Bill Summary – FastDemocracy

67th Legislature                                                                                                     SB 136.1
                                                     SENATE BILL NO. 136
                                              INTRODUCED BY S. FITZPATRICK
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   A BILL FOR AN ACT ENTITLED: “AN ACT CLARIFYING THE LEGAL AVAILABILITY ANALYSIS FOR A
   PERMIT AND A CHANGE IN WATER RIGHT; AMENDING SECTIONS 85-2-311 AND 85-2-402, MCA; AND
   PROVIDING AN IMMEDIATE EFFECTIVE DATE.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              Section 1. Section 85-2-311, MCA, is amended to read:
              "85-2-311.    Criteria for issuance of permit. (1) A permit may be issued under this part prior to the
   adjudication of existing water rights in a source of supply. In a permit proceeding under this part, there is no
   presumption that an applicant for a permit cannot meet the statutory criteria of this section prior to the
   adjudication of existing water rights pursuant to this chapter. In making a determination under this section, the
   department may not alter the terms and conditions of an existing water right or an issued certificate, permit, or
   state water reservation. Except as provided in subsections (3) and (4), the department shall issue a permit if the
   applicant proves by a preponderance of evidence that the following criteria are met:
              (a)   (i) there is water physically available at the proposed point of diversion in the amount that the
   applicant seeks to appropriate; and
              (ii) water can reasonably be considered legally available during the period in which the applicant seeks
   to appropriate, in the amount requested, based on the records of the department and other evidence provided
   to the department. Legal availability is determined using an analysis involving the following factors:
              (A)   identification of physical water availability;
              (B)   identification of existing legal water right demands on the source of supply throughout the area of
   potential impact by the proposed use; and
              (C)   analysis of the evidence on physical water availability and the existing legal water right demands,
   including but not limited to a comparison of the physical water supply at the proposed point of diversion with the
   existing legal water right demands on the supply of water.
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              (b)   the water rights of a prior appropriator under an existing water right, a certificate, a permit, or a
   state water reservation will not be adversely affected. In this subsection (1)(b), adverse effect must be
   determined based on a consideration of an applicant's plan for the exercise of the permit that demonstrates that
   the applicant's use of the water will be controlled so the water right of a prior appropriator will be satisfied. [The
   applicant is not required to prove a lack of adverse effect for any water right identified in a written consent to
   approval filed pursuant to subsection (9) in connection with a permit application.]
              (c)   the proposed means of diversion, construction, and operation of the appropriation works are
   adequate;
              (d)   the proposed use of water is a beneficial use;
              (e)   the applicant has a possessory interest or the written consent of the person with the possessory
   interest in the property where the water is to be put to beneficial use, or if the proposed use has a point of
   diversion, conveyance, or place of use on national forest system lands, the applicant has any written special
   use authorization required by federal law to occupy, use, or traverse national forest system lands for the
   purpose of diversion, impoundment, storage, transportation, withdrawal, use, or distribution of water under the
   permit;
              (f)   the water quality of a prior appropriator will not be adversely affected;
              (g)   the proposed use will be substantially in accordance with the classification of water set for the
   source of supply pursuant to 75-5-301(1); and
              (h)   the ability of a discharge permitholder to satisfy effluent limitations of a permit issued in
   accordance with Title 75, chapter 5, part 4, will not be adversely affected.
              (2)   The applicant is required to prove that the criteria in subsections (1)(f) through (1)(h) have been
   met only if a valid objection is filed. A valid objection must contain substantial credible information establishing
   to the satisfaction of the department that the criteria in subsection (1)(f), (1)(g), or (1)(h), as applicable, may not
   be met. For the criteria set forth in subsection (1)(g), only the department of environmental quality or a local
   water quality district established under Title 7, chapter 13, part 45, may file a valid objection.
