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1 HOUSE BILL NO. 704
2 INTRODUCED BY M. VINTON, S. VINTON, S. FITZPATRICK, C. GLIMM
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING GROUND WATER LAWS; REVISING
5 EXCEPTIONS FROM WATER RIGHT PERMITTING; REVISING LAWS INVOLVING THE DESIGNATION OF
6 CONTROLLED GROUND WATER AREAS; PROVIDING FOR TEMPORARY LEGISLATIVE CONTROLLED
7 GROUND WATER CLOSURE AND MONITORING AREAS; PROVIDING RULEMAKING AUTHORITY;
8 AMENDING SECTIONS 85-2-113, 85-2-306, 85-2-381, 85-2-506, AND 85-2-524, MCA; AND PROVIDING AN
9 IMMEDIATE EFFECTIVE DATE AND A TERMINATION DATE.”
10
11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
12
13 NEW SECTION. Section 1.
14 (1) Pending the outcome of a groundwater study provided for in 85-2-506(3)(a)(i) and
15 subject to subsection (2), ground water may only be appropriated by a permit issued pursuant to 85-2-302 in
16 the following temporary legislative controlled ground water closure areas as designated by the department:
17 (a) the Gallatin Valley aquifer within the department administrative boundary 41H, including the
18 unconsolidated basin-fill sediments up to the consolidated bedrock contact and where it is not present to the
19 surface hydrologic divide between major subbasins;
20 (b) the Helena Valley aquifer within the department administrative boundary 41I, including the
21 unconsolidated basin-fill sediments up to the consolidated bedrock contact and where it is not present to the
22 surface hydrologic divide between major subbasins;
23 (c) the Bitterroot Valley aquifer within the department administrative boundary 76H, including the
24 unconsolidated basin-fill sediments up to the consolidated bedrock contact and where it is not present to the
25 surface hydrologic divide between major basins; and
26 (d) the Missoula Valley aquifer within the department administrative boundary 76M, including the
27 unconsolidated basin-fill sediments up to the consolidated bedrock contact and where it is not present to the
28 surface hydrologic divide between major basins. ****
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1 (2) In a temporary legislative controlled groundwater closure area pursuant to subsection (1), a
2 ground water appropriation:
3 (a) must appropriate ground water by a permit issued pursuant to 85-2-302, except the department
4 may authorize an appropriation for up to 0.5 acre-feet a year without a permit for:
5 (i) a single living unit on a tract of record in existence on January 1, 2025, when connection to a
6 public water system is infeasible;
7 (ii) stockwater; or
8 (iii) a parcel of land divided pursuant to Title 76, chapter 3 or 4, when the appropriation is 35
9 gallons a minute or less and:
10 (A) the parcel was created through a division of a tract of record as defined in 76-3-103 and in
11 existence on February 14, 2024;
12 (B) water use is limited to use on no more than 24 parcels created pursuant to subsection
13 (2)(a)(iii)(A);
14 (C) the volume of water appropriated for a parcel does not exceed 0.5 acre-feet a year; and
15 (D) the cumulative volume of water for the tract described in subsection (2)(a)(iii)(A) does not
16 exceed a total of 12 acre-feet a year;
17 (b) may not change the purpose of a water right excepted from permitting pursuant to subsection
18 (2)(a);
19 (c) must meter and report all new water rights and authorizations pursuant to 85-2-306, 85-2-311,
20 and 85-2-402. A totalizing metering device must be used and measurements must be reported annually to the
21 department on a form provided by the department.
22 (d) may not appropriate ground water pursuant to 85-2-306, except for the completion of
23 appropriation for parcels created after October 17, 2014, that have received a certificate of subdivision approval
24 from the department of environmental quality and a predetermination letter from the department before
25 February 14, 2024.
26 (3) Subject to subsection (4), the following areas are established as legislative controlled
27 groundwater monitoring areas as defined by the department:
28 (a) Flathead Valley deep and shallow aquifers within the department administrative boundary ****
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1 76LJ, including the unconsolidated basin-fill sediments up to the consolidated bedrock contact and where it is
2 not present to the surface hydrologic divide between major basins; and
3 (b) Billings terrace level 3 aquifer within the department administrative boundary 43Q up to the
4 consolidated bedrock contact and where it is not present to the terrace level 2 contact as described in literature
5 published by the bureau.
