HomeMy WebLinkAboutWater Supply and Water Rights Topical Discussion
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brian Heaston, Project Engineer
Rick Hixson, City Engineer
Debbie Arkell, Director of Public Services
Chuck Winn, Assistant City Manager
Chris Kukulski, City Manager
SUBJECT: Water Supply & Water Rights Topical Discussion
MEETING DATE: November 1, 2010
AGENDA ITEM TYPE: Work Session Policy Discussion
BACKGROUND: The purpose of this meeting is to review and discuss topics concerning
water supply and water rights as they relate to the future development of source supply for the
City of Bozeman. The goal of this meeting is to inform the Commission on previously identified
subjects of concern related to water rights abandonment, groundwater development, and water
conservation in preparation for subsequent policy guiding decisions on this intensely complex
matter of new source water development. The Engineering Department will lead the discussion
in an open format covering the identified topics in this memorandum. Messrs David Schmidt
and Cal Erb, water rights specialist and water rights attorney respectively, will be present at the
session to inform the Commission on specific matters of their expertise.
Following is an overview narrative of discussion points and related Appendices.
Topic A: Water Supply Planning History and Supply Deficiency Overview
Water facility planning occurs periodically to maintain orderly development of critical
water infrastructure and to sustain healthy capital/operating funds in response to growth-
related impacts to the city’s water supply and distribution systems. This planning is well
documented as exhibited by: Water Facility Plans (1997, 2005), Water Conservation Study
(2002), Sourdough Dam Feasibility Study (1999), Water Rate and Impact Fee Studies, etc.
This list is not intended to be all-inclusive, but merely demonstrative of relatively recent
planning efforts.
The current adopted Water Facility Plan, completed in 2005 by Allied Engineering,
provides a comparative analysis of projected water demand versus available water supply.
Two scenarios are examined over the 20-year planning horizon of the document: water
demand vs. water rights (i.e. water legally available to the city); and water demand vs.
reliable yield (i.e. water physically available to the city in a statistically dry water year).
Graphs comparing these scenarios were included in the plan and are included with this
memo in Appendix A.
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Projected water demand is a strong function of growth rate. Thus, with the recent
economic and building slow-down, the “critical mass” point wherein actual water demand
eclipses reliable yield extends to a future date uncertain. When this point occurs is directly
attributed to actual growth rates experienced over the next 10 to 20 years and is difficult, if
not impossible, to predict with certainty. What is known is this: a new source supply is
necessary to support future growth of the City of Bozeman and the acquisition of new
source water, in whatever form(s) it may take, will be a long, arduous and contentious
process.
Topic B: Water Conservation
The City Commission convened a task force to compliment the preparation of the 1999
Sourdough Dam Feasibility Study. Formal task force recommendations are attached to this
memorandum in Appendix B. One such recommendation was that the city create and
implement a water conservation plan as a conjunctive effort paramount in garnering
support for development of a new water source. Aquacraft, Inc. of Boulder, Colorado
completed said study in 2002. The study established baseline water demands to analyze the
efficacy of various conservation scenarios. Ultimately, the plan recommended a combined
implementation approach focusing on interior and exterior end-uses of water across all
customer classes. The plan has served as an informal guiding document, though it has
never been formally recognized by the City Commission as an established policy
instrument.
When viewed in light of 2010 context, several questionable study methods and findings are
observed. Foremost, the study does not contemplate nor forecast an imminent water supply
shortage within the 30-year planning horizon of the document. This directly contradicts the
Commission-recognized analysis of the 2005 Water Facility Plan provided in Appendix A.
Furthermore, assumptions used in the capital models developed in the study are not valid in
2010. These models and associative recommendations were derived on the assumption that
large treatment plant capitalizations (i.e. a new Sourdough treatment plant and upgraded
Lyman plant) could be deferred through aggressive implementation of conservation
scenarios. As the Commission is aware, Lyman plant upgrades have been completed, and a
new Sourdough plant is anticipated to begin construction in the coming 2011 season.
Now is the appropriate time to revisit the conservation study and update it appropriately in
an integrated fashion with the city’s new water supply project. The updated study should
also focus on establishing a new consumptive-use baseline and provide a user-friendly
spreadsheet and protocol for the city to diligently track total water use by customer class on
a quarterly basis. These reports would serve many purposes, most important being able to
tabulate projected water shortage horizons in a defensible manner as well as track efficacy
of implemented conservation measures.
Topic C: Water Rights - Abandonment
Statutory measures for water rights abandonment are found in §85-2-404(2) M.C.A.,
reading: “If an appropriator ceases to use all or part of an appropriation right or ceases
using the appropriation right according to its terms and conditions for a period of 10
successive years and there was water available for use, there is a prima facie presumption
that the appropriator has abandoned the right for the part not used.”
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The Montana Supreme Court has determined that an extended period of nonuse of a water
right raises a rebuttable presumption of an intention to abandon with the burden of proof
resting on the non-user of the water right.
The Bozeman Creek Reservoir Company (hereafter Company) holds two storage rights on
Sourdough Creek, the first being for municipal use, the second for irrigation. The City of
Bozeman is majority stockholder in company shares and the Company is a corporation in
good standing with the Montana Secretary of State. Both Company rights were timely filed
with DNRC under a water rights order issued in 1979 by the Montana Supreme Court,
requiring all persons claiming existing water rights to file with the DNRC by January 1,
1982.
Evidence rebutting the presumption of abandonment of the Company’s storage rights may
include the following:
• Minutes from City Commission meeting discussing breaching the old Mystic Lake
dam and the future of Mystic Lake.
• Minutes from Company meetings.
• Documentation of meetings, correspondence, phone conversations, etc with the
Montana Dam Safety Program.
• Newspaper articles about a replacement dam.
• Engineering and technical studies about a replacement dam.
The city has demonstrated continued interest in rebuilding a dam on Sourdough Creek
since the breach of Mystic Lake occurred in 1985. Discussion regarding intricacies of
abandonment as related to statute and case-law will be lead by Messrs David Schmidt and
Cal Erb.
‘Water Rights in Montana’, an overview pamphlet published by the DNRC in November
2009 is included with this memorandum as Appendix C.
Topic D: Groundwater Development
Development of groundwater requires physical and legal availability of water for an
intended beneficial use. Physical availability of groundwater in the shallow alluvial aquifer
underlying large regions of the Gallatin Valley is well documented. However, the
particular characteristics of the alluvial aquifer vary spatially requiring site specific analysis
of aquifer parameters through drilling and pumping of test wells. The 1999 Sourdough
Dam Feasibility Study recommended further analysis of aquifer yields in the vicinity of
Gallatin Gateway, whereas the 2005 Water Facility Plan suggested areas northwest of
Bozeman in the vicinity of Costco for evaluation.
Another opportunity for physically available groundwater exists with the Madison Aquifer,
a deep limestone/dolomite formation which is distinct and confined from the shallow
alluvial-valley aquifer. The Madison Aquifer expresses itself in several large surface
springs in the central Montana region, notably Giant Springs and Big Springs. Karin Kirk
in her MSU graduate thesis, partially funded by the city and completed in 2002, conducted
an evaluation of the Madison Aquifer as a potential public water supply. The study
focused on an area near Mystic Lake in the Sourdough drainage as a potential well site. In
order to determine the yield and aquifer characteristics in this area, a test well
approximately 2,000 feet deep is necessary.
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The crux of groundwater development in a closed basin is legal availability of the water.
To appreciate the myriad issues surrounding groundwater development, an understanding
of the history of the Upper-Missouri basin closure and landmark “Smith River decision” of
the Montana Supreme Court (MT Trout Unlimited et al v. MT DNRC, 2006 MT 72 (Apr.
11, 2006)) is necessary. Included with this memorandum in Appendix D is an article
originally published in the Public Land & Resources Law Review (27 Pub. Land &
Resources L. Rev. 76 (2006)) which provides an excellent primer on the issues of legal
access and physical availability. In a nutshell, the ruling clearly established that
groundwater and surface water are indistinguishable expressions of a common body of
source water. Thus, in a closed basin, net depletion of water from the hydrologic system
cannot occur by definition.
Also included with Appendix D is House Bill No. 831 (the Montana Legislature’s response
to the Smith River ruling), which passed April 2007, and DNRC’s New Appropriations
Rules (their generative response to HB 831). The ratio of applications received by DNRC
versus those approved for new appropriation is essentially zero since HB 831 and DNRC’s
new appropriations rules became effective. This has created a sense of futility and
vociferous frustration of DNRC from applicants seeking new appropriations, be them in a
closed basin or not.
Detailed discussion on the ramifications and implications of water rights in closed basins,
legal availability of groundwater, HB 831, and DNRC’s rules for new appropriations will
be lead by Messrs David Schmidt and Cal Erb.
Documents Attached:
Appendix A
• 2005 Water Facility Plan, Demand vs. Supply graphs
Appendix B
• 1999 Sourdough Dam Feasibility Study Task Force Recommendations
Appendix C
• Water Rights in Montana, November 2009
Appendix D
• Ziemer, Kendy and Wilson (2006). Ground Water Management in Montana: On the
Road from Beleaguered to Science-Based Policy. Public Land & Resources Law
Review, Vol. 27, pgs 76-97.
• House Bill No. 831
• DNRC Water Rights Bureau, New Appropriations Rules Updated Jan 1, 2010.
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November 2009
This document has been updated to reflect Montana statute and rules as of November 2009.
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Montana Department of Natural
Resources and Conservation
P.O. Box 201601
Helena, MT 59620-1601
Phone (406) 444-6610
http://dnrc.mt.gov
Legislative Environmental
Quality Council
P.O. Box 201704
Helena, MT 59620-1704
Phone (406) 444-3742
http://leg.mt.gov/eqc
Montana University System Water Center
101 Huffman Building
Montana State University-Bozeman
Bozeman, MT 59717-2690
Phone (406) 994-6690
http://watercenter.montana.edu
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Acknowledgment
Water Rights in Montana is a compilation of two previous citizen
guides discussing Montana water rights—the Montana Department of
Natural Resources and Conservation’s Water Rights in Montana and
the Environmental Quality Council’s and Montana University System
Water Center’s Wading into Montana Water Rights. We would like to
thank the authors of the latter guide, Michelle Bryan and Professor
Gerald L. Westesen, for their significant contribution to this publication.
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Disclaimer
Water Rights in Montana should not be used as a legal reference.
When in doubt, always refer to the MONTANA CODE ANNOTATED or the
Department of Natural Resources and Conservation ADMINISTRATIVE
RULES OF MONTANA.1 When making any legal judgments on the
adequacy or completeness of procedure, always consult your own
legal counsel.
1 Terms that are capitalized and underlined are further defined or
explained in the glossary at the end of the publication.