              (3)   The department may not issue a permit for an appropriation of 4,000 or more acre-feet of water a
   year and 5.5 or more cubic feet per second of water unless the applicant proves by clear and convincing
   evidence that:
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              (a)   the criteria in subsection (1) are met;
              (b)   the proposed appropriation is a reasonable use. A finding must be based on a consideration of the
   following:
              (i)   the existing water right demands on the state water supply, as well as projected water right
   demands, such as reservations of water for future beneficial purposes, including municipal water supplies,
   irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;
              (ii) the benefits to the applicant and the state;
              (iii) the effects on the quantity and quality of water for existing beneficial uses in the source of supply;
              (iv) the availability and feasibility of using low-quality water for the purpose for which application has
   been made;
              (v)   the effects on private property rights by any creation of or contribution to saline seep; and
              (vi) the probable significant adverse environmental impacts of the proposed use of water as
   determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.
              (4)   (a) The state of Montana has long recognized the importance of conserving its public waters and
   the necessity to maintain adequate water supplies for the state's water requirements, including requirements for
   federal non-Indian and Indian reserved water rights held by the United States for federal reserved lands and in
   trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes
   that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict
   with the public welfare of its citizens or the conservation of its waters, the criteria in this subsection (4) must be
   met before out-of-state use may occur.
              (b)   The department may not issue a permit for the appropriation of water for withdrawal and
   transportation for use outside the state unless the applicant proves by clear and convincing evidence that:
              (i)   depending on the volume of water diverted or consumed, the applicable criteria and procedures of
   subsection (1) or (3) are met;
              (ii) the proposed out-of-state use of water is not contrary to water conservation in Montana; and
              (iii) the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the
   citizens of Montana.
              (c)   In determining whether the applicant has proved by clear and convincing evidence that the
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   requirements of subsections (4)(b)(ii) and (4)(b)(iii) are met, the department shall consider the following factors:
              (i)   whether there are present or projected water shortages within the state of Montana;
              (ii) whether the water that is the subject of the application could feasibly be transported to alleviate
   water shortages within the state of Montana;
              (iii) the supply and sources of water available to the applicant in the state where the applicant intends
   to use the water; and
              (iv) the water right demands placed on the applicant's supply in the state where the applicant intends
   to use the water.
              (d) When applying for a permit or a lease to withdraw and transport water for use outside the state,
   the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation,
   lease, and use of water.
              (5)   Subject to 85-2-360, to meet the preponderance of evidence standard in this section, the
   applicant, in addition to other evidence demonstrating that the criteria of subsection (1) have been met, shall
   submit hydrologic or other evidence, including but not limited to water supply data, field reports, and other
   information developed by the applicant, the department, the U.S. geological survey, or the U.S. natural
   resources conservation service and other specific field studies.
              (6)   An appropriation, diversion, impoundment, use, restraint, or attempted appropriation, diversion,
   impoundment, use, or restraint contrary to the provisions of this section is invalid. An officer, agent, agency, or
   employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized appropriation,
   diversion, impoundment, use, or other restraint. A person or corporation may not, directly or indirectly,
   personally or through an agent, officer, or employee, attempt to appropriate, divert, impound, use, or otherwise
   restrain or control waters within the boundaries of this state except in accordance with this section.
              (7)   The department may adopt rules to implement the provisions of this section.
              (8)   For an application for ground water in a basin closed pursuant to 85-2-319, 85-2-321, 85-2-330,
   85-2-336, 85-2-341, 85-2-343, or 85-2-344, the applicant shall comply with the provisions of 85-2-360 in
   addition to the requirements of this section.
              [(9) The department may not conduct an adverse effects analysis on a water right if the water right
   holder files a written consent to approval of an application for a permit.] (Bracketed language in subsections
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67th Legislature                                                                                                      SB 136.1
   (1)(b) and (9) terminates September 30, 2023--sec. 8, Ch. 243, L. 2017.)"
