Administrative Rules of Montana › Department 36 - NATURAL RESOURCES AND CONSERVATION › Chapter 36.16 - WATER RESERVATIONS WATER RESOURCES DIVISION › Subchapter 36.16.1 - Water Reservations › Rule 36.16.107A - ACTION ON APPLICATIONS

Current through Register Vol. 13, July 5, 2024
(1) The department
				may approve, deny, or condition any requested reservation subject to such terms
				it considers appropriate. The department may grant a reservation for less than
				the amount of water requested in an application, but in no case may it grant a
				reservation for more water than is requested.
(2) If an order reserving water is issued
				with conditions, the department shall allow the applicant a prescribed period
				of time to revise its management plan in response to those
				conditions.
(3) The applicant must
				prove, by a preponderance of the evidence, that:
(a) the purpose of the reservation is a
				beneficial use as defined in
				85-2-102(4), MCA;
				and
(b) the reservation is needed,
				as required in
				85-2-316(4)(a)(ii),
				MCA, through evidence that:
(i) there is a
				reasonable likelihood that future instate or out-of-state competing water uses
				would consume, degrade, or otherwise affect the water available for the purpose
				of the reservation; or
(ii) if
				information regarding the effect of future water uses on a proposed reservation
				is not available;
(A) the applicant is not
				eligible to apply for a water use permit and water resource values warrant
				reserving water for the requested purpose; or
(B) the applicant would be eligible for a
				permit, but that there are constraints that would restrict the applicant from
				perfecting a water permit for the intended purpose of the reservation;
				or
(c) the
				amount requested is needed to fulfill the purpose of the reservation, as
				required in
				85-2-316(4)(a)(iii),
				MCA, through evidence that:
(i) the
				methodologies and assumptions used to determine the requested amount are
				accurate and suitable;
(ii)
				water-use efficiencies associated with diversionary uses are reasonable, and
				there are no other reasonable cost-effective measures that could be taken
				within the reservation term to increase the use efficiency and lessen the
				amount of water required for the purpose of the reservation; and
(iii) for instream flow purposes on gaged
				streams, the amount does not exceed the limit provided by
				85-2-316(6), MCA;
				and
(d) the reservation
				is in the public interest, as required in
				85-2-316(4)(a)(iv),
				MCA, based on evidence and analysis of each of the following factors:
(i) whether the expected benefits of water to
				beneficial use are reasonably likely to exceed the costs where:
(A) benefits include all direct and indirect
				benefits where any non-market benefits are quantified and valued to the extent
				reasonably possible;
(B) costs
				include all direct and indirect costs where any non-market costs are quantified
				and valued to the extent reasonably possible; and
(C) benefits and costs that may not be
				reasonably quantified are considered;
(ii) whether the net benefits associated with
				granting a reservation exceed the net benefits of not granting the
				reservation;
(iii) whether there
				are no reasonable alternatives to the proposed reservation that have greater
				net benefits;
(iv) whether failure
				to reserve the water will or is likely to result in an irretrievable loss of a
				natural resource or an irretrievable loss of a resource development
				opportunity;
(v) whether there are
				no significant adverse impacts to public health, welfare, and safety;
				and
(vi) any other relevant
				considerations based on the evidence.