Montana Administrative Code

36.12.1601 WATER RIGHT PERMIT AND CHANGE APPLICATION - CORRECT AND COMPLETE DETERMINATION The department shall determine whether an application for a provisional permit or change authorization is correct and complete by reviewing: information publicly available within its experti…

36.12.1701 FILING A PERMIT APPLICATION (REPEALED) Authorizing statute(s): 85-2-113, 85-2-302, MCA Implementing statute(s): 85-2-302, 85-2-311, MCA History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2011 MAR p. 2043, Eff. 10/1/11; AMD, 2012 MAR p. 2071, Eff. 10/12/12; REP, 2023 MAR…

36.12.1702 PERMIT APPLICATION CRITERIA - PHYSICAL SURFACE WATER AVAILABILITY Physical availability for perennial or intermittent streams will be determined based on monthly flow rate and volume. Ifstream gage records are available, or the source has been otherwise measured, or qu…

36.12.1703 PERMIT APPLICATION CRITERIA - PHYSICAL GROUNDWATER AVAILABILITY Applicants for groundwater from a developed spring must provide monthly flow measurements taken at regular intervals or at department-approved intervals during the proposed period of diversion. Measurement…

36.12.1704 PERMIT APPLICATION - LEGAL AVAILABILITY The department will identify and quantifythe existing legal demands of water rights on the source of supply and those waters to which it is tributary and which the department determines may be affected by the proposed appropriati…

36.12.1705 PERMIT APPLICATION CRITERIA - COMPARISON OF PHYSICAL WATER AVAILABILITY AND EXISTING LEGAL DEMANDS (REPEALED) Authorizing statute(s): 85-2-113, 85-2-302, MCA Implementing statute(s): 85-2-302, MCA History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff.…

36.12.1706 PERMIT APPLICATION CRITERIA - ADVERSE EFFECT An application must include a plan to address adverse effect. The plan must establish how the applicant will comply with a call and describe how the appropriation can be regulated during times of water shortage so the water …

36.12.1707 PERMIT APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS AND OPERATION The diversion works must be capable of diverting the amount of water requested to accomplish the proposed use without unreasonable loss through design or operation. The diversion works must conform to…

36.12.1801 PERMIT AND CHANGE APPLICATIONS - BENEFICIAL USE Water may be appropriated for beneficial use: by a governmental entity for the public; by a person for the sale, rent, or distribution to others; or by a person for the person's own use, unless provided otherwise by statu…

36.12.1802 PERMIT AND CHANGE APPLICATIONS - POSSESSORY INTEREST An applicant or a representative shall sign the application affidavit to affirm the following: the statements on the application and all information submitted with the application are true and correct; and except in …

36.12.1901 FILING A CHANGE APPLICATION (REPEALED) Authorizing statute(s): 85-2-112, 85-2-113, 85-2-302, MCA Implementing statute(s): 85-2-302, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-436, MCA History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2009 MAR p. 2259, Eff. 11/26/09; …

36.12.1902 CHANGE APPLICATION - HISTORIC USE The description of the historic information is related to a date that is dependent on the type of water right being changed. The following dates are applicable for each type of water right: historic information for a statement of claim…

36.12.1903 CHANGE APPLICATION - ADVERSE EFFECT Lack of adverse effect for change applications is generally based on the applicant's plan showing the diversion and use of water and operation of the proposed project will not exceed historical use, and can be implemented and properl…

36.12.1904 CHANGE APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS AND OPERATION The diversion works must be capable of diverting the amount of water requested to accomplish the proposed use without unreasonable loss through design or operation. Preliminary design plans and specif…

36.12.2001 SALVAGE WATER APPLICATIONS Salvage water, defined at 85-2-102(20), MCA includes seepage, wastewater, or deep percolation water and may be used by the appropriator, moved to other lands, leased, or sold after implementing a water saving method and proving lack of advers…

36.12.201 SCOPE AND PURPOSE The procedures contained within this subchapter govern contested case proceedings conducted by the department pursuant to Title 85, chapter 2, parts 1 through 4, MCA. The attorney general's model rules for conducting contested case proceedings, adopted…

36.12.202 DEFINITIONS (REPEALED) Authorizing statute(s): 2-4-201, 85-2-113, MCA Implementing statute(s): 2-4-201, 85-2-113, MCA History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2000 MAR p. 636, Eff. 2/25/00; REP, 2014 MAR p. 2956, Eff. 12/12/1…

