reglab/statecodes huggingface dataset:
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-321. Milk River basin -- suspension of action on permits -- proposal -- priority in adjudication process

85-2-321. Milk River basin -- suspension of action on permits -- proposal -- priority in adjudication process.
(1) (a) In order to balance the need for the continued development of Montana's water and for protection of existing rights in the Milk River basin, the department may suspend action on a class of applications or may close a source in the basin and refuse to accept a class of applications, or both, for a permit under this part to appropriate from that source in the basin.
(b) Suspension or closure, or both, may only be proposed by the department.
(c) The proposal must state the source in the basin and class of applications for which suspension or closure, or both, is being proposed and any of the following allegations:
(i) that the frequency of occurrence of unappropriated waters is such that:
(A) any new appropriation from the source for the class of applications will adversely affect the rights of a prior appropriation from the source; or
(B) any new appropriation from the source for the class of applications will interfere unreasonably with another planned use or development for which a permit has been given or for which water has been reserved pursuant to this part in the source; or
(ii) that significant disputes or enforcement problems regarding priority of rights or amounts or duration of water in use by appropriators are in progress or will arise.
(2) After April 8, 1985, the chief water judge shall make issuance of a temporary preliminary decree in the Milk River basin the highest priority in the adjudication of existing water rights pursuant to Title 85, chapter 2, part 2.
History: En. Sec. 1, Ch. 524, L. 1981; amd. Sec. 2, Ch. 394, L. 1985; amd. Sec. 10, Ch. 497, L. 1997.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-322. Hearing -- order

85-2-322. Hearing -- order.
(1) The department shall conduct a hearing on the proposed suspension or closure, or both. Notice of the hearing must be published at least once in each week for 3 successive weeks, not less than 30 days before the date of the hearing, in a newspaper of general circulation in the county or counties in which the source is located. The department shall serve by mail a copy of the notice and proposal not less than 30 days before the hearing upon each person or public agency known from the examination of the records of the department to be a claimant, appropriator, or permitholder of water in the source.
(2) The department may by order suspend action on and shall close the source and refuse to accept a class of applications if it finds on the basis of the hearing that there is substantial evidence in support of the allegations required by 85-2-321 to be contained in the proposal.
(3) As part of fulfilling the requirements of 2-4-623, the order must define the source and must state the class of applications to which the suspension or closure, or both, applies.
(4) Upon adoption of the order, the department shall refuse to accept any application for a permit under this part for the class of application for which closure is ordered under 85-2-321 and this section. If the order suspends action on pending applications, the department shall notify the applicant that action on the applicant's application is suspended.
(5) Upon notice under 85-2-307 of intent to combine the hearings under 85-2-309 with the hearings under this section, the department may suspend action on pending applications of the class until the hearing is conducted under this section and, as part of its final order, may grant, deny, or condition the applications under 85-2-306, 85-2-310, and 85-2-311 or continue the suspension under this section.
History: En. Sec. 2, Ch. 524, L. 1981; amd. Sec. 145, Ch. 370, L. 1987; amd. Sec. 4, Ch. 161, L. 2005.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-323. Request to modify suspension -- order

85-2-323. Request to modify suspension -- order.
(1) A person or public agency may request that an order be modified or revoked. The request must contain allegations supported by substantial evidence showing that the criteria in 85-2-311 can be met for an application or a class of applications from the source. If not so supported, the department may reject the request without a hearing.
(2) The department may by order after a hearing modify or revoke any order made as provided in 85-2-321 and 85-2-322 upon such notice and in such manner as is reasonable under the circumstances.
History: En. Sec. 3, Ch. 524, L. 1981.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-327. Terminated

85-2-327. Terminated.
Sec. 6, Ch. 352, L. 1991.
History: En. Sec. 1, Ch. 352, L. 1991.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-328. Terminated

85-2-328. Terminated.
Sec. 6, Ch. 352, L. 1991.
History: En. Sec. 2, Ch. 352, L. 1991.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-329. Definitions

85-2-329. Definitions.
Unless the context requires otherwise, in 85-2-330 and this section, the following definitions apply:
(1) "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state water reservation pursuant to 85-2-316.
(2) "Teton River basin" means the drainage area of the Teton River and its tributaries above the confluence of the Teton and Marias Rivers.
History: En. Sec. 1, Ch. 445, L. 1993; amd. Sec. 11, Ch. 497, L. 1997; amd. Sec. 4, Ch. 391, L. 2007; amd. Sec. 2, Ch. 59, L. 2019.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-330. Basin closure -- exceptions

