water necessary to offset adverse effects resulting from net depletion of surface water
3 through a mitigation plan or an aquifer recharge plan pursuant to [section 4^ 16] must obtain a current permit
4 pursuant to this chapter.
5 (2) The minimum treatment requirements for sewage systems subject to this section are the federal
6 requirements provided for in 40 CFR 1 33, and the system must meet, at A minimum, the requirements of level two
7 treatment for the removal of nitrogen in the effluent.
8 (3) In addition to the minimum treatment requirements of subsection (2), sewage systems subject to this
9 section must meet the following requirements:
10 (a) the drinking water standards provided for in Title 75, chapter 6, at the point of discharge; and
11 (b) the applicable water quality standards, including the nondegradation requirements of 75-5-301 and
12 75-5-303 at the point of discharge that are used for aquifer injection must meet the more stringent of
13 EITHER primary DRINKING WATER STANDARDS PURSUANT TO TITLE 75, CHAPTER 6, OR THE NONDEGRADATION
14 REQUIREMENTS PURSUANT TO 75-5-303 AT THE POINT OF DISCHARGE.
15 (4) The appropriate interim legislative committee shall review drinking water STANDARDS AND
16 effluent TREATMENT STANDARDS IN OTHER JURISDICTIONS AND RECOMMEND APPROPRIATE TREATMENT STANDARDS
17 FOR PURPOSES OF AQUIFER RECHARGE AND MITIGATION.
18 (5) For the PURPOSES of this section, "aquifer INJECTION" MEANS THE USE OF A WELL TO INJECT WATER
19 DIRECTLY INTO AN AQUIFER SYSTEM WITHOUT FILTRATION THROUGH THE GEOLOGIC MATERIALS OVERLYING THE AQUIFER
20 SYSTEM FOR THE PURPOSE OF AQUIFER RECHARGE OR FOR AN AQUIFER STORAGE AND RECOVERY PROJECT.
21
22 NEW SECTION. Section 20. Aquiferstorage and recovery projects in closed basins. (1) An aquifer
23 storage and recovery project may be authorized in a closed basin.
24 (2) In addition to the criteria provided in Title 85, chapter 2, part 3, and 85-2-402, an aquifer storage and
25 recovery project must meet the requirements provided in [sections +5 14 through 19].
26
27 NEW GECTION. Section 21. Previously approved augmentation plans. (1) Except as provided in
28 85-2-337 for the Clark fork basin, augmentation plans, mitigation plans, or aquifer recharge plans have not been
29 specifically statutorily authorized prior to [the effective date of this act]. Any rules for augmentation plans,
30 mitigation plans, or aquifer recharge plans that were adopted to apply to basins other than the Clark fork basin
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1 were adopted without express statutory authority.
2 (2) (a) Any appropriation right finally issued and not in administrative or judicial review in a closed basin
3 for ground water prior to [the effective date of this act] other than in the Clark fork basin pursuant to 05-2-337
4 that is contingent on or was approved based on the terms of an augmentation plan, mitigation plan, or aquifer
5 recharge plan must meet the requirements of [sections 15 through 22] by July 1, 2008. If the requirements are
6 not met by July 1 , 2008, the permitholder shall cease operations, failure to cease operations must result in a daily
7 fine not to exceed $1 ,000 for each day of the violation.
8 (b) Any appropriation right that is not finally issued or that is the subject of an administrative or judicial
9 review in a closed basin for ground water on [the effective date of this act] other than in the Clark fork basin
10 pursuant to 05-2-337 that is contingent on or for which approval is based on the terms of an augmentation plan,
11 mitigation plan, or aquifer recharge plan must meet the requirements of [sections 15 through 22].
12 (3) The holder of an appropriation right described in subsection (2) shall submit proof of meeting the
13 requirements to the department for the department's approval.
14 (4) Once a new appropriation right or change in appropriation right that is subject to subsection (1 ) or
15 (2) complies with the requirements of [sections 15 through 22], the priority date for a new appropriation right
16 subject to this section is the date of the initial application to the department.
17
18 NEW SECTION. Section 21. Aquifer testing, test well, or monitoring well data submission ~ not
1 9 beneficial use. ( 1 ) All aquifer testing data and other related information from test wells, monitoring wells, or other
20 sources that is collected for the purpose of obtaining a new appropriation right or a change in appropriation right
21 pursuant to [sections +5 14 through +7 16] must be submitted to the department and the bureau of mines and
22 geology in a form prescribed by the department and the bureau of mines and geology. The bureau of mines and
23 geology shall ensure that information submitted pursuant to this section is entered into the ground water
24 information center database as part of the ground water assessment program.
25 (2) (a) Water testing or monitoring is not a beneficial use of water requiring the filing of a permit
26 application.
27 (b) A permit is not required if the intent of a person is to conduct aquifer tests, water quality tests, water
28 level monitoring, or other testing or monitoring of a water source.
29
30 NEW SECTION. Section 22. Rulemaking. The department may adopt rules to implement the
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1 provisions of [sections 45 14 through 18 and 20 through 22, 19, and 201. The rules must be oriented toward the
2 protection of existing rights from adverse effects from net depletions caused by new appropriation rights or
3 changes in appropriation rights in closed basins and must be consistent with and not exceed the requirements
4 of [sections +5 14 through 18 and 20 through 22. 19. and 201.
5
6 NEW SECTION. Section 23. Closed basin case study. (1) (a) The Montana bureau of mines and
7 geology, provided for in 20-25-211, shall review, assess for scientific accuracy, and compile and summarize
8 ground water studies that have been conducted in the last 20 years in closed basins or subbasins in Montana
9 that may have a bearing on better understanding the water balance in these basins with respect to potential
1 0 ground water withdrawal impacts on surface water. The bureau of mines and geology shall also study the extent
1 1 to which ground water withdrawals may result in net depletion of surface water in a closed basin or in specific
12 areas of a closed basin.
13 (b) After compilation of the information, the bureau of mines and geology shall present recommendations
14 to the appropriate legislative interim committee regarding any additional studies that would help to assess the
15 water balance in closed basins or subbasins with respect to potential ground water withdrawal impacts on surface
16 waters.
17 (2) The bureau of mines and geology shall conduct a case study to gather and develop data to determine
18 the adequacy of any additional recommended minimum standards and criteria for hydrogeologic assessments,
19 as defined in [section 46 15], associated with ground water withdrawals and the range of impacts of those
20 withdrawals on surface water and ground water resources. The department of natural resources and conservation
21 shall coordinate with the bureau of mines and geology with regard to surface water monitoring and other elements
22 of the case study as necessary.
23 (3) The case study must be conducted in basins closed pursuant to sections 85-2-330, 05-2-337
24 85-2-336, 85-2-341, 85-2-343, or 85-2-344. The bureau of mines and geology shall ensure that at each site
25 involved in the case study the following, at a minimum, is accomplished to provide the necessary scientific data
26 and information to policymakers:
27 (a) an appropriate number of monitoring wells are drilled or available to provide scientifically defensible
28 data;
29 (b) aquifer testing and recovery testing is conducted at the site;
30 (c) water quality samples are collected from each pumping or primary well at the beginning of the case
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1 study and at the end of the case study;
2 (d) if information or data has already been collected for the site, the information is reviewed, analyzed,
3 and verified by the bureau of mines and geology;
4 (e) if the site has an established system, that the established system is monitored under its current or
5 planned operating conditions; and
6 (f) any other information is collected that the bureau of mines and geology determines is necessary to
7 determine recommendations for additional minimum standards and criteria for hydrogeologic assessments, as
8 defined in [section 46 15], associated with ground water withdrawals and the range of impacts those withdrawals
9 have on surface water and ground water resources.
10 (4) In addition to the requirements of subsection (3), the bureau of mines and geology shall develop a
1 1 system to compile existing aquifer testing data, as well as data resulting from hydrogeologic assessments, as
12 defined in [section +615], and monitoring activities.
13 (5) The department of natural resources and conservation shall coordinate with the bureau of mines and
14 geology to provide surface water measurements to determine impacts, if any, to surface water resource3,_AS
15 APPROPRIATE, when a well located at a case study site is pumped.
16 (6) The bureau of mines and geology shall:
1 7 (a) provide updates to the appropriate legislative interim committee throughout the interim related to the
1 8 progress of the review pursuant to subsection (1 ) and the case study pursuant to subsections (2) through (5), data
19 trends, if any, and other information necessary to assist the legislative interim committee in developing any
20 necessary policy recommendations;
21 (b) upon request, provide updates to the ground water assessment steering committee provided for in
22 2-15-1523; and
23 (c) submit a report to the appropriate legislative interim committee and the 61st legislature providing a
24 detailed analysis of the results of the review and case study.
25
26 NEW SECTION. Section 24. Case study - requirements for participation - fee. (1 ) (a) Participants
27 in the case study that are proposing a new ground water appropriation or a change in appropriation right pursuant
28 to 85-2-402(17) are subject to the requirements of [sections 45 14 through 22 21].
29 (b) Up to a maximum of 1 0 sites that are the result of a new appropriation or a change in appropriation
30 right may be included in the case study provided for in [section 24 23]. If there are more than 1 0 entities wishing
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1 to participate in the case study, the bureau of mines and geology shall select participants to ensure that to the
2 extent possible each closed basin is represented and as many different scenarios are represented as necessary
3 to ensure a scientifically accurate analysis.
4 (c) If there are fewer than 1 0 entities wishing to participate or if there is a scenario that is not represented
5 by case study participants that is necessary to ensure a scientifically accurate analysis, the bureau of mines and
6 geology may request cooperation and participation from entities that hold appropriation rights for wells within
7 closed basins.
8 (d) Entities that had an application pending with the department of natural resources and conservation
9 on April 1 1 , 2006, must be given the option to participate in the case study before the bureau accepts other
10 requests for participation.
1 1 (2) The bureau of mines and geology, in cooperation with the appropriate legislative interim committee,
12 shall notify each of the entities described in subsection (1 )(d), in writing, of the opportunity to participate in the
13 case study and the requirements for participation.
14 (3) To participate in the case study, a participant shall agree:
15 (a) that the useof aground water well in accordance with an application submitted pursuant to [section
16 +5 14] does not grant or give the participant an appropriation right;
17 (b) to allow the installation of monitoring wells and shall allow access for monitoring and review
18 purposes;
1 9 (c) if monitoring or test wells exist at the site, to allow the bureau of mines and geology access to those
20 wells for monitoring and review purposes;
21 (d) to allow for the measurement of pumping at the primary pumping well, including any plumbing
i 22 requirements necessary to ensure an accurate analysis of pumping records and of the impacts, if any, resulting
23 from pumping of the well; and
24 (e) that the participant is responsible for costs associated with drilling the primary pumping well,
25 maintenance associated with the well, and other costs reasonably related to the normal operation of a pumping
26 well in the absence of the case study; and
27 (F) TO PAY A FEE OF $15.
28
29 NCW SECTION. Section 26. Reeognitien of existing appropriation rights. Except as provided in
30 [section 21 ], an appropriation right in a closed basin prior to April 1 1 , 2006, that was finally issued and that is not
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1 subject to any administrative or judicial action is recognized and confirmed.
2
3 NEW SECTION. Section 25. Appropriation. There is appropriated from the general fund $500,000
4 to the Montana bureau of mines and geology only for the biennium beginning July 1 , 2007, for the purpose of
5 conducting a case study in coordination with the department of natural resources and conservation to gather and
6 develop data to determine minimum standards and criteria for hydrogeologic assessments, as defined in [section
7 46 15], associated w/ith ground water withdrawals and the impacts of those withdrawals on surface water and
8 ground water resources.
9
10 NEWSECTION. Section26. Directionforamendmentofrule.Pursuantto2-4-412(2),thedepartment
11 shall:
12 (1) amend ARM 36.12.101 by striking subsection (8); and
13 (2) amend ARM 36.12.120 by striking subsections (6) through (10).
14
15 NEW SECTION. Section 27. Repealer. Section 85-2-337. MCA, is repealed.
16
17 NEWSECTION. Section 28. Codification instruction. (1) [Sections +5 14 through 18 and 20 through
18 23 22] are intended to be codified as an integral part of Title 85, chapter 2, part 3, and the provisions of Title 85,
1 9 chapter 2, part 3, apply to [sections +5 14 through 1 8 and 20 through 23 22].
20 (2) [Section 19] is intended to be codified as an integral part of Title 75, chapter 5, part 4, and the
21 provisions of Title 75, chapter 5, part 4, apply to [section 1 9].
22
23 NEW SECTION. Section 29. Severability. If a part of [this act] is invalid, ail valid parts that are
24 severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications,
25 the part remains in effect in all valid applications that are severable from the invalid applications.
26
27 NEW SECTION. Section 30. Effective date. [This act] is effective on passage and approval.
28
29 NEWSECTION. Section 31 . Applicability -- retroactive applicability. (1 ) [Sections 1 through 20 and
30 22 through 26] apply [This act] applies to applications for an appropriation right or change in appropriation right
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1 in a closed basin pending or filed on or after [the effective date of this act] or that are in administrative or judicial
2 proceedings on [the effective date of this act],
3 (2) [Section 21] applies retroactively, within the meaning of 1-2-109, to augmentation plans, mitigation
4 plans, or aquifer recharge plans in closed basins, other than the Clark fork River basin, that have not been
5 specifically statutorily authorized prior to [the effective date of this act],
6 -END-
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Appendix C
Closed Basin Ground Water Permits
Applicant completes hydro assessment to determine
whether or not there is net depletion
Hydro assessment
determines no surface
water net depletion
Submit to DNRC and
proceed under existing
process (85-2-31 1 , MCA)
r
Hydro assessment
determines surface
water net depletion
I
Net depletion results in
adverse effect
Net depletion does not
result in adverse effect
Applicant develops mitigation or
aquifer recharge plan to offset
amount of net depletion resulting
in adverse effect
Applicant may terminate
application
Submit to DNRC and
proceed under existing
process (85-2-311, MCA)
Submit the hydro assessment, plan, and
change to DNRC and proceed under existing
process (85-2-311, MCA)
Correct and complete application
determination by the DNRC
If application is not correct and
complete, application is
terminated by the DNRC
If application is correct and
complete, public notice is given
Objections - applicant proceeds
pursuant to 85-2-311, MCA, and 85-
2-402, MCA, including hearing, if
necessary
No objections - applicant
proceeds pursuant to 85-2-31 1 ,
MCA, and 85-2-402, MCA
DNRC grants
application
C-1
DNRC terminates
application
Appendix D
WHO HAS JURISDICTION OVER MONTANA'S WATER?
The Montana Water Court has exclusive jurisdiction over the final determination
of "existing water rights" (i.e. water right claims with Pre-July 1, 1973, priority dates).
See § 85-2-215, MCA.
The DNRC has exclusive jurisdiction over post-July 1, 1973, water right permits
and change applications. See §§ 85-2-302 and -402, MCA.
The District Courts have jurisdiction over water distribution controversies and
"may grant injunctive or other relief necessary and appropriate to preserve property
rights or the status quo pending issuance of the final decree." The District Court also
has jurisdiction over ditch easement conflicts. See § 70-17-1 1 2, MCA.
WHAT ARE YOUR OPTIONS IF YOU GET INTO A CONTROVERSY OVER WATER?
1 . First talk with the person about the problem. If you can work it out among
yourselves this is obviously the best solution. If talking doesn't work, there are other
options available; depending on what is the source of the problem.
2. You can file a court action in the appropriate District Court asking for a
temporary restraining order arid preliminary injunction. See §§ 27-19-101, 201, and
314, MCA. This will probably be the fastest way to obtain relief, but it is also the most
expensive, as for most water users it will require the hiring of an attorney. This option
is very formal and often polarizes the parties after one party "wins."
3. If a person is wasting water, using water unlawfully, preventing water from
moving to another person having a prior right to use the water, or violating a provision
of the Montana Water Use Act, then call the DNRC regional office in your area and
they can assist you in filing a report in accordance with § 85-2-1 1 4, MCA.
4. A fourth option, available only to water users who claim water rights
previously decreed by a District Court, is to file a petition with the District Court to
have a water commissioner appointed to distribute the water. See § 85-5-1 01 , MCA.
If a water user on a previously decreed stream is dissatisfied with the method of
distribution by the water commissioner, then that water user can file a written and
verified complaint with the District Court and request a hearing on the matter. See §
85-5-301, MCA.
5. A fifth option is to file a petition with the District Court under § 85-5-1 1 0,
MCA, to seek the appointment of a water mediator to mediate the water controversy.
6. A sixth option is to file a petition with the District Court pursuant to § 85-2-
406, MCA, and request the District Court to certify the determination of the disputed
existing rights involved in the controversy to the Chief Water Judge. This would likely
involve water rights or streams that have not been involved in a prior District Court
decree.
7. A seventh option available to water users in a basin that is subject to a
Water Court issued Temporary Preliminary or Preliminary Decree, as modified after
objections and hearings, is to petition the District Court to enforce the provisions of the
modified water court decree in accordance with §§ 3-7-212, 85-2-231, 85-2-406 or
85-5-1 01, MCA.
Source: Excerpt from Montana Water Court Guidebook
D-1
Appendix E
%#^»^!g£»«^
COSTS AND USES OF
COMMUNITY WELLS vs. SINGLE
FAMILY^WELLS
Presented:
October 24. 2007
Chateau. MT
WPIC
Presented bv:
Eric ResenSburser
Department ofEnvironmehtal Qualii
444-0916
eresensburser(a)mi,eov
TOPICS
Deciding on the appropriate type of
water system for a subdivision
Where are community wells
appropriate?
Connecting to an existing public supply
Comparison of costs: Commiiiiity vs.
single family (i.e. individual) wells
Resource impacts of high flowv^^ells vsi
multiple small flow wells
':_^-Ji:?^-S.--?'-''''iUi
E-1
DEFINITION
PUBLIC WATER SYSTEM
- Serves 25 or more people or 15 or more connections
for 60 days or more per year.
- Community (e.g. town)
- Non-transient, non-community (e.g. school)
- Transient, non-community (Cig. restaur^iii)
MULTI-USER WATER SYSTEM
- 3 through 14 living units or commercial structures,
total population cahhot exceed 24
Community = multi-user/piiblic system (for
purposes of this discussion)
WHAT IS THE APPROPRIATE
■■■ ■-■ ■ ^ - WATER SYSTEM • - .
For lots 1 acre and larger: ; ?
-'Decision is up to the developer
Must meet DEQ rules and circulars
For lots over 20,000 sq. feet and under laei-e:
- must have either comniunity water or wastewater
For l6ts 20,000 sq. feet ^aj)p>n)x% acre) or les^:
- Must have both community water and; waistewater
E-2
WHERE ARE COMMUNITY WELL
APPROPRLVTE*?
• Community wells can be used on just f
about any subdivision, but:
- With larger lots, infrastructure becomes '|"
more expensive and complicated
- Aquifer can be limiting factor (low yield
wells)
- Slow build-out of subdivision can result in r
water quality issues due to deaid ends and |
stagnant water ?^
-- Can developer afford upfront costs
CONNECTION TO A^^^^
^ PUBLIC WATEksUPPLY
• Rules require connection to existing public
system within 500 feet pf a prpjinDSed
subdivision, unless:
' - The cost to connect is >3x the CQSt as compared to i
an approvable on-site system;
•~ *':''^ Connection is limited by a physical obstruction;
- Connection is limited by unobtainable easement; or
- Public system wont allow connection
._■ - Doesn't apply to existing multi-user system ; |
• Cost to design and build water connection is
initially borne by developer
- IJp-front ««ts iiicorpor^tteil m^
E-3
COSTS OF COMMUNITY vs
INDIVIDUAL WELLS
WeUOeplti
• LOTS
MUTU fAIIILy/PUBUC WATER SYSTEM
IWds
Drill ^ Pump
Infnstnjcture'
Monitoring +
Total
Total
Cost/Lol
1 Wells
Drill t Pump
Noniloririg *
Total
Cost /Lot
(feell
|l1S0/ft|'
Operator (year)'
(JOyearsI
|20 Ian]
|130t(l|'
Operator
ROyearsI
SO
S
$7,500
$33,000
$0
$40,500
$40,500
11,100
5
$20,000
SO
$20,000
$4,000
50
15
115.000
$84,000
$3,500
$102,500
$169,000
$11,267
15
$60,000
$0
$60,000
$4,000
SO
50
$22,500
$3«2.500
$3,500
$388,500
S45S.OO0
$9,100
50
$200,000
$0
$200,000
$4,000
50
100
$30,000
$815,000
$3,500
$843,500
$915,000
$9,1S0
100
$400,000
$0
$400,000
HOOO
50
500
$45,000
$3,925,000
$3,500
$3,973,500
$4,040,000
$1,080
500
$2,000,000
$0
$2,000,000
$4,000
ISO
S
$22,500
$33,000
$0
$SS.SOO
$55,500
$11,100
S
$40,000
$0
$40,000
$8,000
150
15
$<5.000
$84,000
$3,500
$132500
$199,000
11J,»7
15
$120,000
$0
$120,000
18,000
ISO
SO
$67,500
$362,500
$3,500
$433,500
$500,000
110,000
SO
$400,000
$0
$400,000
$8,000
150
100
$90,000
$915,000
$3,500
$908,500
$975,000
10,750
100
$800,000
$0
$800000
$8,000
150
500
$135,000
$3,925,000
$3,500
$4.0S3.S0O
K 130.000
ti,2S0
SOO
$4,000,000
$0
$4,000,000
11,000
500
s
$75,000
$33,000
$0
$108,000
$108,000
121,000
5
$102,500
$0
$10Z500
120,SOO
SOO
15
$150,000
$84,000
$3,500
$237500
$304,000
120,267
15
$307,500
$0
$307,500
120,500
500
50
$225,000
$362500
$3,500
$591,000
$657,500
$13,150
50
$1,025,000
$0
$1,025,000
120,500
SOO
100
$300,000
$815,000
$3,500
$1,118,500
$1,185,000
$l1,iS0
100
$2,050,000
$0
$2,050,000
120,500
SOO
SOO
$<50.000
$3,925,000
$3,500
$4,378,500
$4,445,000
18,890
500
$10,250,000
$0
$10250.000
$20,500
COST PER LOT OVER 20 YEARS (50 ft deep well)
12000
^ 10000
3 8000
^ 6000
O 4000
" 2000
15
50
# OF LOTS
100
500
public wells -s— individual wells
E-4
COST PER LOT OVER 20 YEARS (150 ft deep well)
15000
10000
g 5000
15 50 100
# OF LOTS
public wells -0— individual wells
500
COST PER LOT OVER 20 YEARS (500 ft deep well)
25000
»- 20000
o
Z! 15000
w 10000
S 5000
0
15
50
# OF LOTS
100
500
public wells -«- individual wells
E-5
IMPACTS OF HIGH FLOW WELLS
vs MULTIPLE LOW FLQ^ WELLS
Amount of water use per home iii
community system could be reduced due
to per gallon cost of water
• Distribution/location of wells can effect
impacts to nearby resources (e.g. surface
_ water) , . , . ..^ ._
• Using community wells Often means
higher density than with individual wells
E-6
Appendix F
Presentation
to
Water Policy Interim Committee
January 15, 2008
Update on Evaluations Significance of
Exempt Wells
Montana's Closed Basins
prepared by
NICKLIN
EARTH & WATER, INC
670 Ferguson Ave, Suite 1
Bozeman, MT 59718
Ph.406-582-0413
F-1
Update on Evaluations Significance of Exempt Wells
Montana's Closed Basins
by
Michael E. Nicklin, PhD, PE
The focus of my presentation today is to expand on the relative significance of exempt
wells on stream flows from a water supply perspective. My first efforts on this issue
were first defined in a study I completed in early 2007 (Nicklin Earth & Water, Inc.,
2007). This presentation also uses information and interpretations that were developed
by the Montana Department of Natural Resources and Conservation (DNRC) as set
forth in its "Working Draft Memorandum entitled Effects of Exempt Wells on Existing
Water Rights" [DNRC Memorandum]. The information presented in the DNRC
Memorandum, if put in a proper perspective, actually further buttresses the conclusions
that I had drawn in the Gallatin Valley study.
The original Gallatin Valley study was employed to develop a better understanding of
the relative significance of ground-water extractions as they affect stream flows and also
on ground-water levels. In that study, I used standard hydrologic evaluation
methodology to conclude that the relative significance of exempt wells is
inconsequential (de Minimus) in comparison to stream flows and irrigation demands on
those stream flows. Although flow changes and below average flow in the streams of
the Gallatin Valley have been observed in recent years, these changes are obviously
due to climatic factors (drought).
Since the original effort, Nicklin Earth & Water, Inc. (NE&W) has conducted more
detailed assessments including the following:
• Considering projected population growth using demographic projections
by the Census Bureau and other means.
• Conducting preliminary ground-water model simulation efforts using a
regional model that I have developed for the Gallatin Valley.
• Evaluating agricultural irrigation usage and agricultural commodity
production over time in the Gallatin Valley.
• Analyzing drought implications/conditions on stream flows of the Gallatin
Valley.
The focus of these efforts was to expand our previous work regarding concerns
expressed by DNRC and others that the growth in the number of exempt wells will
cause adverse impacts of existing water users (senior appropriators) in the valley. My
preliminary assessment using the updated information leads to conclusions that are in
conformance with conclusions set forth in the initial Gallatin Valley study. I also
conclude that the potential for adverse impacts to existing appropriators (senior or
junior) from the growth of exempt wells is highly unlikely to be a factor as far as one can
F-2
Update on Evaluations - Significance of Exempt Wells
Montana's Closed Basins
meaningfully project population growth in the future.
Some Observations and Commentary on DNRC Memorandum
Observation/Comment #1
Most of the exempt wells in the valley have tended to be clustered in the valley in areas
that were historically irrigated with surface water. There are obviously some areas
where exempt wells have been placed where land had not been historically irrigated.
The key to properly evaluating the potential for adverse impacts in a study area is to
conduct a thorough water budgeting effort. This includes addressing all the depletions
(e.g., well pumping, stream diversions, etc.) and aj] accretions (recharge, runoff, etc.).
This should be done before drawing conclusions and prior to developing water policies
that may or may not be appropriate.
Observation/Comment #2
In the Gallatin Valley, the majority of exempt wells are located at significant distances
from both the West Gallatin River or the East Gallatin River. The relative distance of a
well from a stream is very important in quantifying the influence of a pumping well on a
given stream. For example, if a given well is close and also hydraulically connected to a
stream, pumping during the summer manifests its affects on flow more substantially
during the irrigation season and less during the non-irrigation season. However, as the
distance between a pumping well and stream increases, the interaction becomes more
uniform or steady with time. The technical reasons for this are presented in a recent
article in the publication Ground Water (Bredehoeft and Kendy, 2008).
In effect, pumping of a single exempt well substantially distant from a river will result in
the consumed water being spread throughout the calendar year at a relatively steady
rate. Hence, a well consumptively using 0.33 acre-ft of irrigation water during the
irrigation season will result in about 0.14 acre-ft of water being abstracted from the
stream during the irrigation season (May 1 through September 30) if the flow impacts are
steady-state. In essence, an assertion that 0.34 acre-ft of water from a given well
pumping in the Gallatin Valley would have been available for senior or junior surface
water appropriators during the irrigation season is false.
For the Gallatin Valley, a ground-water model that I have developed addresses the
distribution of the wells in the valley and aquifer system parameters. Preliminary
simulations results from that effort reveal that it is appropriate to assume that a steady-
state assumption for exempt well consumption effects on stream flow is a reasonable
approximation in the valley. However, even this assumption probably yields results that
are overly conservative simply because there are other water budget factors that need to
be addressed as well.
F-3
Update on Evaluations - Significance of Exempt Wells
Montana's Closed Basins
In effect, it is inaccurate to characterize or extrapolate that the total seasonal
consumptive use of irrigation water from exempt wells would have been available for
surface water users during the season of irrigation.
Observation/Comment #3
In its Work Draft Memorandum, DNRC projects the potential growth of exempt wells to
year 2060. Making projections of population growth and well development this far into
the future is, at the very least, highly speculative. For purposes of the evaluation that
follows, I will constrain the discussion to computations set forth by DNRC to the year
ending 2030.
Let us examine the following statement by the DNRC:
Depletions by exempt well use may not be discernible by basin-scale water
balances or analysis of hydrographs of gross basin inflows and outflows, in part
because these depletions are small relative to annual flows. In addition, records of
consumption by exempt well use may be masked during periods of water
shortage by curtailment of junior surface water uses.
The key word here is "may" be masked. Again, this is purely speculation on the part of
DNRC as it has no definitive evidence to prove this.
In order to put DNRC's claims in another perspective I have done the following:
1) Quantified the existing number of domestic wells in the Gallatin Valley
using the Montana Bureau of Mines and Geology Ground-water
Information Center database. It should be noted that this database seems
to provide current well number estimates that exceed the exempt well
computations set forth in the DNRC memorandum.
2) Developed projected well exemption growth estimates based upon current
well growth patterns and population growth estimates presented defined by
the Census Bureau.
3) Utilized the relative consumptive use estimates provided by the DNRC in
its memorandum.
4) Compared the increased demands using Gallatin River flow data cited in
the DNRC memorandum.
5) Assessed the likelihood or lack thereof that surface water irrigators in the
valley could be adversely impacted with the increase in exempt wells (from
present to 2030).
F-4
Update on Evaluations - Significance of Exempt Wells
Montana's Closed Basins
6) Provided a visual perspective of the significance of the projected increase
In consumptive developed DNRC with exempt well grow/th using graphical
procedures.
Figure 1 provides a location map.
Figure 2 provides a plot showing current well growth trends (most wells are domestic -
exempt). This plot provides two projections, the upper plot uses current well growth
trends, the lower plot uses census-based projections.
Using DNRC consumptive values and MBMG GWIC data, the maximum impact on
surface water flows as it affects irrigators during the irrigation season associated with
projected exempt well growth in the Gallatin Valley by year 2030 is projected to be 1 .69
cfs (68 miners inches).
Figures 3-7 provide self-explanatory plots using an overly simplistic assumption that the
net water balance is limited to stream flows and well pumping. Again, there are
obviously other water budget issues as well which further mitigate the significance of
exempt wells.
All the plots show that the influence of exempt wells is de Minimus. Even if we discount
other water budget factors, 68 miners inches, is not a very substantial amount of surface
water for irrigation use, especially if that flow is spread throughout the valley. This 68
miners inches of flow would not be concentrated to the 1-15 bridge on the West Gallatin
as seems to be inferred by DNRC. This affect of the abstraction would be distributed
throughout the valley (East Gallatin, West Gallatin, Gallatin, Sourdough Creek, etc.).
Furthermore, there are other water budget factors at stake as well which should be
accounted for including: contributions to surface water and ground-water recharge
associated with runoff from impervious surfaces; reduction in plant transpiration
associated with presence of impervious surfaces; reduced surface water irrigation; etc..
These factors are not accounted for in DNRC methods.
Hence, it is concluded DNRC's claim of "masking" has no basis.
In a nutshell, definitive adverse impacts from exempt wells to prior appropriators is
difficult to reconcile when the facts and data are properly accounted for in the Gallatin
Valley.
Additional Comparisons
The DNRC also projects/claims that there "may" be an increase of about 10,000 acre-ft
of consumptive use in association with exempt wells by the year 2030 in Montana closed
basins. It even goes so far as to speculate to the amount of exempt well water use by
F-5
Update on Evaluations - Significance of Exempt Wells
Montana's Closed Basins
the year 2060. This cannot be meaningfully done.
Let us put this DNRC projection of 10,000 acre-ft additional use by the year 2030 in
perspective as follows:
• Not all the 10,000 acre-ft of water would have been available for irrigation
use during the irrigation season simply because abstractions from exempt
well pumping are spread throughout the year. If other watersheds/well
conditions are reasonably comparable to those of the Gallatin Valley, this
would leave about 5,000 acre-ft (as opposed to 10,000 acre-ft) of water
feasibly available for the irrigation season (assumes methods defined by
Bredehoeft and Kendy, 2008 are appropriate).
• The 5,000 acre-ft of "impact" to senior appropriators is spread over the
entire area of all the closed basins in Montana. Furthermore, this 5,000
acre-ft would be distributed between numerous if not several hundred
different streams within these closed basins.
• From an irrigator's perspective this is equivalent to dividing about 552
miners inches of flow between all the streams in the closed basins of
Montana which has an area of about 23,900 square miles. The net
significance on a stream by stream basis is inconsequential when
considered on a practical basis. As an illustration of this point, 5,000 acre-
ft of consumption equates to approximately 3,500 acre-ft of alfalfa irrigation
for this entire region (see Figure 8). Again, this is a worst case scenario
simply because DNRC does not take into account other water budget
factors which are indeed relevant.
Again, using DNRC's own projections, I conclude that any consequences
on stream flow associated with exempt wells are de Minimus.
F-6
Update on Evaluations - Significance of Exempt Wells
Montana's Closed Basins
Summary
In summary, it is my conclusion that when the overall projected effects of exempt wells
are properly accounted for using water budget methods that everyone in the profession
of hydrology should employ, it Is difficult to conceive that there would be any practical
circumstance in any closed basin in Montana where future growth in exempt wells would
result in any discernable, detectable, or measurable adverse impact to any prior surface
water appropriator. If any such circumstance does exist it would be anomalous. It would
be highly questionable to establish water policy for the entire state of Montana on the
basis of an anomalous condition.
In my review of work products that have been prepared by the Montana Bureau of Mines
and Geology from their efforts involving the North Helena Valley (Madison 2006), the
Bitterroot River Basin, and in their evaluations of well hydrographs statewide, it is clear
that my interpretative results are by no means unique.
References
Bredehoeft J., and E. Kendy. Strategies for Offsetting Seasonal Impacts of Pumping on
a Nearby Stream. Ground Water. Volume 46, No. 1. 2008.
Madison, J. Hydrology of the North Hills, Helena, MT. Montana Bureau of Mines and
Geology Open-File Report 544. 2006.
Nicklin, M. E. Gallatin Valley Water Resources Evaluation. 2007.
Montana Department of Commerce Community Development Division. Montana's
Growth Policy Resource Book Montana. 2007.
Montana Department of Natural Resources. Working Draft Memorandum entitled Effects
of Exempt Wells on Existing Water Rights. 2007.
F-7
Gallatin
Valley
Gallatin River
at Logan (6052500)
E. Gallatin
River
'6050500
6049000
E. Gallatin River
below Bndger Creek (6048700)
6048500
6046700
6047000
Galatin River Gallatin
Gateway (6043500)
Figure 1 - Measurement Stations Gallatin Valley
F-8
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Appendix G
Effects of Exempt Wells on Existing Water Rights
Water Management Bureau, Montana Department of Natural Resources and Conservation, Helena, Montana
February 2008
Summary
The following is a discussion of the potential effects of exempt wells on existing water
rights. The concern is that exempt wells can pump water out of priority which in turn
reduces the water available to senior water users during times of water shortages. This
concern is elevated as exempt wells are being used for large, relatively dense subdivision
development in closed basins.
Exempt wells are not reviewed by DNRC and are not subject to public notice. In
contrast, permitted wells are reviewed by DNRC, and water users and the pubUc are
noticed and given an opportunity to object. Impacts caused by permitted wells are
required to be identified and, if these impacts cause adverse affect to water users, must be
ofifeet through mitigation plans or aquifer recharge plans. Impacts caused by exempt
wells are often offset during times of water shortages by curtailment of junior surface
water right users. Even if administiation or enforcement of exempt wells in priority
existed, curtailment of exempt wells could be ineffective because of the delayed effect on
stieam flows and, therefore a call may not benefit senior surface water users.
Evaluation of streamflow records may not be an accurate way to characterize depletions
by out-of-priority ground-water pumping because depletions from exempt wells can be
offset by curtailed use of surface water by junior water right appropriators. At current
rates of development, approximately 30,000 new exempt wells could be added in closed
basins during the next 20 years resulting in an additional 20,000 acre-feet per year of
water consumed Some of this increased consumption will be offset by reduced historic
consimiption for agriculture where residential development is occurring on irrigated
lands. However, much of the subdivision development in closed basins is occurring on
lands that were not previously irrigated. In addition, there are no guarantees that historic
water rights for lands developed using exempt wells will not be sold and put to new uses.
