HomeMy WebLinkAboutAppendix D - Water Topic, Appropriation Rules.pdf
Updated
January 1, 2010
If there is any discrepancy between the administrative rules contained within this publication and the official
Administrative Rules of Montana as maintained by the Secretary of State's Office, the official, legal version is
that which is maintained by the Secretary of State's Office.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
TABLE OF CONTENTS
SUBCHAPTER 1 MONTANA WATER USE ACT __________________________________________ 5
36.12.101 DEFINITIONS .................................................................................................. 5
36.12.102 FORMS ........................................................................................................ 11
36.12.103 FORM AND SPECIAL FEES ....................................................................... 13
36.12.104 ISSUANCE OF INTERIM PERMITS ............................................................ 16
36.12.105 TEMPORARY EMERGENCY APPROPRIATIONS ..................................... 17
36.12.106 TESTING AND MONITORING .................................................................... 18
36.12.107 FILING FEE REFUNDS ............................................................................... 19
36.12.108 PUBLIC NOTICE COSTS ............................................................................ 20
36.12.110 LEGAL LAND DESCRIPTION STANDARDS .............................................. 21
36.12.111 MAP STANDARDS ...................................................................................... 22
36.12.112 PERIOD OF DIVERSION AND PERIOD OF USE STANDARDS ............... 23
36.12.113 RESERVOIR STANDARDS ........................................................................ 24
36.12.114 SOURCE NAME STANDARDS ................................................................... 25
36.12.115 WATER USE STANDARDS ........................................................................ 26
36.12.116 EVAPORATION STANDARDS .................................................................... 29
36.12.117 OBJECTION TO APPLICATION ................................................................. 30
36.12.120 BASIN CLOSURE AREA EXCEPTIONS AND COMPLIANCE ................... 32
36.12.121 AQUIFER TESTING REQUIREMENTS ...................................................... 33
36.12.122 CONTACTS ................................................................................................. 35
SUBCHAPTER 2 PROCEDURAL RULES FOR WATER RIGHT CONTESTED CASE HEARINGS __ 36
36.12.201 SCOPE AND PURPOSE ............................................................................. 36
36.12.202 DEFINITIONS .............................................................................................. 37
36.12.203 HEARING EXAMINERS .............................................................................. 38
36.12.204 COMMENCEMENT OF A CONTESTED CASE .......................................... 39
36.12.205 DEFECTIVE NOTICE OF APPLICATION ................................................... 40
36.12.206 REPRESENTATION .................................................................................... 41
36.12.207 INFORMAL DISPOSITION .......................................................................... 42
36.12.208 DEFAULT ..................................................................................................... 43
36.12.209 TIME ............................................................................................................. 44
36.12.210 CONSOLIDATION ....................................................................................... 45
36.12.211 DISQUALIFICATION OF HEARING EXAMINER ........................................ 46
36.12.212 PREHEARING CONFERENCE ................................................................... 47
36.12.213 MOTIONS TO HEARING EXAMINER ......................................................... 48
36.12.214 MOTIONS TO DIRECTOR .......................................................................... 49
36.12.215 DISCOVERY ................................................................................................ 50
36.12.216 DEPOSITIONS TO PRESERVE TESTIMONY............................................ 51
36.12.217 SUBPOENAS ............................................................................................... 52
36.12.218 RIGHTS OF PARTIES ................................................................................. 53
36.12.219 UNTIMELY OBJECTORS ............................................................................ 54
36.12.220 WITNESSES ................................................................................................ 55
36.12.221 RULES OF EVIDENCE ................................................................................ 56
36.12.222 CONTINUANCES ........................................................................................ 57
36.12.223 HEARING PROCEDURE............................................................................. 58
36.12.224 DISRUPTION OF HEARING ....................................................................... 59
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36.12.225 SITE VISIT ................................................................................................... 60
36.12.226 THE RECORD ............................................................................................. 61
36.12.227 VERBATIM RECORD .................................................................................. 62
36.12.228 THE DECISION ........................................................................................... 63
36.12.229 EXCEPTIONS TO THE HEARING EXAMINER'S PROPOSAL FOR
DECISION AND THE FINAL DECISION-MAKING PROCESS ................... 64
36.12.230 EX PARTE COMMUNICATIONS ................................................................ 65
36.12.231 REHEARING ................................................................................................ 66
36.12.232 EMERGENCY PROCEDURES ................................................................... 67
36.12.233 SEVERABILITY ........................................................................................... 68
36.12.234 REOPENING RECORD ............................................................................... 69
SUBCHAPTER 5 EXTENSIONS OF TIME FOR PERMIT AND CHANGE AUTHORIZATIONS ______ 70
36.12.501 DEFINITIONS .............................................................................................. 70
36.12.502 FILING AN APPLICATION FOR EXTENSION OF TIME ............................ 71
36.12.503 ACTION ON THE APPLICATION ................................................................ 72
36.12.1010 DEFINITIONS .............................................................................................. 73
36.12.1011 GRANT CREEK BASIN CLOSURE ............................................................. 74
36.12.1013 ROCK CREEK BASIN CLOSURE ............................................................... 75
36.12.1014 WALKER CREEK BASIN CLOSURE .......................................................... 76
36.12.1015 TOWHEAD GULCH BASIN CLOSURE ....................................................... 77
36.12.1016 MUSSELSHELL RIVER CLOSURE ............................................................ 78
36.12.1017 SHARROTT CREEK BASIN CLOSURE ..................................................... 79
36.12.1018 WILLOW CREEK BASIN CLOSURE ........................................................... 80
36.12.1019 TRUMAN CREEK BASIN CLOSURE .......................................................... 81
36.12.1020 SIXMILE CREEK BASIN CLOSURE ........................................................... 82
36.12.1021 HOULE CREEK BASIN CLOSURE ............................................................. 83
SUBCHAPTER 12 YELLOWSTONE CONTROLLED GROUND WATER AREA _________________ 84
36.12.1201 PURPOSE AND SCOPE ............................................................................. 84
36.12.1202 DEFINITIONS .............................................................................................. 85
36.12.1203 APPLICATION TYPES ................................................................................ 87
36.12.1204 APPLICATION FILING REQUIREMENTS .................................................. 88
36.12.1205 PROCESSING - NOTICE ............................................................................ 89
36.12.1206 WELL LOG REPORT AND SUPPLEMENT ................................................ 90
36.12.1207 OBJECTIONS .............................................................................................. 91
36.12.1208 HEARINGS .................................................................................................. 92
36.12.1210 FILING OF PROJECT COMPLETION NOTICE .......................................... 94
36.12.1211 METERS ...................................................................................................... 95
36.12.1212 REPLACEMENT WELLS ............................................................................. 96
SUBCHAPTER 13 FORM ACCEPTANCE ______________________________________________ 97
36.12.1301 PERMIT AND CHANGE APPLICATION ACCEPTANCE ............................ 97
SUBCHAPTER 14 FORM MODIFICATIONS _____________________________________________ 98
36.12.1401 PERMIT AND CHANGE APPLICATION MODIFICATION .......................... 98
SUBCHAPTER 15 DEFICIENCY LETTERS AND TERMINATION ____________________________ 99
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36.12.1501 PERMIT AND CHANGE APPLICATION DEFICIENCY LETTER AND
TERMINATION ............................................................................................ 99
SUBCHAPTER 16 CORRECT AND COMPLETE DETERMINATION _________________________ 100
36.12.1601 WATER RIGHT PERMIT AND CHANGE - CORRECT AND COMPLETE
DETERMINATION ..................................................................................... 100
SUBCHAPTER 17 PERMIT APPLICATION REQUIREMENTS _____________________________ 101
36.12.1701 FILING A PERMIT APPLICATION ............................................................ 101
36.12.1702 PERMIT APPLICATION CRITERIA - PHYSICAL SURFACE WATER
AVAILABILITY ........................................................................................... 103
36.12.1703 PERMIT APPLICATION CRITERIA - PHYSICAL GROUND WATER
AVAILABILITY ........................................................................................... 105
36.12.1704 PERMIT APPLICATION - EXISTING LEGAL DEMANDS ......................... 106
36.12.1705 PERMIT APPLICATION CRITERIA - COMPARISON OF PHYSICAL
WATER AVAILABILITY AND EXISTING LEGAL DEMANDS ................... 107
36.12.1706 PERMIT APPLICATION CRITERIA - ADVERSE EFFECT ....................... 108
36.12.1707 PERMIT APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS
AND OPERATION ..................................................................................... 109
SUBCHAPTER 18 PERMIT AND CHANGE APPLICATIONS ______________________________ 110
36.12.1801 PERMIT AND CHANGE APPLICATIONS - BENEFICIAL USE ................ 110
36.12.1802 PERMIT AND CHANGE APPLICATIONS - POSSESSORY INTEREST .. 111
SUBCHAPTER 19 CHANGE APPLICATIONS __________________________________________ 112
36.12.1901 FILING A CHANGE APPLICATION ........................................................... 112
36.12.1902 CHANGE APPLICATION - HISTORIC USE .............................................. 114
36.12.1903 CHANGE APPLICATION - ADVERSE EFFECT ....................................... 122
36.12.1904 CHANGE APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS
AND OPERATION ..................................................................................... 123
SUBCHAPTER 20 SALVAGE WATER ________________________________________________ 124
36.12.2001 SALVAGE WATER APPLICATIONS ......................................................... 124
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Subchapter 1
Montana Water Use Act
36.12.101 DEFINITIONS
Unless the context requires otherwise, to aid in the implementation of the Montana Water
Use Act and as used in these rules:
(1) "Act" means the Montana Water Use Act, Title 85, chapter 2, parts, 1-4, MCA.
(2) "Amount" refers to both a flow rate in gallons per minute (gpm), or cubic feet per second
(cfs), and a volume of water in acre-feet (af).
(3) "Animal unit month (AUM)" means a measurement of livestock numbers:
(a) one beef cow = 1 AUM
(b) one dairy cow = 1.5 AUM
(c) one horse = 1.5 AUM
(d) three pigs = 1 AUM
(e) five sheep = 1 AUM
(f) 300 chickens = 1 AUM
(4) "Applicant" means the person, as defined in 85-2-102(14), MCA, who files a permit or
change application with the department.
(5) "Application" for purposes of ARM 36.12.120 through 36.12.122, 36.12.1301,
36.12.1401, 36.12.1501, and 36.12.1601 means an application for beneficial water use permit,
Form No. 600, including criteria addendum form No. 600A, 600B, or 600ACF, or application to
change a water right, Form No. 606, including criteria addendum Form No. 606A, 606B,
606ASW, or 606T.
(a) For the purposes of ARM 36.12.117 "application" means an application filed under 85-2-
302, 85-2-316, 85-2-402, 85-2-407, and 85-2-408, MCA.
(6) "Appropriation right" means any right to the use of water which would be protected
under the law as it existed prior to July 1, 1973, and any right to the use of water obtained in
compliance with the provisions and requirements of the act.
(7) "Associated right" means multiple water rights filed by the same or different
appropriators that share the same point of diversion, place of use, or place of storage.
(8) "Basin closure area" means a hydrologic drainage basin area within which applications
for certain water use permits cannot be accepted. Basin closure areas can be designated by
statute, administrative rule, or in compacts.
(9) "Certificate of survey number" means the official number given a parcel of land created
by a registered land survey as filed with the county clerk and recorder.
(10) "Cfs" means a flow rate of water in cubic feet per second and is equivalent to 448.8
gallons per minute. Applications for a flow rate of less than one cfs will be converted to gallons
per minute.
(11) "Change authorization" or "change" means an approval by the department to make a
change in appropriation right as defined by 85-2-102, MCA, and allowed by 85-2-402, MCA.
(12) "Claim" means a statement of claim filed pursuant to 85-2-221, MCA, for a water right
established prior to July 1, 1973.
(13) "Combined appropriation" means an appropriation of water from the same source
aquifer by two or more groundwater developments, that are physically manifold into the same
system.
(14) "Cone of depression" means a cone-shaped depression of water table or pressure
surface developing around a pumping well.
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(15) "Consumptive use" means the annual volume of water used for a beneficial purpose,
such as water transpired by growing vegetation, evaporated from soils or water surfaces, or
incorporated into products that does not return to ground or surface water.
(16) "Controlled groundwater area" means an area that has additional management
controls applied to new groundwater uses pursuant to 85-2-506 through 85-2-508, MCA.
(17) "Criteria addendum" means that additional portion of an application on which
substantial credible information must address the criteria listed in 85-2-311 and 85-2-402, MCA.
(18) "Dam" means an artificial barrier created by man-made means designed to form a
basin to hold water and create a pond or reservoir.
(19) "Deep percolation" means water that percolates below the root zone and infiltrates a
deeper aquifer that is not used by other appropriators or connected to a surface water source.
(20) "Department" means the Montana Department of Natural Resources and Conservation
(DNRC).
(21) "Domestic use" means those water uses common to a household including:
(a) food preparation;
(b) washing;
(c) drinking;
(d) bathing;
(e) waste disposal;
(f) cooling and heating; and
(g) garden and landscaping irrigation up to five acres.
(22) "Drainage device" means a mechanism capable of draining or releasing substantially
the full capacity of a reservoir.
(23) "Element" means the factors which describe a water right including, but not limited to:
(a) the priority date;
(b) source of supply;
(c) point of diversion;
(d) means of diversion;
(e) period of diversion;
(f) flow rate;
(g) volume;
(h) acreage;
(i) purpose;
(j) place of use;
(k) period of use;
(l) storage capacity; and
(m) storage location.
(24) "Existing right", in addition to the definition given the term by 85-2-102(8), MCA,
includes any appropriation of water commenced prior to July 1, 1973, if completed according to
the law as it existed when the appropriation was begun.
(25) "Evapotranspiration" means the loss of water from the soil both by evaporation and by
transpiration from living plants.
(26) "Flow rate" is a measurement of the rate at which water flows or is diverted,
impounded, or withdrawn from the source of supply for beneficial use, and commonly measured
in cubic feet per second (cfs) or gallons per minute (gpm).
(27) "General abstract" means a department-generated document that reflects certain water
right elements from the department's database.
(28) "Gpm" means a flow rate of water in gallons per minute.
(29) "Household" means the dwelling, house, or other domestic facilities where an
individual, family, or social unit lives.
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(30) "Hydraulically connected" means a saturated water-bearing zone or aquifer in contact
with surface water or other water-bearing zone where rate of exchange of water between the
two sources depends on the water level of the water-bearing zone or aquifer.
(31) "Hydrologic system" means the overall movement of water, including snow and ice,
above, on, or below the earth's surface.
(32) "Irrigation use" means the controlled application of water to land to supply water
requirements not satisfied by rainfall.
(33) "Means of diversion" means the type of structures, facilities, or methods used to
appropriate, impound, or collect water. Examples include, but are not limited to the following:
(a) dike;
(b) dam;
(c) ditch;
(d) headgate;
(e) infiltration gallery;
(f) pipeline;
(g) pump;
(h) pit; or
(i) well.
(34) "Median year" means that water flow would be at the 50th percentile. Half of the years
would have had higher flows and the other half would have had lower flows.
(35) "Multiple domestic use" means a domestic use by more than one household or
dwelling characterized by long-term occupancy as opposed to guests. Examples are domestic
uses by:
(a) colonies;
(b) condominiums;
(c) townhouses; and
(d) subdivisions.
(36) "Municipal use" means water appropriated by and provided for those in and around a
municipality or an unincorporated town.
(37) "Net depletion" for the purposes of 85-2-360, MCA, means the calculated volume, rate,
timing, and location of reductions to surface water resulting from a proposed groundwater
appropriation that is not offset by the corresponding accretions to surface water by water that is
not consumed and subsequently returns to the surface water.
(38) "Notice area" means a geographic area determined by the department which may
include water rights affected by an application.
(39) "Off-stream reservoir" means a reservoir that is not located on the source of supply and
is supplied with water from a diversion means such as a pipe, headgate and ditch, or other
means.
(40) "On-stream reservoir" means a reservoir that is located on the source of supply.
(41) "Owner of record" means a person who, according to the department's records, is the
current owner of a water right.
(42) "Ownership update" means the updating of the department's water right ownership
records by the filing of an ownership update form, Form No. 608, pursuant to 85-2-421 through
85-2-426, MCA. The department's form does not transfer water rights or legally determine
water right ownership. It only updates the department's centralized ownership records as
reflected by the legal documents that actually transfer water rights.
(43) "Period of diversion" means the period in a calendar year when water is diverted,
impounded, or withdrawn from the source of supply. It is described by the earliest month and
day and the latest month and day water is diverted during each year.
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(44) "Period of use" means the period in a calendar year when water is used for specified
beneficial use. It is described as the earliest month and day and the latest month and day the
water is beneficially used during each year.
(45) "Place of use (POU)" means the land, facility, or site where water is beneficially used.
(46) "Point of diversion (POD)" means the location or locations where water is diverted from
the source of supply.
(47) "Pit, pit-dam, or pond" means a body of water that is created by man-made means,
which stores water for beneficial use.
(48) "Place of storage" means a reservoir, pit, pit-dam, or pond.
(49) "Potentially affected area" for the purposes of 85-2-361, MCA, means, as referred to in
basin closure rules and in the context of a hydrogeologic assessment, the area or estimated
area where groundwater will be affected by a proposed project. The identified area is not
required to exceed the boundaries of the drainage subdivisions established by the Office of
Water Data Coordination, United States Geological Survey, and used by the Water Court,
unless the applicant chooses to expand the boundaries.
(50) "Possessory interest" means the right to exert some interest or form of control over
specific land. It is the legal right to possess or use property by virtue of an interest created in
the property, though it need not be accompanied by fee title, such as the right of a tenant,
easement holder, or lessee.
(51) "Primary diversion" means the initial point from which a diversion means will remove or
impound water from the source of supply.
(52) "Priority date" means the clock time, day, month, and year assigned to a water right
application or notice upon department acceptance of the application or notice. The priority date
determines the ranking among water rights.
(53) "Project" means a place of use that has its own identifiable flow rate, volume, and
means of diversion.
(54) "Recreational use" includes but is not limited to swimming, boating, water sports, and
fishing.
(55) "Reservoir" means a pond, pit, or pit-dam, created by man-made means that impounds
and stores water.
(56) "Return flow" means that part of a diverted flow which is applied to irrigated land and is
not consumed and returns underground to its original source or another source of water, and to
which other water users are entitled to a continuation of, as part of their water right. Return flow
is not wastewater. Rather, it is irrigation water seeping back to a stream after it has gone
underground to perform its nutritional function. Return flow results from use and not from water
carried on the surface in ditches and returned to the stream.
(57) "Secondary diversion" means a diversion that is not from the source of supply but is a
diversion that is used after the water is diverted from the source of supply at the primary
diversion. For example, a pump in a ditch or reservoir is a secondary diversion.
(58) "Seepage water" means that part of a diverted flow which is not consumptively used
and which slowly seeps underground and eventually returns to a surface or groundwater
source, and which other water users can appropriate, but have no legal right to its continuance.
Typical examples of seepage water include underground losses from an irrigation ditch or pond.
(59) "Senior water right" means a water right with a priority date that is earlier in time than
another water right.
(60) "Source aquifer" means the specific groundwater source from which water is diverted
for a beneficial use.
(61) "Source of supply" means the specific surface or groundwater source from which water
is diverted for a beneficial use.
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(62) "Spring" means a hydrologic occurrence of water involving the natural flow of water
originating from beneath the land surface and arising to the surface of the ground. A developed
spring is groundwater if some physical alteration of its natural state occurs at its point of
discharge from the ground, such as simple excavation, cement encasement, or rock cribbing.
An undeveloped spring is surface water if no development occurs at its point of discharge and
the appropriation is made from the waters flowing on the surface of the ground.
(63) "Stock use" means the use of water for livestock, including but not limited to cattle,
horses, pigs, sheep, llamas, and animals owned and controlled on game farms. It does not
include domestic animals such as dogs and cats or wild animals.
(64) "Surface water" means all water of the state at the surface of the ground, including but
not limited to any river, stream, creek, ravine, coulee, undeveloped spring, lake, and other
natural surface source of water regardless of its character or manner of occurrence.
(65) "Temporary authorization or temporary change" means an authorization to change
granted pursuant to 85-2-407 and 85-2-408, MCA, for a specific period of time and with an
automatic expiration date.
(66) "Temporary emergency appropriation" means the temporary beneficial use of water
necessary to protect lives or property by reason of fire, storm, earthquake or other disaster, or
unforeseen combination of circumstances which call for immediate action. An appropriation
made necessary due to drought conditions is not a temporary emergency appropriation.
(67) "Temporary permit" means a permit to appropriate water granted pursuant to Title 85,
chapter 2, part 3, MCA, for a specific period of time and with an automatic expiration date.
(68) "Transitory diversion" means a movable diversion that will divert water from several
nonspecific points along a source of supply.
(69) "Tributary" means the following:
(a) a surface water source feeding another surface water source; or
(b) groundwater hydraulically connected to a surface water source.
(70) "Unnamed tributary" means a surface water stream, coulee, or draw, which is not
named on a United States Geological Survey (USGS) or Water Resources Survey (WRS) map.
(71) "Use of water for the benefit of the appropriator" means:
(a) the amount of water reasonably needed for the intended purpose;
(b) the amount of water needed for conveyance to the intended purpose; and
(c) water used for instream flow.
(72) "Volume" means the acre-feet of water. Twelve acre-inches or 325,851 gallons are
equal to one acre-foot.
(73) "Wastewater" means that part of a diverted flow which is not consumptively used and
which returns as surface water to any surface water source, and which other water users can
appropriate, but have no legal right to its continuance. A typical example is an irrigator who
turns into the individual furrows traversing the irrigator's field from the head ditch more water
than can seep into the ground. The water that stays on the surface and is not absorbed into the
earth and which remains at the end of the furrow and is collected in a wastewater ditch is
wastewater.
(74) "Water flow estimating technique" means a mathematical method of estimating flow
generally accepted by the department. This may be accomplished by correlating
measurements of diversion system components with actual water use to estimate flow rate or
volume of water used. An example is the use of measurements of power consumed by a pump
to estimate the amount of water delivered by a pump. Another flow estimating technique would
be to apply specific formulas developed by professional hydrologists based on climatic, basin, or
stream channel characteristics to estimate stream flow.
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(75) "Water measuring device" means equipment that directly measures water flow in open
or closed channels and conduits. Examples would be flow meters, weirs, flumes, and bucket
and stop watch.
(76) "Water Resources Survey (WRS)" means a survey by county of water resources and
water rights in Montana by the former State Engineer's Office or Water Resources Board,
predecessors of the department.
(77) "Water saving method" means a change to the actual water use system or
management of water use in which the modification being made would decrease the amount of
water needed to accomplish the same result. Water saving methods might include:
(a) changing from a ditch conveyance to a pipeline;
(b) lining an earthen ditch with concrete or plastic; and
(c) changing management of a water system to decrease water consumption.
(78) "Zone of influence" means the horizontal extent of the cone of depression.