85-2-330. Basin closure -- exceptions.
(1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not grant an application for a permit to appropriate water or for a reservation to reserve water within the Teton River basin.
(2) The provisions of subsection (1) do not apply to:
(a) an application for a permit to appropriate ground water if the applicant complies with the provisions of 85-2-360;
(b) an application for a permit to appropriate water for a nonconsumptive use;
(c) an application for a permit to appropriate water for:
(i) domestic use from surface water or pursuant to 85-2-306;
(ii) stock use; or
(iii) use of surface water by or for a municipality;
(d) an application to store water during high spring flows;
(e) temporary emergency appropriations, including for emergency fire training and emergency fire-related operations, as provided for in 85-2-113(3); or
(f) an application for a permit to appropriate surface water to conduct response actions related to natural resource restoration required for:
(i) remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq.;
(ii) aquatic resource activities carried out in compliance with and as required by the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387; or
(iii) remedial actions taken pursuant to Title 75, chapter 10, part 7.
(3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(f) may not be used for dilution.
(4) A change of use authorization for changing the purpose of use may not be issued for any permit issued pursuant to subsection (2)(b), (2)(c), (2)(e), or (2)(f).
History: En. Sec. 2, Ch. 445, L. 1993; amd. Sec. 451, Ch. 418, L. 1995; amd. Sec. 5, Ch. 391, L. 2007; amd. Sec. 3, Ch. 264, L. 2017.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-331. Reservations within Missouri River basin and Little Missouri River basin

85-2-331. Reservations within Missouri River basin and Little Missouri River basin.
(1) Except as provided in 85-20-1401, the state, an agency or political subdivision of the state, or the United States or an agency of the United States that desires to apply for a state water reservation in the Missouri River basin or in the Little Missouri River basin shall file an application pursuant to 85-2-316 no later than:
(a) July 1, 1989, for reservation of water above Fort Peck dam; or
(b) July 1, 1991, for reservation of water below Fort Peck dam and in the Little Missouri River basin.
(2) Subject to legislative appropriation, the department shall provide technical and financial assistance to other state agencies and political subdivisions in applying for state water reservations within the Missouri River basin and the Little Missouri River basin.
(3) Except as provided in 85-20-1401, the department shall:
(a) make a final determination in accordance with 85-2-316 on all applications filed before July 1, 1989, for state water reservations in the Missouri River basin above Fort Peck dam.
(b) make a final determination in accordance with 85-2-316 on all applications filed before July 1, 1991, for state water reservations in the Missouri River basin below Fort Peck dam and in the Little Missouri River basin.
(c) determine which applications or portions of applications are considered to be above or below Fort Peck dam.
(4) Except as provided in 85-20-1401, state water reservations approved by the department under this section have a priority date of July 1, 1985, in the Missouri River basin and a priority date of July 1, 1989, in the Little Missouri River basin. If the department issued a permit under Title 85, chapter 2, part 3, prior to the granting of a state water reservation under this section, the department may subordinate the state water reservation to the permit if it finds that the subordination does not interfere substantially with the purpose of any state water reservation. If the department issued a certificate for ground water development under Title 85, chapter 2, part 3, prior to the granting of a reservation under this section, the department may subordinate the reservation to the certificate if it finds that the subordination does not interfere substantially with the purpose of any reservation and the reservant consents to the subordination. The department shall by order establish the relative priority of applications approved under this section.
History: En. Sec. 16, Ch. 573, L. 1985; amd. Sec. 3, HB 952, L. 1985; amd. Sec. 7, Ch. 535, L. 1987; amd. Sec. 1, Ch. 134, L. 1989; amd. Sec. 1, Ch. 303, L. 1993; amd. Sec. 452, Ch. 418, L. 1995; amd. Sec. 2, Ch. 330, L. 1997; amd. Sec. 12, Ch. 497, L. 1997; amd. Sec. 12, Ch. 213, L. 2007.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-335. Definitions

85-2-335. Definitions.
Unless the context requires otherwise, in 85-2-335, 85-2-336, and 85-2-338, the following definitions apply:
(1) "Application" means an application for a beneficial water use permit pursuant to 85-2-302.
(2) "Upper Clark Fork River basin" means the drainage area of the Clark Fork River and the Blackfoot River and their tributaries above the confluence of the Clark Fork River and the Blackfoot River.
History: En. Sec. 1, Ch. 741, L. 1991; amd. Sec. 1, Ch. 487, L. 1995; amd. Sec. 1, Ch. 142, L. 2007; amd. Sec. 6, Ch. 391, L. 2007.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-336. Basin closure -- exception