Water Rights Perspective
Ground water flow models of the GaUatin Valley by Nickhn (2005) and Kendy and
Bredehoefl: (2006) demonstiate how pumping and consuming ground water in closed
basins can impact surface-water flows. The challenge for addressing these impacts is that
depletions of surface water caused by pumping ground water, from either an exempted or
permitted well, usually will take months or years to dissipate if pumping is curtailed.
Ground water pumping has fallen outside of the priority system that surface water users
are subject to during times of water shortages because exempt rights are not included in
decrees administered by water commissioners. In any event, a call against groundwater
pumping, even if enforced, may generally be fiitile in the short term. This can create the
anomaly of a surface water right holder with a 1920 priority date for irrigation being shut
off during water shortages, while a groundwater right holder with a 2007 priority date can
continue pumping, even though their water use depletes stieam flow. Water
commissioners and district courts may increasingly be called upon to regulate exempt
water uses. These exempted water users may find themselves called upon to bring
G-1
forward evidence that their exempted uses do not take surface water, or that a call by a
senior surface water user would be futile.
Provisions of BH 831 codified at §85-2-360 MCA through §85-2-364 MCA provide
mechanisms in addition to basic permitting criteria in §85-2-3 1 1 MCA whereby an
applicant for a provisional permit for a non- exempt well in a basin closed to new surface
water use can pump and use ground water if effects to senior water users, if necessary,
are mitigated. Permit applicants are required under these provisions to assess potential
net depletions to surface water and to offset net depletions that cause adverse effects to
existing water rights through a mitigation plan or an aquifer recharge plan. The required
hydrogeologic assessment generally includes a description of the properties and extent of
the source aquifer to a well, the locations of surface waters connected to the source
aquifer, and an evaluation of the timing and magnitude of net depletioa Most often,
mitigation or aquifer recharge plans will involve retiring an existing surface water use
and changing the water right to mitigate the impacts of the new use. A ground water
appUcant under HB 831, in conjunction with the change statute of §85-2-402 MCA, is
required to demonstiate that the historic period of use and consumptive use of the right
being retired will provide adequate water in priority generally during the time needed to
mitigate any adverse effects of tiie new use. The change process ensures that the historic
water right will not be expanded or used in a way that adversely affects other water users.
In contiast to permitted wells, wells pumping less than 10 acre- feet per year and less than
or equal to 35 gallons per minute (gpm) maximum pumping rate do not have to meet the
requirements of §85-2-360 MCA tiirough §85-2-364 MCA or §85-2-31 1 MCA. These
exempted wells can deplete surface water flows in the same proportion to wells that are
subject to permitting requirements. For example, 100 individual wells serving a
subdivision will have the same magnitude of depletion as one or more larger non-exempt
wells for a public water system serving the same number of households fi-om the same
aquifer at that location. Net depletion in both cases depends on the amount of water
consumed and aquifer conditions. Pumping from the permitted well should not affect
senior surface water users as long as the associated mitigation or aquifer recharge plan is
in effect. Depletions by the 100 exempt wells can continue unabated during periods of
water shortage, affecting surface water users by decreasing the amount of available
stieam flow and increasing the need for some junior surface water users to curtail their
use.
Nicklin (2007) argues in part that the effects of exempt weUs in the Gallatin Valley are
inconsequential because in-home consumption is small and because most of the
consumption associated with these wells is for lawn and garden irrigation that balance
consumption of surface water that was historically used to irrigate agricultural crops on
the same land. Nicklin further argues that, because the number of acres irrigated for crops
in the Gallatin Valley has declined, less water is now consumed than in the past.
Essentially, Nicklin argues that the effects of exempt weUs are mitigated ad hoc similar to
formal procedures under §85-2-360 MCA through §85-2-364 MCA by merely replacing
the previous irrigation uses of water with exempt uses of water.
There are many exempt weUs in the Gallatin Valley that si^)ply residential needs on lands
that were previously irrigated, however, the effects of the new uses may not be mitigated.
The water right for the previous irrigation use might have been severed from the land and
G-2
changed to a new use (e.g. mitigation of a permitted well), or placed of use (e.g. sold to
another irrigator for use on different lands). Surface water that is supplied from storage
by a ditch or canal company, as is much of the irrigation water in the Gallatin Valley is
difficult to track and may simply provide expanded service to another tiact. In addition,
the historic irrigation on a parcel can be for the early portion of the irrigation season in
the case of grains, or for flood irrigation with a lower depletion rate as compared to
sprinkler irrigation, or as a result of being so junior that curtailment by a water
commissioner occurs yearly. In these cases, historic consumption by agricultural
irrigation may be less than summer-long lawn and garden irrigation that replaced the
agricultural use. Most importantiy, development in the Gallatin Valley and in other
valleys in westem Montana is increasing and occurring in areas that have not been
historically irrigated and where increased consumption by new exempt well use is not
being offeet by decreased historic consumption for irrigatioa Regardless of the location
or past land use, the safeguard provisions of §85-2-360 MCA through §85-2-364 MCA
and §85-2-402 MCA that ensure the effectiveness of mitigation for permitted ground-
water uses do not cover exempt wells.
Depletions by exempt well use may not be discernible by basin-scale water balances or
analysis of hydrographs of gross basin inflows and outflows, in part because these
depletions are small relative to annual flows. In addition, records of consumption by
exempt well use may be masked during periods of water shortage by curtailment of junior
surface water uses. Low- flow measurements in July to September (Figure 1) and water
commissioner records demonstiate that water shortages occur in the Gallatin River and
other closed basins nearly every year and that junior surface water use is curtailed or
reduced through informal sharing among surface water users. For example, surface water
users with priority dates back to the 1 890s are curtailed in the Gallatin during most years
and, if not for voluntary reductions, the Gallatin River at Amsterdam Road Bridge and
the 1-90 Bridge would go dry (Compton, 2007) (Figure 2). Depletion of surface water by
exempt well use continues during these periods of shortages and ultimately increases the
need to curtail more junior surface water rights or the need for more voluntary reductions.
The net effect is that depletions by ground-water pumping do not show up in records of
total basin water outflow because they are offset by curtailed use by junior surface water
users. Figure I also indicates that the appropriate place in the Gallatin Valley to discern
water shortages is not near the mouth, but farther upstream in the vicinity of Amsterdam
and the 1-90 bridge. Irrigation return flow and the East Gallatin River increase flows
substantially downstream.
G-3
900
800
700 -
S 600 -
e.500 -
400
o
300 -
200 -
100
I -*- Amsterdam -♦- 1-15 Bridge
Logan
-Gateway -<^Noms Read
15>)ul
31 ^ul
16-Aug
1-Sep
Figure 1. Flows in Gallatin River from Gallatin Gateway to Logan during the late
summer of 2006.
v-r
_ Logan
*\ \
■^' -"^im
l-gOBf^ge V.
J-
^
r^^
Gallatin Gatev^ay
: . ^ -'-^
Figure 2. Locations of gauging stations on Gallatin River.
-^
G-4
Future Exempt Well Growth and Consumption
Estimates of water consumption are presented in Table 1. Trends in the number of water
right certificates issued by DNRC are presented in Table 2. These tables demonstrate the
potential future effects of exempt wells. Estimates of household water use and
consumption are based on the following assumptions.
• In-house water use is 1 87.5 gallons per day per household (75 gallons per day per
person with 2.5 persons per household) based on published use (Kimsey and Flood,
1987).
• Total consumption of water used indoors and during wastewater treatment is 5
percent of the water used indoors. This rate of consumption is intermediate between
an estimate by Kimsey and Flood (1 987) of 2 percent for households served by
municipal wastewater treatment plants and an estimate by Vanslyke and Simpson
(1974) of 12 percent for households with individual septic systems. More recent site-
specific research in Colorado found a combined consumption rate for indoor use and
sewage disposal of about 15.6 percent (Paul, Poeter, and Laws, 2007).
• Net irrigation requirement for lawn and garden use is 16 inches per year on average
based on net irrigation demand for turf for various stations in closed basins obtained
from the Montana Irrigation Guide.
• Lawn and garden irrigation efficiency is 70 percent.
• Future number of exempt wells in closed basins is projected fi"om the linear growth
rate the occurred between 1991 and 2006.
Table 1 . Calculated water diversion and net consumption per household.
Acre-Feet Per Year :
Household
Irrigation
Total ^
Household + 1/4 acre lawn
Diversion
0.21
0.48
0.54
Consumption
0.01
0.33
0.34
Household + 1/2 acre lawn
Diversion
0.21
0.95
1.16
Consumption
0.01
0.67
0.68
The number of acres typically irrigated by exempt wells is estimated by evaluating
infrared aerial photography for lots associated with exempt wells the Bitterroot Valley,
Helena Valley area, and Gallatin Valley. DNRC geographic information speciahsts
delineated irrigated portions of selected properties associated with exempt wells by
randomly selecting 1 00 exempt wells firom each basin and compiled statistics presented
in Table 2. Averages of estimates of irrigated acreage vary from 0.38 acres in the Helena
Valley to 0.93 acres in the Gallatin Valley with an overall average of 0.67 acres and
median of 0.50 acres. The intensity of irrigation varied between sites; but the data
indicate that the consumption estimate for a V2 acre parcel provided in Table 1 probably is
representative value for predicting overall consumption fi"om fiiture exempt well use.
G-5
Table 2. Estimates of irrigated acreage associated with exempt wells for the Bitterroot
Valley, Helena Valley area, and Gallatin Valley.
Basin
Average
(acres)
Median
(acres)
Max
(acres)
Min
(acres)
25thi
Percentile
75th -
Percentile .
Bitterroot
0.7
0.43
3.86
0.07
0.25
0.87
Helena
0.38
0.27
2.02
0.025
0.18
0.45
Gallatin
0.93
0.8
5.06
0.14
0.49
1.04
The number of exempt wells filed in the closed basins listed in Table 3 has increased
steadily at a rate of approximately 1,400 per year. Based on this trend and assuming Vt
acre of irrigation per residence, the number of exempt wells will increase by
approximately 30,000 and consumption by these exempt wells will increase by
approximately 20,000 acre-feet per year by 2030 (Table 4). Further, the number of
exempt wells will increase by approximately 70,000 fi"om current numbers and an
additional 47,000 acre-feet of water will be consumed per year by 2060. From Table 1,
approximately 300 homes using exempt wells with V^ acre of lawn and garden irrigation
will consume about 204 acre-feet of water. This is roughly equivalent to the amount of
water consumed by one center pivot irrigating 1 38 acres of alfalfa with a full-service net
irrigation requirement of 1 8 inches. This calculation is provided for comparison purposes
and is not an estimate of effects that will occur during the irrigation season.
Table 3. Cumulative number of filed exempt wells (minus exempt stock wells) beginning
in 1991 , the first year for the 35 gpm / 1 0 acre-foot exemption
Year
Bitterroot
Jefferson/
Rfefflson
Teton
Upper
aark Fork
Upper
Missouri
Total
1991
0
256
12
324
846
1,438
1992
455
391
18
559
1,361
2,784
1993
879
526
27
706
1,890
4,028
1994
1,274
698
30
889
2,451
5,342
1995
1,620
857
33
1,094
3,084
6,688
1996
2,027
1,008
35
1,264
3,534
7,868
1997
2,346
1,133
37
1,429
4,003
8,948
1998
2,697
1,272
39
1,598
4,551
10,157
1999
3,049
1,461
41
1,791
5,155
11,497
2000
3,355
1,605
57
2,006
5,856
12,879
2001
3,645
1,724
65
2,151
6,533
14,118
2002
3,957
1,882
71
2,267
7,142
15,319
2003
4,311
2,039
82
2,411
7,620
16,463
2004
4,682
2,226
90
2,578
8,222
17,798
2005
5,160
2,444
97
2,772 ■
8,870
19,343
2006
5,797
2,785
145
3,056
9,847
21,630
2010*
6,900
3,200
140
3,700
12,000
26,000
2020*
11,000
4,800
230
5,400
18,000
39,000
2030*
14,000
6,400
320
7,200
24,000
52,000
2040*
18,000
8,000
410
8,900
29,000
64,000
2050*
21,000
10,000
500
11,000
35,000
77,000
2060*
25,000
11,000
590
12,000
41,000
90,000
* cumu
ative number;
5 of exempt w
ells for fiiture
years are estir
nated by linea
r regression
G-6
Table 4. Projected cumulative consumption in acre-feet annually for certificate wells with
'/4 acre of irrigation after 2006 (calculated from data in tables 1 and 2).
Tear
Bitterroot
Jefferson/
Madison
Teton
Upper
Clark Fbrli
Upper
Missouri
Total,
2010
800
300
0
400
1,300
3,000
2020
3,000
1,400
60
1,600
5,000
12,000
2030
6,000
2,000
120
3,000
9,000
20,000
2040
8,000
4,000
180
4,000
13,000
29,000
2050
10,000
5,000
240
5,000
17,000
38,000
2060
13,000
6,000
300
6,000
21,000
47,000
Summary
The following are the main points of the preceding discussion.
• Groundwater pumping and use in closed basins has been shown through modeling to
deplete surface water flows.
• Exempt wells can cumulatively deplete surface water flows proportionally to
permitted wells.
• Ground-water use is difficult to curtail to avoid impacts to surface water users during
water shortages under a prior appropriations system. However, water commissioners
and district courts may increasingly be called upon to regulate exempted water users,
so exempted water users may find themselves called to bring forward evidence that
their exempted uses do not take surface water, or that a call on their exempted right
by as senior surface water user would be futile.
• Provisions of HB831 provide a mechanism for authorizing permitted wells to pump
out of priority with the implementation of mitigation or aquifer recharge plans.
• Provisions of HB831 and §85-2-402 MCA ensure that valid historic water rights will
be used to mitigate adverse effects caused by a permitted well.
• New exempt wells are not subject to the provisions of HB831 and, therefore, can
pump out of priority without mitigating adverse effects to senior water right users.
• Historic irrigation water rights that are displaced by new residential developments
that use exempt wells can be severed and sold (and changed to a new place of use or a
new use).
• Pumping fi-om exempt wells can increase the need to curtail more junior surface
water right uses or for more voluntary reductions during perennial periods of water
shortage in closed basins.
• Depletions by exempt well use do not show up in records of total basin water outflow
because they are offeet by curtailed use by junior surface water users.
• Approximately 300 homes using exempt weUs with Vi acre irrigation will consume
204 acre-feet of water each year, which is about equivalent to an estimated 207 acre-
feet consumed by one center pivot used to irrigate 1 38 acres of alfalfa.
• If current trends continue, there violl be a total mcrease of 70,000 exempt wells and
47,000 acre-feet per year of water consumption in closed basins by 2060.
G-7
References
Compton, S. 2007. Personal communication.
Kendy, E. and J.D. Bredehoeft, 2006. Transient effects of groundwater pumping and
surface-water irrigation returns on stieam flow. Water Resources Research, V. 42, 11
P-
Kimsey, D.W. and P.K. Flood, 1987. Domestic consumptive use, technical memorandum
to the Chief Engineer of the State of Colorado, 16 p.
NickHn, M., 2005. Testimony is water rights hearing, DNRC hearing records for
apphcation 41 H-300 12025.
Paul, W., Poeter, E., and R Laows, 2007. Consumptive loss from and individual sewage
disposal system in a semi-arid mountain environment. Colorado Water, Newsletter of
the Water Center of Colorado State University, August/September 2007, Volume 24,
Issue 4.
Vanslyke, G. and H. Simpson, 1974. Consumptive use of water by homes utilizing leach
fields for sewage disposal, technical memorandum by the Colorado Division of Water
Resources, 5 p.
G-8
Appendix H
State Funding for Irrigation in Montana
and
Consequences of Converting from Flood to Sprinkler Irrigation
Water Policy Interim Committee
June 10, 2008
Information Provided by:
Alice Stanley, Chief
Resource Development Bureau
DNRC Conservation and Resource Development Division
astanJey(5'mt.gov
406-444-6687
Mike Roberts, Hydrologist
Water Management Bureau
DNRC Water Resources Division
m i roberts@m t. gov
406-444-6641
H-1
Government Assistance Programs Available to Irrigators
This is a list of financial and technical assistance programs available to private and public
entities for irrigation related projects and activities. Some of the programs were established
specifically for private irrigators, where others require a public or local government entity
(conservation or irrigation districts, for example) to sponsor projects that ultimately will
support private irrigators.
State Assistance Programs
Irrigation Development Grant Program
Montana Department of Natural Resources and Conservation Resource Development Bureau
www.dnrc.mt.gov/cardd/ResDevBureau/irrigation development/irrigation dev grants.asp
Private Water Development Loans
Montana Department of Natural Resources and Conservation Resource Development Bureau
www.dnrc.mt.gov/cardd/ResDevBureau/private loans.asp
Renewable Resource Grant and Loan Program
Montana Department of Natural Resources and Conservation Resource Development Bureau
www.dnrc.mt.gov/cardd/ResDevBureau/renewable grant program.asp
Renewable Resources Project Planning Grants
Montana Department of Natural Resources and Conservation Resource Development Bureau
www.dnrc.mt.gov/cardd/ResDevBureau/project planning grants.asp
Reclamation and Development Grants Program
Montana Department of Natural Resources and Conservation Resource Development Bureau
www.dnrc.mt.gov/cardd/ResDevBureau/rdgp.asp
Growth through Agriculture
Montana Department of Agriculture
agr.mt.gov/business/GTA.asp
Fisheries Restoration and Irrigation Mitigation Program for Montana
Montana Department of Fish, Wildlife and Parks
fwp.mt.gov/habitat/fisheriesrestoration.asp
Conservation District Grants (HB 223 Grant Program)
Montana Department of Natural Resources Conservation District Bureau
www.dnrc.mt.gov/cardd/loans grants/cdloangrants.asp#HB223
H-2
Federal Assistance Programs
Environmental Quality Incentives Program (EQIP)
USDA Natural Resources Conservation Service
vvavv^.nrcs.usda.gov/PROGRAMS/EOIP/
Conservation Technical Assistance Program
USDA Natural Resources Conservation Service
w-ww.mt.nrcs.usda.gov/technical/ecs/planning
Irrigation Operation and Maintenance on Indian Lands
Branch of Irrigation, Pow^er and Safety of Dams, Bureau of Indian Affairs
www.federalgrantswire.com/irrigation-operations-and-maintenance-on-indian-lands.htmI
Farm Loan Programs
US Department of Agriculture, Farm Service Agency
vvww.fsa.usda.gov/FSA/webapp?area=home&subject=fm]p&topic=landing
H-3
Potential Consequences
OF Converting From Flood to Sprinkler Irrigation
These are potential results, not all will happen in every situation. Some may occur rarely and
some may occur with every conversion. Some are basin-wide and some are limited to a
producer's field. Not everyone agrees on the frequency or extent of occurrence for most of the
consequences listed below.
Flood to Sprinkler Conversion Effects on the Producer and Field
Labor savings and cost reduction
• Increases ability of some family farms to remain in production
• Increases ability of some producers to earn income from off-farm employment
(less demand on operator's time due to automated irrigation, fertilizer & pest control)
• Reduces application rates and cost for fertilizers and other ag chemicals
(due to precision application by sprinklers)
Increases productivity, especially on a non-level field
Decreases or eliminates available water for late season irrigation to downstream users
Decreases or eliminates available groundwater for downstream domestic wells
Increases ability of producer to irrigate sloped fields
Increases options for crop diversification
Increases nutrient output per acre.
Increases ability for additional harvest
(late season low flows may be adequate for amount needed to sprinkle irrigate)
Increases ability to expand irrigated acreage with the same water supply
Increases the availability of water to downstream users of an irrigation system
(reduced amount diverted leaves more water in the ditch)
Reduces the occurrence of losing grassland to sedge where previously over-irrigated
Increases capital investment & maintenance costs
Increases energy use and costs
Flood to Sprinkler Conversion Effects on Water Quality
Reduces contributions of ag chemicals to surface and groundwater
(precision application rates apply only what the plant needs)
Reduces sedimentation to surface water by runoff of excess irrigation water
Increases late season temperatures in natural water ways
(reduced return flows result in lower instream flows and less influx of cooler ground
water which cumulatively tends to increase water temperature)
Flood to Sprinkler Conversion Effects on Water Quantity
Reduces the volume of water diverted for a given field
Increases loss through plant transpiration (due to increased plant production)
Changes return flow timing to increase early season surface flows and decrease late season
return flows.
Increases the potential for an irrigator to divert water from a stream during low flow stage
because less water is needed to adequately irrigate a field.
Increases or decreases evaporation loss depending on conditions
H-4
Increases consumptive use if crop productivity is increased
Low^ers the water table
Decreases aquifer recharge
Reduces late season instream flows (through reduced diversions and return flows)
Eliminates or reduces late season return flows to groundwater and surface water
Flood to Sprinkler Conversion Effects on General Ecological Conditions
Reduces amount of water supporting wetlands
Reduces occurrence of saline seep areas
Supports early-season fish spawning by more closely reproducing natural conditions of
higher spring flow vs. late season return flows.
Impairs fall fish spawning by reducing late-season groundwater return flows to surface
water.
Decreases soil loss in surface reduced runoff
Decreased habitat for birds and terrestrial species
H-5
Factors that Could influence the effects
OF Converting from flood to sprinkler irrigation
Field Conditions the Influence the Effects of Converting to Sprinkler Irrigation
Topography (level or uneven field)
Soil texture & structure (affects drainage characteristics)
Changes in irrigated acreage or crop type due to transition from flood to sprinkler irrigation
Field shape (flood to center pivot may leave comer acreage un-irrigated on a square field)
Field size
Slope (flood irrigation produces more runoff, less infiltration sloped field)
Soil depth
Soil chemistry (pH)
Variability of these factors within a field
Crop type (grass vs. alfalfa hay, sugar beets vs. potatoes)
Crop demands (nutrients & other chemical needs)
Hydrologic Conditions
Depth to water table
Water source & availability
Receiving water for return flow (irrigation ditch, aquifer, stream)
Fishery instream flow demands
Operational Conditions
Financial feasibility
Distance of operator from field
Labor availability
Distance of water source from field
Diversion type
Diversion location
Use of subirrigation (sometimes supplemented or extended by flood irrigation)
Cost of electricity and fuel
Cost of transportation to market
Climatic Conditions
Wind
Solar influences
Precipitation
Evaporation rates
External Factors
Existing uses of flood irrigation return flows
Availability of reserved water rights (from Conservation Districts or Tribal Compact
agreements)
Cooperative agreements with other water users
Legal restraints on water use (water rights, TMDLs for instream flows)
Status of water rights in a basin
H-6
Appendix I
Kolman, Joe
From: WmGBallinger [wgb@mt.net]
Sent: Sunday, July 06. 2008 1 :20 PM
To: Kolman, Joe
Subject: Water
I write only to congratulate the committee for their foresight in tackling this problem, especially in view of
California's recent awareness of a drastic shortage of water this summer.
Respectfully yours,
William G. Ballinger, M.D.
1-1
CLARK FORK
COALITION
PO Box 7593
Missoula, MT 59807
406/542-0539
Phone
406/542-5632 Fax
August 4, 2008
Water Policy Interim Committee
Senator Jim Elliott, Chair
Senator Gary L Periy, Vice Chair
Senator Lany Jent
Senator Terry Muiphy
Representative Scott Boggio
Representative Jill Cohenour
Representative Bill McChesney
Representative Walter McNutt
cc: Joe Kolman, Staff
Re: Clark Fork Coalition Comments on Water Policy Interim Committee
Draft Legislation and Findings
Thank you for the opportunity to comment on the WPIC's Findings and Options
for Recommendations, as well as the Committee's draft legislation. The Clark
Fork Coalition appreciated participating in the WPIC's meetings and discussions
over the past year, and applauds the Committee's dedicated efforts to learn more
about the intricacies of our state's ground and surface water.
Please find below the Coalition's comments on the options and draft legislation
relevant to our members and residents of the Clark Fork watershed. We look
forward to working with you to continue the conversation on how best to address
the challenges and opportunities facing Montana's water resources.
Water Policy
» The Coalition supports making the WPIC a permanent interim committee.
This step will help create institutional knowledge of the science and history
behind Montana's water supply, and also aid in generating proactive policies to
address future water needs.
LC 5007 - Ground water investigation program:
The Coalition is in favor of collecting accurate, accessible scientific data to help
the State and counties allocate, measure, and monitor water withdrawals. Though
the costs of a comprehensive statewide hydrogeologic study are not feasible,
focusing money and MBMG efforts in the high-growth sub-basins will allow
more informed permitting for water use.
We hope that an expanded MBMG study would be focused narrowly enough to
provide data on surface-groundwater interactions. To this end, we recommend
1-2
defining a list of "prioritized subbasins" in Section 1 (2), which the steering committee
can then further narrow.
The Coalition also urges the WPIC to consider directing MBMG to provide the public
with a basic model for predicting impacts from future water withdrawals/changes in
the studied sub-basin, as a practical component of the data collected and analyzed.
General Water Quantity and Quality
» We recommend updating the Controlled Groundwater Area petition process in 85-2-
506 to allow local governments a more flexible and less costly way to petition for such an
area. Controlled Groundwater Areas are an important, tried-and-true tool for managing
water, particularly in many regions of the quickly-growing Clark Fork Watershed, and
will become more relevant as the demand on our water resources increases.
LC 5012 - MPT water rights for wetland mitigation
The Coalition is not in favor of creating an exemption under 85-2-306 for the Montana
Department of Transportation to appropriate ground or diffiise surface water without a
permit from the DNRC. Concerns include:
No set limit on the volume allowed for the proposed MDT appropriation exemption.
- . Creating additional exemptions from the permitting process when many of our
streams and rivers are already over-appropriated, many are chronically dewatered,
and the State is already struggling to monitor and manage existing groundwater
withdrawals, much less additional unregulated withdrawals.
Any "recreated" wetlands constructed under the Clean Water Act should also be
subject to statewide performance standards to ensure that the State's water is being
used for scientifically valid, and ecologically beneficial wetland mitigation.
The Coalition recommends an expedited DNRC permitting process for MDT to
ensure road construction activities comply with the Clean Water Act, but not an
exemption for water appropriation.
Government Issues
» The Coalition supports increased coordination between DEQ, DNRC, and MBMG.
We also recommend requiring a central reporting system for all exempt wells,
especially for new subdivisions and for wells drilled near individual septic systems. This
is critical for monitoring and managing water quality and quantity.
LC 5014 - Local government authority to require public water/wastewater systems
The Coalition supports this bill draft. It's a valuable first step in allowing counties to
assume more control over their water resources through the use of centralized water and
sewer systems.
1-3
However, since most county planning and health departments lack the necessary
resources, money, and data to practically execute the authority granted by LC 5014, we
recommend considering additional incentives for local governments to preferentially
approve subdivisions with central water/wastewater systems — such as a DEQ/DNRC
funding program designated to providing counties more staff resources if they choose to
enact this authority.
Water Use Enforcement
» We'd like to note that in order to effectively enforce water rights, the State must
require reporting of all water use, including exempt wells (as stated above), and also
actively monitor future exempt wells' and permitted groundwater wells' water use.
LC 502 1 - Revising water enforcement laws
The Coalition strongly supports WPIC's attention to better enforcing water use in the
state to ensure that senior water rights are protected. The Coalition supports LC 502 1 ,
especially 3-7-3 1 1(4). However, we believe that water enforcement should stay at the
state level - such as with the Attorney General as proposed in 502 1 - rather than at the
county level. County staff, including attorneys, are already over-stressed and ill-
equipped to deal with the complex intricacies of water law.
Water Supply and Sewage Disposal
» The Coalition commends the WPIC on the many in-depth discussions and
presentations on the status of individual wells exempt fi^om the permitting process. We
believe the cumulative impact of exempt wells is the single biggest challenge facing
the Clark Fork basin's water resources, as the "free giveaway" of water threatens
senior water right holders, water quality, fish and wildlife, and future water supplies.
We recommend amending 85-2-306(1) to reflect today's changing demands on our
groundwater — this means the exemption cannot be applied to subdivisions. In addition,
the well volume of 10 acre-feet per year designated in this statue is excessive for
domestic or stockwater tank needs. The Coalition recommends amending the exempt
volume to one or less acre-feet per year. These suggestions correlate to Options J, K, and
L in the WPIC report.
Option P — not allowing fish/private ponds to utilize the exemption — is also important to
the Coalition and our members. Private ponds are more and more popular with residents
moving to the Clark Fork watershed, adding to the unregulated water withdrawals
plaguing our already-dewatered tributaries, particularly in the Bitterroot Valley.
Solutions include: 1) amending the total volume allowed for individual exempt wells to
one or less acre-feet per year, and 2) requiring the reporting of all exempt wells to better
track and monitor water use.
1-4
We don't believe that Options M and N are valid solutions to best encourage
public/community water and wastewater systems. However, Option O has merit tor
tracking and mitigating new subdivisions' water use in closed basins in a timely, cost-
effective way. In effect, a "mitigation credit" for groundwater withdrawals could be
modeled after the federal Clean Water Act's wetland mitigation program, where MDT
can purchase wetland credits from a mitigation bank — a landowner/private entity that has
restored a wetland in a nearby region, such as the Upper Clark Fork Mitigation Bank
(http://www.ecosystempartners.com/projects_ucfmb.htm) — to offset the destruction of
any wetlands during road construction.
A groundwater mitigation credit would be purchased by the developer to offset the net
depletion as part of the DNRC's permitting process. Mitigation water could come from a
large block of reservoir water or retired senior water rights transferred to instream use
within a pre-determined radius — the region appropriate to provide mitigation water can
be designated geographically by subbasin. The water would be readily available in a
"bank" administered by the DNRC, a local authority, or a private entity, cutting down on
the current costly and time-consuming process under 85-2-362 of locating, purchasing,
and transferring the mitigation water.
LC 5019 - Permits for subdivision water systems
While an interesting first step at creating a solution for subdivisions seeking a new
groundwater appropriation, this draft bill ultimately falls short of addressing the
exempt well problems discussed above.
The Coalition appreciates that this bill recognizes a "subdivision water system" as a
withdrawal of groundwater by 2+ wells. This is crucial in acknowledging that multiple
individual wells constitute a combined appropriation (even if not physically manifold).
The main reason the Coalifion does not support LC 5019 is because it violates
Montanans' constitutional rights under the prior appropriation system. This bill would
limit the ability of water right holders to object or comment during the permitting process
by eliminating 85-2-307 to 3 1 1 for subdivision water rights. We believe this is an
unacceptable method of administering water use permits.
However, we would be supportive of creating other incentives for streamlining the
permitting process for a "subdivision water system," especially if this streamlined permit
requires residential/urban water conservation practices, such as grey water systems or
rainwater catchments for lawn and garden irrigation, and water metering for each unit.
If the bill is introduced, the Coalition urges the WPIC to make sure any "baselines"
defining what constitutes a subdivision water system (as outlined in 85-2-102 (23)) are a
reasonably low threshold for requiring a permit. Setting numbers on minimum volumes
or lot sizes will only encourage subdivisions to find "loopholes" that fall under that
specified threshold rather than applying for the groundwater permit.
1-5
» LC 5020 - DNRC permitting/change revisions
The Coalition supports the proposed changes to the DNRC permitting process. These
changes would provide much-needed expedition and streamlining of permit requests for
those looking to appropriate new water supplies, while still allowing public process and
transparency for existing water users. Our hope is that a more time- and cost-efficient
system will encourage developers and water users to apply for groundwater permits
rather than opt toward unregulated and urmionitored exempt wells.
Conclusion
Again, the Clark Fork Coalition commends the WPIC members and staff for their
commitment to protecting Montana's water resources. We've enjoyed working with you
this past year, and look forward to continued dialogue on how to best meet the needs of
all water users in the Treasure State, including fish and wildlife. Please feel free to call
anytime to discuss these recommendations and comments.
Sincerely,
Brianna Randall
Water Policy Director
Karen Knudsen
Executive Director
Appendix A. Clark Fork Coalition 's general water policy recommendations.
Protecting Montana's Valuable Water Resources
1. Water resource plarming must always take into account the West's hydrologic
variability, recognizing that our supply is not fixed.
2. Lmk land- use decisions to water availability, especially in fast-growing counties that
rely on groundwater for new development. New developments must provide water
supply assessments that analyze: (1) sustainable, long-term supply, (2) impacts on other
water users, including fish and wildlife; and (3) alternative sources.
3. Set a goal of "no net increase" of natural water use for new developments (i.e. no
new dams for storage), and encourage conservation as the main source of "new" water.
4. Create incentives and mandates that boost both urban/ residential and
rural/ agricultural water conservation: i.e. enable creative re- use of water with local goals
for developing rainwater catchments and grey water systems as sources for irrigation and
lawn/ garden water.
5. Recognize linkage between enei^ and water demands by accounting fon (1) the
enei^ costs of developing new water supply options; and (2) impacts on water use from
oil, coal, hydropower, and gas development.
1-6
6. Foster regional cooperation among existing public and private water managers, and
encourage the creation of new watershed management authorities.
7. Qarif y relative rights ot existing water users by streamlining and expediting state
water departments' permitting and adjudication processes, and by completing negotiated
settlements of Native American reserved water rights.
8. Fund local watershed groups and water districts that initiate stream restoration, water
conservation, and education efforts through grants and loans.
9. Encourage public dialogue and community- supported policy changes by educating
policy makers and the public about the impacts of growth and climate on our water
supply: For examples, see Qark Fork Coalition's LowFlma, Hot Trua report, available at
www.clarkforkoi^ and details on the upcoming "Headwaters Summit," available at
www.northemrockies.org.
10. Restore and protect rivers, floodplains, and wetlands to benefit the overall public
safety, water quality, and ecosystem services in the West's inter-connected watersheds.
1-7
Chamber of Commerce
Your Business Advocate
Webb Brown
President/CEO
Montana Chamber of Commerce
PO Box 1730
Helena, MT 59624
To members of the Water Policy Interim Committee,
One very important issue that has become a part of the committee's running agenda is
exempt wells. We understand that some members of the committee believe exempt wells
are to blame for reduced water quantity and water quality.
The business community is opposed to changes in the exempt well statute at this time.
Numerous small businesses depend on exempt wells to open their doors and serve their
customers. But this is not just an issue that affects small business. More specifically, we
are very concerned about how changes to exempt wells will also have a direct impact on
the issue of affordable workforce housing.
Many communities in western Montana have seen real estate prices increase substantially
over the past decade. Prices of new starter homes and existing homes have climbed to
unattainable levels for average workers, making it difficult for all employers to attract
new employees to the area. But the issue of housing is also an issue in rural areas,
especially in eastern Montana. In places like Sidney and Glendive, there are simply no
houses available. Affordable workforce housing is a problem affecting the whole state.
Changes to the exempt well statute would have a negative impact on the price of new
homes in some areas and the availability of homes in other areas. Without providing
proven, predictable and cost-effective alternatives, narrowing or removing the exempt
well statute will only exacerbate the housing problem facing many working Montana
families.
Not only would changes have a negative impact on development and affordable housing,
but scientific data shows the changes would have no significant impact on water quantity.
A study conducted by Nicklin Earth & Water, Inc., on the effects of exempt wells in the
Gallatin Valley showed little impacts to water quantity:
^'^ Ground-water use from wells is inconsequential when compared to stream flows.
For instance, total domestic (household) consumption of ground-water from
exempt wells is negligible and equates to about 0.01% of Gallatin River flow
1-8
2030 1 1th Ave., Suite 21 • P.O. Box 1730 • Helena, Montana 59624 • (406) 442-2405 • Fax (406) 442-2409 • dee<s)montanachamber.coi
entering the valley annually. A worst case estimate for consumption from lawn
and garden irrigation in the Gallatin County associated with exempt wells
equates to about 0.02% of the water entering the valley annually. For another
perspective, the total amount of consumptive use from all exempt wells combined
in Gallatin County equates to about 3 to 9 percent of the total eround-water
consumption lost to cottonwoods and willows in the Gallatin Valley. A worst case
estimate of consumption from other irrigation wells equates to less than J. 7% of
the water entering the valley annually."^
Before the state takes the exempt well option off the table, reforms should be made to the
current water permitting process, which often does not allow for timely or cost effective
permitting of community water systems. Once the state has shown it cam provide timely
and cost effective alternatives to exempt wells, the state could revisit the exempt well
statute if negative impacts can be shown with scientific data.
