Bill Summary – FastDemocracy

67th Legislature                                                                                                   SB 406.1
                                                   SENATE BILL NO. 406
                                               INTRODUCED BY B. BROWN
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   A BILL FOR AN ACT ENTITLED: “AN ACT REVISING THE VOLUME OF WATER ALLOWED FOR A
   GROUND WATER APPROPRIATION EXEMPT FROM PERMITTING; REQUIRING A PROCESSING FEE;
   AND AMENDING SECTIONS 85-2-306 AND 85-2-402, MCA.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              Section 1. Section 85-2-306, MCA, is amended to read:
              "85-2-306.   Exceptions to permit requirements. (1) (a) Except as provided in subsection (1)(b),
   ground water may be appropriated only by a person who has a possessory interest in the property where the
   water is to be put to beneficial use and exclusive property rights in the ground water development works.
              (b)   If another person has rights in the ground water development works, water may be appropriated
   with the written consent of the person with those property rights or, if the ground water development works are
   on national forest system lands, with any prior 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 certificate.
              (c)   If the person does not have a possessory interest in the real property from which the ground water
   may be appropriated, the person shall provide to the owner of the real property written notification of the works
   and the person's intent to appropriate ground water from the works. The written notification must be provided to
   the landowner at least 30 days prior to constructing any associated works or, if no new or expanded works are
   proposed, 30 days prior to appropriating the water. The written notification under this subsection is a notice
   requirement only and does not create an easement in or over the real property where the ground water
   development works are located.
              (2)   Inside the boundaries of a controlled ground water area, ground water may be appropriated only:
              (a)   according to a permit received pursuant to 85-2-508; or
              (b)   according to the requirements of a rule promulgated pursuant to 85-2-506.
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              (3)   (a) Outside the boundaries of a controlled ground water area, a permit is not required before
   appropriating ground water by means of a well or developed spring:
              (i)   when the appropriation is made by a local governmental fire agency organized under Title 7,
   chapter 33, and the appropriation is used only for emergency fire protection, emergency fire training, and
   emergency fire-related operations, which may include enclosed storage;
              (ii) when a maximum appropriation of 350 gallons a minute or less is used in nonconsumptive
   geothermal heating or cooling exchange applications, all of the water extracted is returned without delay to the
   same source aquifer, and the distance between the extraction well and both the nearest existing well and the
   hydraulically connected surface waters is more than twice the distance between the extraction well and the
   injection well;
              (iii) when the appropriation is outside a stream depletion zone, is 35 gallons a minute or less, and does
   not exceed 10 5 acre-feet a year, except that a combined appropriation from the same source by two or more
   wells or developed springs exceeding 10 5 acre-feet, regardless of the flow rate, requires a permit; or
              (iv) when the appropriation is within a stream depletion zone, is 20 gallons a minute or less, and does
   not exceed 2 acre-feet a year, except that a combined appropriation from the same source by two or more wells
   or developed springs exceeding this limitation requires a permit.
              (b)   (i) Within 60 days of completion of the well or developed spring and appropriation of the ground
   water for beneficial use, the appropriator shall file a notice of completion with the department on a form
   provided by the department through its offices. The notice of completion must be accompanied by a $10
   processing fee.
              (ii) Upon receipt of the notice, the department shall review the notice and may, before issuing a
   certificate of water right, return a defective notice for correction or completion, together with the reasons for
   returning it. A notice does not lose priority of filing because of defects if the notice is corrected, completed, and
   refiled with the department within 30 days of notification of defects or within a further time as the department
   may allow, not to exceed 6 months.
              (iii) If a notice is not corrected and completed within the time allowed, the priority date of appropriation
   is the date of refiling a correct and complete notice with the department.
              (c)   A certificate of water right may not be issued until a correct and complete notice has been filed
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   with the department, including proof of landowner notification or a written federal special use authorization as
   necessary under subsection (1). The original of the certificate must be sent to the appropriator. The department
   shall keep a copy of the certificate in its office in Helena. The date of filing of the notice of completion is the date
   of priority of the right.
              (4)   An appropriator of ground water by means of a well or developed spring first put to beneficial use
   between January 1, 1962, and July 1, 1973, who did not file a notice of completion, as required by laws in force
   prior to April 14, 1981, with the county clerk and recorder shall file a notice of completion, as provided in
   subsection (3), with the department to perfect the water right. The filing of a claim pursuant to 85-2-221 is
   sufficient notice of completion under this subsection. The priority date of the appropriation is the date of the
   filing of a notice, as provided in subsection (3), or the date of the filing of the claim of existing water right.
              (5)   An appropriation under subsection (4) is an existing right, and a permit is not required. However,
   the department shall acknowledge the receipt of a correct and complete filing of a notice of completion, except
   that for an appropriation of 35 gallons a minute or less, not to exceed 10 5 acre-feet a year, the department
   shall issue a certificate of water right. If a certificate is issued under this section, a certificate need not be issued
   under the adjudication proceedings provided for in 85-2-236.
              (6)   A permit is not required before constructing an impoundment or pit and appropriating water for use
   by livestock if:
              (a)   the maximum capacity of the impoundment or pit is less than 15 acre-feet;
              (b)   the appropriation is less than 30 acre-feet a year;
              (c)   the appropriation is from an ephemeral stream, an intermittent stream, or another source other
   than a perennial flowing stream; and
              (d)   the impoundment or pit is to be constructed on and will be accessible to a parcel of land that is
   owned or under the control of the applicant and that is 40 acres or larger.
              (7)   (a) Within 60 days after constructing an impoundment or pit, the appropriator shall apply for a
   permit as prescribed by this part. Subject to subsection (7)(b), upon receipt of a correct and complete
   application for a stock water provisional permit, the department shall automatically issue a provisional permit. If
   the department determines after a hearing that the rights of other appropriators have been or will be adversely
   affected, it may revoke the permit or require the permittee to modify the impoundment or pit and may then make
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   the permit subject to terms, conditions, restrictions, or limitations that it considers necessary to protect the rights
   of other appropriators. [For purposes of an adverse effects determination under this subsection, the department
   may not consider adverse effects on any water right identified in a written consent to approval filed pursuant to
   85-2-311.]
              (b)   If the impoundment or pit is on national forest system lands, an application is not correct and
   complete under this section until the applicant has submitted proof of 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.
              (8)   A person may also appropriate water without applying for or prior to receiving a permit under rules
   adopted by the department under 85-2-113.
              (9)   Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior boundaries
   of the Flathead Indian reservation. (Bracketed language in subsection (7)(a) 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.
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              [(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:
              (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.
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              (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 demands on the state water supply, as well as projected demands for 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 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.
              (5)   The department may not approve a change in purpose of use or place of use for a diversion that
   results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being
   consumed unless:
              (a)   the applicant proves by clear and convincing evidence and the department finds that the criteria in
   subsections (2) and (4) are met; and
              (b)   for the withdrawal and transportation of appropriated water for out-of-state use, the department
   then petitions the legislature and the legislature affirms the decision of the department after one or more public
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   hearings.
              (6)   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 res