2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-302. Application for permit or change in appropriation right

85-2-302. (Temporary) Application for permit or change in appropriation right.
(1) Except as provided in 85-2-306 and 85-2-369, a person may not appropriate water or commence construction of diversion, impoundment, withdrawal, or related distribution works unless the person applies for and receives a permit or an authorization for a change in appropriation right from the department.
(2) The department shall adopt rules:
(a) for the preapplication meeting process pursuant to subsection (3)(b);
(b) that are necessary to determine whether or not an application is correct and complete, based on the provisions applicable to issuance of a permit under this part or a change in appropriation right pursuant to Title 85, chapter 2, part 4; and
(c) in compliance with Title 2, chapter 4.
(3) (a) The application must be made on a form prescribed by the department. The department shall make the forms available through its offices.
(b) Prior to filing the application, an applicant may participate in a preapplication meeting with the department to discuss the application process. During this meeting, the applicant and the department will discuss the technical analyses to be completed for the application and if the applicant or the department will complete the technical analyses. A preapplication meeting must be documented on a form provided by the department and included with the application.
(4) (a) Subject to subsection (4)(b), the applicant shall submit a correct and complete application. The determination of whether an application is correct and complete must be based on rules adopted under subsection (2) that are in effect at the time the application is submitted.
(b) If an application is for a permit to appropriate water with a point of diversion, conveyance, or place of use on national forest system lands, the 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.
(c) If an application is for a permit or change in appropriation right from a shared point of a diversion or through a shared means of conveyance, the application is not correct and complete until the applicant submits proof to the department that a written notice of the application was provided to each owner of an appropriation right sharing the point of diversion or means of conveyance. For purposes of this subsection (4), "conveyance" means a canal, ditch, flume, pipeline, or other constructed waterway.
(5) (a) The department shall notify the applicant of any defects in an application within:
(i) 15 business days of receipt of the application if the applicant has participated in a preapplication meeting; or
(ii) 30 business days of receipt of the application if the applicant has not participated in a preapplication meeting.
(b) The defects in an application must be identified by reference to the rules adopted under subsection (2).
(c) If the department does not notify the applicant of any defects within the time allowed in subsection (5)(a), the application must be treated as a correct and complete application.
(6) (a) An applicant shall submit a deficiency response to the defects identified in subsection (5)(a) within 120 days of the date of initial notification of the defects. If the applicant does not provide a deficiency response within 120 days, the application must be terminated.
(b) The department shall determine if the application is correct and complete or terminate the application within 30 days of receipt of a deficiency response. An application not terminated within 30 days of the deficiency response is considered correct and complete.
(7) Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior boundaries of the Flathead Indian reservation. (Terminates June 30, 2031--sec. 9, Ch. 244, L. 2023.)
85-2-302. (Effective July 1, 2031) Application for permit or change in appropriation right.
(1) Except as provided in 85-2-306 and 85-2-369, a person may not appropriate water or commence construction of diversion, impoundment, withdrawal, or related distribution works unless the person applies for and receives a permit or an authorization for a change in appropriation right from the department.
(2) The department shall adopt rules that are necessary to determine whether or not an application is correct and complete, based on the provisions applicable to issuance of a permit under this part or a change in appropriation right pursuant to Title 85, chapter 2, part 4. The rules must be adopted in compliance with Title 2, chapter 4.
(3) The application must be made on a form prescribed by the department. The department shall make the forms available through its offices.
(4) (a) Subject to subsection (4)(b), the applicant shall submit a correct and complete application. The determination of whether an application is correct and complete must be based on rules adopted under subsection (2) that are in effect at the time the application is submitted.
(b) If an application is for a permit to appropriate water with a point of diversion, conveyance, or place of use on national forest system lands, the 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.
(c) If an application is for a permit or change in appropriation right from a shared point of a diversion or through a shared means of conveyance, the application is not correct and complete until the applicant submits proof to the department that a written notice of the application was provided to each owner of an appropriation right sharing the point of diversion or means of conveyance. For purposes of this subsection (4), "conveyance" means a canal, ditch, flume, pipeline, or other constructed waterway.
(5) The department shall notify the applicant of any defects in an application within 180 days. The defects must be identified by reference to the rules adopted under subsection (2). If the department does not notify the applicant of any defects within 180 days, the application must be treated as a correct and complete application.
(6) An application does not lose priority of filing because of defects if the application is corrected or completed within 120 days of the date of initial notification of the defects.
(7) An application not corrected or completed within 120 days of the date of initial notification of the defects is terminated.
(8) Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior boundaries of the Flathead Indian reservation.
History: En. Sec. 16, Ch. 452, L. 1973; amd. Sec. 2, Ch. 238, L. 1974; amd. Sec. 8, Ch. 485, L. 1975; amd. Sec. 4, Ch. 416, L. 1977; amd. Sec. 1, Ch. 470, L. 1977; R.C.M. 1947, 89-880(2); amd. Sec. 6, Ch. 448, L. 1983; amd. Sec. 12, Ch. 769, L. 1991; amd. Sec. 2, Ch. 370, L. 1993; amd. Sec. 1, Ch. 422, L. 1999; amd. Sec. 2, Ch. 78, L. 2001; amd. Sec. 1, Ch. 574, L. 2003; amd. Sec. 4, Ch. 213, L. 2007; amd. Sec. 2, Ch. 391, L. 2007; amd. Sec. 2, Ch. 335, L. 2013; amd. Sec. 7, Ch. 294, L. 2015; amd. Sec. 1, Ch. 192, L. 2019; amd. Sec. 1, Ch. 209, L. 2019; amd. Sec. 1, Ch. 244, L. 2023.