History: 85-2-113, 85-2-308 , 85-2-370, MCA; IMP, 85-2-113, 85-2-301 through 85-2-319, 85-2-321 through
85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-
351, 85-2-360 through 85-2-364, 85-2-368, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413,
85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501 through 85-2-514, 85-2-518, 85-2-520, MCA;
NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 1987 MAR p. 1560, Eff. 9/11/87; AMD, 1992 MAR p. 1615, Eff. 7/31/92;
AMD, 1993 MAR p. 1335A, Eff. 6/25/93; AMD, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2006 MAR p. 1387, Eff.
6/2/06; AMD, 2007 MAR p. 508, Eff. 3/26/07; AMD, 2007 MAR p. 1098, Eff. 8/10/07; AMD, 2008 MAR p. 140, Eff.
2/1/08; AMD, 2008 MAR p. 567, Eff. 3/28/08.
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36.12.102 FORMS
(1) The following necessary forms for implementation of the act and these rules are
available from the Department of Natural Resources and Conservation, P.O. Box 201601,
Helena, Montana 59620-1601 and its Water Resources regional offices, or on the World Wide
Web at http://dnrc.mt.gov/wrd/default.asp. The department may revise as necessary the
following forms to improve the administration of these rules and the applicable water laws:
(a) Form No. 600, "Application for Beneficial Water Use Permit" (for groundwater
developments in excess of 35 gpm or ten acre-feet per year and surface water appropriations):
(i) Form No. 600A, "Criteria Addendum, Application for Beneficial Water Use Permit,"
information must be submitted for appropriations of less than 4000 acre-feet and 5.5 cfs; or
(ii) Form No. 600B, "Criteria Addendum, Application for Beneficial Water Use Permit,"
information must be submitted for appropriations of 4000 acre-feet or more and 5.5 cfs or more.
(b) Form No. 602, "Notice of Completion of Groundwater Development" (for groundwater
developments with a maximum use of 35 gpm or less, not to exceed ten acre-feet per year);
(c) Form No. 603, "Well Log Report";
(d) Form No. 605, "Application for Provisional Permit for Completed Stockwater Pit or
Reservoir" (maximum capacity of the pit or reservoir must be less than 15 acre-feet);
(e) Form No. 606, "Application to Change a Water Right":
(i) submission of this application must include information required by the following criteria
addenda, when applicable:
(A) Form No. 606B, "Supplement to Application to Change a Water Right" (for changes in
purpose of use or place of use of 4000 or more acre-feet a year and 5.5 cfs or more);
(B) Form No. 606ASW, "Supplement to Application to Change a Water Right" (for salvage
water); or
(C) Form No. 606T, "Temporary Change Supplement to Application to Change a Water
Right".
(f) Form No. 607, "Application for Extension of Time";
(g) Form No. 608, "Water Right Ownership Update":
(i) Form No. 608A, "Addendum to Water Right Ownership Update Form for Apportioned
Water Right".
(h) Form No. 611, "Objection to Application";
(i) Form No. 613, "Fee Schedule for Water Use in Montana";
(j) Form No. 615, "Water Conversion Table";
(k) Form No. 617, "Project Completion Notice for Permitted Water Development";
(l) Form No. 618, "Project Completion Notice for Change of a Water Right";
(m) Form No. 625, "Water Right Correction";
(n) Form No. 626, "Application to Renew a Temporary Water Right Change";
(o) Form No. 630, "Controlled Groundwater Area Petition";
(p) Form No. 631, "Petition for Closure of a Highly Appropriated Basin";
(q) Form No. 634, "Replacement Well Notice" (for municipal wells that do not exceed 450
gpm or for all other wells that do not exceed 35 gpm and ten acre-fee per year);
(r) Form No. 635, "Redundant Well Construction Notice" (for redundant wells in a public
water supply system as defined by 75-6-102, MCA);
(s) Form No. 636, "Interim Permit Request";
(t) Form No. 637, "Reinstatement Request" (for reinstating a permit or change
authorization);
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
(u) Form No. 638, "Water Reservation Application for Instream Flow" (for instream flow
water reservation applications allowed under the United States of America, Department of
Agriculture, Forest Service-Montana Compact, Article VI, section B);
(v) Form No. 640, "Certification of Water Right Ownership Update" (must be completed and
submitted to the county clerk and recorder with a Realty Transfer Certificate when a water right
is being divided or exempted [reserved] from the property);
(w) Form No. 641, "DNRC Ownership Update, Divided Interest" (use for a water right that
will be divided);
(x) Form No. 642, "DNRC Ownership Update, Exempt (Reserved) Water Right" (use for a
water right that will be exempted [reserved] from a sale of land and the seller will retain
ownership of the water right); and
(y) Form No. 643, "DNRC Ownership Update, Severed Water Right" (use to sever a water
right from land. A severed water right does not involve a land sale).
History: 85-2-113, MCA; IMP, 85-2-113, 85-2-424, MCA; NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 1982 MAR
p. 702, Eff. 4/16/82; AMD, 1984 MAR p. 882, Eff. 6/1/84; AMD, 1987 MAR p. 1560, Eff. 9/11/87; AMD, 1992 MAR
p. 1615, Eff. 7/31/92; AMD, 1996 MAR p. 2430, Eff. 9/20/96; AMD, 2000 MAR p. 636, Eff. 2/25/00; AMD, 2003
MAR p. 1535, Eff. 7/18/03; AMD, 2008 MAR p. 326, Eff. 2/15/08; AMD, 2008 MAR p. 1820, Eff. 8/29/08.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.103 FORM AND SPECIAL FEES
(1) A filing fee, if required, shall be paid at the time the permit, change, notice of completion,
extension of time request, temporary change renewal, ownership update, or petition application
(hereafter singularly or collectively referred to as application) is filed with the department. The
department will not process any application without the proper filing fee. Failure to submit the
proper filing fee within 30 days after notice shall result in a determination that the application is
not correct and complete and it shall be terminated.
(a) For an Application for Beneficial Water Use Permit, Form No. 600, filed pursuant to 85-2-
330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, or in an administratively closed basin
pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, or a controlled groundwater area pursuant
to 85-2-506 and 85-2-507, MCA, or filed under a compact pursuant to Title 85, chapter 20,
MCA, for all surface water, or a groundwater appropriation of greater than 35 gallons per
minute, there shall be a fee of $800.
(b) For an Application for Beneficial Water Use Permit, Form No. 600, filed pursuant to 85-2-
330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, or in an administratively closed basin
pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, or a controlled groundwater area pursuant
to 85-2-506 and 85-2-507, MCA, or filed under a compact pursuant to Title 85, chapter 20,
MCA, for a groundwater appropriation of 35 gallons per minute or less, there shall be a fee of
$200.
(c) For an Application for Beneficial Water Use Permit, Form No. 600, not filed pursuant to
85-2-330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, nor in an administratively closed
basin pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, nor a controlled groundwater area
pursuant to 85-2-506 and 85-2-507, MCA, nor filed under a compact pursuant to Title 85,
chapter 20, MCA, for all surface water, or a groundwater appropriation of greater than 35
gallons per minute there shall be a fee of $600.
(d) For an Interim Permit Request, Form No. 636, there shall be a fee of $150 in addition to
(1)(a), (b), or (c).
(e) For a Notice of Completion of Groundwater Development (for groundwater developments
with a maximum use of 35 gpm or less, not to exceed ten acre-feet per year), Form No. 602,
there shall be a fee of $125.
(f) For an Application for Provisional Permit for Completed Stockwater Pit or Reservoir
(maximum capacity of the pit or reservoir must be less than 15 acre-feet), Form No. 605, there
shall be a fee of $125.
(g) For an Application to Change a Water Right, Form No. 606, there shall be a fee of $700,
except there shall be a fee of $200 when:
(i) the change application, Form No. 606, concerns a replacement well, greater than 35 gpm
or ten acre-feet, or a municipal well that does not exceed 450 gpm, or replacement reservoir
located on the same source; or
(ii) the change application, Form No. 606, concerns only moving or adding stock tanks to an
existing system.
(h) For an Application for Extension of Time, Form No. 607, there shall be a fee of $200.
(i) For a Water Right Ownership Update, Form No. 608, there shall be a fee of $50, plus $10
for each water right transferred after the first water right, not to exceed a maximum of $300.
(j) For filing an Objection to Application, Form No. 611, there shall be a fee of $25.
(k) For an Application to Renew a Temporary Water Right Change, Form No. 626, there
shall be a fee of $200.
(l) For a Controlled Groundwater Area Petition, Form No. 630, there shall be a fee of $1500,
plus the petitioner shall also pay:
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
(i) photocopy and postage costs for copying and mailing the appointment of the hearing
examiner, notice of hearing, and petition to all land owners and water right owners located
within the proposed boundaries, and other persons as required by 85-2-506, MCA;
(ii) photocopy and postage costs for copying and mailing the hearing examiner's proposal for
decision, final order, and other orders as needed;
(iii) newspaper publication of the notice of hearing and orders as required by statute and the
hearing examiner;
(iv) actual rental costs for the hearing location and required sound equipment as determined
by the hearing examiner; and
(v) other costs of holding the hearing, conducting investigations or studies, and making
records pursuant to 85-2-506 and 85-2-507, MCA, except the cost of salaries of the department
personnel.
(m) For a Petition for Closure of a Highly Appropriated Basin, Form No. 631, there shall be a
fee of $1500, plus the petitioner shall also pay:
(i) publication costs of the proposed rules in the Montana Administrative Register;
(ii) photocopy and postage costs for copying and mailing the Administrative Rule Proposal
Notice and appointment of the hearing examiner to all land owners and water right owners
located within the proposed boundaries and other persons as required by 85-2-319, MCA;
(iii) photocopy and postage costs for copying and mailing the Notice of Adoption and other
documents as needed;
(iv) newspaper publication of the Notice of Rulemaking Hearing;
(v) actual rental costs for the hearing location and required sound equipment as determined
by the hearing examiner; and
(vi) other costs of holding the hearing, conducting investigations or studies, and making
records pursuant to 85-2-319, MCA, except the cost of salaries of the department personnel.
(n) For a Replacement Well Notice, Form No. 634, there shall be a fee of $100.
(o) For a Redundant Well Construction Notice, Form No. 635, there shall be a fee of $50.
(p) For a Reinstatement Request, Form No. 637, there shall be a fee of $200.
(q) For a Water Reservation Application for Instream Flow, Form No. 638, there shall be a
fee of $800, plus the applicant shall also pay:
(i) photocopy and postage costs for copying and mailing the appointment of the hearing
examiner and notice of hearing;
(ii) photocopy and postage costs for copying and mailing the hearing examiner's proposal for
decision, final order, and other orders as needed;
(iii) newspaper publication of the notice of hearing and orders as required by statute and the
hearing examiner;
(iv) actual rental costs for the hearing location and required sound equipment as determined
by the hearing examiner; and
(v) other costs of holding the hearing, conducting investigations or studies, and making
records pursuant to 85-2-506 and 85-2-507, MCA, except the cost of salaries of the department
personnel.
(r) For Form No. 641, DNRC Ownership Update, Divided Interest, there shall be a fee of $50
for each divided water right.
(s) For Form No. 642, DNRC Ownership Update, Exempt (Reserved) Water Right, there
shall be a fee of $25 for each exempted water right.
(t) For Form No. 643, DNRC Ownership Update, Severed Water Right, there shall be a fee
of $50 for each severed water right.
(2) There shall be no fees charged for filing the following forms:
(a) Form No. 608A, Addendum to Water Right Ownership Update Form for Apportioned
Water Right;
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
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(b) Form No. 617, Project Completion Notice of Permitted Water Development;
(c) Form No. 618, Project Completion Notice for Change of a Water Right;
(d) Form No. 625, Correction to a Water Right; and
(e) Form No. 640, Certification of Water Right Ownership Update.
(3) The department will charge special fees not to exceed reasonable amounts for the
following services:
(a) microfilm, reader-printer copies;
(b) photostatic copies;
(c) requested computer services;
(d) blueprints or tracings;
(e) costs associated with contracting for professional hearings officer services;
(f) audio copy of hearing.
History: 85-2-113, MCA; IMP, 85-2-113, 85-2-312, MCA; NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 1982 MAR
p. 702, Eff. 4/16/82; AMD, 1984 MAR p. 882, Eff. 6/1/84; AMD, 1985 MAR p. 1242, Eff. 8/30/85; AMD, 1987 MAR
p. 1560, Eff. 9/11/87; AMD, 1991 MAR p. 1009, Eff. 6/28/91; AMD, 1992 MAR p. 1615, Eff. 7/31/92; AMD, 1993
MAR p. 1335A, Eff. 6/25/93; AMD, 1996 MAR p. 2430, Eff. 9/20/96; AMD, 1997 MAR p. 2084, Eff. 11/18/97; AMD,
2000 MAR p. 636, Eff. 2/25/00; AMD, 2003 MAR p. 1535, Eff. 7/18/03; AMD, 2008 MAR p. 326, Eff. 2/15/08; AMD,
2008 MAR p. 1820, Eff. 8/29/08.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.104 ISSUANCE OF INTERIM PERMITS
(1) Pending final approval or denial of an application for a provisional permit, the department
may, in its discretion and upon proper application, issue an interim permit authorizing an
applicant to begin appropriating water immediately.
(a) The department may issue an interim permit, unless there is substantial information
available to the department that the criteria for issuing a provisional permit under 85-2-311 ,
MCA, cannot be met.
(b) An interim permit may be issued subject to any terms and conditions the department
considers necessary to protect the rights of prior appropriators. Violation of a term or condition
shall automatically void an interim permit.
(2) The issuance of an interim permit does not entitle an applicant to a provisional permit,
and approval of the application for a provisional permit is subject to the procedures and criteria
set out in the act.
(3) A person may not obtain any vested right to an appropriation obtained under an interim
permit by virtue of the construction of diversion works, purchase of equipment to apply water,
planting of crops, or other action where the provisional permit is denied or is modified from the
terms of the interim permit.
History: 85-2-113, MCA; IMP, 85-2-113, 85-2-311 through 85-2-314, MCA; NEW, Eff. 7/5/73; AMD, Eff.
2/4/75; AMD, 1987 MAR p. 1560, Eff. 9/11/87; AMD, 1993 MAR p. 1335A, Eff. 6/25/93.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 17
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.105 TEMPORARY EMERGENCY APPROPRIATIONS
(1) A temporary emergency appropriation may be made without prior approval from the
department, but the use must cease immediately when the water is no longer required to meet
the emergency.
(2) A temporary emergency appropriation does not include the use of water for the ordinary
operation and maintenance of any trade or business.
History: 85-2-113, MCA; IMP, 85-2-113, MCA; NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 2003 MAR p. 1535,
Eff. 7/18/03.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.106 TESTING AND MONITORING
(1) Water testing or monitoring is not a beneficial use of water requiring the filing of a permit
application.
(2) A permit is not required if the intent of a person is to conduct aquifer tests, water quality
tests, water level monitoring or other testing or monitoring of a water source.
History: 85-2-113, MCA; IMP, 85-2-113, MCA; NEW, 1993 MAR p. 1335A, Eff. 6/25/93.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.107 FILING FEE REFUNDS
(1) An applicant may be entitled to a refund if the applicant withdraws an application prior to
public notice or a deadline set by the department for the applicant to make an application
correct and complete.
(2) No refund will be authorized if substantial direct processing costs have been accrued in
making the application correct and complete prior to publication or department waiver of
publication.
(3) No refund will be authorized upon termination of an application due to an applicant’s
failure to provide additional information necessary to make an application correct and complete
within the deadlines provided by the department.
(4) No refund will be authorized once the public notice of the application has been initiated.
(5) If an applicant inadvertently files the wrong form, the applicant may apply the fee paid to
the fee required for the correct form, pay the difference due, or be entitled to a refund if
overpayment is made.
(6) If a water right application is withdrawn within 30 days after the objection deadline, the
Objection to Application filing fee will be refunded.
(7) A refund of the Objection to Application filing fee will not be authorized if a person
objecting to a proposed application under 85-2-308, MCA, does not correct the deficiencies
identified in the Objection Deficiency Notice by the deadline specified in the notice.
(8) With the exception of (6), a refund of the Objection to Application filing fee will not be
authorized.
History: 85-2-113, 85-2-302, MCA; IMP, 85-2-113, 85-2-302, MCA; NEW, 2003 MAR p. 1535, Eff. 7/18/03;
AMD, 2008 MAR p. 567, Eff. 3/28/08.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.108 PUBLIC NOTICE COSTS
This rule has been repealed.
History: 85-2-113, MCA; IMP, 85-2-113, 85-2-307, MCA; NEW, 2003 MAR p. 1535, Eff. 7/18/03; REP, 2008
MAR p. 1820, Eff. 8/29/08.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.110 LEGAL LAND DESCRIPTION STANDARDS
(1) Primary or secondary points of diversion must be described as one or more of the
following:
(a) ¼¼¼ section, section, township, range and county;
(b) lot, block, subdivision, ¼ section, section, township, range and county;
(c) government lot, ¼ section, section, township, range and county; or
(d) certificate of survey number with or without a lot number, ¼ section, section, township,
range and county.
(2) The point of diversion legal description of an on-stream reservoir must be described as
the point where the dam or pit crosses the source of supply.
(3) Transitory diversions must be described as the most upstream diversion point and a
measurement in stream miles downstream from the upstream point. For example the transitory
diversion will extend from the upstream point to approximately one mile downstream.
(4) If secondary diversions are described, they must be identified as "secondary".
(5) The legal land description for the place of use must be listed to the nearest reasonable
and concise legal land description. For example, it would be appropriate to describe 20 acres in
the N½NWNW rather than ten acres in the NWNWNW and ten acres in the NENWNW. For a
subdivision covering most of the SW, it would be appropriate to describe the place of use as the
SW rather than the NWSW, NESW, SWSW, and SESW.
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-
2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2005 MAR p.
162, Eff. 1/1/05.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.111 MAP STANDARDS
(1) A United States geological survey (USGS) quadrangle map or United States Department
of Agriculture (USDA) aerial photo must be included with the application and the following items
must be clearly identified on the map:
(a) north arrow;
(b) scale bar;
(c) section corners and numbers;
(d) township and range numbers;
(e) all past and proposed points of diversion;
(f) all past and proposed places of use;
(g) past and proposed reservoir locations; and
(h) past and proposed ditch or pipeline locations.
(2) Maps must reflect the place of use of all associated water rights.
(3) Additional maps must be submitted if the information on one map cannot convey the
required information clearly and must be of the same scale so that they can be overlain.
(4) For change applications to irrigation water rights, in addition to the map required in (1)
and (2) , a copy of the Water Resources Survey map, if available for the land affected by the
change, shall be submitted with the historically irrigated acreage identified.
(5) For change applications, all historically irrigated acreage must be identified on an aerial
photograph that shows the date the aerial photo was taken.
(6) In addition, a county plat map obtained from the county office may be submitted. The
county plat map must show the same information as required under (1) .
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-85 85-2-329 through 85-2-
331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2004 MAR p.
3036, Eff. 1/1/05.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.112 PERIOD OF DIVERSION AND PERIOD OF USE STANDARDS
(1) Deviations from the standards listed below require information supporting the period of
diversion or use requested in an application:
(a) domestic January 1 to December 31
(b) stock January 1 to December 31
(c) irrigation based on the climatic area designated by the USDA Natural Resources and
Conservation Service (NRCS) which is generally as follows:
(i) climatic area I March 15 to November 15
(ii) climatic area II April 1 to October 31
(iii) climatic area III April 15 to October 15
(iv) climatic area IV April 20 to October 10
(v) climatic area V April 25 to October 5
(2) Applications for diversions into a storage reservoir for later use must include the period of
diversion for when water will be diverted into the reservoir and the period of use when water will
be used from the reservoir.
(3) Applications for temporary permits must identify the beginning and ending month, day,
and year.
(4) The basis for the requested periods for other uses must be explained.
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-
2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2004 MAR p.
3036, Eff. 1/1/05.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.113 RESERVOIR STANDARDS
(1) An application project involving a new or existing reservoir must include the annual
volume of water that will evaporate from the reservoir water surface.
(2) The application must include information explaining how the storage reservoir will be
managed to satisfy senior water rights. Senior water users are not entitled to water that has
been legally stored.
(3) If applicable, preliminary design specifications for a reservoir’s primary and emergency
spillways must be included.
(4) If a reservoir is located off-stream:
(a) the conveyance means to and from the reservoir must be identified; and
(b) any losses that may occur with the means of conveyance must be calculated and
identified.
(5) For on-stream reservoirs, no flow rate is required. If a flow rate is requested for an on-
stream reservoir, documentation must show why a flow rate is needed and reasonable.
(6) Place of storage does not include:
(a) reservoirs, pits, pit-dams, or ponds with a capacity of less than 0.10 acre-feet; or
(b) the use of a temporary or permanent diversion structure within a canal or ditch designed
to raise water surface elevation for primary diversions or to direct flows to a secondary
conveyance facility.
(7) Water tanks or cisterns that are a part of a water system are not considered storage
reservoirs and a water right application is not needed to add a water storage tank or cistern as
long as the flow rate and volume of a water right is not being increased.
(8) If the application is for a reservoir for which the above standards are not applicable, the
applicant must explain the reason why the standard is not applicable.
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-
2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2004 MAR p.
3036, Eff. 1/1/05; AMD, 2007 MAR p. 1098, Eff. 8/10/07.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.114 SOURCE NAME STANDARDS
(1) A source name must adhere to one of the following, which are shown in order of
preference:
(a) USGS map;
(b) water resource survey book; or
(c) DNRC water rights database.
(2) Waste and seepage is not an accepted source name. Waste and seepage must be
described as an unnamed tributary (UT) to the next named source into which the UT flows.
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-
2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2004 MAR p.
3036, Eff. 1/1/05.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 26
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.115 WATER USE STANDARDS
(1) A water right has several elements, one of which is the amount of water that is used for
each purpose described in the right. A reasonable amount of water will vary with the type and
location of the use and will depend on various circumstances such as:
(a) soil conditions;
(b) method of conveyance;
(c) topography;
(d) climate;
(e) system efficiency; or
(f) other conditions affecting the particular use.
(2) The department will use the following standards when reviewing notices or applications
for new uses of water:
(a) for domestic use, for one household, 1.0 acre-foot per year of water for year-round use;
(b) for lawn, garden, shrubbery, and shelterbelts, 2.5 acre-feet per acre per year;
(c) for stockwater, a consumptive use of 15 gallons per day or .017 acre-foot per year per
animal unit. Animal unit equivalencies for water consumption are set out in ARM 36.12.101 and
the water conversion table, Form No. 615;
(d) fire protection water needs shall be determined by the type of equipment used, diversion
rate, the size of the area to be covered, the frequency of the water use and must be explained
and documented.