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              Section 2. Section 85-2-402, MCA, is amended to read:
              "85-2-402.     Changes in appropriation rights -- definition. (1) (a) The right to make a change in
   appropriation right subject to the provisions of this section in an existing water right, a permit, or a state water
   reservation is recognized and confirmed. In a change in appropriation right proceeding under this section, there
   is no presumption that an applicant for a change in appropriation right cannot establish lack of adverse effect
   prior to the adjudication of other rights in the source of supply pursuant to this chapter. Except as provided in
   85-2-410 and subsections (15) and (16) of this section, an appropriator may not make a change in an
   appropriation right without the approval of the department or, if applicable, of the legislature. An applicant shall
   submit a correct and complete application.
              (b)    If an application involves a change in a point of diversion, conveyance, or place of use located on
   national forest system lands, the application is not correct and complete until the applicant has submitted proof
   to the department of any written special use authorization required by federal law for the proposed change in
   occupancy, use, or traverse of national forest system lands for the purpose of diversion, impoundment, storage,
   transportation, withdrawal, use, or distribution of water.
              [(c)   The applicant is not required to prove a lack of adverse effect for any water right identified on a
   written consent to approval filed pursuant to subsection (19) in connection with an application.]
              (2)    Except as provided in subsections (4) through (6), (15), (16), and (18) and, if applicable, subject to
   subsection[s (1)(c) and] (17), the department shall approve a change in appropriation right if the appropriator
   proves by a preponderance of evidence that the following criteria are met:
              (a)    The proposed change in appropriation right will not adversely affect the use of the existing water
   rights of other persons or other perfected or planned uses or developments for which a permit or certificate has
   been issued or for which a state water reservation has been issued under part 3. For purposes of this section,
   adverse effects analysis is specific to the proposed change in appropriation right and a determination that water
   is not legally available pursuant to 85-2-311 does not necessarily mean that an adverse effect will occur.
              (b)    The proposed means of diversion, construction, and operation of the appropriation works are
   adequate, except for:
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              (i)   a change in appropriation right for instream flow pursuant to 85-2-320 or 85-2-436;
              (ii) a temporary change in appropriation right for instream flow pursuant to 85-2-408; or
              (iii) a change in appropriation right pursuant to 85-2-420 for mitigation or marketing for mitigation.
              (c) The proposed use of water is a beneficial use.
              (d)   The applicant has a possessory interest, or the written consent of the person with the possessory
   interest, in the property where the water is to be put to beneficial use or, if the proposed change involves a point
   of diversion, conveyance, or place of use on national forest system lands, the applicant has any written special
   use authorization required by federal law to occupy, use, or traverse national forest system lands for the
   purpose of diversion, impoundment, storage, transportation, withdrawal, use, or distribution of water. This
   subsection (2)(d) does not apply to:
              (i)   a change in appropriation right for instream flow pursuant to 85-2-320 or 85-2-436;
              (ii) a temporary change in appropriation right for instream flow pursuant to 85-2-408; or
              (iii) a change in appropriation right pursuant to 85-2-420 for mitigation or marketing for mitigation.
              (e)   If the change in appropriation right involves salvaged water, the proposed water-saving methods
   will salvage at least the amount of water asserted by the applicant.
              (f) The water quality of an appropriator will not be adversely affected.
              (g)   The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in
   accordance with Title 75, chapter 5, part 4, will not be adversely affected.
              (3)   The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met
   only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the
   satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.
              (4)   The department may not approve a change in purpose of use or place of use of an appropriation
   of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the
   appropriator proves by a preponderance of evidence that:
              (a)   the criteria in subsection (2) are met; and
              (b)   the proposed change in appropriation right is a reasonable use. A finding of reasonable use must
   be based on a consideration of:
              (i)   the existing water right demands on the state water supply, as well as projected demands for water
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67th Legislature                                                                                                         SB 136.1
   for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows
   for the protection of existing water rights and aquatic life;
              (ii) the benefits to the applicant and the state;
              (iii) the effects on the quantity and quality of water for existing uses in the source of supply;
              (iv) the availability and feasibility of using low-q