Thank you for your attention to our concerns on exempt wells. We are grateful for the
work you have done on this important issue. Your service to the people of Montana is
greatly appreciated.
Sincerely,
Webb Scott Brown
President/CEO
Montana Chamber of Commerce
Gallatin Valley Water Resources Evaluation: A Test of the Rationale of Montana Department of Natural
Resources & Consen'ation Proposed Legislation to Amend Montana Water Law, NickJin Earth & Water
Inc., (January 2007).
1-9
DEPARTMENT OF NATURAL RESOURCES
AND CONSERVATION
BRIAN SCHWEITZER
GOVERNOR
DIRECTOR'S OPnCE (406) 444-2074
TELEFAX NUMBER (406) 444-2684
'STATE OF MONTANA
WATER RESOURCES DIVISION (406) 444-6601
TELEFAX NUMBERS (406) 444-0533 / (406) 444-5918
http://wrww,dnrcmtgov
1424 9TH AVENUE
PO BOX 201601
HELENA, MONTANA 59620-1601
MEMORANDUM
TO: Water Poli(;y4nterim Committee
FROM: John ^. Tue^, A(dmimstrator
RE: WPIC Proposed Legislation LC 50 1 9, LC5020, LC502 1
I thank the committee for providing the opportunity for comment on its legislation drafts.
The following are our comments or concerns.
LC5019: Permit Process for Subdivisions
The Department understands the motivation of the committee to identify a fast-path
permitting process encouraging public water supply wells. However the LC 5019 has a
number of provisions that raise serious concems. The Department raises these concerns
now so that the Committee is aware that the draft legislation, if enacted, may not
withstand a legal challenge.
Further, a recent district court case in New Mexico may create significant uncertainty
West- wide as to the validity of any exception to the permit and change process ( Bounds
V. State Engineer of New Mexico, Judge J.C. Robinson Sixth Judicial District Court of
New Mexico). LC 5019 creates a 3,000 acre-foot exception for subdivision development,
greatly expanding the current exception, a move in stark contrast to the move to reduce
exceptions in other states.
New Section 1. Subdivision water systems in closed basins
Subsection (1)
This Subsection singles out one type of beneficial water use above all others for an
expedited process, subdivision water systems. Neither the Montana Constitution nor the
Water Use Act has a preference for any particular type of use. It should be noted that
subdivisions of a certain size are generally required to create parkland. Water use for
these types of subdivisions would not be allowed under this Subsection because the
provision includes only lawn and garden associated with a household.
MO
STATE WATER PROJECTS
WATER MANAGEMENT
WATER OPERATIONS
WATERJUGHTS
BUWEAU
BUREAU
BUREAU
BimEAU
(406) 444-6646
(406) 444-6637
(406) 444-0860
(406) 444-6610
The change application submitted with the permit application would have to be for the
sole purpose of providing mitigation water for the permit. The applicant could not include
changing part of his right to mitigation and another part to other purposes, points of
diversion or place of use.
An application under this Subsection would be processed under the Department's
"correct and complete" process §85-2-302, MCA, like all other applications for permits
and changes. If the combined application also included a change application for a
mitigation plan, both the permit and the change application would have to be determined
to be correct and complete before the combined application would be determined to be
correct and complete and ready to move forward to be analyzed under the terms of this
statute. A correct and complete determination would not be a determination by the
Department that the applicant met all of the criteria necessary for issuance of the permit
and change, but only a determination that the combined application could move forward
for analysis.
Subsections (2) and (3)
The Department has constitutional concerns with Subsection (2) where the application for
permit as well as the application for change (if necessary) will not be public noticed and
existing water right holders will not be provided opportunity to file an objection. Oixr
concern is that this section, especially the change provision, may run afoul of the
Constitutional right to due process (Art. II, § 1 7), Constitutional right to know and
participate prior to agency action (Art. II, §8 and Title 2 Chapter 3 Part 1, MCA), and the
Constitutional protection of existing water rights (Art. IX, §3).
With the application not being subject to §85-2-3 1 1, MCA, no analysis would be required
or could be conducted of impacts to existing ground water rights within the area of
potential effect. In Subsections (2) and (3), the only analysis and determination to be
made is that the applicant's mitigation plan will meet §85-2-362, MCA, such that surface
water rights are protected and depletion fully mitigated. A proposed ground water well
could pump and take water from another well and the Department could not address this
issue in the permitting process because of the inapplicability of the §85-2-31 1, MCA
criteria.
In Subsection (3)(a), it is important that the legislation retain the language expressly
giving the Department the right to determine depletions and that the depletions would be
fully offset by the applicant's plan. It is also important to retain the language giving the
Department the right to review a proposed change in appropriation right against the
applicable criteria in §85-2-402, MCA
Subsection (3)(b) requires the applicant to require each connection to install a water
meter. However there is no provision requiring the meters be read or recorded. If it is a
condition of the permit, the information gathered should be sent into the Department
annually, and it then becomes public record. Otherwise, the public may have difficulty
accessing water right records if there is a concern.
-11
Subsection (2)(f) requires the applicant to have a plan for monitoring and enforcing the
uses of water under the permit and the conditions. What is the Department's role in
enforcing the permit conditions? Is the applicant required to have covenants addressing
the requirements under the statute, ex lawn size. What happens if water use records are
not kept?
Subsection (5) provides for judicial review of the department's action. How long does a
party have to file a petition with the court in this review outside of the traditional review
under the Montana Administrative Procedure Act (MAP A), Title 2 Chapter 4 Part 7.
Under MAP A, one has 30 days to file for a judicial review.
85-2-102 Definitions:
In Subsection (12) we would suggest limiting the irrigation to 1/4 acre.
In Subsection (23) a suggested cap of 3,000 acre-feet (AF) is made. At .73 AF per
household, subdivisions of 4100 lots would be allowed under this new Subsection. This
volume of water could certainly have an impact to existing ground water users in some
areas. This volume far exceeds the amount applied for by most applicants.
LC5020: Preliminary Determinations and Informal Objection Process
The Department thanks the Committee for its consideration of this legislation. We
believe that the proposed changes will improve water right processing for all parties.
Existing water right holders will particularly benefit by keeping the burden of proof on
applicants to meet the permitting and change criteria and by minimizing the need to
object to applications that the Department seeks to grant.
In 85-2-307 there appears to be a format problem. Sub-section (b) is missing.
85-2-308(2) cross references the criteria in -320, -402, and -436. There should be a cross
reference to -407 and -408 the provision for temporary changes and temporary changes
for instream flow.
LC5021; Special Masters for Judicial Enforcement
85-2-114 says the Department may petition the district court to:
We suggest inserting new (a)
(a) appoint a water master as a special master. Then current (a) becomes (b).
(b) regulate the controlling works
1-12
Managing Montana's Water: Challenges Facing the Prior Appropriation
Doctrine in the 21st Century
By the Clark Fork River Basin Task Force
July 2008
This paper is prepared by the Clark Fork River Basin Task Force (Task Force)' to review the
status of Montana's water allocation and management system and then to examine the challenges
facing it. Montana water law is based on the prior appropriation doctrine which is commonly
summarized by "first-in-time, first-in-right. "'^ First-in-time, first-in-right means that water use is
based on water rights with a priority determined by when water was first put to a beneficial use.
Increased competition for water resources and increased management complexity are creating
challenges for implementation of this doctrine. The challenges result from reliance on individual
water users for administration and enforcement that threatens the viability of water rights,
groundwater development that impacts surface water, choices related to domestic water sources,
and federal statutes and regulations that constrain the operation of federal water projects and river
flow.
History of Montana Water Allocation and Management
Pre- 1973
Prior to the passage in 1973 of the Montana Water Use Act, the right to use water in Montana
was obtained simply by putting it to a beneficial use.^ No central compilation of water rights
existed. Resolution of water right disputes and adjudication of water rights occurred in local
courts in actions brought by individuals.''
The Clark Fork River Basin Task Force was created in 2001 pursuant to a state statute, 85-2-350 MCA. This statute
requires that members of the Task Force be representative of the water interests and sub-basins in the Clark Fork
River basin. It charged the Task Force with developing a water management plan for the basin that identified
options to protect the security of water rights and provided for the orderly development and conservation of water in
the future. The Task Force presented the Clark Fork Basin Watershed Management Plan to Montana's governor and
legislature in September 2004. The Plan was subsequently adopted by the Montana Department of Natural
Resources and Conservation into the State Water Plan. For more information about the Task Force see
http:/7dnrc.mt.gov/wrd/water mgmt/clarkforkbasin taskforce/default.asp.
In 1894, the Montana Territorial Legislature established the riparian doctrine as the means of allocating water. In
this system, title to water is granted to landowners whose property is adjacent to rivers and streams. It was not until
1921 that the Montana Supreme Court rejected the riparian system in favor of prior appropriation. See Shovers,
"Diversions, Ditches, and District Courts," Montana - The Magazine of Western History, Spring 2005.
^Stone, Selected Aspects of Montana Water Law, 1978, page 28.
4
In 1903, the Montana Legislature established the Montana State Engineer's Office and charged the State Engineer
with surveying the state's water systems to determine annual flows and with overseeing implementation of an 1894
federal statute that allowed private companies to develop irrigation systems. In 1934, the Legislature created the
Montana State Water Conservation Board (SWCB) and authorized it to investigate and ftind water storage and
irrigation projects. In 1965, the Legislature abolished the Montana State Engineer's Office. Two years later, it
replaced the Montana State Water Conservation Board with the Montana Water Resources Board (MWRB) and
directed it to prepare a state water plan. See Shovers, "Diversions, Ditches, and District Courts," Montana - The
Magazine of Western History, Spring 2005. According to Shovers, the same 1967 statute required "...that all water-
right holders must make a declaration of their appropriation to their county clerk, who, in turn, would forward them
to the board in Helena to be compiled into a comprehensive inventory of water resources." The Board did not
compile a comprehensive inventory. Neither the State Engineer, SWCB, or MWRB had the authority to resolve
1-13
Post 1973
In 1972, Montanans adopted a revised Constitution. Article IX, Section 3 of the new
Constitution includes several provisions regarding water and water rights. It recognizes and
confirms existing water rights. It asserts that "All surface, underground, flood, and atmospheric
waters within the boundaries of the state are the property of the state for the use of its people..."
It subjects state waters "...to appropriation for beneficial uses as provided by law," and requires
the legislature both to "...provide for the administration, control, and regulation of water rights
and ... establish a system of centralized records, in addition to the present system of local
records." In response to latter directive, the Montana legislature passed the Montana Water Use
Act in 1973. This Act established a centralized record system for water rights and required that
all water rights existing prior to July 1, 1973 must be finalized through a state-wide water rights
adjudication in state courts. It also provided that a new water right or a change to an existing
right requires a permit from the Montana Department of Natural Resources and Conservation
(DNRC).^
Adjudication
To "expedite and facilitate" the state-wide water right adjudication, the legislature passed SB 76
in 1979. SB 76 mandated a comprehensive adjudication of all pre- 1973 water rights in a newly
created Montana Water Court. It also created the Montana Reserved Water Rights Compact
Commission and charged it with negotiating federal and tribal reserved water rights. Twenty-
five years later, the Water Court had issued 42 temporary preliminary decrees, 14 preliminary
decrees, and 6 decrees that are sometimes labeled as final, but will have to be re-opened. A
major reason for the slow pace of the adjudication was insufficient staff and fiinding for the
DNRC to carry out its claims examination responsibilities.^ In 2005, the legislature passed a
water rights fee to increase funding to DNRC and the Montana Water Court in an attempt to
complete the adjudication by 2020. DNRC hired 30 additional staff and was on pace to complete
its examination work by 2015.
Surface Water Appropriations
Historically, under the prior appropriation doctrine, Montanans obtained water for new uses by
acquiring new surface water rights. However, by 2007 the era of new surface water rights
supporting new uses was essentially over. Many of Montana's major river basins were closed to
water right disputes or adjudicate water rights. This authority remained in local courts.
Water Rights in Montana, published by the Montana Department of Natural Resources and Conservation, the
Legislative Environmental Quality Council, and the Montana University System Water Center, February 2006, page
3.
Federal reserved water rights were created by the United States Supreme Court in its ruling in Winters v. United
States [206 U.S. § 564 (1908)]. The Supreme Court held that when Congress or the President sets aside land out of
the public domain for a specific federal purpose, such as an Indian reservation, National Park, or National Forest, a
quantity of water is impliedly reserved which is necessary to fulfill that primary federal purpose. A federal reserved
water right has a priority date as of the date the land was withdrawn and the reservation was created; it cannot be lost
through nonuse.
See Mont. Code Ann. § 85-2-237 (reopening and review of decrees).
*"White Paper on the Montana Water Rights Adjudication" issued by the Upper Clark Fork River Basin Steering
Committee on March 2, 2004, page 8.
1-14
new surface water rights, with specific exceptions for some uses. The closed basins included the
upper Missouri, Jefferson, Madison, Teton, upper Clark Fork, Bitterroot, and the Musselshell.
The mainstem of the Milk River was closed. The unquantified Salish and Kootenai Tribal water
rights and a 2006 DNRC hearing's officer ruling may have effectively closed the Clark Fork
River basin to new surface water rights.^ Several individual creeks were also closed by petition
and administrative orders during a portion of each year. Water right compacts with federal
agencies and Indian tribes had closed certain water sources to new appropriations.' Even in
areas not closed, a new surface water right would be the most junior for a given water source.
The new user would be entitled to "wet" water only after all other senior rights are satisfied.
Water Reservations
The 1973 Water Use Act allowed state or federal agencies or political subdivisions of the state to
apply to the Board of Natural Resources and Conservation to reserve surface and ground water
for present and future beneficial uses, including municipal, irrigation, instream flows, and water
quality. Large instream flow reservations were granted for the upper and lower Missouri River
basins and the Yellowstone River basin. No reservations have been granted in Montana basins
west of the Continental Divide to reserve water for fiiture use.'"
Mechanisms to Provide for New Water Uses
The ending of the era of new surface water rights means that new water uses will depend on one
or more of three mechanisms: changes to existing water rights, contracting for stored water, or
using ground water. Ground water will be discussed in the next section of this paper. The
efficacy of changes to or purchases of existing rights depends on two things, completion of the
water right adjudication so that one can be confident in the status of a pre- 1973 water right and
the user fiiendliness of the administrative system for changing water rights. While some water
may be available from privately or state owned reservoirs and other water bodies, the most likely
source of storage for new water uses is the large federally owned reservoirs: Fort Peck, Tiber,
Canyon Ferry, Hungry Horse, Koocanusa, and Yellowtail. Contracts fi"om these reservoirs will
also be discussed below. Another possibility is aquifer storage and recovery - injection of
surplus surface water into aquifers for latter drafting by wells.
In denying water the right permit Application No. 76N-300 10429 submitted by the Thompson River Lumber
Company, DNRC found additional water from the Clark Fork River not to be "reasonably available" and that the
proposed diversion would adversely affect a prior appropriation at Noxon Dam. DNRC determined that the
applicant proved that water is "...only available when Clark Fork River flows exceed 50,000 cfs which is only on
average 16-24 days per year." Outside of this period, the applicant would be subject to a call by Avista. DNRC also
concluded that the applicant did not prove that Avista would not be adversely affected by diminished flows in the
amount of the applicant's proposed diversion on the days where flows do not exceed 50,000 cfs. DNRC's decision
was not appealed to district court.
For a complete listing of closures created by statute, administrative action, and compact, see Water Rights in
Montana, February 2006, pages 36-40.
Drafl Environmental Impact Statement, Upper Clark Fork Basin Water Reservation Applications, Montana DNRC,
December 1988, page 1 -2,85-2-316(1) MCA.
In 1987, Granite Conservation District and the Montana Department of Fish, Wildlife and Parks filed competing
applications for reservations of surface water in the upper Clark Fork River basin. Processing these applications was
suspended by basin closure established by 85-2-336. This same statute sets the priority date for these applications to
be May 1, 1991. Pursuant to 85-20-1401, the United States Forest has applied for a reservation of the waters of
Chicken Creek, a tributary to the West Fork of the Bitterroot River. Forest Service reservations must be for instream
flow only.
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Ground Water Appropriations
Montana first began to regulate ground water development in 1961 when the legislature passed a
ground water code establishing a system for appropriation of ground water. '^ The 1973 Water
Use Act required DNRC permits for ground water developments of 100 gallons per minute or
more. In 1991 , the legislature recognized the significance of ground water as a supply for
Montana water users and passed the Montana Ground Water Assessment Act establishing the
Montana Ground Water Assessment Program to characterize and monitor the state's ground
water and conduct long-term, statewide monitoring of ground water quality and water levels. '"*
Also in 1991, the legislature changed the definition of ground water developments exempt from
DNRC water right permitting to 35 gallons per minute or less and 10 acre-feet per year or less.'^
Federal Storage Reservoirs
Beginning in the 1930s and continuing through the 1970s, the federal government constructed
several large dams and reservoirs in Montana. In order of construction, these included the Fort
Peck, Hungry Horse, Canyon Ferry, Tiber, Yellowtail, and Libby Dams. The agencies charged
with operating these dams, the United States Bureau of Reclamation (BOR) and the United
States Army Corp of Engineers (COE) filed water rights with the state claiming the right to store
water to market it to water users for various purposes.'^ In response to concerns about the
marketing of Montana water for industrial purposes, especially for coal slurry pipelines, the 1983
Montana legislature created the Select Committee on Water Marketing (Committee). In
response to recommendations from the Committee,'^ the 1985 legislature created a state water
leasing program for the purposes of limiting the total amount of water that the state could lease
and providing revenue to the state. The limit was 50,000 acre-feet. The Committee
recommended and the legislature authorized the state to obtain water for any beneficial use from
existing federal reservoirs. Fort Peck, Hungry Horse, Canyon Ferry, Tiber, and Yellowtail,
provided that the state had an agreement between the state and federal government to share the
revenue from marketing the water. '^ The state negotiated a contract with the COE for Fort Peck
water, but did not market any of it. This contract expired in 1980s, and was not renewed.
In 2007, the Task Force successfully sought legislation to raise the cap from 50,000 to 1 ,000,000
acre-feet on the amount of water that the state can lease for beneficial uses when the source of
the water is a federal reservoir and when the water leased is not used out of the basin in which
the reservoir is located. The legislation also eliminated the requirement that water marketing
'^"Managing Montana's Water" at http://water.montana.edu/pdfs/headwaters/headwaters6.pdf, page 4. Prior to the
effective date of the ground water code, January 1, 1962, ground water could be appropriated only if it flowed in a
"permanent, defined, and known channel." See Doney, Montana Law Handbook, published by the State Bar of
Montana, October 1981, page 13-14 and 18-19.
http://www.mbmg.mtech.edu/grw/grwassessmemt.asp.
'^Montana Session Laws Sec. 4, Ch. 805, L. 1991.
'*COE constructed and operates Fort Peck and Libby Dams, and BOR constructed and operates Hungry Horse,
Canyon Ferry, Tiber, and Yellowtail Dams.
^^ Summary of the Report of the Select Committee on Water Marketing to the 49"" Legislature, January 1985.
'*85-2-141(3)MCA.
1-16
revenue be shared between the state and federal government. The Task Force sought this
legislation to use Hungry Horse water to provide for future water uses in the Clark Fork River
basin and to protect uses of water in the basin that are junior to lower basin hydroelectric water
rights.'''
Challenges Facing the Prior Appropriation System
Administrative and Enforcement Challenges
Article IX, Section 3(3) states, "All surface, underground, flood, and atmospheric waters within
the boundaries of the state are the property of the state for the use of its people and are subject to
appropriation for beneficial uses as provided by law." However, the authority of DNRC, the
agency assigned with the task of providing for the administration, control, and regulation of
water rights, is limited. In his article entitled "Diversion, Ditches, and District Courts" published
in Montana the Magazine of Western History, Brian Shovers wrote that Montana irrigators
historically "... preferred the uncertainty and cost of litigation to established limits imposed by a
centralized system." Rather than DNRC, the responsibility for adjudicating and enforcing water
rights and resolving water disputes has been "...entrusted to ditch riders, water masters, and
district court judges. "'^
In the adjudication process, DNRC's role is limited to examining water rights claims, and placing
remarks identifying problems on them. DNRC does not act as an institutional objector, an entity
assigned with examining all claims and filing objections to errant claims. Individual water right
holders in a given decree bear this burden. In a policy paper discussing the implications of
completing the state-wide water rights adjudicafion, the Upper Clark Fork River Basin Steering
Committee wrote, "In larger basins with thousands and in some instances tens of thousands of
water rights claims, individual water users cannot be expected to have the knowledge,
willingness, and financial resources necessary to scrutinize every claim and to pursue more than
a few objections.""' Ameliorating this concern somewhat is the fact that claims with DNRC
issue remarks to which no objections are filed by individual water right holders must be heard
before the Water Court. DNRC staff must appear and explain their remarks. The Montana
Water Court must address DNRC issue remarks prior to the issuance of final decrees."
DNRC is not the state's water cop. It plays a limited role in enforcing pre- 1973 water rights.
Since the passage of the 1973 Water Use Act, it can seek to enforce water right permits by filing
actions in district court. However, because of staffing and funding limitations, DNRC has
almost never used its authority to go to court.
^'^Clark Fork Basin Watershed Management Plan, Chapter 6, Hydropower Water Rights and Basin Water Use, pages
73-78, September 2004.
Shovers, "Diversions, Ditches, and District Courts," Montana - The Magazine of Western History, Spring 2005,
page 14.
^'"White Paper on the Montana Water Rights Adjudication" issued by the Upper Clark Fork River Basin Steering
Committee on March 2, 2004, pages 5-6.
Water Rights in Montana, page 12-13.
1-17
The enforcement burden falls almost entirely on individual water right holders. Individuals can
make calls on junior users and file lawsuits in district court to enforce their water rights. Water
users within an enforceable water rights decree can petition district court to appoint a water
commissioner to act as the court's agent and allocate the available supply of water according to
the decree water right priority dates. The cost of the water commissioner is borne only by those
water users receiving water pursuant to the commissioner's action rather than by all those subject
to the decree. Water commissioners generally work only during the irrigation season and are not
provided benefits such as health insurance, sick leave, or worker's compensation insurance.
While the existing water commissioner mechanism has worked in some areas, in others, finding
someone willing to serve as a commissioner has already been a challenge. As local water right
decrees are integrated in the adjudication process, enforcing decrees will become more
challenging and may involve a hierarchy of commissioners.
DNRC's administrative permit process for obtaining and changing water rights also places a
substantial time and cost burden on water users. As is the case with the adjudication process,
individual water rights holders have the right to object to permit applications for new or changed
uses. Because these objections are heard in a contested case procedure, participants generally
choose to be represented by legal counsel. DNRC has estimated that the average time for
processing a water right permit application is 245 days. If an objection is filed to it, processing
takes more time.'^
Because of Montana's reliance on the judicial system and contested case administrative
processes, the burden on individual water users to adjudicate, enforce, protect, and make changes
to existing rights can literally take years and tens of thousands of dollars. This burden is
increasingly problematic for traditional water users such as farmers and ranchers.
Water administration and management has generally followed a more centralized approach in the
other western states than has been the case in Montana.''* An example of the centralized model
is Wyoming. Article 8, Secfion 2 of Wyoming's 1889 constitution provides:
There shall be constituted a board of control, to be composed of the state engineer and
superintendents of the water divisions; which shall, under such regulations as may be
prescribed by law, have the supervision of the waters of the state and of their
appropriation, distribution and diversion, and of the various officers connected therewith.
Its decisions to be subject to review by the courts of the state.^^
Granting DNRC more authority to administer and enforce water rights could reduce the burden
on individual water users. DNRC could be directly authorized to investigate and enforce
existing water rights and resolve disputes. It could, for example, hire, train, and provide
technical and administrative support to water commissions who would enforce water rights
decrees. Given clear criteria for doing so, DNRC could also play a more authoritative role in
^'Permit processing time was reported by John Tubbs to the Water Policy Interim Committee meeting on April 29,
2008.
■^''Shovers, pages 6-7. Also, see "How Will Completion of the Adjudication Affect Water Management in Montana?"
prepared by the Upper Clark Fork River Basin Steering Committee, February 2006, pages 6-9. This paper is
available at http://dnrc.mt.gov/wrd/water_mgmt/clarkfork_steeringcomm/completionof_adjud_rpt.pdf.
^'A copy of the Wyoming Constitution is available at http://soswy.state.wy.us/informat/05Const.pdf.
1-18
administration processes reducing the role of objections to expedite decisions. Individuals could
be allowed to appeal DNRC decisions to district court.
These changes to create a more centralized water right process would require legislation to
increase DNRC's authority, stafllng and budget. They would also require a greater willingness
on the part of individual water right holders to trust and accept a more assertive and intrusive
DNRC. Maintaining the existing system based on local control with its burden on individual
responsibility may come at the cost of an effective loss of water rights by those for whom the
time and expense of hiring attorneys and pursuing court action is increasing unaffordable.
The State of Idaho provides somewhat of a middle ground between state and local control.
Water users within local water districts elect water masters, who are charged with distributing
water in the order of priority to those water users entitled to its use. The water district sets the
level of compensation for water masters, who, once hired, become state employees.'
Another portion of the State Constitution may complicate water right enforcement. Article II,
Section 3 states that Montanans' inalienable rights include, "...the right to a clean and healthful
environment and the rights of pursuing life's basic necessities..." Although neither statute nor
court rulings have done so, the clean and healthftil environment provision might be construed to
prevent DNRC from allocating or managing water in a manner detrimental to "a clean and
healthful environment," irrespective of the prior appropriation doctrine. As will be discussed
below, Article II, Section 3 may also affect appropriations of water for people's "basic
necessities."
Groundwater and Surface Water Interactions
Another challenge to the first-in-time, first-in-use, prior appropriation system is the increased
acknowledgment of ground and surface water interactions.
In a recent decision, Montana Trout Unlimited (TU) vs. DNRC, the Montana Supreme Court
clarified the regulation of those interactions. The Court noted that Montana basin closure laws
recognized the close relationship between surface and ground water, and defined ground water to
mean "...water that is beneath the land surface or beneath the bed of a stream, lake, reservoir, or
other body of surface water and that is not immediately or directly connected to surface water."'
Because these statutes did not define "immediately or directly cormected," DNRC interpreted
this phrase to mean "...that a ground water development could not pull surface water directly
ft'om a stream or other source of surface water.^^ The Montana Supreme Court invalidated this
interpretation in the Montana Trout Unlimited (TU) vs. DNRC case because it "...recognizes
only immediate connections to surface flow caused by induced infiltration and ignores the less
TO
immediate, but no less direct, impact of the prestream capture of tributary groundwater." This
Webmaster Handbook, Idaho Department of Water Resources, page 8. This publication is available at
http://www.idwr.idaho.gov/water/districtsAVater%20District%20Publications/watermaster handbook.pdf.
"See 85-2-342(3) MCA, 2005. This language was included in the basin closure statutes for the Upper Missouri,
Teton, Jefferson, Madison, Teton, and Upper Clark Fork River basin closures.
^^Montana Supreme Court decision in Case Number 05-069, Trout Unlimited vs. DNRC, page 6, April 1 1 , 2006.
^'ibid, page 19.
1-19
decision halted DNRC processing of water right permit applications in statutorily closed basins
incorporating the "immediate and direct" definition of ground water.
In response to this Supreme Court decision, the 2007 legislature passed House Bill 83 1 . HB 83 1
was entitled:
"An act revising water laws in closed basins; defining terms in water use laws; amending
requirements for an application to appropriate ground water in a closed basin; providing
that certain applications to appropriate surface water are exempt from closed basin
requirements; providing requirements for hydrogeologic assessments, mitigation plans,
and aquifer recharge plans; providing minimum water quality standards for certain
discharges of effluent; requiring that previously approved plans that were not located in
the Clark Fork basin must meet certain criteria; requiring that data be submitted to the
Bureau of Mines and Geology; providing for rulemaking; providing for a case study and
requirements and a fee for participation in the case study; recognizing and confirming
existing appropriation rights in certain instances; providing an appropriation; amending
sections 85-2-102, 85-2-302, 85-2-311, 85-2-329, 85-2-330, 85-2-335, 85-2-336, 85-2-
337, 85-2-340, 85-2-341, 85-2-342, 85-2-343, 85-2-344, 85-2-402, and 85-2-506, MCA;
repealing section 85-2-337, MCA; directing the amendment of ARM 36.12.101 and
36.12.120; and providing an immediate effective date and applicability dates an
applicability date."
This title befitted the complexity of the legislation's content. HB 831 required an applicant for a
new well in a closed basin to provide a hydrologic assessment conducted by a hydrologist,
qualified scientist, or qualified licensed professional engineer demonstrating whether the new
appropriation would result in a net depletion of surface water. If a net depletion would result,
the applicant must also assess whether it would result in an adverse effect on an existing water
right. If an adverse effect is predicted, the applicant must file a plan for mitigating that impact.
The bill also appropriated $500,000 to the Montana Bureau of Mines and Geology to conduct a
case study to determine minimum standards and criteria for the hydrologic assessments.
Although the TU vs. DNRC decision and HB 83 1 apply stricdy only to basins closed to most
new surface water rights, the requirement to address prestream capture of tributary groundwater,
i.e., the interception of ground water that would otherwise flow to a surface water body, and for
mifigation plans may be applied to all ground water permitting. DNRC cannot issue a permit for
a new water right or a change to an existing right without finding that the new or changed use
would not adversely affect any existing right. Applying the adverse affects test to new ground
water developments requires assessing prestream capture. Ground water applicants whose
development would result in both prestream capture and an adverse effect will likely have the
opportunity to offer plans to mitigate it.
DNRC's proposed rules for determining net depletions pursuant to HB 831 require an applicant
to determine the "Propagation of draw down from a well or other groundwater diversion and rate,
timing, and location of any resulting surface water depletion effects. "^° Timing is a key issue for
managing and enforcing surface and ground water rights in a prior appropriation system. The
^"DNRC, "Notice of Public Hearing On Proposed Amendment in the Matter of the Proposed Amendment of Arm
36.12.101, Definitions and Arm 36.12.120, Basin Closure Area Exceptions and Compliance," August 13, 2007,
available at http://dnrc.mt.gov/About_Us/notices/august/36-22- 1 2.pdf.
1-20
impacts of ground water development on surface tlows may take place over months or years
rather than immediately.' ' Although Montana's laws may not specifically provide for
conjunctive management or enforcement of surface and ground water, neither do they preclude
it. As ground water development continues, surface water holders may decide that protecting
their rights requires enforcement of their priority dates against wells. Water rights calls on wells
have occurred in Idaho to protect surface rights. Montana law allows junior users to defend
against calls by seniors if the call would be futile, i.e., that the call would not result in water for
use by the senior right holder.^' How futile calls would be applied to ground water wells with a
delayed impact on surface water is not known. DNRC has written, "Ground-water use is
difficult to curtail to avoid impacts to surface water users during water shortages under a prior
appropriations system."'''
The complexity of ground water development and use and its interaction with surface water does
not bode well for the strict application of the prior appropriation doctrine.
Adverse Affects Test
The nature of the test to determine whether an adverse affect has occurred has become
controversial. Before DNRC issues a permit to appropriate water or to change an existing water
right, it must fmd that no existing right would be adversely affected. In his March 30, 2006
Proposal for Decision in the Matter of Application for Beneficial Water Use Permit No. 76N
30010429 by Thompson River Lumber Company, a DNRC Hearing Examiner, wrote, " Adverse
affect must be determined based on a consideration of an applicant's plan for the exercise of the
permit that demonstrates that the applicant's use of water will be controlled so the water rights of
a prior appropriator will be satisfied." DNRC evaluates the adverse affect test on a calculated
rather than a measured basis, i.e., an adverse effect need not be measurable. For example,
measuring the impact of a small upstream diversion on a hydropower generator's use of water to
produce electricity may not be possible. Measuring devices are generally accurate only to within
5-10% of the flow. However, as long as the hydropower water right holder can show a
calculable impact of the diversion, an adverse effect would exist. The impact of ground water
withdrawals on surface water is also generally calculated rather than measured. An attempt was
made unsuccessfully in the 2007 legislature to overturn DNRC's calculated rather than measured
interpretation by defining adverse effect quantitatively such as a percentage reduction in water
supply to a senior user.
Domestic Water Supply
As previously noted. Article II, Section 3 of the Montana Constitution recognizes the right to
pursue "life's basic necessities" as one of Montanans' inalienable rights. Some may argue that
because water is a basic necessity, Montana water law should give domestic use priority. All
other states subject to the prior appropriation doctrine except Washington provide such a priority
to some extent in either their constitution or by statute. "'■* In Montana, with two exceptions,
Kendy, E. and J.D. Bredehoeft, 2006, "Transient effects of groundwater pumping and surface-water irrigation
returns on stream flow," Water Resources Research, V. 42.
Clark Fork Basin Watershed Management Plan, Chapter 4, Legal Framework for Water Management, page 66,
September 2004.
"DNRC unpublished paper provided to the Water Policy Interim Committee for its January 15-16, 2008 meeting.
Arizona and California apply prior appropriation to surface water, but not ground water. Colorado exempts small
1-21
priority of water use depends only on the date on which water was first put to a beneficial use or
on which a permit was acquired. One exception applies within a controlled ground water area.
In such an a area, "...preferences can be imposed on existing rights to withdraw ground water,
with domestic and livestock uses having first preference. "^^ The other exception is a priority of
water reservations in the Yellowstone River basin over certain water permits. ^^ Cities and towns
have the right to condemn water rights to provide a water supply for municipal and domestic
water systems.^' Individuals cannot. Condemnation requires "just compensaUon" to those
whose rights are taken.^^
Some western states have incorporated the "growing communities doctrine" into their statutes.
Under this doctrine, a city or town maintains the right to more water than it is actually using so
that it can meet the expanding domestic water needs of growing populations. This doctrine
appears to contradict the prior appropriation doctrine because municipal water rights would not
be limited to historic beneficial use and would not be subject to abandonment for nonuse.
DNRC has written that neither the Montana Water Use Act nor Montana case law provides for
this doctrine.^^
One aspect of current Montana water law has had a large impact on the way people develop
water for domestic use. As previously mentioned, since passage of the 1973 Water Use Act,
wells outside of designated ground water basins from water rights administration under the priority system. In
designated ground water basins, in-house uses are exempt, while outdoor lawn watering, etc., is not. See Division of
Water Resources, Colorado Department of Natural Resources, Guide to Colorado Well Permits, Water Rights, and
Water Administration, January, 2008, pg. 2. Article XV, Sec. 3, Constitution of the State of Idaho states "...priority
of appropriation shall give the better right as between those using water; but when the waters of any natural stream
are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes
shall (subject to the limitations as may be prescribed by law) have the preference over those claiming for any other
purpose..." This provision applies to all water including ground water. In Nevada, the only ground water rights that
are subject to curtailment are those that are in "designated ground water basins," and even in those basins, domestic
uses are exempt. See Nevada Revised Statutes Sec. 534.180. With the exception of two specially designated
domestic well management areas, domestic wells in New Mexico are generally not subject to curtailment. See 72-
12-1.1 New Mexico Statutes Annotated and 19.27.5.14 New Mexico Administrative Code (adopted in 2006).
Section 536.310(12) of Oregon's statutes provides "When proposed uses of water are in mutually exclusive conflict
or when available supplies of water are insufficient for all who desire them, preference shall be given to human
consumption purposes over all other purposes and for livestock consumption over any other use..." Section 83-3-21
of the Utah Code states "...[I]n times of scarcity, while priority of appropriation shall give the better right as
between those using water for the same purpose, the use for domestic purposes, without unnecessary waste, shall
have preference over use for all other purposes..." Wyoming Statutes provide in Section 41-3-102(b) that "Preferred
water uses shall have preference rights in the following order: (i) water for drinking purposes for both man and
beast; (ii) water for municipal purposes..."
^^Doney, Ibid, page 3485-2-507(4)(c) MCA.
^^85-2-603(2) provides, "A reservation established before an application for permit is granted is a preferred use over
the right to appropriate water pursuant to the permit, and the permit, if granted, must be issued subject to that
preferred use."
