Title 85, Title 85

(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 th…

(1) (a) The right to make a change in appropriation right subject to the provisions of this section in an existing water right, a permit, or a state water reservation is recognized and confirmed. In a change in appropriation right proceeding under this section, there is no presum…

(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…

(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 t…

(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…

(1) The district courts shall supervise the distribution of water among all appropriators. This supervisory authority includes the supervision of all water commissioners appointed prior or subsequent to July 1, 1973. The supervision must be governed by the principle that first in…

(1) Except as provided in 85-2-410, an appropriator may not make a temporary change in appropriation right for the appropriator's use or another's use except with department approval in accordance with 85-2-402, 85-2-429, and this section. (2) Except as provided in subsection (9)…

(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 …

(1) An appropriator may lease for a term not to exceed 90 days all or part of an appropriation right for road construction or dust abatement without the prior approval of the department, subject to the requirements of this section. The lease agreement must include the following i…

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 t…

If, by virtue of prior appropriation, a person has diverted all the water of any stream or to an extent that there may not be an amount sufficient left for those having a subsequent right to the waters of the stream and there is, at any time, a surplus of water so diverted, over …

A person who owns or is in possession of lands susceptible of irrigation from any stream, the waters of which are so diminished by prior appropriations that a sufficient amount of water for the irrigation of the person's lands cannot be obtained from the natural flow of the strea…

The right to conduct water from or over the land of another for any beneficial use includes the right to raise any water by means of dams, reservoirs, or embankments to a sufficient height to make the same available for the use intended, and the right to any and all land necessar…

Any person having the right to use, sell, or dispose of water and engage in using, selling, or disposing of the same who has a surplus of water not used or sold or any person having a surplus of water and the right to sell and dispose of the same is required, upon the payment or …

A person desiring to purchase surplus water pursuant to 85-2-415 shall, at the person's own cost and expense, construct or dig the necessary flumes or ditches to receive and convey the surplus water desired by the person and pay or tender to the person having the right to the use…

Any person constructing the necessary ditches, aqueducts, or flumes and making the payments or tenders hereinbefore provided is entitled to the use of so much of the surplus water as said ditches, flumes, or aqueducts have the capacity to carry and for which payment or tender is …

Sections 85-2-415 through 85-2-417 may not be construed to give the person acquiring the right to the use of water, as provided in those sections, the right to sell or dispose of the water after being used by the person or to prevent the original owner or proprietor from retaking…

It is the declared policy of the state in 85-1-101 to encourage the conservation and full use of water. Consistent with this policy, holders of appropriation rights who salvage water may retain the right to the salvaged water for beneficial use. Except for a short-term lease purs…

(1) Subject to 85-2-402 and this section, an appropriator may apply for a change in appropriation right for the purpose of aquifer recharge or mitigation or for the purpose of marketing water for aquifer recharge or mitigation. (2) During the completion period authorized by the d…

The purpose of 85-2-421 through 85-2-424 and 85-2-426 is to facilitate the maintenance of a reliable record of water right ownership.

The chief water judge and the department shall prescribe the form and content of the water right ownership update form.

(1) Except in the case of a transfer of real property served by a public service water supply, when a person presents for recording a deed or other instrument evidencing a transfer of real property, the realty transfer certificate must contain a water rights disclosure in which t…

(1) The department shall by rule prescribe a fee that may not be higher than necessary to cover the cost to the department of updating its water right ownership records. A fee must be paid: (a) at closing when the realty transfer certificate discloses the transfer of a water righ…

(1) Applications to temporarily lease an appropriation right that comply with the requirements of this section are not subject to the provisions of 85-2-402, 85-2-407, 85-2-408, 85-2-410, or 85-2-436. After obtaining approval pursuant to this section, an appropriator may temporar…

(1) (a) An appropriator may change an appropriation right without the prior approval of the department for the purpose of constructing a redundant water supply well in a public water supply system as defined in 75-6-102 if the redundant water supply well: (i) withdraws water from…