36.12.203 HEARING EXAMINERS A hearing examiner shall be assigned to preside over a contested case proceeding before the department. An individual that was involved in the preliminary determination on the application shall not be assigned as hearing examiner. The department shall …

36.12.204 HEARING NOTICE AND APPOINTMENT OF HEARING EXAMINER The department shall serve all parties with a hearing notice and appointment of hearing examiner: within 30 days of issuing a preliminary determination to deny an application pursuant to 85-2-310, MCA; or within 30 days…

36.12.205 DEFECTIVE NOTICE OF APPLICATION (REPEALED) Authorizing statute(s): 2-4-201, 85-2-113, MCA Implementing statute(s): 2-4-105, MCA History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; REP, 2014 MAR p. 2956, Eff. 12/12/14.

36.12.206 REPRESENTATION A party may appear on their own behalf or may be represented by an attorney in a contested case proceeding. All legal entities, including but not limited to corporations, limited liability companies, trusts, partnerships, and not for profit associations m…

36.12.207 SETTLEMENT, STIPULATION OR CONSENT The terms of a settlement, stipulation, or consent entered between parties as a private contractual agreement are not binding on the department. If the parties propose inclusion of the terms of a settlement, stipulation, or consent as …

36.12.208 DEFAULT A default occurs when a party fails to appear at a hearing or fails to comply with any interlocutory orders of the hearing examiner. Upon default, the defaulting party's claim or interest in the proceeding may be dismissed (with or without prejudice) , denied, d…

36.12.209 TIME The time within which an act is to be done as provided in these rules shall be computed by excluding the first day and including the last, except that if the last day be Saturday, Sunday, or a legal holiday, the act may be done on the next succeeding regular busine…

36.12.210 CONSOLIDATION Two or more proceedings may be proposed for consolidation as a single proceeding upon motion of a party or upon notice by the hearing examiner: if consolidation is proposed by a party, the procedures regarding filing of motions to the hearing examiner prov…

36.12.2101 TEMPORARY LEASE OF APPROPRIATION RIGHT (REPEALED) Authorizing statute(s): 85-2-113, 85-2-427, MCA Implementing statute(s): 85-2-427, MCA History: NEW, 2013 MAR p. 1344, Eff. 7/26/13; AMD, 2014 MAR p. 598, Eff. 3/28/14; REP, 2019 MAR p. 1865, Eff. 10/19/19.

36.12.2102 TEMPORARY LEASE OF A WATER RIGHT An appropriator proposing to temporarily lease a water right pursuant to 85-2-428, MCA, must file an application with the department. An application may be filed only by the owner of record of the water right proposed for lease. The app…

36.12.211 DISQUALIFICATION OF HEARING EXAMINER (REPEALED) Authorizing statute(s): 2-4-201, 85-2-113, MCA Implementing statute(s): 2-4-611, MCA History: NEW, 1984 MAR p. 697, Eff. 4/27/84; REP, 2014 MAR p. 2956, Eff. 12/12/14.

36.12.212 PREHEARING CONFERENCES AND ORDERS Upon written request of a party or by order of the hearing examiner, a prehearing conference may be conducted to: clarify the issues to be determined prior to or at the hearing; establish deadlines for matters including but not limited …

36.12.213 MOTIONS TO HEARING EXAMINER Any party may seek relief by means of an appropriate written motion. Written motions shall clearly state the relief sought by a party and the grounds and authority supporting the entry of an order granting the motion. All motions which assert…

36.12.214 MOTIONS TO DIRECTOR Any party may request that a pending motion, or a motion decided adversely to that party by the hearing examiner before or during the course of the proceeding be certified by the hearing examiner to the director. In deciding what motions should be ce…

36.12.215 DISCOVERY Written discovery may commence upon service of the hearing notice and appointment of hearing examiner. Unless otherwise specified in this rule or order of the hearing examiner, the methods, scope, and procedures of discovery available pursuant to the Montana R…

36.12.216 DEPOSITIONS BY ORAL EXAMINATION Depositions of parties and witnesses by oral examination may be taken in accordance with Rule 30, Montana Rules of Civil Procedure, governing depositions by oral examination. Depositions of parties and witnesses by oral examination may be…