^^Doney, Ibid, page 33.
'^70-31-301 MCA.
^'See the January 31, 2008 letter from DNRC Regional Manager Bill Schultz to Stephen R. Brown, Garlington,
Lohn & Robinson.
1-22
certain ground water developments have been exempt from DNRC permit requirements. Current
law provides that:
Outside the boundaries of a controlled ground water area, a permit is not required before
appropriating ground water by means of a well or developed spring with a maximum
appropriation of 35 gallons a minute (gpm) or less, not to exceed 10 acre-feet a year (ac-
ft/yr), except that a combined appropriation from the same source from two or more wells
or developed springs exceeding this limitation requires a permit.''"
To obtain a water right for a beneficial use of ground water subject to this exemption, the
developer need only file a notice of completion with DNRC within 60 days of completing the
well or developed spring.""
This exemption, together with DNRC's interpretation of "combined appropriation," has
influenced how subdivisions have been developed in Montana, particularly in the fastest growing
areas in the western portion the state. DNRC rules provide that a combined appropriation
means, "...an appropriation of water from the same source aquifer by two or more groundwater
developments, that are physically manifold into the same system."'^^ (Emphasis added.) This
definition and the exemption allows a subdivision developer to avoid the time and expense of
obtaining DNRC permits before water can be developed and used."*^ Instead of providing the
subdivision with a community water supply and system, the developer can sell lots and leave
each purchaser to dig an individual well. Over the last five years, 80% of the lots approved by
DEQ had exempt wells rather than community water systems.'*''
Between July 1, 1973 and September 1, 2007, DNRC issued 104,142 certificates of water rights
for exempt ground water developments. Seventy- five percent of all of the 104,142 certificates
listed domestic use as a purpose of use.''^ DNRC estimates that by the end of 2007, it will have
issued about 40,000 certificates for exempt wells using the 35 gpm/ 10 ac-ft/yr definition that
came into effect in 1991. Over half of the 40,000 will have been issued in Gallatin, Lewis and
Clark, Missoula, Ravalli, and Flathead Counties, and over 80% will have been issued in just 14
counties, only 3 of which are outside of western Montana."^ DNRC estimates that if the current
ground water permit exemption remains in effect, somewhere between 32,000 and 78,000
additional certificates for exempt wells will be issued by January 1, 2020.
'"'85-2-306(3)(a) MCA,
•"85-2-306(3)(b) MCA.
"^36.12.101(14) ARM.
*'^ Water Rights in Montana, page 18 and 17.38.202(5) ARM.
Private communication from Curt Martin, December 19, 2007. This information was provided by the DEQ
Subdivision Bureau to the Water Policy Interim Committee on October 24, 2007.
"Wells Exempt from the Permitting Process", presentation by Curt Martin to the Water Policy Interim Committee
on the September 13, 2007.
"'The 14 counties are Ravalli, Flathead, Gallatin, Lewis and Clark, Missoula, Yellowstone, Lincoln, Madison, Park,
Lake, Jefferson, Carbon, Cascade, and Sanders.
1-23
While an individual 35 gpm/10 ac-ft/yr ground water development may have a negligible impact
on an aquifer and surface water connected to it, the impact of multiple exempt wells may be
significant. As written above, before DNRC issues a permit to appropriate water or to change an
existing water right, it must determine whether any existing right would be adversely affected.
Existing right holders have the opportunity to object to a permit application to protect their
rights. However, because they do not require DNRC permits, exempt ground water users avoid
these tests. DNRC has noted that new exempt wells are not subject to the provisions of HB 831
which were designed to ensure that ground water pumping does not adversely affect senior
surface water right users. Senior water rights holders can make call on junior exempt wells.
However, the delayed impact of ground water withdrawals on surface water may make calls
problematic and be expensive to prove in court.
Another important source for local domestic water supplies is irrigation which charges local
aquifers. In Montana, two changes are occurring that may threaten this source. First, irrigated
lands are being sold and converted to other land uses. Second, flood irrigation has been
converted to sprinklers to better match water application to crop needs. Both changes reduce the
flow of water to the aquifer and may, therefore, reduce the amount of water available for
domestic wells depending on local conditions. The eastside benches in the Bitterroot Valley
below the Bitterroot Irrigation District ditches, Daly ditches, and the Supply ditch and areas west
of Billings are examples of areas in which reductions in irrigated agriculture are adversely
affecting domestic wells. Current law does not provide tools for domestic ground water users to
protect against such changes.
Domestic water use inside a house is for the most part non-consumptive. Use outside the home
is more consumptive. Depending on the method of waste water treatment, individual septic
system or sewage treatment plant, in-house domestic use may recharge the local aquifer or be
discharged to surface water.
The demand for water for domestic use will continue to increase. In portions of western
Montana, water use by people for their homes, lawns, and gardens may be the predominant new
use. Ground water permit exemptions do not create a domestic use priority. They are, however,
providing an incentive resulting in development of individual wells rather than community
public water supply systems. Large scale increases in individual wells are likely to fiirther
complicate water allocation under the "first-in-time, first-in-use" system.
Federal Constraints
The 1952 McCarran Amendment subjected federal water rights to state general water right
adjudications and administration.'*^ However, water use in Montana is subject not only to state
water law, but also to federal statutes, regulations and licenses. Several Montana rivers host
dams and reservoirs constructed by the federal government as well as private parties such as
investor-owned utilities. The operation of dams and reservoirs and the river flows that they
support are affected by laws such as the Endangered Species Act (ESA), the Clean Water Act,
and Flood Control Acts, by licenses issued by the Federal Energy Regulatory Commissions, by
"' Unpublished DNRC paper entitled "Effects of Exempt Wells on Existing Water Rights" provided to the Water
Policy Interim Committee at is January 15-16, 2008 meeting.
"^66 Stat. 560, 43 U.S.C. § 666.
1-24
federal treaties, and by contracts among utilities.''^ These constraints are outside of the state
water right framework and, in theory, do not conflict with water rights. However, by requiring
reservoir drawdowns, spill at dams, and flow augmentation measures, these requirements affect
the physical and/or legal availability of water. Because of the Supremacy Clause of the United
States Constitution, conflicts between implementation of federal statutes and state law may be
resolved in favor of federal obligations.
The operation of Hungry Horse and Libby dams in the Clark Fork River and Kootenai River
basins are illustrative. Both are subject to requirements resulting from the listing of anadromous
fish stocks downstream in the Columbia Basin. As a result of litigation, a United States District
Judge has rejected the 2000 and 2004 biological opinions for the Federal Columbia River Power
System written by the National Marine Fisheries Service (NMFS) to satisfy the legal
requirements of the ESA. In the absence of an acceptable biological opinion, this judge has
adopted specific requirements for the operation of the Columbia River dams, including Hungry
Horse and Libby, addressing reservoir drawdowns, spill, and flow augmentation. The judge has
recently written that should NMFS fail again to produce an acceptable biological opinion, he
may issue a "...permanent injunction directing the Federal Defendants to implement additional
spill and flow augmentation measures, to obtain additional water from the upper Snake and
Columbia River, or to implement reservoir drawdowns to enhance in-river flows." Because the
Libby and Hungry Horse reservoirs are two of the four largest storage reservoirs in the Columbia
River basin, these spill, flow, and drawdown measures may limit the water available from them
for use by Montana water users. The Montana Department of Fish, Wildlife and Parks has
proposed a draw down limit to benefit bull trout in Hungry Horse reservoir that has been
included in the Columbia River Basin Fish and Wildlife Program adopted by the Northwest
Power and Conservation Council and in the recently released NOAA Fisheries Federal Columbia
River Power System Biological Opinion.^' ESA and other constraints also affect the operation
of federal resources east of the Continental Divide in the Missouri River basin.
Summary
Montana water law is governed by the doctrine of prior appropriation, first-in-time, first-in-use.
As this paper has shown, the lack of institutional capabilities and resources and growing
demands for a limited resource are eroding the effect of this doctrine. The era in which new and
expanded water uses are provided via new surface water rights is essentially over. The growing
development of ground water and recent court rulings and legislation increases both the
importance and complexity of managing ground and surface water interactions. Unlike other
Tor specific examples of such constraints applicable to the Clark Fork River Basin, see Clark Fork Basin
Watershed Management Plan, Chapter 5, Legal and Regulatory Constraints to Water Management, pages 68-72,
September 2004.
^"james A. Redden, United States District Judge, District of Oregon, memorandum to Counsel of Record in Nat'l
Wildlife Fed'n v. Nat'l Marine Fisheries Serv., CV 01-640 RE, and American Rivers v. NOAA Fisheries, CV 04-
00061 RE, December 7, 2007.
"See 2003 Mainstem Amendments to the Columbia River Basin Fish and Wildlife Program, Columbia River Basin
Fish and Wildlife Program, Portland, Oregon, 2003, available at
http://www.nwcouncil.org/library/2003/2003-l l.pdf.; and the NOAA Fisheries Federal Columbia River Power
System Biological Opinion, May 5, 2008 page 6, available at
https://pcts.nmfs.noaa.gov/pls/pcts-pub/sxn7.pcts_upload.downioad?p_file=F21451/200505883_FCRPS%20Ch9-Ap
pendix.pdf.
1-25
prior appropriation states, Montana does not provide a general priority for domestic water uses.
The ground water permit exemption and DNRC's interpretation of combined appropriations of
ground water has increased reliance on individual wells for domestic water supply. The burden
measured in time and dollars on individual water right holders to define, enforce, protect, and/or
change water rights threatens the viability of the rights themselves. A right that cannot be
defined, enforced, protected, and/or changed, has little or no value. In addition, federal laws,
regulations and licenses increasingly constrain water management and use outside the
fi-amework of state water law.
1-26
To: All members of WPIC committee
Montana needs o water resources report!!! The enormous amount of surface
and ground water leaving the State must be published if we are to have on
honest discussion on water policy.
REPORT MADE EASY:
1. All water in our Streambeds are monitored through out the State and stream flows are
reported.
2. Groundwater can be determined by review of thousiinds of public well log reports.
3. The report should also include, when needed , ways of capturing our water for the benefit
of Montana. Don't let it escape through N. Dakota and Idaho.
4. Our water should be advertised as a voluable resource element available to promote
economic growth in Montana and quality of life. Stop the no water scare tactics.
A WATER RESOURCE REPORT MAY REVEAL:
.1, We have more Irrigation then any State in the union.
2. We ship out (!4 Trillion Gallons) of water a year (het). A hi^e water gift.
3. Montana is q water rich State. We use less than 2% of our water.
::^ Domestic wells use less through .01% of our water supply.
5. Hydroelectric cppropriotlons do not consume water (just in stream use). In stream use it
does not create shortage.
6. 2,500,000 cows equal to 25,000,000 people are not effecting water supply.
■:^ Irrigation and permitted uses today in Montana have a miniscule effect on our State water
supply. Evaporation is the biggest use.
Published by Oayton Fiscus. Chairman. K.O.W. (Keep Our Water) ©1111 Main Street. Suite if 11,
Billif^, ttorrt-ona 59105. (406)252-6400.
1-27
9. Senior water rights are not threatened by Montana water users.
10. We have huge water storage behind dams. (Produce storage numbers).
11. We have flood control issues every year. (Indicotir^ water leaving the State),
12. For thousand of years all water in Montono has been replaced each yeor through
n:\assive hydroiogic weather cycles and mountain snowfall.
Etc. etc, this tist can go on for another 10 pages. Another fact exomple: 9570 of Montana
water is underground unseen and barely used.
Comes now Montana WPIC Legtsfotion to protect M,or\iam rights for our citizens.
1, Abolish closed basins in Montana.
2, Stop the punitive permit process.
3, Use Montana water resource report os the Club for growth.
We've got water - Lets Use It - Don't lose it downstream.
Example: (A) Butte my home County, in South Dakota has running water to formers sheep
end cattle pens provided by one well in Nislond, South Dakota. (They don't have Montanas
huge water supply).
When needed build more Storage. Advertise our water as an economic growth benefit
Montana has got more water than we will ever use in 200 yeors. Equal to our supply of coal
supply. Our water is renewable our coal is not.
Billings should be included as the public hearing WPIC site for Eastern Montana.
Thanks for your attention.
Hope I con testify in August. Setting time off from Billings is hard,
1 MN^^-\^^-u^
Clcyton/fiscus
Chairmen <.0.W. (Keep Our Water)
nil Main Street
Billings. Montana 59105
Published by Clayton Ffscm, Chairman, K.O.W. (Keep Our Water) ©llll A^oln Street, Suite # 11,
SlUings. A^ontona 59105. (406)252-6400.
1-28
TO; Joe Kolman
FROM: Sarah Bond
RE: LS 502 1 Draft legislation regarding water rights enforcement
DATE: July 29, 2008
As discussed during the telephone conference with the subcommittee, I met with some
folks in the AG's office and DNRC about the logistics of the Attorney General's office
performing work specific to water rights enforcement, and LC 5021.
1. The group expressed grave reservations about the provision in 85-
2-122. "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." It is
thought that the lack of definition would likely doom any attempt
to prosecute under this provision. For example, the section does
not specify the requisite mental state, generally an essential
element of any crime. Nor have the due process issues arising in
criminal prosecutions been ftilly thought through. The suggestion
is to eliminate 85-2-122(1) altogether, or, think those issues
through and add the specificity required to proceed under the
criminal statutes. The remainder of the penalty section provides
for civil penalties, which seems appropriate.
2. It was suggested that if our office begins to help more in
prosecutions, 85-2-122 should be amended to require that any fines
collected as a result of one of our prosecutions be deposited into an
AG water enforcement account for use in the prosecutions. A
statutory appropriation would also be required for us to spend out
of that account. This seems parallel to 85-2-122(3) (a) which
establishes an account for collections fi"om DNRC prosecutions
and (3) b which requires the money collected fi"om a county
attorney action to be deposited into the county general fund.
3. It was noted that there is a model already for a statutory section
that could establish an enforcement program here. Chapter 4 of
Title 44 establishes miscellaneous functions of the department of
justice. Among the other functions is a fish wildlife and parks
enforcement program. 44-4- 11 5 provides: "There is a fish, wildlife,
and parks enforcement program in the department of justice, which
must be administered by the entity in the department that assists
county attorneys with prosecutions. The program staff may
investigate and may prosecute criminal cases concerning the
1-29
violation of the laws administered by the department offish,
wildlife, and parks. The program is under the supervision and
control of the attorney general and consists of a half-time attorney
licensed to practice law in Montana who may prosecute, or assist
county attorneys and the department in the prosecution of, criminal
violations of Title 87." If the committee wants to ensure that there
is a warm body here who can take on some enforcement cases
without being pulled into other kinds of cases, this kind of
mechanism could assure that at least one half-time person would
be available to do the work. Presumably the program would be run
by the water unit, because of the unique nature of water law.
4. I could not remember what the intent was behind the new
subsection 5 in LC 5021. It provides that the department, county
attorney, and AG shall give priority in enforcing this section, to
protecting the water rights of a prior appropriator. The decision to
prosecute is extremely complex, and our office must retain its
prosecutorial discretion based on evidence and other issues specific
to the cases. Legislative priorities are certainly appropriate but we
were hoping this could be fleshed out a little more. Something
more clearly expressive of legislative intent would be usefial.
Please feel free to call if we can be of fiirther assistance.
1-30
Montana
Association of REALTORS*
One South Montana Avenue, Suite M1 - Helena, MT 59601
Phone: 406-443-4032 • Fax: 406-443-4220
Email: mtmai@montanarealtors.org
Web: www.montanarealtors.org
TO: Water Policy Interim Committee, Sen. Elliott, Chair
FROM: Montana Association of Realtors
RE: Comments on Water Policy Interim Committee Draft legislation
DATE: September 8, 2008
The Water Policy Interim Committee ("WPIC") has recently made available a revised draft of LC
5020, as well as a new bill draft, LC 5022. The following comments are respectfully submitted
on behalf of the Montana Association of REALTORS® ("MAR"). MAR may provide additional
comments after further review or upon any additional revisions to the draft legislation. MAR
appreciates the opportunity to comment on the draft legislation at this early stage.
I.
LC 5020
As MAR advised in its earlier comments to WPIC on the initial draft of LC 5020, before
undertaking significant revisions of a permit process that, up until the very recent past, has
worked relatively well for both applicants and objectors, it is worthwhile to determine exactly what
the source of the significant increase in the time, cost, and frustration required to process a
permit application is. LC 5020 continues to provide no significant advantage in terms of the time
to process a permit application, not does LC 5020 simplify the permit process for either
applicants or objectors. Consequently, MAR seriously questions the benefit of or need for LC
5020.
The following is an outline of the process to obtain a decision from Montana Department of
Natural Resources and Conservation ("DNRC") on an application for a new beneficial use permit
or an authorization to change an existing water right under current statute.
1 . Applicant submits an application to DNRC.
2. Within 1 80 days of receipt of application, DNRC must notify the applicant of any
deficiencies in the application. Mont Code Ann. § 85-2-302(5).
3. Within 90 days of the notice of deficiencies, the applicant must respond with
information to make the application correct and complete. Mont. Code Ann. § 85-2-
302(6).
4. Upon receipt of a correct and complete application, DNRC prepares public notice for
service and publication as prescribed by law. Mont. Code Ann. § 85-2-307(1).
5. Objections must be filed with DNRC within the time period set forth in the public
notice, which is no less than 15 days and no more than 60 days after publication of
public notice. Mont. Code Ann. § 85-2-307(2).
1-31
6. If no objections are received, DNRC must grant, deny, or condition tine application
within 120 days of the last date of publication of public notice. If objections are
received or a hearing is held, DNRC must grant, deny, or condition the application
within 1 80 days of the last date of publication of public notice. Mont. Code Ann. § 85-
2-310.
To summarize, the maximum amount of time allowed for processing an application under
existing statute, from receipt to final decision, is 510 days if objections are received and 450 if no
objections are received. The time for granting, denying, or conditioning an application after
public notice may be extended, upon the agreement of the applicant or in extraordinary cases,
but only for a maximum of 60 days.
In contrast, the following timeline sets out the procedure for application processing proposed
under LC 5020.
1 . The time period for deficiency notices and responses to the same remain unchanged.
DNRC has 180 days from receipt of an application to notify the applicant in writing of
any deficiencies, and the applicant has 90 days to make the application correct and
complete. Mont. Code Ann. § 85-2-302(5) & (6).
2. DNRC can meet "informally" with the applicant to discuss the application and will
make a written preliminary determination of whether to grant or deny the application.
No time limit is set within which these informal discussion can take place and a
written preliminary determination must be made. LC 5020, Sec. 2(1)(a).
3. If DNRC proposes to grant the application, public notice of the application and
preliminary determination is prepared. Again, there is no time period after the
preliminary determination within which public notice must be issued. LC 5020, Sec.
2(1)(b).
4. Objections must be filed with DNRC within the time period set forth in the public
notice, which is no less than 15 days and no more than 60 days after publication of
public notice. LC 5020, Sec. 2(2).
a. If valid objections are received, DNRC will hold a show cause hearing.
There is no deadline by which DNRC must hold a show cause hearing. LC
5020, Sec. 4(1).
b. If objections are received and later unconditionally withdrawn or if no
objections are received, DNRC shall grant the application, although there
is no time period within which such grant must take place. LC 5020, Sec.
5(4).
c. If objections are received and withdrawn pursuant to stipulated conditions,
DNRC may grant the application subject to conditions "as necessary to
satisfy applicable criteria." LC 5020, Sec. 5(5). There is no time period
within which DNRC must take such action. Additionally, LC 5020, Sec.
5(5) leaves open the question of what other options are available to
DNRC. Yes, DNRC may grant the application subject to conditions, but
may it also grant the application unconditionally or now even change
course and deny the application? This is unclear.
d. Regardless of whether no objections are received or objections are
received and a show cause hearing is held, DNRC will propose to deny or
grant with or without conditions within 90 days after the close of the
administrative record. LC 5020, Sec. 5(1).^
One assumes that the proposal to grant or deny an application refen-ed to in LC 5020, Sec. 6 Is different from the
preliminary written determination to grant or deny an application referred to in LC 5020, Sec. 2, as the bill draft is not
1-32
e. If DNRC proposes to deny the application, LC 5020, Sec.5(2) mandates
that DNRC hold a show cause hearing in which the applicant must
demonstrate by a preponderance of the evidence why the application
should not be denied. It appears that this would be in addition to the
hearing provided for in LC 5020, Sec. 4. Again, there is no time period
within which this second hearing must take place, nor is there any deadline
after the hearing within which DNRC must issue its final decision.
f. If DNRC proposes to grant the application following the first show cause
hearing provided for in LC 5020, Sec. 4, the process for issuance of a final
decision is not clear, nor is any timeline for the issuance of a final decision
set forth.
5. If DNRC's preliminary determination is to deny the application, one assumes that LC
5020, Sec. 5(2) requires a show cause hearing. However, because LC 5020, Sec. 5
refers to a proposal to deny and not a preliminary determination, the procedure
following a preliminary determination to deny is unclear. For example, LC 5020, Sec.
5(1) requires DNRC to propose to deny or propose to grant within 90 days after the
close of the administrative record. If the preliminary determination is to deny, does
the administrative record close after that preliminary determination and the 90 days
starts to run from there? If that is the case, is the record re-opened for the show
cause hearing required under LC 5020, Sec. 5(2)? Is it possible that the preliminary
determination is to deny and then the proposal is to the grant the application? If so,
is public notice then required and the application subject to objections? These are all
unanswered questions.
Due to the significant lack of clarity and the number of open-ended timelines, it is impossible to
determine what the maximum number of days allowed for processing an application under LC
5020 is. Additionally, as is demonstrated in the above outline, LC 5020 takes what has been a
relatively straightforward process and introduces a large amount of uncertainty and lack of
clarity.
In addition to simple lack of clarity or timelines, LC 5020's reliance on show cause hearings
raises another concern. DNRC has been in the practice recently of issuing statements of
opinion and then allowing the applicant a hearing to "show cause" why the statement of opinion
should not be adopted with the presiding hearing examiner being the same DNRC employee
who authored the statement of opinion. DNRC has analogized this practice to the situation of a
judge who, in the matter of Party A vs. Party B, mles against Party B and then later presides
over a case of Party B vs. Party C, in which case the judge's previous ruling against Party B in a
separate case involving a different opposing party and different issues does not prevent the
judge from presiding over a case involving Party B again. However, the more accurate analogy
clear. Additionally, Sec. 5 raises at least the possibility that DNRC may issue a preliminary written determination to
deny under Sec. 2, in which case no public notice would be required, but then propose to grant the permit under
Sec. 5. In this case, what process will follow? Will the application then be sent out to public notice, subject to
objections and a hearing? This is unl<nown in the current bill draft language. There is also an open question as to
what constitutes the close of the administrative record where the preliminary written determination under Sec. 2 is to
deny the application. Is the administrative record closed upon issuance of that preliminary written decision? One
assumes that if the preliminary written determination under Sec. 2 is to grant the application and objections are
received, the administrative record closes upon conclusion of the show cause hearing mandated under Sec. 5, but
what if the preliminary written determination is to grant and no objections are received? Does the administrative
record close upon close of the objection period? Although Sec. 5(4) requires DNRC to grant the application, the
lime period for such action is undefined. Finally, there is a substantial question as to what constitutes the
administrative record in light of Sec. 2's allowance for "informal" discussions between DNRC and the applicant. Are
these "informal" discussions and the information provided to DNRC during those discussions part of the record?
This is also unclear.
1-33
is to a judge who presides over Party A vs. Party B and rules against Party B, with Party B's
appeal of the decision being to the same judge. This is, of course, a situation that the justice
system does not allow for because of the obvious denial of due process. DNRC's practice in
show cause hearings raises the same concerns for due process, concerns that are not
addressed but, rather, heightened, in LC 5020.
In short, LC 5020 provides no advantage in terms of expedited or simplified processing. If
anything, it creates a much more convoluted system that is more expensive to all parties
involved, including DNRC, as it creates the possibility of not one, but two different hearings. As
the Montana Supreme Court noted in its recent decision in Lohmeier. et al. v. DNRC & Utility
Solutions. LLC. DNRC argued to the Montana Supreme Court that as senior water right holders,
Lohmeiers' rights were wholly and adequately protected under § 85-2-31 1(1 )(b), MCA,
which requires a new water right applicant to show by a preponderance of the evidence
that "the water rights of a prior appropriator under an existing water right, a certificate, a
permit, or a state water reservation will not be adversely affected." The DNRC further
argues that §85-2-307(2), MCA, affords the Lohmeiers the opportunity to object to a new
water right application and void objections before the DNRC.
Lohmeier. 2008 MT 307, fl 22 (Sept. 3, 2008). Given DNRC's advocacy before the Montana
Supreme Court that the existing statutes for processing applications provide sufficient
protections to senior water rights holders and ample opportunity to object, it begs the question
as to the need for the sweeping, confusing, and ultimately more costly and time-consuming
proposal of LC 5020.
II. LC 5022
As MAR has urged before, science should drive legislation. Rather than being based on
science, LC 5022 is based upon an impromptu response from an independent Three Forks area
developer who, to the best of MAR's l<nowledge is not a member of MAR or the Montana
Building Industry Association. Although 30 or more lots with an average lot size of under five
acres may be the estimated break-even point for an individual developer, to blanketly apply that
standard to all development across Montana is unwarranted and unsupported. Additionally, as
MAR has stated before, the data presented to WPiC during this interim has consistently
demonstrated that exempt wells constitute a minority of groundwater consumption in Montana,
particulariy when compared with agricultural irrigation, and that groundwater is available even
within closed basins to provide adequate supply for existing and projected new uses. This lack
of supporting science is further emphasized by the fact that LC 5022 does not require local
governments to comply with Mont Code Ann. § 76-3-51 1 prior to adopting public system
requirements. Rather, by amending Mont. Code Ann. § 76-3-504 to require public water and
sewer systems for all subdivisions of 30 or more lots with an average lot size under five acres
and to mandate that subdivision regulations so require public systems, LC 5022 raises questions
as to loss of local control.
A developer could propose an alternative to a public system for acceptance by the local
governing body as part of preliminary plat approval under Mont. Code Ann. § 76-3-622, but such
a proposal would have to include information showing by a preponderance of the evidence that
the proposed alternative protects public health and the environment, can mitigate harm to public
health and the environment, and is achievable under current technology. Such information
would have to be supported by peer-reviewed scientific studies. Additionally, the proposal would
have to include a comparison of costs between a public system and the proposed alternative. In
1-34
short, LC 5022 shifts the burden that a local government must currently meet before requiring a
public system to a developer who wants to choose to not use a public system and significantly
increases that burden.
1-35
From: Corlene Martin [corlene@3rivers.net]
Sent: Monday, August 11, 2008 12:05 PM
To: Koiman, Joe
Subject: water
Joe,
I hope I'm not too late but I Just found the editorial from the Great Falls tribune
with your address. I'll make it quick.
As a City of Choteau council member (and on behalf of the mayor and full council) we
think a top priority of the next legislative session should be to increase funding
for cities to upgrade their public water and sewer systems. Our situation is
probably not unique, but we struggle to pay for the maintenance of our current
system. At the same time we are faced with the cost of financing upgrades to
adequately serve our community.
Here's an example: because the Teton River has been chronically dewatered (through
the ravages of drought and questionable irrigation practices) our old lagoon wilT
more than likely be replaced with a sewage treatment facility. It will cost more
than we can pay f or...w i thout (lots) of help.
Since the committee is meeting tomorrow, we'll leave it at one suggestion.
Thank you,
Corlene Martin
City of Choteau Council Memeber
PO Box 215
Choteau, MT 59422
406 466.5784
cor I ene@3r i vers . net
1-36
Kolman, Joe
From: Geneva McClain [gmcclain@HQ.Sportslnc.com]
Sent: Monday, July 07. 2008 12:06 PM
To: Kolman, Joe
Subject: Water
To Whom It May Concern:
There is a great tragedy at Fort Peck Lake. The barge traffic on the Missouri River continues to draw down our
water with their requirement for the 200 feet wide 9 feet deep channel.
Montana provides 75% of the water for the Missouri River but we have never received our fair share.
I hop that you will give this strong consideration.
Don Pfau
Fort Peck Advisory Committee
P O Box 780
Lewistown, MT 59457
Phone: 406-366-2422
1-37
From: Jim Paugh [j impaugh@mtintouch.net]
Sent: Sunday, August 10, 2008 8:41 PM
To: Kolman, Joe
Subj ect : Water
Joe Kolman, Legislative Environmental Policy Office
P.O. Box 201704
Helena, MT 59620-1704
Reference : Water
Dear Sir:
Included with these comments is a letter I wrote as addressed and dated. Since that
time it is my understanding that the $20.00 tax has been cancelled, but the State of
Montana is not making a refund to those who did pay the tax. So now the State of
Montana has a I ist of 50,000 or 60,000 claims for water that have not paid the tax
and so the State of Montana wi II be able to cancel them.
According to an editorial in the July 6, 2008, Great Falls Tribune, among others is
the statement, draft recommendations are: "streamlining and simplifying the process
for issuing new water permits," This is the last thing we need. If subdivisions
need water, they are welcome to buy them The idea that there is extra water in
Montana is ridiculous.
If the objective of legislation is to see that Montana agriculture is to keep their
water that the Constitution "recognizes and confirms", the DNRC will have to be
required to cancel any permit that they have granted and it wi I I have to be enforced
or be canceled if it interferes with any existing water rights, at the expense to
the DNRC.
The existing policy of the DNRC having granted permits and leaving agriculture to
pay the cost of retaining their rights has left agriculture with the task of going
to court against people with plenty of money and a willingness to hire lawyers to
get their way. Hence money buys the water. Agriculture must always be paying court
costs for a water right that really makes very little profit.
The DNRC must pay for the mess they have created by granting water permits
willy-nilly all over the state, but mostly in the irrigated mountain valleys.
There is a saying that I do not remember but will paraphrase: "Bureaucracies are
established by governments to do the governments work, after they have been
established, they take on a cloak of their own and soon regard those they were
designed to work with, as their enemies." From my point of view the DNRC is an
example of that.
1-38
If you would I i ke me to come to any of your meetings, please feel free to contact
me.
Sincerely,
A letter with my signature wi I I fol low.
James T. Paugh
10967 Lowe r Denton Rd.
Coffee Creek, MT 59424 Phone 566- 2255
HC 76, Box 50
Coffee Creek, MT 59424
March 25, 2007
Ms. Tami Jo Blake, Editor
Agri -News
P.O. Box 30755
Bi I lings MT 59107
Dear Editor:
I have read the "letter to the Editor" in the March 9, 2007 issue of your paper
concerning Fidelity Exploration & Production Company and the Montana Department of
Natural Resources & Conservation. This concerns water pumped with methane gas
production, and was written by Irv Anderson from Birney, Montana.
1-39
From my point of view, the letter concerns water taken from the ground in vast
amounts, and it is to be sold, some of it out of state. The inference I get from
Mr. Anderson's letter, the DNRC is assisting the methane gas producers in getting
their application for a water permit prepared properly. T do not believe the DNRC
should be involved in assisting in the attempted taking of water from prior water
right users. The Montana Constitution, Article IX, Section 3. Part 1 says: "All
existing rights to the use of any waters for any useful or beneficial purpose are
hereby recognized and confirmed." When the DNRC issues a permit, it should not
revise an existing water right. The DNRC should be strictly held accountable to
support our Constitution. (The existing water right owners)
I used to live in the Gallatin Valley on an irrigated farm,
moving closer with each passing year. In about 1995 there
one of my water rights by a sub divider, and it went to a C
Sub dividers were
was an attempt to take
_, . ,, _j _.. , ._ „ _ DNRC hearing. As I was
going up the steps to the hearing with my attorney, he told me that the DNRC had
never seen an application for a water permit that they did not like. I spent
$6000.00 for nothing. After watching several other permits granted, I finally sold
out last year and moved to Central Montana with no surface water to fight about.
About the year 2000 I was trying to keep my water and was granted some time on the
program at a meeting of an interim Legislative committee regarding water. In my
report in discussing the problems I had with the DNRC, I stated that it seemed to me
that the Legislature for the last 20 years or so had done everything it could to
destroy irrigated agriculture in Montana. I still feel this is the objective of
many in Montana government.
in late 2003 or early 2004 I went to a water meeting in Bozeman. Present were
representatives of the DNRC and the Water Court (an unholy alliance), and several
Legislators. The program was to sell the water tax. The Legislature passed it.
This tax was $20.00 for each water right. It was an insignificant amount, hardly
more than it cost to send the bills and col lect money.
It is my opinion, (certainly a minority), that the only purpose for the tax was to
reduce the number of water rights. If the tax was not paid, the bill is to be
turned over to the Department of Revenue for collection and penalties. If the DNRC
lost a record or did not transfer a water right or lost an address of a water right
(they lose many of these all of time), the fines and penalties will rise and in ten
years they will have lost many thousands of records and many water rights cancelled. |
Prior to this water rights tax, the only way the DNRC could get a water right *"
abandoned was to prove that the water had not been used for 10 years when the water
was available. This would be very difficult It is easier to tax the water right,
and cancel it when the tax was not paid.
The taking of water from ranchers through methane gas development is Just a
continuation of the plan. So, it seems to me that the Montana DNRC (the
administration), the Water Court under the Supreme Court, (the Judicial) and the
Legislature, all of Montana's government is hell bent on TAKING agriculture water
r i ghts from the const i tut i ona I r i ghtf u I owners
1-40
So much for whining, for things to improve, a suggested change is necessary. That
f o I I ows .
The DNRC must take total responsibility for all permits granted. If the DNRC grants
a permit for water and it interferes with a water right (pre 1973), when notified of
the infringement, the DNRC must immediately check and if the infringement is
factual, they must require the permit holder to cease using his water. This must be
done within 24 hours. If it can not be determined that the infringement is factual
in 24 hours, the DNRC must require the permit holder to cease using the water until
it is determined what the facts are in the case. In any case the DNRC must be
liable for any and all damages that result from the taking of a water right by any
permit holder using that permit as his authority for using the water.
If a party takes water without a permit, (for a pond for instance). The DNRC must
notify the party taking the water that they wi I I have to release the water within 24
hours or there will be a penalty assessed of $900.00 per day. I believe this is in
the statutes now. The penalty must be assessed and paid. If not paid, a continuing
assessment must be added as a lien against the property, and can not be reduced by
any Court. The DNRC must be liable for any and all damages from the taking of a
water right by a party even though they do not have a permit.
I do not have first hand knowledge of Methane water pumping, but it would seem to me
the same should fo I low. If a party is pumping water and water user prior to 1973 is
deprived of water (a spring goes dry for instance), the pumping party would have to
halt the activity immediately until it could prove beyond any doubt, that their
activity was not responsible, that pumping would have to halt. If proof was not
possible the pumping party would have to cease for 10 years and if the spring
started running again they would be a I I through. The DNRC would again be
responsible and liable for any damages including watering the stock until the spring
came back on.
The conclusion I would make is: The DNRC could not possibly pay for all of the
damage claims against them, then the DNRC would have to terminate many of the
permits they have issued. This would be proof that that they should not have
approved them in the first place.
I see no reason why the DNRC should be allowed to take water all around the state in
violation of both the Constitution and the statutes. As I see it we are rapidly
moving towards anarchy with the right to use water in Montana. We should remember
that anarchy is not stable and if is not controlled by fair and honest government,
society will degenerate from the present situation where the party with the most
money wins to a situation where the party with most firepower wins.
Jim Paugh
Coffee Creek, MT
1-41
WPIC bill drafts --comments, suggest ionsFrom: JP Pomnichowski
[pomnicho@montanadsl .net]
Sent: Monday, August 04, 2008 3:09 PM
To: Kolman, Joe
Subject: WPIC bill drafts- -comments, suggestions
Hel lo, Mr. Kolman,
Here are my questions and suggestions for the WPIC bill drafts. Sorry not to have
gotten this to you with my first emai I . Some of these are questions for you, most
are recommendations or questions or considerations for the committee.
BILL DRAFTS
LC5007
Perhaps add, in Section 1(2). The groundwater assessment steering
comm i ttee...sha I I prioritize subbasins for investigation based upon...housing, and
commercial activity, and adjudication.