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(e) For irrigation, the following table applies:
Irrigation Standards
Climatic Area1
Acre Feet per Acre
I II III IV V
Sprinkler Irrigation 70%
Efficiency 2.63 ‐ 3.04 2.30 ‐ 2.69 2.08 ‐ 2.41 1.76 ‐ 2.07 1.26 ‐ 1.48
Level Border
60% Efficiency
Design Slope Level
3.07 ‐ 3.55 2.69 ‐ 3.15 2.43 ‐ 2.81 2.06 ‐ 2.41 1.47 ‐ 1.73
Graded Border
70% Efficiency
Slope Group
Design Slope .10%
Design Slope .20%
Design Slope .40%
2.63 ‐ 3.04 2.30 ‐ 2.69 2.08 ‐ 2.41 1.76 ‐ 2.07 1.26 ‐ 1.48
Graded Border
65% Efficiency
Design Slope .75%
Design Slope 1.5%
2.84 ‐ 3.28 2.48 ‐ 2.90 2.24 ‐ 2.59 1.90 ‐ 2.23 1.36 ‐ 1.60
Graded Border
60% Efficiency
Design Slope 3.0%
3.07 ‐ 3.55 2.69 ‐ 3.15 2.43 ‐ 2.81 2.06 ‐ 2.41 1.47 ‐ 1.73
Furrow
70% Efficiency
Design Slope .10%
Design Slope .20%
Design Slope .40%
2.36 ‐ 2.74 2.11 ‐ 2.44 1.87 ‐ 2.16 1.39 – 1.70 NA
Furrow
65% Efficiency
Design Slope .75%
2.54 ‐ 2.95 2.27 ‐ 2.63 2.02 ‐ 2.33 1.50 – 1.83 NA
Furrow
60% Efficiency
Design Slope 1.5%
2.75 ‐ 3.19 2.46 – 2.85 2.19 – 2.52 1.62 – 1.98 NA
Contour Ditch
60% Efficiency
Design Slope .75%
3.07 ‐ 3.55 2.69 ‐ 3.15 2.43 ‐ 2.81 2.06 ‐ 2.41 1.47 ‐ 1.73
Contour Ditch
55% Efficiency
Design Slope 1.5%
Design Slope 3.0%
3.35 ‐ 3.87 2.93 – 3.43 2.65 ‐ 3.07 2.24 ‐ 2.63 1.60 ‐ 1.88
Contour Ditch
45% Efficiency
Design Slope 6.0%
4.10 ‐ 4.73 3.58 ‐ 4.19 3.24 ‐ 3.75 2.74 ‐ 3.22 1.96 ‐ 2.30
1 The irrigation climatic areas are identified in the 1986 Irrigation Climatic Areas of Montana
map. Climatic area I is high consumptive use, climatic area II is moderately high consumptive
use, climatic area III is moderate consumptive use, climatic area IV is moderately low
consumptive use, and climatic area V is low consumptive use.
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(3) A permit is required when a reservoir is proposed to include fire protection purposes and
the volume of water reasonably needed for fire protection must be explained and must
reference reliable industry sources.
(4) For fire protection reservoirs located within a basin closure area, evaporation losses
must be made up from nontributary water sources or addressed in a mitigation plan.
(5) The flow rate and volume of water for any uses not listed in this rule must be calculated,
explained, and documented based on the beneficial use and operation of the project.
(6) Deviations outside the standards will require information supporting the requested
amount.
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-
2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2004 MAR p.
3036, Eff. 1/1/05; AMD, 2008 MAR p. 1820, Eff. 8/29/08.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 29
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.116 EVAPORATION STANDARDS
(1) The following reports contain acceptable methods for estimating evaporation losses:
(a) Joint Technical Working Group Report, Water Rights Compact Between the State of
Montana and the Department of the Interior, Bureau of Land Management, November 1998;
(b) Estimation of Evaporation from Shallow Ponds and Impoundments in Montana, Donald
E. Potts, Miscellaneous Publication No. 48, Montana Conservation and Experiment Station
School of Forestry, University of Montana, Missoula, March 1988;
(c) Evaporation Pond Design for Agricultural Wastewater Disposal, USDA Soil Conservation
Service, Montana Technical Note: Environment No. 7, February 1974;
(d) Evaporation from Lakes and Reservoirs, a study based on 50 years of weather bureau
records, Minnesota Resource Commission, June 1942; and
(e) A standard USGS evaporation pan is acceptable. The standard pan is four feet in
diameter and ten inches deep and measured daily.
(2) Deviations from the acceptable standards in (1) require additional information supporting
the volume requested for evaporation losses.
(3) The department will determine the acceptability of other evaporation loss estimates on a
case-by-case basis.
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-
2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2005 MAR p.
101, Eff. 1/1/05.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 30
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.117 OBJECTION TO APPLICATION
(1) A person objecting to a proposed application under 85-2-308, MCA, must file an
objection to an application on Form No. 611, Objection to Application, which can be obtained
from the department, and must comply with the requirements set forth in this rule.
(2) A separate Objection to Application must be filed for each water right application.
(3) Persons owning separate water rights must each file an Objection to Application form.
For example, if person A owns a water right and B owns a different water right and both want to
file an objection to the same application, owner A and owner B must each file a separate
Objection to Application form.
(4) Co-owners (owners of a water right that is not split between the owners) of an undivided
water right may file one Objection to Application form.
(5) Each objector who wants to participate in the department's contested case hearing must
sign the Objection to Application form.
(6) An Objection to Application is timely if the postmark date on the form is on or before the
objection deadline stated in the public notice of the application. A fax of the Objection to
Application form will be accepted, provided the original Objection to Application form is
postmarked or hand-delivered timely. Electronic mail (e-mail) submissions of the Objection to
Application will not be accepted.
(7) An Objection to Application filed with the department before an application has been
published will not be accepted and will be returned.
(8) Upon receipt of an Objection to Application or response to an Objection Deficiency
Notice, the department will place the envelope postmark date on the form. If the postmark date
is not legible, the department will assign the date as two days prior to the department's receipt
of the objection form. An objector is solely responsible for ensuring timeliness, a legible
postmark, and filing of the objections.
(9) An Objection to Application is correct and complete if it includes the following legible
information:
(a) filing fee;
(b) objector's name and mailing address;
(c) name of the water right applicant;
(d) water right application number;
(e) if an objector is claiming the objector's water right will be adversely affected if the
application were granted, the objector must provide the department-assigned water right
number. If the water right was exempt from the statewide water right filing requirements and is
not on record with the department, the objector must provide the following information:
(i) date of first use;
(ii) source;
(iii) means of diversion;
(iv) type of use (stock or domestic);
(v) the flow rate and volume of water used;
(vi) the point of diversion; and
(f) facts indicating that the application does not meet one or more of the applicable criteria
set forth in 85-2-302, 85-2-311, 85-2-316, 85-2-402, 85-2-407, or 85-2-408, MCA. The facts
provided must specifically describe why or how one or more of the criteria are not met;
(g) facts explaining how the person has standing to object. To have standing, a person
must have property, water rights, or other interests that would be adversely affected were the
application to be granted. The objection must describe how the person's property, water rights,
or interests will be adversely affected if the water right application were granted; and
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(h) signature of the objector or the objector's legal representative. If a representative of the
objector other than objector's attorney signs the Objection to Application affidavit, the
representative shall state the relationship of the representative to the objector and provide
documentation demonstrating the authenticity of that relationship.
(10) An objection that is deemed correct and complete and valid pursuant to 85-2-308(3)
and (6), MCA, may proceed to an administrative hearing. The administrative hearing will be
limited to the criteria objected to in the objection. An objector may participate in the
administrative hearing only on the criteria to which the objector specifically objected and which
is determined valid by the department.
(11) The department will mail notice to the objector of the Objection to Application of any
deficiencies in the objection. The objector must address the information requested in the
Objection Deficiency Notice and must have the response postmarked or hand delivered to the
department within 15 calendar days from the date on the Objection Deficiency Notice. A fax
submission of the deficiency letter response will be accepted provided the original response is
postmarked timely. Electronic mail (e-mail) submissions of a response will not be accepted.
(12) If the objector does not correct the deficiencies as determined by the department by
the deadline, the objection will be terminated without further notice.
(13) The department will document a valid objection by completing an objection validity
form.
(14) The department will determine on which criteria the objector has filed a valid objection.
(15) An objection may be withdrawn at any time in writing. A party withdrawing an objection
will not be considered a party by the department to any hearing that may be held by the
department.
(16) An applicant is not required to meet a water quality criterion when a valid water quality
objection is not raised or is withdrawn.
(17) Private agreements between applicants and objectors which provide for the withdrawal
of objections and include conditions that must be met by an applicant or objector may not be
recognized by the department or included in a granted application. The department will only
place a condition on a granted application if the department determines the condition is
necessary to meet the application criteria.
History: 85-2-308, MCA; IMP, 85-2-308, MCA; NEW, 2008 MAR p. 567, Eff. 3/28/08.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 32
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36.12.120 BASIN CLOSURE AREA EXCEPTIONS AND COMPLIANCE
(1) In the numerous basin closure areas in Montana, the department cannot process an
application unless it qualifies as a basin closure exception.
(2) An applicant must provide a written summary of their application information explaining
how their application meets the basin closure exceptions and why their application located in a
basin closure area can be processed.
(3) The department will determine whether an application in a basin closure area can be
processed based on the information received from the applicant and will document its findings
before it will review the application to determine whether it is correct and complete.
(4) While the department may determine that an application located in a basin closure area
can be processed, an objector is able to refute the department's determination.
(5) An applicant must identify the potentially affected area and provide a map depicting that
area.
(6) A net depletion analysis must be submitted with the water right application and must
include but is not limited to analysis of the following factors within the potentially affected area:
(a) evidence addressing the hydraulic connection between the source aquifer and all
surface water. Surface water means, in addition to ARM 36.12.101(64) and for the purposes of
85-2-360 through 85-2-362, MCA, includes but is not limited to irrigation canals and drains;
(b) evidence of propagation of drawdown from pumping a proposed well or other
groundwater diversion and volume, rate, timing, and location of any resulting surface water
effects;
(c) evidence of the comparison of the proposed flow rate and period of diversion to similar
types of existing water uses;
(d) estimates of the monthly volume of water consumed by a proposed project through
evaporation, evapotranspiration, and all other forms of consumption associated with the
proposed project;
(e) an assessment of potential return flows to a source aquifer or surface water source and
the volume, rate, timing, and location of return flows;
(f) in addition to ARM 36.12.101(56) and for the purposes of 85-2-361, MCA, return flow
includes but is not limited to any treated wastewater if the treated wastewater will be used as
part of an aquifer recharge plan;
(g) the volume, rate, timing, and locations of accretions to surface water that is not
consumed and subsequently returns to surface water; and
(h) a water balance table must be included that describes the monthly and total annual
water balance for the proposal.
(7) An applicant must provide a list and map of the points of diversion of surface water
appropriation rights and groundwater rights on record with the department that are located
within the potentially affected area.
(8) Information required by the hydrogeologic assessment may not be sufficient to meet
applicable criteria under 85-2-311, MCA, including but not limited to adverse effect to a prior
appropriator. The applicant for a beneficial water use permit pursuant to 85-2-311, MCA, is
responsible for providing sufficient evidence to meet all applicable criteria.
History: 85-2-113, 85-2-370, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329
through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-360 through
85-2-364, 85-2-368, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-
419, 85-2-436, 85-2-437, 85-2-439, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804
through 85-2-806, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2008 MAR p. 140, Eff. 2/1/08.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 33
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36.12.121 AQUIFER TESTING REQUIREMENTS
(1) There are numerous tests that can be performed on wells and aquifers, with a variety of
objectives and procedures. An adequate aquifer test will depend on factors such as whether the
well is located in a basin closure area (see ARM 36.12.120) , the expected pumping schedule of
the well, the potential interference with existing water rights and the characteristics of the aquifer
in which the well is completed.
(2) Applicants are encouraged to confer with department staff prior to designing an aquifer
test to ensure that the test will not have to be repeated, which may require additional expense.
(a) Department staff will provide guidance on testing procedures, monitoring, and reporting,
but will not provide technical support or assistance.
(3) Aquifer testing must follow standard procedures that are discussed in hydrogeology
textbooks and professional literature. The following are preferred aquifer testing procedures:
(a) A hydrogeologist, hydrologist, or engineer familiar with aquifer testing procedures must
supervise the aquifer test, however, the supervisor does not need to be on site.
(b) Aquifer test data Form No. 633, or equivalent, must be used to record the data required
for the test.
(c) Pumping must be maintained at a constant discharge rate equal to or greater than the
proposed pumping rate for the entire duration of the test. If the discharge rate varies, the
applicant must note the clock time and discharge rate.
(d) Minimum duration of pumping during an aquifer test must be 24 hours for a proposed
use or discharge of 150 gpm or less and a proposed volume of 50 acre-feet or less.
(e) Minimum duration of pumping during an aquifer test must be 72 hours for a proposed
use or discharge of greater than 150 gpm and proposed volume greater than 50 acre-feet.
(f) Discharge of the pumped well must be measured with a reliable measuring device, which
can include a barrel, in-line flow meter, flume, or weir.
(g) Discharge rate must be monitored and recorded with clock time and adjusted if
necessary at 15-minute intervals during the first three hours of the aquifer test and at frequent
intervals until the end of the test to maintain a constant discharge.
(h) Discharged water must be conveyed a sufficient distance from the production and
observation wells to prevent recharge to the aquifer during the test. Adequate water conveyance
devices include pipe, large-diameter hose (e.g., fire hose) , lined ditch or canal, or an existing
irrigation system.
(4) The following procedures are preferred to ensure monitoring is adequate:
(a) One or more observation wells must be completed in the same water-bearing zone(s) or
aquifer as the proposed production well and close enough to the production well so that
drawdown is measurable and far enough that well hydraulics do not affect the observation well.
(b) One or more observation wells must be completed in the overlying water-bearing zone(s)
or aquifer if the proposed production well is purported to be completed in a hydraulically
disconnected deeper aquifer.
(c) An observation well can be an existing well. An existing well should not be pumped, or if
pumped should be monitored at a frequency necessary to separate the effects of its pumping.
(d) New observation wells must be constructed as described in ARM Title 36, chapter 21,
subchapter 6. However, observation wells less than ten feet deep are not subject to those rules.
In those cases, observation wells might be constructed by simple excavation, or installing PVC
pipe, perforated black pipe, or a sand point.
(e) Electronic pressure transducer/data logger instrumentation, electric well probes,
pressure gauges on turbine pumped wells, or graduated steel tapes are acceptable methods of
measuring groundwater levels.
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(f) Groundwater levels in the production, at least one of the observation wells in the source
aquifer, and at least one observation well in the overlying water-bearing zone or aquifer must be
monitored at frequent intervals for at least two days prior to beginning the aquifer test to
evaluate background water-level trends and the prepumping hydraulic gradient. An applicant
must evaluate and correct for background water-level trends.
(g) Groundwater-level drawdown in the production well and monitored observation well(s)
during the pumping phase of the aquifer test must be measured with 0.01-foot precision
according to the schedule specified on Form No. 633.
(h) Groundwater-level recovery in the production and monitored observation well(s) must be
measured with 0.01-foot precision according to the schedule specified on Form No. 633 or at a
minimum, according to the specified schedule on Form No. 633 for the first 24 hours of recovery
and four times per day until end of the recovery test.
(5) A report describing the testing and monitoring procedures and presenting analyses,
interpretations, and conclusions must be submitted with the application. The following reporting
requirements are preferred:
(a) a topographic map with labeled locations of production and observation wells, discharge
point, surface water monitoring sites, and a scale bar and north arrow;
(b) if available, a geologic map, stratigraphic, geomorphic, or lithologic descriptions, and
drilling logs;
(c) distances between the pumping well and the observation well, and depths, dimensions,
and perforated intervals of each well as specified on Form No. 633;
(d) surveyed wellhead elevations and staff gage elevations if basin closure testing is
required;
(e) a narrative description or conceptual model that describes the aquifer system;
(f) a description of testing methods;
(g) groundwater level and surface water monitoring data;
(h) aquifer-testing data, transmissivity and storage coefficient determinations and effects to
groundwater and surface water availability;
(i) analyses, interpretations, and conclusions; and
(j) all pumping schedules and drawdown and recovery data must be submitted in electronic
format.
History: 85-2-113, MCA; IMP, 85-2-302, 85-2-311, 85-2-330, 85-2-337, 85-2-341, 85-2-343, 85-2-402, 85-2-419,
85-2-506, 85-2-508, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 35
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.122 CONTACTS
(1) If communication about a water right application filing or objection filing is to be
conducted through an individual other than the applicant, the name address, and phone
numbers must be supplied.
(2) If a contact person is identified as legal counsel, all communication will be sent only to
the attorney unless the attorney provides written instruction to the contrary.
(3) If a contact person is identified as a consultant, employee, or lessee, the individual filing
the water right form or objection form will receive all correspondence and a copy will be sent to
the contact person.
(4) A contact cannot represent an applicant at a hearing unless the contact is an attorney.
History: 85-2-113, MCA; IMP, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-
2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407,
85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501
through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA; NEW, 2004 MAR p.
3036, Eff. 1/1/05.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 36
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
Subchapter 2
Procedural Rules for Water Right Contested Case Hearings
36.12.201 SCOPE AND PURPOSE
(1) The procedures contained herein shall govern the contested case proceedings
conducted by the department of natural RESOURCES AND CONSERVATION pursuant to
Montana Code Annotated (MCA) Title 85, chapter 2. The attorney general's model rules for
conducting contested case proceedings, adopted by the department at ADMINISTRATIVE
RULES OF MONTANA (ARM) 36.2.101, shall not apply to proceedings conducted by the
department pursuant to Title 85, chapter 2, MCA and are superseded for that purpose only.
These rules do not govern any proceedings conducted by the board of natural RESOURCES
AND CONSERVATION pursuant to Title 85, chapter 2, MCA.
History: 2-4-201(2) and 85-2-113(2), MCA; IMP, 2-4-201(2) and 85-2-113(2), MCA; NEW, 1984 MAR p. 697,
Eff. 4/27/84.
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36.12.202 DEFINITIONS
As used in these rules, the following definitions apply:
(1) "Applicant" means a person who filed an application.
(2) "Application" means any application which has been filed pursuant to Title 85, chapter 2,
MCA for appropriating water or changing appropriation rights.
(3) "Department" means the department of natural RESOURCES AND CONSERVATION.
(4) "Director" means the director of the department or the director's designee.
(5) "Final decision-making" means all events after the issuance of a proposal for decision
necessary to the completion of a final order.
(6) "Hearing examiner" means the person or persons assigned by the director to hear the
contested case and to participate in the final decision-making process.
(7) "Notice of application" means the notice prepared and published by the department
pursuant to 85-2-307 , MCA.
(8) "Objection" means an objection to an application filed in accordance with Title 85,
chapter 2, MCA.
(9) "Objector" means a person who filed an objection.
(10) "Party" means those persons who are applicants, timely objectors, petitioners or
permittees under Title 85, chapter 2, parts 3, 4, 5 and 8, MCA and are entitled as of lawful right
to a contested case hearing.
(11) "Permit" means a permit to appropriate water issued by the department under Title 85,
chapter 2, part 3, MCA.
(12) "Person" means an individual, association, partnership, corporation, state agency,
political subdivision, the United States or any agency thereof, or any other entity. 85-2-102 (10) ,
MCA.
(13) "Petition" means the document filed with the department pursuant to 85-2-505 (2) ,
MCA.
(14) "Proceeding" means all events, including prehearing conferences, hearings, orders, and
proposals for decision, necessary to the completion of the hearing process.
(15) "Service; serve" means personal service or service by first class United States mail,
postage prepaid and addressed to a person's last known address. Proof of service shall be
made by the person making such service. Service by mail is complete upon the placing of the
item to be served in the mail. Agencies of the state of Montana may also serve by depositing the
item to be served with the mail and distribution section, general services DIVISION, department
of administration.
(16) "Staff" means a person employed or retained by the department.
(17) "Timely objector" means a person who filed an objection to an application with the
department by the date specified in the notice of application. Objections that are postmarked on
or before or personally delivered by the date specified in the notice of application shall be
deemed as timely filed.
(18) "Untimely objector" means a person who did not file an objection to an application by
the date specified in the notice of application, but who objects to an application sometime
thereafter.
History: 2-4-201 and 85-2-113, MCA; IMP, 2-4-201 and 85-2-113, MCA; NEW, 1984 MAR p. 697, Eff. 4/27/84;
AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2000 MAR p. 636, Eff. 2/25/00.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.203 HEARING EXAMINERS
(1) When the department orders a contested case hearing, the director shall assign a
hearing examiner to hear the case. The file that is submitted to the hearing examiner,
subsequent to the assignment of the case, shall contain the parties' applications, notices of
applications, petitions, objections to applications, or permits under consideration to be modified
or revoked. After reviewing the file, the hearing examiner shall contact the parties and advise
them as to the location and time during which a hearing should be held. Except as required
under the circumstances of ARM 36.12.232, no hearing shall be scheduled on a Saturday,
Sunday or legal holiday.
(2) Consistent with law, the hearing examiner shall perform the following duties:
(a) regulate the course of the hearing, including the scheduling, recessing, reconvening and
adjournment thereof;
(b) grant or deny motions for discovery including the taking of depositions;
(c) receive and act upon requests for subpoenas where appropriate;
(d) hear and rule on motions;
(e) preside at the contested case hearing;
(f) administer oaths and affirmations;
(g) grant or deny requests for continuances;
(h) examine witnesses where the hearing examiner deems it necessary to make a complete
record;
(i) rule upon offers of proof and receive evidence;
(j) make preliminary, interlocutory or other orders as he deems appropriate;
(k) recommend a summary disposition of any part of the case where there is no genuine
issue as to any material fact or recommend dismissal where the case or any part thereof has
become moot or for other reasons;
(l) require testimony, upon the motion of a party or upon the hearing examiner's motion, to
be prefiled in whole or in part when prefiling will expedite the hearing and the interests of the
parties will not be prejudiced substantially;
(m) hold conferences for settlement, simplification of the issues, or any other proper
purpose;
(n) appoint a staff expert;
(o) prepare a proposal for decision or a final order containing findings of fact, conclusions of
law and a proposed or final order;
(p) after issuing a proposal for decision, participate in the final decision-making process;
(q) do all things necessary and proper to the performance of the foregoing; and
(r) as authorized by law and rule, perform such other duties as well as any that may be
delegated by the director.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, 2-4-612, and 2-4-621, MCA; NEW, 1984
MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.204 COMMENCEMENT OF A CONTESTED CASE
A contested case is commenced, subsequent to the assignment of a hearing examiner, by
the service of a notice of and order for hearing by the director.