36.12.217 SUBPOENAS Requests for subpoenas for the attendance of witnesses or the production of documents shall be made in writing to the hearing examiner and shall contain a brief statement demonstrating the potential relevance of the testimony or evidence sought and shall ident…

36.12.218 RIGHTS OF PARTIES All parties shall have the right to present evidence, rebuttal testimony and argument with respect to the issues and to cross-examine witnesses. MCA 2-4-612 (1) . Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA Implementing statute(s): Sec…

36.12.219 UNTIMELY OBJECTORS (REPEALED) Authorizing statute(s): 2-4-201, 85-2-113, MCA Implementing statute(s): 2-4-611, 2-4-612, MCA History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; REP, 2014 MAR p. 2956, Eff. 12/12/14.

36.12.220 WITNESSES AND PRE-FILED TESTIMONY Any party may be a witness and may present witnesses at the hearing. The hearing examiner may order anticipated direct examination testimony by experts or other witnesses be prepared in advance and submitted as pre-filed testimony in ei…

36.12.2205 RYE CREEK STREAM DEPLETION ZONE There is designated a Rye Creek Stream Depletion Zone. Rye Creek Stream Depletion Zone means an area of approximately 378.66 acres or 0.59 square miles located approximately ten miles southeast of the town of Darby, Montana in Ravalli Co…

36.12.221 RULES OF EVIDENCE The common law and statutory rules of evidence shall apply only upon stipulation of all parties to the hearing. Otherwise, the hearing examiner may admit all evidence that possesses probative value, including hearsay if it is the type of evidence commo…

36.12.222 CONTINUANCES A motion for continuance of a hearing shall be made pursuant to the requirements of ARM 36.12.213. A motion for continuance filed not less than 10 days prior to the hearing may be granted upon showing of good cause. A motion for continuance filed less than …

36.12.223 HEARING PROCEDURE Unless the hearing examiner determines otherwise a contested case hearing shall be conducted substantially in the following manner: The hearing examiner shall open the hearing and provide a statement that explains or identifies: the subject matter of t…

36.12.224 DISRUPTION OF HEARING It is the duty of the hearing examiner to conduct a fair and impartial hearing and to maintain order. All parties to the hearing, their counsel and any other persons present shall conduct themselves in a respectful manner. Any disregard by parties …

36.12.225 SITE VISIT Upon the hearing examiner's motion or upon the motion of any party, a site visit to the lands involved in the proceeding may be made at any time during the proceeding. The hearing examiner may enter upon lands to view proposed works, sources of water, locatio…

36.12.226 THE RECORD The hearing examiner shall maintain the official record in each contested case proceeding until the issuance of the final order. The record in a contested case shall contain: a complete copy of the application file; all pleadings, motions, intermediate ruling…

36.12.227 VERBATIM RECORD The verbatim record consisting of audio recordings of the contested case hearing shall be transcribed if requested by the hearing examiner. If a petition for judicial review is filed and a party to the proceeding elects to have a written transcription pr…

36.12.228 THE DECISION OR FINAL ORDER Following the close of the record, the hearing examiner shall make a decision or final order pursuant to 2-4-623, MCA. Upon completion, a copy of the decision shall be served upon all parties by: personal service; first class mail; or deposit…

36.12.229 EXCEPTIONS TO THE HEARING EXAMINER'S PROPOSAL FOR DECISION AND THE FINAL DECISION-MAKING PROCESS (REPEALED) Authorizing statute(s): 2-4-201, 85-2-113, MCA Implementing statute(s): 2-4-621, 2-4-622, 2-4-623, MCA History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR …

36.12.230 EX PARTE COMMUNICATIONS Except as provided in (2) no party or representative of a party shall communicate, in connection with any issue of law or fact in a pending contested case, with any person serving as a hearing examiner or as a final decision-maker without notice …

36.12.231 REHEARING A rehearing proceeding is expressly prohibited under these rules, except as otherwise required under 2-4-703 , 2-4-621 and 2-4-622 , MCA. Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA Implementing statute(s): Sec. 2-4-703, 2-4-621, and 2-4-622, …

36.12.232 EMERGENCY PROCEDURES Nothing contained in these rules is intended to preempt, repeal or be in conflict with any rule or statute which provides for acts by the department in an emergency or procedure for conduct by the department in such a situation. Authorizing statute(…