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68th Legislature 2023 HB 114.1
1 HOUSE BILL NO. 114
2 INTRODUCED BY S. VINTON
3 BY REQUEST OF THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
4
5 A BILL FOR AN ACT ENTITLED: “AN ACT REVISING THE APPLICATION PROCESS AND DEPARTMENT
6 CONSIDERATION OF A PERMIT OR CHANGE IN AN APPROPRIATION RIGHT; REVISING TIMELINES
7 FOR DEPARTMENT CONSIDERATION OF AN APPLICATION FOR A WATER RIGHT OR A CHANGE OF
8 WATER RIGHT; REVISING NOTICE; PROVIDING FOR PRELIMINARY DETERMINATIONS OF A WATER
9 RIGHT APPLICATION OR A CHANGE OF WATER RIGHT; PROVIDING FOR PUBLIC COMMENT;
10 REVISING THE OBJECTIONS PROCESS; REVISING DEPARTMENT HEARINGS; EXTENDING
11 RULEMAKING AUTHORITY; PROVIDING AN APPROPRIATION; AMENDING SECTIONS 85-2-302, 85-2-
12 307, 85-2-308, 85-2-310, AND 85-2-401, MCA; AND PROVIDING EFFECTIVE DATES.”
13
14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
15
16 Section 1. Section 85-2-302, MCA, is amended to read:
17 "85-2-302. Application for permit or change in appropriation right. (1) Except as provided in 85-2-
18 306 and 85-2-369, a person may not appropriate water or commence construction of diversion, impoundment,
19 withdrawal, or related distribution works unless the person applies for and receives a permit or an authorization
20 for a change in appropriation right from the department.
21 (2) The department shall adopt rules:
22 (a) for the premeeting application process pursuant to subsection (3)(b);
23 (b) that are necessary to determine whether or not an application is correct and complete, based
24 on the provisions applicable to issuance of a permit under this part or a change in appropriation right pursuant
25 to Title 85, chapter 2, part 4. The rules must be adopted; and
26 (c) in compliance with Title 2, chapter 4.
27 (3) (a) The application must be made on a form prescribed by the department. The department
28 shall make the forms available through its offices.
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1 (b) Prior to filing the application, an applicant may participate in a preapplication meeting with the
2 department to discuss the application process. During this meeting, the applicant and the department will
3 discuss the technical analyses to be completed for the application and if the applicant or the department will
4 complete the technical analyses. A preapplication meeting must be documented on a form provided by the
5 department and included with the application.
6 (4) (a) Subject to subsection (4)(b), the applicant shall submit a correct and complete application.
7 The determination of whether an application is correct and complete must be based on rules adopted under
8 subsection (2) that are in effect at the time the application is submitted.
9 (b) If an application is for a permit to appropriate water with a point of diversion, conveyance, or
10 place of use on national forest system lands, the application is not correct and complete under this section until
11 the applicant has submitted proof of any written special use authorization required by federal law to occupy,
12 use, or traverse national forest system lands for the purpose of diversion, impoundment, storage,
13 transportation, withdrawal, use, or distribution of water under the permit.
14 (c) If an application is for a permit or change in appropriation right from a shared point of a
15 diversion or through a shared means of conveyance, the application is not correct and complete until the
16 applicant submits proof to the department that a written notice of the application was provided to each owner of
17 an appropriation right sharing the point of diversion or means of conveyance. For purposes of this subsection
18 (4), "conveyance" means a canal, ditch, flume, pipeline, or other constructed waterway.
19 (5) (a) The department shall notify the applicant of any defects in an application within: 180 days
20 (i) 15 business days of receipt of the application if the applicant has participated in a
21 preapplication meeting; or
22 (ii) 30 business days of receipt of the application if the applicant has not participated in a
23 preapplication meeting.
24 (b) The defects in an application must be identified by reference to the rules adopted under
25 subsection (2).
26 (c) If the department does not notify the applicant of any defects within 180 days the time allowed
27 in subsection (5)(a), the application must be treated as a correct and complete application.