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Table of Contents
Acknowledgment ....................................................................................... i
Disclaimer.................................................................................................iii
Background of Water Rights in Montana..................................................1
Montana Water Use Act............................................................................2
Water Rights Administration .....................................................................3
Adjudication of Existing Water Rights.......................................................4
Historical Evolution .............................................................................4
Who Administers the Adjudication Process?......................................6
How Is the Order of Adjudication Determined?...................................7
How Does the Adjudication Process Work? .......................................8
Decrees ..............................................................................................9
Examination........................................................................................9
Temporary Preliminary Decree...........................................................9
Preliminary Decree ...........................................................................10
Public Notice of the Decree ..............................................................10
Objections.........................................................................................10
Hearing .............................................................................................10
Resolving Issue Remarks .................................................................12
Final Decree .....................................................................................13
What Is the Current Status of the Adjudication Process?.................14
Types of Water Rights............................................................................14
Water Rights Prior to 1973................................................................14
Other Water Rights...........................................................................15
Federal Reserved and Indian Reserved Water Rights .....................15
Status of Water Compacts in Montana.............................................16
New Appropriations of Water..................................................................21
Surface Water...................................................................................22
Ground Water ...................................................................................22
Replacement Wells...........................................................................23
Redundant Wells ..............................................................................24
Replacement Point of Diversion........................................................24
Special Ground Water Circumstances..............................................25
Leasing Water Rights for Road Construction....................................27
How the Permit System Works...............................................................27
Temporary Permits.................................................................................33
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Interim Permits........................................................................................34
Changes in Water Use............................................................................34
Temporary Change in Appropriation Water Right.............................36
Salvaged Water ................................................................................36
Ownership of a Water Right....................................................................37
Water Right Distribution..........................................................................38
Dispute Resolution and Enforcement.....................................................38
Water Reservations................................................................................39
Instream Use and Leasing......................................................................40
Controlled Ground Water Areas .............................................................41
Yellowstone Controlled Ground Water Area.....................................44
Closure of Highly Appropriated Basins...................................................45
Legislative Closures..........................................................................45
Administrative Rule Closures............................................................45
Compact Closures ............................................................................47
Sources of Information............................................................................50
DNRC Offices ...................................................................................50
Montana Water Court........................................................................51
Environmental Quality Council & Water Policy Interim Committee...52
Montana University System Water Center........................................52
Other Information Sources................................................................52
Water Conversion Table...................................................................53
Water Right Forms and Fees............................................................53
Glossary of Terms.............................................................................56
Figures and Tables
Claim Examination Flow Chart ..............................................................11
Status of Water Compacts in Montana...................................................16
Flowchart of Closed Basin Ground Water Permits ................................26
Flowchart of Application Process ...........................................................28
Water Quantity and Water Quality Closures ..........................................43
Water Right Forms and Fees .................................................................53
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Background of Water Rights in Montana
Few elements reach so deeply into the human existence as water. Our
economic endeavors, recreational excursions, and very well-being
depend on the quality and abundance of this resource. But who can
use water? How much can they use? At what time? What uses are
legal? Such questions lead into the realm of water rights—a blend of
laws, regulations, and traditions that govern the distribution of
Montana’s water among its many users.
Montana waters, in all their varied forms and locations, belong to the
state. This ownership, however, exists on behalf of all state citizens.
The Montana CONSTITUTION explains that:
[a]ll surface, underground, flood, and atmospheric waters within
the boundaries of the state are the property of the state for
the use of its people . . . (Article IX, section 3(3)) (emphasis
added).
Because Montana waters belong to the state, water rights holders do
not own the water itself. Instead, they possess a right to use the
water, within state guidelines. Accordingly, Montana law notes:
[a] “water right” means the right to use water . . . (section 85-
2-422, MCA) (emphasis added).
Water rights in Montana are guided by the prior appropriation doctrine,
that is, first in time is first in right. A person’s right to use a specific
quantity of water depends on when the use of water began. The first
person to use water from a source established the first right; the
second person could establish a right to the water that was left, and so
on. During dry years, the person with the first right has the first chance
to use the available water to fulfill that right. The holder of the second
right has the next chance. Water users are limited to the amount of
water that can be beneficially used. In Montana, the term “beneficial
use” means, generally, a use of water for the benefit of the
appropriator, other persons, or the public, including but not limited to
agricultural (including stock water), domestic, fish and wildlife,
industrial, irrigation, mining, municipal, power, and recreational uses.
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Other beneficial uses include instream flow to benefit fish, AQUIFER
RECHARGE, MITIGATION, or an AQUIFER STORAGE AND RECOVERY
PROJECT.
The water rights process—with all its discrepancies and conflicts—was
a major topic at the 1972 Montana Constitutional Convention.
Policymakers recognized the overwhelming need for improved
recordkeeping and regulation. First, the Convention incorporated all
past water rights into the new Montana Constitution:
[a]ll existing [water] rights . . . are hereby
recognized and confirmed (Article IX, section
3(1)).
EXISTING RIGHTS included any right originating before July 1, 1973.
Whether a use right, DECREED WATER RIGHT, or filed right, each was
now equally VALID. By recognizing all rights, the state upheld the prior
appropriation doctrine and over a hundred years of PRECEDENT.
To strengthen state supervision, the Convention next charged the
Montana Legislature with providing:
. . . the administration, control, and regulation of water rights
and
. . . a system of centralized records . . . (Article IX, section
3(4)).
The Legislature responded by enacting Title 85, chapter 2, MCA.
Montana Water Use Act
The provisions of Title 85, chapter 2, MCA, commonly referred to as
the Montana Water Use Act, were the most comprehensive change in
Montana’s water rights laws in the state’s history. The Act (effective
July 1, 1973) changed the water rights administration significantly in a
number of ways.
1. All water rights existing prior to July 1, 1973, are to be finalized
through a statewide ADJUDICATION process in state courts.
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2. A PERMIT system was established for obtaining water rights for
new or additional water developments.
3. An authorization system was established for changing water
rights.
4. A centralized records system was established. Prior to 1973,
water rights were recorded, but not consistently, in county
courthouses throughout the state.
5. A system was provided to reserve water for future
CONSUMPTIVE USES and to maintain minimum INSTREAM FLOWS
for water quality and fish and wildlife.
Water Rights Administration
Seven state entities play a role in administering Montana water rights
and the statewide water adjudication: the Montana Department of
Natural Resources and Conservation (DNRC), the Montana Water
Court, the District Courts, the Reserved Water Rights Compact
Commission, the Attorney General, and two legislative committees, the
Water Policy Interim Committee and the Environmental Quality Council
(EQC).
The DNRC administers the portions of the Montana Water Use Act that
relate to water uses after June 30, 1973. The DNRC trains water
commissioners and recommends water measuring techniques on
streams or stream reaches that have an enforceable decree.
The DNRC maintains a central records system for all permits,
changes, certificates, and water reservations granted after June 30,
1973, and for all existing water right claims filed as part of the
statewide adjudication.
In its examination of existing rights, the agency provides technical
information and assistance to the Water Court, which is responsible for
adjudicating claims for water rights that existed before July 1, 1973.
The Water Court decides any legal issues certified to the District Court
by the DNRC that may arise in connection with processing permit or
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change applications or in disputes filed in the District Courts. A District
Court can issue injunctive relief while it certifies water rights issues to
the Water Court for a decision.
The Attorney General has the authority to intervene, on behalf of the
state, in the adjudication of water right claims that are being decreed
by the Water Court (section 85-2-248, MCA).
The EQC contributes policy oversight to the administration of state
water rights. Among its roles, the EQC:
y advises and updates the Legislature on water rights
developments
y oversees policies of the DNRC and other institutions
that deal with state water; and;
y communicates with the public on matters of water policy
(section 85-2-105, MCA).
The passage of Senate Bill No. 22 by the 2009 Legislature started a
new chapter in the study of Montana water policy. The bill created a
permanent Water Policy Interim Committee (WPIC). As part of its
mission, the WPIC shall coordinate with the Environmental Quality
Council (EQC) to avoid duplication of efforts.
Adjudication of Existing Water Rights
Historical Evolution
Montana first ventured into organizing existing water rights by
conducting an adjudication in the Powder River Basin. Initiated in
1973, the burden of collecting and investigating CLAIMS fell to the
DNRC. Investigations often involved onsite visits, aerial photo
interpretations, and interviews. In 1979, after 6 years of intensive field
work, completion of the first BASIN appeared distant. Decidedly, to
adjudicate its remaining 84 basins in a timely manner, Montana
needed a more efficient system.
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Consequently, the 1979 Legislature passed Senate Bill No. 76 (SB
76), amending the adjudication procedures originally established by
the Montana Water Use Act. Rather than adjudicating existing water
rights one basin at a time, the Legislature opted for a comprehensive
general adjudication of the entire state. Existing water rights are those
that originated legally before July 1, 1973, and are often referred to as
pre-1973 water rights.
SB 76 established two revolutionary entities for western water law. The
Montana Water Court is a specialized court that has sole jurisdiction
over the adjudication of pre-1973 water right claims. The other entity is
the Montana Reserved Water Rights Compact Commission. The
Compact Commission is responsible for negotiating on behalf of the
state with the federal and tribal entities to quantify the federal and tribal
reserved water rights.
When SB 76 was passed, many people thought the process would be
finished in less than 15 years. For a variety of reasons, the
adjudication is still not complete. During the 2003-2004 interim
between legislative sessions, the EQC studied Montana’s water
adjudication process and progress. The EQC determined two issues
needed to be addressed. The first issue was timeliness and the
second was ensuring the decrees that are the result of the adjudication
process are as accurate as possible. The EQC determined that the
estimated timeframe to complete the adjudication was too long.
Montana had already spent 25 years on the adjudication and it was
estimated that it would take another 30-40 years to complete.
The result of the EQC study was House Bill No. 22 (HB 22), which was
requested and supported by the EQC. The sole purpose of this bill was
to develop a funding source for the adjudication and to establish
statutory deadlines for completion. All claims must be examined by
June 30, 2015.
As passed in 2005, HB 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 to be required to pay
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the fee. However, the 2007 Legislature repealed the fee provisions of
HB 22 and transferred $25 million in general fund revenue to the water
adjudication account to replace fee revenue and keep the process on
the 2015 timeline.
House Bill No. 782 also passed in 2005. The measure clarifies that
that ISSUE REMARKS added to water right claims must be finally
resolved before the issuance of a final decree.
Who Administers the Adjudication Process?
MONTANA WATER COURT
The Montana Water Court is divided into four water divisions according
to the geographical drainages of the state:
y the Lower Missouri River;
y the Upper Missouri River;
y the Yellowstone River; and
y the Clark Fork River (sections 3-7-101 and 3-7-102,
MCA).
WATER JUDGES
Division Judges. Within each division, a Water Judge presides,
appointing WATER MASTERS to assist in the adjudication process. A
Water Judge must be a District Court Judge (current or retired) from a
DISTRICT within the water division (sections 3-7-201 and 3-7-301,
MCA). Water Judges cannot preside over water claims occurring
beyond the boundaries of their divisions (section 3-7-501, MCA).
Chief Water Judge. The Chief Justice of the Montana Supreme Court
appoints a Chief Water Judge to supervise all division Water Judges
and guide the statewide adjudication. Ultimately, the Montana
Supreme Court monitors all Water Judges, water masters, and Water
Court personnel (sections 3-7-204 and 3-7-221, MCA).
It is at the Chief Water Judge’s discretion to assign cases to the
division judges. The division judges have historically been used to a
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limited extent with cases being assigned in instances where the Chief
Water Judge might have a conflict or other similar situation. Currently,
the Chief Water Judge handles a majority of the cases.
DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
The DNRC and its regional offices assist the Water Court throughout
the adjudication process by:
y providing information and technical support to the
Water Judges;
y providing information and technical support to persons
filing claims; and
y upon the request of a Water Judge, conducting field
investigations of claims (section 85-2-243(1), MCA).
RESERVED WATER RIGHTS COMPACT COMMISSION (RWRCC)
Unique circumstances arise when federal entities or Indian tribes
assert reserved water claims in a basin. Separate from general
adjudication, Montana may form a COMPACT with the entity or tribe. In
such cases, the RWRCC negotiates on behalf of the Governor (section
85-2-701, MCA).
How Is the Order of Adjudication Determined?
Each BIENNIUM, the Montana Legislature may give priority to specific
basins within each water division. The Water Judges and the DNRC
conduct adjudication according to this prioritization. With 100 or more
signatures, claimants may also petition the Water Judge to designate a
priority basin (section 85-2-218(2), MCA). To receive priority in
adjudication, a basin must involve:
y recurring water shortages resulting in urgent water
rights controversies;
y federal or Indian water rights negotiations nearing
completion;
y a location that would help ensure efficient use of
department and Water Court resources; or
y adjudication proceedings nearing issuance of a decree
(section 85-2-218(1), MCA).
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How Does the Adjudication Process Work?