85-2-336. Basin closure -- exception.
(1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not grant an application for a permit to appropriate water within the upper Clark Fork River basin.
(2) The provisions of subsection (1) do not apply to:
(a) an application for a permit to appropriate ground water if the applicant complies with the provisions of 85-2-360;
(b) an application for a permit to appropriate surface water to conduct aquatic resource activities carried out in compliance with and as required by the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387. A permit issued to conduct aquatic resource actions may not be used for dilution.
(c) an application for a permit to appropriate water for stock use;
(d) an application to store water;
(e) an application submitted pursuant to 85-20-1401, Article VI; or
(f) an application for power generation at existing hydroelectric dams. The department may not approve a permit for power generation if approval results in additional consumption of water.
(3) A change of use authorization for changing the purpose of use may not be issued for any permit issued pursuant to subsection (2)(b) or (2)(c).
(4) Except as provided in 85-20-1401, applications for state water reservations in the upper Clark Fork River basin filed pursuant to 85-2-316 and pending as of May 1, 1991, have a priority date of May 1, 1991. The filing of a state water reservation application does not provide standing to object under 85-2-402.
(5) Except as provided in 85-20-1401, the department may not process or approve applications for state water reservations in the upper Clark Fork River basin filed pursuant to 85-2-316.
History: En. Sec. 2, Ch. 741, L. 1991; amd. Sec. 453, Ch. 418, L. 1995; amd. Sec. 2, Ch. 487, L. 1995; amd. Sec. 13, Ch. 497, L. 1997; amd. Sec. 13, Ch. 213, L. 2007; amd. Sec. 7, Ch. 391, L. 2007.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-337. Repealed

85-2-337. Repealed.
Sec. 27, Ch. 391, L. 2007.
History: En. Sec. 3, Ch. 741, L. 1991; amd. Sec. 1, Ch. 353, L. 1997.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-339. Terminated

85-2-339. Terminated.
Sec. 6, Ch. 281, L. 1999.
History: En. Sec. 1, Ch. 281, L. 1999.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-340. Definitions

85-2-340. Definitions.
Unless the context requires otherwise, in 85-2-341 and this section, the following definitions apply:
(1) "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state water reservation pursuant to 85-2-316.
(2) "Ground water" has the meaning provided in 85-2-102.
(3) "Jefferson River basin" means the drainage area of the Jefferson River and its tributaries above the confluence of the Jefferson and Missouri Rivers.
(4) "Madison River basin" means the drainage area of the Madison River and its tributaries above the confluence of the Madison and Jefferson Rivers.
History: En. Sec. 1, Ch. 244, L. 1993; amd. Sec. 14, Ch. 497, L. 1997; amd. Sec. 8, Ch. 391, L. 2007; amd. Sec. 3, Ch. 59, L. 2019.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-341. Basin closure -- exceptions

85-2-341. Basin closure -- exceptions.
(1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not grant an application for a permit to appropriate water or for a state water reservation to reserve water within the Jefferson River basin or Madison River basin.
(2) The provisions of subsection (1) do not apply to:
(a) an application for a permit to appropriate ground water if the applicant complies with the provisions of 85-2-360;
(b) an application for a permit to appropriate water for a nonconsumptive use;
(c) an application for a permit to appropriate water for:
(i) domestic use from surface water or pursuant to 85-2-306;
(ii) stock use; or
(iii) use of surface water by or for a municipality;
(d) an application to store water during high spring flows;
(e) an application submitted pursuant to 85-20-1401, Article VI;
(f) temporary emergency appropriations, including for emergency fire training and emergency fire-related operations, as provided for in 85-2-113(3);
(g) an application for a permit to appropriate surface water to conduct response actions related to natural resource restoration required for:
(i) remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq.;
(ii) aquatic resource activities carried out in compliance with and as required by the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387; or
(iii) remedial actions taken pursuant to Title 75, chapter 10, part 7.
(3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(g) may not be used for dilution.
(4) A change of use authorization for changing the purpose of use may not be issued for any permit issued pursuant to subsection (2)(b), (2)(c), (2)(f), or (2)(g).
History: En. Sec. 2, Ch. 244, L. 1993; amd. Sec. 454, Ch. 418, L. 1995; amd. Sec. 15, Ch. 497, L. 1997; amd. Sec. 14, Ch. 213, L. 2007; amd. Sec. 9, Ch. 391, L. 2007; amd. Sec. 4, Ch. 264, L. 2017.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-342. Definitions