28 (6) (a) An application does not lose priority of filing because of defects if the application is
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1 corrected or completed applicant shall submit a deficiency response to the defects identified in subsection
2 (5)(a) within 120 days of the date of initial notification of the defects. If the applicant does not provide a
3 deficiency response within 120 days, the application must be terminated.
4 (7) An application not corrected or completed within 120 days of the date of initial notification of the
5 defects is terminated.
6 (b) The department shall determine if the application is correct and complete or terminate the
7 application within 30 days of receipt of a deficiency response. An application not terminated within 30 days of
8 the deficiency response is considered correct and complete.
9 (8)(7) Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior
10 boundaries of the Flathead Indian reservation."
11
12 Section 2. Section 85-2-307, MCA, is amended to read:
13 "85-2-307. Notice of receipt of application for permit or change in appropriation right -- draft
14 preliminary determination -- extensions -- updated draft preliminary determination -- public comments --
15 issuance of preliminary determination. (1) Upon On receipt of an application for a permit or a change in
16 appropriation right, the department shall publish notice of receipt of the application on the department's website.
17 The notice must be updated on the website when an application is determined to be correct and complete.
18 (2) (a) Within 120 days of the receipt of a correct and complete application for a permit or change
19 in appropriation right 60 days of receiving a correct and complete application if the applicant has completed a
20 preapplication meeting and the department has prepared the technical analyses or within 120 days of receiving
21 a correct and complete application if the department has not prepared the technical analyses, the department:
22 (i)(a) may meet informally with the applicant, the persons listed in subsection (2)(d) subsection (4)(f),
23 and persons who may claim standing pursuant to 85-2-308 to discuss the application;
24 (ii)(b) shall make a written draft preliminary determination as to whether or not the application
25 satisfies the applicable criteria for issuance of a permit or change in appropriation right; and
26 (iii)(c) may include conditions in the written draft preliminary determination to satisfy applicable criteria
27 for issuance of a permit or change in appropriation right.
28 (b) If the preliminary determination proposes to grant an application, the department shall prepare a
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1 notice containing the facts pertinent to the application, including the summary of the preliminary determination
2 and any conditions, and shall publish the notice once in a newspaper of general circulation in the area of the
3 source.
4 (c) If the preliminary determination proposes to deny an application, the process provided in 85-2-310
5 must be followed.
6 (3) (a) An applicant has 15 business days from issuance of a draft preliminary determination to
7 request an extension of time to submit additional information. The department may grant an extension of up to
8 180 days for the applicant to submit additional evidence. The department shall provide the applicant with written
9 notice of the extension deadline.
10 (b) The department may revise its draft preliminary determination based on information received
11 under subsection (3)(a). The department shall issue an updated draft preliminary determination within 60 days
12 after the earliest date of:
13 (i) the extension deadline set pursuant to subsection (3)(a); or
14 (ii) the department's receipt of written notice from the applicant stating submittal of all additional
15 information to the department is considered correct and complete.
16 (c) If the department's updated draft preliminary determination:
17 (i) is to deny the application, the department shall hold a hearing as provided in 85-2-310; or
18 (ii) is to grant the application or grant the application in modified form, the department shall provide
19 notice of the opportunity to provide public comment pursuant to subsection (4).
20 (d) If the applicant does not request an extension of time, the department shall:
21 (i) provide notice of the draft preliminary determination to grant the application or grant the
22 application in modified form and also provide notice of the opportunity to provide public comment pursuant to
23 subsection (4); or
24 (ii) adopt a draft preliminary determination to deny the application as the final determination.
25 (4) (a) The department shall prepare a notice of the opportunity to provide public comment on a
26 draft preliminary determination or an updated draft preliminary determination issued for an application.
27 (b) The notice of the opportunity to provide public comment must:
28 (i) state that no more than 30 days after the date of publication, a person may file a public
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1 comment about the application with the department on a form provided by the department; and
2 (ii) contain facts pertinent to the application, including a summary of the draft preliminary
3 determination and any conditions.
4 (c) The department shall publish the notice once in a newspaper of general circulation in the area
5 of the source of the appropriation right and post the notice on the department website.
6 (d) A public comment must identify how one or more criteria for the issuance of a permit of a
7 change in appropriation right is not adequately addressed in a draft preliminary determination issued for the
8 application. The department may adopt additional rules for public comments.