6 (4) A legislative controlled ground water monitoring area must include:
7 (a) a provision requiring metering and reporting for all new water rights and authorizations issued
8 pursuant to 85-2-306, 85-2-311, and 85-2-402 in a legislative controlled ground water monitoring area. A
9 totalizing metering device must be used and measurements must be reported annually to the department on a
10 form provided by the department.
11 (b) a department review of the monitoring data at least once each biennium to determine if a
12 change in status is needed.
13
14 Section 85-2-113, MCA, is amended to read:
15 "85-2-113. (1) The department may prescribe fees or service
16 charges for any public service rendered by the department under this chapter, including fees for the filing of
17 applications or for the issuance of permits and certificates, for rulemaking hearings under 85-2-319, for
18 administrative hearings conducted under this chapter, for investigations concerning permit revocation, for field
19 verification of issued and completed permits, and for all change approvals. There may not be fees for any
20 action taken by the department at the request of the water judge or for the issuance of certificates of existing
21 rights.
22 (2) The department may adopt rules necessary to implement and carry out the purposes and
23 provisions of this chapter. These rules may include but are not limited to rules to:
24 (a) govern the issuance and terms of interim permits authorizing an applicant for a regular permit
25 under this chapter to begin appropriating water immediately, pending final approval or denial by the department
26 of the application for a regular permit;
27 (b) require the owner or operator of appropriation facilities to install and maintain suitable
28 controlling and measuring devices and to report data, except that the department may not require a meter on a ****
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1 water well outside of a controlled ground water area or proposed controlled ground water area unless the
2 maximum appropriation of the well is in excess of the limitation contained in 85-2-306;
3 (c) require the owner or operator of appropriation facilities to report to the department the readings
4 of measuring devices at reasonable intervals and to file reports on appropriations; and
5 (d) regulate the construction, use, and sealing of wells to prevent the waste, contamination, or
6 pollution of ground water.
7 (3) The department shall adopt rules providing for and governing temporary emergency
8 appropriations, including for emergency fire training and emergency fire-related operations, without prior
9 application for a permit, necessary to protect lives or property.
10 (4) (a) The department shall adopt rules to require the owner or operator of an appropriation facility
11 on a watercourse or portions of a watercourse identified as chronically dewatered by the department under 85-
12 2-150 to acquire, install, and maintain a suitable controlling and measuring device no later than 2 years after
13 designation of the watercourse or portions of the watercourse as chronically dewatered, except that when the
14 department specifically finds that the installation of measuring devices along the entire watercourse or portions
15 of the watercourse is not practicable within the 2-year deadline, it may establish a later deadline.
16 (b) For the purposes of subsection (4), an appropriation facility includes but is not limited to any
17 method used to divert, impound, or withdraw water from a watercourse. Hydroelectric facilities that are using
18 recognized methods of flow measurement, as determined by the department, are in compliance with subsection
19 (4)."
20
21 Section 85-2-306, MCA, is amended to read:
22 "85-2-306. (1) (a) Except as provided in subsection (1)(b),
23 ground water may be appropriated only by a person who has a possessory interest in the property where the
24 water is to be put to beneficial use and exclusive property rights in the ground water development works.
25 (b) If another person has rights in the ground water development works, water may be
26 appropriated with the written consent of the person with those property rights or, if the ground water
27 development works are on national forest system lands, with any prior written special use authorization required
28 by federal law to occupy, use, or traverse national forest system lands for the purpose of diversion, ****
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1 impoundment, storage, transportation, withdrawal, use, or distribution of water under the certificate.