85-2-342. Definitions.
Unless the context requires otherwise, in 85-2-343 and this section, the following definitions apply:
(1) "Application" means an application for a beneficial water use permit pursuant to 85-2-302 or a state water reservation pursuant to 85-2-316.
(2) "Upper Missouri River basin" means the drainage area of the Missouri River and its tributaries above Morony dam.
History: En. Sec. 1, Ch. 385, L. 1993; amd. Sec. 16, Ch. 497, L. 1997; amd. Sec. 10, Ch. 391, L. 2007; amd. Sec. 4, Ch. 59, L. 2019.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-343. Basin closure -- exceptions

85-2-343. Basin closure -- exceptions.
(1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not grant an application for a permit to appropriate water or for a reservation to reserve water within the upper Missouri River basin until the final decrees have been issued in accordance with part 2 of this chapter for all of the subbasins of the upper Missouri River basin.
(2) The provisions of subsection (1) do not apply to:
(a) an application for a permit to appropriate ground water if the applicant complies with the provisions of 85-2-360;
(b) an application for a permit to appropriate water for a nonconsumptive use;
(c) an application for a permit to appropriate water for:
(i) domestic use from surface water or pursuant to 85-2-306;
(ii) stock use; or
(iii) use of surface water by or for a municipality;
(d) an application to store water during high spring flows;
(e) an application for a permit to use water from the Muddy Creek drainage, which drains to the Sun River, if the proposed use of water will help control erosion in the Muddy Creek drainage;
(f) an application submitted pursuant to 85-20-1401, Article VI;
(g) temporary emergency appropriations, including for emergency fire training and emergency fire-related operations, as provided for in 85-2-113(3); or
(h) an application for a permit to appropriate surface water to conduct response actions related to natural resource restoration required for:
(i) remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq.;
(ii) aquatic resource activities carried out in compliance with and as required by the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387; or
(iii) remedial actions taken pursuant to Title 75, chapter 10, part 7.
(3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(h) may not be used for dilution.
(4) A change of use authorization for changing the purpose of use may not be issued for any permit issued pursuant to subsection (2)(b), (2)(c), (2)(e), (2)(g), or (2)(h).
History: En. Sec. 2, Ch. 385, L. 1993; amd. Sec. 455, Ch. 418, L. 1995; amd. Sec. 1, Ch. 441, L. 1997; amd. Sec. 15, Ch. 213, L. 2007; amd. Sec. 11, Ch. 391, L. 2007; amd. Sec. 5, Ch. 264, L. 2017.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-350. Repealed

85-2-350. Repealed.
Sec.2, Ch. 284, L. 2021.
History: En. Sec. 1, Ch. 447, L. 2001; amd. Sec. 1, Ch. 434, L. 2005; amd. Sec. 71, Ch. 44, L. 2007; amd. Sec. 11, Ch. 122, L. 2015; amd. Sec. 122, Ch. 261, L. 2021.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-351. Notice to permitholders -- Clark Fork River basin

85-2-351. Notice to permitholders -- Clark Fork River basin.
The department shall provide a written notice to each person that receives a provisional water use permit to appropriate water within the Clark Fork River basin. The written notice must state: "This provisional water use permit has a priority date that is junior to the rights of senior water right holders in the Clark Fork River Basin. In accordance with Montana law, you may be subject to a call by senior water right holders, in which case you may be required to discontinue your use of water for the period of the call."
History: En. Sec. 2, Ch. 447, L. 2001.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-355. Definitions

85-2-355. Definitions.
As used in 85-2-306, the following definitions apply:
(1) "Ephemeral stream" means a watercourse that has a channel and that carries water only during and shortly after precipitation or snow melt events.
(2) "Intermittent stream" means a nonperennial flowing stream that has a channel and that annually carries water but is dry for part of the year in most years.
(3) "Perennial flowing stream" means a stream that has flowed continuously during all seasons during dry as well as wet years, except when the flow is interrupted by diversions.
History: En. Sec. 1, Ch. 161, L. 2005; amd. Sec. 2, Ch. 455, L. 2015.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-360. Ground water appropriation right in closed basins