Comments from Water Court may help to determine if this would help or hinder !
the groundwater assessment steering committee.
LC5019
p2. In Section 1 (3) (d) , I assume this includes irrigation wells for public
open space and parl^land. The item says that exempt wells will not be allowed in the
public water system; that should include irrigation wells. Water needed for fire
service, public space watering, etc. should be on the system. (For fire, it must be
so as to have sufficient pressure.)
In Section 1(3)(e), perhaps add the DNRC or DEQ for water quality testing
and monitoring, unless the MBMG will do that, too.
In Section 1(4), was there discussion among the WPIC to change "may' to
"must"? "Wells permitted pursuant to this section may must be included in the ground
water monitoring program..."
p6. In Section 2(11) is a definition for "developed spring". Does that
definition apply to fish ponds, or to opencut mining operations ("wet pits")? Just
curious.
in Section 2(12) (g), do you mean acres of land or acre feet of water?
"Domestic purposes means those water uses common to a household including: (g)
garden and landscaping irrigation to ??? acres.
p8. In Section 2(23), change two to one: "...water from the same source
aquifer by two one or more we I Is..."
and for amounts, consider this: "...that is estimated to supply at
least ???? 4.5 acre feet of water per year. (1 house and % acre = .73 acre feet) and
not more than 3,000 1,000 acre feet per year based on availability of water in the
basin. (Subject to legislative approval..."
I calculate these amounts like this; minor subdivision is 5 lots or
fewer, any other subdiv is 6 or more; so .75 x 6 = 4.5 acre feet/year. This is the
minimum. For a 150 home subdivision at .75 acre feet/home, that's 225 acre
feet/year. (Are you figuring what's needed for sewage treatment? If not, I'd
estimate 775 af/y for 1,000 af/y) It'd be worthwhile to check with a wastewater
engineer about that, especially with the TMDL allowances into watercourses.
p9, (30) is a definition for watercourse; should it include canals? or are
farmers' canals interpreted to be included in "ditches'?
1-42
plO. 85-2-311 (a)(ii)(C) states that legal ava i labi I i ty of water is
determined on physical water availability and existing legal demands; is there a
requirement for specific lengths of time? ( i f ag use, need for irrigating fields in
the summer, but no call for water in winter; but domestic or municipal uses are
constant (you get the idea))
Does the DNRC or extension service or someone have numbers for typical amounts for a
specific use? Number of gallons or acre feet for an acre of irrigated alfalfa, or
for a municipality of a certain population?
p11 , (e) does this section suffice for water leases?
P11, (2) "The applicant is required to prove in his application that the
criteria in subsections (1)(f) through (1)(n) have been met only if a valid
objection is filed. If a A valid objection is filed, the objection must contain
substantial credible information..."
pi 2, (3)(iv) this criteria for an appropriation as a reasonable use includes
"the aval labi 1 ity and feasibi I ity of using low-qua I ity water for the purpose for
which the application has been made;"
does this allow for aquifer recharge or another use of coal bed methane
water? That can be highly salinated, mineralized water, unsuitable for other uses
because of its mineral and saline content.
Is there a definition of potable water?
pi 2, (3)(v) mentions saline seep. Is there a definition of saline seep,
including measurements over land area, and a statement of existing conditions before
a proposed appropriation is found to be a reasonable use? (baseline data from which
to determine if the seep worsens)
pi 2, (3)(vi) says "significant adverse environmental impacts". Is there a
definition or measure for "significant"?
pi 3, (4)(c)(i) mentions projected water shortages. Does the department
consider condition- limiting or time- limiting applications and appropriations?
p15, 85-2-360-these sections direct that studies or the applicant must
predict net depletion. What if a net depletion is not predicted, but the
appropriation actually DOES result in a net depletion? I assume it's action based on
a complaint from another appropr iator , but perhaps there should be some other or
more consequence from the applicant's understated prediction of net depletion.
pis, (1)(b)(ii) refers to "any amounts that will likely be lost in
conveyance'. Is there a requirement or recommendation in statute for canals to be
I i ned?
This same section (ii) directs a prediction of net depletion and amounts
that might be returned to a system through percolation or other means. Is there any
requirement for water samples from and a measure of distance to the "first level"
groundwater aquifer (assumed to be the receiving water level of any surface water
percolating down to groundwater)? Along with depth to aquifer, is there any
requirement for baseline data of the water profile for chemical, nutrient, mineral
content? Does the department require soil samples to help determine percolation or
subsurface flow? Any requirement to measure the rate of percolation? (It'd be very
different through hydric soils vs water soaking into the ground, then running along
a deposit of shale!) Any reporting or mapping requirement of floodplains or soil
types?
p19, items (D) and (E)(vi) in particular, hooray! Glad to see transm i ss i v i ty
1-43
and locations of other wells included.
p20, (4) says the hydrogeo assessment, model, test well data, monitoring
well data, etc. must be submitted to the dept. Does this include oil and gas uses?
Is this required of opencut mining operations, or no, because there's no
appropriation of water? (there is exposure of the groundwater to surface runoff and
surface environmental effects for wet pits) Also, is this required of coal bed
methane dri I I ing operations?
p22, (5) same question about prediction vs actual net depletion: What if a
net depletion is not predicted, but tne appropriation actually DOES result in a net
dep I et i on?
LC5012
p2, (h) refers to aquatic resource activities and the federal Clean Water
Act. Is there a definition of aquatic resource activities in state code?
p11, (9) (a) I wonder if we should give some allowance for repairs: "...if the
appropriation is to re-create a functional a wetland with the intent to
substantially replicate the predisturbance conditions by filling in, or removing, or
replacing constructed ditches, drains, culverts, or similar structures."
pi 3, (iii) I wonder if this should include the legal description of the plat
filing, or is that included in "the place of use"? I don't think so. Should we have
a street address, as well as the legal description of the site?
pi 3, (e) is the water permit held by MDOT or by DNRC?
LC5009
pi, (b) states, "...The board may not require a permit for a water conveyance
structure or for a natural spring if the water discharged to state waters does not
contain industrial waste, sewage, or other wastes. Discharge to surface water of
ground water that is not altered from its ambient quality does not constitute a
discharge requiring a permit if:..."
I have a concern about "ground water that is not altered from its ambient
quality" because water drawn from coal beds in coal bed methane drilling can be
highly salinated and mineralized, so much so that the receiving waters are degraded
(polluted). This is the situation of the Powder and Tongue Rivers from discharges of
groundwater to those watercourses from drilling activities in Wyoming and Montana.
We should require baseline data in a water profile of ground water for its chemical,
nutrient, and mineral content, and parameters for acceptable levels both of the
groundwater drawn AND of the receiving waters; if a river is already carrying too
much content, then there should be a provision that the release of groundwater "that
is not altered from its ambient quality" will not be allowed.
This is addressed to an extent on
p2, (11) states, "the water discharged does not cause the receiving waters
to exceed applicable standards for any parameters..." but I don't see in the previous
text a requirement for baseline data and water composition for either the released
waters or receiving waters. Is there one, somewhere?
p2, (5) (a) references the federal underground injection control program;
does that cover all five classes of EPA underground injection wells?
p3, (5)(c) "...disposing of their own normal household wastes..." is there a
definition for 'normal' household wastes? Considerations for toxic substances,
pa i nt , motor oil, etc . ?
1-44
LC5020
One of my most primary concerns about this draft, just upon reading the
intent "For an act allowing the DNRC to issue a preliminary determination on a water
right permit or a change in appropriation right..." was for requirements of public
notice, public hearings, release of finding (by the dept.) and preliminary
recommendations. I'm glad to see some of this addressed on
p7, I recommend in (2) "...shall publish a notice once twice in a newspaper of general
ci rculation..."
in (2) (b) , I'd recommend language requiring the applicant to compile and submit to
the dept. the addresses of appropriators, property owners, and specified area water
users so that "...the department shall also serve notice by first-class mail..."
I serve on the Planning Board and Zoning Commission in Bozeman, and Bozeman's
public notice requirements (of the city and of applicants) are beefier than the
minimums in state statute. They serve us wel I . To do something like a zoning change,
or a remodel of a home, or a minor subdivision, or to apply for a variance, public
notice requires these things:
1. a yellow sign posted on the site (requirements of the contents of the notice
are specified in our code) in a conspicuous place and for a term before any public
meeting and before construction begins
2. publication once or twice in the local newspaper
3. and one of the most important, in my opinion, letters mailed first-class to
adjacent property owners with the public notice. Our code, the Bozeman Unified
Development Ordinance, 18. 76. 020. D, states: The applicant shall provide for the
purposes of noticing a list of names and addresses of property owners within 200
feet of the site, using the most current known property owners of record as shown in
the records of the County Clerk and Recorder's Office and stamped, unsealed
envelopes (with no return address) addressed with names of above property owners,
and/or labels with the names of the above property owners, as specified on the
appropriate application.
Notice must be sent to adjacent property owners within 200 feet of the site.
Keep in mind that this is for projects like building garages into backyard setbacks!
I think a sliding scale based on the size of the operation or release of water (and
the presumed impact on neighbors) could be established. Notice could follow water
users along a watercourse, or those drawing water from the same aquifer.
The applicant is responsible for researching the names and addresses of adjacent
and nearby property owners; the dept. should not spend its time on this. Failure of
an applicant to provide a complete list can stall the whole project. I've
rescheduled hearings and ordered re-noticing when property owners have not been
adequately notified.
4. PUBLIC MEETINGS. All applications for subdivisions, zoning changes, etc. are
heard in a public meeting, allowing public comment, by the city commission or Board
of Adjustment. People come and have their say. We very rarely deny a project;
instead, we place conditions of approval on them to mitigate their impacts. The same
could, and should, be done with proposals for water appropriation. Local public
meetings to present the proposal and explain all of the related effects (surface
water runoff, groundwater protection, times of heavy use, mitigation plans, etc.)
must be scheduled and held.
p7, perhaps add an item (iv) adjacent property owners within ???? of the
proposed site, or users who draw water from the same aquifer, or along the receiving
1-45
watercourse at a distance of ???? downstream from the release point for which the
appropriation proposes a permit or change in appropriation right.
this would reach a different group than item (i), which specifies "an
appropriator of water". For people on exempt wells, (i) does not apply, right? so
(iv) might serve that purpose.
p8, (4) states in part, "...if the department finds, on the basis of
information reasonably available to it, that the appropriation as proposed in the
appi i cat ion wi I I not adversely affect the rights of other persons."
What if information, or an adverse affect, is found after the appropriation
is made? Should there then be a requirement for notice to other appropriators and
users, and objections filed?
plO, (1) "If the department determ i nes... i t shall hold a hearing pursuant to
2-4-604"
is this a public hearing? If not, then I propose adding the word "public"
before the word "hearing".
In the rest of this section, I 'm so pleased to see the language changed to
accommodate regular citizens without formal representation in causes. But do we
sti I I need-or do we sti I I a I low somewhere-for the department to hold contested case
hearings?
p12, (1) "...it shall hold a hearing pursuant to 2-4-604..." again, is this
hearing a public hearing?
p13, (2) is there public notice on this objection period?
pi 8, (7) is this a public hearing?
(8) specifies that "The hearing shall be conducted under the contested case
procedures..."
Is this the only provision for the contested case hearing? Or is this supposed
to be a hearing, per the changes from contested case hearing to hearing in other
sect i ons?
LC5021
p3, (2) "...the department may attach to the controlling works a written
notice, properly dated and signed..."
Does this serve as public notice? Is there a need for public notice?
p3, (5) "A county attorney...may request assistance from the attorney general
or the department."
p4, (7) can extensions be granted if remedies are being done?
LC5015
p2, (b) "in high-growth areas"- is there a definition of high-growth area?
There should also be consideration (read: ability to deny) for over-appropriated
areas and for closed basins with respect to availability for high-growth areas.
How does the revolving loan fund affect, if at all, the TSEP prioritization,
size of projects, etc.?
p3, the numbering is hinky. (4), then (8), (9), (14), (2), (17).
i-46
p3, (2) Is there consideration for number of lots or users? How about for the
distance to connect to a municipal or community system? the text says 15 service
connections, then to serve 25 year-round residents. Does that j ive? We should go by
connection, not people in a household.
p5, numbering on the page-(c) should be (b) , (d) should be (c) , (e) should
be (d)
p9 has the WPIC discussed the term of the loans? I don't think the fund can
last over a project's "structural and material design life". When subdivisions are
approved, the term for that approval is three years, and build-out must occur in
that time, otherwise the appi icant must re-apply. How about a term for a loan
limited to a specific length of time, with repayment beginning as soon as ???? units
are connected and being served by the system?
plO, (2) "...the first of which must be received not more than 1 year after
construction commences or the first users are connected to the system, and before
the completion date of the project and the last of which must be received not more
than 20 five years after the completion date."
pi 3, (3) (a) will municipal ities be invited to apply with info I i ke the
number of subdivisions or lots platted by the city? will developers and subdividers
submit info based on the criteria in this section?
pi 7, "A creation of state debt would requires a 2/3 vote of each house..."
JP Pomnichowski
Montana State Representative
House D i str i ct 63 , Bozeman/Ga I I at i n County
406 587 7846 pomnicho@montanadsl.net
1-47
Kolman, Joe
From: JP Pomnichowski [pomnicho@montanadsl.net]
Sent: Wednesday, July 30, 2008 5:51 PM
To: Kolman, Joe
Cc: 'JP Pomnichowski'
Subject: WPIC questions and comments
Hello, Mr. Kolman,
Thanks for your time today when I called. I've reviewed the packet of materials sent June 30: your report
entitled Water-Montana's Treasure and appendices, WPIC findings and options, and bill drafts, and I have
some questions, comments, and suggestions. Please do answer what you can, or refer me elsewhere, and send
any pertinent comments to the WPIC.
In Water— Montana's Treasure (WMT), page 6, you discuss tribal water compacts.
Do you know where tribal water compacts are available online or at a state or federal agency?
[WMT page 7] Who is required to maintain the St. Mary project? (part of the Fort Belknap Compact)
Where can I find info on the permitting freeze on the Flathead Reservation (per the MT Supreme
Court?)
Does a state reserved water right lapse from lack of use? If so, is there a timeframe that must be
met, or a measure of water that has not been used?
[WMT page 8] The second bullet point describes exempt wells used primarily for domestic use, with the
exception that "...a combined appropriation from the same source from two or more wells or developed springs
exceeding this limitation [35gpm or 10 af/y] requires a permit."
Is there an administrative rule or other requirement to measure depth to aquifer or otherwise
determine that multiple wells are drawing from the same water source? If all wells are drawing from the same
depth, presumably (or proved to be) from the same aquifer, that would mean, I believe, that that would be a
combined appropriation from the same source [of water].
Is this requirement not met because the cumulative impact and combined appropriation is made by
many people instead of one user?
[WMT page 11] Where induced infiltration and pre-stream capture have been established as detrimental effects
to surface water from subsurface waters (the basis for the TU Smith River decision), is there a rule or
procedure for cumulative effect from combined appropriations like subdivisions?
Today in our conversation you mentioned that the Montana Bureau of Mining and Geology (MBMG)
has stated that subsurface characteristics may define connectivity between surface water and groundwater.
Indeed, if substrata is bedrock, or a clay layer, or another broad and impervious layer from the surface to a
groundwater aquifer, then the subterranean aquifer may not contribute to surface waters.
Where can I get a copy of the DNRC EA for the Smith River (2003)?
1-48
[WMT page 14] Is there a date for the Montana Supreme Court to consider DNRC's appeal of Lohmeier v. State
of Montana?
Has the DNRC withdrawn its motion for appeal?
[WMT page 17, second-to-last paragraph] New non-exempt wells located 600 feet from any other production
well-
Is there a measurement to depth of the aquifer?
Is there required water sampling?
[WMT page 24, paragraph 3] Today on the phone we talked about drainfields, mixing zones, and distance from
wells. To my knowledge, there is no requirement in state code other than a required minimum LINEAR distance
of 100 feet from well head to septic drainfield. There should be a requirement for slope/grade!! And for
cumulative mixing zones; I wouldn't want the guy farthest downhill in the subdivision-or in the household a
quarter mile away-to be drinking well water. Eeeeeuww.
[WMT page 30] Does Legislative Services or another state entity subscribe to Water Strategist?
Are the issues in the state library or at the capitol?
[WPIC Findings and Options]
p2, re: Controlled Groundwater Areas (CGWA)
Bozeman has many CGWAs. For more than ten years, there has been a CGWA in the heart of
Bozeman, right off of Main Street in a shopping complex. In the 1990s, groundwater was
contaminated by a dry cleaning operation that disposed of its chemicals incorrectly, and there has
been a restriction on groundwater use ever since. Bozeman residents are still waiting, ten years
later, for a groundwater management plan from the state. Currently, there is no plan in place to
clean or remove material contaminated by the pollutants, although oily, toxic material seeps up
through the concrete floors of the stores on site, and of some of the homes in the plume. The
material has spread northeast as the slope allows, and residents and city government are still
waiting for a clean-up plan and mitigation from our state agencies.
The grade of the area is such that groundwater and surface water drains to tributary creeks and,
through storm drains and natural percolation, directly to the East Gallatin River. The Gallatin,
Madison, and Jefferson are the headwater rivers of the Missouri. For limited quantity and
overappropriation, ALL are in closed basins! This makes a threat to water quality all the more
problematic.
The WPIC recommended No Action on proposed actions to revise CGWA statutes. I would ask for
your support for Option B, Revise CGWA statutes.
p4, re: DNRC enforcement
Has the DNRC pursued a procedure or process to enforce statutory limits on exempt wells?
Can counties be empowered to exercise enforcement?
p5. Finding 1 states that "A combined appropriation from the same source is interpreted to mean the
i-49
wells are physically connected by a pipe."
Who has made this finding?
A combined appropriation should not be interpreted based upon the method by which the water is
drawn (one or more pipes), BUT ON THE DRAW FROM A SINGLE SOURCE OF WATER.
p5, Finding 3 states that less than 5 percent of total statewide water consumption is drawn by exempt
wells.
This measure determined statewide is far too general. What is true for Broadus is not true for
Bozeman. The intensity of use in high-growth areas averaged out with rural, very low use areas does not serve
to establish low statewide consumption, especially if intensive use occurs in over-appropriated basins and
closed basins, and in areas in which there is far more population to serve.
There should be county-specific determinations, or determinations by BASIN. Legislation and
administrative rules should apply with intensity of use and available supply.
p5. Finding 7 Does the DNRC support metering new exempt wells?
p5, Finding 8 Are there definitions and measures of water for each listed use? (domestic, stock watering,
etc.)
p5, Findings 9,10 Domestic water use includes '^ acre lawn irrigation, but subdivisions require open space, i
parks, boulevards, etc.
For irrigation wells for public open space and parks, who maps and measures those wells?
A change in subdivision regulations may be in order to require some active parkland (game fields,
playgrounds, etc.) to a certain proportion, and with a certain allowable irrigation, and passive parkland and
open space planted in native drought-resistant grasses and not irrigated. There could be considerations for
boulevard trees (again, drought-tolerant species) and for open space water consumption not to exceed XX
amount annually. Bozeman city regs address these requirements; perhaps for developments anywhere of a
certain density, they should apply, too, since the density of population and water consumption will trigger
more usage.
p5. Finding 12 In the 07 regular session, the House Natural Resources committee heard HB104 proposing
to change exempt wells from 10 acre feet/year to 1 acre foot/year (and keep 35 gpm pumping). Evidence
shows that the vast majority of users on exempt wells pump less than 1 acre foot/year. The bill died in
committee, but this standard jives with the allowances of Colorado (15gpm for 1 acre), Idaho (18 gpm for Vi
acre), North Dakota (7.6gpm for one acre), and Wyoming (25gpm for one acre).
The WPIC should support and advance the changes proposed in HB104 (07 session).
p6, Finding 14, Option H recommends requiring minor subdivisions to undergo environmental assessment
for effects on water supply. There is precedent to require minor and major subdivisions to meet the same
requirements for public health and safety. In the 07 session, HB415 (Reinhart) passed, and requires that minor
subdivisions dedicate parkland, just as major subdivs do. I have served on the Bozeman Planning Board and
Zoning Commission for many years, and the requirements for water and sewer must be met for homesites.
The WPIC should support and advance requiring environmental assessment for water supply in minor
subdivs. . ^^
1-50
p6, Finding 14, Option K The WPIC should propose to change the rate or volume for exempt wells per
HB104 (as above).
p6, Finding 14, Option L The WPIC should strongly advocate to change the definition of a combined
appropriation!!!
p6, Finding 14, Option M The WPIC should support and advance a minimum lot size for exempt wells, and
increase the minimum lot size for an individual septic system. Also, consideration for grade/slope from
wellheads, depth to aquifer, mixing zones, etc.
p6. Finding 14, Option P The WPIC should support and advance legislation to limit or prohibit the use of
exempt wells for fish ponds.
I'll send remarks on the bill drafts in a separate email.
Thanks,
JP Pomnichowski
Montana State Representative
House District 63, Bozeman/Gallatin County
406 587 7846 pomnicho@montanadsl.net
1-51
Kolman, Joe
From: Holly Franz [holly@franzdriscoll.com]
Sent: Thursday, July 31 , 2008 1 0:29 PM
To: Kolman, Joe
Subject: Water
Dear Mr. Kolman:
I am writing to provide PPL Montana, LLC's ("PPLM") initial comments on LC 5019 and LC 5020.
PPLM cannot support LC 5019 in its current form. PPLM's primary concern regarding LC 5019 is its exemption of
subdivision water use from the permitting process. As drafted, water use permits and change authorizations for
water used in a subdivision are not subject to the objections of other water users. This is a drastic change that
will, for the first time since the adoption of the Montana Water Use Act, prevent existing water users from
protecting their water rights in the permitting process. The bill draft not only exempts new water permits from
objection, but it also includes changes. This may allow a senior water right to be changed in a manner that
expands the senior right to the detriment of all junior users. While the bill draft requires DNRC to review
subdivision permits and changes, DNRC simply is not as familiar with local water conditions as the actual users in
the area. Existing senior water users should not be shut out of the permitting review process.
In addition, PPLM is unaware of any rationale for treating subdivision water rights different from water rights for
other purposes. Why should the irrigation of lawns and gardens in a subdivision have a preference over the
irrigation of crops? Quite frankly, Montana does not need another exemption to the water permitting process.
A secondary concern is the definition of domestic use contained in LC 5019. That definition includes garden and
landscaping irrigation up to five acres. In these water tight times, Montana should not be encouraging lawns of
this size.
Turning to LC 5020, PPLM is generally in favor of the concept outlined in this bill draft. This draft addresses the
problems potentially created by the recent Bostwick v. DNRC district court decision while maintaining the burden
of proof on the applicant. The Water Use Act's requirement that an applicant prove the statutory criteria for a
permit or change is a key protection for senior water users that must be maintained.
Thank you for the opportunity to provide comments on these bill drafts.
Holly Franz
Franz & Driscoll, PLLP
P.O. Box 11 55
21 N. Last Chance Gulch, Ste. 210
Helena, MT 59624-1 155
406-442-0005 phone
406-442-0008 fax
hollvio(ia)franzdriscoll.com
This message is intended only for the use of the individual or entity to which it is addressed and may contain
information that is privileged and confidential. If you are not the intended recipient, you are hereby notified that
dissemination, distribution or forwarding this communication is prohibited. If you have received this
communication in error, please notify us immediately and delete this message from any device or media where it
is stored. Thank you.
1-52
Kolman, Joe
From: Kathleen Shaw [kathleeninthewoods@gmail.com]
Sent: IVIonday, July 07, 2008 12:35 PM
To: Kolman, Joe
Subject: Water
Dear Sir,
I don't know if what I am asking is included in the plans for the water policy, but it should be.
When I moved here three years ago, a water line brought spring water from a spring four lots uphill, and
went beyond me to a residence three lots below me. Then a man bought the property and the next three
lots between us and just recently cut off my water supply. He pipes it to his house, which is just behind
my property. He removed the pipes that led to my line. Then he went back home to Louisiana, and all
of the extra water, what isn't coming from his sprinkler hoses, is running down a ditch in the road, while
I am forced to drive 25 miles to town to fill 50 gallon drums with water for myself and my animals. It
does seem fair that he can do what he wants with his water, however, it is not fair to waste the extra and
put me in a serious bind. It costs me $15 each trip for gas for my truck. I am too young for a rural
improvement grant. I do not have a positive cash flow for a rural improvement loan. I have no income.
I have been trying to get SSI for three years, and I just found out after waiting seven months that I won't
get a new hearing for another 12 months. Water is a necessity, and I desperately need it. No one
should be allowed to waste it and deprive their neighbors. His overflow is more than enough for me.
There needs to be a provision in the law to protect people like me who need water.
Sincerely,
Kathleen Shaw
25 Spring Valley Road (Clarkston)
P.O. Box 871
Three Forks, MT 59752
1-53
MONTANA _
"" 432 N. Last Chance Gulch
P.O. Box 4 1 2 Helena, MT 59624 (406) 449-9933
The Honorable Jim Elliott.
Presiding Officer of the Water Policy Interim Committee
July 31. 2008
Re: Tli Comments on WIPIC Draft Findings and Conclusions.
Dear Senator Blliolt:
Trout Unlimited (TU) has been an active participant in the WPlC's meetings and
discussions, and appreciates the work that legislative members of, and staff supporting
the work of the WPIC have put in over the last year. TU submits these comments on the
draft WPIC Findings and Options for Recommendations in the hopes of continuing the
good work of the WPIC. and ensuring that Montana's water policy respects the rights of
senior appropriators and protects our state's water supply.
I. Water Policy ,
TU supports an expanded MBMG study. However, in order to ensure that the
hydrogeologic study provided in LC5007 is not duplicative of MBMG's currently-
fxmded program to collect and analyze groundwater data, LC5007 should explicitly
require the MBMG to create a hydrogeologic model that can be used to help predict and
understand ground and surface water interactions in each subbasin analyzed.
TU Recommendation: In LC5007, on page 1, New Section 1(1), the last sentence
should be amended to read; Tbe program shall develop a monitoring plan and
hydrogeologic model for each subbasin for which a report is prepared.
n. General Water Quantity and Quality
TU supports the narrow exception for the Montana Department of Transportation
(MDT) to obtain a water right permit solely for wetland restoralion that is found in
LC5012. TU would not support reading the narrow scope of LC5012 to include created
wetlands. Including created wetlands in [.C5012 would expand water demands on
1-54
--»«Mirfbte*Vtirf>dBSfr(£iSSi«)fe-
already-overappropriated streams, harming senior water rights and reducing slreamflows.
ID therefore suggests making the intended scope of LC5012's exception more explicit,
to ensure that only restored wetlands are included within its scope.
TD Recommendation: Amend the langiiage in LC5012, New SubSection (9)(a), on
page 1 1 , that provides for an automatic water right, "if the appropriation is to restore
recreate a fiinctional wetland with the intent to substantially replicate the predisturbance
conditions by filling in or removing constructed ditches, drains, or similar structures that
drained an historically functional wetland."
III. Government Issues
TU supports increased coordination between the DNRC and DEQ. TTJ also
supports local governments' efforts to promote the use of central water and sewer
.systems, progressive water metering, the use of treated waste water for lawn and garden
irrigation, and the restoration of natural-vegetation infiltration galleries and permeable
pavement for mediating stormwater collection that encourages slow groundwater
recharge.
TU Recommendation: Support LC5014 to provide local government with clear
authority to preferentially approve subdivisions with central water and sewer systems.
f V. Water Use Enforcement
TU supports efforts to increase effective monitoring and enforcement of water
use. TU would encourage the Water Policy Interim Committee to continue to think about
ways to promote accurate measurement and monitoring of water use, particularly the
development of systems that would develop the capacity to monitor and adjust water use
remotely. The Bureau of Reclamation has implemented this kind of system with water
users in the Sevier River Basin in Utah, and a trial of a similar system in a Montana river
basin could be a good first-step to more efficient watCT use and management.
In terms of additional enforcement capacity, it is not realistic that county
attorneys are going to take on complex v/ater enforcement actions. Bat it is a possibility
the State Attorney General's office should develop the expertise and capacity to take on a
limited number of water rights enforcement actions.
TU Recommendation: TU supports LC 5021.
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V. Water Supply and Sewage Disposal
The increasing use of exempt groundwater wells in major and minor subdivision
development has been one of the WPIC's central areas of study. Because the DNRC
does not analyze — nor require mitigation of— the collective impact of individual wells
the potential for hami to streamflows and senior water rights is not addressed.
Indeed, a district court in New Mexico made headlines just this month when the
New Mexico exempt-well statute was declared unconsthutional for precisely that reason.
In New Mexico, a long-time ranching family challenged a new exempt-well subdivision
proposed near their ranch on the grounds that the exempt wells would not even be
analyzed for their impact on the ranch's water supply. The district court agreed with the
ranchers, citing New Mexico's constitutional protection for senior water users, that new-
water use cannot adversely affect existing rights. Bounds v. Siate of New Mexico. CV-
2006-166 (July 10, 2008). An editorial in the Sante Fe New Mexican noted that the
district court judge expressed that, "It doesn't work for the Bounds and other irrigators to
sit around waiting until they're out of water . . . When the Mooter is gone, it will be too
late. " In New Mexico, as in Montana, previous efforts to pass new legislation to treat
individual, domestic wells like other water withdrawals had stalled before the legislature.
In the wake of the court ruling, the New Mexico State Engineer's office is now
scrambling to come up with a solution to having to process thousands of additional
permits each year, in order to analyze each individual well permit application.
TU Recommendation:
1. Amend Exempt Well Statute. Rather than wait for a Montana court to force the
Montana DNRC into a sifnilaily difficult situation, the Committee should amend MCA §
85-2-306(1) as follows:
"Outside the boundaries of a controlled groundwater Qrett,-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 +0-CL75 acre-feet per year for the purpose of a
stockwater tank or for domestic use, except that a combined appropriation
from the same source from two or more wells or developed springs
exceeding this limitation a well on a tract of record that is created by
subdivision after [the effective date of this legislation"! requires a permit."
This amendment vAW stop the use of multiple, individual wells exempt from DNRC
review in the development of subdivisions. Under the amended statute, a developer may
still use individual wells on lots created from a subdivision of land, but the cumulative
impact of those individual wells must be evaluated in a DNRC permit proceeding. As
amended, the statute would essentially grandfather in the use of exempt wells on all
existing lots, or lots that have already been subdivided.
The WPIC's draft Findings and Options for Recommendations, under "Finding 14:
Incentives are needed to encourage public water and sewer systems," lists as an option to
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"Require that exempt wells purchase a mitigation credit." (Option "O" on page 5). This
option could work in concert with the above amendment of Section 306(1) by allowing
individual wells to purchase a "mitigation credit" that would satisfy the requirement for
addressing the individual well's "net depletion" in closed basins. Under this scenario, the
"mitigation credit" would be used to purchase a larger block of mitigation water that is
held by the DNRC or by local government, and the purchase of the "mitigation credit"
would in effect be a "purchase" of a very small slice of mitigation water. This would
decrease the transaction costs for a person who needs only a small amount of mitigation
water in order to satisfy DNRC's groundwater permitting requirements in closed basins.
Such an approach would also significantly reduce the burden on DNRC for permit review
and processing of individual wells.
2. Amend LC5015. In a similar vein, TU also recommends amending LC501 5, so that
the revolving fund for central water and sewer systems is ftmded, at least in part, by a
substantial fee on the use of an exempt well on a tract of land less than 100 acres.
In addition, TU recommends amending LC50 1 5 to preferentially fund those applications
to the revolving fund that include such additional measures as progressive water
metering, the use of treated waste water for lawn and garden irrigation, or the restoration
of natural- vegetation infiltration galleries and permeable pavement for mediating
stormwater collection that encourages slow groundwater recharge.
3. Do Not Introduce LC 5019 A foundation of the New Mexico's court ruling was the
constitutional protection for senior water right holders that is fundamental to the prior
appropriation system. LC5019 undermines this fimdamental aspect of Montana's prior
appropriation doctrine by eliminating the ability of existing water right holders to object
to those aspects of a new water right permit that may adversely affect their water rights.
See, New Section 1, sub-section (2), that eliminates the application of MCA §§ 85-2-307
through 3 1 1 and 85-2-363.
Of equal concern is sub-section (5) of New Section I, that prevents a senior water right
holder from even obtaining judicial review of a newly-granted permit that may harm his
or her water rights. Sub-section (5) allows judicial review only when "... substantial
rights of an aggrieved party have been prejudiced . . .." On its face, this language appears
to limit judicial review to an applicant or tlie agency, as the only two entities that have
been "parties" to the permit process. LC501 9 makes no provision for senior water right
holders to comment on the permit application or otherwise be involved in shaping the
administrative record that would go before the district court, and give them clear standing
to even participate in judicial review of a permit application. For these reasons, TU does
not believe that LC5019 would make any positive contribution to sound water policy or
management in Montana.
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Vl. DNRC Permit Review
LC5020 makes changes in the way that the DNRC review permit applications.
Specifically, LC5020 does five things:
(1) It allows DNRC to meet informally with an applicant for a new permit
or a change to discuss the application;
(2) It requires the department to make a written preliminary determination
as to whether the application satisfies the criteria for a permit or
change to be awarded;
(3) Specifically recognizes the department's authority to impose
conditions that would allow the issuance of an approval;
(4) If DNRC proposes to grant an application, it requires the agency to
describe the rationale for that proposed decision; and
(5) It provides for a two tiered hearing process, depending on whether the
preliminary recommendation is for grant or denial.
TV supports the concept embodied in this draft, and in fact had proposed something
similar during the 2007 discussions on HB 83 1 . This idea appeals to us because it creates
some transparency in the decision-making process that does not currently exist.
Currently, DNRC, for fear of being accused of pre-judging the process, closely holds its
opinions about an application until the very end of the process. This poses its own series
of problems for applicants.
"Preliminary" is the key word here. By requiring a preliminary determination LC 5020
compels the agency to provide everybody — applicant and potential objectors alike—some
advance notice of how the department is tilting, based on the evidence they have seen,
with some description of the rationale behind the preliminary determination. This can
provide the applicant some chance to at least make its case to the hearing examiner that
the department's preliminary- finding is wrong, and it can provide potential objectors
some indication of how difficult it may be to successfully prosecute an objection.
One concern TU has is that, as currently drafted, section 5(1) of LC 5020 sets up a two-
tiered hearing process which might actually encumber the process needlessly. In effect, if
DNRC's preliminary determination is that the application should be denied, it will issue
notice of that to the applicant, and the applicant can seek a hearing. If the applicant
prevails at the hearing, section 5(1) appears to require a second hearing, to notify
potential objectors of the decision to grant. It would seem more economical to fold all of
that process into one hearing.
TU Recommendation: Piu-sue a bill that captures the concept of a preliminar>' decision
obligation, but reduce the amount of process to a single opportunity for a hearing for both
applicant and objector.
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Conclusion
TU supports the work of the \\TIC, and would be happy to discuss these
recommendations further with any member of the WPIC.
Sincerely,
Mark Aagenes Conservation Director
Montana Trout Unlimited
Laura Ziemer Director Montana Water
Project of Trout Unlimited
Stan Bradshaw Staff Attorney Montana
Water Project of Trout Unlimited
1-59
Kolman, Joe
From: Dr Vicki Watson [vicki.watson@umontana.eclu]
Sent: Wednesday, July 30, 2008 8:35 PIVI
To: Kolman, Joe
Subject: water
Joe ~ please let me know that comment were received. Thanks, VW
Comments on the Water Policy Interim Committee's draft report
I regret that I have not had the time this summer to give this report the attention deserved by such
important pohcy issues.
I appreciate the history of Montana vi^ater pohcy & law that the report provides. The report also makes
clear that Montana's limited water resources face growing threats, and that our economy and way of life
depend on how we address those challenges.
I have just a few general comments to the committee.
First, I think that aquifer recharge and injection have grave risks for groundwater contamination, and
should be allowed only under the most extraordinary circumstances (if at all).
Instead, we should accept that more and more basins have reached the limit of their ability to provide
water for human demands. And that new water demands associated with new development will require
the purchase of land with water rights and the conversion of those rights to different uses. In addition,
developers and municipalities can pay for water conservation measures for existing water users, and
then lease the salvaged water. We are fooling ourselves if we think that we can continue to increase our
demand for water, and meet those demands by interbasin transfers of water and/or injecting wastewater.