(1) The notice and order. A notice of and order for hearing, which shall be a single
document, shall be served upon all parties and shall contain, but not be limited to, the following:
(a) the time, date, place, and nature of the hearing;
(b) name, address and telephone number of the hearing examiner;
(c) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(d) a reference to the particular sections of the statutes and rules involved;
(e) a short and plain statement of the matters asserted; for an application or petition, the
matters asserted shall be whether the application or petition meets the statutory requisites. For
revocation or modification of a permit, the matters asserted are the grounds for revocation or
modification;
(f) notification of the right of the parties to be represented by legal counsel or appear on their
own behalf;
(g) a citation to these procedural rules and to the contested case provisions of MCA Title 2,
chapter 4, part 6;
(h) a statement that a formal proceeding may be waived pursuant to MCA § 2-4-603 ;
(i) a statement advising parties that if any party fails to appear at the hearing, the party will
be in default; and a statement which explains the possible results of a default;
(j) a statement advising the parties that communication with the hearings examiner
containing obscene, lewd, profane, or abusive language which terrifies, intimidates, threatens,
or harasses the hearing examiner will be returned. Any communication returned shall be
conclusively presumed to have not been served or filed with the department for purposes of
these rules.
(2) The notice of and order for hearing shall be served not less than 30 days prior to the
hearing unless all parties agree in writing to a shorter notice time period. Provided, however,
that a shorter time period may be allowed when the hearing examiner determines, on the basis
of the parties' applications and objections to applications, that the parties will not be
substantially prejudiced by a shorter time.
(3) When a party is represented by an attorney, service upon the attorney shall constitute
service upon the party. (Note: § § (1) (a) (c) (d) (1st sentence (e) (h) of this rule are codified at
MCA § 2-4-601 (2) (a-e) .)
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, 2-4-601, MCA; NEW, 1984 MAR p. 697, Eff. 4/27/84;
AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
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36.12.205 DEFECTIVE NOTICE OF APPLICATION
(1) When the notice of application is republished, scheduled hearings shall be continued until
the time period for filing objections (as set forth in the republished notice of application) has
expired.
(2) The cost of republishing the notice of application shall be paid by the applicant. However,
if the department fails to send a notice of application to the applicant for review the department
shall pay for said costs. No hearings shall be held until the applicant has paid all costs incurred
under this rule.
History: Sec. 2-4-201(2) and 85-2-113(2) MCA; IMP, Sec. 2-4-105, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
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36.12.206 REPRESENTATION
(1) Any party may be represented by legal counsel throughout the proceedings in a
contested case or an individual may appear on his/her own behalf. This rule shall not be
construed to sanction the unauthorized practice of law.
History: Sec. 2-4-201(2) and 85-2-113(2) MCA; IMP, Sec. 2-4-105, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.207 INFORMAL DISPOSITION
(1) Informal disposition may be made of any contested case or any issue therein at any point
in the proceedings by agreed settlement, stipulation or default. The parties may mutually agree
to be bound by the terms of such settlement, stipulation, or default as a private contractual
agreement; provided, however, that to the extent such settlement, stipulation, or default is
based on conditions which the parties agree must be included in any permit to be issued, the
parties' agreement shall not be binding on the department. The parties shall submit such
proposed conditions to the department for review, but the department shall include them in the
permit only if the conditions are designed to further compliance with the applicable statutory
criteria.
(2) Department staff may propose conditions for settlement of a contested case which
further compliance with the statutory criteria. Any proposed conditions which are sent to the
parties in a contested case shall be accompanied by written notification that agreeing to the
proposed condition(s) will not necessarily obviate the need for a hearing.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-603, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
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36.12.208 DEFAULT
(1) A default occurs when a party fails to appear at a hearing or fails to comply with any
interlocutory orders of the hearing examiner. Upon default, the defaulting party's claim or
interest in the proceeding may be dismissed (with or without prejudice) , denied, disregarded or
disposed of adverse to the defaulting party. An applicant is not relieved of the duty to present
evidence to satisfy the applicant's substantive burden of proof when all objectors to a
proceeding default.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-603 and 85-2-311, MCA; NEW, 1984 MAR p.
697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
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36.12.209 TIME
(1) The time within which an act is to be done as provided in these rules shall be computed
by excluding the first day and including the last, except that if the last day be Saturday, Sunday,
or a legal holiday, the act may be done on the next succeeding regular business day. When the
period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and
legal holidays shall be excluded in the computation.
(2) Computing time when serving by mail. Whenever a party has the right or is required to
do some act or take some action within a prescribed period after the service of a notice or other
paper upon him, or whenever such service is required to be made within a prescribed period
before a specified event, and the notice or paper is served by mail, postmarking of the notice or
paper on or before the prescribed period shall satisfy this rule.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff. 4/27/84;
AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
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36.12.210 CONSOLIDATION
(1) Whenever it is determined, either on the hearing examiner's motion or upon motion by
any party, that two or more contested cases present substantially the same issues of fact or law,
that a holding in one case would affect the rights of parties in another case, and that
consolidation would not substantially prejudice any party, the hearing examiner may order such
cases consolidated for a single hearing on the merits. In every case, all objections to a single
application shall be consolidated without requirement of order. Applications by the same
applicant may be consolidated without requirement of an order.
(2) Following an order for consolidation, the hearing examiner shall serve on all parties a
copy of the order for consolidation. The order shall contain, among other things:
(a) a description of the cases for consolidation;
(b) the reasons for consolidation;
(c) notification of a consolidated prehearing conference if one has been requested.
(3) (a) Any party may object to consolidation by filing, at least 10 days prior to the hearing in
the case, a motion for severance from consolidation, setting forth the party's name and address,
the title of the case prior to consolidation, and the reasons for that party's motion.
(b) If the hearing examiner finds that consolidation would prejudice the party, the hearing
examiner may, without hearing, order such severance or other relief as the hearing examiner
deems necessary.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 85-2-309, MCA; AMD, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.211 DISQUALIFICATION OF HEARING EXAMINER
(1) Upon the filing in good faith by a party of an affidavit of disqualification of hearing
examiner, the director shall determine the matter as a part of the record provided the affidavit is
filed no later than 10 days prior to the original date set for hearing, and states the facts and
reasons for the belief that the hearing examiner should be disqualified.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.212 PREHEARING CONFERENCE
(1) The purpose of the prehearing conference is to simplify the issues to be determined, to
fix hearing dates, to obtain stipulations in regard to foundation for testimony or exhibits, to hear
and rule upon evidentiary objections to prefiled testimony, to identify the proposed witnesses for
each party, to schedule discovery, to discuss the procedure at the hearing, to consider such
other matters that may be necessary or advisable, and, if possible, to reach a final settlement
without the necessity for further hearing.
(2) Upon written request of any party or upon the hearing examiner's motion, a prehearing
conference may be ordered prior to each contested case hearing. The hearing examiner may
require the parties to file a prehearing statement prior to the prehearing conference which shall
contain such items as the hearing examiner deems necessary to promote a useful prehearing
conference. A prehearing conference shall be an informal proceeding conducted expeditiously
following written notice to all parties or their attorneys. Agreements on the simplification of
issues, amendments, stipulations or other matters may be entered on the record or may be the
subject of an order by the hearing examiner. A party who fails (without having made prior
arrangements with the hearing examiner) to appear at a prehearing conference shall have
waived the right to object to any matters agreed upon by other parties in attendance at the
prehearing conference. Following a prehearing conference, the hearing examiner may issue a
procedural order which fixes any dates which are appurtenant to the disposition of the case, and
which sets out the procedures to be followed by the parties. The procedural order may include a
description of the matters discussed at and the actions taken pursuant to the prehearing
conference.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.213 MOTIONS TO HEARING EXAMINER
(1) Any application to the hearing examiner for an order shall be by motion which, unless
made during a hearing, shall be made in writing, shall state with particularity the grounds
therefore, and shall set forth the relief or order sought. Written motions or responses to motions
shall first be served on all parties, and then filed with the hearing examiner with a certificate of
service attached. A written motion shall give notice to other parties that should they wish to
contest the motion they must file a written response with the hearing examiner (after first serving
all parties) , and that the written response, with a certificate of service attached, must be filed
within 10 days after service of the motion. Requests for disqualification of a hearing examiner,
prehearing conferences, and subpoenas are not governed by the requirements of this rule. The
hearing examiner may require a hearing or telephone conference call before issuing an order on
the motion. All orders on such motions, other than those made during the course of the hearing,
shall be in writing, and shall be served upon all parties of record. In ruling on motions where
these rules are silent, the hearing examiner shall apply the Montana Rules of Civil Procedure to
the extent the hearing examiner determines is appropriate to do so in order to promote a fair
and expeditious proceeding.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.214 MOTIONS TO DIRECTOR
(1) No motions shall be made directly to or be decided by the director subsequent to the
assignment of a hearing examiner and prior to the completion and filing of the hearing
examiner's proposal for decision except as provided by ARM 36.12.211 or except when the
motion is certified to the director by the hearing examiner. Any party may request that a pending
motion, or a motion decided adversely to that party by the hearing examiner before or during the
course of the hearing be certified by the hearing examiner to the director. In deciding what
motions should be certified, the hearing examiner shall consider the following:
(a) whether the motion involves a controlling question of law, which if finally determined,
would materially advance the ultimate termination of the hearing; or
(b) whether certifying the motion is necessary to promote the development of the full record
and avoid a remand.
(2) The director may require the parties to file briefs before ruling upon a certified motion.
Certified motions shall be decided in the manner provided for in ARM 36.12.229(2) . Uncertified
motions shall be ruled upon by the hearing examiner and reviewed during the final decision-
making process.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.215 DISCOVERY
(1) Discovery under this rule may commence following the department's acknowledgement
of receipt of valid objections.
(2) Each party shall, within 10 days of a demand by another party, disclose the following:
(a) The names and addresses of all witnesses that a party intends to call at the hearing
together with a brief summary of each witness's testimony. All witnesses unknown at the time of
said disclosure shall be disclosed, together with a brief summary of their testimony, as soon as
they become known.
(b) Any relevant written or recorded statements made by the party or by witnesses on behalf
of the party shall be permitted to be inspected and reproduced by the demanding parties.
(3) Any party unreasonably failing upon demand to make the disclosure by this rule, may be
foreclosed from presenting any evidence at the hearing through witnesses not disclosed or
through witnesses whose statements are not disclosed.
(4) A party may serve upon any other party a written request for the admission of relevant
facts or opinions, or of the application of law to relevant facts or opinions, including the
genuineness of any document. The written answer shall either admit or deny the truth of the
matters contained in the request, or shall make a specific objection thereto. Failure to make a
written answer may result in the subject matter of the request being deemed admitted.
(5) A demand or request for admission made pursuant to (1) or (3) hereof must be served at
least 15 days prior to the hearing, and shall be answered in writing by the party to whom the
demand or request is directed within 10 days of the service of the demand or request.
(6) Any means of discovery available pursuant to the Montana Rules of Civil Procedure,
excepting Rule 37(b) (1) and 37(b) (2) (D) , is allowed provided such discovery is needed for the
proper presentation of a party's case, is not for purposes of delay, and the issues in controversy
are significant enough to warrant such discovery. Copies of all requests for discovery under this
subsection must be filed with the hearings examiner. Objection for a demand for discovery may
be made by motion to quash, and the form, filing, and disposition of such motion shall be
governed by the provisions of ARM 36.12.213. If a party fails to reasonably comply with a
proper demand for discovery, the hearing examiner may:
(a) order that the subject matter of the order for discovery or any other relevant facts be
taken as established for the purposes of the case in accordance with the claim of the party
requesting the order; or
(b) refuse to allow the party failing to comply to support or oppose designated claims or
defenses, or prohibit that party from introducing designated matters into evidence.
(7) Any demand for discovery made pursuant to (6) must be made so as to allow all
responses to be completed at least 5 days prior to the hearing.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-602, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.216 DEPOSITIONS TO PRESERVE TESTIMONY
(1) Upon the motion of any party, the hearing examiner may order that the testimony of any
witness be taken by deposition to preserve that witness' testimony in the manner prescribed by
law for depositions in civil actions, which includes the right of other parties to attend the
deposition and cross-examine the witness. The motion shall indicate the relevancy and shall
make a showing that the witness will be unable or cannot be compelled to attend the hearing or
show other good cause. No part of a deposition shall constitute a part of the record unless
received in evidence by the hearing examiner.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-602 and 2-4-611, MCA; NEW, 1984 MAR p.
697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.217 SUBPOENAS
(1) Requests for subpoenas for the attendance of witnesses or the production of documents
shall be made in writing to the hearing examiner and shall contain a brief statement
demonstrating the potential relevance of the testimony or evidence sought and shall identify any
documents sought with specificity, and shall name all persons to be subpoenaed.
(a) A subpoena shall be served in the manner provided by the Montana Rules of Civil
Procedure.
(b) The cost of service, fees, and expenses of any witnesses subpoenaed shall be paid at
the rates prescribed by Montana law by the party at whose request the witness appears.
(c) The person serving the subpoena shall make proof of service by filing the subpoena
together with a certificate of service with the hearing examiner.
(2) Upon motion made promptly, and in any event at or before the time specified in the
subpoena for compliance therewith, the subpoena may be quashed or modified if the hearing
examiner finds it is unreasonable or oppressive.
(3) The party seeking the subpoena may seek enforcement of the same by applying to a
judge of any district court of the state of Montana for an order to show cause why the subpoena
should not be enforced against any witness who fails to obey the subpoena.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-104 and 2-4-611, MCA; NEW, 1984 MAR p.
697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.218 RIGHTS OF PARTIES
(1) All parties shall have the right to present evidence, rebuttal testimony and argument with
respect to the issues and to cross-examine witnesses. MCA 2-4-612 (1) .
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-612, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84.
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36.12.219 UNTIMELY OBJECTORS
(1) Untimely objectors do not have the status of parties in a contested case. Such nonparties
have no right to participate in the contested case process.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611 and 2-4-612, MCA; NEW, 1984 MAR p.
697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.220 WITNESSES
(1) Any party may be a witness and may present witnesses at the hearing. All oral testimony
at the hearing shall be under oath or affirmation.
(2) Upon the hearing examiner's motion or, upon the motion of a party, the hearing examiner
may order that the testimony to be given upon direct examination by experts or other witnesses
shall be prepared in advance in either question and answer or narrative format. Such prefiled
testimony shall be served upon the hearing examiner and all parties at least 7 days prior to the
first hearing date. The prefiled testimony will be part of the record in each proceeding as if read,
but all of the witnesses whose substantive testimony is prefiled must be available for cross-
examination at the hearing. Evidentiary objections (such as motions to strike) to such direct
testimony may be made by any party at any time during the hearings conducted pursuant to
these rules. At the hearing, the party presenting the testimony may, if they deem it appropriate,
briefly summarize the prefiled testimony prior to the start of cross-examination. Nothing
contained herein shall be deemed to foreclose any party from presenting rebuttal testimony or
from presenting testimony in response to reasonably unforeseen areas without the necessity of
prefiling.
(3) All parties shall be advised of a staff expert witness' findings, if any, based on any
prepared written testimony filed by the parties pursuant to ARM 36.12.220(2) , site observations
taken pursuant to ARM 36.12.225, materials noticed pursuant to ARM 36.12.221(4) and ARM
36.12.228(1) (b) , or testimony or other documents introduced during the proceeding. A staff
expert witness' deposition may be taken by any party and the expert may be called to testify by
any party and/or by the hearing examiner. The expert witness shall be subject to cross-
examination by all parties. Nothing in this rule shall prevent any of the parties from producing
other expert evidence on the same fact or matter to which the testimony of the staff expert
witness appointed by the hearing examiner relates.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611 and 2-4-612, MCA; NEW, 1984 MAR p.
697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.221 RULES OF EVIDENCE
(1) The common law and statutory rules of evidence shall apply only upon stipulation of all
parties to the hearing. Otherwise, the hearing examiner may admit all evidence that possesses
probative value, including hearsay if it is the type of evidence commonly relied upon by
reasonably prudent persons in the conduct of their affairs. The hearing examiner shall give
effect to the rules of privilege recognized by law. Evidence which is irrelevant, immaterial, or
unduly repetitious may be excluded.
(2) The department file shall be deemed part of the record in its entirety unless objections
are made to a specific portion thereof upon review by the parties. If the objection is sustained,
that portion of the file will not be made a part of the record. All other evidence to be considered
in the case, including all records and documents in the possession of a party (or a true and
accurate photocopy thereof), shall be offered and made a part of the record in the case. No
other factual information or evidence shall be considered in the determination of the case.
(3) Documentary evidence in the form of copies or excerpts may be received or incorporated
by reference. Upon request, parties shall be given an opportunity to compare copies with the
originals.
(4) The hearing examiner may take notice of judicially cognizable facts and generally
recognized technical or scientific facts within the department's specialized knowledge. Parties
shall be notified, either before or during the hearing or by reference in the proposal for decision
of the material noticed. Each party shall be afforded an opportunity to contest the materials so
noticed.
(5) A party may call an adverse witness who may be a party's managing agent or
employees, or an officer, director, managing agent, or employee of the state or any political
subdivision thereof, or of a public or private corporation or of a partnership or association or
body politic which is an adverse party, and interrogate the adverse witness by leading questions
and contradict and impeach the adverse witness on material matters in all respects as if the
adverse witness had been called by the adverse party. The adverse witness may be examined
by counsel for the adverse witness upon the subject matter of the examination in chief under the
rules applicable to direct examination, and may be cross-examined, contradicted, and
impeached by any other party adversely affected by the adverse witness' testimony.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-612 and 85-2-121, MCA; NEW, 1984 MAR p.
697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.222 CONTINUANCES
(1) A motion for continuance of a hearing shall be made pursuant to the requirements of
ARM 36.12.213.
(2) A motion for continuance filed not less than 10 days prior to the hearing may be granted
upon showing of good cause.
(3) A motion for continuance filed less than 10 days prior to the hearing shall be denied
unless good cause exists and the reason for the request could not have been ascertained
earlier and cannot be avoided.
(4) "Good cause" for purposes of this rule includes but is not limited to:
(a) death or incapacitating illness of a party or member of a party's immediate family or
attorney of a party or witness to an essential fact;
(b) a court order requiring a continuance;
(c) lack of proper notice of the hearing;
(d) a substitution of the attorney of a party if the substitution is shown to be required;
(e) unavailability of counsel due to engagement in court or another administrative
proceeding provided counsel submits copies of documents requiring counsel's presence at said
proceeding;
(f) a change in the parties or pleading requiring postponement;
(g) unavailability of a party or a witness to an essential fact for serious and compelling
reasons where the conflict could not be anticipated and cannot be avoided; or
(h) agreement for a continuance by all parties upon a showing that:
(i) more time is clearly necessary to complete discovery authorized pursuant to ARM
36.12.215(3) or other mandatory preparation for the case, and the parties have agreed to a new
hearing date; or
(ii) the parties have agreed to a settlement of the case; or
(iii) all the parties have agreed to a new hearing date and the agreed upon date is
convenient for the hearing examiner.
(5) "Good cause" for purposes of this rule shall not include:
(a) intentional delay;
(b) unavailability of an expert witness if the witness' deposition could have been taken prior
to the hearing;
(c) failure of a party or their counsel to properly utilize the notice period to prepare for the
hearing;
(d) failure of a party to act with due diligence in acquiring counsel within the notice period.
(6) During a hearing, if it appears in the interest of justice that further testimony should be
received, the hearing examiner may continue the hearing to a future date and oral notice of
such continuance on the record shall be sufficient.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.223 HEARING PROCEDURE
(1) Unless the hearing examiner determines otherwise the hearing shall be conducted
substantially in the following manner:
(a) After opening the hearing, the hearing examiner shall, unless all parties are represented
by counsel, state the procedural rules for the hearing including the following:
(i) All parties may present evidence and argument with respect to the issues and cross-
examine witnesses. At the request of the party or the attorney for the party whose witness is
being cross-examined, the hearing examiner may make such rulings as are necessary to
prevent repetitive or irrelevant questioning and to expedite the cross-examination to the extent
consistent with disclosure of all relevant testimony and information.
(ii) All parties have a right to be represented at the hearing.
(iii) The rules of evidence are set forth in ARM 36.12.221(1) .
(2) Any stipulation agreements entered into by any of the parties prior to or during the
hearing shall be entered into the record.
(3) The party with the burden of proof may make an opening statement. All of the parties
may make such statements in a sequence determined by the hearing examiner.
(4) After any opening statements, unless otherwise determined by the hearing examiner, the
applicant shall begin the presentation of evidence. The applicant shall be followed by the other
parties and/or expert witness in a sequence determined by the hearing examiner.
(5) Cross-examination of witnesses shall be conducted in a sequence determined by the
hearing examiner.
(6) When all parties and witnesses have been heard, opportunity shall be offered to present
final argument in a sequence determined by the hearing examiner. Such final argument may be
in the form of written memoranda or oral argument, or both.
(7) After final argument, the hearing shall be closed or continued. If continued, it shall be
either continued to a certain time and day, announced at the time of the hearing and made a
part of the record, or continued to a date to be determined later, which must be upon not less
than 10 days written notice to the parties.
(8) The hearing examiner may require all parties of record to file proposed findings of fact or
briefs, or both, at the close of testimony in the hearing. The proposed findings and briefs may be
submitted simultaneously or sequentially and within such time periods as the hearing examiner
may prescribe. Any party may volunteer to file proposed findings and briefs, and the hearing
examiner may receive them even if the other parties choose not to so file.
(9) The record of the contested case proceeding shall be closed upon receipt of the final
written memorandum, transcript, if any, or late filed exhibits that the parties and the hearing
examiner have agreed should be received into the record, whichever occurs latest.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611 and 2-4-612, MCA; NEW, 1984 MAR p.
697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.224 DISRUPTION OF HEARING
(1) It is the duty of the hearing examiner to conduct a fair and impartial hearing and to
maintain order. All parties to the hearing, their counsel and any other persons present shall
conduct themselves in a respectful manner. Any disregard by parties or their attorneys of the
rulings of the hearing examiner on matters of order and procedure may be noted on the record.
If the applicant is responsible for disrespectful, disruptive, or disorderly conduct which interferes
with the proper and orderly holding of the hearing, the hearing examiner may recess or continue
the hearing. If a party or person other than the applicant is disrespectful, disorderly or disruptive,
the hearing examiner may bar that party or person from the proceeding and may strike all
evidence presented by that party or person if the applicant's case is not prejudiced by the
absence of the offending party or person. Before taking action under this rule, the hearing
examiner shall first read this rule to those parties or attorneys causing such interference or
disruption.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.225 SITE VISIT
(1) Upon the hearing examiner's motion or upon the motion of any party, a site visit to the
lands involved in the proceeding may be made at any time during the proceeding. The hearing
examiner may enter upon lands to view proposed works, sources of water, location of proposed
uses, construction of works and such other views that are deemed relevant by the hearing
examiner to gain a proper understanding of the issues involved in the proceeding. Before
making any site visit, the hearing examiner shall give the parties at least 5 days written notice to
participate, unless the motion is made during a hearing and then oral notice on the record shall
be sufficient. During the final decision-making process, the final decision-makers may, upon
their own motion or upon the motion of any party, make a site visit of the lands involved in the
proceeding provided that the parties are given written notice as stated above.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 85-2-115, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.226 THE RECORD
(1) The hearing examiner shall maintain the official record in each contested case until the
issuance of the final order.