85-2-360. Ground water appropriation right in closed basins.
(1) An application for a ground water appropriation right 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 must be accompanied by a hydrogeologic report conducted pursuant to 85-2-361, an aquifer recharge or mitigation plan if required, and an application for a change in appropriation right or rights if necessary.
(2) The department shall use the hydrogeologic report to determine if the proposed appropriation right could result in a net depletion of surface water.
(3) (a) For the purposes of 85-2-360 through 85-2-362, the prediction of net depletion does not mean that an adverse effect on a prior appropriator will occur or if an adverse effect does occur that the entire amount of net depletion is the cause of the adverse effect. A determination of whether or not there is an adverse effect on a prior appropriator as the result of a new appropriation right is a determination that must be made by the department based on the rate, location, and timing of the net depletion that causes the adverse effect relative to the historic beneficial use of the appropriation right that may be adversely affected.
(b) The department may grant a permit for a new appropriation only if the applicant proves by a preponderance of the evidence that the adverse effect would be offset through an aquifer recharge or mitigation plan that meets the requirements of 85-2-362.
History: En. Sec. 14, Ch. 391, L. 2007; amd. Sec. 7, Ch. 335, L. 2013; amd. Sec. 4, Ch. 243, L. 2017.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-361. Hydrogeologic report -- minimum requirements

85-2-361. Hydrogeologic report -- minimum requirements.
(1) A hydrogeologic report must include:
(a) a description of the proposed appropriation, including the point of diversion, the place of use, the area affected by the proposed appropriation, and aquifers and surface waters that may be affected by the proposed appropriation right;
(b) the amount of water diverted and the amount of water consumed by the proposed appropriation right;
(c) the amount of water that will likely be lost in conveyance, the amount of conveyance losses that would return to the system, and the location where conveyance losses would return to the system;
(d) the amount, timing, and location of return flows from the proposed use;
(e) the geology of the affected area, including stratigraphy and structure;
(f) the parameters of the aquifer system within the affected area to include estimates for:
(i) the lateral and vertical extent of the aquifer;
(ii) an analysis of whether the aquifer is confined or unconfined; and
(iii) the transmissivity and storage coefficient related to the aquifer;
(g) the locations of surface waters within the affected area that are subject to an appropriation right that may show a net depletion;
(h) an analysis of whether there may be a net depletion of surface water in the affected area and the rate, location, and timing of the depletion, if any; and
(i) a description of any water treatment method used at the time of any type of injection or introduction of water to the aquifer to ensure compliance with 75-5-410, 85-2-364, and the water quality laws under Title 75, chapter 5.
(2) A hydrogeologic report must be prepared by a hydrogeologist, a qualified scientist, or a qualified licensed professional engineer.
(3) The hydrogeologic report, the test well data, the monitoring well data, and other related information must be submitted to the department. The department shall submit this information to the bureau of mines and geology. The bureau of mines and geology shall make the information available through the ground water information center database.
History: En. Sec. 15, Ch. 391, L. 2007; amd. Sec. 8, Ch. 335, L. 2013.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-362. Aquifer recharge or mitigation plans in closed basins -- minimum requirements

85-2-362. Aquifer recharge or mitigation plans in closed basins -- minimum requirements.
(1) An applicant whose hydrogeologic report conducted pursuant to 85-2-361 predicts that there will be a net depletion of surface water shall submit an aquifer recharge or mitigation plan. An aquifer recharge or mitigation plan must include:
(a) where and how the water in the plan will be put to beneficial use;
(b) when and where, generally, water for aquifer recharge or mitigation will be required;
(c) the amount of water that is required for aquifer recharge or mitigation;
(d) how the proposed project or beneficial use for which the aquifer recharge or mitigation plan is required will be operated;
(e) evidence that an application for a change in appropriation right, if necessary, has been submitted;
(f) evidence of water availability;
(g) evidence of how the aquifer recharge or mitigation plan will offset the required amount of net depletion of surface water in a manner that will offset an adverse effect on a prior appropriator; and
(h) evidence that the appropriate water quality permits have been granted pursuant to Title 75, chapter 5, as required by 75-5-410 and 85-2-364.
(2) In addition to the requirements of subsection (1), an aquifer recharge plan must include a description of the process by which water will be reintroduced to the aquifer.
(3) The department may not require an applicant, through an aquifer recharge or mitigation plan, to provide more water than the quantity needed to offset the adverse effects on a prior appropriator caused by the net depletion.
(4) An appropriation right that relies on an aquifer recharge or mitigation plan must require that the aquifer recharge or mitigation plan be exercised when the appropriation right is exercised.
History: En. Sec. 16, Ch. 391, L. 2007; amd. Sec. 2, Ch. 104, L. 2009; amd. Sec. 9, Ch. 335, L. 2013.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-363. Repealed

85-2-363. Repealed.
Sec. 13, Ch. 335, L. 2013.
History: En. Sec. 17, Ch. 391, L. 2007.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-364. Department permit coordination -- requirements for aquifer recharge or mitigation plans