In 1979, the Montana Supreme Court issued a “Water Rights Order”
requiring all persons claiming existing water rights to file with the
DNRC by January 1, 1982. Failure to file by the deadline would result
in presumption of ABANDONMENT of the right (section 85-2-212, MCA).
Later, the court extended the filing deadline to April 30, 1982. The
DNRC received more than 200,000 claims by this closing date.
Public Notice. To ensure that all claimants knew of adjudication
requirements, the court dispersed its “Water Rights Order” through:
y printings in state newspapers;
y mailings with property taxes; and
y notices in county courthouses and DNRC field offices
(section 85-2-213, MCA).
EXEMPTIONS. Existing water rights claims for livestock and domestic
uses from instream flows or GROUND WATER sources were exempt from
the requirement to file a claim; however, they could be voluntarily filed.
If an exempt right was filed in the adjudication process, the water right
claim will be made part of the decree for that basin. If the exempt water
right was not filed as a claim in the adjudication process, the water
right will not be made part of the decree for the basin.
Criteria. Each statement of claim had to include:
y the name and address of the claimant;
y the name of the WATERCOURSE or water source from
which a right was claimed;
y the quantities and times of claimed water use;
y a description of the point of DIVERSION and place of
claimed water use;
y the purpose of use and the number of acres irrigated, if
applicable;
y an approximate starting date of beneficial use; and
y supporting evidence, such as maps, plats, aerial
photos, or decrees (section 85-2-224, MCA).
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Late Claims. Although the “Water Rights Order” considered unfiled
claims abandoned, the 1993 Legislature passed a law authorizing late
claims to be filed through July 1, 1996. Around 4,500 late claims were
made before the 1996 closing date. Late claims are subordinate to:
y federal and Indian compacts with Montana;
y timely filed claims; and
y some newly permitted rights (section 85-2-221(3),
MCA).
Decrees
A decree is the final product of a basin adjudication. To reach
completion, a decree progresses through several stages: examination
Î temporary preliminary/preliminary decree Î public notice Î
hearings Î and final decree. Each stage is described in more detail
below.
Examination
Before the Water Court evaluates a basin, DNRC staff must examine
each claim to determine if it is complete, accurate, and reasonable. If
an examination uncovers excessive claims or other discrepancies, the
DNRC contacts the claimant to resolve any errors. If the DNRC is not
able to come to an agreement with a claimant on a discrepancy that
the DNRC has found with the claim, an issue remark is placed on the
claim. All issue remarks must be finally resolved before a final decree
can be issued. After examining all claims in a basin, the DNRC issues
a “Summary Report” to the Water Judge who uses the information to
prepare the basin decree.
Temporary Preliminary Decree
When a basin adjudication involves RESERVED WATER RIGHTS
negotiations, the process can become complex. Thus, a Water Judge
may issue a temporary preliminary decree defining all claimed rights
except reserved ones. Once a compact concludes, the Water Judge
incorporates it into a preliminary decree (section 85-2-231(1) and (4),
MCA).
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Preliminary Decree
In basins with either concluded compacts or no reserved water rights,
the Water Court issues a preliminary decree based on:
y statements of claim;
y the DNRC “Summary Report”; and
y if applicable, reserved water rights compacts (section
85-2-231(2), MCA).
Public Notice of the Decree
A notice of issuance of every temporary preliminary or preliminary
decree is given to all parties who may be affected by the decree, along
with the deadline for objecting to the rights or compacts, or both, in the
decree. This notification consists of direct mailings and publication in
area newspapers (section 85-2-232(1) and (3), MCA). Water users are
encouraged to review the decree and file objections if they believe that
their own claims or claims belonging to others in the basin are in error
or contain incorrect information. Following the expiration of a decree’s
objection period, each party whose claim received an objection will be
given notice of the filing of that objection. This notice triggers a 60-day
counterobjection period.
Objections
It is very important that persons who are entitled to file an objection
as provided above do so if they believe there is a problem with a
claim. By failing to file an objection in an earlier decree phase, the
person may be excluded from filing an objection at a later date
(section 85-2-233(1)(d), MCA).
All issue remarks, as defined by law, must be finally resolved before
a final decree may be issued whether or not there is an objection to
the claim.
Hearing
Persons disagreeing with a decree have 180 days to file an objection.
Accordingly, the Water Court will hold a hearing to reevaluate all
disputed areas. Any of the following parties may object:
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11 CLAIM EXAMINATION FLOW CHART Claims Filed Claims entered into database Water Court orders basin examined Regional/Unit Office or Team examines claims by Ownership Examination information entered into database Standards applied to ownership Review Abstract generated Claim OK as examined Claim examination complete Claim amended by claimant Basin Examination complete Summary Review Indexes checked Corrections made to database Summary Report generated Water Court reviews Summary Report Corrections made to database Decree Issued No NoYes 119
12
y the DNRC;
y any person named in the decree;
y any INTERESTED PERSON; or
any other person who claims rights to the use of water
from sources in other basins that are hydrologically
connected to the sources within the decreed basin and
who would be entitled to receive notice if the claim or
claims were from sources within the decreed basin
(section 85-2-233(1) and (2), MCA).
Resolving Issue Remarks
In the event an objection is not filed and a claim contains an issue
remark, the Water Court is required to take certain steps to finally
resolve the issue remark.
First, the Water Court will review each factual and legal issue remark
to determine if information in the claim file or information obtained by
the Court provides a sufficient basis to resolve the issue remark or to
determine if the issue remark can be corrected as a clerical error.
If an issue remark cannot be resolved by the Court as provided
above, the Water Court will notify the claimant in writing that each
issue remark must be resolved.
The first step in resolving the issue remark is a meeting between the
DNRC and the claimant in an informal effort to resolve the issue
remark. If the issue remark is resolved in this meeting to the
satisfaction of the DNRC, the claimant will need to file the
appropriate paperwork with the Water Court to support the resolution
of the issue remark. The DNRC will assist the claimant as necessary
and will also file a separate memorandum with its recommendation
regarding the disposition of the issue remark involved in the
proposed resolution. Only the Water Court can make the final
decision regarding whether or not the issue remark is resolved.
If the issue remark is not resolved as the result of this informal
process, the DNRC is required to file a notice with the Water Court
informing the Court that the issue remark was not resolved and that
the Water Court will need to take additional steps to resolve the
issue remark.
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For all issue remarks that are not resolved by the informal process
with the DNRC, the Water Court will schedule proceedings to resolve
the issue remark. The proceedings must include the DNRC and any
parties appearing in opposition to the claim, including the Attorney
General if the Attorney General has chosen to intervene.
If the issue remark involves nonperfection or abandonment, the
Water Court shall join the State of Montana through the Attorney
General as a necessary party to resolve the issue remark. If the
issue remark does not involve nonperfection or abandonment, the
Attorney General may intervene as a matter of right.
Once the parties have been notified of the proceedings, the Water
Court will hold an evidentiary hearing unless the claimant files a
written proposal along with supporting documentation with the Water
Court to proceed without an evidentiary hearing and the Water Court
accepts that proposal. If a claimant does not appear at the scheduled
evidentiary hearing or fails to comply with an order issued by the
Water Court in its review of issue remarks, the Water Court, upon
motion or its own initiative, may in its ruling:
y amend the element of the claim to conform with the
information in the claim file;
y amend the elements in the claim to conform with
information obtained by the Court;
y remove the issue remark; or
y terminate the claim.
Following the conclusion of the evidentiary hearing and the
expiration of any posthearing briefing schedule, the Water Court will
issue its written decision. The Water Court’s decision on each issue
remark that it reviews pursuant to law must be documented in a
master’s report or Water Judge’s order. The Water Court must
modify the abstract of each claim in accordance with its written
decision and remove any applicable issue remarks (section 85-2-
248, MCA).
Final Decree
After resolving all objections and finally resolving all issue remarks, the
Water Judge issues a final decree. Because the Water Judge adjusts
existing rights during the adjudication, the elements of a final decreed
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water right may differ from the original claim. For each water right, the
decree states:
y FLOW RATE;
y PRIORITY DATE;
y beneficial use;
y time and place of use;
y source of water; and
y place and means of diversion (section 85-2-234(6),
MCA).
In turn, the DNRC issues a “Certificate of Water Right” to each
decreed rights holder, filing a copy in its centralized records system
(section 85-2-236, MCA).
What Is the Current Status of the Adjudication Process?
Updates on the adjudication can be found here:
http://dnrc.mt.gov/wrd/water_rts/adjudication/default.asp
Types of Water Rights
There are several types of water rights in Montana that were acquired
in accordance with laws in effect at the time. Some of the more
common rights are explained here and elsewhere in the handbook.
Water Rights prior to 1973
Most of water rights prior to July 1, 1973 were called use rights. These
are water rights that were acquired by merely appropriating and
beneficially using the water. No recording, approval from a
government agency, or other written record of the right was required.
The priority date of use rights is generally the date the water was first
put to beneficial use.
Filed rights are water rights that were filed with the local county Clerk
and Recorder's Office under an optional system that was first
statutorily recognized in 1885 and which continued until the July 1,
1973, the effective date of the Water Use Act of 1973.
In 1969, the Montana Legislature enacted legislation granting the
Montana Fish and Game Commission authority to appropriate
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unappropriated waters on 12 streams to maintain instream flows for
the preservation of fish and wildlife habitat. These are known as
Murphy rights after Rep. James E. Murphy, who sponsored the
measure. The Legislature established specific reaches of the following
sources: Big Spring Creek in Fergus County; Blackfoot River in
Missoula and Powell counties; Flathead River and Middle Fork
Flathead River in Flathead County; South Fork Flathead River in
Flathead and Powell counties; Gallatin River and West Gallatin River
in Gallatin County; Madison River in Madison and Gallatin counties;
Missouri River in Broadwater, Lewis and Clark and Cascade counties;
Rock Creek in Granite and Missoula counties; Smith River in Cascade
and Meagher counties; and the Yellowstone River in Stillwater,
Sweetgrass and Park Counties. The priority dates are 1970 or 1971.
Other Water Rights
Permits for new appropriations, decreed rights, water reservations, and
instream use and leasing are explained elsewhere in the handbook.
Federal Reserved and Indian Reserved Water Rights
Montana's Reserved Water Rights Compact Commission (RWRCC)
was established by the Montana Legislature in 1979 as part of the
statewide general stream adjudication process (section 85-2-701,
MCA). The RWRCC is composed of nine members. Four members are
appointed by the Governor, two members are appointed by the
President of the Senate, two members are appointed by the Speaker
of the House of Representatives, and one member is appointed by the
Attorney General.
The RWRCC is authorized to negotiate settlements with federal
agencies and Indian tribes claiming federal reserved water rights within
the State of Montana. A federal reserved water right is a right to use
water implied from an act of Congress, a treaty, or an executive order
establishing a tribal or federal reservation. The amount of water the
reservation is entitled to depends on the purpose for which the land
was reserved. In Montana, reserved water rights have been claimed
for seven Indian reservations, for allotments for the Turtle Mountain
Chippewa Tribe, for national parks, forests and wildlife refuges, and for
federally designated wild and scenic rivers.
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The claims of the tribes and the federal agencies are suspended from
adjudication in the Montana Water Court while they are being
negotiated by the RWRCC. This suspension is effective until July 1,
2013, as long as negotiations are continuing or ratification of a
completed compact is being sought. Upon termination of the
suspension in 2013, the tribes and the federal agencies are subject to
the filing requirements and other adjudication requirements provided
by Montana law. If a tribe or federal agency chooses not to negotiate
its federal or Indian reserved water rights, the tribe or federal agency
may not benefit from the suspension statute (section 85-2-217, MCA).
Settlements negotiated by the RWRCC on behalf of the State of
Montana are ratified by the Montana Legislature and the Tribal
Councils and approved by the appropriate federal authorities. In some
instances, approval by the U.S. Departments of Justice and the Interior
are sufficient. In other cases, where federal authorization or federal
appropriations are needed to implement provisions of the settlement,
congressional approval is required.