(2) The record in a contested case shall contain:
(a) all pleading, motions and intermediate rulings;
(b) all evidence received or considered, including a verbatim record of oral proceedings;
(c) a statement of matters officially noticed;
(d) questions and offers of proof, objections and rulings thereon;
(e) proposed findings and exceptions;
(f) any decision, opinion or report by the hearing examiner; and
(g) the department file and all staff memoranda or data submitted to the hearing examiner
as evidence in connection with the case. (Note substantially the same as MCA 2-4-614 .)
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-614, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.227 VERBATIM RECORD
(1) The verbatim record consisting of tape recordings of the contested case hearing shall be
transcribed if requested by the hearing examiner. If a petition for judicial review is filed and a
party to the proceeding elects to have a written transcription prepared as part of the record of
the administrative hearing for certification to the reviewing district court, the requesting party
must make arrangements with the department for ordering and payment of preparation cost of a
written transcript. If no request is made the department will transmit a copy of the tape(s) of the
proceedings to the district court. Any party may request copies of the tape recordings and shall
pay the charge set by the board. All monies received for copies of the tapes shall be payable to
the department and shall be deposited in the department's water right appropriation account in
the state treasury.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-614, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.228 THE DECISION
(1) The hearing record shall be the basis for the decision.
(a) No factual information or evidence which is not a part of the record shall be considered
by the hearing examiner in the preparation of the decision.
(b) The hearing examiner may take official notice of judicially cognizable facts and generally
recognized technical or scientific facts within the department's specialized knowledge, in
conformance with the requirements of MCA § 2-4-612 (6) .
(2) Following the close of the record, the hearing examiner shall make a decision pursuant
to MCA § 2-4-621 , and upon completion a copy of the decision shall be served upon all parties
by personal service, by first class mail or by depositing it with the mail and distribution section,
general services DIVISION, department of administration.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-612, 2-4-621, and 2-4-623, MCA; NEW, 1984
MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.229 EXCEPTIONS TO THE HEARING EXAMINER'S PROPOSAL FOR
DECISION AND THE FINAL DECISION-MAKING PROCESS
(1) Any party adversely affected by the hearing examiner's proposal for decision may file
exceptions. Such exceptions shall be filed with the hearing examiner within 20 days after the
proposal is served upon the party. A written request for additional time to file exceptions may, in
the discretion of the hearing examiner, be granted upon a showing of good cause. Exceptions
must specifically set forth the precise portions of the proposed decision to which the exception is
taken, the reason for the exception, authorities upon which the party relies, and specific citations
to the transcript if one was prepared. Vague assertions as to what the record shows or does not
show without citation to the precise portion of the record (e.g., to exhibits or to specific
testimony) will be accorded little attention. Any exception that contains obscene, lewd, profane
or abusive language shall be returned to the sender.
(a) After the 20-day exception period has expired, the director or the director's designee
shall:
(i) adopt the proposal for decision as the final order;
(ii) reject or modify the findings of fact, interpretation of administrative rules, or conclusions
of law in the proposal for decision; or
(iii) hold an oral argument hearing if requested, then adopt the proposal for decision as the
final order or reject or modify the findings of fact, interpretation of administrative rules, or
conclusions of law in the proposal for decision.
(2) The final decision in any contested case hearing shall be rendered in accordance with
MCA § § 2-4-621 to 2-4-623 . Only factual information or evidence which is a part of the
contested case hearing record shall be considered in the final decision-making process.
(3) A copy of the final order shall be served upon all parties by personal service, by first
class mail, or by depositing it with the mail and distribution section, general services DIVISION,
department of administration.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-621, 2-4-622, and 2-4-623, MCA; NEW, 1984
MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.230 EX PARTE COMMUNICATIONS
(1) Except as provided in (2) no party or representative of a party shall communicate, in
connection with any issue of law or fact in a pending contested case, with any person serving as
a hearing examiner or as a final decision-maker without notice and opportunity for all parties to
participate in the communication. The prohibitions of this subsection shall apply beginning at the
time at which a contested case is noticed for hearing and shall continue until a final order has
been issued unless the person responsible for the communication has knowledge that it will be
noticed, in which case the prohibitions shall apply beginning at the time of that person's
acquisition of such knowledge.
(2) A hearing examiner or a final decision-maker may respond to questions of any party or
representative of a party if it relates solely to procedures to be followed during the pendency of
the contested case. A communication made for this purpose is not an ex parte communication.
(3) A hearing examiner or final decision-maker who receives a communication prohibited by
(1) shall decline to listen to such communication and shall explain that the matter is pending for
determination, and that the hearing examiner may not listen to information or allegation when
other parties are not present to respond. If unsuccessful in preventing such communication, the
recipient shall advise the communicator that the hearing examiner will not consider the
communication and that the other parties will be notified of it. The recipient shall then place on
the record of the pending matter any written communications received (other than those allowed
pursuant to (2) or a memorandum stating the substance of all oral communications received and
all responses made and the identity of each person from whom the recipient received an ex
parte communication. The recipient shall then notify all parties of the communication and its
substance either orally on the record at the contested case hearing or, if no hearing is held, in a
written memorandum. The recipient shall inform the parties that the substance of the
communication is not part of the record in the pending matter, and will not be used as a basis
for any part of the decision made therein.
(4) Upon receipt of a communication knowingly made in violation of (1) , a hearing examiner
or final decision-maker may require, to the extent consistent with the interests of justice and the
policy of underlying statutes, the communicator to show cause why the communicator's claim,
objection or interest in the contested case should not be dismissed, denied, disregarded, or
otherwise adversely affected on account of such violation.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-613, MCA; NEW, 1984 MAR p. 697, Eff.
4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.
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36.12.231 REHEARING
(1) A rehearing proceeding is expressly prohibited under these rules, except as otherwise
required under 2-4-703 , 2-4-621 and 2-4-622 , MCA.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-703, 2-4-621, and 2-4-622, MCA; NEW, 1984
MAR p. 697, Eff. 4/27/84.
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36.12.232 EMERGENCY PROCEDURES
(1) Nothing contained in these rules is intended to preempt, repeal or be in conflict with any
rule or statute which provides for acts by the department in an emergency or procedure for
conduct by the department in such a situation.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-201(2) and 85-2-113(2), MCA; NEW, 1984 MAR
p. 697, Eff. 4/27/84.
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36.12.233 SEVERABILITY
(1) If any provision of these rules is held invalid, such invalidity shall not affect any other
provisions of the rules which can be given effect without the invalid provision, and to this end the
provisions of these rules are declared to be severable.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-201(2) and 85-2-113(2), MCA; NEW, 1984 MAR
p. 697, Eff. 4/27/84.
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36.12.234 REOPENING RECORD
(1) Upon motion of a party to the proceeding filed prior to issue of a final order, the record
may be reopened for receipt of evidence. Such motion must be received by the hearing
examiner within 15 days after the issuance of the proposal for decision. Additional evidence
may be received only if it is shown to the satisfaction of the hearing examiner to be material and
there were good reasons for the failure to present it in the hearing.
History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-703, 2-4-621, and 2-4-622, MCA; NEW, 1994
MAR p. 307, Eff. 2/11/94.
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Subchapter 5
Extensions of Time for Permit and Change Authorizations
36.12.501 DEFINITIONS
In addition to the definitions in 85-2-102 , MCA the following definitions apply to these rules:
(1) "Applicant" means a person who filed an application for an extension of time.
(2) "Application" means an application for an extension of time, Form No. 607.
(3) "Change authorization" means an authorization to change the point of diversion, place of
use, purpose of use, or place of storage of an existing water right issued by the department
pursuant to Title 85, chapter 2, MCA.
(4) "Project completion due date" means the date on the permit, change authorization or an
authorized extension when the project completion notice is to be received by the department.
The postmark on the envelope, if the notice is mailed, must be on or before the project
completion due date.
History: 85-2-312(3), MCA; IMP, 85-2-312(3), MCA; NEW, 1997 MAR p. 2084, Eff. 11/18/97; AMD, 2000 MAR
p. 636, Eff. 2/25/00.
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36.12.502 FILING AN APPLICATION FOR EXTENSION OF TIME
(1) When an appropriator cannot complete the project under a permit or change
authorization by the project completion due date specified, an application for extension of time
may be filed. The application must be postmarked by the project completion due date.
(2) A complete application must include the following:
(a) name, mailing address, and telephone number of applicant;
(b) identification number of the permit or change authorization;
(c) project completion due date;
(d) a chronological narrative describing how the applicant has diligently worked to complete
the project, and a description of the work completed on the project prior to the deadline date;
(e) the reasons the project was not completed as scheduled which must include a
discussion of how the information provided prior to the issuance of the permit or change
authorization has changed concerning the following:
(i) the cost of the project;
(ii) the magnitude of the project;
(iii) the engineering of the project;
(iv) the physical features encountered during development of the project;
(v) the time line for completion of the project.
(f) a notarized signature; and
(g) the required filing fee.
(3) An application postmarked after the project completion due date is void.
History: 85-2-312(3), MCA; IMP, 85-2-312(3), MCA; NEW, 1997 MAR p. 2084, Eff. 11/18/97; AMD, 2000 MAR
p. 636, Eff. 2/25/00.
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36.12.503 ACTION ON THE APPLICATION
(1) Upon receipt of a timely application, the department will determine whether to grant or
deny the extension based on the applicant's diligence in attempting to complete the project and
the reasons which prevented project completion as documented in the application for extension
of time. The department may gather additional information from the applicant and conduct a
field investigation.
(2) When the department determines the applicant has proceeded with diligence and has
established that the reasons stated in the application justify an extension based on a
consideration of the cost and magnitude of the project, the engineering and physical features
encountered during development of the project, and the time reasonably necessary for the
project, an extension shall be granted. The extension of time must state the new project
completion due date and any conditions to ensure completion.
(3) When the department determines there has been no diligence and a lack of good cause
for the extension, the application must be denied. The department shall notify the applicant of its
decision and reasons, and shall provide the applicant opportunity to be heard. An applicant
must request a hearing in writing, within 30 days after the date of the notice. When an applicant
requests a hearing, it shall be the applicant's burden to show cause why the application should
not be denied.
History: 85-2-312, MCA; IMP, 85-2-312, 85-2-314, MCA; NEW, 1997 MAR p. 2084, Eff. 11/18/97; AMD, 2000
MAR p. 636, Eff. 2/25/00.
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Subchapter 10
Petitions for Rule Closure in Highly Appropriated Basins
36.12.1010 DEFINITIONS
For the purposes of these rules, the following definitions shall apply:
(1) "Application" means an application for beneficial water use permit, form no. 600, or
application for provisional permit for completed stockwater pit or reservoir, form no. 605.
(2) "Consumptive use" means a use of water which removes water from the source of
supply, such that the quality or quantity is reduced or the timing of return delayed, making it
unusable or unavailable for use by others.
(3) "Department" means the department of natural RESOURCES AND CONSERVATION.
(4) "Infiltration gallery" means a collection system consisting of one or more perforated
pipes, culverts, or screens, placed horizontally beneath the streambed or vertically adjacent to
the streambed, by which surface water is appropriated.
(5) "Nonconsumptive use" means a beneficial use of water which does not cause a
reduction in the source of supply, and where substantially all of the diverted water returns to the
source of supply with little or no delay and without adverse effect to the quality of water.
(6) "Supplemental irrigation" means additional water provided to lands which are already
irrigated or to lands which will receive water through another water right.
(7) "Surface water" means all water at the surface of the ground including any river, stream,
creek, ravine, coulee, undeveloped spring, or lake, regardless of its character or manner of
occurrence, including but not limited to, diffused surface water, sewage effluent, waste water,
and return flows and any subsurface water which is a part of the surface flows.
History: Sec. 85-2-112, 319, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1990 MAR p. 228, Eff. 1/26/90; AMD,
1990 MAR p. 1896, Eff. 10/12/90; AMD, 1992 MAR p. 1396, Eff. 6/26/92.
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36.12.1011 GRANT CREEK BASIN CLOSURE
(1) Grant Creek Basin means the Grant Creek drainage area, a tributary of the Clark Fork
River, located in hydrologic basin 76M in Missoula County, Montana. The Grant Creek Basin
designated as the closure area is all that drainage and head waters originating in the
Rattlesnake Mountains of Township 15 North, Range 19 West, MPM, flowing southwesterly
through Township 14 North, Range 19 West, MPM and into the main valley of the Clark Fork
River in Township 13 North, Ranges 19 and 20 West, MPM. The entire Grant Creek drainage,
from its headwaters to its confluence with the Clark Fork River, including Grant Creek, East Fork
of Grant Creek, and all unnamed tributaries is contained in the closure area, as outlined on
Exhibit "A" (a copy of which is available for review from the department) .
(2) The department shall reject applications for surface water permits within the Grant Creek
Basin for any diversions, including infiltration galleries, for consumptive uses during the period
from July 1 through September 30.
(3) Permits for nonconsumptive uses during the closure period shall be modified or
conditioned to provide that there will be no decrease in the source of supply, no disruption in the
stream conditions below the point of return, and no adverse effect to prior appropriators within
the reach of stream between the point of diversion and the point of return. The applicant for a
nonconsumptive use shall prove by substantial credible evidence its ability to meet the
conditions imposed by this rule.
(4) These rules apply to all surface water within the Grant Creek Basin.
(5) Any application for a storage facility to impound water only outside the period from July 1
through September 30, and from which water could subsequently be used during any portion of
the year, is exempt from these rules. Permit applications for storage, except applications for
provisional permits for completed stockwater pits or reservoirs, form 605, will be received and
processed. All form 605 permit applications will be rejected.
(6) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall
be exempt from these rules.
(7) These rules apply only to applications received by the department after the date of
adoption of these rules.
(8) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend these rules accordingly after public notice and hearing.
History: Sec. 85-2-112, 85-2-319, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1990 MAR p. 228, Eff. 1/26/90;
AMD, 1990 MAR p. 1896, Eff. 10/12/90.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 75
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1013 ROCK CREEK BASIN CLOSURE
(1) Rock Creek Basin means the Rock Creek drainage area located in hydrologic Basin 43D,
a tributary of the Clarks Fork of the Yellowstone River in Carbon County, Montana. The entire
Rock Creek drainage, from its headwaters to its confluence with the Clarks Fork of the
Yellowstone, including Red Lodge Creek, Spring Creek, Dry Creek, Willow Creek, Clear Creek,
West Fork of Rock Creek, and all unnamed tributaries is contained in the closure area, as
outlined on Exhibit "A" (a copy of which is available for review from the department) .
(2) The department shall reject applications for surface water permits within the Rock Creek
Basin for any diversions for consumptive uses, including infiltration galleries, during the period
from June 1 through September 30.
(3) Permits for nonconsumptive uses during the closure period shall be modified or
conditioned to provide that there will be no decrease in the source of supply, no disruption in the
stream conditions below the point of return, and no adverse effect to prior appropriators within
the reach of stream between the point of diversion and the point of return. The applicant for a
nonconsumptive use shall prove by substantial credible evidence its ability to meet the
conditions imposed by this rule.
(4) These rules apply to all surface water within the Rock Creek Basin.
(5) Any applications which would utilize a storage facility to impound water only outside the
period from June 1 through September 30, and from which water could subsequently be used
during any portion of the year, is exempt from these rules. Permit applications for storage,
except applications for provisional permits for completed stockwater pits or reservoirs, form no.
605, will be received and processed. All form no. 605 permit applications will be rejected.
(6) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall
be exempt from these rules.
(7) These rules apply only to applications received by the department after the date of
adoption of these rules.
(8) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend these rules accordingly after public notice and hearing.
History: Sec. 85-2-112, 319, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1990 MAR p. 301, Eff. 2/9/90; AMD, 1990
MAR p. 1896, Eff. 10/12/90.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 76
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1014 WALKER CREEK BASIN CLOSURE
(1) Walker Creek Basin means the Walker Creek drainage area, located in hydrologic Basin
76LJ, a tributary of the Whitefish River in Flathead County, Montana. The entire Walker Creek
drainage, from its headwaters in Section 10 of Township 31 North, Range 21 West, MPM to its
confluence with the Whitefish River in Section 8 of Township 30 North, Range 21 West, MPM
including all unnamed tributaries is contained in the closure area.
(2) The department shall reject consumptive use applications for surface water permits
within the Walker Creek Basin for any development, including infiltration galleries within 50 feet
of Walker Creek or any of its tributaries, requesting to appropriate water or use water during the
period July 1 through March 31.
(3) Permits for nonconsumptive uses during the closure period shall be modified or
conditioned such that there will be no decrease in the source of supply, no disruption in the
stream conditions below the point of return, and no adverse affect to prior appropriators within
the reach of stream between the point of diversion and the point of return. Any permit for a
nonconsumptive use shall include at a minimum the following conditions:
(a) All nonconsumptive water uses shall be constructed such that the inflow and outflow can
be measured.
(b) One set of inflow and outflow measurements shall be taken during both July and August
in the first full year of operation. The permittee shall keep a written record of the flow rate,
method of measurement, place of measurement, and date of measurement, and shall submit
said records by November 30th to the Water Rights Bureau Field Office, P.O. Box 860,
Kalispell, MT 59903.
(c) All ponds or other storage facilities shall be filled during spring runoff or before June 1st
of each year, which ever occurs first.
(d) All ponds or other storage facilities shall be designed according to U.S. soil conservation
service specifications or designed by a registered engineer to minimize seepage.
(e) All nonconsumptive water uses which do not utilize the natural stream channel shall be
constructed such that water is conveyed to the use and returned to the stream by pipe to
minimize loss due to seepage.
(4) The applicant for a nonconsumptive use shall prove by substantial credible evidence the
applicant's ability to meet the conditions imposed by (3) above.
(5) Permit applications which would utilize an offstream storage facility to impound water
outside the closure period of July 1 through March 31, and which is of sufficient size to store
adequate water for use during the closure period, is exempt from these rules. All applications for
provisional permit for completed stockwater pit or reservoir (form 605) will be rejected.
(6) These rules apply to all surface water within the Walker Creek Basin.
(7) The department will make periodic inspections to determine compliance with these rules
and conditions.
(8) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall
be exempt from these rules.
(9) These rules apply only to applications received by the department after the date of
adoption of these rules.
(10) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend these rules accordingly after public notice and hearing.
History: Sec. 85-2-112 and 85-2-319, MCA; IMP, 85-2-319, MCA; NEW, 1990 MAR p. 1837, Eff. 9/28/90.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 77
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1015 TOWHEAD GULCH BASIN CLOSURE
(1) Towhead Gulch basin means the Towhead Gulch drainage area, a tributary of the
Missouri River at Upper Holter Lake, located in hydrologic basin 41I in Lewis and Clark County,
Montana. The entire Towhead Gulch drainage, from its headwaters in Section 33, Township 14
north, Range 3 west, MPM to its confluence with the Missouri River, including Beartooth Creek,
and all unnamed tributaries are contained in the closure area. Excluded from the basin closure
are Rattlesnake Gulch, McLeod Gulch, and their unnamed tributaries.
(2) The department shall reject applications for surface water permits in Towhead Gulch,
Beartooth Creek, and their unnamed tributaries for any diversions, including infiltration galleries,
for consumptive uses during any time of the year.
(3) Applications for nonconsumptive purposes shall be received and processed. Any permit
granted for nonconsumptive uses shall be modified or conditioned to provide that there will be
no decrease in the source of supply, no disruption in the stream conditions below the point of
return, and no adverse effect to prior appropriators within the reach of stream between the point
of diversion and the point of return. The applicant for a nonconsumptive use shall prove by
substantial credible evidence its ability to meet the conditions imposed by this rule.
(4) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall
be exempt from these rules.
(5) These rules apply only to applications received by the department after the date of
adoption of these rules.
(6) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend these rules accordingly after public notice and hearing.
History: Sec. 85-2-112, 85-2-319, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1992 MAR p. 52, Eff. 1/17/92.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 78
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1016 MUSSELSHELL RIVER CLOSURE
(1) The Musselshell River is located in hydrologic basins 40A and 40C, running from the
headwaters of the North Fork and South Fork in Meagher County through Wheatland, Golden
Valley, and Musselshell counties, and forming the east-west boundary for Petroleum, Garfield,
and Rosebud counties. The closure area contains the mainstems of the North and South Fork of
the Musselshell River and the Musselshell River down to the mouth of Flatwillow Creek located
at a point in the SW ¼ Section 33, Township 14 North, Range 30 East, Petroleum County,
Montana.
(2) The department shall reject applications for surface water permits within the Musselshell
River closure area for any diversions, including infiltration galleries, for consumptive uses of
water during the period from July 1 through August 31. Applications for use from September 1
through September 30 shall be rejected, except, applications for supplemental irrigation during
this period shall be accepted and processed.
(3) Any permits issued for nonconsumptive uses during the closure period shall be modified
or conditioned to provide that there will be no decrease in the source of supply, no disruption in
the stream conditions below the point of return, and no adverse effect to prior appropriators
within the reach of stream between the point of diversion and the point of return. The applicant
for a nonconsumptive use shall prove by substantial credible, evidence its ability to meet the
conditions imposed by this rule.
(4) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall
be exempt from these rules.
(5) These rules apply only to applications received by the department after the date of
adoption of these rules.
(6) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend these rules accordingly after public notice and hearing.
History: Sec. 85-2-112 and 85-2-319, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1992 MAR p. 1396, Eff. 6/26/92.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 79
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1017 SHARROTT CREEK BASIN CLOSURE
(1) Sharrott Creek Basin means the Sharrott Creek drainage area, a tributary of McCalla
Creek located in the Bitterroot River hydrologic basin, 76H, in Ravalli County, Montana. The
Sharrott Creek Basin designated as the closure area is all that drainage and head waters
originating in the Bitterroot Mountains, Township 9 North, Range 21 West, MPM, and flowing
easterly through Sections 19, 20, 28 & 29, Township 9 North, Range 20 West, MPM to its
confluence with McCalla Creek at a point in Section 28, Township 9 North, Range 20 West,
MPM Ravalli County, Montana. The entire Sharrott Creek drainage, from its headwaters to its
confluence with McCalla Creek, including all tributaries is contained in the closure area, as
outlined on file map labeled "1-B".
(2) The department shall reject all surface water applications to appropriate water within the
Sharrott Creek Basin for any diversions, including infiltration galleries, for any consumptive uses
of water during the period from January 1 through December 31.
(3) Applications for nonconsumptive uses during the closure period shall be received and
processed. Any permit if issued shall be modified or conditioned to provide that there will be no
decrease in the source of supply, no disruption in the stream conditions, and no adverse effect
to prior appropriators within the reach of stream between the point of diversion and the point of
return. The applicant for a nonconsumptive use shall provide sufficient factual information upon
which the department can determine the applicants ability to meet the conditions imposed by
this rule.
(4) Applications for groundwater shall be accepted, however the applicant shall provide
sufficient factual information upon which the department can determine whether or not the
source of the groundwater is part of or substantially or directly connected to surface water. If it is
found that the proposed diversion of groundwater would cause a calculable reduction in the
surface water flow during the closure period the application shall be rejected. A calculable
reduction means a theoretical reduction based on credible information as opposed to a
measured reduction. If the applicant fails to submit sufficient factual information as required, the
application shall be considered defective and shall be processed pursuant to 85-2-302, MCA.