Moving water from one basin to another just transfers the shortage to another basin. Before injecting any
treated wastewater into groundwater, that treated wastewater should be clean enough to use directly.
And if it is, why inject it? Simply use it directly.
I was concerned to see the statement that aquifer recharge plans would require that total nitrogen in the
discharge should be 24 mg/L or less. This far exceeds the drinking water standard of 10 mg/L of nitrate
nitrogen. Once again, we should not inject or recharge undrinkable water into our groundwater. Some
particulate contaminants can be removed, but nitrate is not filtered out.
Second, Land use planning must be contingent on water availability. If the water is not available to
support denser development, the land is not suitable for more dense development.
Third, one area of concern that I feel the report neglects is how climate change will increase water
shortage problems. The report points out the increased demands associated with population growth and
development. But says little about the impact of climate change. Climate change will likely result in the
closure of more basins. And in increased conflicts over water. Hence it is essential to recognize all
demands placed on water. There should be no exemptions for water uses. All water users (including all
domestic wells), must apply for water rights, and must be included in water budgets. As water supply to
existing users dwindles, we want to be sure that climate change is the cause and not the incremental loss
to many small users exempted from regulation and accounting. In order to identify where we can best
conserve water, we need a complete picture of how & where it is being used.
1-60
Fourth, Riding herd on more water rights, and performing increasingly complex hydrologic analyses
(including assessing prestream capture of tributary groundwater, for example), means that DNRC needs
more resources to perform these duties in a timely and competent fashion. Developers complain about
the time required to obtain permits. Adequate analysis requires time and money. Permit application fees
should be increased to cover these costs. We cannot wish the costs away. We must provide DNRC with
the resources to do this critical job well. I would prefer that those requesting new water rights pay
DNRC for hydrologic analyses and then DNRC contracts for the work. Rather than hoping that someone
hired directly by the developer will provide an objective assessment.
I thank the WPIC for their hard work on this important issue and for the opportunity to pass along these
general thoughts.
Dr. Vicki Watson, Professor of Environmental Studies
University of Montana. Missoula, MT 59812
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Montana
Association of REALTORS'
208 North Montana Avenue, Suite 203 ■ Helena, MT 5961
Phone: 406-443-4032 • Fax: 406-443-4220
Email: mtmar@montanarealtors.org
Web: www.montanarealtors.org
TO: Water Policy Interim Committee, Sen. Elliott, Chair
FROM: Montana Association of REALTORS®
RE: Comments on Water Policy Interim Committee draft legislation and reports
DATE: July 30, 2008
The Water Policy Interim Committee ("WPIC") has recently published for public comment draft
legislation covering a number of topics within WPIC's purview, WPIC's draft report to the 61^'
Legislature as required by House Bill ("HB") 304 and findings and options for recommendations,
and the draft case study report by the Montana Bureau of Mines and Geology ("MBMG") as
required by HB 831 . The following comments are respectfully submitted on behalf of the
Montana Association of REALTORS® ("MAR"). MAR may provide additional comments after
further review or upon revisions to the draft legislation. MAR appreciates the opportunity to
comment on the draft legislation at this early stage and look forward to working with WPIC to
develop viable solutions for all Montana's water users.
BILL DRAFTS
I.
LC 5007
The development of statewide groundwater and aquifer data would certainly be useful to water
users and applicants for beneficial use permits, particularly given the dearth of such information
at present and the requirement for specific aquifer and sub-basin data in the hydrogeologic
assessments that applicants for beneficial use permits in closed basins must now submit to the
Montana Department of Natural Resources and Conservation ("DNRC"). LC 5007 does have
the potential to develop useful and meaningful information on groundwater resources statewide.
However, because the information that could be developed under LC 5007 does affect so many
stakeholders in the issue of water rights in Montana, membership in the ground water
assessment steering committee should be expanded to include a representative from the
development community.
II.
LC 5009
As presently drafted LC 5009 has the potential to have far-reaching and perhaps unintended
impacts on mitigation plans. A mitigation plan under Mont. Code Ann. § 85-3-362(2) can include
something as simple as purchasing surface water rights and leaving those rights in-stream.
Leaving a surface water right instream rather than diverting it does not have any significant
impact on water quality, as it does not discharge any water or other substances to the stream
1-62
that are not already present in the stream upstream of the historic point of diversion for the
surface water right to be converted to instream use for mitigation.
As LC 5009 is currently written, there is no assurance that such a simple mitigation plan would
not be required to obtain a discharge permit. Although Department of Environmental Quality
("DEQ") administrative rules under Title 76, Part 6, Chapter 4 do set forth standards for
determining nonsignificant changes in water quality, an applicant for a new beneficial use permit
that is mitigating adverse effect through the conversion of a surface water right to an instream
right still has to at least go through the process of determining whether they meet the criteria for
nonsignificant changes in water quality set forth in Admin. R. Mont. 17. 30.715. LC 5009 could
be significantly improved and clarified by inserting language that mitigation plans which consist
of converting surface water rights to instream use are not subject to the provisions of LC 5009.
For example, in Section 2 could be revised as follows (suggested changes in CAPS):
Section 2. Section 75-5-410, MCA is amended to read:
"75-5-410. Water quality of return flows and discharges associated with
aquifer recharge or CERTAIN mitigation planS — minimum requirements. (1) A
person who proposes to use sewage from a system requiring a water quality permit for
the purposes of aquifer recharge pursuant to 85-2-362 or plans to use sewage from a
system requiring a water quality permit as a return flow to minimize the amount of water
necGssary to offset adverse effects resulting from net depletion of surface water through
an aquifer recharge plan or mitigation plan pursuant to 85-2-362 shall obtainjf
necessary, a current pennit pursuant to this chapter. A MITIGATION PLAN THAT
CONSISTS OF A CHANGE OF PURPOSE IN A SURFACE WATER RIGHT TO
INSTREAM FLOW FOR MITIGATION PURPOSES PURSUANT TO 85-2-362 AND 85-
2-402 IS NOT SUBJECT TO PERMITTING PURSUANT TO THIS CHAPTER.
The above-suggested revision to Section 2 of LC 5009 would eliminate unnecessary
evaluations for both water users and, possibly, DEQ, by making clear that although a
conversion of a surface water right to instream flow for mitigation purposes is technically an
addition of water to a source, it does not discharge any water or contaminants to the source that
are not already present upstream of the historic point of diversion. Pursuant to Mont. Code Ann.
§ 85-2-402, objectors may still raise valid objections to a change application on the basis of
water quality, thereby assuring that the water quality of senior appropriators will not be
adversely affected.
III. LC 5012
At this time, MAR takes no position on this bill draft.
IV. LC 5014
Although community water and sewer systems may be preferable in certain developments or
subdivisions, granting local governing bodies the authority to require such systems creates two
problematic issues that should be seriously considered before adopting legislation such as LC
5014. The proposal of LC 5014 creates the very real possibility of 56 different standards for
exempt wells, with each county setting its own criteria for when, where, and how exempt wells
will and will not be allowed. Additionally, LC 5014 disregards the reality of community water
system development post-HB831. By setting up a permitting system that is costly in terms of
both time and money, exempt wells are often a more cost-efficient solution to providing
domestic water within certain housing developments. However, by allowing counties to require
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public water systems, LC 5014 sets up a very real possibility that some counties will force
developers into water solutions and a permitting process that are unfeasible in terms of both
cost and technology.
Furthermore, it must be kept in mind that scientific data have clearly demonstrated that if there
is a groundwater shortage in Montana, a hypothesis that has not yet been proven and, in fact,
has evidence to the contrary, exempt wells constitute an extremely small portion of the demand
for groundwater and of water demands in closed basins and statewide.
V. LC 5015
As presently drafted, LC 5015 provides no assistance to those developers who desire to use
public water and sewer systems in new subdivisions. Section 3(2) of LC 5015 limits applicants
for loans from the proposed sustainable development revolving fund program to "an
incorporated city or town, a county, a consolidated local government, a tribal government, a
county or multicounty water or sewer district, or an authority as defined in 75-6-304" (a regional
water and/or wastewater authority). Private developers may neither apply for nor receive loans
under LC 5015. If the intent of LC 5015 is to encourage the use of public water and sewer
systems where they may be appropriate, without the inclusion of private developers in that class
of persons who may apply for and receive revolving fund loans, LC 5015 cannot achieve that
goal.
Additionally, LC 5015 contains legislative findings that are unsupported by available scientific
data. Specifically, Section 2(2)(b) of LC 5015 finds that "public water and sewer systems in
subdivisions are preferable to individual wells and septic systems in order to protect water
quality and the holders of senior water rights." The information brought before WPIC during the
2007-2008 interim has not supported such a broad finding. Rather, WPIC has received
information from DEQ that, in addition to cost considerations, lot size, build-out schedules, and
aquifer characteristics are all factors to consider in choosing whether to use a community
system or individual wells. ("Community Wells vs. Single Family Wells" presented by Eric
Regensburger, October 24, 2007, Choteau) Further, WPIC has also received information that
cumulative effects of individual wells on water quantity and availability, if any, are not
reasonably projected to result "in any discernable, detectable or measurable adverse impact to
any prior surface water appropriator." ("Update on Evaluations Significance of Exempt Wells"
presented by Michael Nicklin, January 15, 2008). Findings that are unsupported by available
data and are actually contrary to data presented to WPIC should not be included in legislation
proposed by WPIC.
VI. LC 5019
HB 831 as codified is clear that mitigation or aquifer recharge is required for a new groundwater
appropriation in a closed basin only to the extent that net depletion results in adverse effect. LC
5019 eliminates the distinction between net depletion and adverse effect for any applicant for a
new beneficial use permit that proposes to approphate groundwater to provide domestic water
within a subdivision. See, LC 5019 Sec. 1(1), Sec. 2(23). In short, LC 5019 requires mitigation
or aquifer recharge in excess of what is necessary to ensure no adverse effect on the water
rights of senior appropriators. Such excessive mitigation or aquifer recharge would artificially
accelerate the exhaustion of available surface water supplies, which would in turn quickly create
an inflated water market in the state. LC 5019 would also leave less water available for both
new and existing appropriators by encouraging mitigation and aquifer recharge in excess of
adverse effect, leading to over-utilization of surface water resources. By requiring mitigation or
1-64
aquifer recharge "to offset net depletion" with no consideration of adverse effect, LC 5019
encourages an applicant for a new groundwater right to provide domestic water in a subdivision
to buy up existing surface water rights (typically irrigation rights) in excess of the amount of the
proposed withdrawal that may result in net depletion and the amount of that net depletion that
may be adverse effect on senior water users and leave that water instream, leaving formerly
irrigated ground "high and dry" without any showing or knowledge of the actual need to draw
water away from productive agricultural property. In short, by requiring mitigation or aquifer
recharge of any net depletion absent consideration of actual adverse effect, LC 5019
encourages the purchase of excessive surface water rights, which could quickly drive up the
value of surface water rights, pricing developers of workforce housing as well as agricultural
users out of the market.
In requiring mitigation or aquifer recharge for any net depletion, not just adverse effect, LC 5019
also disregards the available data, which indicates that the idea that any change in stream
conditions in closed basins {i.e., any net depletion) is de facto adverse effect is false. Rather,
what a proper water balance does indicate is that both ground and surface water are available
to meet present and future demands in closed basins without any discernable impact to senior
water users. See, May 2008 Water Resource Evaluation Water Rights in Closed Basins
prepared by Nicklin Earth and Water. To equate any net depletion with adverse effect is to allow
existing appropriators to "command a source," preventing any changes in the condition of water
occurrence, regardless of whether prior appropriators can reasonably exercise their water rights
under changed conditions. Mont. Code Ann. § 85-2-401 plainly states that the right to so
command a source is not within the scope of priority of appropriation. However, LC 5019
eliminates this distinction within closed basins for subdivisions that use a public water supply
system. Not only is such elimination contrary to existing law, but it is unsupported by the
available data.
LC 5019 also introduces considerable increased uncertainty into the application process by
exempting an application for a new beneficial use permit that proposes to use groundwater
within a closed basin to supply domestic water to a subdivision from the clear criteria for permit
issuance set forth in Mont. Code Ann. § 85-2-31 1 . See, LC 5019, Section 1(2). Is an applicant
still required to demonstrate physical and legal availability, adequacy of appropriation works,
that the proposed use is a beneficial use, and possessory interest in the place of use? Absent
the applicability of Mont. Code Ann. § 85-2-311, this is unclear.
VII. LC 5020
Before undertaking significant revisions of a permit process that, up until the very recent past,
has worked relatively well for both applicants and objectors, it is worthwhile to determine exactly
what the source of the significant increase in the time, cost, and frustration required to process
a permit application is. Under existing statute, DNRC must notify the applicant of any defects in
any application within 180 days of receipt. Mont. Code Ann. § 85-2-302(5). Upon notice of any
deficiencies, the applicant has 90 days to correct those deficiencies. Mont. Code Ann. § 85-2-
302(7). Upon correction of the deficiencies, DNRC can then deem the application correct and
complete, which means that the application contains "substantial credible information" showing
that each of the criteria for permit issuance set forth in Mont. Code Ann. § 85-2-31 1 (new
beneficial use permit applications) or Mont. Code Ann. § 85-2-402 (change applications) has
been met. See, Admin. R. Mont. 32.12.1601. Even a cursory examination of the applicable
regulations setting the guidelines for a correct and complete determination reveal that it is more
than just simply making sure all blanks are filled in. If that were the case, there would be no
1-65
requirement that the information provided be "substantial credible information," only that
something be filled in. Such is not the case.
Following a correct and complete determination, the application goes out for public notice. Mont.
Code Ann. § 85-2-307. After such notice, DNRC must either grant, deny, or condition the
application within 120 days if no objections are received or within 180 days is objections are
received or a hearing is held, with an extension of up to 60 additional days. Mont. Code Ann. §
85-2-310. Such a process allows for significant scrutiny of the application prior to public notice,
the opportunity for any senior appropriators that believe they will be adversely affected to object,
and for timely hearing and decision, as long as the applicable statutes and regulations are
followed.
Section 1 (8) of LC 5020 would amend the statutory definition of "correct and complete" such
that it merely means that DNRC can "begin" to evaluate the "information." Given the significant
guidelines for a correct and complete determination at present (see, i.e., Admin. R. Mont.
32.12.1701 to 1707), it begs the question of exactly what evaluation DNRC is doing during the
period providing for in Mont. Code Ann. § 85-2-302, which is not affected by LC 5020, if not
"evaluating" the application. Ostensibly, under LC 5020, an applicant could go through a 270-
day period of receiving deficiency notices from DNRC and responding to those notices, only to
then have DNRC "begin" to evaluate the application, leaving one to wonder exactly where any
expediting of the process is, particularly when the "evaluation" is not required to take place
within any given timeframe. See, LC 5020, Sections 2 and 5.
Any amendment to the permitting process should also consider the role of those agency
personnel who actually conduct hearings on permit applications, formal or otherwise. At
present, DNRC has adopted a practice of issuing statements of opinion on those applications
where there either is no objector or any objections have been withdrawn. The applicant's
opportunity for hearing is then typically to the author of the statement of opinion. LC 5020
proposes significant changes to the hearing opportunities available to applicants, without
addressing the need for neutral and independent evaluators. Any change to the permitting
process should consider the appropriate role for hearing examiners and removing those agency
personnel who seive as hearing examiners from the rest of the agency's evaluation process.
VIII. LC 5021
At this time, MAR takes no position on this bill draft.
FINDINGS AND RECOMMENDATIONS
At this time, MAR has no significant comments on either WPIC's draft report or MBMG's
draft case study report. However, the following are comments and suggestions on WPIC's draft
Findings and Options for Recommendations.
I. General Water Quantity and Quality
A. Finding 2
During the June 2008 WPIC meeting, both DNRC and MAR discussed proposals for reform of
the existing controlled groundwater area statutes. Mont. Code Ann. §§ 85-2-501, e^seqf.
Legislative hearings and debate during the 2007 session on HB 203 and 205 evidenced
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significant difficulty and frustration on the part of both DNRC and the public with the existing
statutes. To recommend no action at this time ignores one area of water law that, at present, is
unworkable for all parties involved. MAR continues to work with DNRC and other stakeholders
to develop a proposal for revising the controlled groundwater area statutes to make them more
practical and usable for all parties. WPIC should reconsider its recommendation to take no
action on controlled groundwater area statutes.
B. Finding 6
MAR refers to its comments above on LC 5009. LC 5009 should be modified to clarify
that discharge permits are not necessary for mitigation plans that consist of converting surface
water rights to instream purposes.
II. Government Issues
A. Finding 3
Neither current statute nor applicable regulations prevent DNRC from meeting with applicants
"informally" during the permitting process. However, given that a determination on a permitting
decision is reviewable by a district court based only on the administrative record, it is extremely
important that the record contain all information submitted by an applicant demonstrating that
the relevant statutory criteria are met. Additionally, it is equally important that the administrative
record contain a full written record of the basis for DNRC's decision on any permit application.
Consequently, "informal" discussions and decisions could result in only greater confusion and
more room for arbitrary and capricious decision-making. MAR further refers to its comments on
LC 5020 above.
III. Water Supply & Sewage Disposal
A. Finding 4
As discussed in comments on LC 5015 and LC 5019 above, data presented to WPIC does not
support a finding that exempt wells result in a discernable cumulative adverse impact on senior
appropriators, either at present or reasonably projected into the future. This is the result of both
overall water availability and the relative consumptive rate from exempt wells, particularly in
comparison with other water uses such as agricultural irrigation. As also discussed above, a
mere change in the condition of water occurrence is not an adverse effect as long as a prior
appropriator can reasonable exercise their water right under the changed conditions. Mont.
Code Ann. §85-2-401(1).
B. Finding 14
In regard to Recommendation A that an applicant for a new beneficial use permit for
groundwater in a closed basin to provide domestic water within a subdivision be required to
offset net depletion, MAR refers to its comments on LC 5019 above. Eliminating the distinction
between net depletion and adverse effect is contrary to both legal precedent and available
science. As to Recommendation B on a revolving loan program, MAR refers to its comments on
LC 5015 above. As presently drafted, LC 5015 provides no assistance to private developers
who may choose to use public water and sewer systems in subdivision development.
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Once again, MAR thanks WPIC for the opportunity to provide comment on draft legislation at
this early stage and looks forward to working with the committee and staff to develop viable
solutions to challenges facing current and future Montana water users.
I
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Appendix J
1 BILL NO.
2 INTRODUCED BY
(Primary Sponsor)
3
4 BY REQUEST OF THE WATER POLICY COMMITTEE
5
6 A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING WATER RIGHT ENFORCEMENT LAWS;
7 ALLOWING FOR THE LIMITED APPOINTMENT OF WATER MASTERS AS SPECIAL MASTERS IN DISTRICT
8 COURT PROCEEDINGS; REQUIRING THAT PROTECTION OF PRIOR APPROPRIATORS BE GIVEN
9 PRIORITY IN JUDICIAL ENFORCEMENT CONSIDERATIONS; MAKING THE PURSUIT OF VOLUNTARY
1 0 COMPLIANCE OPTIONAL; ELIMINATING CERTAIN CRIMINAL PENALTIES; ESTABLISHING A WATER RIGHT
11 ENFORCEMENT PROGRAM AND A WATER RIGHT ENFORCEMENT ACCOUNT; PROVIDING A
12 STATUTORY APPROPRIATION; AND AMENDING SECTIONS 3-7-311, 17-7-502, 85-2-114, AND 85-2-122,
13 MCA."
14
15 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
16
1 7 Section 1 . Section 3-7-31 1 , MCA, is amended to read:
1 8 "3-7-31 1 . Duties of water masters. (1 ) The water master has the general powers given to a master by
19 Rule 53(c), M.R.Civ.P.
20 (2) Within a reasonable time after June 30, 1 983, the water master shall issue a report to the water judge
21 meeting the requirements for the preliminary decree as specified in 85-2-231 .
22 (3) After a water judge issues a preliminary decree, the water master shall assist the water judge in the
23 performance of the water division's further duties as ordered by the water judge.
24 (4) A water master mav be appointed by a district court to serve as a special master to a district court
25 for actions brought pursuant to 85-2-1 1 4(1 ) or (3) or 85-5-301 if the appointment is approved by the chief water
26 judge."
27
28 Section 2. Section 17-7-502, MCA, is amended to read:
29 "17-7-502. Statutory appropriations - definition ~ requisites for validity. (1) A statutory
30 appropriation is an appropriation made by permanent law that authorizes spending by a state agency without the
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1 need for a biennial legislative appropriation or budget amendment.
2 (2) Except as provided in subsection (4), to be effective, a statutory appropriation must comply with both
3 of the following provisions:
4 (a) The law containing the statutory authority must be listed in subsection (3).
5 (b) The law or portion of the law making a statutory appropriation must specifically state that a statutory
6 appropriation is made as provided in this section.
7 (3) The following laws are the only laws containing statutory appropriations: 2-17-105; 5-11-120
8 5-11-407; 5-13-403; 7-4-2502; 10-1-1202; 10-1-1303; 10-2-603; 10-3-203; 10-3-310; 10-3-312; 10-3-314
9 10-4-301; 15-1-121; 15-1-218; 15-23-706; 15-31-906; 15-35-108; 15-36-332; 15-37-117; 15-39-110; 15-65-121
10 15-70-101; 15-70-369; 15-70-601; 16-11-509; 17-3-106; 17-3-212; 17-3-222; 17-3-241; 17-6-101; 17-7-304
11 1 8-1 1 -1 1 2; 1 9-3-319; 1 9-6-404; 1 9-6-410; 1 9-9-702; 1 9-1 3-604; 1 9-1 7-301 ; 1 9-1 8-51 2; 1 9-1 9-305; 1 9-1 9-506
1 2 1 9-20-604; 1 9-20-607; 1 9-21-203; 20-8-1 07; 20-9-534; 20-9-622; 20-26-1 503; 22-3-1 004; 23-4-1 05; 23-4-202
13 23-4-204; 23-4-302; 23-4-304; 23-5-306; 23-5-409; 23-5-612; 23-7-301; 23-7-402; 37-43-204; 37-51-501
14 39-71-503; 41-5-2011; 42-2-105; 44-1-504; [section 5]; 44-12-206; 44-13-102; 50-4-623; 53-1-109; 53-6-703
1 5 53-24-1 08; 53-24-206; 60-1 1-115; 61 -3-41 5; 69-3-870; 75-1 -1101; 75-5-1 1 08; 75-6-21 4; 75-1 1-313; 76-1 3-1 50
16 77-1-108; 77-2-362; 80-2-222; 80-4-416; 80-5-510; 80-11-518; 82-11-161; 87-1-513; 90-1-115; 90-1-205
1 7 90-3-1 003; and 90-9-306.
18 (4) There is a statutory appropriation to pay the principal, interest, premiums, and costs of issuing,
19 paying, and securing all bonds, notes, or other obligations, as due, that have been authorized and issued
20 pursuant to the laws of Montana. Agencies that have entered into agreements authorized by the laws of Montana
21 to pay the state treasurer, for deposit in accordance with 1 7-2-101 through 1 7-2-107, as determined by the state
22 treasurer, an amount sufficient to pay the principal and interest as due on the bonds or notes have statutory
23 appropriation authority for the payments. (In subsection (3): pursuant to sec. 10, Ch. 360, L. 1999, the inclusion
24 of 1 9-20-604 terminates when the amortization period for the teachers' retirement system's unfunded liability is
25 10 years or less; pursuant to sec. 4, Ch. 497, L. 1999, the inclusion of 15-38-202 terminates July 1, 2014;
26 pursuant to sec. 1 0(2), Ch. 1 0, Sp. L. May 2000, and sees. 3 and 6, Ch. 481 , L. 2003, the inclusion of 1 5-35-1 08
27 terminates June 30, 2010; pursuant to sec. 17, Ch. 593, L. 2005, the inclusion of 15-31-906 terminates January
28 1 , 2010; pursuant to sec. 73, Ch. 44, L. 2007, the inclusion of 19-6-410 terminates upon the death of the last
29 recipient eligible under 1 9-6-709(2) for the supplemental benefit provided by 1 9-6-709; and pursuant to sec. 6,
30 Ch. 2, Sp. L. September 2007, the inclusion of 76-1 3-1 50 terminates June 30, 2009.)"
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1
2 Section 3. Section 85-2-11 4, MCA, is amended to read:
3 "85-2-11 4. Judicial enforcement. ( 1 ) If the department ascertains, by a means reasonably considered
4 sufficient by it, that a person is wasting water, using water unlawfully, preventing water from moving to another
5 person having a prior right to use the water, or violating a provision of this chapter, it may, after reasonable
6 attempts have failed to obtain voluntary compliance as provided in subsection (4), petition the district court
7 supervising the distribution of water among appropriators from the source to:
8 (a) regulate the controlling works of an approphation as may be necessary to prevent the wasting or
9 unlawful use of water or to secure water to a person having a prior right to its use;
10 (b) order the person wasting, unlawfully using, or interfering with another's rightful use of the water to
1 1 cease and desist from doing so and to take steps that may be necessary to remedy the waste, unlawful use, or
12 interference; or
13 (c) issue a temporary, preliminary, or permanent injunction to prevent a violation of this chapter.
14 Notwithstanding the provisions of Title 27, chapter 19, part 3, a temporary restraining order must be granted if
15 it clearly appears from the specific facts shown by affidavit or by the verified complaint that a provision of this
16 chapter is being violated.
17 (2) Upon the issuance of an order or injunction, the department may attach to the controlling works a
18 written notice, properly dated and signed, setting forth the fact that the controlling works have been properly
19 regulated by it. The notice constitutes legal notice to all persons interested in the appropriation or distribution of
20 the water.
2 1 (3) The department may also direct its own attorney or request the attorney general or county attorney
22 to bring suit to enjoin the waste, unlawful use, interference, or violation.
23 (4} The county attorney or the attorney general may prosecute under 05-2-1 22( 1 ) bring suit to enjoin the
24 waste, unlawful use, interference, or violation or bring an action under 85-2-122(2) 85-2-122(1) without being
25 requested to do so by the department. The attorney general and a county attorney are subject to the voluntary
26 compliance provisions of subsection (4).
27 (5) A county attorney who takes action pursuant to subsection (3) or (4) may request assistance from
28 the attorney general.
29 (6) When enforcing the provisions of this section, the department, the county attorney, and the attorney
30 general shall give priority to protecting the water rights of a prior appropriator under an existing water right, a
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1 certificate, a permit, or a state water reservation.
2 f4^(7) The After considering the provisions of subsection (6). the department shall may attempt to obtain
3 voluntary compliance through warning, conference, or any other appropriate means before petitioning the district
4 court under subsection (1 ). The attempts An attempt to obtain voluntary compliance under this subsection must
5 extend over a period of at least 7 days and may not exceed 30 working days."
6
7 Section 4. Section 85-2-122, MCA, is amended to read:
8 "85-2-122. Penalties. (1 ) A person who violates or refuses or neglects to comply with the provisions of
9 this chapter, any order of the department, or any rule of the department is guilty of a misdemeanor.
10 (2)(il Except as provided in 85-2-410(6), a person who violates or refuses or neglects to comply with
1 1 the provisions of 85-2-1 1 4, any order of the department, or any rule of the department is subject to a civil penalty
12 not to exceed $1 ,000 per violation. Each day of violation constitutes a separate violation.
1 3 (3) (a)(2) Except as provided in subsection (3)(b) (3). fines collected by the department or a district court
14 under subsection (2) [1] must be deposited in the account established in 85-2-31 8 for use by the department in
1 5 the enforcement of 85-2-1 1 4.
16 (fe)(3) If a fine is collected by an independent action brought byi
17 (a) the county attorney, the fine must be deposited in the general fund of the countVT: or
18 (b) the countv attorney with assistance from the attornev general or by the attorney general, the fine must
19 be deposited in the water right enforcement account created in [section 5] and must be used to enforce the
20 provisions of 85-2-1 14."
21
22 NEW SECTION. Section 5. Water right enforcement account ~ statutory appropriation. (1 ) There
23 is a water right enforcement account in the state special revenue fund.
24 (2) Fines collected pursuant to 85-2-1 22(3)(b) must be deposited in the water right enforcement account.
25 (3) The money in the account is statutorily appropriated, as provided in 1 7-7-502, to the department of
26 justice to enforce the provisions of 85-2-1 1 4.
27
28 NEW SECTION. Section 6. Water right enforcement program. There is a water right enforcement
29 program in the department of justice. The program staff may enforce the provisions of 85-2-1 14. The program
30 is under the supervision and control of the attorney general.
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1
2 NEW SECTION. Section 7. Codification instruction. [Sections 5 and 6] are intended to be codified
3 as an integral part of Title 44, chapter 4, and the provisions of Title 44, chapter 4, apply to [sections 5 and 6].
4 -END-
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1 SENATE BILL NO. 17
2 INTRODUCED BY G. PERRY
3 BY REQUEST OF THE WATER POLICY COMMITTEE
4
5 A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING PROVISIONS IN LOCAL SUBDIVISION
6 REGULATIONS THAT REQUIRE A PUBLIC WATER SUPPLY SYSTEM AND A PUBLIC SEWER SYSTEM IN
7 CERTAIN SUBDIVISIONS; PROVIDING A PROCESS FOR ALTERNATIVES TO THE REQUIRED PUBLIC
8 WATER SUPPLY SYSTEM AND PUBLIC SEWER SYSTEM; AND AMENDING SECTIONS 76-3-504, 76-3-51 1 ,
9 76-3-601 , 76-3-604, AND 76-3-622, MCA."
10
11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
12
13 Section 1. Section 76-3-504, MCA, is amended to read:
14 "76-3-504. Subdivision regulations ~ contents. (1) The subdivision regulations adopted under this
1 5 chapter must, at a minimum:
16 (a) list the materials that must be included in a subdivision application in order for the application to be
17 determined to contain the required elements for the purposes of the review required in 76-3-604(1 );
18 (b) except as provided in 76-3-210, 76-3-509, or 76-3-609, require the subdivider to submit to the
19 governing body an environmental assessment as prescribed in 76-3-603;
20 (c) establish procedures consistent with this chapter for the submission and review of subdivision
21 applications and amended applications;
22 (d) prescribe the form and contents of preliminary plats and the documents to accompany final plats;
23 (e) provide for the identification of areas that, because of natural or human-caused hazards, are
24 unsuitable for subdivision development. The regulations must prohibit subdivisions in these areas unless the
25 hazards can be eliminated or overcome by approved construction techniques or other mitigation measures
26 authorized under 76-3-608(4) and (5). Approved construction techniques or other mitigation measures may not
27 include building regulations as defined in 50-60-1 01 other than those identified by the department of labor and
28 industry as provided in 50-60-901 .
29 (f) prohibit subdivisions for building purposes in areas located within the floodway of a flood of 1 00-year
30 frequency, as defined by Title 76, chapter 5, or determined to be subject to flooding by the governing body;
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1 (g) prescribe standards for:
2 (i) the design and arrangement of lots, streets, and roads;
3 (ii) grading and drainage; and
4 (iii) subject to the provisions of 76-3-51 1 .water supply and sewage and solid waste disposal that meet
5 thet
6 (A) regulations adopted by the department of environmental quality under 76-4-1 04 for subdivisions that
7 will create one or more parcels containing less than 20 acres; and
8 (B) standards provided in 76-3-604 and 76-3-622 for subdivisions that will create one or more parcels
9 containing 20 acres or more and less than 160 acres; and
1 0 (Mliii] the location and installation of public utilities;
1 1 (h) provide procedures for the administration of the park and open-space requirements of this chapter;
12 (i) provide for the review of subdivision applications by affected public utilities and those agencies of
13 local, state, and federal government identified during the preapplication consultation conducted pursuant to
1 4 subsection (1 )(q) or those having a substantial interest in a proposed subdivision. A public utility or agency review
1 5 may not delay the governing body's action on the application beyond the time limits specified in this chapter, and
16 the failure of any agency to complete a review of an application may not be a basis for rejection of the application
1 7 by the governing body.
1 8 (j) when a subdivision creates parcels with lot sizes averaging less than 5 acres, require the subdivider
19 to:
20 (i) reserve all or a portion of the appropriation water rights owned by the owner of the land to be
21 subdivided and transfer the water rights to a single entity for use by landowners within the subdivision who have
22 a legal right to the water and reserve and sever any remaining surface water rights from the land;
23 (ii) if the land to be subdivided is subject to a contract or interest in a public or private entity formed to
24 provide the use of a water right on the subdivision lots, establish a landowner's water use agreement
25 administered through a single entity that specifies administration and the rights and responsibilities of landowners
26 within the subdivision who have a legal right and access to the water; or
27 (iii) reserve and sever all surface water rights from the land;
28 (k) (i) except as provided in subsection (1 )(k)(ii), require the subdivider to establish ditch easements in
29 the subdivision that:
30 (A) are in locations of appropriate topographic characteristics and sufficient width to allow the physical
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1 placement and unobstructed maintenance of open ditches or belowground pipelines for the delivery of water for
2 irrigation to persons and lands legally entitled to the water under an appropriated water right or permit of an
3 irrigation district or other private or public entity formed to provide for the use of the water right on the subdivision
4 lots;
5 (B) are a sufficient distance from the centerline of the ditch to allow for construction, repair, maintenance,
6 and inspection of the ditch; and
7 (C) prohibit the placement of structures or the planting of vegetation other than grass within the ditch
8 easement without the written permission of the ditch owner.
9 (ii) Establishment of easements pursuant to this subsection (1 )(k) is not required if:
10 (A) the average lot size is 1 acre or less and the subdivider provides for disclosure, in a manner
1 1 acceptable to the governing body, that adequately notifies potential buyers of lots that are classified as irrigated
1 2 land and may continue to be assessed for irrigation water delivery even though the water may not be deliverable;
13 or
14 (B) the water rights are removed or the process has been initiated to remove the water rights from the
1 5 subdivided land through an appropriate legal or administrative process and if the removal or intended removal
16 is denoted on the preliminary plat. If removal of water rights is not complete upon filing of the final plat, the
1 7 subdivider shall provide written notification to prospective buyers of the intent to remove the water right and shall
1 8 document that intent, when applicable, in agreements and legal documents for related sales transactions.
19 (I) require the subdivider, unless otherwise provided for under separate written agreement or filed
20 easement, to file and record ditch easements for unobstructed use and maintenance of existing water delivery
21 ditches, pipelines, and facilities in the subdivision that are necessary to convey water through the subdivision to
22 lands adjacent to or beyond the subdivision boundaries in quantities and in a manner that are consistent with
23 historic and legal rights;
24 (m) require the subdivider to describe, dimension, and show public utility easements in the subdivision
25 on the final plat in their true and correct location. The public utility easements must be of sufficient width to allow
26 the physical placement and unobstructed maintenance of public utility facilities for the provision of public utility
27 services within the subdivision.
28 (n) establish whether the governing body, its authorized agent or agency, or both will hold public
29 hearings;
30 (o) establish procedures describing how the governing body or its agent or agency will address
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1 information presented at the hearing or hearings held pursuant to 76-3-605 and 76-3-615;
2 (p) establish criteria that the governing body or reviewing authority will use to determine whether a
3 proposed method of disposition using the exemptions provided in 76-3-201 or 76-3-207 is an attempt to evade
4 the requirements of this chapter. The regulations must provide for an appeals process to the governing body if
5 the reviewing authority is not the governing body.
6 (q) establish a preapplication process that:
7 (i) requires a subdivider to meet with the agent or agency, other than the governing body, that is
8 designated by the governing body to review subdivision applications prior to the subdivider submitting the
9 application;
10 (ii) requires, for informational purposes only, identification of the state laws, local regulations, and growth
1 1 policy provisions, if a growth policy has been adopted, that may apply to the subdivision review process;
12 (iii) requires a list to be made available to the subdivider of the public utilities, those agencies of local,
13 state, and federal government, and any other entities that may be contacted for comment on the subdivision
1 4 application and the timeframes that the public utilities, agencies, and other entities are given to respond. If, during
15 the review of the application, the agent or agency designated by the governing body contacts a public utility,
1 6 agency, or other entity that was not included on the list originally made available to the subdivider, the agent or
17 agency shall notify the subdivider of the contact and the timeframe for response.