Status of Water Compacts in Montana
Compact Dates of
Legislative Passage
Information
Assiniboine and Sioux
Tribes of the Fort Peck
Indian Reservation
85-20-201, MCA
May 1985
The compact contains a
provision for water
marketing by the Tribes,
making federal legislation
necessary. Federal
legislation has not been
passed. The compact has
been approved by the
Montana Water Court.
Northern Cheyenne Tribe
85-20-301, MCA
Public Law 102-374
May 1991
September 1992
Included in the compact
was a requirement that the
federal government and
the State of Montana
contribute funds to repair
and enlarge the unsafe
Tongue River Dam, which
has been completed. The
compact has been
approved by the Montana
Water Court.
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Compact Dates of
Legislative Passage
Information
U.S. Department of the
Interior
National Park Service
Yellowstone National Park
Glacier National Park
Big Hole National
Battlefield
85-20-401, MCA
January 1994
The compact includes an
article providing a
controlled ground water
area to protect the
hydrothermal system in
Yellowstone National Park.
The compact has been
approved by the Montana
Water Court.
U.S. Department of the
Interior
National Park Service
Little Bighorn Battlefield
National Monument
Bighorn Canyon National
Recreation Area
85-20-401, MCA
May 1995
Codified with the first
compact with the National
Park Service (above), this
compact has been
approved by the Montana
Water Court.
U.S. Department of the
Interior
Bureau of Land
Management (BLM)
Upper Missouri National
Wild & Scenic River
Bear Trap Canyon Public
Recreation Site
85-20-501, MCA
March 1997
The compact settles the
instream flow rights for two
river segments; one on the
Upper Missouri and one on
the Madison River. It was
submitted to the Water
court in 2008. The
objection deadline is Sept.
2, 2009.
U.S. Department of the
Interior
Fish and Wildlife Service
(FWS)
Benton Lake National
Wildlife Refuge, Black
Coulee National Wildlife
Refuge
85-20-701, MCA
March 1997
The compact settles the
reserved water rights for
two of the six national
wildlife refuges claiming
such rights in Montana. It
has been approved by the
FWS and the U.S.
Department of Justice. The
compact has been
approved by the Montana
Water Court.
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Compact Dates of
Legislative Passage
Information
Chippewa Cree Tribe of
the Rocky Boy’s Indian
Reservation
85-20-601, MCA
Public Law 106-163
April 1997
December 1999
The compact allocates
10,000 acre-feet per year
to the Tribe from water
arising on the reservation.
The compact was
approved by Congress and
signed by the president in
1999. It has been approved
by the Montana Water
Court.
U.S. Department of the
Interior Fish and Wildlife
Service (FWS)
Red Rock Lakes National
Wildlife Refuge
85-20-801, MCA
April 1999
Another of the six wildlife
refuges claiming reserved
water rights in Montana,
the Red Rock Lakes
settlement has been
approved by the
appropriate federal
agencies and by the
Montana Water Court.
Crow Tribe
85-20-901, MCA
June 1999 Special
Session
The compact allocates
500,000 acre-feet per year
(AFY) of the natural flow of
the Bighorn River to the
Crow Tribe. The U.S.
Bureau of Reclamation will
allocate 300,000 AFY of
storage in Bighorn Lake to
the Tribe. The state paid
$15 million into an account
in exchange for the Tribe’s
dismissal of a coal
severance tax lawsuit and
for the State’s portion of
cost-share for the water
settlement. A management
plan for Bighorn River and
Lake was finalized in 2000.
Legislation is being
considered by Congress.
The compact also must
pass a Tribal referendum.
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Compact Dates of
Legislative Passage
Information
Gros Ventre and
Assiniboine Tribes of the
Fort Belknap Indian
Reservation
85-20-1001, MCA
April 2001
The compact allocates 645
cubic feet per second
(CFS) from the Milk River
to the Tribes, limited by the
U.S. share of the natural
flow of the Milk River and
the Tribal capacity to
develop the water. It also
quantifies the Tribal water
rights in People Creek,
Beaver Creek, and
Missouri River Basin 40EJ.
When uses upstream of
the reservation interfere
with the Tribal water right,
the Tribes will obtain water
from the federal Milk River
Project. Negotiations
continue on a federal bill
which must go to
Congress.
United States Department
of Agriculture, Agriculture
Research Service
Fort Keogh Livestock and
Range Research
Laboratory
85-20-1101, MCA
March 2007
The compact settles the
administrative, irrigation,
stock, and emergency fire
suppression water rights
for Fort Keogh near Miles
City. It includes reserved
rights to Fort Keogh’s
current irrigation use from
the Yellowstone River and
some future irrigation use,
and it includes a small
amount of current use from
a tributary of the Tongue
River.
United States Department
of Agriculture, Agricultural
Research Service
Sheep Experiment Station
85-20-1201, MCA
March 2007
The compact settles the
stockwater, domestic,
irrigation, storage, dust
abatement, reclamation,
research, emergency fire
suppression, and other
water rights for the small
portion of the Sheep
Experiment Station located
in Montana.
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Compact Dates of
Legislative Passage
Information
United States Department
of the Interior
Fish and Wildlife Service
Bowdoin National Wildlife
Refuge
85-20-1301, MCA
April 2007
The compact settles the
reserved rights for uses
including administrative,
wildlife habitat
maintenance and
enhancement,
stockwatering, and other
uses. The FWS water
rights are contingent on a
memorandum of
understanding (MOU)
which must be attached to
the compact as Appendix
3. The MOU will have
provisions relating to the
solution of the severe
salinity problems on the
Refuge. Commission staff
is working with FWS on
this MOU.
United States Department
of Agriculture
Forest Service
85-20-1401, MCA
April 2007
The water compact
between the State of
Montana and the U.S.
Forest Service took more
than 15 years to negotiate.
It has been submitted to
the Water Court and the
parties are attempting to
settle objections. In
general, the compact
recognizes reserved water
rights for the Forest
Service for administrative
and emergency firefighting
and for instream flows for
the South Fork Flathead
Wild and Scenic River. The
compact uses state law to
create state-based water
rights for instream flow on
National Forest System
lands.
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Compact Dates of
Legislative Passage
Information
Blackfeet Compact
85-20-1501, MCA
April 2009
This legislation creates a
mitigation account within
the state special revenue
fund to mitigate economic
and hydrologic impacts on
water right holders, among
other things. An
infrastructure account must
be used for water-related
infrastructure projects on
the Blackfeet Indian
reservation. Both accounts
are administered by DNRC
and funds may not be used
unless a Blackfeet-
Montana compact is
ratified by the legislature,
Tribe, and United States.
National Bison Range
Compact
85-20-1601, MCA
April 2009
This legislation quantifies
federal reserved water
rights for the FWS’
National Bison Range from
springs, seeps, naturally-
occurring flood flows and
groundwater sources
arising within the National
Bison Range.
New Appropriations of Water
The Montana Water Use Act of 1973 established a permit system for
new uses of water. Any person planning a new or expanded
development for a beneficial use of water from SURFACE WATER or
ground water after June 30, 1973, must obtain a permit to
APPROPRIATE water or file a Notice of Completion of Ground Water
Development to get a Certificate of Water Right. The permit system is
administered by the DNRC. Beneficial uses of water include domestic,
stock, irrigation, lawn and garden, mining, municipal, industrial,
commercial, agricultural spraying, fisheries, wildlife, and recreation.
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There are basins and subbasins in Montana that have been “closed” to
new appropriations because they have been deemed to be highly
appropriated. There are some exceptions to these closures. Please
see the section on basin closures for more information.
Surface Water
A person must apply for and receive a permit to appropriate water
before beginning to construct diversion works or diverting water from a
surface water source. Those seeking a permit must plan ahead—the
application process takes time to complete. The applicant for a permit
must provide the following evidence: the physical availability of water
at the point of diversion during the requested period of diversion; the
legal demands on the source; a comparison of the physical water
available and the existing legal demands; the effects of the proposed
use on existing water rights; an analysis of the effects of existing water
rights on the water supply within the source; the design and operation
of the proposed system; a description of the proposed beneficial use;
an explanation of how the requested flow rate and volume was
determined and that the amounts are the amounts necessary for the
use; and that the applicant has possessory interest in the place of use.
The exception to this law is for small livestock pits or reservoirs located
on NONPERENNIAL FLOWING STREAMS. If the pit or reservoir will hold less
than 15 ACRE-FEET of water with an annual appropriation of less than
30 acre-feet and will be located on a parcel of land 40 acres or larger,
construction may begin immediately. Within 60 days of completion, an
Application for PROVISIONAL Permit for Completed Stockwater Pit or
Reservoir, form 605, must be submitted to the DNRC. A provisional
permit, subject to prior water rights, will then be issued. If the reservoir
adversely affects prior water rights, the DNRC can revoke the permit or
require an applicant to modify the reservoir.
Ground Water
Anyone who anticipates using more than 35 gallons a minute or 10
acre-feet a year of ground water is required to obtain a permit to
appropriate water before any development begins or water is used. In
a controlled GROUND WATER AREA, a permit may be required to
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appropriate any amount of water, depending on the terms of the
ground water area. This handbook contains a list of the controlled
ground water areas.
A person does not need to apply for a permit to develop a well or a
ground water spring with an anticipated use of 35 gallons a minute or
less, not to exceed 10 acre-feet a year. The first step is to drill the well
or develop the spring. A Well Log Report, form 603, is completed by
the driller and sent to the Bureau of Mines and Geology within 60 days.
A copy is also given to the well owner. Within 60 days after the
development is put to use, the owner must submit a Notice of
Completion of Ground Water Development, form 602, along with a
filing fee, to the DNRC. The priority date of the water right is the date
that the DNRC receives the completed form 602. The DNRC will
review the form to ensure that it is correct and complete. A person
must have possessory interest in the property where the water right is
put to beneficial use or written notification 30 days prior to the intent to
appropriate ground water. Also, a person must have exclusive property
rights in the ground water development works or written consent from
the person with the property rights. A Certificate of Water Right will
then be issued to the owner for the specified use.
Replacement Wells
If an existing well fails and a new well is constructed, a person can
retain the priority date of the existing well. Form 634 can be filed if the
new well meets the following requirements:
The old and new wells must be located outside the boundaries
of a controlled ground water area, or they can be located within
the boundaries of a controlled ground water area if the
provisions of the order do not restrict the development of
replacement wells.
The existing well may no longer be used and must be
abandoned.
The flow rate and VOLUME of water must be equal to or less
than the amounts used from the old well. For municipal wells,
the flow rate may not exceed 450 gallons per minute. For other
wells, the flow rate and volume and may not exceed 35 gallons
a minute or 10 acre-feet a year.
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The old and new well must be from the same ground water
source.
If these conditions are met, the DNRC can issue an authorization to
change a water right.
Redundant Wells
When a public water supply system constructs a backup well, form 635
can be filed if the backup well meets the following requirements:
The backup well must withdraw water from the same ground
water source as the original well(s).
The backup well must be required by a state or federal agency.
The flow rate and volume of all wells, including backup wells, may not
exceed the flow rate or volume authorized by the water rights for the
public water supply system.
Replacement Point of Diversion
An appropriator may change an appropriation right for a replacement
point of diversion without the prior approval of the department if:
the existing point of diversion is inoperable due to natural
causes or deteriorated infrastructure;
there are no other changes to the water right;
the capacity of the diversion is not increased;
there are no points of diversion or intervening water rights
between the existing point of diversion and the replacement
point of diversion or the appropriator obtains written waivers
from all intervening water right holders;
the replacement point of diversion is on the same surface water
source and is located as close as reasonably practicable to the
existing point of diversion;
the replacement point of diversion replaces an existing point of
diversion and the existing point of diversion will no longer be
used;
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the appropriator can show that the existing point of diversion
has been used in the 10 years prior to the notice for change of
appropriation right for a replacement point of diversion; and
the appropriator can show the change will not increase access
to available water, change the method of irrigation, if
applicable, or increase the amount of water diverted, used, or
consumed.