85-2-364. Department permit coordination -- requirements for aquifer recharge or mitigation plans.
To ensure that the department and the department of environmental quality are coordinating their respective permitting activities:
(1) an applicant for a new appropriation right pursuant to 85-2-360 that involves aquifer recharge or mitigation shall provide the department with a copy of a relevant discharge permit if necessary; and
(2) the department may not grant a new appropriation right pursuant to 85-2-360 that involves aquifer recharge or mitigation until the discharge permit, if necessary, has been obtained and presented to the department.
History: En. Sec. 18, Ch. 391, L. 2007; amd. Sec. 3, Ch. 104, L. 2009.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-368. Aquifer storage and recovery projects in closed basins

85-2-368. Aquifer storage and recovery projects in closed basins.
(1) An aquifer storage and recovery project may be authorized in a closed basin.
(2) In addition to the criteria provided in Title 85, chapter 2, part 3, and 85-2-402, an aquifer storage and recovery project must meet the requirements provided in 75-5-410 and 85-2-360 through 85-2-364.
History: En. Sec. 20, Ch. 391, L. 2007.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-369. Permit not required for testing

85-2-369. Permit not required for testing.
(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: En. Sec. 21, Ch. 391, L. 2007; amd. Sec. 10, Ch. 335, L. 2013.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-370. Rulemaking

85-2-370. Rulemaking.
The department may adopt rules to implement the provisions of 75-5-410, 85-2-360 through 85-2-364, and 85-2-368. The rules must be oriented toward the protection of existing rights from adverse effects from net depletions caused by new appropriation rights or changes in appropriation rights in closed basins and must be consistent with and not exceed the requirements of 75-5-410, 85-2-360 through 85-2-364, and 85-2-368.
History: En. Sec. 22, Ch. 391, L. 2007.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-380. Stream depletion zones -- establishment -- rulemaking

85-2-380. Stream depletion zones -- establishment -- rulemaking
. (1) Notwithstanding the provisions of subsection (2), the department may establish a stream depletion zone by rule if:
(a) the stream depletion zone lies within 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; and
(b) there exists a hydrogeologic assessment for the area where the stream depletion zone is proposed that was conducted by either the ground water investigation program established by 85-2-525 or by a hydrogeologist or a qualified licensed professional engineer.
(2) If the provisions of subsection (1) are met, the department shall initiate rulemaking to establish a stream depletion zone upon receipt of a petition signed by:
(a) a municipality, county, conservation district, or local water quality district formed under Title 7, chapter 13, part 45; or
(b) the owners of at least 15% of the flow rate of the surface water rights in the area estimated to be affected, the boundary of which cannot 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.
(3) The department shall provide notice of the rulemaking by first-class mail to an appropriator of water who, according to the records of the department, may be affected by the proposed stream depletion zone.
(4) In establishing rules related to stream depletion zones, the department shall consult with the ground water investigation program and the ground water assessment steering committee established by 2-15-1523.
History: En. Sec. 3, Ch. 421, L. 2013.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 3. Appropriations, Permits, and Certificates of Water Rights › 85-2-381. Water right enforcement of ground water uses exempt from permitting -- findings and purpose

85-2-381. Water right enforcement of ground water uses exempt from permitting -- findings and purpose.
(1) The legislature finds that:
(a) the state of Montana has managed the allocation of water under the prior appropriation doctrine for more than 100 years;
(b) Article IX, section 3, of the Montana constitution recognizes and confirms all existing water rights;
(c) the right to the use of water through a water right is a recognized property right;
(d) the development of ground water wells that are exempt from permitting may have an adverse effect on other water rights;
(e) the Water Use Act requires the department to coordinate the development and use of the water resources of the state so as to effect full utilization, conservation, and protection of its water resources; and
(f) the ability to develop ground water wells that are exempt from permitting contributes to the full utilization of the water resources of the state.
(2) The establishment of a stream depletion zone pursuant to 85-2-380 provides a conclusive, scientific basis for determining where ground water rights that are exempt from permitting are affecting senior surface water rights.
(3) The purpose of this section is to continue allocating water under the exemptions provided for in 85-2-306 while providing a process by which senior water right holders may protect their rights under the prior appropriation doctrine. Nothing in this section is intended to limit the ability of a senior water right holder to enforce a water right or limit that enforcement to a specific area. Creation of a stream depletion zone is not a prerequisite to an enforcement action.
(4) Any use of water granted by a certificate of water right pursuant to 85-2-306(3)(a) is subject to enforcement according to priority by:
(a) any remedy legally available;
(b) the department, upon receiving a complaint, through the provisions of 85-2-114 and 85-2-122; or
(c) a water commissioner appointed pursuant to 85-5-101.
(5) For each certificate issued pursuant to 85-2-306(3)(a) after October 1, 2013, the department shall include written notice of the provisions of this section.
History: En. Sec. 4, Ch. 421, L. 2013.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 4. Utilization of Water › 85-2-401. Priority -- recognition and confirmation of changes in appropriations issued after July 1, 1973

