Title 85, Title 85

(1) Because the state of Montana is the owner of all water in the state, pursuant to Article IX, section 3, of the Montana constitution, the legislature recognizes that it is in the state's best interest to ensure that valid issues raised as a result of claims examination in the …

(1) In resolving issue remarks other than through the objection process provided for in 85-2-233, the water court shall proceed as provided in this section. (2) All issue remarks to claims that are not resolved through the filing of an objection as provided in 85-2-233 must be re…

The chief water judge may place a higher priority on hearing objections to claims in a basin than on resolving issue remarks.

For the purposes of 85-2-247 through 85-2-249, "issue remark" means a statement added to an abstract of water right in a water court decree by the department or the water court to identify potential factual or legal issues associated with the claim. The term also includes "gray a…

(Temporary) Findings -- purpose. (1) The purpose of 85-2-271, 85-2-280 through 85-2-282, and this section is to: (a) complete claims examination and the initial decree phase; (b) reexamine claims in basins that were verified and were not subject to the supreme court examination r…

(Temporary) Benchmarks -- action taken if not met -- claims examination priority. (1) (a) The water court shall prioritize basins for the purpose of claims examination and reexamination by the department. (b) The chief water judge has the authority to order that reexamination be …

(Temporary) Water adjudication account. (1) There is a water adjudication account within the state special revenue fund created in 17-2-102. (2) By August 15 of each fiscal year, the state treasurer shall transfer the amount necessary when combined with available and unencumbered…

(Temporary) Reporting requirements. The department and the water court shall: (1) provide quarterly reports to the water policy interim committee in accordance with 5-11-210 on: (a) the progress of the adjudication on a basin-by-basin basis; (b) the number of basins for which exa…

(Temporary) Examination of claims in verified basins. (1) At any time prior to the issuance of a final decree, in basins that were evaluated using the verification process rather than the examination process, the owners of water rights in the basin or a specified area in the basi…

(1) After July 1, 1973, a person may not appropriate water except as provided in this chapter. A person may appropriate water only for a beneficial use. (2) (a) Only the department may appropriate water by permit for transport outside the following river basins: (i) the Clark For…

(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…

A person who desires to convert a nonproductive oil or gas well to a water well shall file a notice of completion or apply for a permit, depending on the maximum appropriation of the well, as otherwise provided in this chapter. The date of appropriation shall be the date of filin…

The state board of land commissioners may, through the department, at its discretion, appropriate any available waters for use upon state lands and authorize the construction of irrigation works for these lands. The appropriation must be made in the same way and under the same la…

A person intending to appropriate water by means of a reservoir shall apply for a permit as prescribed in this chapter.

(1) (a) Except as provided in subsection (1)(b), ground water may be appropriated only by a person who has a possessory interest in the property where the water is to be put to beneficial use and exclusive property rights in the ground water development works. (b) If another pers…

(Temporary) Notice of receipt of application for permit or change in appropriation right -- draft preliminary determination -- extensions -- updated draft preliminary determination -- public comments -- issuance of preliminary determination. (1) On receipt of an application for a…

(Temporary) Objections. (1) (a) The department shall provide notice of the opportunity to object to a preliminary determination issued pursuant to 85-2-307(5). The notice must state that no more than 30 days after the date of publication of the notice, a person may file a written…

(1) If the department determines that an objection to an application for a permit under 85-2-311, an application for a change in appropriation right under 85-2-402, or a notice of change in appropriation right under 85-2-429 states a valid objection, it shall hold a contested cas…

(Temporary) Action on application for permit or change in appropriation right. (1) (a) If the department issues an updated draft preliminary determination or a preliminary determination to deny an application for a permit or a change in appropriation right under 85-2-307, unless …

(1) A permit may be issued under this part prior to the adjudication of existing water rights in a source of supply. In a permit proceeding under this part, there is no presumption that an applicant for a permit cannot meet the statutory criteria of this section prior to the adju…

(1) (a) The department may issue a permit for less than the amount of water requested, but may not issue a permit for more water than is requested or than can be beneficially used without waste for the purpose stated in the application. The department may require modification of …

(1) A permit authorized prior to the issuance of a final decree pursuant to 85-2-234 in the basin where the permit is located is provisional and is subject to that final decree. A person may not obtain any vested right to an appropriation obtained under a provisional permit by vi…

(1) (a) If the work on an appropriation is not commenced, prosecuted, or completed within the time stated in the permit or an extension of the time stated in the permit, if the water is not being applied to the beneficial use contemplated in the permit or change in appropriation …

(1) (a) On actual application of water to the proposed beneficial use within the time allowed, the permittee shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, const…

(1) The state, any political subdivision or agency of the state, or the United States or any agency of the United States may apply to the department to acquire a state water reservation for existing or future beneficial uses or to maintain a minimum flow, level, or quality of wat…

(1) After July 1, 1991, the department may not approve a permit to appropriate ground water in excess of 3,000 acre-feet per year unless: (a) the applicant proves and the department finds that the applicable criteria in 85-2-311 are met; and (b) the department then petitions the …

There is established a water right appropriation account in the state special revenue fund of the state treasury. All fees collected as provided in 85-2-113 shall be deposited in the account to help pay the expenses incurred by the department for administering and enforcing this …

(1) With regard to a highly appropriated basin or subbasin, except as provided in 85-20-1401, the legislature may by law preclude permit applications or the department may by rule reject permit applications or modify or condition permits already issued. (2) A rule may be adopted …

(1) (a) The department shall accept and process an application by the United States department of agriculture, forest service for a change in appropriation right under the provisions of 85-2-402 and this section to protect, maintain, or enhance streamflows to benefit the fishery …

(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 app…

(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…

(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 support…

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…

(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 n…

(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 fil…

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…

(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 applica…

(1) There is an upper Clark Fork River basin steering committee. The steering committee has 22 members, who must be appointed as follows: (a) Each of the six conservation districts in the basin may appoint a member. (b) Each of the six county commissions in the basin may appoint …

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 meanin…

(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…

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" …

(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…

(1) Unless the context requires otherwise, in this section, the following definitions apply: (a) "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. (b) "Bitterroot River basin" means the dra…

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 …

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 cha…

(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 …