Within 60 days after completion of a replacement point of diversion,
the appropriator shall file a notice of replacement point of diversion
with the department on a form provided by the department.
Special Ground Water Circumstances
COMBINED APPROPRIATION
When a someone combines an appropriation of two or more wells or
developed springs from the same source and uses more than 35
gallons a minute or 10 acre-feet a year, a permit to appropriate water
is required. A combined appropriation is defined as “an appropriation
of water from the same source aquifer by two or more groundwater
developments, that are physically manifold into the same system”
(ARM 36.12.101(13)).
APPROPRIATIONS OVER 3,000 ACRE-FEET
A person proposing to appropriate more than 3,000 acre-feet of ground
water a year must receive legislative approval for the specific
appropriation. This law does not apply to appropriations for municipal
use, public water supplies, or the irrigation of cropland owned and
operated by the applicant.
APPROPRIATIONS IN CLOSED BASINS
A person proposing to appropriate ground water in a closed basin must
complete a HYDROGEOLOGIC ASSESSMENT and must meet other criteria.
If the hydrogeologic assessment predicts that the appropriation would
have no net depletion of surface water, the application moves through
the permitting process. If the assessment predicts net depletion of
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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
Hydro assessment
determines surface
water net depletion
Submit to DNRC and
proceed under existing
process (85-2-311, MCA)
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-
311, MCA, and 85-2-402,
MCA
DNRC grants
application
DNRC terminates
application
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surface water, it must be determined if net depletion would have an
adverse effect on prior appropriators. If not, the application moves
through the permitting process. If there would be adverse effect, the
applicant must submit a plan for mitigation or aquifer recharge.
Leasing Water Rights for Road Construction
Water needed for road construction and dust control can be leased
from an individual who holds a valid Montana water right. This statute,
section 85-2-410, MCA, was specifically designed to assist Montana’s
road construction contractors with water use COMPLIANCE. The
restrictions include the following:
The lease can run for up to 90 days and applies to diversions of
water that do not exceed 60,000 gallons a day or the amount of
the existing right, whichever is less.
A combination of short-term leases may not exceed 120,000
gallons a day for one project.
The lease does not require prior approval by the DNRC.
However, 30 days prior to the use of water, the lessee must
publish a notice of the proposed use in the local newspaper or
mail individual notices to the potentially affected water users in
the area of the proposed point of diversion.
At least 2 days prior to water use, the lessee must submit a
copy of the public notice and a copy of the lease agreement to
the DNRC.
An existing water user whose right is not being satisfied may make a
complaint to the DNRC and could cause the short-term lease to end.
However, if it is shown that there is no ADVERSE effect on the existing
water user’s right, the lessee can continue to divert water.
How the Permit System Works
The permit process involves several steps. A prospective water user
(applicant) must follow the procedure described below to apply for a
water use permit.
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19. Objection withdrawn – Order
Issued to Grant
Flow Chart for Permit and Change Applications
July 1, 2009
1. Receive application
2. Review form 3. Incomplete
4. DNRC may meet with applicant
to discuss deficiencies
5. Not Correct & Complete -
TERMINATE
6. Correct & Complete
7. Prepare Draft Preliminary
Determination & meet with applicant
12. Deny
14. Public Notice
13. Appeal to District
Court
10. Preliminary
Determination to Grant
15. No Objection Received -
Grant
16. Objections Received – hearing
scheduled
8. Issue Preliminary
Determination Decision
9. Preliminary Determination to
Deny – Hearing Scheduled
18. Applicant / objectors stipulate to
conditions – Order Issued to Grant
17. Deny or Grant
11. Grant
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Step 1 - Application Form
A potential new water user must first complete the current Application
for Beneficial Water Use Permit, form 600. The application form
requires information describing the intended use, place of use, point of
diversion, source of supply, amount of water to be used, diversion
facilities, and other particulars of the proposed appropriation. The
application also must contain evidence pertaining to the permit criteria
that must be met. There are specific rules that define what must be
included in an application in order for the DNRC to deem an
application correct and complete. If the DNRC deems the application
correct and complete, the department will begin evaluating the
application. An application fee must be submitted with the application.
Forms and instructions are available from any water resources
regional office and are available on the DNRC website at
http://www.dnrc.mt.gov/wrd/default.asp. A list of forms is included in
this handbook.
Additional criteria must be addressed if the application is for
appropriations of 4,000 or more acre-feet and 5.5 or more CUBIC FEET
PER SECOND (cfs). If the appropriation is for an out-of-state use, the
applicant must also address criteria set out in section 85-2-311(4),
MCA.
If the application is for an appropriation of ground water in a closed
basin, additional criteria apply. This procedure is explained in this
handbook.
Step 2 - Application Review
The date that the DNRC receives the original permit application will be
the initial priority date assigned to the appropriation. This date is
important because of the “first in time is first in right” principle in
Montana water law. The DNRC will review the application to ensure
that the information required by rule is provided. Applications are
usually reviewed in the order that they are received.
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At the same time, an environmental review is made to determine
whether the proposed project will have significant environmental
impacts and whether an environmental impact statement is needed.
If information is incomplete, the department will send a deficiency letter
within 180 days of receipt of the application.
Criteria for Issuance of a Permit
Section 85-2-311(1), MCA
The applicant for a water use permit to appropriate less than 4,000 acre-feet a year
and 5.5 cfs has the initial burden to prove by a PREPONDERANCE OF THE EVIDENCE that
the criteria for issuance of a permit are met. These include the following:
1. Water is physically available at the proposed point of diversion in the
amount that the applicant seeks to appropriate.
2. Water can reasonably be considered legally available during the period
in which the applicant seeks to appropriate, in the amount requested.
3. 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. Adverse affect is based on a consideration of the applicant’s
plan to exercise the water right so that prior water rights will be satisfied.
4. The proposed means of diversion, construction, and operation of the
appropriation works are adequate.
5. The proposed use of water is a beneficial use.
6. 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.
An applicant is required to prove one of the following criteria if a valid objection is filed:
1. The DISCHARGE PERMIT holder has the ability to satisfy EFFLUENT
limitations of a permit issued in accordance with Title 75, chapter 5, part
4, MCA.
2. The proposed use will be substantially in accordance with the
classification of water set for the source of supply pursuant to section 75-
5-301(l), MCA.
3. The water quality of a prior appropriator will not be adversely affected.
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After issuance of the deficiency letter, the applicant has 90 days to
make the application correct and complete. If an application is not
correct or complete within 30 days of DNRC notification, the priority
date will change to the date that the application is made correct and
complete. An application that is not made correct or complete within 90
days will be terminated.
Within 120 days of determining an application is correct and complete,
the DNRC issues a preliminary determination to grant or deny an
application. An applicant may meet with the DNRC prior to the
issuance of the preliminary determination in order to review and
discuss any concerns with the application and the information that will
be the basis of the department’s determination. The applicant may
provide the department additional information. Other water users may
also request to meet with the DNRC or attend the meeting with the
applicant.
If the preliminary determination is to grant the application, the
application proceeds to public notice for objections.
If the preliminary determination is to deny the application, the applicant
may request a hearing to show why the permit or change application
should be approved. A hearing with the applicant will be conducted to
take further information or evidence from the applicant. The applicant
may request a hearing examiner who did not participate in the
preliminary determination.
A final order will be issued after the hearing if the decision is to deny
the application. The applicant may appeal the decision to District
Court.
If after the hearing the department determines the application may be
granted, the preliminary determination will be modified and the
application will proceed to public notice.
If there is potential for adverse effect, the DNRC will publish notice of
the application once in a newspaper of general circulation in the area
of the source. The DNRC will mail notification of the application to
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existing water users listed in the DNRC records and determined by the
DNRC as water rights that may be affected by the proposed
application. Local water users have an opportunity to file an Objection
to Application, form 611, with the required fee on or before the
deadline specified in the published notice. Objections must explain
how the objector will be adversely affected or why the objector does
not believe the applicant can meet the criteria. An objector must have
property, water rights, or interests that would be adversely affected by
the proposed appropriation. If no objections are received and the
applicant proves by a preponderance of the evidence that the permit
criteria can be met, the permit is granted.
If valid objections are received, the DNRC conducts a hearing. After
evaluation of the evidence and testimony given at the hearing, the
hearings examiner issues a proposal for decision to grant, modify, or
deny the permit. Within 20 days, parties adversely affected by the
proposal can file written exceptions to the proposal for decision. The
parties may request presentation of briefs or oral argument before the
DNRC on the proposed decision. If no exceptions are filed or after oral
arguments are heard, the DNRC issues a final order. A final order may
be APPEALED to District Court.
Issues that could affect applications for permits are:
1. Any proposed appropriation that may significantly affect the quality
of the human environment will require an environmental impact
statement (EIS). The purpose of the EIS is to document
environmental and human impacts, evaluate alternatives, and
provide for public review and comment. Information developed
during the EIS process will aid the DNRC in processing the permit.
The DNRC may assess a fee to the applicant to fund preparation
of the EIS. See section 85-2-124, MCA.
2. Any permit to appropriate water that the DNRC issues is
provisional. It is junior to all prior existing water rights and subject
to the final Water Court determination or adjudication of those
rights. It also is junior to prior DNRC permitted water rights and
prior water reservations, except as otherwise provided by law.
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Step 3 - Project Completion
Upon receiving the permit, the applicant’s next step is to construct the
project, divert the water, and put the water to the intended use as
granted in the permit. When this is finished, the permittee must provide
the DNRC with a certified statement describing how the appropriation
has been completed. This includes submitting a Project Completion
Notice for Permitted Water Development, form 617, to the DNRC
before the deadline specified in the permit or any authorized extension
of time. If the permittee fails to file a project completion notice by the
deadline, the permit will be terminated by operation of law.
When unforeseen circumstances prevent completion of the project
before the deadline, the permittee may submit an Application for
Extension of Time, form 607. If the permittee shows good cause that a
continuous effort has been made to complete the project, the DNRC
will grant an extension of time for a reasonable period.
Step 4 - Certificate of Water Right
After the project is completed, the DNRC will review the project
completion notice and determine whether the project was completed in
substantial accordance with the permit. The DNRC will issue a
Certificate of Water Right when:
1. The project has been completed.
2. The water has been used according to the terms of the permit.
3. The basin in which the permit lies has been adjudicated and
the final decree is issued.
The priority date of a certificate is the same as on the original permit.
Temporary Permits
A person may request a temporary permit to appropriate water if the
use of water is for a limited period of time. Temporary uses include
water needed for oil or gas exploration or in highway construction. An
application for a temporary permit is processed in the same manner as
a provisional permit. The applicant must prove the same criteria listed
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under section 85-2-311, MCA. A temporary permit has an expiration
date based on the period requested by the applicant and will expire on
that date. No Certificate of Water Right is issued for a temporary
permit.
Interim Permits
An interim permit to appropriate water allows an applicant to begin
constructing and using water pending final approval or denial of the
provisional permit. An interim permit may be issued unless substantial
information indicates that the criteria for issuing a provisional permit
under section 85-2-311, MCA, cannot be met. An interim permit is
issued pending final approval or denial by the department of the
application for a regular permit.
Changes in Water Use
To protect all water rights, prior approval from the DNRC is required
before changing any water right or water reservation in any of the
following ways:
1. point of diversion;
2. place of use;
3. purpose of use; or
4. place of storage.
The holder of a water right must submit the current Application Change
a Water Right, form 606, to the DNRC. An applicant may change up to
the historic amount of water diverted and the historic consumptive use.