(5) Emergency appropriations of water as defined in ARM 36.12.101(3) and 36.12.105 shall
be exempt from this rule.
(6) This rule applies only to applications received by the department after the date of
adoption of this rule.
(7) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend this rule accordingly after public notice and hearing.
History: Sec. 85-2-112 and 85-2-319, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1993 MAR p. 1515, Eff. 7/16/93.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 80
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1018 WILLOW CREEK BASIN CLOSURE
(1) The Willow Creek Basin means the Willow Creek drainage area, a tributary of the
Bitterroot River hydrologic basin, 76H, in Ravalli County, Montana. The Willow Creek Basin
designated as the closure area is all that drainage and headwaters originating in the Sapphire
Mountains, Township 6 North, Range 18 West, MPM and flowing westerly through Township 6
North, Range 19 West, to its confluence with the Republican Ditch, at a point in Section 4,
Township 6 North, Range 20 West, MPM, Ravalli County, Montana. The entire Willow Creek
drainage from its headwaters to its confluence with the Republican Ditch, including all
tributaries, is contained in the closure area as outlined on file map page 5.
(2) The department shall reject all surface water applications to appropriate water within the
Willow Creek Basin for any diversions, including infiltration galleries, for any consumptive uses
of water during the period from May 1 through September 30.
(3) Applications for nonconsumptive uses during the closure period shall be received and
processed. Any permit if issued shall be modified or conditioned to provide that there will be no
decrease in the source of supply, no disruption in the stream conditions, and no adverse effect
to prior appropriators within the reach of stream between the point of diversion and the point of
return. The applicant for a nonconsumptive use shall provide sufficient factual information upon
which the department can determine the applicants ability to meet the conditions imposed by
this rule.
(4) Applications for groundwater shall be accepted, however the applicant shall provide
sufficient factual information upon which the department can determine whether or not the
source of the groundwater is part of or substantially or directly connected to surface water. If it is
found that the proposed diversion of groundwater could cause a calculable reduction in the
surface water flow during the closure period the application shall be rejected. A calculable
reduction means a theoretical reduction based on credible information as opposed to a
measured reduction. If the applicant fails to submit sufficient factual information as required the
application shall be considered defective and shall be processed pursuant to 85-2-302, MCA.
(5) Temporary emergency appropriations of water as defined in ARM 36.12.101 and
36.12.105 shall be exempt from this rule.
(6) This rule applies only to applications received by the department after the date of
adoption of this rule.
(7) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend this rule accordingly after public notice and hearing.
History: Sec. 85-2-112 and 85-2-319, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1994 MAR p. 2640, Eff. 9/23/94.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 81
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1019 TRUMAN CREEK BASIN CLOSURE
(1) The Truman Creek Basin means the Truman Creek drainage area, a tributary of Ashley
Creek in hydrologic basin 76LJ, in Flathead County, Montana. The Truman Creek Basin
designated as the closure area is all that drainage and headwaters originating in the Salish
Mountains, Township 26 North, Range 21 and 22 West, MPM, and flowing northwesterly to its
confluence with Ashley Creek at a point in Section 18, Township 27 North, Range 22 West,
MPM, Flathead County, Montana. The entire Truman Creek drainage, from its headwaters to its
confluence with Ashley Creek, including Bales Creek, Emmons Creek, Wild Bill Creek, and all
unnamed tributaries, is contained in the enclosure area as outlined on file map page 6.
(2) The department shall reject all surface water applications to appropriate water within the
Truman Creek Basin for any diversions, including infiltration galleries, for any consumptive uses
of water during the period from July 15 through August 31.
(3) Applications for nonconsumptive uses during the closure period shall be received and
processed. Any permit if issued shall be modified or conditioned to provide that there will be no
decrease in the source of supply, no disruption in the stream conditions, and no adverse effect
to prior appropriators within the reach of stream between the point of diversion and the point of
return. The applicant for a nonconsumptive use shall provide sufficient factual information upon
which the department can determine the applicant's ability to meet the conditions imposed by
this rule.
(4) Applications for groundwater shall be accepted, however the applicant shall provide
sufficient factual information upon which the department can determine whether or not the
source of the groundwater is part of or substantially or directly connected to surface water. If it is
found that the proposed diversion of groundwater would cause a calculable reduction in the
surface water flow during the closure period the application shall be rejected. A calculable
reduction means a theoretical reduction based on credible information as opposed to a
measured reduction. If the applicant fails to submit sufficient factual information as required, the
application shall be considered defective and shall be processed pursuant to 85-2-302, MCA.
(5) Any application which would utilize a storage facility to impound water only outside the
period from July 15 through August 31 and from which water could subsequently be used during
any portion of the year, is exempt from these rules. Permit applications for storage, except
applications for provisional permits for completed stockwater pits or reservoirs, form no. 605, will
be received and processed. All form no. 605 permit applications will be rejected.
(6) Temporary emergency appropriations of water as defined in ARM 36.12.101 and
36.12.105 shall be exempt from this rule.
(7) This rule applies only to applications received by the department after the date of
adoption of this rule.
(8) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend this rule accordingly after public notice and hearing.
History: Sec. 85-2-112, MCA; IMP, Sec. 85-2-319, MCA; NEW, 1995 MAR p. 222, Eff. 2/10/95.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 82
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1020 SIXMILE CREEK BASIN CLOSURE
(1) Sixmile Creek Basin means the Sixmile Creek drainage area, a tributary to the Clark Fork
River located in hydrologic basin 76M, in Missoula County, Montana. The Sixmile Creek Basin
designated as the closure area is all that drainage and headwaters originating in Township 16
North, Range 21 and 22 West, MPM flowing southwesterly through Township 15 North, Range
21 and 22 West, MPM to its confluence with the Clark Fork River in Section 27, Township 15
North, Range 22 West, MPM. The entire Sixmile Creek drainage, including the West Fork of
Sixmile Creek and all unnamed tributaries, is contained in the closure area as outlined on file
map page 4.
(2) The department shall reject all surface water applications to appropriate water within the
Sixmile Creek Basin for any diversions, including infiltration galleries, for consumptive uses of
water during the period from June 1 through September 15.
(3) Applications for nonconsumptive uses shall be accepted and processed. Any permit if
issued shall be modified or conditioned to provide that there will be no decrease in the source of
supply, no disruption in the stream conditions, and no adverse effect to prior appropriators
within the reach of stream between the point of diversion and the point of return. The applicant
for a nonconsumptive use shall provide sufficient factual information upon which the department
can determine the applicant's ability to meet the conditions imposed by this rule.
(4) Applications for storage to appropriate water only outside the closure period from which
water could subsequently be used during any portion of the year shall be received and
processed except for form no. 605, application for provisional permit for completed stockwater
pit or reservoir. Form no. 605 shall be rejected.
(5) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall
be exempt from these rules.
(6) These rules apply only to applications received by the department after the date of
adoption of these rules.
(7) The department may, if it determines changed circumstances justify it, reopen the basin
to additional appropriations and amend these rules accordingly after public notice and hearing.
History: 85-2-319, MCA; IMP, 85-2-319, MCA; NEW, 1995 MAR p. 2693, Eff. 12/8/95.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 83
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1021 HOULE CREEK BASIN CLOSURE
(1) The Houle Creek Basin means the entire Houle Creek drainage area located in
hydrologic basin 76M in Missoula County, Montana. The Houle Creek Basin designated as the
closure area is all that drainage and headwaters originating in Sections 4 and 8, Township 15
North, Range 21 West, MPM flowing southwesterly to its confluence with the Frenchtown
Irrigation District ditch in the SENENE Section 30, Township 15 North, Range 21 West, MPM.
The entire Houle Creek drainage including all unnamed tributaries is contained in the closure
area as outlined on file map page 4.
(2) The department shall reject all surface water applications to appropriate water within the
Houle Creek Basin for any diversions, including infiltration galleries, for consumptive uses of
water during any time of the year.
(3)Applications for nonconsumptive uses shall be accepted and processed.Any permit if
issued shall be modified or conditioned to provide that there will be no decrease in the source of
supply, no disruption in the stream conditions, and no adverse effect to prior appropriators
within the reach of stream between the point of diversion and the point of return.The applicant
for a nonconsumptive use shall provide sufficient factual information upon which the department
can determine the applicant's ability to meet the conditions imposed by this rule.
(4)Applications for ground water shall be accepted however the applicant shall provide
sufficient factual information upon which the department can determine whether or not the
source of the ground water is part of or substantially or directly connected to surface water.If it is
found that the proposed diversion of ground water would cause a calculable reduction in the
surface water flow during the closure period the application shall be rejected.A calculable
reduction means a theoretical reduction based on credible information as opposed to a
measured reduction. If the applicant fails to submit sufficient factual information as required, the
application shall be considered defective and shall be processed pursuant to 85-2-302 , MCA.
(5)Temporary emergency appropriations of water as defined in ARM 36.12.101(6) and
36.12.105 shall be exempt from these rules.
(6) these rules apply only to applications received by the department after the date of
adoption of these rules. (7) the department may, if it determines changed circumstances justify
it, reopen the basin to additional appropriations and amend these rules accordingly after public
notice and hearing.
History: 85-2-319, MCA; IMP, 85-2-319, MCA; NEW, 1996 MAR p. 2432, Eff. 9/20/96.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 84
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
Subchapter 12
Yellowstone Controlled Ground Water Area
36.12.1201 PURPOSE AND SCOPE
(1) the purpose of these rules and the goal of the department is to provide for the
preservation of the hydrothermal system and features by allowing no impact to them within the
reserved land of Yellowstone National Park. These rules are necessary to effectuate the
Compact and to establish criteria which are necessary to implement Article IV of the Compact.
(2)All ground water appropriations (wells or developed springs) with a priority date after
January 31, 1994 are subject to the following rule provisions.A permit application must be filed
with the department of natural RESOURCES AND CONSERVATION if the development will be
located within the boundaries of the Yellowstone controlled ground water area.A map of the
boundaries is available from the department upon request.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1202 DEFINITIONS
As used in these rules, the following definitions apply:
(1) "Application" means Form No. 600, Application for Beneficial Water Use Permit,
submitted to the department by an applicant for a provisional permit to appropriate ground
water.
(2) "Appropriate" means to divert, impound or withdraw a quantity of water for beneficial use.
(3) "Appropriator" means a person who has a legal water right to divert, impound, or
withdraw a quantity of water for beneficial use.
(4) "Beneficial use" means the use of water for the benefit of the appropriator, other persons,
or the public, including but not limited to agricultural, domestic, fish and wildlife, industrial,
irrigation, mining, municipal, power, recreational, and stock uses.
(5) "Bozeman water resources regional office (BWRRO) " means the Montana water
resources regional office of the department of natural resources and conservation, responsible
for processing all applications under the Yellowstone Controlled Ground Water Area, Article IV
of the Compact.
(6) "Category 3 or 4 streams" means streams with special importance as defined in the
Compact.
(7) "Change application" means a Form No. 606, Application to Change a Water Right filed
pursuant to 85-2-402 , MCA.
(8) "Compact" means the United States National Park Service-Montana Water Rights
Compact, effective January 31, 1994 as provided in 85-20-401 , et seq., MCA.
(9) "Correct and complete" means that the information required to be submitted conforms to
the standard of substantial credible information and that all the necessary parts of the form
requiring the information have been filled in with the required information.
(10) "Credible information or evidence" means evidence sufficient to support a prima facie
basis for the theory asserted.
(11) "Department" means the Montana department of natural resources and conservation in
Helena and Bozeman, Montana provided for in Title 2, chapter 15, part 33, MCA.
(12) "Developed spring" means ground water if some physical alteration of its natural state
occurs at its point of discharge from the ground, such as simple excavation, cement
encasement, or rock cribbing. An undeveloped spring is surface water if no development occurs
at its point of discharge and the appropriation is made from the unenhanced natural surface
flow.
(13) "Extension of time" means Form No. 607, Application for Extension of Time, that can be
filed by a permittee with the BWRRO for the purpose of obtaining approval for additional time to
complete the ground water development.
(14) "Ground water" means any water that is beneath the ground surface.
(15) "Hydrologically connected" for the purposes of Article IV of the Compact, means ground
water that is considered to be connected to the hydrothermal system within the reserved land of
Yellowstone National Park based on scientific evidence according to the procedures in Article
IV.
(16) "Hydrothermal feature" means a surface manifestation of a hydrothermal system,
including but not limited to: hot springs, geysers, mud pots, and fumaroles.
(17) "Hydrothermal system" means the ground water system, including cold water
recharge, transmission and warm water discharge that is hydrologically connected to the
hydrothermal features within the reserved land of Yellowstone National Park.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 86
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
(18) "Meter" means a device provided by the department that must be installed and
maintained by the permittee to record the volume of water appropriated and used by the
permittee.
(19) "Montana bureau of mines and geology (MBM&G) " means the Montana bureau of
mines and geology located at Butte, Montana.
(20) "National park service" means the U.S. department of the interior, national park service.
(21) "Project completion" means Form No. 617, Project Completion Notice for Permitted
Water Development or Form 618, Project Completion Notice for Change of a Water Right, filed
by permittee after completion of the ground water well or spring and beneficial use of the water
granted under a provisional permit or changes granted under an authorization to change.
(22) "Objection" means Form No. 611, Objection to Application that may be filed with the
department by the national park service or other persons opposing a permit application.
(23) "Permit" means the provisional permit to appropriate ground water as issued by the
department.
(24) "Replacement well" means a new well to replace an old existing well with an
established water right prior to January 31, 1994 or an issued provisional permit granted by the
department after January 31, 1994 that is in the same source and the rate and volume have not
increased.
(25) "Scientific evidence" means geologic, geophysical, geochemical and hydrologic
information.
(26) "Specific conductance" means the unit of measurement of water to conduct an electrical
current, expressed in mhos (pronounced mose) and reported in millionths of mhos or
micromhos. Chemically pure water has a very low electrical conductance, meaning that it is a
good insulator.Dissolved chemical constituents increase the conductance of water.
(27) "Substantial credible information" means probable, believable facts sufficient to support
a reasonable legal theory upon which the department should proceed with the action requested
by the person providing the information.
(28) "Supplement" means a form provided by the BWRRO on which additional information is
recorded concerning the development of a well or spring as required by Article IV.
(29) "Well" means any artificial opening or excavation in the ground, however made, by
which ground water is sought or can be obtained or through which it flows under natural
pressures or is artificially withdrawn.
(30) "Well log report" means Form No. 603, Well Log Report, that is completed by a licensed
water well driller or contractor, detailing required information about the completed well.
(31) "Yellowstone controlled ground water area" means the land area around Yellowstone
national park that lies within the state of Montana and within the boundaries identified in
Appendix 3 of the Compact or as modified pursuant to Article IV, section J.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1203 APPLICATION TYPES
(1) Type "A" ground water permit applications are for appropriations of 35 gpm or less, not to
exceed 10 AF/yr. An applicant for an appropriation of water with a proposed use that does not
require water with a temperature of 60ºF or more, may drill the proposed well subject to state
law and the terms of the Compact, but shall not put the water to beneficial use until receipt of a
provisional permit. These applications follow an abbreviated application and notice process.
(2)Type "B" ground water permit applications are for appropriations of greater than 35 gpm
or 10 AF/yr. An applicant for an appropriation of water with a proposed use that does not require
water with a temperature of 60°F or more, may drill the proposed well subject to state law and
the terms of the Compact, but shall not put the water to beneficial use until receipt of a permit.
These applications must follow state law permit processing requirements in addition to certain
Compact requirements.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1204 APPLICATION FILING REQUIREMENTS
(1)All permit applications must be filed with the department's Bozeman water RESOURCES
regional office. Form No. 600, Application for Beneficial Water Use Permit must be used and the
appropriate fee must accompany the application.
(2)All applications must include a statement of whether the proposed use requires water
with a temperature of 60°F or more.
(3)A type "A" permit applicant is not required to prove the 85-2-311 , MCA, permit issuance
criteria.
(4)A type "B" permit applicant shall prove the criteria in 85-2-311 , MCA, prior to issuance.
(5)If an application, its corresponding well log or other verification indicates water of 60°F or
more, the application must follow additional requirements set out in Article IV, section G.2.c.
(6)If an application is located in a basin tributary to a category 3 or 4 stream, the applicant
must meet additional requirements set out in Article II, section B.2.b.
(7)Failure to meet the requirements in (2) , (4) , (5) or (6) renders the application defective
and the application must be returned for completion according to state law.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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36.12.1205 PROCESSING - NOTICE
(1) the BWRRO shall review each type of permit application and determine if it is correct and
complete.
(2)A copy of an "incorrect and incomplete" application must be returned to the applicant with
a letter explaining the deficiencies. The BWRRO letter must contain a deadline for the applicant
to correct the deficiencies and return the application copy.
(3)For type "A" permit applications no notice pursuant to 85-2-307 , MCA is required. The
BWRRO shall only send notice to the national park service by means of a letter within 30 days
after receipt of a correct and complete permit application. Enclosed with each letter must be a
copy of the correct and complete permit application, a well location map, and a copy of the
drillers well log report and supplement. A copy of each BWRRO letter must be sent to the
following:
(a) the applicant;
(b) the MBM&G in Butte, Montana along with a copy of the well log report form.
(4)For type "B" permit applications the BWRRO shall send notice as in (3) and a copy of the
general notice provided under 85-2-307 , MCA.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1206 WELL LOG REPORT AND SUPPLEMENT
(1)An applicant shall provide a well log report and supplement no later than 60 days after
drilling the well.
(2)All applicants, when filing a well log report and supplement, shall provide the following
information:
(a)2½ acre land description (¼¼¼¼, section, township and range) ;
(b)ground elevation at well head;
(c)well depth;
(d)ground water level in well (static) ;
(e)flow rate or maximum pump rate;
(f)ground water temperature measured at well head; and
(g)specific conductance of the wells ground water.
(3) the Compact requires that with each ground water development the specific conductance
and temperature of the water encountered be measured and recorded on the well log report
form, or supplement provided by the BWRRO.
(4) the temperature that must be reported on the well log report form is of the water
produced when the well is completed. This should be taken at the end of an air test or pumping
period and only after the temperature of the water has remained constant for several minutes.
The water sample for specific conductance must be collected and recorded using the same
procedure. The temperature of the water could increase during an air test if the air is hot and
especially if the yield of the well is low. Therefore, if the water temperature is 60°F or more
during an air test, it is recommended that the well be pumped to more accurately determine the
water temperature.
(5)Water samples taken for the purpose of testing specific conductance should be placed in
a clean plastic or glass container that holds at least 8 fluid ounces (250 ml) .The BWRRO has
sample bottles available and will provide the sample bottles to water well drillers who operate in
the area on a regular basis. The sample bottle must be filled and capped with as little air in the
container as possible. The container must be labeled with a name and address, department
permit application number, date collected, and who collected the sample. The samples should
be delivered to the BWRRO or make other arrangements to get the sample tested.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1207 OBJECTIONS
(1)Objections to type "A" permit applications must comply with the following procedures:
(a) the national park service may within 60 days from the date of the BWRRO's mailing of
the well log report form, file an objection providing credible information that the proposed
appropriation is of ground water with characteristics to which the Compact restrictions
concerning temperatures of 60° or more apply.
(b)No other objection may be filed by any person or entity.
(c)An objection must be filed on Form No. 611, Objection to Application. The objection must
be received or postmarked on or before the 60 day time limit provided in the Compact to
constitute a timely objection, along with the proper filing fee. An untimely objection may not be
considered.
(d)Any national park service objection must set forth credible information that the
appropriation is of ground water with characteristics to which restrictions established pursuant to
Article IV of the Compact apply, or must provide credible information that the ground water
proposed to be appropriated is hydrologically connected to the hydrothermal system within the
reserved land of Yellowstone National Park based on scientific evidence according to the
procedures in Article IV of the Compact.
(2)Objections to type "B" permit applications must comply with the following procedures:
(a)Any objection filed by the national park service must be filed on Form No. 611, Objection
to Application. The objection must be postmarked on or before the deadline date specified in the
public notice or received within 60 days from the date of mailing a well log report to be timely.
The objection must be accompanied by the proper filing fee. An untimely objection may not be
considered.
(b)Any national park service objection must set forth credible information as described in (1)
(d) .
(c)When the national park service files a proper objection, the applicant shall provide
credible information addressing the issue identified in the objection and the requirements in
Article IV, section G.2.c.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1208 HEARINGS
(1) All objections to permit applications, if correct and complete, timely filed, and unsettled
between the parties, must proceed to a hearing following the department's administrative
procedural rules for water right contested case hearings as provided in ARM 36.12.201 through
36.12.234.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 93
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1209 PERMIT CONDITIONS
(1) All permits issued by the department must contain at a minimum the following specific
conditions:
(a) U.S. National Park Service-Montana Compact requires this right be issued in accordance
with the Yellowstone controlled ground water area provisions of the January 31, 1994, U.S.
National Park Service-Montana Compact. The department may modify or revoke this permit if
the provisions of the Compact are not met; the character of the ground water produced changes
such that a restriction applies pursuant to Article IV; or new restrictions are imposed as a result
of Article IV, section J. Further modification may occur to limit the total withdrawal by day, month
or year; to require a system of rotation of use within the controlled area; or adjust the total
withdrawal from two or more wells in the area used by the same appropriator. The appropriator
shall allow access to the well by the Montana bureau of mines and geology for water sampling
as provided by the Compact. Further, this right is subject to the condition that the appropriator
install an adequate metering device to allow the volume of water diverted to be recorded. The
type and location of the meter must be determined by the department. The appropriator shall
keep a written record of the volume of all waters diverted including the period of time, and shall
submit said records by January 15 of each year and upon request to the Montana Bureau of
Mines and Geology, Montana Tech, 1300 W. Park St., Butte, MT 59701-8997.
(b) The deadline to complete this permit and file a Project Completion Notice for Permitted
Water Development (Form No. 617) is December 31, (specify year) .
(i) For type "A" permit applications, the project completion notice must be filed 60 days after
completion of the appropriation. If you cannot meet the deadline above, the permittee shall
contact the Bozeman water RESOURCES regional office for a new deadline.
(ii) For type "B" permit applications, if you cannot meet the deadline, the permittee shall file a
Form No. 607, Application for Extension of Time, at least 30 days before the above deadline,
otherwise the permit is void.
(c) This permit is subject to all prior existing water rights in the source of supply. Further, this
permit is subject to any final determination of existing water rights, as provided by Montana law.
(d) Pursuant to 85-2-505 , MCA, to prevent ground water contamination, an operational back
flow preventor must be installed and maintained by the appropriator if a chemical or fertilizer
distribution system is connected to the well.
(e) This right is subject to 85-2-505 , MCA, requiring a well to be constructed so it will not
allow water to be wasted or contaminate other water supplies or sources, and a flowing well
must be capped or equipped so the flow of the water may be stopped when not being put to
beneficial use. The final completion of the well(s) must include an access port of at least .50
inch so the static level of the well may be accurately measured.