(1) A person who fails to comply with the requirements of 85-2-424 is liable for a civil penalty of not more than $300. (2) An action to recover the penalty may be brought by the department and filed in the district court in the county where the real property is located. (3) The …

(1) The department of fish, wildlife, and parks may change an appropriation right, which it either holds in fee simple or leases, to an instream flow purpose of use and a defined place of use to protect, maintain, or enhance streamflows to benefit the fishery resource. (2) The ch…

(1) A water right owner may put water from a well or developed spring with ground water development works located on private land to beneficial use on state trust land for the duration of a state land lease the water right owner holds. (2) The state may not obtain an ownership in…

Unless the context requires otherwise, in this part the following definitions apply: (1) "Aquifer" means any underground geological structure or formation that is capable of yielding water in usable quantities or is capable of recharge. (2) "Aquifer test" means stressing an aquif…

The department may prescribe and enforce reasonable rules concerning and providing for inspection and entry, the circumstances under which the construction of weirs or other measuring devices may be required, and other similar matters that are required by and consistent with the …

For purposes of administration, large ground water areas may be divided into convenient administrative units known as subareas.

Fresh water shall be considered to be water fit for domestic, livestock, or agricultural use. The department, after notice and hearing, may fix definite standards for determining fresh water in any controlled ground water area or subarea of the state.

(1) No ground water may be wasted. The department shall require all wells producing waters that contaminate other waters to be plugged or capped. It shall also require all flowing wells to be so capped or equipped with valves that the flow of water can be stopped when the water i…

(1) The department may by rule designate or modify permanent or temporary controlled ground water areas as provided in this part. The rule for each controlled ground water area must designate the boundaries of the controlled ground water area. (2) The rulemaking process for desig…

(1) A person may appropriate ground water in a controlled ground water area by: (a) applying for and receiving a permit from the department in accordance with part 3 of this chapter; or (b) following the requirements of a rule promulgated pursuant to 85-2-506. (2) The department …

The regulation of the production, use, or disposal of fresh, brackish, or saline water that is entirely the result of the production of oil or gas, or both, must be under the jurisdiction of the board of oil and gas conservation and is subject to the requirements of 82-11-123. He…

(1) The department shall compile information for the purpose of enabling it to comply with this part. In compiling this information, the department shall make use of investigations, technical personnel, surveys, and information available from the Montana bureau of mines and geolo…

The department, the state bureau of mines and geology, or the department of environmental quality may enter on the property of any appropriator where a well is situated, at any reasonable hour of the day, for the purpose of investigating any matters in connection with this part.

Such information as is required or secured under the provisions hereof shall constitute public records and as such shall be available to the public at all reasonable times.

(1) Within 60 days after any well is completed, the driller shall file with the bureau a well log report. (2) Except as provided in subsection (3), the well log report must be filed on a form specified by the department in consultation with the board of water well contractors pro…

The forms, reports, and information required to be filed by this part are in addition to all other reports and information which the drillers of water wells in the state are required by law to file with agencies of the state.

(1) Aquifer tests required by a state agency must be forwarded by the agency to the bureau. (2) Except as provided in subsection (3), the aquifer test report must be filed on a form specified by the department in consultation with the department of environmental quality and the b…

The department shall adopt rules for the purpose of implementing 85-2-506 and other controlled ground water area statutes. The rules must include but are not limited to petition requirements and the hearing procedure and process for controlled ground water areas.

Municipalities, counties, conservation districts, and local water quality districts may establish specific criteria for acceptance of an application to the municipality, county, conservation district, or local water quality district to petition for creation of a controlled ground…

(1) The Montana bureau of mines and geology shall develop and implement a ground water investigation program for the purpose of collecting and compiling ground water and aquifer data. The program shall gather data, compile existing information, conduct field studies, and prepare …

The legislature, noting that appropriations have been claimed, that applications have been filed for, and that there is further widespread interest in making substantial appropriations of water in the Yellowstone River basin, finds that these appropriations threaten the depletion…