Therefore, an applicant must first provide information proving the water
right to be changed was used and the extent of the historic use. The
application must contain information about the proposed change and
evidence pertaining to the criteria that must be met. There are specific
rules that define what must be included in an application in order for
the DNRC to deem an application correct and complete. If the DNRC
deems the application correct and complete, the department will begin
evaluating the application and draft a Preliminary Decision to grant or
deny the change. In order for the DNRC to grant a change application,
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Criteria for Issuance of an Authorization
to Change a Water Right
Section 85-2-402(2), MCA
The applicant for a change in an appropriation water right has the burden to prove
by a preponderance of the evidence that the criteria for issuance of an
authorization are met. These criteria include:
1. The proposed use will not adversely affect the use of other water
rights or other planned developments for which a permit or certificate
has been issued or water has been reserved.
2. The proposed means of diversion, construction, and operation of the
appropriation works are adequate.
3. The proposed use of the water is a beneficial use.
4. The applicant owns or has permission from the person who owns the
property where the water is to be used.
If a valid objection pertaining to WATER QUALITY is received, the applicant must also
prove one of the following.
1. The water quality of an appropriator will not be adversely affected.
2. The ability of a discharge permit holder to satisfy effluent limitations
of a permit issued in accordance with Title 75, chapter 5, part 4,
MCA.
An applicant for salvaged water must also prove that the proposed water-saving
method will SALVAGE at least the amount of water asserted by the applicant.
the applicant must provide by a preponderance of evidence that the
criteria for issuance of an authorization to change a water right listed
below are met. An application to change a water right follows the same
general process for notice and hearing permit to appropriate water.
Upon completion of the change, the appropriator must file a Project
Completion Notice for Change of a Water Right, form 618, notifying
DNRC that the authorized change is completed.
An applicant submitting a change in purpose or place of use of an
appropriation to divert 4,000 or more acre-feet of water a year and 5.5
or more cubic feet per second will be required to prove the criteria set
out in section 85-2-402(4), MCA. If a proposed change in purpose or
place of use for a diversion results in 4,000 or more acre-feet and 5.5
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or more cubic feet per second of water being consumed, the applicant
must prove the criteria in section 85-2-402(5), MCA. If the change
involves the transport of water out of state, the applicant must prove
the criteria listed in section 85-2-402(6), MCA, and obtain legislative
approval.
Temporary Change in Appropriation Water Right
An appropriator may temporarily change a water right with DNRC
approval. The temporary change may be approved for up to 10 years
with an opportunity to renew for 10 more years, although there is no
limit on the number of renewals. An appropriator must file an
Application To Change a Water Right, form 606, and a Temporary
Change Supplement, form 606T, identifying the proposed change and
how long that it will be needed. The applicant must also provide
evidence to meet the same criteria as an authorization to change listed
above. If granted, the temporarily changed appropriation has the same
priority date as the existing water right.
In 1995, the Legislature provided for the protection of fishery resources
by allowing the owner of an existing consumptive use water right to
change the purpose temporarily to instream flow. The owner must file
an application, as described in the preceding paragraph. The owner
may voluntarily change the purpose to instream flow or lease the water
right and change the purpose to protect the fishery resource.
Salvaged Water
A water user who implements a water-saving method may retain the
right to the salvaged water for a beneficial use. The salvaged water is
that portion of the water made available through the implementation of
water-saving methods. Lining a ditch to reduce seepage or replacing a
ditch with a pipeline are considered water-saving methods if water
consumption is reduced. If the salvaged water is to be used for any
purpose or in any place not associated with the original appropriation,
DNRC approval is required. The appropriator must file an Application
to Change a Water Right, form 606, and must meet the criteria for
issuance of an authorization to change a water right. The proposed
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water-saving method also must salvage at least the amount of water
asserted by the applicant.
Ownership of a Water Right
A water right is appurtenant to the land on which it is used. When that
land is sold, the seller shall disclose on the realty transfer certificate
(RTC) at or before the closing if any water rights associated with the
property will be transferred with the land. A fee must be paid at closing
or upon completion of the transfer. The water right information is
updated through coordination between the Department of Revenue
and the DNRC. If land is sold and the fee is not paid, the DNRC will
send a notice to the buyer requesting payment of the fee. If the buyer
does not pay the fee within 60 days, the DNRC may assess a penalty.
If an RTC indicates a water right is being divided or exempted
(reserved) from the property, the buyer, seller, and escrow agent must
complete the Certification of Water Right Ownership Update form
(included with the RTC) before the deed can be recorded.
When an RTC discloses the division of a water right among parcels,
the person dividing the water right shall complete and file with the
DNRC a Water Right Ownership Update – Divided Interest form, form
641, and submit the form within 5 days of the deed recording.
If a person sells land but retains the water right, the person must fill out
and file a DNRC Water Right Ownership Update – Exempt (reserved)
form, form 642, describing the exempting of the water right and the
appropriate fee.
If a person severs a water right from land that is not being sold, the
person must fill out and file a DNRC Water Right Ownership Update –
Severed Water Right form, form 643.
In any case, for a water right that will be changed from how it was
historically used, the owner must file an Application to Change a Water
Right.
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Water Right Distribution
Whether exercising a century-old, existing water right or a newly
permitted water right, an appropriator must observe standard rules of
use. From period of use, to place of use, to type of use, these rules
guide the distribution of Montana waters.
In Montana, water right distribution follows the traditional “first in time,
first in right” philosophy. Accordingly, a SENIOR APPROPRIATOR may
completely fulfill the senior appropriator’s water right before a JUNIOR
APPROPRIATOR receives any (section 85-2-401, MCA).
Each Montana District Court supervises water use within its
JURISDICTION (section 85-5-101, MCA). In its oversight capacity, a
court may appoint one or more water commissioners to measure,
record, and distribute water rights on a watercourse. Such
appointments result upon:
y petition of water rights holders (owning at least 15% of
the water rights on a watercourse);
y application by both the DNRC and one or more water
rights holders on a watercourse; or
y application of the board(s) of one or more IRRIGATION
DISTRICTS (section 85-5-101, MCA).
When a court appoints two or more water commissioners on a
watercourse, one may be designated chief commissioner. A chief
commissioner supervises the other commissioner(s) in distributing
water rights (section 85-5-102, MCA).
Upon petition of water rights holders (owning at least 51% of the water
rights on a watercourse), the court may direct a commissioner to
maintain and repair ditches, canals, and other structures necessary to
distribute water rights. Owners are responsible for all maintenance
expenses (section 85-5-106, MCA).
Dispute Resolution and Enforcement
If a water user feels that a water right is being adversely affected by
the actions of another water user, the parties should talk to each other
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to see if the matter can be settled. If the matter cannot be settled, there
are various options under Montana law for resolution.
These options include petitioning the District Court to appoint a water
commissioner; or filing a temporary restraining order or preliminary
INJUNCTION in District Court. If water is not reaching an appropriator’s
point of diversion, the appropriator can make a “call” on junior
appropriators, which means contacting junior appropriators and
documenting the request for water. Complaints may be filed with the
DNRC. A water right holder who is successful in going to court to stop
someone without a water right from using water will be awarded their
attorney fees by the District Court.
In 2009, the Legislature revised water right enforcement law to allow a
district judge to appoint Water Court water masters to handle some
disputes. The changes allowed county attorneys or the Attorney
General to bring suit to stop illegal water use. County attorneys may
also request assistance from the Attorney General in water right cases.
Which option is best depends on the particular circumstance, how fast
the matter needs to be settled, and the cost of the action.
For specific details of options, refer to the Water Right Dispute Options
handout available at the water resources regional offices or on the
DNRC website at:
http://dnrc.mt.gov/wrd/water_rts/wr_general_info/wrforms/609-ins.pdf
Water Reservations
Water reservations may be granted for future beneficial uses or to
maintain minimum streamflows or quality of water, but only to the State
of Montana, political subdivisions, state agencies, or to the United
States and any of its agencies. The DNRC administers the water
reservation application process.
In 1978, the Board of Natural Resources and Conservation (Board)
granted water reservations in the Yellowstone River Basin to eight
municipalities, fourteen CONSERVATION DISTRICTS, and six state and
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federal agencies. These water reservations have a priority date of
December 15, 1978. Individuals within a conservation district who are
interested in using water under the local district’s water reservation
should contact the conservation district office.
In 1992, the Board issued an order granting water reservations in the
upper Missouri River Basin above Fort Peck Dam to seventeen
municipalities, fifteen conservation districts, and four state and federal
agencies. These water reservations have a priority date of July 1,
1985.
In 1994, the Board granted water reservations in the lower Missouri
River Basin below Fort Peck Dam with a priority date of July 1, 1985,
to nine municipalities, eight conservation districts, and one state
agency. The Board also granted reservations in the Little Missouri
River Basin with a priority date of July 1, 1989, to two municipalities,
three conservation districts, and one state agency.
In both the Yellowstone and Missouri River Basins, water reservations
were granted for municipal, irrigation, stock water, and instream flows
for fish and wildlife and water quality protection.
Instream Use and Leasing
Most water rights involve taking water out of streams for irrigation,
domestic, or other consumptive uses. These diversions can reduce
streamflows during times of drought, which in turn can stress local
fisheries. In the 1980s and 1990s, the Montana Legislature realized
this concern and created laws that allow water that is diverted for
consumptive uses to be transferred temporarily to an instream use.
There are three ways to convert an existing consumptive use water
right to instream use. A person may lease all or a portion of a water
right to the Montana Department of Fish, Wildlife, and Parks (FWP),
lease the water right to another party interested in holding the right for
the fishery, or convert the water right to an instream use without a
lease. Any conversion to an instream use requires a temporary change
authorization from the DNRC and must benefit fisheries.
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The FWP as well as some conservation groups seek interested senior
water rights holders who no longer wish to use all of their appropriated
water (possibly through increased water conservation) and have a
desire to contribute water to maintain fish populations during critical
times of drought. Water rights holders may get help from interested
lessees to develop salvage water projects, assess water savings, and
file the necessary authorizations to change the water rights involved in
a leasing agreement. As a result, the water rights holder continues to
own the water right, receives financial compensation, and makes a
valuable contribution to maintaining Montana’s natural heritage. For
more information, contact the Department of Fish, Wildlife, and Parks
at (406) 444-2535.
Controlled Ground Water Areas
A controlled ground water area may be designated to protect water
quality or quantity. An area for designation may be proposed by the
DNRC on its own motion, by petition of a state or local public health
agency, a municipality, county, conservation district or a local water
quality district. An area also may be proposed upon petition of at least
one-third of the water right holders in the proposed controlled ground
water area.
A correct and complete petition must contain analysis prepared by a
hydrogeologist, a qualified scientist, or a qualified licensed professional
engineer concluding that one or more criteria described below are met.
In general, the law prohibits the WASTEFUL USE of ground water. The
department may designate a permanent controlled ground water area
by rule if it finds by a preponderance of the evidence that any of the
following criteria have been met and cannot be appropriately mitigated:
current or projected reductions of recharge to the aquifer or
aquifers in the proposed controlled ground water area will
cause ground water levels to decline to the extent that
water right holders cannot reasonably exercise their water
rights;
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current or projected ground water withdrawals from the
aquifer or aquifers in the proposed controlled ground water
area have reduced or will reduce ground water levels or
surface water availability necessary for water right holders
to reasonably exercise their water rights;
current or projected ground water withdrawals from the
aquifer or aquifers in the proposed controlled ground water
area have induced or altered or will induce or alter
contaminant migration exceeding relevant water quality
standards;
current or projected ground water withdrawals from the
aquifer or aquifers in the proposed controlled ground water
area have impaired or will impair ground water quality
necessary for water right holders to reasonably exercise
their water rights based on relevant water quality standards;
ground water within the proposed controlled ground water
area is not suited for beneficial use; or
public health, safety, or welfare is or will become at risk.
Upon receipt of a correct and complete petition, the DNRC may deny
the petition, study it further, or draft rules to implement the proposed
controlled ground water area. The public will be notified of the
proposed rules and may provide comment.