2 (c) If the person does not have a possessory interest in the real property from which the ground
3 water may be appropriated, the person shall provide to the owner of the real property written notification of the
4 works and the person's intent to appropriate ground water from the works. The written notification must be
5 provided to the landowner at least 30 days prior to constructing any associated works or, if no new or expanded
6 works are proposed, 30 days prior to appropriating the water. The written notification under this subsection is a
7 notice requirement only and does not create an easement in or over the real property where the ground water
8 development works are located.
9 (2) Inside the boundaries of a controlled ground water area, ground water may be appropriated
10 only:
11 (a) according to a permit received pursuant to 85-2-508; or
12 (b) according to the requirements of a rule promulgated pursuant to 85-2-506.
13 (3) A permit is not required for an appropriation within the Rye Creek stream depletion zone in
14 Ravalli County by means of a well or developed spring if the appropriation is 20 gallons a minute or less and
15 does not exceed 2 acre-feet a year, except that a combined appropriation from the same source by two or more
16 wells or developed springs exceeding 20 gallons a minute or 2 acre-feet a year requires a permit.
17 (3)(4) (a) Outside the boundaries of a controlled ground water area, a permit is not required before
18 appropriating ground water by means of a well or developed spring:
19 (i) when the appropriation is made by a local governmental fire agency organized under Title 7,
20 chapter 33, and the appropriation is used only for emergency fire protection, emergency fire training, and
21 emergency fire-related operations, which may include enclosed storage;
22 (ii) when a maximum appropriation of 350 gallons a minute or less is used in nonconsumptive
23 geothermal heating or cooling exchange applications, all of the water extracted is returned without delay to the
24 same source aquifer, and the distance between the extraction well and both the nearest existing well and the
25 hydraulically connected surface waters is more than twice the distance between the extraction well and the
26 injection well;
27 (iii) for an appropriation on a parcel of land not being divided pursuant to Title 76, chapter 3 or 4,
28 when the appropriation is outside a stream depletion zone, is 35 gallons a minute or less, and does not exceed ****
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1 10 acre-feet a year, except that a combined appropriation from the same source by two or more wells or
2 developed springs exceeding 10 acre-feet, regardless of the flow rate, requires a permit; or. The department
3 shall consider the following factors when evaluating if two or more wells or developed springs are a combined
4 appropriation:
5 (A) a physically manifold water system;
6 (B) the purpose or purposes of use;
7 (C) place of use;
8 (D) tract information;
9 (E) ownership;
10 (F) proximity of wells or developed springs;
11 (G) source of the water; and
12 (H) topography.
13 (iv) for a parcel with a certificate of subdivision approval from the department of environmental
14 quality before February 14, 2024. The water uses for the subdivision lots and volumes allocated by the
15 department predetermination letter define the amount of water allowed to be appropriated without a permit
16 under this subsection (4).
17 (iv) when the appropriation is within a stream depletion zone, is 20 gallons a minute or less, and
18 does not exceed 2 acre-feet a year, except that a combined appropriation from the same source by two or more
19 wells or developed springs exceeding this limitation requires a permit.
20 (v) for an appropriation on a parcel of land divided pursuant to Title 76, chapter 3 or 4, when the
21 appropriation is 35 gallons a minute or less and:
22 (A) (I) the parcel was created through a division of a tract of record as defined in 76-3-103 and in
23 existence on February 14, 2024;
24 (II) water use is limited to use on no more than 24 parcels created pursuant to subsection
25 (4)(a)(v)(A)(I);
26 (III) the volume of water appropriated for a parcel does not exceed 0.5 acre-feet for each acre of
27 land and does not exceed 1 acre-foot total a year on parcels less than 20 acres or does not exceed 3 acre-feet
28 a year on parcels larger than 20 acres; and ****
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1 (IV) the cumulative volume of water for the tract of record described in subsection (4)(a)(v)(A)(I)
2 does not exceed a total of 24 acre-feet a year; or
3 (B) if the parcel was divided from a tract of record as defined in 76-3-103 and in existence on or
4 before October 17, 2014, and received a certificate of subdivision approval from the department of
5 environmental quality and a predetermination letter from the department before February 14, 2024, then the
6 water uses for the subdivision lots and the volumes allocated in the predetermination letter define the amount of
7 water allowed without a permit under the exception under this subsection (4) and will count toward the
8 maximum cumulative volume limit in subsection (4)(a)(v)(A)(IV).