85-2-401. (Temporary) Priority -- recognition and confirmation of changes in appropriations issued after July 1, 1973.
(1) As between appropriators, the first in time is the first in right. Priority of appropriation does not include the right to prevent changes by later appropriators in the condition of water occurrence, such as the increase or decrease of streamflow or the lowering of a water table, artesian pressure, or water level, if the prior appropriator can reasonably exercise the water right under the changed conditions.
(2) Priority of appropriation made under this chapter dates from the filing of an application for a permit with the department, except as otherwise provided in 85-2-301 through 85-2-303, 85-2-306, 85-2-310(7), and 85-2-313.
(3) Priority of appropriation perfected before July 1, 1973, must be determined as provided in part 2 of this chapter.
(4) All changes in appropriation rights actions of the department after July 1, 1973, are recognized and confirmed subject to this part and any terms, conditions, and limitations placed on a change in appropriation authorization by the department. (Terminates June 30, 2031--sec. 9, Ch. 244, L. 2023.)
85-2-401. (Effective July 1, 2031) Priority -- recognition and confirmation of changes in appropriations issued after July 1, 1973.
(1) As between appropriators, the first in time is the first in right. Priority of appropriation does not include the right to prevent changes by later appropriators in the condition of water occurrence, such as the increase or decrease of streamflow or the lowering of a water table, artesian pressure, or water level, if the prior appropriator can reasonably exercise the water right under the changed conditions.
(2) Priority of appropriation made under this chapter dates from the filing of an application for a permit with the department, except as otherwise provided in 85-2-301 through 85-2-303, 85-2-306, 85-2-310(8), and 85-2-313.
(3) Priority of appropriation perfected before July 1, 1973, must be determined as provided in part 2 of this chapter.
(4) All changes in appropriation rights actions of the department after July 1, 1973, are recognized and confirmed subject to this part and any terms, conditions, and limitations placed on a change in appropriation authorization by the department.
History: En. Sec. 27, Ch. 452, L. 1973; R.C.M. 1947, 89-891; amd. Sec. 33, Ch. 697, L. 1979; amd. Sec. 17, Ch. 497, L. 1997; amd. Sec. 17, Ch. 213, L. 2007; amd. Sec. 6, Ch. 251, L. 2009; amd. Sec. 5, Ch. 244, L. 2023.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 4. Utilization of Water › 85-2-403. Transfer of appropriation right

85-2-403. Transfer of appropriation right.
(1) The right to use water shall pass with a conveyance of the land or transfer by operation of law, unless specifically exempted therefrom. All transfers of interests in appropriation rights shall be without loss of priority.
(2) Failure to comply with the provisions of 85-2-402 does not render a conveyance or reservation of a water right void, but the right may not be used until the department has approved the change. This subsection applies retroactively, within the meaning of 1-2-109, to a conveyance or reservation made after July 1, 1973.
History: En. Sec. 29, Ch. 452, L. 1973; amd. Sec. 4, Ch. 238, L. 1974; R.C.M. 1947, 89-893; amd. Sec. 16, Ch. 448, L. 1983; amd. Sec. 7, Ch. 674, L. 1983; amd. Sec. 9, Ch. 535, L. 1987.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 4. Utilization of Water › 85-2-404. Abandonment of appropriation right

85-2-404. Abandonment of appropriation right.
(1) If an appropriator ceases to use all or a part of an appropriation right with the intention of wholly or partially abandoning the right or if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right is, to that extent, considered abandoned and must immediately expire.
(2) If an appropriator ceases to use all or part of an appropriation right or ceases using the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for use, there is a prima facie presumption that the appropriator has abandoned the right for the part not used.
(3) If an appropriator ceases to use all or part of an appropriation right in compliance with a candidate conservation agreement initiated pursuant to 50 CFR 17.32 or because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:
(a) the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and
(b) the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.
(4) The lease of an existing right pursuant to 85-2-436 or a temporary change in appropriation right pursuant to 85-2-407 or 85-2-408 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of any part of the right.
(5) Subsections (1) and (2) do not apply to existing rights until they have been finally determined in accordance with part 2 of this chapter.
History: En. Sec. 30, Ch. 452, L. 1973; R.C.M. 1947, 89-894; amd. Sec. 1, Ch. 339, L. 1987; amd. Sec. 3, Ch. 658, L. 1989; amd. Sec. 2, Ch. 435, L. 1991; amd. Sec. 8, Ch. 487, L. 1995; amd. Sec. 5, Ch. 174, L. 1997; amd. Sec. 4, Ch. 85, L. 2005; amd. Sec. 1, Ch. 355, L. 2007.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 4. Utilization of Water › 85-2-405. Procedure for declaring appropriation rights abandoned