18 (iv) requires that a preapplication meeting take place no more than 30 days from the date that the agent
19 or agency receives a written request for a preapplication meeting from the subdivider; and
20 (v) establishes a time limit after a preapplication meeting by which an application must be submitted as
21 provided in 76-3-604.
22 (2) (a) The subdivision regulations adopted under this chapter must prescribe standards for water supply
23 and sewage and solid waste disposal.
24 (b) Except as provided in subsection (2)(c), the standards must, at a minimum, meet the:
25 (i) regulations adopted by the department of environmental quality under 76-4-1 04 for subdivisions that
26 will create one or more parcels containing less than 20 acres; and
27 (ii) standards provided in 76-3-604 and 76-3-622 for subdivisions that will create one or more parcels
28 containing 20 acres or more and less than 160 acres.
29 (c) When a residential subdivision creates 30 or more lots with an average lot size of less than 3 acres.
30 the standards must reguire the subdivider to:
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1 (i) install a public water system and a public sewer system that meet the regulations adopted by the
2 department of environmental quality under 76-4-104; or
3 (ii) seek approval from the local qoyerninq body to install an alternative to a public water system and
4 public sewer system. The local governing body shall hold a public hearing on the proposal based on the
5 information provided pursuant to 76-3-622 (4).
6 (d) The provisions of 76-3-51 1 apply to subsection (2)(b) of this section but do not apply to subsection
7 (2](cl
8 (2)(3] In order to accomplish the purposes described in 76-3-501 , the subdivision regulations adopted
9 under 76-3-509 and this section may include provisions that are consistent with this section that promote cluster
10 development.
1 1 (3^(4) The governing body may establish deadlines for submittal of subdivision applications."
12
13 Section 2. Section 76-3-51 1 , MCA, is amended to read:
14 "76-3-51 1 . Local regulations no more stringent than state regulations or guidelines. (1 ) Except as
15 provided in subsections (2) through (4) or unless required by state law, a governing body may not adopt a
1 6 regulation under 76-3-501 or 76-3-504(1)(f)(iii) 76-3-504(2)(b) that is more stringent than the comparable state
1 7 regulations or guidelines that address the same circumstances. The governing body may incorporate by reference
18 comparable state regulations or guidelines.
19 (2) The governing body may adopt a regulation to implement 76-3-501 or 76-3-504(1 )(f)(iii)
20 76-3-504(2)(b) that is more stringent than comparable state regulations or guidelines only if the governing body
21 makes a written finding, after a public hearing and public comment and based on evidence in the record, that:
22 (a) the proposed local standard or requirement protects public health or the environment; and
23 (b) the local standard or requirement to be imposed can mitigate harm to the public health or
24 environment and is achievable under current technology.
25 (3) The written finding must reference information and peer-reviewed scientific studies contained in the
26 record that forms the basis for the governing body's conclusion. The written finding must also include information
27 from the hearing record regarding the costs to the regulated community that are directly attributable to the
28 proposed local standard or requirement.
29 (4) (a) A person affected by a regulation ofthe governing body adopted after January 1, 1990, and before
30 April 14,1 995, that that person believes to be more stringent than comparable state regulations or guidelines may
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1 petition the governing body to review the regulation. If the governing body determines that the regulation is more
2 stringent than comparable state regulations or guidelines, the goveming body shall comply with this section by
3 either revising the regulation to conform to the state regulations or guidelines or by making the written finding,
4 as provided under subsection (2), within a reasonable period of time, not to exceed 12 months after receiving the
5 petition. A petition under this section does not relieve the petitioner of the duty to comply with the challenged
6 regulation. The governing body may charge a petition filing fee in an amount not to exceed $250.
7 (b) A person may also petition the governing body for a regulation review under subsection (4)(a) if the
8 governing body adopts a regulation after January 1 , 1 990, in an area in which no state regulations or guidelines
9 existed and the state government subsequently establishes comparable regulations or guidelines that are less
10 stringent than the previously adopted governing body regulation."
11
12 Section 3. Section 76-3-601, MCA, is amended to read:
13 "76-3-601. Submission of application and preliminary plat for review ~ water and sanitation
14 information required. (1 ) Subject to the submittal deadlines established as provided in 76-3-504(3) 76-3-504(4),
1 5 the subdivider shall present to the governing body or to the agent or agency designated by the governing body
16 the subdivision application, including the preliminary plat of the proposed subdivision, for local review. The
1 7 preliminary plat must show all pertinent features of the proposed subdivision and all proposed improvements and
18 must be accompanied by the preliminary water and sanitation information required under 76-3-622.
19 (2) (a) When the proposed subdivision lies within the boundaries of an incorporated city or town, the
20 application and preliminary plat must be submitted to and approved by the city or town governing body.
21 (b) When the proposed subdivision is situated entirely in an unincorporated area, the application and
22 preliminary plat must be submitted to and approved by the governing body of the county. However, if the
23 proposed subdivision lies within 1 mile of a third-class city or town, within 2 miles of a second-class city, or within
24 3 miles of a first-class city, the county governing body shall submit the application and preliminary plat to the city
25 or town governing body or its designated agent for review and comment. If the proposed subdivision is situated
26 within a rural school district, as described in 20-9-61 5, the county governing body shall provide a summary of the
27 information contained in the application and preliminary plat to school district trustees.
28 (c) If the proposed subdivision lies partly within an incorporated city or town, the application and
29 preliminary plat must be submitted to and approved by both the city or town and the county governing bodies.
30 (d) When a proposed subdivision is also proposed to be annexed to a municipality, the governing body
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1 of the municipality shall coordinate the subdivision review and annexation procedures to minimize duplication of
2 hearings, reports, and other requirements whenever possible.
3 (3) The provisions of 76-3-604, 76-3-605, 76-3-608 through 76-3-610, and this section do not limit the
4 authority of certain municipalities to regulate subdivisions beyond their corporate limits pursuant to 7-3-4444."
5
6 Section 4. Section 76-3-604, MCA, is amended to read:
7 "76-3-604. Review of subdivision application ~ review for required elements and sufficiency of
8 information. (1 ) (a) Within 5 working days of receipt of a subdivision application submitted in accordance with
9 any deadlines established pursuant to 76-3-504(3) 76-3-504(4) and receipt of the review fee submitted as
1 0 provided in 76-3-602, the reviewing agent or agency shall determine whether the application contains all of the
11 listed materials as required by 76-3-504(1 )(a) and shall notify the subdivider or, with the subdivider's written
12 permission, the subdivider's agent of the reviewing agent's or agency's determination.
13 (b) If the reviewing agent or agency determines that elements are missing from the application, the
14 reviewing agent or agency shall identify those elements in the notification.
15 (2) (a) Within 15 working days after the reviewing agent or agency notifies the subdivider or the
16 subdivider's agent that the application contains all of the required elements as provided in subsection (1), the
17 reviewing agent or agency shall determine whether the application and required elements contain detailed,
18 supporting information that is sufficient to allow for the review of the proposed subdivision under the provisions
19 of this chapter and the local regulations adopted pursuant to this chapter and shall notify the subdivider or, with
20 the subdivider's written permission, the subdivider's agent of the reviewing agent's or agency's determination.
21 (b) If the reviewing agent or agency determines that information in the application is not sufficient to allow
22 for review of the proposed subdivision, the reviewing agent or agency shall identify the insufficient information
23 in its notification.
24 (c) A determination that an application contains sufficient information for review as provided in this
25 subsection (2) does not ensure that the proposed subdivision will be approved or conditionally approved by the
26 governing body and does not limit the ability of the reviewing agent or agency or the governing body to request
27 additional information during the review process.
28 (3) The time limits provided in subsections (1 ) and (2) apply to each submittal of the application until:
29 (a) a determination is made that the application contains the required elements and sufficient information;
30 and
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1 (b) the subdivider or the subdivider's agent is notified.
2 (4) After the reviewing agent or agency has notified the subdivider or the subdivider's agent that an
3 application contains sufficient infornnation as provided in subsection (2), the governing body shall approve,
4 conditionally approve, or deny the proposed subdivision within 60 working days, based on its determination of
5 whether the application conforms to the provisions of this chapter and to the local regulations adopted pursuant
6 to this chapter, unless:
7 (a) the subdivider and the reviewing agent or agency agree to an extension or suspension of the review
8 period, not to exceed 1 year; or
9 (b) a subsequent public hearing is scheduled and held as provided in 76-3-615.
10 (5) If the governing body denies or conditionally approves the proposed subdivision, it shall send the
1 1 subdivider a letter, with the appropriate signature, that complies with the provisions of 76-3-620.
12 (6) (a) The governing body shall collect public comment submitted at a hearing or hearings regarding
1 3 the information presented pursuant to 76-3-622 and shall make any comments submitted or a summary of the
14 comments submitted available to the subdivider within 30 days after conditional approval or approval of the
15 subdivision application and preliminary plat.
16 (b) The subdivider shall, as part of the subdivider's application for sanitation approval, forward the
1 7 comments or the summary provided by the governing body to the:
18 (i) reviewing authority provided for in Title 76, chapter 4, for subdivisions that will create one or more
19 parcels containing less than 20 acres; and
20 (ii) local health department or board of health for proposed subdivisions that will create one or more
21 parcels containing 20 acres or more and less than 160 acres.
22 (7) (a) For a proposed subdivision that will create one or more parcels containing less than 20 acres,
23 the governing body may require approval by the department of environmental quality as a condition of approval
24 of the final plat.
25 (b) For a proposed subdivision that will create one or more parcels containing 20 acres or more, the
26 governing body may condition approval of the final plat upon the subdivider demonstrating, pursuant to 76-3-622,
27 that there is an adequate water source and at least one area for a septic system and a replacement drainfield
28 for each lot.
29 (8) (a) Review and approval, conditional approval, or denial of a proposed subdivision under this chapter
30 may occur only under those regulations in effect at the time a subdivision application is determined to contain
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1 sufficient information for review as provided in subsection (2).
2 (b) If regulations change during the review periods provided in subsections (1 ) and (2), the determination
3 of whether the application contains the required elements and sufficient information must be based on the new
4 regulations."
5
6 Section 5. Section 76-3-622, MCA, is amended to read:
7 "76-3-622. Water and sanitation information to accompany preliminary plat. (1 ) Except as provided
8 in subsection (2), the subdivider shall submit to the governing body or to the agent or agency designated by the
9 governing body the information listed in this section for proposed subdivisions that will include new water supply
10 or wastewater facilities. The information must include:
11 (a) a vicinity map or plan that shows:
12 (i) the location, within 1 00 feet outside of the exterior property line of the subdivision and on the proposed
1 3 lots, of:
14 (A) flood plains;
15 (B) surface water features;
16 (C) springs;
17 (D) irrigation ditches;
18 (E) existing, previously approved, and, for parcels less than 20 acres, proposed water wells and
1 9 wastewater treatment systems;
20 (F) for parcels less than 20 acres, mixing zones identified as provided in subsection (1 )(g); and
21 (G) the representative drainfield site used for the soil profile description as required under subsection
22 (1)(d);and
23 (ii) the location, within 500 feet outside of the exterior property line of the subdivision, of public water and
24 sewer facilities;
25 (b) a description of the proposed subdivision's water supply systems, storm water systems, solid waste
26 disposal systems, and wastewater treatment systems, including whether the water supply and wastewater
27 treatment systems are individual, shared, multiple user, or public as those systems are defined in rules published
28 by the department of environmental quality;
29 (c) a drawing of the conceptual lot layout at a scale no smaller than 1 inch equal to 200 feet that shows
30 all information required for a lot layout document in rules adopted by the department of environmental quality
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1 pursuant to 76-4-104;
2 (d) evidence of suitability for new onsite wastewater treatment systems that, at a minimum, includes:
3 (i) a soil profile description from a representative drainfield site identified on the vicinity map, as provided
4 in subsection (1 )(a)(i)(G), that complies with standards published by the department of environmental quality;
5 (ii) demonstration that the soil profile contains a minimum of 4 feet of vertical separation distance between
6 the bottom of the permeable surface of the proposed wastewater treatment system and a limiting layer; and
7 (ill) in cases in which the soil profile or other information indicates that ground water is within 7 feet of the
8 natural ground surface, evidence that the ground water will not exceed the minimum vertical separation distance
9 provided in subsection (1)(d)(ii);
10 (e) for new water supply systems, unless cisterns are proposed, evidence of adequate water availability:
1 1 (i) obtained from well logs or testing of onsite or nearby wells;
12 (ii) obtained from information contained in published hydrogeological reports; or
13 (iii) as otherwise specified by rules adopted by the department of environmental quality pursuant to
14 76-4-104;
15 (f) evidence of sufficient water quality in accordance with rules adopted by the department of
1 6 environmental quality pursuant to 76-4-1 04;
17 (g) a preliminary analysis of potential impacts to ground water quality from new wastewater treatment
18 systems, using as guidance rules adopted by the board of environmental review pursuant to 75-5-301 and
19 75-5-303 related to standard mixing zones for ground water, source specific mixing zones, and nonsignificant
20 changes in water quality. The preliminary analysis may be based on currently available information and must
21 consider the effects of overlapping mixing zones from proposed and existing wastewater treatment systems within
22 and directly adjacent to the subdivision. Instead of performing the preliminary analysis required under this
23 subsection (1)(g), the subdivider may perform a complete nondegradation analysis in the same manner as is
24 required for an application that is reviewed under Title 76, chapter 4.
25 (2) A subdivider whose land division is excluded from review under 76-4-1 25(2) is not required to submit
26 the information required in this section.
27 (3) A Except as provided in subsection (4), a governing body may not, through adoption of regulations,
28 require water and sanitation information in addition to the information required under this section unless the
29 governing body complies with the procedures provided in 76-3-51 1 .
30 (4) A subdivider who proposes an alternative to the public water system and public sewer system
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1 required by 76-3-504(2)(c) shall provide:
2 (a) information that shows by a preponderance of the evidence that the proposed alternative protects
3 public health and the environment:
4 (b) information that shows by a preponderance of the evidence that the proposed alternative can mitigate
5 harm to public health and the environment and is achievable under current technology;
6 (c) evidence that the conclusions asserted in subsections (4)(a) and (4)(b) are supported by
7 peer-reviewed scientific studies: and
8 (d) a comparison of the costs to the regulated community that are directly attributable to the requirement
9 for a public water system and a public sewer system versus the costs for the proposed alternative."
10 -END-
I
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1 BILL NO.
2 INTRODUCED BY
(Primary Sponsor)
3
4 BY REQUEST OF THE WATER POLICY COMMITTEE
5
6 A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE WATER PERMIT AND CHANGE IN
7 APPROPRIATION RIGHT PROCESS; CLARIFYING THE DEFINITION OF "CORRECT AND COMPLETE";
8 REQUIRING THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION TO ISSUE A
9 PRELIMINARY DETERMINATION ON A WATER RIGHT PERMIT OR ACHANGE IN APPROPRIATION RIGHT;
10 PROVIDING FOR OBJECTIONS TO BE HEARD IN AN INFORMAL HEARING; REQUIRING PERMIT OR
1 1 CHANGE IN APPROPRIATION RIGHT DECISIONS WITHIN 90 DAYS AFTER CLOSE OF ADMINISTRATIVE
12 RECORD; AND AMENDING SECTIONS 85-2-102, 85-2-307, 85-2-308, 85-2-309, 85-2-310, 85-2-401, AND
13 85-2-804. MCA."
14
15 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
16
17 Section 1. Section 85-2-102, MCA, is amended to read:
18 "85-2-102. Definitions. Unless the context requires otherwise, in this chapter, the following definitions
19 apply:
20 (1) "Appropriate" means:
21 (a) to divert, impound, or withdraw, including by stock for stock water, a quantity of water for a beneficial
22 use;
23 (b) in the case of a public agency, to reserve water in accordance with 85-2-316;
24 (c) in the case of the department offish, wildlife, and parks, to change an appropriation right to instream
25 flow to protect, maintain, or enhance streamflows to benefit the fishery resource in accordance with 85-2-436;
26 (d) in the case of the United States department of agriculture, forest service:
27 (i) instream flows and in situ use of water created in 85-20-1401 , Article V; or
28 (ii) to change an appropriation right to divert or withdraw water under subsection (1 )(a) to instream flow
29 to protect, maintain, or enhance streamflows in accordance with 85-2-320;
30 (e) temporary changes or leases for instream flow to maintain or enhance instream flow to benefit the
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1 fishery resource in accordance with 85-2-408;
2 (f) a use of water for aquifer recharge or mitigation as provided in 85-2-360 and 85-2-362; or
3 (g) a use of water for an aquifer storage and recovery project as provided in 85-2-368.
4 (2) "Aquifer recharge" means either the controlled subsurface addition of water directly to the aquifer or
5 controlled application of water to the ground surface for the purpose of replenishing the aquifer to offset adverse
6 effects resulting from net depletion of surface water.
7 (3) "Aquifer storage and recovery project" means a project involving the use of an aquifer to temporarily
8 store water through various means, including but not limited to injection, surface spreading and infiltration, drain
9 fields, or another department-approved method. The stored water may be either pumped from the injection well
10 or other wells for beneficial use or allowed to naturally drain away for a beneficial use.
1 1 (4) "Beneficial use", unless otherwise provided, means:
12 (a) a use of water for the benefit of the appropriator, other persons, or the public, including but not limited
13 to agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and
14 recreational uses;
15 (b) a use of water appropriated by the department for the state water leasing program under 85-2-141
1 6 and of water leased under a valid lease issued by the department under 85-2-1 41 ;
17 (c) a use of water by the department offish, wildlife, and parks through a change in an appropriation right
1 8 for instream flow to protect, maintain, or enhance streamflows to benefit the fishery resource authorized under
19 85-2-436;
20 (d) a use of water through a temporary change in appropriation right or lease to enhance instream flow
21 to benefit the fishery resource in accordance with 85-2-408;
22 (e) a use of water for aquifer recharge or mitigation as provided in 85-2-360 and 85-2-362; or
23 (f) a use of water for an aquifer storage and recovery project as provided in 85-2-368.
24 (5) "Certificate" means a certificate of water right issued by the department.
25 (6) "Change in appropriation right" means a change in the place of diversion, the place of use, the
26 purpose of use, or the place of storage.
27 (7) "Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.
28 (8) "Correct and complete" means that the information required to be submitted conforms to the standard
29 of substantial credible information and that all of the necessary parts of the form requiring the information have
30 been filled in with the required information for the department to begin evaluating the information.
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1 (9) "Declaration" means the declaration of an existing right filed with the department under section 8,
2 Chapter 452, Laws of 1 973.
3 (10) "Department" means the department of natural resources and conservation provided for in Title 2,
4 chapter 15, part 33.
5 (11) "Developed spring" means any artificial opening or excavation in the ground, however made,
6 including any physical alteration at the point of discharge regardless of whether it results in any increase in the
7 yield of ground water, from which ground water is sought or can be obtained or through which it flows under
8 natural pressures or is artificially withdrawn.
9 (12) "Existing right" or "existing water right" means a right to the use of water that would be protected
1 0 under the law as it existed prior to July 1 , 1 973. The term includes federal non-Indian and Indian reserved water
1 1 rights created under federal law and water rights created under state law.
12 (13) "Ground water" means any water that is beneath the ground surface.
13 (14) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of
14 abandonment under 85-2-226.
15 (15) "Mitigation" means the reallocation of surface water or ground water through a change in
1 6 appropriation right or other means that does not result in surface water being introduced into an aquifer through
1 7 aquifer recharge to offset adverse effects resulting from net depletion of surface water.
18 (16) "Municipality" means an incorporated city or town organized and incorporated under Title 7, chapter
19 2.
20 (17) "Permit" means the permit to appropriate issued by the department under 85-2-301 through 85-2-303
21 and 85-2-306 through 85-2-314.
22 (18) "Person" means an individual, association, partnership, corporation, state agency, political
23 subdivision, the United States or any agency of the United States, or any other entity.
24 (19) (a) "Political subdivision" means any county, incorporated city or town, public corporation, or district
25 created pursuant to state law or other public body of the state empowered to appropriate water.
26 (b) The term does not mean a private corporation, association, or group.
27 (20) "Salvage" means to make water available for beneficial use from an existing valid appropriation
28 through application of water-saving methods.
29 (21) "State water reservation" means a water right created under state law after July 1, 1973, that
30 reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of water
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1 throughout the year or at periods or for defined lengths of time.
2 (22) "Substantial credible information" means probable, believable facts sufficient to support a reasonable
3 legal theory upon which the department should proceed with the action requested by the person providing the
4 information.
5 (23) "Waste" means the unreasonable loss of water through the design or negligent operation of an
6 appropriation or water distribution facility or the application of water to anything but a beneficial use.
7 (24) "Water" means all water of the state, surface and subsurface, regardless of its character or manner
8 of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage effluent.
9 (25) "Water division" means a drainage basin as defined in 3-7-102.
10 (26) "Water judge" means a judge as provided for in Title 3, chapter 7.
1 1 (27) "Water master" means a master as provided for in Title 3, chapter 7.
12 (28) "Watercourse" means any naturally occurring stream or river from which water is diverted for
1 3 beneficial uses. It does not include ditches, culverts, or other constructed waterways.
14 (29) "Well" means any artificial opening or excavation in the ground, however made, by which ground
1 5 water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn."
16
17 Section 2. Section 85-2-307, MCA, is amended to read:
18 "85-2-307. Notice of application for permit or change in appropriation right. (1 ) Upon receipt of an
19 application for a permit or a change in appropriation right, the department shall publish notice of receipt of the
20 application on the department's website.
21 W(2) (a ) Upon Within 120 days of the receipt of a correct and complete application for a permit or change
22 in appropriation right, the department:
23 (i) may meet informallv with the applicant and the persons listed in subsection (2)(d) to discuss the
24 application:
25 (ii) shall make a written preliminary determination as to whether or not the application satisfies the
26 applicable criteria for issuance of a permit or change in appropriation right: and
27 (Hi) may include conditions in the written preiiminan/ determination to satisfy applicable criteria for
28 issuance of a permit or change in appropriation right.
29 (b) If the preliminary determination proposes to grant an application, the department shall prepare a
30 notice containing the facts pertinent to the application, including the summary of the preliminary determination
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1 and any conditions, and shall publish the notice once in a newspaper of general circulation in the area of the
2 source.
3 (c) If the preliminary determination proposes to deny an application, the process provided in 85-2-310
4 must be followed.
5 ib)(d) Before the date of publication, the department shall also serve the notice by first-class mail upon:
6 (i) an appropriator of water or applicant for or holder of a permit who, according to the records of the
7 department, may be affected by the proposed appropriation;
8 (ii) any purchaser under contract for deed, as defined in 70-20-115, of property that, according to the
9 records of the department, may be affected by the proposed appropriation; and
10 (ill) any public agency that has reserved waters in the source under 85-2-316.
1 1 fe)(e) The department may, in its discretion, also serve notice upon any state agency or other person
12 the department feels may be interested in or affected by the proposed appropriation.
13 ft^)(jQ The department shall file in its records proof of service by affidavit of the publisher in the case of
14 notice by publication and by its own affidavit in the case of service by mail.
15 (2)(3j The notice shatt must state that by a date set by the department^ (not less than 1 5 days or more
16 than 60 days after the date of publication)^ persons may file with the department written objections to the
17 application.
1 8 0)(4) The requirements of subsections (4) (2) and (2) (3) do not apply if the department finds, on the
19 basis of information reasonably available to it, that the appropriation as proposed in the application will not
20 adversely affect the rights of other persons."
21
22 Section 3. Section 85-2-308, MCA, is amended to read:
23 "85-2-308. Objections. (1 ) (a) An objection to an application under this chapter must be filed by the date
24 specified by the department under 85-2-307(2)(3].
25 (b) The objection to an application for a permit must state the name and address of the objector and facts
26 indicating that one or more of the criteria in 85-2-31 1 are not met.
27 (2) For an application for a change in appropriation rights, the objection must state the name and
28 address of the objector and facts indicating that one or more of the criteria in 85-2-320, if applicable, 85-2-402,
29 85-2-407, 85-2-408. and 85-2-436, if applicable, are not met.
30 (3) A person has standing to file an objection under this section if the property, water rights, or interests
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1 of the objector would be adversely affected by the proposed appropriation.
2 (4) For an application for a reservation of water, the objection must state the name and address of the
3 objector and facts indicating that one or more of the criteria in 85-2-316 are not met.
4 (5) An objector to an application under this chapter shall file a correct and complete objection on a form
5 prescribed by the department within the time period stated on the public notice associated with the application.
6 In order to assist both applicants and objectors, the department shall adopt rules in accordance with this chapter
7 delineating the components of a correct and complete objection. For instream flow water rights for fish, wildlife,
8 and recreation, the rules must require the objector to describe the reach or portion of the reach of the stream or
9 river subject to the instream flow water right and the beneficial use that is adversely affected and to identify the
10 point or points where the instream flow water right is measured and monitored. The department shall notify the
1 1 objector of any defects in an objection. An objection not corrected or completed within 1 5 days from the date of
1 2 notification of the defects is terminated.
13 (6) An objection is valid if the objector has standing pursuant to subsection (3), has filed a correct and
14 complete objection within the prescribed time period, and has stated the applicable information required under
1 5 this section and rules of the department."
16
17 Section 4. Section 85-2-309, MCA, is amended to read:
18 "85-2-309. Hearings on objections -jurisdiction. (1 ) If the department determines that an objection
19 to an application for a permit under 85-2-31 1 or change approval in appropriation right under 85-2-402 states a
20 valid objection, it shall hold a contested case hearing, pursuant to Title 2, chapter 4, part 6, on the objection within
21 60 days from the date set by the department for the filing of objections, hearing pursuant to 2-4-604 for the
22 objector to show cause before the department as to why the permit or change in appropriation right should not
23 be granted or should be granted with additional or different conditions after serving notice of the hearing by
24 first-class mail upon the applicant and the objector, unless the department certifies an issue to the district court
25 for determination by a water judge under subsection (2). The applicant shall participate in this hearing and retains
26 the burden of proof on the applicable criteria. The department may consolidate hearings if more than one
27 objection is filed to an application. The department shall allow for discovery. The department shall file in its
28 records proof of the service by affidavit of the department.
29 (2) (a) At any time prior to commencement or before the conclusion of a hearing as provided in
30 subsection (1 ), the department may in its discretion certify to the district court all factual and legal issues involving
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1 the adjudication or determination of the water rights at issue in the hearing, including but not limited to issues of
2 abandonment, quantification, or relative priority dates. Certified controversies must be given priority by a water
3 judge over all other adjudication matters.
4 (b) If the department fails to certify an issue as provided in this section after a timely request by a party
5 to the hearing, the department shall include its denial to certify as part of the record of the hearing.
6 (c) Upon determination of the issues certified to it by the department, the court shall remand the matter
7 to the department for further processing of the application under this chapter.
8 (3) Subsection (2) does not apply in the case of a matter considered at a hearing under this section
9 pursuant to 85-2-31 6 or 85-2-322."
10
11 Sections. Section 85-2-310, MCA, is amended to read:
12 "85-2-310. Action on application for permit or change in appropriation right. (1 ) The department
13 shall grant, deny, or condition an application for a permit or change in appropriation right in whole or in part within
14 120 days after the last date of publication of the notice of application if no objections have been received and
15 within 1 00 days if a hearing is held or objections have been received. I iowever, in either case the time may be
16 extended upon agreement of the applicant or, in those cases where an environmental impact statement must be
17 prepared or in other extraordinary cases, may be extended by not more than 60 days upon order of the
18 department. If the department orders the time extended, it shall serve a notice of the extension and the reasons
19 for the extension by first-class mail upon the applicant and each person who has filed an objection as provided
20 by 05-2-300. If the department proposes to deny an application for a permit or a change in appropriation right
21 under 85-2-307, unless the applicant withdraws the application, the department shall hold a hearing pursuant to
22 2-4-604 after serving notice of the hearing by first-class mail upon the applicant for the applicant to show cause
23 by a preponderance of the evidence as to why the permit or change in appropriation right should not be denied.
24 (2) A proposal to grant an application with or without conditions following a hearing on a proposal to deny
25 the application must proceed as if the department proposed to grant the application in its preliminary
26 determination pursuant to 85-2-307.
27 (3) If valid objections are not received on an application or if valid objections are unconditionally
28 withdrawn and the department preliminarily determined to grant the permit or change in appropriation right, the
29 department shall grant the permit or change in appropriation right as proposed in the preliminan/ determination
30 pursuant to 85-2-307.
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1 (4) If valid objections to an application are received and withdrawn with conditions stipulated with the
2 applicant and the department preliminarily determined to grant the permit or change in appropriation right, the
3 department may consider, without hearing, the proposed conditions and grant the permit or change in
4 appropriation right subject to conditions as necessary to satisfy applicable criteria.
5 (5) The department shall deny or grant with or without conditions a permit under 85-2-31 1 or a change
6 in appropriation right under 85-2-402 within 90 days after the administrative record is closed.
7 (2)(6} If an application is to appropriate water with a point of diversion, conveyance, or place of use on
8 national forest system lands, any application approved by the department is subject to any written special use
9 authorization reguired by federal law to occupy, use, or traverse national forest system lands for the purpose of
10 diversion, impoundment, storage, transportation, withdrawal, use, or distribution of the water applied for and any
1 1 terms, conditions, and limitations related to the use of water contained in any special use authorization reguired
12 by federal law.
13 (3)(Z} Except as provided in subsection (£) (6), an application may not be denied or approved in a
14 modified form or upon terms, conditions, or limitations specified by the department: unless the applicant is first
15 granted an opportunity to be heard. If an objection is not filed against the application but the department is of the
16 opinion that the application should be denied or approved in a modified form or upon terms, conditions, or
1 7 limitations specified by it, the department shall prepare a statement of its opinion and its reasons for the opinion.
1 8 The department shall serve a statement of its opinion by first-class mail upon the applicant, with a notice that the
1 9 applicant may obtain a hearing by filing a reguest within 30 days after the notice is mailed. The notice must further
20 state that the application will be modified in a specified manner or denied unless a hearing is reguested.
21 (4)(8j The department may cease action upon an application for a permit or change in appropriation right
22 and return it to the applicant when it finds that the application is not in good faith or does not show a bona fide
23 intent to appropriate water for a beneficial use. An application returned for either of these reasons must be
24 accompanied by a statement of the reasons for which it was returned, and for a permit application there is not
25 a right to a priority date based upon the filing of the application. Returning an application pursuant to this
26 subsection is a final decision of the department.
27 (^(9) For all applications filed after July 1 , 1 973, the department shall find that an application is not in
28 good faith or does not show a bona fide intent to appropriate water for a beneficial use if;
29 (a) an application is not corrected and completed as reguired by 85-2-302;
30 (b) the appropriate filing fee is not paid;
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1 (c) the application does not document:
2 (i) a beneficial use of water;
3 (ii) the proposed place of use of all water applied for;
4 (iii) for an appropriation of 4,000 acre-feet a year or more and 5.5 cubic feet per second or more, a
5 detailed project plan describing when and how much water will be put to a beneficial use. The project plan must
6 include a reasonable timeline for the completion of the project and the actual application of the water to a
7 beneficial use.
8 (iv) for appropriations not covered in subsection (4)(c)(iii) (9)(c)(iii). a general project plan stating when
9 and how much water will be put to a beneficial use; and
10 (v) if the water applied for is to be appropriated above that which will be used solely by the applicant or
11 if it will be marketed by the applicant to other users, information detailing:
12 (A) each person who will use the water and the amount of water each person will use;
13 (B) the proposed place of use of all water by each person;
14 (C) the nature of the relationship between the applicant and each person using the water; and
1 5 (D) each firm contractual agreement for the specified amount of water for each person using the water;
16 or
17 (d) the appropriate environmental impact statement costs or fees, if any, are not paid as required by
18 85-2-124."
19
20 Section 6. Section 85-2-401 , MCA, is amended to read:
21 "85-2-401 . Priority ~ recognition and confirmation of changes in appropriations issued after July
22 1,1 973. ( 1 ) As between appropriators, the first in time is the first in right. Priority of appropriation does not include
23 the right to prevent changes by later appropriators in the condition of water occurrence, such as the increase or
24 decrease of streamflow or the lowering of a water table, artesian pressure, or water level, if the prior appropriator
25 can reasonably exercise the water right under the changed conditions.
26 (2) Priority of appropriation made under this chapter dates from the filing of an application for a permit
27 with the department, except as othenwise provided in 85-2-301 through 85-2-303, 85-2-306, 85-2-310(4)
28 85-2-310(8). and 85-2-313.
29 (3) Priority of appropriation perfected before July 1 , 1 973, must be determined as provided in part 2 of
30 this chapter.
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1 (4) All changes in appropriation rights actions of the department after July 1 , 1 973, are recognized and
2 confirmed subject to this part and any terms, conditions, and limitations placed on a change in appropriation
3 authorization by the department."
4
5 Section 7. Section 85-2-804, MCA, is amended to read:
6 "85-2-804. Application ~ notice ~ objections ~ hearing. (1 ) Any appropriator proposing to divert from
7 the basin water allocated to Montana under the terms of the compact or divert from the basin unallocated
8 compact water within Montana shall file an application with the department. The application must state the name
9 and address of the applicant and facts tending to show that;
10 (a) the diversion and ultimate use of the water in Montana is for a beneficial use of water;
1 1 (b) the diversion and ultimate use of water will not adversely affect the water rights of other persons;
12 (c) the proposed means of diversion, construction, and operation are adequate;
13 (d) the diversion and ultimate use will not interfere unreasonably with other planned uses or
14 developments for which a water right has been established or a permit has been issued or for which water has
15 been reserved;
16 (e) the diversion and ultimate use of the water will not exceed the allocated share under the compact
17 of any of the signatory states;
18 (f) the diversion and ultimate use of the water are in the public interest of Montana; and
1 9 (g) the applicant intends to comply with the laws of the signatory states to the compact.
20 (2) Any appropriator proposing to divert from the basin water allocated to North Dakota or Wyoming
21 under the terms of the compact or divert from the basin unallocated compact water within North Dakota or
22 Wyoming shall file an application with the department. The application must state the name and address of the
23 applicant and facts tending to show that:
24 (a) the proposed means of diversion, construction, and operation are adequate;
25 (b) the diversion and ultimate use of the water will not exceed the allocated share under the compact
26 of any of the signatory states; and
27 (c) the applicant intends to comply with the compact.
28 (3) Notice of the proposed diversion must be given by the department in the same manner as provided
29 in subsections (1) and (2) of 85-2-307(1) through (3).
30 (4) An objection to an application must be filed by the date specified by the department in the notice.
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1 (5) The objector to an application under subsection (1) shall state his name and address and facts
2 tending to show that:
3 (a) the diversion and ultimate use of the water in Montana are not for a beneficial use of water;
4 (b) the property, rights, or interests of the objector would be adversely affected by the proposed diversion
5 or ultimate use of the water;
6 (c) the proposed means of diversion, construction, and operation are not adequate;
7 (d) the diversion and ultimate use will interfere unreasonably with the objector's planned uses or
8 development for which the objector has a water right, a permit, or a reserved water right;
9 (e) the diversion and ultimate use of the water will exceed the allocated share under the compact of any
10 signatory state; or
11 (f) the diversion and ultimate use of the water are not in the public interest of Montana.
12 (6) The objector to an application under subsection (2) shall state his name and address and facts
13 tending to show that:
14 (a) the property, rights, or interests of the objector would be adversely affected by the proposed diversion
1 5 or ultimate use of the water;
16 (b) the proposed means of diversion, construction, and operation are not adequate; or
1 7 (c) the diversion and ultimate use of the water will exceed the allocated share under the compact of any
18 signatory state.
19 (7) If the department receives an objection to an application, it shall hold a hearing on the application
20 within 60 days from the date set by the department for filing objections. Service of notice of the hearing must be
21 made by certified mail upon the applicant and the objector.
22 (8) The hearing shall be conducted under the contested case procedures of the Montana Administrative
23 Procedure Act in Title 2, chapter 4, part 6."
24 - END -
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1 BILL NO.