9 (e) A person has standing to file a public comment pursuant to this section if the property, water
10 rights, or interests of the person would be adversely affected by the proposed appropriation.
11 (d)(f) Before the date of publication of the notice of the opportunity to provide public comment, the
12 department shall also serve the notice by first-class mail upon on:
13 (i) an appropriator of water or applicant for or holder of a permit who, according to the records of
14 the department, may be affected by the proposed appropriation;
15 (ii) any purchaser under contract for deed, as defined in 70-20-115, of property that, according to
16 the records of the department, may be affected by the proposed appropriation; and
17 (iii) any public agency that has reserved waters in the source under 85-2-316.
18 (e)(g) The department may, in its discretion, also serve notice upon on any state agency or other
19 person the department feels may be interested in or affected by the proposed appropriation.
20 (f)(h) The department shall file in its records proof of service by affidavit of the publisher in the case
21 of notice by publication and by its own affidavit in the case of service by mail.
22 (3) The notice must state that by a date set by the department, not less than 15 days or more than 60
23 days after the date of publication, persons may file with the department written objections to the application.
24 (5) (a) Within 30 days after the date of publication of the notice of the opportunity to provide public
25 comment, the department shall consider the public comments, respond to the public comments, and issue a
26 preliminary determination to grant the application, grant the application in modified form, or deny the
27 application.
28 (b) If, after considering the public comments subject to subsection (5)(a), the department's
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1 preliminary determination is to:
2 (i) deny the application, the department shall hold a hearing as provided in 85-2-310; or
3 (ii) grant the application or grant the application in a modified form, a person may file an objection
4 to an application pursuant to 85-2-308.
5 (c) If no public comments are received pursuant to subsection (4), the department's preliminary
6 determination is adopted as the final determination."
7
8 Section 3. Section 85-2-308, MCA, is amended to read:
9 "85-2-308. Objections. (1) (a) The department shall provide notice of the opportunity to object to a
10 preliminary determination issued pursuant to 85-2-307(5). The notice must state that no more than 30 days
11 after the date of publication of the notice, a person may file a written objection to the application with the
12 department.
13 (b) A person who has standing pursuant to this section, including the applicant, may object only to
14 issues already identified in a public comment properly filed with the department pursuant to 85-2-307(4) or
15 raised in a hearing pursuant to 85-2-310.
16 (1)(2) (a) An objection to an application under this chapter must be filed by the date specified by the
17 department under 85-2-307(3) subsection (1).
18 (b) The objection to an application for a permit must state the name and address of the objector
19 and facts indicating that one or more of the criteria in 85-2-311 are not met.
20 (2)(3) For an application for a change in appropriation rights, the objection must state the name and
21 address of the objector and facts indicating that one or more of the criteria in 85-2-320, if applicable, 85-2-402,
22 85-2-407, 85-2-408, and 85-2-436, if applicable, are not met.
23 (3)(4) A person has standing to file an objection under this section if the property, water rights, or
24 interests of the objector would be adversely affected by the proposed appropriation.
25 (4)(5) For an application for a reservation of water, the objection must state the name and address of
26 the objector and facts indicating that one or more of the criteria in 85-2-316 are not met.
27 (5)(6) An objector to an application under this chapter shall file a correct and complete objection on a
28 form prescribed by the department within the time period stated on the public notice associated with the
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1 application. In order to assist both applicants and objectors, the department shall adopt rules in accordance
2 with this chapter delineating the components of a correct and complete objection. For instream flow water rights
3 for fish, wildlife, and recreation, the rules must require the objector to describe the reach or portion of the reach
4 of the stream or river subject to the instream flow water right and the beneficial use that is adversely affected
5 and to identify the point or points where the instream flow water right is measured and monitored. The
6 department shall notify the objector of any defects in an objection. An objection not corrected or completed
7 within 15 business days from the date of notification of the defects is terminated.
8 (6)(7) An objection is valid if the objector has standing pursuant to subsection (3) subsection (4), has
9 filed a correct and complete objection within the prescribed time period, and has stated the applicable
10 information required under this section and rules of the department."
11
12 Section 4. Section 85-2-