85-2-405. Procedure for declaring appropriation rights abandoned.
(1) When the department has reason to believe that an appropriator may have abandoned an appropriation right under 85-2-404 or when another appropriator in the opinion of the department files a valid claim that the appropriator has been or will be injured by the resumption of use of an appropriation right alleged to have been abandoned, the department shall petition the district court that determined the existing rights in the source of the appropriation in question to hold a hearing to determine whether the appropriation right has been abandoned. Proceedings under this section must be conducted in accordance with the Montana Rules of Civil Procedure, and appeal must be taken in accordance with the Montana Rules of Appellate Procedure.
(2) At the hearing, the burden of proof is on the department, which shall establish by a preponderance of the evidence that the appropriation has been abandoned under 85-2-404.
(3) The determination of the court must be appended to the final decree. The department shall keep a copy of the determination in its office in Helena.
History: En. Sec. 31, Ch. 452, L. 1973; R.C.M. 1947, 89-895; amd. Sec. 2761, Ch. 56, L. 2009.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 4. Utilization of Water › 85-2-408. Temporary change authorization for instream flow -- additional requirements

85-2-408. Temporary change authorization for instream flow -- additional requirements.
(1) The department shall accept and process an application for a temporary change in appropriation rights to maintain or enhance instream flow to benefit the fishery resource under the provisions of 85-2-402, 85-2-407, and this section. The application must:
(a) include specific information on the length and location of the stream reach in which the streamflow is to be maintained or enhanced; and
(b) provide a detailed streamflow measuring plan that describes the point where and the manner in which the streamflow must be measured.
(2) (a) A temporary change authorization under the provisions of this section is allowable only if the owner of the water right voluntarily agrees to:
(i) change the purpose of a consumptive use water right to instream flow for the benefit of the fishery resource; or
(ii) lease a consumptive use water right to another person for instream flow to benefit the fishery resource.
(b) For the purpose of this subsection (2), "person" means and is limited to an individual, association, partnership, or corporation.
(3) In addition to the requirements of 85-2-402 and 85-2-407, an applicant for a change authorization under this section shall prove by a preponderance of evidence that:
(a) the temporary change authorization for water to maintain and enhance instream flow to benefit the fishery resource, as measured at a specific point, will not adversely affect the water rights of other persons; and
(b) the amount of water for the proposed use is needed to maintain or enhance instream flows to benefit the fishery resource.
(4) The department shall approve the method of measurement of the water to maintain and enhance instream flow to benefit the fishery resource through a temporary change authorization as provided in this section.
(5) Only the owner of the water right may seek enforcement of the temporary change authorization or object under 85-2-308.
(6) A temporary change authorization under this section does not create a right of access across private property or allow any infringement of private property rights.
(7) The maximum quantity of water that may be changed to maintain and enhance streamflows to benefit the fishery resource is the amount historically diverted. However, only the amount historically consumed, or a smaller amount if specified by the department in the lease authorization, may be used to maintain or enhance streamflows to benefit the fishery resource below the existing point of diversion.
History: En. Sec. 1, Ch. 322, L. 1995; amd. Sec. 6, Ch. 85, L. 2005; amd. Sec. 7, Ch. 243, L. 2017.
2023 Montana Code Annotated › Title 85. Water Use › Chapter 2. Surface Water and Ground Water › Part 4. Utilization of Water › 85-2-411. Water turned into natural channels

85-2-411. Water turned into natural channels.
Water appropriated under an existing right or pursuant to this chapter may be turned into the natural channel of another stream or from a reservoir into the natural channel and withdrawn or diverted at a point downstream for beneficial use, but the waters of that stream may not thereby be diminished in quantity or deteriorated in quality to the detriment of a prior appropriator. Water stored in a reservoir under an existing right or pursuant to this chapter which is turned into a natural channel for withdrawal or diversion and beneficial use downstream shall not be considered a part of the natural flow of that stream.
History: En. 89-891.1 by Sec. 1, Ch. 103, L. 1974; R.C.M. 1947, 89-891.1.