(f) This permit is subject to the authority of the department to revoke the permit in
accordance with 85-2-314 , MCA, and to enter onto the premises for investigative purposes in
accordance with 85-2-115 , MCA. Further, the United States may accompany the department
for the purposes of confirming well log information pursuant to Article IV, section G.2.b.v. of the
Compact.
(g) Upon a change in ownership of all or any portion of this permit, the parties to the transfer
shall file with the department a Water Right Ownership Update, Form No. 608, pursuant to 85-2-
424 , MCA.
(2) Additional permit conditions may be placed on the permit as agreed upon by the parties
and approved by the department, as required by the department, the hearing examiner, or
Article IV of the Compact.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.
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maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1210 FILING OF PROJECT COMPLETION NOTICE
(1) Permittee shall file a project completion notice on Form No. 617 with the department
pursuant to state law and Article IV of the Compact.
(2) A photograph or legible sketch of the actual flow meter installation must accompany
Form No. 617.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 95
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
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36.12.1211 METERS
(1) Each ground water use must be metered to record the total volume of water used.
(2) The department will provide the meter to be used at no cost to the permittee, but it is the
responsibility of the permittee to properly install and maintain the meter. A meter will be
provided after a provisional permit is issued.
(3) A permittee may upon prior approval from the department purchase, install, and maintain
a different type of meter than provided by the department, but only if the meter records the total
volume of water used.
(4) The following general guidelines should be followed to properly install a meter:
(a) install meter in a frost free location;
(b) place in a horizontal position for optimum performance;
(c) use leak tight connections;
(d) install shut-off valves before and after the meter to prevent excessive water loss during
servicing;
(e) locate the meter in a supply line with a diameter as near to the meter size as possible;
(f) provide access to meter for reading and service;
(g) maintain a continuous electrical connection around the meter;
(h) locate meter after any sand traps in the system; and
(i) any hydrants or outside faucets should be located after the meter to allow for total water
use recording.
(5) The department shall determine the size of the meter and connections depending on
water use in gallons per minute (gpm) and size of supply line into and from the pressure tank.
(a) Commonly used meter sizes are:
(i) 5/8" meter will accept up to a 3/4" pipe and a 20 gpm intermittent flow or 10 gpm
continuous flow;
(ii) 3/4" meter will accept up to a 1" pipe and a 30 gpm intermittent flow or 15 gpm
continuous flow;
(iii) 1" meter will accept up to a 1¼" pipe and a 50 gpm intermittent flow or 25 gpm
continuous flow; and
(iv) 1½" meter will accept up to a 2" pipe and 100 gpm intermittent flow or 50 gpm
continuous flow.
(6) In cases where the meter is not installed to prevent freezing the meter, internal parts, or
the base, the water meter must be removed, drained and later reinstalled. Gravity draining of
the water lines is not sufficient to drain all the water from the bottom of the meter. Using air to
blow out the water lines and meter, if done properly, may be sufficient to protect the meter from
freezing.
(7) On or before January 15 of each year and upon request, the permittee shall report the
annual metered water use to the MBM&G. The water use must be recorded on a form provided
by the MBM&G.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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36.12.1212 REPLACEMENT WELLS
(1) All ground water appropriators shall file with the department a change application and
obtain approval from the department prior to replacing an existing well or spring development.
(2) Approval to replace a well or spring development may only be to change the point of
diversion, place of use, place of storage, or the use.
(3) Any well or spring development change must be from the same source and the rate and
volume of water use may not increase.
(4) An increase in rate or volume of water used, period of appropriation or use, or change in
source requires a new permit application and approval from the department in accordance with
state law and the Compact provisions.
History: 85-20-401, MCA, Article IV; IMP, 85-20-401, MCA, Article IV. I. 5. ; NEW, 1997 MAR p. 469, Eff.
3/11/97.
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Subchapter 13
Form Acceptance
36.12.1301 PERMIT AND CHANGE APPLICATION ACCEPTANCE
(1)A permit application will not be assigned a priority date and will be returned to the
applicant if any of the following is not completed on the application form or included with the
application:
(a) the name and address of the applicant;
(b) the water source of supply;
(c) the point of diversion;
(d) the place of use;
(e) the purpose for which the water will be used;
(f) the flow rate or volume required;
(g) the applicant? notarized signature; and
(h) the appropriate filing fee found at ARM 36.12.103.
(2)A change application will be returned to the applicant if any of the following is not
completed on the application form:
(a)general abstracts of the water rights being changed reflecting the proposed changes;
(b)applicant's notarized signature; and
(c) the appropriate filing fee found at ARM 36.12.103.?
History: 85-2-113, MCA; IMP, 85-2-310, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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Subchapter 14
Form Modifications
36.12.1401 PERMIT AND CHANGE APPLICATION MODIFICATION
(1) Any element of a permit or change application may be modified prior to or after an
application has been published.
(2) An applicant may change the name on an application before publication by notifying the
department in writing. For name changes after an application has been published and
objections have been received, an applicant must notify the department and all parties in
writing.
(3) If a modification requires republication, the priority date of a permit application or the
date received of a change application will be changed to the date the last modification was
made.
(4) Republication is required if a modification changes the nature or scope of the permit or
change application information. The following require republication:
(a) the flow rate is increased;
(b) the volume is increased;
(c) the acreage is increased;
(d) the period of diversion is expanded;
(e) the source of supply is changed;
(f) the point of diversion is changed;
(g) the place of use is changed;
(h) the purpose is changed;
(i) the period of use is expanded, unless the application involves a use from a reservoir and
the impact would not change; and
(j) any modification where the effect on the source of supply or its tributaries changes the
impact described from the originally published information.
(5) For modifications made after an application has been published, the cost of republication
and mailing of individual notices must be paid by the applicant.
(6) A new analysis of the application criteria must be submitted when an application
modification requires republication and the department will make a new correct and complete
determination on the modifications prior to republication.
(7) If an applicant decides at any point in the water right application process to complete a
different application for the same project, the applicant must complete a new application form.
The date received will be the date the new application is submitted to the department. The
department will review the application based on the requirements for that type of application.
History: 85-2-113, MCA; IMP, 85-2-302 and 85-2-307, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 99
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Subchapter 15
Deficiency Letters and Termination
36.12.1501 PERMIT AND CHANGE APPLICATION DEFICIENCY LETTER AND
TERMINATION
(1) If the department determines the application does not contain the information requested
in ARM 36.12.1601, the department will notify the applicant in one deficiency letter of any
defects in a permit or change application within 180 days of receipt of the application. The
defects and the administrative rule not met will be identified in the deficiency letter.
(2) If all of the requested information in the deficiency letter is postmarked and submitted to
the department within 30 days of the date of the deficiency letter or an extension of time of no
more than 15 days, the priority date on a permit application will not be changed, or for change
applications, the date received will not be changed. A request for extension of time must be
submitted in writing.
(3) If all of the requested information in the deficiency letter is postmarked or submitted
within 31 to 90 days of the date of the deficiency letter unless extended under (2) , the permit
application priority date will be changed to the date when the department receives all of the
requested information, or for a change application, the date received will be changed.
(4) If all of the requested information in the deficiency letter is not postmarked or submitted
within 90 days of the date of the deficiency letter, the permit or change application will be
terminated and the application fee will not be refunded.
History: 85-2-113, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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Subchapter 16
Correct and Complete Determination
36.12.1601 WATER RIGHT PERMIT AND CHANGE - CORRECT AND COMPLETE
DETERMINATION
(1) An application deemed correct and complete can advance to the next stage of the
application process.
(2) An application deemed correct and complete does not entitle an applicant to a
provisional permit or change authorization.
(3) Providing correct and complete information is not necessarily the same as proving the
statutory criteria. The department, with or without receipt of objections can only grant an
application if the criteria for issuance of a permit or change application are met.
(4) A water right permit application will be deemed correct and complete if a permit
applicant's information, required to be submitted by ARM 36.12.110 through 36.12.116,
36.12.120, 36.12.121, 36.12.1301, 36.12.1401, 36.12.1701 through 36.12.1707, and
36.12.1802, conforms to the standard of substantial credible information and all the necessary
parts of the application form requiring the information, including a criteria addendum, have been
filled in with the required information.
(5) A water right change application will be deemed correct and complete if an applicant's
information, required to be submitted by ARM 36.12.110 through 36.12.116, 36.12.121,
36.12.1301, 36.12.1401, 36.12.1801, 36.12.1802, 36.12.1901 through 36.12.1904, and
36.12.2001, conforms to the standard of substantial credible information and all the necessary
parts of the application form requiring the information, including a criteria addendum, have been
filled in with the required information.
History: 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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Subchapter 17
Permit Application Requirements
36.12.1701 FILING A PERMIT APPLICATION
; (1) An application for beneficial water use permit (Form No. 600) must be filed when an
applicant desires to use ground water that exceeds 35 gallons per minute or a volume of 10
acre-feet, or for ground water sources within a controlled ground water area, or for all surface
water appropriations.
(2) An application must contain sufficient factual documentation to constitute probable
believable facts sufficient to support a reasonable legal theory upon which the department
should proceed with the application.
(3) Form No. 600 and the applicable criteria addendum must be completed and must
describe the details of the proposed project. The form and addendums must be filled in with the
required information.
(4) Each source of supply requires a separate application. For example, if an application is
for two diversions, one on an unnamed source and another on a source to which it is tributary,
two separate applications must be submitted, one for each source of supply.
(5) One application is allowed for one purpose and multiple points of diversion.
(6) One application is allowed for several purposes if all the points of diversion supply the
same purposes.
(7) Separate applications are required if multiple purposes are supplied by different points of
diversion on the same source, except if the entire project is manifold into one system, then a
single application is allowed. "Manifold" means two or more diversions from the same source,
which are connected into a single system for the same project or development. An example of a
manifold system is two pumps on one source or two wells pumping from the same aquifer which
divert water into the same reservoir or cistern.
(8) Calculations, references, and methodologies used to determine flow rate, volume, or
reservoir capacity must be included in the application materials.
(9) Flow rate (in gallons per minute [gpm] or cubic feet per second [cfs]) , volume (in acre-
feet) or reservoir capacity (in acre-feet) figures will be rounded to the nearest tenth.
(10) The source name standards outlined in ARM 36.12.114 must be followed.
(11) The legal descriptions for the point of diversion and place of use must be identified as
required under ARM 36.12.110.
(12) The period of diversion standards outlined in ARM 36.12.112 must be followed.
(13) The reservoir standards outlined in ARM 36.12.113 must be followed if an application
involves a reservoir.
(14) The permit application materials must include a general project plan stating when and
how much water will be put to beneficial use. For appropriations over 4,000 af or more and 5.5
cfs or more, or for water marketing, additional information is required by 85-2-310 (4) (a) , MCA.
(15) Photographs must include the name of the photographer, the date taken, and an
explanation of what fact or issue the photograph is offered to verify.
(16) If there are associated water rights to the application, they must be identified and
additional information may be required.
(17) If a permit application is to supplement another water right, the water right numbers and
abstracts of the associated water rights must be included in the application.
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(18) An explanation of why supplemental water is needed and how the associated water
rights will be managed must be included in the application materials.
(19) The flow rate at which water will be diverted from the source of supply for each
purpose, a reasonable volume of water for each purpose, and the period of time that water will
be used for each purpose must be identified.
(20) An application to only increase the flow rate or volume must reflect a value of zero in
the nonapplicable field. For example, if an applicant is applying to only increase the flow rate of
water taken from a source, but no additional volume is needed, the application flow rate blank
should be completed with the additional flow of water requested and the blank for acre-feet
(volume) should reflect zero.
(21) Information must be included in the application that explains why the time period for
completion is requested.The explanation may include information about the cost and magnitude
of the project and the complexity of the project or any other reason for the time period identified
to complete the project.
(22) An applicant shall explain why required information is not applicable to the applicant's
proposed project.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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36.12.1702 PERMIT APPLICATION CRITERIA - PHYSICAL SURFACE WATER
AVAILABILITY
(1) Substantial credible information must be provided showing there is surface water
physically available at the flow rate and volume that the applicant seeks to appropriate for the
proposed period of diversion.
(2) If actual stream gaging records are available, they should be used to estimate the flow
rates and volumes at the source of supply in the amount the applicant seeks to appropriate, the
following is required:
(a) the medians of the monthly average flow rates and volumes for the stream gaging
station period of record during the proposed months of diversion;
(b) a legible copy or excerpt of the data source, study or report(s) used in documenting
water availability in the source of supply; and
(c) a description of all conclusions, calculations, data, and assumptions used in estimating
water availability.
(3) If actual flow rate and volume data are not available to estimate the monthly median
flows, then the applicant will need to use an accepted method for estimating surface water flow
rates and volumes in conjunction with discharge measurements to validate the estimation
technique used. Some accepted methods are listed in (6) .
(4) When stream flow gaging station data are not available and monthly median flow
estimation techniques are used, the following stream discharge data must be collected:
(a) Stream flow measurements in cfs or gpm must be collected at least once every month
during the proposed period of diversion at the most suitable location on the source of supply,
and at or directly upstream of the proposed point of diversion. Measurements taken and
submitted under this method must include:
(i) a legible copy of the actual flow measurements;
(ii)calculations used to establish flow rates in cfs or gpm;
(iii) the dates measurements were taken, with a description of current weather conditions;
Weather conditions include sky conditions, noting any rain and snow, approximate temperature,
and approximate wind conditions, e.g., "partly cloudy, light wind, about 60 degrees" or "light
rain, calm, about 65 degrees" or "clear, moderate wind, about 40 degrees".
(iv) the type of measuring device or method used; and
(v) a written legal land description or map clearly showing where the measurements were
taken.
(5) If the application involves new storage of surface water such as a reservoir, pond or pit,
or enlargement of a natural or manmade lake, the application must include the following
information:
(a) that the source of supply has the volume of water physically available for the proposed
beneficial use;
(b) information and data that show the amount of water to be stored is physically available
during a median year and in the amount the applicant seeks to appropriate using the methods
described in (2) and (3) ; and
(c) projected evaporation and seepage losses.
(6) The following reports may contain accepted methods for estimating surface water flow
rates and volumes:
(a) "Methods for Estimating Monthly Stream Flow Characteristics at Ungaged Sites in
Western Montana," USGS Open-file Report 89-40;
(b) "A Method for Estimating Mean and Low Flows of Streams in National Forests of
Montana," USGS Water RESOURCES Investigation Report 85-4071;
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(c) "Stream Flow Characteristics of Mountain Streams in Western Montana," USGS Open-
File Report 84-244;
(d) "Estimated Monthly Percentile Discharges at Ungaged Sites in the Upper Yellowstone
River Basin in Montana," USGS Water RESOURCES Investigation Report 86-4009;
(e) "A Method for Estimating Mean Annual Runoff of Ungaged Streams Based on
Characteristics in Central and Eastern Montana," USGS Water RESOURCES Investigation
Report 84-4143;
(f) "Estimates of Monthly Flow Characteristics at Selected Sites in the Upper Missouri River
Basin, Montana, Base Period Water Years 1937 - 86," USGS Water RESOURCES
Investigations Report 89-4082;
(g) "Mean Annual Runoff and Peak Flow Estimates Based on Channel Geometry of Streams
in Southeastern MT," USGS Water RESOURCES Investigation Report 82-4092;
(h) "Mean Annual Runoff and Peak Flow Estimates Based on Channel Geometry of Streams
in Northeast and Western Montana," USGS Water RESOURCES Investigation Report 83-4046;
and
(i) "Estimates of Mean Monthly Stream Flow for Selected Sites in the Musselshell River
Basin, Montana," USGS Water RESOURCES Investigation Report 89-4165.
(7) Other professionally documented hydrologic methods for estimating stream flow or
annual runoff which may be applicable and acceptable to the department, including the Orsborn
method, Mannings equation, U.S. natural RESOURCES AND CONSERVATION service-
developed mean annual runoff data, and drainage area information paired to gaged streams in
similar type basins may be acceptable. The department will determine the acceptability of other
methods on a case-by-case basis.
(a) If one of these methods is used, the applicant must also include a brief description of the
method used and assumptions and calculations used in estimating flow rates and volumes.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2005 MAR p. 264, Eff. 1/1/05.
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36.12.1703 PERMIT APPLICATION CRITERIA - PHYSICAL GROUND WATER
AVAILABILITY
(1) Applicants for ground water must provide substantial credible information demonstrating
that water is available for their use from the source aquifer in the amount the applicant seeks to
appropriate during the proposed period of diversion.
(2) Information demonstrating physical ground water availability must include an evaluation
of drawdown in the applicant's production well for the maximum pumping rate and total volume
requested in the permit application.
(3) The drawdown projected for the proposed period of diversion must be compared to the
height of the water column above the pump in the proposed production well to determine if the
requested appropriation can be sustained.
(4) The requirements of ARM 36.12.121 must be followed.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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36.12.1704 PERMIT APPLICATION - EXISTING LEGAL DEMANDS
(1) Legal demands usually exist on the source of supply or its downstream tributaries and
may be affected by a proposed water right application, including prior appropriations and water
reservations. These existing legal demands will be senior to a new application and the senior
rights must not be adversely affected:
(a) an applicant may use a plan for mitigation or aquifer recharge, as generally defined in
85-2-102, MCA, as a means of showing water is legally available.
(2) The applicant must identify the existing legal demands on the source of supply and those
waters to which it is tributary and which the applicant determines may be affected by the
proposed appropriation.
(3) The applicant must provide an abstract of those water rights identified.
(4) After an application is deemed correct and complete, for public notice purposes the
department shall, independent of the information provided by the applicant under this chapter,
identify existing water right owners that may be affected by the proposed application.
History: 85-2-113, 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2008
MAR p. 1979, Eff. 9/12/08.
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36.12.1705 PERMIT APPLICATION CRITERIA - COMPARISON OF PHYSICAL
WATER AVAILABILITY AND EXISTING LEGAL DEMANDS
(1) To determine if water is legally available, the applicant must compare the physical water
supply at the proposed point of diversion and the legal demands within the area of potential
impact. An applicant must become familiar with senior water rights operations to accurately
evaluate the effect to the senior water right.
(2) Applicants must analyze the senior water rights on a source of supply and those waters
to which it is tributary within the area of potential impact and provide a written narrative
comparing the physical water supply at the point of diversion during the period of diversion
requested and the legal demands that exist for the water supply during that same period.
(3) If known patterns of use differ from the legal water rights filings, an explanation may be
submitted explaining the current water use operation. For example, if a water reservation has
not been perfected, that information may help to explain water is legally available. .
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05
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36.12.1706 PERMIT APPLICATION CRITERIA - ADVERSE EFFECT
(1) Adverse effect for permit applications is based on the applicant's plan showing the
diversion and use of water and operation of the proposed project can be implemented and
properly regulated during times of water shortage so that the water rights of prior appropriators
will be satisfied.
(2) The applicant's plan may include the use of mitigation or aquifer recharge as defined in
85-2-102, MCA, as a means of offsetting any adverse effect.
(3) A written narrative must be provided addressing the potential adverse effect to the water
rights identified in ARM 36.12.1704.
(4) For surface water applications, in addition to (1), (2), and (3), the applicant shall explain
the rate and timing of depletions from the source of supply and its downstream tributaries and
what effect that will have on other water rights.
(5) For groundwater applications, in addition to (1), (2), and (3), the applicant shall describe
how water levels in wells of prior water rights will be lowered and the rate, timing, and location of
any depletions from hydraulically connected surface waters.
History: 85-2-113, 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2008
MAR p. 1979, Eff. 9/12/08.
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36.12.1707 PERMIT APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS
AND OPERATION
(1) The diversion works must be capable of diverting the amount of water requested to
accomplish the proposed use without unreasonable loss through design or operation.
(2) The diversion works must conform to current industry design, construction, and operation
standards.
(3) Wells must be constructed according to ARM Title 36, chapter 21, subchapter 6.
(4) The applicant shall describe how the proposed system will be operated, from point of
diversion through the place of use and on through the discharge of water, if any.
(5) Preliminary design plans and specifications for the diversion and conveyance facilities
and the equipment used to put the water to beneficial use must be submitted including the
following:
(a) the proposed flow rate and volume design capacity;
(b) the expected overall efficiency, including diversion, conveyance, and system efficiencies;
(c) the proposed diversion schedule, such as number and timing of irrigation sets;
(d) system design, construction, or operation features which are intended to reduce or
eliminate adverse effects on other water rights; and
(e) the flow rate and operation of diversions must be described.
(6) For developed springs, an explanation of how the spring will be developed must be
included.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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Subchapter 18
Permit and Change Applications
36.12.1801 PERMIT AND CHANGE APPLICATIONS - BENEFICIAL USE
(1) Water may be appropriated for beneficial use:
(a) by a governmental entity for the public;
(b) by a person for the sale, rent, or distribution to others; or
(c) by a person for the person's own use, unless provided otherwise by statute.
(d) or for other person's use, according to law.
(2) The applicant must explain the following:
(a) how the purpose for the water benefits the applicant; and
(b) that the requested flow rate and volume for each purpose is reasonably needed to
accomplish that purpose.
(3) An application to change must contain information explaining why the requested flow
rate and volume to be changed are reasonable for the intended purpose.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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36.12.1802 PERMIT AND CHANGE APPLICATIONS - POSSESSORY INTEREST
(1) An applicant or a representative shall sign the application affidavit to affirm the following:
(a) the statements on the application and all information submitted with the application are
true and correct; and
(b) except in cases of an instream flow application, or where the application is for sale,
rental, distribution, or is a municipal use, or in any other context in which water is being supplied
to another and it is clear that the ultimate user will not accept the supply without consenting to
the use of water on the user's place of use, the applicant has possessory interest in the property
where the water is to be put to beneficial use or has the written consent of the person having the
possessory interest.
(2) If a representative of the applicant signs the application form affidavit, the representative
shall state the relationship of the representative to the applicant on the form, such as president
of the corporation, and provide documentation that establishes the authority of the
representative to sign the application, such as a copy of a power of attorney.
(3) The department may require a copy of the written consent of the person having the
possessory interest.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
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Subchapter 19
Change Applications
36.12.1901 FILING A CHANGE APPLICATION
(1) An applicant who desires to change the point of diversion, place of use, purpose of use,
or place of storage of a water right must file an application to change a water right (Form No.
606) and applicable addendum.
(2) An application for a temporary change must meet the same rule requirements as those
for a permanent change application.
(3) In addition to the change application rules, a temporary change application for instream
flow must submit the information required under 85-2-407 and 85-2-408, or 85-2-436, MCA.
(4) A change application must contain sufficient factual documentation to constitute
probable believable facts sufficient to support a reasonable legal theory upon which the
department should proceed with the application.
(5) The department must consider historical use in determining whether changing the water
right would constitute an enlargement in historic use of the original water right.
(6) Only an owner of record, as shown in the department's water right records, can apply to
change a water right, except if a change application is for a water right lease pursuant to 85-2-
436, MCA, the change applicant must be the state of Montana, Department of Fish, Wildlife, and
Parks.