A temporary controlled ground water area designation is for the
purpose of further study. It may include the control provisions of
measurement, water quality testing, and reporting requirements, but it
may not last longer than six years.
A permanent controlled ground water area designation may include
control provisions of:
banning further appropriation of ground water;
restricting the development of future ground water
appropriations by flow, volume, purpose, aquifer, depth,
water temperature, water quality, density, or other criteria;
requiring measurement of future ground water or surface
water appropriations;
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requiring the filing of notice on land records within the
boundary of a permanent controlled ground water area to
inform prospective holders of an interest in the property of
the existence of a permanent controlled ground water area;
requiring spacing restrictions on certain wells;
mitigating ground water withdrawals;
testing water quality; and
requiring data reporting.
WATER QUANTITY
CLOSURES Status Effective Date County
Hayes Creek Permanent 5/25/1995 Missoula
Larson Creek Permanent 11/14/1988 Ravalli
Old Butte
Landfill/Clark Tailings
Site Permanent 12/17/1999 Silver Bow
Powder River Basin Permanent 12/15/1999 Custer
South Pine Permanent 11/1/1967 Wibaux
Green Meadow Temporary 4/11/2010 Lewis & Clark
North Hills Temporary 4/25/2010 Ravalli
WATER QUALITY
CLOSURES Status Effective Date County
Bitterroot Valley
Sanitary Landfill Permanent 2/9/2004 Ravalli
BNSF Paradise Permanent 8/19/2002 Sanders
BNSF Somers Site Permanent 5/9/2003 Flathead
Bozeman Solvent Site Permanent 7/20/1998 Gallatin
Idaho Pole Permanent 11/30/2001 Gallatin
Rocker Permanent 5/30/1997 Silver Bow
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US National Park
Service-MT Compact
Yellowstone Permanent 1/31/1994 Park
Warm Springs Ponds Permanent 5/25/1995 Deer Lodge
The Petition for Controlled Ground Water Area, form 630, is available
from the DNRC website. A petition must be filed with the appropriate
fee, and the petitioner must also pay the reasonable costs of
processing the petition.
Yellowstone Controlled Ground Water Area
The Yellowstone Controlled Ground Water Area was established under
the compact negotiated between the U.S. National Park Service (NPS)
and Montana under section 85-20-401, MCA, and became effective
January 31, 1994. It is located north and west of Yellowstone National
Park and was established to regulate ground water development
adjacent to the park in an effort to preserve the park’s natural
hydrothermal features. Ground water developments are restricted
within this area. The restrictions apply to ground water appropriations
with a priority date on or after January 1, 1993. Anyone wanting to
appropriate ground water in this area after January 31, 1994, must
apply for a permit from the DNRC. Depending on the rate and volume
of ground water needed and the temperature of the ground water at
the wellhead, different restrictions apply. All applicants must provide a
statement of whether the proposed water use requires water with a
temperature of 60 degrees Fahrenheit or more. All permits issued
require meters to be installed for measuring the total volume of water
used. Annual water usage must be reported to the Montana Bureau of
Mines and Geology in Butte. The DNRC provides the meters
necessary to gather data.
The compact requires the DNRC to send the NPS a copy of each
permit application, including a map and well log. The NPS has 30 days
to file an objection to the application and 60 days to file an objection to
the well log report if it determines that the proposed appropriation is
hydrologically connected to surface water or ground water specifically
described in the compact. The compact also provides certain
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requirements depending on the temperature of the water. Please refer
to section 85-20-401, MCA, Article IV, Section G, Part 2, for more
specific information.
Additional information and a map of the Yellowstone Controlled
Ground Water Area can be obtained by contacting the Water
Resources Regional Office at (406) 586-3136 or the Helena Central
Office at (406) 444-6610.
Closure of Highly Appropriated Basins
Montana has closed some of its river basins to certain types of new
water appropriations because of water availability problems,
overappropriation, and a concern for protecting existing water rights.
Sections 85-2-319 and 85-20-401, MCA, legislatively authorize the
closure of basins to certain new appropriations through the adoption of
administrative rules and negotiation of reserved water rights compacts.
Legislative Closures
1. The Upper Missouri River Basin, the Jefferson and Madison River
Basins, the Teton River Basin, and the Upper Clark Fork River
Basin are closed to certain new appropriations of water.
2. There are also temporary closures in the Bitterroot Basin and the
Clark Fork Basin.
3. The Legislature authorized the DNRC to study and close sources
of water in the Milk River Basin. Currently, portions of the
mainstem Milk River, all of Miners Coulee, Halfbreed Coulee, Bear
Creek, and their tributaries are closed to certain appropriations.
Administrative Rule Closures
The law also provides for the closure of highly appropriated basins
through the adoption of administrative rules. In order to adopt rules,
the DNRC must receive a petition signed by at least 25% or 10
(whichever is less) of the users of water from the source of supply
within the specific basin or receive a petition from the Montana
Department of Environmental Quality. The petition must show that
during certain times of the year, one of the following occurs:
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1. There is no unappropriated water in the source of supply.
2. The rights of prior appropriators would be adversely affected by
further appropriation.
3. Further new uses would interfere with other planned uses for which
a permit has been issued or water has been reserved.
4. The water quality of an appropriator would be adversely affected
by the issuance of permits.
5. Further use would not be substantially in accordance with the
classification of water set for the source of supply pursuant to
section 75-5-301(1), MCA.
6. Issuance of permits would adversely affect holders of a discharge
permit issued in accordance with Title 75, chapter 5, part 4, MCA,
in their ability to satisfy effluent limitations.
If the DNRC determines that rules should be adopted to close a basin,
notice will be provided and a public hearing held on the rules.
Depending on the evidence and testimony submitted, the rules could
close a basin:
1. to all new appropriations of water or to only consumptive uses;
2. during all times of the year or only during certain times of the year;
3. to all types of uses or to only specific types of uses.
Petition for Closure of a Highly Appropriated Basin, form 631, is
available from the DNRC. A petition must be filed with the appropriate
fee, and the petitioner also must pay reasonable processing costs.
Administrative Basin Closures County
Grant Creek, Houle Creek, and
Sixmile Creek
Missoula
Sharrott Creek and Willow Creek Ravalli
Walker Creek and Truman Creek Flathead
Rock Creek Carbon
Towhead Gulch Lewis and Clark
Musselshell River Meagher, Wheatland, Golden Valley,
Musselshell, Petroleum, Garfield, and
Rosebud
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Compact Closures
Under section 85-2-701, MCA, the RWRCC has several compacts with
Indian tribes and federal agencies. The following compacts have
closed certain sources of water to new appropriations.
1. The Northern Cheyenne-Montana Compact required the DNRC to
order a moratorium on the issuance of permits in the basin of
Rosebud Creek, a tributary to the Yellowstone River in Big Horn
and Rosebud Counties. The moratorium, effective May 20, 1991, is
for surface water and alluvial ground water.
2. The Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation-
Montana Compact has a moratorium on new state appropriations
effective April 15, 1997. There is at least a 10-year moratorium on
new state permits from sources in the Big Sandy Creek Basin
(excluding Sage Creek and Lonesome Lake Coulee) and in the
Beaver Creek drainage. The moratorium may be lifted by the
DNRC.
3. The United States Fish and Wildlife Service-Montana Compact
applies to Benton Lake National Wildlife Refuge and Black Coulee
National Wildlife Refuge. As of July 17, 1997, the following basins
have been closed to further appropriations or reservations of water
for consumptive use:
• Black Coulee WATERSHED; and
• Lake Creek watershed, including the unnamed
tributaries of Benton Lake.
4. The United States Fish and Wildlife Service, Red Rock Lakes-
Montana Compact includes a closure of appropriations for
consumptive use in the drainage basins upstream of the most
downstream point on the Red Rock Lakes National Wildlife Refuge
and the Red Rock Lakes Wilderness Area. Certain exceptions
apply.
5. The United States Bureau of Land Management-Montana Compact
applies to the Upper Missouri National Wild and Scenic River
(UMNW&SR) and the Bear Trap Canyon Public Recreation Site.
The compact, ratified March 28, 1997, closes the following basins:
• mainstem of the Missouri River to new storage;
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• IMPOUNDMENTS upstream from the UMNW&SR;
• Missouri River Basin upstream of the UMNW&SR to
new appropriations in any month in which the water
volume designated for the “available water supply” has
been exhausted.
6. The United States National Park Service-Montana Compact
applies to Glacier National Park, Big Hole National Battlefield, and
the portion of Yellowstone National Park that is in Montana. As a
result of the compact, the following areas will be closed to new
appropriations when the total appropriations reach a specified
level:
• Big Hole National Battlefield;
• North Fork of the Big Hole River and its tributaries,
including Ruby and Trail Creeks (these streams are
currently partially closed under the Jefferson/Madison
Basin Closure);
• Big Horn Canyon National Recreation Area:
• Dry Head, Deadman, Davis and Layout Creeks
• Glacier National Park;
• Middle Fork of the Flathead River;
• North Fork of the Flathead River;
• Yellowstone National Park;
• Bacon Rind, Buffalo, Cottonwood, Coyote, Crevice, Dry
Canyon, Hellroaring, Little Cottonwood, Slough,
Snowslide, Soda Butte, and Tepee Creeks;
• Gallatin, Madison, and Yellowstone Rivers.
7. The Crow Tribe-Montana Compact closes basins within the Crow
Reservation, the Bighorn River Basin, and Pryor Creek Basin to
new appropriations under state law. The basin closures, effective
June 22, 1999, are on all surface water and ground water requiring
a permit under state statute.
8. The Fort Belknap-Montana Compact closure extends, in the Milk
River Basin, from the Eastern Crossing of the Milk River (into the
United States from Canada) to the confluence between the Milk
River and the Missouri River composed of Basins 40F, 40G, 40H,
40I, 40J, 40K, 40L, 40M, 40N, and 40O both above the Western
Crossing (of the Milk River from the United States into Canada)
and below the Eastern Crossing. Certain exceptions apply.
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9. The Blackfeet Tribe-Montana Compact closure includes portions of
Basins 40F, 40T, 41L and 41M within the Reservation and from the
mainstems of the Reservation boundary streams (Birch Creek, Cut
Bank Creek, and the Two Medicine River).
Persons wishing further information on any of these compact closures
should contact the DNRC to determine the specifics of the restrictions
on these sources. The NPS compact also established the Yellowstone
Controlled Ground Water Area, which set up restrictions on
appropriating ground water.
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Sources of Information
All water right forms required by the DNRC are available at any of the
eight water resources regional offices listed below, the Helena Central
Office, or on the DNRC website at http://dnrc.mt.gov/wrd/default.asp.
DNRC Offices
Montana Department of Natural Resources and Conservation
Water Resources Division
Water Rights Bureau
1424 Ninth Ave.
P.O. Box 201601
Helena, MT 59620-1601
Phone: (406) 444-6610; Fax: (406) 444-5918
dnrc.mt.gov/wrd/default.asp
Water Resources Regional Offices
BILLINGS:
Airport Industrial Park
1371 Rimtop Dr.
Billings, MT 59105-1978
Phone: (406) 247-4415
Fax: (406) 247-4416
Serving: Big Horn, Carbon,
Carter, Custer, Fallon, Powder
River, Prairie, Rosebud,
Stillwater, Sweet Grass,
Treasure, and Yellowstone
Counties
BOZEMAN:
2273 Boot Hill Court, Suite 110
Bozeman, MT 59715
Phone: (406) 586-3136
Fax: (406) 587-9726
Serving: Gallatin, Madison, and
Park Counties
GLASGOW:
222 6th St. South
P.O. Box 1269
Glasgow, MT 59230-1269
Phone: (406) 228-2561
Fax: (406) 228-8706
Serving: Daniels, Dawson,
Garfield, McCone, Phillips,
Richland, Roosevelt, Sheridan,
Valley, and Wibaux Counties
HAVRE:
210 6th Ave.