9 (b) (i) The water appropriated under subsection (4)(a)(v) must be measured and reported annually
10 to the department. A totalizing metering device must be used and the measurements must be reported annually
11 on a form provided by the department.
12 (ii) An appropriation exceeding the amounts or conditions in subsection (4)(a)(v) requires a permit.
13 (b)(c) (i) Within 60 days of completion of the well or developed spring and appropriation of the ground
14 water for beneficial use, the appropriator shall file a notice of completion with the department on a form
15 provided by the department through its offices.
16 (ii) Upon receipt of the notice, the department shall review the notice and may, before issuing a
17 certificate of water right, return a defective notice for correction or completion, together with the reasons for
18 returning it. A notice does not lose priority of filing because of defects if the notice is corrected, completed, and
19 refiled with the department within 30 days of notification of defects or within a further time as the department
20 may allow, not to exceed 6 months.
21 (iii) If a notice is not corrected and completed within the time allowed, the priority date of
22 appropriation is the date of refiling a correct and complete notice with the department.
23 (c)(d) A certificate of water right may not be issued until a correct and complete notice has been filed
24 with the department, including proof of landowner notification or a written federal special use authorization as
25 necessary under subsection (1). The original of the certificate must be sent to the appropriator. The department
26 shall keep a copy of the certificate in its office in Helena. The date of filing of the notice of completion is the date
27 of priority of the right.
28 (d)(e) (i) Construction of a water supply system subject to Title 75, chapter 6, part 1, and use of a ****
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1 permit exception for the appropriation of water pursuant to this section is proof of beneficial use.
2 (ii) The department shall allocate a volume of 10 acre-feet a year to the system and issue a
3 certificate of water right after the conditions in subsection (3)(d)(i) (4)(e)(i) are met.
4 (iii) The department shall consider a water right as perfected after the conditions in subsection
5 (3)(d)(i) (4)(e)(i) are met.
6 (iv) When the appropriation is for a water supply system that is subject to Title 75, chapter 6, part 1,
7 and is located outside of a stream depletion zone and does not exceed 10 acre-feet a year:
8 (A) For the purposes of subsection (3)(b)(i) (4)(c)(i), the appropriation will be considered perfected
9 upon completion of construction of the water supply system.
10 (B) A copy of the department of environmental quality approval for the water supply system must
11 be submitted with the notice of completion. This section does not preclude the public water supply developer or
12 any subsequent owners from expanding the water system or from revising the water use restrictions within the
13 subdivision, provided that the total amount does not exceed 10 acre-feet per year.
14 (C) Water appropriated under this exception must be measured and reported annually to the
15 department.
16 (4)(5) An appropriator of ground water by means of a well or developed spring first put to beneficial
17 use between January 1, 1962, and July 1, 1973, who did not file a notice of completion, as required by laws in
18 force prior to April 14, 1981, with the county clerk and recorder shall file a notice of completion, as provided in
19 subsection (3) (4), with the department to perfect the water right. The filing of a claim pursuant to 85-2-221 is
20 sufficient notice of completion under this subsection. The priority date of the appropriation is the date of the
21 filing of a notice, as provided in subsection (3) (4), or the date of the filing of the claim of existing water right.
22 (5)(6) An appropriation under subsection (4) (5) is an existing right, and a permit is not required.
23 However, the department shall acknowledge the receipt of a correct and complete filing of a notice of
24 completion, except that for an appropriation of 35 gallons a minute or less, not to exceed 10 acre-feet a year,
25 the department shall issue a certificate of water right. If a certificate is issued under this section, a certificate
26 need not be issued under the adjudication proceedings provided for in 85-2-236.