(7) A current detailed water right abstract of each water right being changed must be
submitted with proposed changes noted on the abstract. The abstract should reflect how the
water right would appear if the change application was granted.
(8) Multiple water rights may be changed on one application if upon completion of a project,
all of the water rights being changed accomplish a single proposed project; if not, separate
applications must be filed. The applicant shall provide a chart or table of the combined water
rights demonstrating how each water right both individually and cumulatively contributes to the
project.
(9) The legal descriptions for the point of diversion and place of use must be identified as
required in ARM 36.12.110.
(10) Flow rate (in gpm or cfs), volume (in acre-feet), or reservoir capacity (in acre-feet) will
be rounded to the nearest tenth.
(11) The application must contain a narrative explaining the specific details of the requested
water right change and why it is being requested.
(12) The proposed diverted flow rate and diverted volume of water must be identified for
each changed right.
(13) The time needed to complete and put the changed project into operation must be
identified. Information must be included in the application materials that justify the requested
time. The justification must include information that would lead a person not familiar with the
project to conclude the period requested is reasonable and needed to complete the change and
put the changed water right to use.
(14) For a change application that is only to add stock tanks to an existing stock water
system, the following rules apply:
(a) Form No. 606 must be completed and must describe the details of the proposed project.
Form No. 606 and applicable addendum must be filled in with the required information;
(b) a current department generated water right abstract of each water right being changed
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must be submitted. The proposed changes must be noted on the abstract. The abstract should
reflect how the water right would appear if the change application was granted;
(c) the applicant must show that each water right to be changed has been used and must
explain the extent of the historic use including the flow rate and volume; and
(d) the applicant must provide information to show that the historic flow rate diverted will be
adequate even though the additional stock tanks may be further away from the source of
supply.
(15) An applicant shall explain why required information is not applicable to the
applicant's proposed project.
History: 85-2-113, 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05; IMP, 2009
MAR p. 2259, Eff. 11/26/09.
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36.12.1902 CHANGE APPLICATION - HISTORIC USE
(1) The description of the historic information is related to a date that is dependent on the
type of water right being changed. The following dates are applicable for each type of water
right:
(a) historic information for a statement of claim must be described as it was used prior to
July 1, 1973, unless the Water Right Claim was subject to a previous change in which case it is
the date of completion of the change;
(b) historic information for a provisional permit must be described as it was used at the filing
date of the completion notice;
(c) historic information for a certificate of water right must be described as it was used at the
filing date of the completion notice; and
(d) historic information for an exempt or nonfiled water right must be described as it was
completed prior to July 1, 1973.
(2) Final Water Court approved stipulations, master's reports, or examination information
related to the water right being changed must be submitted with the application; however, this
information or an abstract of a water right from the department or the Montana Water Court by
itself is not sufficient to prove the existence or extent of the historical use.
(3) In addition to the change application rules, a temporary change application for instream
flow must submit the information required under 85-2-407 and, 85-2-408, and or 85-2-436,
MCA.
(4) An applicant shall compare historical acres irrigated to acres identified as irrigated in the
Water Resources Survey, if available for the place of use. If the Water Resources Survey does
not support the historical irrigation alleged in the application, the applicant shall explain why.
Information from irrigation journals, logs, or old aerial photographs can be submitted for
consideration.
(5) For an application to change multiple irrigation water rights, the total number of acres for
each water right located within the place of use must be identified.
(6) For an application to change water rights that overlap the historic place of use, an
applicant shall include those water rights in the change application or shall explain how each of
the water rights has been historically used and how the unchanged water rights will be used if
the change authorization were granted. If water will continue to be used at the historic place of
use, the applicant shall explain how the continued use will not increase the combined historic
maximum diverted flow rate, the historic diverted volume, and the historic consumptive volume.
(7) An applicant shall provide substantial credible information to corroborate the historic use,
including the following of each water right being changed:
(a) water right number and the priority date;
(b) most recent year the water right was used;
(c) historic point of diversion;
(d) historic period of diversion;
(e) historic means of diversion;
(f) typical historic diversion schedule and operation pattern;
(g) means of conveyance;
(h) historic ditch capacity;
(i) maximum historic flow rate diverted from each point of diversion and how the amount
was determined;
(j) historic place of use for each purpose;
(k) maximum number of acres historically irrigated;
(l) typical historic period of use for each purpose;
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(m) annual or monthly historic diverted volume and how this amount was
determined;
(n) the annual or monthly historic consumptive volume for each purpose;
(i) for irrigation, an applicant may choose to use the methodology described in (16); and
(ii) for irrigation, an applicant who chooses not to use the methodology described in (16),
shall provide the factual basis for the historic consumptive volume calculation and why the
historic consumptive use is less than or greater than the methodology described in (16);
(o) the historic efficiency including the diversion, conveyance, and overall system;
(p) the legal land description of a reservoir;
(q) the maximum volume in acre-feet of stored water;
(r) evaporation loss of stored water (evaporation standards can be found in ARM
36.12.116);
(s) maximum number of times a reservoir was filled during a year; and
(t) maximum period of time when water was legally collected for storage.
(8) A narrative must be included in the application materials explaining why the historic
operation of the right can be considered reasonable and typical of the purpose for which the
historic right was used.
(9) The following information may help an applicant establish the requirements under (7):
(a) aerial photographs depicting irrigated land:
(i) 1979, 1997, and 2005 photos showing the irrigated land would be beneficial;
(b) aerial or other photographs showing diversion or conveyance structures;
(c) Water Resources Survey book information;
(d) Water Resources Survey field notes;
(e) water commissioner field notes;
(f) Natural Resources Conservation Service (NRCS) information, such as field specific soils
information;
(g) affidavits from persons with first-hand knowledge of historic use;
(h) calculation of historic ditch capacities;
(i) description of irrigation equipment, field treatments, means of conveyance, control
structures, and other onsite features related to water use;
(j) description of water supply availability;
(k) log books or diaries of previous irrigators or farm operations, crop yield records, or
diversion records; or
(l) an evaluation of the seniority of the water right in relation to other users.
(10) Calculations for each water right showing how the historic flow rate, consumed and
diverted volumes for each water right, and capacity were determined must be included in the
application materials, and the methodology employed must be described.
(11) The annual or monthly historic diverted volume must be based on the appropriator's
typical historic operation of their diversion, irrigation, and harvest schedule throughout the
period of diversion and the period of use. If applicable, in addition to the information required in
36.12.1902(7), if a secondary diversion from a ditch or reservoir exists, an applicant shall
identify the diversion means and the typical operation of that secondary diversion.
(12) Historic consumptive volume must be based on the acre-feet of water used for the
beneficial purpose, such as water transpired by growing vegetation, evaporated from soils or
water surfaces, or incorporated into products that do not return to ground or surface water.
(13) The following may be used to calculate ditch capacity, historic available water supply,
and reservoir capacity:
(a) Manning's equation;
(b) Orsborn's equation;
(c) Blaney-Criddle equation; and
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(d) the department will determine the acceptability of other reports or methods on a case-
by-case basis.
(14) The methodology in (16) may be used to determine the historic consumptive volume
for irrigation. The methodology is based on data from the United States Department of
Agriculture (USDA) National Agricultural Statistics Service (NASS), and generated using the
USDA NRCS Irrigation Water Requirements (IWR) program. If the applicant chooses not to use
the methodology, they shall provide evidence showing how the historical consumptive use was
calculated and why that amount is less than or greater than the methodology described in (16).
(15) IWR Data for Seasonal Alfalfa Evapotranspiration County Management Factor are
shown in Table 1 and may be used to identify the historic consumptive volume. If this table is
used to establish the historic consumptive volume, the department will recognize that volume as
a reasonable calculation, unless a valid objection is received which offers proof that the volume
is inaccurate.
(16) To determine the historic consumptive volume using the table, complete the following
steps:
(a) determine which weather station (column B) is the most representative for the place of
use (column C). The most representative weather station may not be in the county of the place
of use, but must be nearby and about the same elevation and climatic conditions as the irrigated
acres. A map showing the weather stations is located on the Internet at:
http://dnrc.mt.gov/wrd/water_rts/default.asp;
(b) find the evapotranspiration inches based on whether the historic irrigation is flood,
wheeline, handline, or center pivot, to estimate the historic IWR (columns D or E);
(c) identify the county in which the irrigated acres are located to determine the county
management factor percentage (column F);
(d) multiply the IWR estimate found in column D or E by the management factor percentage
in column F. The result is the number of inches used per irrigated acre;
(e) multiply the number of total acres within the historic place of use by the county adjusted
inches used per irrigated acre calculated in (d) above to determine the historic consumptive
inches for those acres; and
(f) divide the cumulative historic consumptive inches from (e) by 12 to determine the
cumulative historic consumptive acre-feet for the total acres.
Table 1 - Montana County Weather Station IWR Data for Seasonal Alfalfa Evapotranspiration and
Montana County Management Factor.
Column A
County
Column B
Weather Station
Column C
Elevation
Column D
IWR
Flood
Irrigation,
Wheeline &
Handline
Seasonal ET
(inches)
Column E
IWR
Center Pivot
Irrigation
Seasonal ET
(inches)
Column F
Management
Factor
Percentage
1964 - 1973
Beaverhead Dillon 5239 18.34 20.74 63.7%
Wisdom 6060 7.34 9.29
Jackson 6480 8.35 10.30
Lakeview 6710 8.39 10.67
Lima 6583 13.75 16.01
Big Horn Busby 3430 20.32 22.88 55.4%
Hardin 2905 27.46 29.96
Hysham 25 3100 20.25 22.86
Wyola 3750 19.19 21.89
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 117
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
Column A
County
Column B
Weather Station
Column C
Elevation
Column D
IWR
Flood
Irrigation,
Wheeline &
Handline
Seasonal ET
(inches)
Column E
IWR
Center Pivot
Irrigation
Seasonal ET
(inches)
Column F
Management
Factor
Percentage
1964 - 1973
Yellowtail Dam 3305 28.07 31.30
Blaine Chinook 2420 20.80 23.57 58.7%
Harlem 2362 21.62 24.27
Broadwater Townsend 3840 19.42 21.88 69.2%
Trident 4040 20.64 23.31
Carbon Joliet 3776 22.41 25.12 58.3%
Red Lodge 5500 15.57 18.41
Carter Ekalaka 3425 20.13 23.14 38.4%
Ridgeway 3320 20.28 23.01
Cascade Cascade 20 4600 14.12 16.63 57.3%
Cascade 5 3360 17.90 20.75
Great Falls 3675 19.78 22.55
Neihart 4945 12.17 15.08
Sun River 3340 18.10 20.65
Chouteau Big Sandy 2700 21.52 24.37 52.5%
Fort Benton 2640 21.98 24.75
Geraldine 3130 20.30 23.27
Iliad 2950 21.55 24.27
Loma 2700 22.64 25.37
Shonkin 4300 13.32 16.70
Custer Miles City 2628 26.68 29.55 54.5%
Mizpah 2480 23.80 26.57
Powderville 2800 24.83 27.68
Dawson Glendive 2076 26.01 28.99 56.8%
Deer Lodge No weather
station
See
appropriate
adjacent
county
Fallon Plevna 2780 22.48 25.34 47.6%
Fergus Denton 3620 15.39 18.12 48.8%
Grass Range 3490 18.93 21.93
Lewistown 4167 15.54 18.44
Roy 3450 19.94 22.78
Winifred 3240 17.86 20.75
Flathead Creston 2949 14.97 17.81 87.6%
Hungry Horse
Dam 3160 14.66 18.06
Kalispell 2972 16.45 19.03
Olney 3165 12.50 15.16
Polebridge 3600 10.20 12.50
West Glacier 3154 13.74 16.78
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 118
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
Column A
County
Column B
Weather Station
Column C
Elevation
Column D
IWR
Flood
Irrigation,
Wheeline &
Handline
Seasonal ET
(inches)
Column E
IWR
Center Pivot
Irrigation
Seasonal ET
(inches)
Column F
Management
Factor
Percentage
1964 - 1973
Whitefish 3100 15.74 18.61
Gallatin Bozeman Exp
Farm 4775 16.84 19.55 73.5%
Bozeman MT
State 4913 18.42 21.39
Hebgen Dam 6667 10.09 12.77
Garfield Cohagen 2710 22.36 24.99 43.4%
Jordan 2661 23.58 26.32
Mosby 2750 24.51 27.34
Glacier Babb 4300 12.12 14.87 59.7%
Cut Bank 3855 16.01 18.60
Del Bonita 4340 14.61 17.30
East Glacier 4810 10.60 13.26
St Mary 4560 13.64 16.60
Golden
Valley Ryegate 4440 17.60 20.17 62.6%
Granite Philipsburg
Ranger Station 5270 12.90 15.26 86.5%
Hill Fort Assinniboine 2613 22.42 25.20 54.1%
Guilford 2820 19.54 22.06
Havre 2585 20.94 23.46
Simpson 2815 19.67 22.13
Jefferson Boulder 4904 17.08 19.47 61.0%
Judith Basin Moccasin Exp
Station 4243 16.17 19.06 49.3%
Raynesford 4220 16.14 19.05
Stanford 4860 16.74 19.69
Lake Bigfork 2910 17.37 20.61 55.0%
Polson 2949 20.46 23.23
Polson Kerr Dam 2730 21.37 24.08
St Ignatius 2940 19.53 22.33
Lewis &
Clark Augusta 4070 17.51 20.13 60.1%
Austin 4790 15.41 17.96
Helena 3828 20.23 22.69
Holter Dam 3490 23.88 26.61
Lincoln Ranger
Station 4575 12.87 15.22
Liberty Chester 3132 19.28 21.74 54.8%
Joplin 3300 19.01 21.40
Tiber Dam 2850 22.98 25.46
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 119
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
Column A
County
Column B
Weather Station
Column C
Elevation
Column D
IWR
Flood
Irrigation,
Wheeline &
Handline
Seasonal ET
(inches)
Column E
IWR
Center Pivot
Irrigation
Seasonal ET
(inches)
Column F
Management
Factor
Percentage
1964 - 1973
Lincoln Eureka Ranger
Station 2532 20.63 23.26 47.1%
Fortine 3000 16.09 18.69
Libby Ranger
Station 2096 21.20 23.71
Libby 3600 11.06 13.36
Troy 1950 19.90 22.68
Madison Alder 5800 14.33 16.75 65.2%
Ennis 4953 17.19 19.71
Glen 5050 17.81 20.01
Norris 4750 20.88 23.97
Twin Bridges 4777 16.98 19.22
Virginia City 5770 15.57 18.13
McCone Brockway 2630 20.74 23.35 43.7%
Circle 2480 22.23 25.01
Fort Peck Power
Plant 2070 25.37 28.16
Vida 2400 21.74 24.65
Meagher Lennep 5880 11.93 14.38 57.3%
Martinsdale 4800 15.19 17.73
White Sulpher Spr 5060 16.41 18.89
Mineral St Regis Ranger
Stn 2680 17.61 20.05 56.1%
Superior 2710 21.94 24.54
Missoula Lindbergh Lake 4320 14.63 17.22 69.5%
Missoula 3420 18.85 21.49
Missoula WSO AP 3199 19.45 21.89
Potomac 3620 14.05 16.26
Seeley Lake
Ranger Station 4100 14.86 17.31
Musselshell Melstone 2920 24.22 27.17 50.0%
Roundup 3386 23.98 26.79
Park Cooke City 7460 8.68 11.63 56.9%
Gardiner 5275 22.46 24.70
Livingston 4870 16.59 19.41
Livingston FAA
AP 4656 18.63 21.39
Wilsall 5840 13.20 16.01
Petroleum Flatwillow 3133 22.27 25.01 44.0%
Phillips Content 2340 21.15 23.97 54.7%
Malta 35 2650 20.28 22.99
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 120
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
Column A
County
Column B
Weather Station
Column C
Elevation
Column D
IWR
Flood
Irrigation,
Wheeline &
Handline
Seasonal ET
(inches)
Column E
IWR
Center Pivot
Irrigation
Seasonal ET
(inches)
Column F
Management
Factor
Percentage
1964 - 1973
Malta 7 2262 21.61 24.39
Port of Morgan 2830 20.15 22.72
Saco 2180 20.13 22.70
Zortman 4660 14.38 17.40
Pondera Conrad 3550 16.93 19.42 71.4%
Valier 3810 18.31 20.96
Powder
River Biddle 3597 21.87 24.66 38.5%
Broadus 3032 23.03 25.69
Moorhead 3220 23.72 26.42
Sonnette 3900 18.32 20.96
Powell Deer Lodge 4678 13.14 15.32 77.6%
Ovando 4109 12.28 14.43
Prairie Mildred 2510 22.92 25.58 59.6%
Terry 2248 22.82 25.47
Terry 21 3260 18.65 21.34
Ravalli Darby 3880 18.91 21.44 79.5%
Hamilton 3529 19.93 22.34
Stevensville 3380 19.19 21.44
Sula 4475 12.09 14.42
Western Ag
Research 3600 19.82 22.15
Richland Savage 1990 23.61 26.59 56.0%
Sidney 1931 22.49 25.45
Roosevelt Bredette 2638 19.99 22.86 46.5%
Culbertson 1942 20.84 23.73
Wolf Point 1985 24.16 27.03
Rosebud Birney 3160 24.57 27.29 47.7%
Brandenberg 2770 23.83 26.52
Colstrip 3218 23.32 26.10
Forsythe 2520 25.17 28.04
Ingomar 2780 23.18 25.83
Rock Springs 3020 21.35 23.93
Sanders Heron 2240 14.82 17.73 58.8%
Thompson Falls
Power 2380 22.49 25.36
Trout Cr Ranger
Station 2356 16.60 19.40
Sheridan Medicine Lake 1975 21.64 24.49 44.8%
Plentywood 2063 20.64 23.48
Raymond Border 2384 19.13 22.04
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 121
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
Column A
County
Column B
Weather Station
Column C
Elevation
Column D
IWR
Flood
Irrigation,
Wheeline &
Handline
Seasonal ET
(inches)
Column E
IWR
Center Pivot
Irrigation
Seasonal ET
(inches)
Column F
Management
Factor
Percentage
1964 - 1973
Station
Redstone 2300 17.86 20.58
Westby 2120 18.10 21.033
Silverbow Butte FAA AP 5545 14.73 17.06 68.8%
Divide 5350 15.25 17.58
Stillwater Columbus 3602 22.31 25.09 46.5%
Mystic Lake 6544 13.57 16.57
Nye 4840 15.00 17.93
Rapelje 4125 20.35 23.07
Sweet
Grass Big Timber 4100 20.60 23.47 44.7%
Melville 5370 12.83 15.49
Teton Blackleaf 4240 14.74 17.34 68.8%
Choteau Airport 3845 20.53 23.07
Fairfield 3980 19.10 21.76
Gibson Dam 4724 13.57 16.22
Toole Goldbutte 3498 16.30 18.96 51.8%
Sunburst 3610 18.74 21.46
Sweetgrass 3466 18.22 21.22
Treasure Hysham 2660 25.01 27.78 53.4%
Valley Glasgow WSO AP 2293 23.48 26.12 57.9%
Hinsdale 2670 22.18 25.25
Opheim 10 2878 16.19 18.86
Opheim 16 3258 16.73 19.34
Wheatland Harlowton 4162 17.83 20.56 46.6%
Judith Gap 4573 13.77 16.40
Wibaux Carlyle 3030 19.87 22.75
See
appropriate
adjacent
county
Wibaux 2696 18.69 21.50
Yellowstone Billings Water
Plant 3097 26.16 28.92 59.5%
Billings WSO 3648 25.49 28.22
Huntley Exp
Station 3034 21.92 24.61
History: 85-2-112, 85-2-113, 85-2-302, MCA; IMP, 85-2-302, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-
436, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05; IMP, 2009 MAR p. 2259, Eff. 11/26/09.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 122
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1903 CHANGE APPLICATION - ADVERSE EFFECT
(1) The applicant must identify the water rights which the applicant determines may be
affected by the changes the applicant is proposing to make and must provide a department
general abstract of the water rights identified.
(2) The applicant must identify, analyze, and document the effects to the other water rights
including, but not limited to, the following:
(a) water rights using the existing or proposed point of diversion;
(b) other ditch users;
(c) down-slope water users;
(d) the effect to water rights dependent on the return flow;
(e) the effects of changing the historic diversion pattern including rate and timing of
depletions;
(f) for ground water applications, the applicant shall explain how the changed water right will
affect water levels in wells of junior and senior water rights and the rate and timing of depletions
from hydraulically connected surface waters, and what effect those changes will have on those
water rights within the notice area.
(3) A comparison between the historic consumptive use of the water rights being changed
and the consumptive use if the change application was granted must be included with the
application.
(4) After an application is deemed correct and complete, for public notice purposes, the
department shall, independent of the information provided by the applicant under this chapter,
identify existing water right owners that may be affected by the proposed application.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 123
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.
36.12.1904 CHANGE APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS
AND OPERATION
(1) The diversion works must be capable of diverting the amount of water requested to
accomplish the proposed use without unreasonable loss through design or operation.
(2) Preliminary design plans and specifications for the current and/or proposed diversion
and conveyance facilities and the equipment used to put the water to beneficial use must be
submitted with the application including the following:
(a) a description of the historical operation, including the typical diversion schedule from the
point of diversion to the place of use;
(b) a description of how the proposed water right will be operated, from point of diversion
through the place of use and on through the discharge of water, if any;
(c) the historic and proposed flow rate and volume design capacity;
(d) the historic efficiency and the projected overall efficiency, including diversion,
conveyance, and system efficiencies.
(3) The diversion works must conform to current design, construction, and operation
standards.
History: 85-2-113 and 85-2-302, MCA; IMP, 85-2-302, MCA; NEW, 2004 MAR p. 3036, Eff. 1/1/05.
Subchapter 20
Salvage Water
36.12.2001 SALVAGE WATER APPLICATIONS
(1) Salvage water, defined at 85-2-102 (16) , MCA includes seepage, wastewater, or deep
percolation water and may be used by the appropriator, moved to other lands, leased, or sold
after implementing a water saving method and proving lack of adverse effect to other water
rights.
(2) In addition to the rules for change applications, a salvage water application must include
a report documenting the volume of water that is being saved by the proposed water saving
method.
(3) For the purpose of implementing 85-2-419 , MCA, the destruction of phreatophytes is not
a water saving method. For example, one cannot deforest the cottonwoods or other trees or
brush on a source to obtain salvage water.
(4) Salvaged water includes water lost to deep percolation when the applicant provides
geohydrologic evidence that deep percolation occurs.
History: 85-2-113, 85-2-302, MCA; IMP, 85-2-302, 85-2-402, 85-2-419, MCA; NEW, 2004 MAR p. 3036, Eff.
1/1/05.
Water Rights Bureau New Appropriations Rules Updated January 1, 2010 Page 124
If there is any discrepancy between the administrative rules contained within this publication and the official Administrative Rules of Montana as
maintained by the Secretary of State's Office, the official, legal version is that which is maintained by the Secretary of State's Office.