P.O. Box 1828
Havre, MT 59501-1828
Phone: (406) 265-5516
Fax: (406) 265-2225
Serving: Blaine, Chouteau,
Glacier, Hill, Liberty, Pondera,
Teton, and Toole Counties
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HELENA:
1424 9th Ave.
P.O. Box 201601
Helena, MT 59620-1601
Phone: (406) 444-6999
Fax: (406) 444-9317
Serving: Beaverhead,
Broadwater, Deer Lodge,
Jefferson, Lewis and Clark,
Powell, and Silver Bow
Counties
KALISPELL:
109 Cooperative Way, Suite
110
Kalispell, MT 59901-2387
Phone: (406) 752-2288
Fax: (406) 752-2843
Serving: Flathead, Lake,
Lincoln, and Sanders Counties
LEWISTOWN:
613 Northeast Main St., Suite E
Lewistown, MT 59457-2020
Phone: (406) 538-7459
Fax: (406) 538-7089
Serving: Cascade, Fergus,
Golden Valley, Judith Basin,
Meagher, Musselshell,
Petroleum, and Wheatland
Counties
MISSOULA:
1610 S. 3rd St. West, Suite 103
P.O. Box 5004
Missoula, MT 59806-5004
Phone: (406) 721-4284
Fax: (406) 542-1496
Serving: Granite, Mineral,
Missoula, and Ravalli Counties
Montana Water Court
The Montana Water Court in Bozeman can provide information about
issued decrees, objections, water right hearings in the statewide
adjudication, and enforcement of water right decrees.
601 Haggerty Lane
P.O. Box 1389
Bozeman, MT 59771-1389
Phone: (406) 586-4364 or (toll-free number) (800) 624-3270
Fax: (406) 522-4131
montanacourts.org/water
E-mail: watercourt@mt.gov
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Environmental Quality Council
Water Policy Interim Committee
State Capitol, Room 171
P.O. Box 201704
Helena, MT 59620-1704
Phone: (406) 444-3742; Fax: (406) 444-3971
http://leg.mt.gov/eqc
Montana University System Water Center
101 Huffman Building
Montana State University-Bozeman
Bozeman, MT 59717
Phone: (406) 994-6690; Fax: (406) 994-1774
watercenter.montana.edu
E-mail:water@montana.edu
Other Information Sources
Several DNRC publications relate to water and are available online or
at DNRC headquarters, DNRC regional offices, or local libraries
through interlibrary loans with the Montana State Library.
New Appropriations Rules; Montana Basin Closures and Controlled
Groundwater Areas: http://dnrc.mt.gov/wrd/water_rts/default.asp
A Guide to Stream Permitting in Montana:
http://dnrc.mt.gov/permits/streampermitting/default.asp
Applications for the Renewable Resource Loan and Grant Program:
http://dnrc.mt.gov/cardd/ResDevBureau/renewable_grant_
program.asp
Various publications regarding water wells:
http://dnrc.mt.gov/wrd/water_op/bwwc/default.asp
Dam safety publications:
http://dnrc.mt.gov/wrd/water%5Fop/dam%5Fsafety/
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Water Conversion Table
FLOW RATE is the rate at which water is diverted or withdrawn from
the source. It is measured in gallons per minute (gpm) or cubic feet per
second (cfs). One cfs is a rate of water flow that will supply 1 cubic foot
of water in 1 second and is equivalent to flow rates of:
448.80 gpm
1.98 acre-feet a day
40.00 MINER’S INCHES in Montana (11.22 gpm)
VOLUME is the amount of water diverted over a specific period of time
each year. One acre-foot is the volume of water that will cover 1 acre
to a depth of 1 foot and is equal to:
43,560 cubic feet or 325,851 gallons
Water Right Forms and Fees
These water right forms are available from the water resources
regional offices or on the DNRC website at
http://dnrc.mt.gov/wrd/water_rts/wr_general_info/wrforms/
wr_forms.asp.
Form No. Title Fee
Form 600 Application for Beneficial Water Use Permit $200-
$800
Form 602 Notice of Completion of Groundwater
Development
$125
Form 602INS Groundwater Development Form Completion
Instructions
None
602 GENERAL
INS
General Instructions None
Form 603 Montana Well Log Report None
Form 605 Application for Provisional Permit for Completed
Stockwater Pit or Reservoir
$125
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Form No. Title Fee
Form 606 Application to Change a Water Right.
Other changes, including a replacement well that
exceeds 35 gallons per minute (gpm) or 10 acre-
feet or a municipal well that exceeds 450 gpm; or
a reservoir in the same source; or to move or add
stock tanks to an existing system.
$700
$200
Form 607 Application for Extension of Time $200
Form 608 DNRC Water Right Ownership Update ($10 for
each additional water right updated, up to a
maximum of $300)
$50
Form 609 Water Use Complaint None
Form 609INS Water Right Dispute Options None
Form 611 Objection to Application $25
Form 613 Fee Schedule for Water Use in Montana None
Form 615 Water Conversion Table None
Form 617INS Instructions for Notice of Completion of Permitted
Water Development
Form 617 Project Completion Notice for Permitted Water
Development
None
Form 618 Project Completion Notice for Change of a Water
Right
None
Form 618INS Instructions for Notice of Completion of Change
of a Water Right
Form 625 Correction of Water Right Record None
Form 626 Notice of Renewal of Temporary Water Right
Change
$200
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Form No. Title Fee
Form 630 Petition to the DNRC for Controlled Groundwater
Area (fee plus DNRC costs of giving notice,
holding hearing, etc.)
$1500
Form 631 Petition for Closure of a Highly Appropriated
Basin. Petition to the DNRC to adopt rules to
reject permit applications or modify or condition
permits issued in a highly appropriated water
basin or subbasin (fee plus DNRC costs of giving
notice, holding hearing, etc.)
$1500
Form 633 Aquifer Test Data Form None
Form 634 Replacement Well Notice $100
Form 635 Redundant Well Construction Notice $50
Form 637 Reinstate a permit or change authorization $200
Form 639 Waiver of statutory timelines - request additional
time regarding a water right application
None
Form 641 DNRC Ownership Update Divided Interest $50
Form 642 DNRC Ownership Update Exempt (Reserved)
Water Right
$25
Form 643 DNRC Ownership Update Severed Water Right $50
Form 644 Notice of Replacement Point of Diversion $400
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Glossary of Terms
abandonment — intentional, prolonged nonuse of a water right,
resulting in its loss.
acre-foot — the volume of water that will cover 1 acre to a depth of 1
foot.
adjudication — a judicial procedure decreeing the quantity and priority
date of all existing water rights in a basin.
Administrative Rules of Montana (ARM) — a collection of state agency
rules used in the implementation of federal and state codes.
adverse — unfavorable.
appeal — to transfer a case from a lower to a higher court for a new
hearing.
appropriate — to capture, impound, or divert water from its natural
course and apply toward a beneficial use.
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.
basin — the area drained by a river and its tributaries; a watershed.
biennium — a 2-year period.
claim — an assertion that a water right exists, usually occurring during
the adjudication process.
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compact — a legal agreement between Montana, a federal agency, or
an Indian tribe determining the quantification of federally or tribally
claimed water rights.
compliance — obeying and achieving the conditions of a rule, permit,
order, or law.
conservation district — a political subdivision of state government,
possessing both public and private attributes, that primarily distributes
irrigation water in a given region and that may also administer electric
power generation, water supply, drainage, or flood control.
constitution — the highest form of state law, agreed upon by the
people of the state, establishing the fundamental character and
concept of state government.
consumptive use — a beneficial use of water that reduces supply,
such as irrigation or municipal use.
cubic foot per second (cfs) — a rate of water flow that will supply 1
cubic foot of water in 1 second.
decreed water right — a water right issued by the court upon
adjudication of a stream.
discharge permit — an authorization from the Montana Department of
Environmental Quality that allows the discharge of WASTE within
specific parameters.
district — one of the territorial areas into which a state is divided for
judicial purposes; each district has a District Court presided over by a
District Court Judge.
diversion — an open, physical alteration of a stream’s flow away from
its natural course.
effluent — an outflow of waste.
exemption — freedom from a rule or obligation that applies to others.
existing right — a Montana water right originating on or before July 1,
1973; subject to adjudication.
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flow rate — that rate at which water is diverted from a source.
ground water — any water beneath the land surface, bed of a stream,
lake, or reservoir.
ground water area — an area enclosing a single, distinct body of
ground water.
hydrogeologic assessment — a report for a 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.
impoundment — gathering and enclosure, as in a reservoir.
injunction — a court order prohibiting a specific act or commanding the
undoing of some wrong or injury.
instream flow — water left in a stream for nonconsumptive uses such
as preservation of fish or wildlife habitat.
interested person — a person with a real property interest, water right,
or other economic interest that may be directly affected.
irrigation district — a subdivision of government, managed by a board
of directors, that supplies water to irrigators within a specified region.
issue remark — a statement added to an abstract of water right in a
water court decree by the department or the water court to identify
potential factual or legal issues associated with the claim. The term
also includes "gray area remarks" that were the result of the
verification process.
junior appropriator — a secondary user on a watercourse, holding a
water right inferior to previous (senior) users.
jurisdiction — the geographic area in which a court has authority.
miner’s inch — by Montana law, 1 cfs is approximately equal to 40
miner’s inches.
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Montana Code Annotated (MCA) — a collection of Montana laws and
regulations classified by subject.
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.
nonperennial flowing stream – a stream that does not flow
continuously year-round.
permit — an authorization to use water, issued by the state, specifying
conditions such as type, quantity, time, and location of use.
precedent — a course of action that serves as an example for a later
one.
preponderance of the evidence — convincing evidence that shows that
the facts are more probable than not.
priority date — the official date of an appropriation, generally the date
of established intent; used in determining seniority among water users.
provisional — temporary.
recharge — the resupply of water to rivers or aquifers.
reserved water right — a special water right accompanying federal
lands or Indian reservations, holding a priority date originating with the
creation of the land.
salvage — water made available through water-saving methods.
senior appropriator — an original user on a watercourse, holding a
water right superior to all subsequent (junior) users.
surface water — water above the land surface, including lakes, rivers,
streams, wetlands, wastewater, flood water, and ponds.
valid — recognized by law; legal and enforceable.
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volume — amount of water diverted over a specific period of time.
wasteful use — the unreasonable loss of water through the design or
negligent operation of an appropriation or water distribution facility or
the application of water to anything but a beneficial use. The term
"waste" as it relates to ground water does not include:
the withdrawal of reasonable quantities of ground water in
connection with the construction, development, testing, or
repair of a well or other means of withdrawal of ground water;
the inadvertent loss of ground water because of breakage of a
pump, valve, pipe, or fitting, if reasonable diligence is shown by
the person in effecting the necessary repair;
the disposal of ground water without further beneficial use that
must be withdrawn for the sole purpose of improving or
preserving the use of land by draining the same or that must be
removed from a mine to permit mining operations or to
preserve the mine in good condition;
the disposal of ground water used in connection with
producing, reducing, smelting, and milling metallic ores and
industrial minerals or that is displaced from an aquifer by the
storage of other mineral resources; and
the management, discharge, or reinjection of ground water
produced in association with a coal bed methane well.
watercourse — any naturally occurring stream or river, not including
ditches, culverts, or other constructed waterways.
water master — an attorney versed in water law who serves at the
discretion of the Water Court.
water quality — chemical, physical, and biological characteristics of
water that determine its suitability for a particular use.
water reservation — a water right held by a government entity for
future use or instream flow.
watershed — a geographic area that includes all land and water in a
drainage system.
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Persons with disabilities who need an alternative accessible format of
this document should contact:
Department of Natural Resources and Conservation
1424 9th Ave.
P.O. Box 201601
Helena, MT 59620-1601
Phone: (406) 444-6601
Fax: (406) 444-5918
TDD: (406) 444-6873
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