27 (6)(7) A permit is not required before constructing an impoundment or pit and appropriating water for
28 use by livestock if: ****
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1 (a) the maximum capacity of the impoundment or pit is less than 15 acre-feet;
2 (b) the appropriation is less than 30 acre-feet a year;
3 (c) the appropriation is from an ephemeral stream, an intermittent stream, or another source other
4 than a perennial flowing stream; and
5 (d) the impoundment or pit is to be constructed on and will be accessible to a parcel of land that is
6 owned or under the control of the applicant and that is 40 acres or larger.
7 (7)(8) (a) Within 60 days after constructing an impoundment or pit, the appropriator shall apply for a
8 permit as prescribed by this part. Subject to subsection (7)(b) (8)(b), upon receipt of a correct and complete
9 application for a stock water provisional permit, the department shall automatically issue a provisional permit. If
10 the department determines after a hearing that the rights of other appropriators have been or will be adversely
11 affected, it may revoke the permit or require the permittee to modify the impoundment or pit and may then make
12 the permit subject to terms, conditions, restrictions, or limitations that it considers necessary to protect the rights
13 of other appropriators.
14 (b) If the impoundment or pit is on national forest system lands, an application is not correct and
15 complete under this section until the applicant has submitted proof of any written special use authorization
16 required by federal law to occupy, use, or traverse national forest system lands for the purpose of diversion,
17 impoundment, storage, transportation, withdrawal, use, or distribution of water under the permit.
18 (c) The purpose of use authorized for a provisional permit pursuant to subsection (9) may not be
19 changed pursuant to 85-2-402.
20 (8)(9) A person may also appropriate water without applying for or prior to receiving a permit under
21 rules adopted by the department under 85-2-113.
22 (9)(10) Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior
23 boundaries of the Flathead Indian reservation."
24
25 Section 85-2-381, MCA, is amended to read:
26 "85-2-381.
27 (1) The legislature finds that:
28 (a) the state of Montana has managed the allocation of water under the prior appropriation ****
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1 doctrine for more than 100 years;
2 (b) Article IX, section 3, of the Montana constitution recognizes and confirms all existing water
3 rights;
4 (c) the right to the use of water through a water right is a recognized property right;
5 (d) the development of ground water wells that are exempt from permitting may have an adverse
6 effect on other water rights;
7 (e) the Water Use Act requires the department to coordinate the development and use of the water
8 resources of the state so as to effect full utilization, conservation, and protection of its water resources; and
9 (f) the ability to develop ground water wells that are exempt from permitting contributes to the full
10 utilization of the water resources of the state.
11 (2) The establishment of a stream depletion zone pursuant to 85-2-380 provides a conclusive,
12 scientific basis for determining where ground water rights that are exempt from permitting are affecting senior
13 surface water rights.
14 (3) The purpose of this section is to continue allocating water under the exemptions provided for in
15 85-2-306 while providing a process by which senior water right holders may protect their rights under the prior
16 appropriation doctrine. Nothing in this section is intended to limit the ability of a senior water right holder to
17 enforce a water right or limit that enforcement to a specific area. Creation of a stream depletion zone is not a
18 prerequisite to an enforcement action.
19 (4) Any use of water granted by a certificate of water right pursuant to 85-2-306(3)(a) is subject to
20 enforcement according to priority by:
21 (a) any remedy legally available;
22 (b) the department, upon receiving a complaint, through the provisions of 85-2-114 and 85-2-122;
23 or
24 (c) a water commissioner appointed pursuant to 85-5-101.
25 (5) For each certificate issued pursuant to 85-2-306(3)(a) after October 1, 2013, the department
26 shall include written notice of the provisions of this section."
27
28 Section 85-2-506, MCA, is amended to read: ****
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1 "85-2-506. (1) The department may
2 by rule designate or modify permanent or temporary controlled ground water areas as provided in this part. The
3 rule for each controlled ground water area must designate the boundaries of the controlled ground water area.