2 INTRODUCED BY
(Primary Sponsor)
3
4 BY REQUEST OF THE WATER POLICY COMMITTEE
5
6 A BILL FOR AN ACT ENTITLED: "AN ACT ESTABLISHING A GROUND WATER INVESTIGATION PROGRAM;
7 PROVIDING FOR PRIORITIZATION OF SUBBASINS BY THE GROUND WATER ASSESSMENT STEERING
8 COMMITTEE; ADDING A MEMBER OF THE DEVELOPMENT COMMUNITY TO THE GROUND WATER
9 ASSESSMENT STEERING COMMITTEE; PROVIDING A CONTINGENT APPROPRIATION FOR THE
10 PROGRAM; AMENDING SECTION 2-15-1523, MCA; AND PROVIDING AN EFFECTIVE DATE."
11
12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA;
13
14 NEW SECTION. Section 1. Ground water investigation program - advisory committee. (1) The
15 Montana bureau of mines and geology shall develop and implement a ground water investigation program for
1 6 the purpose of collecting and compiling ground water and aquifer data. The program shall gather data, compile
17 existing information, conduct field studies, and prepare a detailed hydrogeologic assessment report for each
1 8 subbasin. The program shall develop a monitoring plan and a hydrogeologic model for each subbasin for which
19 a report is prepared.
20 (2) The ground water assessment steering committee, established by 2-15-1523, shall prioritize
21 subbasins for investigation based upon current and anticipated growth of agriculture, industry, housing, and
22 commercial activity. Permit applications for the development of surface water or ground water and the timing of
23 adjudication of water rights may be taken into account in prioritizing subbasins.
24
25 Section 2. Section 2-15-1523, MCA, is amended to read:
26 "2-1 5-1 523. Ground water assessment steering committee. (1 ) There is a ground water assessment
27 steering committee consisting of an employee of each of the following state agencies that have responsibility for
28 ground water protection, management, or information. The member must be appointed by the head of the
29 respective state agency:
30 (a) the department of natural resources and conservation;
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1 (b) the department of environmental quality;
2 (c) the department of agriculture; and
3 (d) the Montana state library, natural resource information system.
4 (2) The ground water assessment steering committee may include representatives of the following
5 agencies and units of government with expertise or management responsibility related to ground water and
6 representatives of the organizations and groups specified in subsection (2)(h), who shall serve as ex officio
7 members:
8 (a) the legislative services division;
9 (b) the board of oil and gas conservation;
10 (c) the Montana bureau of mines and geology;
11 (d) a unit of the university system, other than the Montana bureau of mines and geology, appointed by
12 the board of regents of higher education for the Montana university system;
13 (e) a county government, appointed by an organization of Montana counties;
14 (f) a city, town, or city-county government, appointed by an organization of Montana cities and towns;
15 (g) each principal federal agency that has responsibility for ground water protection, management, or
1 6 research, appointed by the Montana head of the respective federal agency; and
17 (h) one representative of each of the following, appointed by the governor:
18 (i) agricultural water users;
19 (ii) industrial water users; and
20 (iii) a conservation or ecological protection organization; and
21 (iv) the development community.
22 (3) The ground water assessment steering committee shall elect a presiding officer from its voting
23 members.
24 (4) The Montana bureau of mines and geology shall provide staff support to the committee."
25
26 NEW SECTION. Section 3. Appropriation. There is appropriated $4.2 million from the state general
27 fund to the Montana bureau of mines and geology for developing and implementing the ground water
28 investigation program described in [section 1].
29
30 NEW SECTION. Section 4. Contingent voidness. If House Bill No. 2 is passed and approved and if
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1 it contains an appropriation of at least $4.2 million for the ground water investigation program described in
2 [section 1], then [section 3] is void.
3
4 NEW SECTION. Section 5. Codification instruction. [Section 1] is intended to be codified as an
5 integral part of Title 85, chapter 2, part 5, and the provisions of Title 85, chapter 2, part 5, apply to [section 1].
6
7 NEW SECTION. Section 6. Effective date. [This act] is effective July 1 , 2009.
8 - END -
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1 BILL NO.
2 INTRODUCED BY
(Primary Sponsor)
3
4 BY REQUEST OF THE WATER POLICY COMMITTEE
5
6 A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING FOR THE ISSUANCE OF A CERTIFICATE OF WATER
7 RIGHT FOR AQUATIC RESOURCE ACTIVITIES CARRIED OUT BY THE DEPARTMENT OF
8 TRANSPORTATION IN COMPLIANCE WITH AND AS REQUIRED BY THE FEDERAL CLEAN WATER ACT
9 OF 1 977; AMENDING SECTIONS 85-2-102, 85-2-306, AND 85-2-360, MCA; AND PROVIDING AN IMMEDIATE
10 EFFECTIVE DATE."
11
12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
13
14 Section 1. Section 85-2-102, MCA, is amended to read:
15 "85-2-102. Definitions. Unless the context requires otherwise, in this chapter, the following definitions
16 apply:
17 (1) "Appropriate" means:
18 (a) to divert, impound, or withdraw, including by stock for stock water, a quantity of water for a beneficial
19 use;
20 (b) in the case of a public agency, to reserve water in accordance with 85-2-316;
21 (c) in the case of the department offish, wildlife, and parks, to change an appropriation right to instream
22 flow to protect, maintain, or enhance streamflows to benefit the fishery resource in accordance with 85-2-436;
23 (d) in the case of the United States department of agriculture, forest service:
24 (i) instream flows and in situ use of water created in 85-20-1401 , Article V; or
25 (ii) to change an appropriation right to divert or withdraw water under subsection (1 )(a) to instream flow
26 to protect maintain, or enhance streamflows in accordance with 85-2-320;
27 (e) temporary changes or leases for instream flow to maintain or enhance instream flow to benefit the
28 fishery resource in accordance with 85-2-408;
29 (f) a use of water for aquifer recharge or mitigation as provided in 85-2-360 and 85-2-362; of
30 (g) a use of water for an aquifer storage and recovery project as provided in 85-2-368; or
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1 (h) in the case of the department of transportation, aquatic resource activities carried out in compliance
2 with and as required by the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387, as provided in
3 85-2-306(9).
4 (2) "Aquifer recharge" means either the controlled subsurface addition of water directly to the aquifer or
5 controlled application of water to the ground surface for the purpose of replenishing the aquifer to offset adverse
6 effects resulting from net depletion of surface water.
7 (3) "Aquifer storage and recovery project" means a project involving the use of an aquifer to temporarily
8 store water through various means, including but not limited to injection, surface spreading and infiltration, drain
9 fields, or another department-approved method. The stored water may be either pumped from the injection well
10 or other wells for beneficial use or allowed to naturally drain away for a beneficial use.
11 (4) "Beneficial use", unless otherwise provided, means:
12 (a) a use of waterfor the benefit of the appropriator, other persons, or the public, including but not limited
13 to agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and
14 recreational uses;
15 (b) a use of water appropriated by the department for the state water leasing program under 85-2-1 41
1 6 and of water leased under a valid lease issued by the department under 85-2-1 41 ;
17 (c) a use of water by the department offish, wildlife, and parks through a change in an appropriation right
18 for instream flow to protect, maintain, or enhance streamflows to benefit the fishery resource authorized under
19 85-2-436;
20 (d) a use of water through a temporary change in appropriation right or lease to enhance instream flow
21 to benefit the fishery resource in accordance with 85-2-408;
22 (e) a use of water for aquifer recharge or mitigation as provided in 85-2-360 and 85-2-362; of
23 (f) a use of water for an aquifer storage and recovery project as provided in 85-2-368; or
24 (q) a use of water by the department of transportation for aquatic resource activities carried out in
25 compliance with and as required by the federal Clean Water Act of 1977. 33 U.S.C. 1251 through 1387, as
26 provided in 85-2-306(9).
27 (5) "Certificate" means a certificate of water right issued by the department.
28 (6) "Change in appropriation right" means a change in the place of diversion, the place of use, the
29 purpose of use, or the place of storage.
30 (7) "Commission" means the fish, wildlife, and parks commission provided for in 2-15-3402.
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1 (8) "Correct and complete" means that the information required to be submitted conforms to the standard
2 of substantial credible information and that all of the necessary parts of the form requiring the information have
3 been filled in with the required information.
4 (9) "Declaration" means the declaration of an existing right filed with the department under section 8,
5 Chapter 452, Laws of 1973.
6 (10) "Department" means the department of natural resources and conservation provided for in Title 2,
7 chapter 15, part 33.
8 (11) "Developed spring" means any artificial opening or excavation in the ground, however made,
9 including any physical alteration at the point of discharge regardless of whether it results in any increase in the
10 yield of ground water, from which ground water is sought or can be obtained or through which it flows under
1 1 natural pressures or is artificially withdrawn.
12 (12) "Existing right" or "existing water right" means a right to the use of water that would be protected
1 3 under the law as it existed prior to July 1 , 1 973. The term includes federal non-Indian and Indian reserved water
14 rights created under federal law and water rights created under state law.
15 (13) "Ground water" means any water that is beneath the ground surface.
16 (14) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption of
1 7 abandonment under 85-2-226.
18 (15) "Mitigation" means the reallocation of surface water or ground water through a change in
1 9 appropriation right or other means that does not result in surface water being introduced into an aquifer through
20 aquifer recharge to offset adverse effects resulting from net depletion of surface water.
21 (16) "Municipality" means an incorporated city or town organized and incorporated under Title 7, chapter
22 2.
23 (17) "Permit" means the permit to appropriate issued by the department under 85-2-301 through 85-2-303
24 and 85-2-306 through 85-2-314.
25 (18) "Person" means an individual, association, partnership, corporation, state agency, political
26 subdivision, the United States or any agency of the United States, or any other entity.
27 (19) (a) "Political subdivision" means any county, incorporated city or town, public corporation, or district
28 created pursuant to state law or other public body of the state empowered to appropriate water.
29 (b) The term does not mean a private corporation, association, or group.
30 (20) "Salvage" means to make water available for beneficial use from an existing valid appropriation
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1 through application of water-saving methods.
2 (21) "State water reservation" means a water right created under state law after July 1, 1973, that
3 reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of water
4 throughout the year or at periods or for defined lengths of time.
5 (22) "Substantial credible information" means probable, believable facts sufficient to support a reasonable
6 legal theory upon which the department should proceed with the action requested by the person providing the
7 information.
8 (23) "Waste" means the unreasonable loss of water through the design or negligent operation of an
9 appropriation or water distribution facility or the application of water to anything but a beneficial use.
10 (24) "Water" means all water of the state, surface and subsurface, regardless of its character or manner
11 of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage effluent.
12 (25) "Water division" means a drainage basin as defined in 3-7-102.
1 3 (26) "Water judge" means a judge as provided for in Title 3, chapter 7.
14 (27) "Water master" means a master as provided for in Title 3, chapter 7.
15 (28) "Watercourse" means any naturally occurring stream or river from which water is diverted for
16 beneficial uses. It does not include ditches, culverts, or other constructed waterways.
17 (29) "Well" means any artificial opening or excavation in the ground, however made, by which ground
1 8 water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn."
19
20 Section 2. Section 85-2-306, MCA, is amended to read:
21 "85-2-306. Exceptions to permit requirements. (1 ) (a) Except as provided in subsection subsections
22 (1)(b) and (9)(a), ground water may be appropriated only by a person who has a possessory interest in the
23 property where the water is to be put to beneficial use and exclusive property rights in the ground water
24 development works.
25 (b) If another person has rights in the ground water development works, water may be appropriated with
26 the written consent of the person with those property rights or, if the ground water development works are on
27 national forest system lands, with any prior written special use authorization required by federal law to occupy,
28 use, or traverse national forest system lands for the purpose of diversion, impoundment, storage, transportation,
29 withdrawal, use, or distribution of water under the certificate.
30 (c) If the person does not have a possessory interest in the real property from which the ground water
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1 may be appropriated, the person shall provide to the owner of the real property written notification of the works
2 and the person's intent to appropriate ground water from the works. The written notification must be provided to
3 the landowner at least 30 days prior to constructing any associated works or, if no new or expanded works are
4 proposed, 30 days prior to appropriating the water. The written notification under this subsection is a notice
5 requirement only and does not create an easement in or over the real property where the ground water
6 development works are located.
7 (2) Inside the boundaries of a controlled ground water area, ground water may be appropriated only:
8 (a) according to a permit received pursuant to 85-2-508; or
9 (b) according to the requirements of an order issued pursuant to 85-2-507.
10 (3) (a) Outside the boundaries of a controlled ground water area, a permit is not required before
1 1 appropriating ground water by means of a well or developed spring with a maximum appropriation of 35 gallons
12 a minute or less, not to exceed 1 0 acre-feet a year, except that a combined appropriation from the same source
13 from two or more wells or developed springs exceeding this limitation requires a permit.
14 (b) (i) Within 60 days of completion of the well or developed spring and appropriation of the ground water
1 5 for beneficial use, the appropriator shall file a notice of completion with the department on a form provided by the
16 department through its offices.
17 (ii) Upon receipt of the notice, the department shall review the notice and may, before issuing a certificate
18 of water right, return a defective notice for correction or completion, together with the reasons for returning it. A
19 notice does not lose priority of filing because of defects if the notice is corrected, completed, and refiled with the
20 department within 30 days of notification of defects or within a further time as the department may allow, not to
21 exceed 6 months.
22 (Hi) If a notice is not corrected and completed within the time allowed, the priority date of appropriation
23 is the date of refiling a correct and complete notice with the department.
24 (c) A certificate of water right may not be issued until a correct and complete notice has been filed with
25 the department, including proof of landowner notification or a written federal special use authorization as
26 necessary under subsection (1). The original of the certificate must be sent to the appropriator. The department
27 shall keep a copy of the certificate in its office in Helena. The date of filing of the notice of completion is the date
28 of priority of the right.
29 (4) An appropriator of ground water by means of a well or developed spring first put to beneficial use
30 between January 1, 1962, and July 1, 1973, who did not file a notice of completion, as required by laws in force
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1 prior to April 14, 1981, with the county clerk and recorder shall file a notice of completion, as provided in
2 subsection (3), with the department to perfect the water right. The filing of a claim pursuant to 85-2-221 is
3 sufficient notice of completion under this subsection. The priority date of the appropriation is the date of the filing
4 of a notice, as provided in subsection (3), or the date of the filing of the claim of existing water right.
5 (5) An appropriation under subsection (4) is an existing right, and a permit is not required. However, the
6 department shall acknowledge the receipt of a correct and complete filing of a notice of completion, except that
7 for an appropriation of 35 gallons a minute or less, not to exceed 1 0 acre-feet a year, the department shall issue
8 a certificate of water right, if a certificate is issued under this section, a certificate need not be issued under the
9 adjudication proceedings provided for in 85-2-236.
10 (6) A permit is not required before constructing an impoundment or pit and appropriating water for use
1 1 by livestock if:
12 (a) the maximum capacity of the impoundment or pit is less than 1 5 acre-feet;
13 (b) the appropriation is less than 30 acre-feet a year;
14 (c) the appropriation is from a source other than a perennial flowing stream; and
15 (d) the impoundment or pit is to be constructed on and will be accessible to a parcel of land that is owned
16 or under the control of the applicant and that is 40 acres or larger.
17 (7) (a) Within 60 days after constructing an impoundment or pit, the appropriator shall apply for a permit
18 as prescribed by this part. Subject to subsection (7)(b), upon receipt of a correct and complete application for a
1 9 stock water provisional permit, the department shall automatically issue a provisional permit. If the department
20 determines after a hearing that the rights of other appropriators have been or will be adversely affected, it may
21 revoke the permit or require the permittee to modify the impoundment or pit and may then make the permit
22 subject to terms, conditions, restrictions, or limitations that it considers necessary to protect the rights of other
23 appropriators.
24 (b) If the impoundment or pit is on national forest system lands, an application is not correct and
25 complete under this section until the applicant has submitted proof of any written special use authorization
26 required by federal law to occupy, use, or traverse national forest system lands for the purpose of diversion,
27 impoundment, storage, transportation, withdrawal, use, or distribution of water under the permit.
28 (8) A person may also appropriate water without applying for or prior to receiving a permit under rules
29 adopted by the department under 85-2-1 13.
30 (9) (a) The department of transportation is not required to obtain a permit before appropriating ground
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1 water or diffuse surface water to conduct aquatic resource activities carried out in compliance with and as
2 required by the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387, if the appropriation is to restore
3 a functional wetland with the intent to substantially replicate the predisturbance conditions by filling in or removing
4 constructed ditches, drains, or similar structures that drained a historically functional wetland. The restored
5 wetland must be designed to not exceed the size of the oriqinal wetland.
6 (b) (i) Within 30 days of completion of the appropriation for beneficial use, the department of
7 transportation shall file a notice of completion with the department on a form provided by the department through
8 its offices.
9 (ii) Upon receipt of the notice, the department shall review the notice and may, before issuing a certificate
10 of water right, return a defective notice for correction or completion, together with the reasons for returning it. A
11 notice does not lose priority of filing because of defects if the notice is corrected, completed, and refiled with the
12 department within 30 days of notification of defects or within a further time as the department may allow, not to
13 exceed 6 months.
14 (iii) If a notice is not corrected and completed within the time allowed, the priority date of appropriation
15 is the date of refiling a correct and complete notice with the department.
16 (iv) The certificate of water right must document the proposed number of applied-for credits attached to
17 the wetland as assigned under the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387.
18 (c) A certificate of water right may not be issued until a correct and complete notice has been filed with
19 the department, including proof that the aquatic resource activities were carried out in compliance with and as
20 required by the federal Clean Water Act of 1 977. 33 U.S.C. 1 251 through 1 387. and proof of a possessory interest
21 of the place of use. The original of the certificate must be sent to the department of transportation. The
22 department shall keep a copy of the certificate in its office in Helena. The date of filing of the notice of completion
23 is the date of priority of the right.
24 (d) In order to define the nature and extent of the water right, the certificate of water right must state:
25 (i) the date of the priority of the right:
26 (ii) the purpose for which the water included in the right is used:
27 (iii) the place of use and description of the land to which the right is appurtenant;
28 (iv) the number of applied-for credits attached to the wetland as assigned under the federal Clean Water
29 Act of 1977. 33 U.S.C. 1251 through 1387, and certified to the department by the department of transportation.
30 (e) In addition to any remedy available to a certificate of water right holder, the issuance of a certificate
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1 of water right under this subsection (9) entitles the department of transportation to protect the credits set forth in
2 the certificate of water right against any appropriation of water in any subsequent permit or change authorization
3 proceeding conducted under this chapter. Proof of the diminishment of credits is prima facie proof that water is
4 not reasonably legally available under 85-2-31 1(1 )(a)(ii) and of adverse effect under 85-2-402 in any proceeding
5 conducted under this chapter.
6 (f) The purpose of a certificate of water right issued under this subsection (9) may not be changed."
7
8 Section 3. Section 85-2-360, MCA, is amended to read:
9 "85-2-360. Ground water appropriation right in closed basins. (1) An application, other than an
1 0 application for the purposes of 85-2-306(9). for a ground water appropriation right in a basin closed pursuant to
1 1 85-2-330, 85-2-336, 85-2-341 , 85-2-343, or 85-2-344 or administratively closed pursuant to 85-2-319 must be
12 accompanied by a hydrogeologic assessment that has been conducted pursuant to 85-2-361 to predict whether
1 3 the proposed appropriation right will result in a net depletion of surface water and must be accompanied by a plan
14 as provided in 85-2-362, if necessary.
15 (2) If the hydrogeologic assessment conducted pursuant to 85-2-361 predicts that the proposed
16 appropriation right will not result in a net depletion of surface water, the department shall proceed under the
1 7 criteria provided in 85-2-31 1 .
18 (3) (a) If the hydrogeologic assessment predicts that the proposed appropriation right will result in a net
19 depletion of surface water, the applicant shall analyze whether the net depletion results in an adverse effect on
20 a prior appropriator. If the applicant provides a correct and complete application, the department shall proceed
21 to process the application as provided in 85-2-363.
22 (b) If the applicant has used the water for the purpose of conducting the hydrogeologic assessment, the
23 applicant shall terminate the use of the water. Failure to terminate use of the water must result in a fine of not
24 more than $1 ,000 for each day of the violation.
25 (4) If the hydrogeologic assessment predicts that there will be net depletion as provided in subsection
26 (3)(a), the department may proceed to process the application pursuant to 85-2-363 if, in addition to other
27 applicable criteria, the applicant complies with 85-2-362.
28 (5) For the purposes of 85-2-360 through 85-2-362, the prediction of net depletion does not mean that
29 an adverse effect on a prior appropriator will occur or if an adverse effect does occur that the entire amount of
30 net depletion is the cause of the adverse effect. A determination of whether or not there is an adverse effect on
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1 a prior appropriator as the result of a new appropriation right is a determination that must be made by the
2 department based on the amount, location, and duration of the amount of net depletion that causes the adverse
3 effect relative to the historic beneficial use of the appropriation right that may be adversely affected.
4 (6) The priority date for an appropriation right that is granted to an entity whose permit application was
5 returned after April 11, 2006, and before May 3, 2007, because of the department's interpretation of a court
6 decision is the date of the initial application to the department."
7
8 NEW SECTION. Section 4. Effective date. [This act] is effective on passage and approval.
9 -END-
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1 BILL NO.
2 INTRODUCED BY
(Primary Sponsor)
4 BY REQUEST OF THE WATER POLICY COMMITTEE
5
6 A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING THAT A DISCHARGE PERMIT MUST BE OBTAINED,
7 IF NECESSARY, FOR AN AQUIFER RECHARGE PLAN OR A MITIGATION PLAN IN A CLOSED BASIN; AND
8 AMENDING SECTIONS 75-5-401 , 75-5-41 0, 85-2-362, AND 85-2-364, MCA."
9
10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
11
12 Section 1. Section 75-5-401 , MCA, is amended to read:
1 3 "75-5-401 . Board rules for permits ~ ground water exclusions. (1 ) Except as provided in subsection
14 (5), the board shall adopt rules:
15 (a) governing application for permits to discharge sewage, industrial wastes, or other wastes into state
16 waters, including rules requiring the filing of plans and specifications relating to the construction, modification,
17 or operation of disposal systems;
18 (b) governing the issuance, denial, modification, or revocation of permits. The board may not require a
1 9 permit for a water conveyance structure or for a natural spring if the water discharged to state waters does not
20 contain industrial waste, sewage, or other wastes. Discharge to surface water of ground water that is not altered
21 from its ambient quality does not constitute a discharge requiring a permit under this part if:
22 (i) the discharge does not contain industrial waste, sewage, or other wastes;
23 (ii) the water discharged does not cause the receiving waters to exceed applicable standards for any
24 parameters; and
25 (iii) to the extent that the receiving waters in their ambient state exceed standards for any parameters,
26 the discharge does not increase the concentration of the parameters.
27 (c) governing authorization to discharge under a general permit for storm water associated with
28 construction activity. These rules must allow an owner or operator to notify the department of the intent to be
29 covered under the general permit. This notice of intent must include a signed pollution prevention plan that
30 requires the applicant to implement best management practices in accordance with the general permit. The rules
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1 must authorize the owner or operator to discharge under the general permit on receipt of the notice and plan by
2 the department.
3 (2) The rules must allow the issuance or continuance of a permit only if the department finds that
4 operation consistent with the limitations of the permit will not result in pollution of any state waters, except that
5 the rules may allow the issuance of a temporary permit under which pollution may result if the department
6 ensures that the permit contains a compliance schedule designed to meet all applicable effluent standards and
7 water quality standards in the shortest reasonable period of time.
8 (3) The rules must provide that the department may revoke a permit if the department finds that the
9 holder of the permit has violated its terms, unless the department also finds that the violation was accidental and
1 0 unforeseeable and that the holder of the permit corrected the condition resulting in the violation as soon as was
11 reasonably possible.
12 (4) The board may adopt rules governing reclamation of sites disturbed by construction, modification,
13 or operation of permitted activities for which a bond is voluntarily filed by a permittee pursuant to 75-5-405,
1 4 including rules for the establishment of criteria and procedures governing release of the bond or other surety and
1 5 release of portions of a bond or other surety.
16 (5) Discharges of sewage, industrial wastes, or other wastes into state ground waters from the following
17 activities or operations are not subject to the ground water permit requirements adopted under subsections (1)
18 through (4):
19 (a) discharges or activities at wells injecting fluids associated with oil and gas exploration and production
20 regulated under the federal underground injection control program;
21 (b) disposal by solid waste management systems licensed pursuant to 75-10-221;
22 (c) individuals disposing of their own normal household wastes on their own property;
23 (d) hazardous waste management facilities permitted pursuant to 75-10-406;
24 (e) water injection wells, reserve pits, and produced water pits used in oil and gas field operations and
25 approved pursuant to Title 82, chapter 1 1 ;
26 (f) agricultural irrigation facilities;
27 (g) storm water disposal or storm water detention facilities;
28 (h) subsurface disposal systems for sanitary wastes serving individual residences;
29 (i) in situ mining of uranium facilities controlled under Title 82, chapter 4, part 2;
30 (j) mining operations subject to operating permits or exploration licenses in compliance with The Strip
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1 and Underground Mine Reclamation Act, Title 82, chapter 4, part 2, or the metal mine reclamation laws. Title 82,
2 chapter 4, part 3; or
3 (k) projects reviewed under the provisions of the Montana Major Facility Siting Act, Title 75, chapter 20.
4 (6) Notwithstanding the provisions of 75-5-301(4), mixing zones for activities excluded from permit
5 requirements under subsection (5) of this section must be established by the permitting agency for those activities
6 in accordance with 75-5-301 (4)(a) through (4)(c).
7 (7) Except for subsection (5)(h), the exemptions in subsection (5) do not apply to permits required
8 pursuant to 75-5-410.
9 ffl(8) Notwithstanding the exclusions set forth in subsection (5), any excluded source that the
1 0 department determines may be causing or is likely to cause violations of ground water quality standards may be
1 1 required to submit monitoring information pursuant to 75-5-602.
12 (8)(9] The board may adopt rules identifying other activities or operations from which a discharge of
13 sewage, industrial wastes, or other wastes into state ground waters is not subject to the ground water permit
14 requirements adopted under subsections (1 ) through (4).
1 5 f^(10] The board may adopt rules authorizing general permits for categories of point source discharges.
1 6 The rules may authorize discharge upon issuance of an individual authorization by the department or upon receipt
17 of a notice of intent to be covered under the general permit."
18
19 Section 2. Section 75-5-410, MCA, is amended to read:
20 "75-5-410. Water quality of return flows and discharges associated with requirements -- aquifer
21 recharge pfem or certain mitigation plans - minimum requirements. (1 ) (a) Except as provided in subsection
22 (1)(b). a A person who proposes to use sewage from a system requiring a water quality permit for the purposes
23 of aquifer recharge pursuant to 85-2-362 or plans to use sewage from a system requiring a water quality permit
24 as a return flow to minimize the amount of water necessary to offset adverse effects resulting from net depletion
25 of surface water through an aquifer recharge or mitigation plan pursuant to 85-2-362 shall obtain, if necessary,
26 a current permit pursuant to this chapter.
27 (b) The requirements of this section do not apply to the portion of a mitigation plan that consists of a
28 change in appropriation rights for instream flow filed pursuant to 85-2-402.
29 (2) The minimum treatment requirements for sewage systems subject to this section are the federal
30 requirements provided for in 40 CFR 133, and the system must meet, at a minimum, the requirements of level
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1 two treatment for the removal of nitrogen in the effluent.
2 (3) In addition to the minimum treatment requirements of subsection (2), sewage systems subject to this
3 section that are used for aquifer injection must meet the more stringent of either primary drinking water standards
4 pursuant to Title 75, chapter 6, or the nondegradation requirements pursuant to 75-5-303 at the point of
5 discharge.
6 (4) In addition to the minimum treatment requirements of subsection (2), sewage systems subject to this
7 section that are used for aquifer recharge must meet either primary drinkinq water standards pursuant to Title
8 75. chapter 6, or the nondegradation requirements pursuant to 75-5-303 at the point of discharge.
9 (4) The appropriate interim legislative committee shall review drinking water standards and effluent
10 treatment standards in other jurisdictions and recommend appropriate treatment standards for purposes of aquifer
11 recharge and mitigation.
12 (5) For the purposes of this section, "aquifer injection" means the use of a well to inject water directly
1 3 into an aquifer system without filtration through the geologic materials overlying the aquifer system for the purpose
14 of aquifer recharge or for an aquifer storage and recovery project and "aquifer recharge" and "mitigation" have
1 5 the meanings provided in 85-2-102."
16
17 Sections. Section 85-2-362, MCA, is amended to read:
18 "85-2-362. Aquifer recharge or mitigation plans in closed basins - minimum requirements. (1 ) An
19 applicant whose hydrogeologic assessment conducted pursuant to 85-2-361 predicts that there will be a net
20 depletion of surface water shall offset the net depletion that results in the adverse effect through a mitigation plan
21 or an aquifer recharge plan.
22 (2) A mitigation plan must include:
23 (a) where and how the water in the plan will be put to beneficial use;
24 (b) when and where, generally, water reallocated through exchange or substitution will be required;
25 (c) the amount of water reallocated through exchange or substitution that is required;
26 (d) how the proposed project or beneficial use for which the mitigation plan is required will be operated;
27 (e) evidence that an application for a change in appropriation right, if necessary, has been submitted;
28 (f) evidence of water availability; aft«J
29 (g) evidence of how the mitigation plan will offset the required amount of net depletion of surface water
30 in a manner that will offset an adverse effect on a prior appropriator; and
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1 (h) evidence that the appropriate water quality permits have been granted pursuant to Title 75, chapter
2 5. as required by 75-5-410 and 85-2-364.
3 (3) An aquifer recharge plan must include:
4 (a) evidence that the appropriate water quality related permits have been granted pursuant to Title 75,
5 chapter 5, and pursuant to as required by 75-5-41 0 and 85-2-364;
6 (b) where and how the water in the plan will be put to beneficial use;
7 (c) when and where, generally, water reallocated through exchange or substitution will be required;
8 (d) the amount of water reallocated through exchange or substitution that is required;
9 (e) how the proposed project or beneficial use for which the aquifer recharge plan is required will be
10 operated;
11 (f) evidence that an application for a change in appropriation right, if necessary, has been submitted;
12 (g) a description of the process by which water will be reintroduced to the aquifer;
13 (h) evidence of water availability; and
14 (i) evidence of how the aquifer recharge plan will offset the required amount of net depletion of surface
1 5 water in a manner that will offset any adverse effect on a prior appropriator.
16 (4) The department may not require an applicant, through a mitigation plan or an aquifer recharge plan,
17 to provide more water than the quantity needed to offset the adverse effects on a prior appropriator caused by
18 the net depletion.
19 (5) An appropriation right that relies on a mitigation plan or aquifer recharge plan to offset net depletion
20 of surface water that results in an adverse effect on a prior appropriator must be issued as a conditional permit
21 that requires that the mitigation plan or aquifer recharge plan must be exercised when the appropriation right is
22 exercised."
23
24 Section 4. Section 85-2-364, MCA, is amended to read:
25 "85-2-364. Department permit coordination ~ requirements for aquifer recharge or mitigation
26 plans. To ensure that the department and the department of environmental quality are coordinating their
27 respective permitting activities:
28 (1) an applicant for a new appropriation right pursuant to 85-2-360 that involves aquifer recharge or
29 mitigation shall provide the department with a copy of a relevant discharge permit if necessary; and
30 (2) the department may not grant a new appropriation right pursuant to 85-2-360 that involves aquifer
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1 recharge or mitiqation until the discharge permit, if necessary, has been obtained and presented to the
2 department."
3 -END-
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1 SENATE BILL NO. 22
2 INTRODUCED BY T. MURPHY
3 BY REQUEST OF THE ENVIRONMENTAL QUALITY COUNCIL AND THE WATER POLICY COMMITTEE
4
5 A BILL FOR AN ACT ENTITLED: "AN ACT CREATING THE WATER POLICY COMMITTEE; ALLOWING THE
6 WATER POLICY COMMITTEE TO STUDY ANY ISSUE RELATED TO WATER POLICY; MODIFYING THE
7 STATUTORY PROVISIONS REQUIRING THE ENVIRONMENTAL QUALITY COUNCIL TO STUDY WATER
8 POLICY ISSUES; REQUIRING THE WATER POLICY COMMITTEE TO COORDINATE WITH THE
9 ENVIRONMENTAL QUALITY COUNCIL AND ANY OTHER COMMITTEE TO AVOID DUPLICATION OF
10 EFFORTS; AND AMENDING SECTIONS 5-5-202 AND 85-2-105, MCA."
11
12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
13
14 NEW SECTION. Section 1. Water policy committee. There is a water policy committee. The
15 committee is treated as an interim committee for the purposes of 5-5-211 through 5-5-214. The committee shall:
16 ( 1 ) determine which water policy issues it examines;
17 (2) conduct interim studies as assigned pursuant to 5-5-217;
18 (3) subject to the provisions of 5-5-202(4), coordinate with the environmental quality council and other
19 interim committees to avoid duplication of efforts; and
20 (4) report its activities, findings, recommendations, and any proposed legislation as provided in 5-11-210.
21
22 Section 2. Section 5-5-202, MCA, is amended to read:
23 "5-5-202. Interim committees. (1) During an interim when the legislature is not in session, the
24 committees listed in subsection (2) are the interim committees of the legislature. They are empowered to sit as
25 committees and may act in their respective areas of responsibility. The functions of the legislative council,
26 legislative audit committee, legislative finance committee, environmental quality council, water policv committee,
27 and state-tribal relations committee are provided for in the statutes governing those committees.
28 (2) The following are the interim committees of the legislature:
29 (a) economic affairs committee;
30 (b) education and local government committee;
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1 (c) children, families, health, and human services committee;
2 (d) law and justice committee;
3 (e) energy and telecommunications committee;
4 (f) revenue and transportation committee; and
5 (g) state administration and veterans' affairs committee.
6 (3) An interim committee or the environmental quality council may refer an issue to another committee
7 that the referring committee determines to be more appropriate for the consideration of the issue. Upon the
8 acceptance of the referred issue, the accepting committee shall consider the issue as if the issue were originally
9 within its jurisdiction. If the committee that is referred an issue declines to accept the issue, the original committee
10 retains jurisdiction.
1 1 (4) If there is a dispute between committees as to which committee has proper jurisdiction over a subject,
1 2 the legislative council shall determine the most appropriate committee and assign the subject to that committee."
13
14 Sections. Section 85-2-105, MCA, is amended to read:
1 5 "85-2-1 05. Environmental quality council ~ water policy duties. ( 1 ) The environmental quality council
1 6 shall meet as often as necessary, including during the interim between sessions, to perform the duties specified
17 within this section.
1 8 (2) On a continuing basis, the environmental quality council shatt may:
1 9 (a) advise the legislature on the adequacy of the state's water policy and on important state, regional,
20 national, and international developments that affect Montana's water resources;
21 (b) oversee the policies and activities of the department, other state executive agencies, and other state
22 institutions as those policies and activities affect the water resources of the state;
23 (c) assist with interagency coordination related to Montana's water resources; and
24 (d) communicate with the public on matters of water policy as well as the water resources of the state.
25 (3) On a regular basis, the environmental quality council shall:
26 (a) analyze and comment on the state water plan required by 85-1-203, when filed by the department;
27 (b) analyze and comment on the report of the status of the state's renewable resource grant and loan
28 program required by 85-1-621, when filed by the department;
29 (c) analyze and comment on water-related research undertaken by any state agency, institution, college,
30 or university;
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1 (d) analyze, verify, and comment on the adequacy of and information contained in the water information
2 system maintained by the natural resource information system under 90-15-305; and
3 (e) report to the legislature as provided in 5-11-210.
4 (4) The legislative services division shall provide staff assistance to the environmental quality council
5 to carry out its water policy duties."
6
7 NEW SECTION. Section 4. Codification instruction. [Section 1] is intended to be codified as an
8 integral part of Title 5, chapter 5, part 2, and the provisions of Title 5, chapter 5, part 2, apply to [section 1].
9 -END-
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150 copies of this public document were published at an estimated
cost of $10.02 per copy, for a total cost of $1,503.00, which includes
$1,503.00 for printing and $0.00 for distribution.