4 (2) There are four types of controlled ground water areas for:
5 (a) public health, safety, and welfare;
6 (b) temporary public health, safety, and welfare;
7 (c) water quantity; and
8 (d) ground water monitoring for water quantity.
9 (2)(3) The department may initiate the rulemaking process for designation or modification of a
10 controlled ground water area may be initiated by after submission of a correct and complete petition for:
11 (a) the department;
12 (b) submission of a correct and complete petition from a state or local public health agency for
13 identified public health risks; or
14 (c) submission of a correct and complete petition:
15 (i) by a municipality, county, conservation district, or local water quality district formed under Title
16 7, chapter 13, part 45; or
17 (ii) signed by at least one-third of the water right holders in a proposed controlled ground water
18 area.
19 (a) a public health, safety, and welfare controlled ground water area pursuant to subsection (6), by
20 the department, a state or local public health agency, a municipality, county, conservation district, or local water
21 quality district formed under Title 7, chapter 13, part 45, the department of environmental quality, or at least
22 one-third of the water right holders in a proposed area; or
23 (b) a water quantity controlled ground water area pursuant to subsections (8) and (9), by the
24 department of environmental quality, or at least one-third of the water right holders in a proposed area.
25 (3)(4) (a) A correct and complete petition must:
26 (i) be in a form prescribed by the department and must contain analysis prepared by a
27 hydrogeologist, a qualified scientist, or a qualified licensed professional engineer concluding that one or more of
28 the criteria provided in subsection (5) subsections (6) through (9) are met; and ****
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1 (ii) describe proposed measures, if any, to mitigate effects of the criteria identified in subsection (5)
2 (6) or (7) that are alleged in the petition.
3 (b) For petitions submitted pursuant to subsection (8) or (9), the data collection and analysis must
4 be conducted by the ground water investigation program established in 2-15-1523 if greater than 50% of the
5 water right holders whose point of diversion falls within the proposed area petition the department.
6 (b)(c) When the department proposes a rule pursuant to this section, the place for the hearing must
7 be within or as close as practical to the proposed or existing controlled ground water area.
8 (c)(d) (i) The department shall notify the petitioner of any defects in a petition within 180 days. If the
9 department does not notify the petitioner of any defects within 180 days, the petition must be treated as correct
10 and complete.
11 (ii) A petition that is not made correct and complete within 90 days from the date of notification by
12 the department of any defect is terminated.
13 (4)(5) (a) Within 60 days after a petition is determined to be correct and complete, the department
14 shall:
15 (i) deny in writing the petition in whole or in part, stating the reasons for denial;
16 (ii) inform the petitioner that the department will study the information presented in the petition for
17 a period not to exceed 90 days before denying or proceeding with the petition; or
18 (iii) initiate rulemaking proceedings in accordance with Title 2, chapter 4, part 3.
19 (b) Failure of the department to act under subsection (4)(a) (5)(a) does not mandate that the
20 department grant the petition for rulemaking.
21 (c) In addition to the notice requirements of Title 2, chapter 4, parts 1 through 4, the department
22 shall provide public notice of the rulemaking hearing by:
23 (i) publishing a notice at least once each week for 3 successive weeks, with the first notice not
24 less than 30 days before the date of the hearing in a newspaper of general circulation in the county or counties
25 in which the proposed controlled ground water area is located;
26 (ii) serving by mail a copy of the notice, not less than 30 days before the hearing, upon each
27 person or public agency known from an examination of the records of the department to be a water right holder
28 with a diversion within the proposed controlled ground water area, all landowners of record within the proposed ****
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1 controlled ground water area, and each well driller licensed in Montana whose address is within any county in
2 which any part of the proposed controlled ground water area is located; and
3 (iii) serving by mail a copy of the notice upon any other person or state or federal agency that the
4 department feels may be interested in or affected by the proposed designation or modification of a controlled
5 ground water area.
6 (d) The notice under subsection (4)(c) (5)(c) must include a summary of the basis for the proposed
7 rule. Publication and mailing of the notice as prescribed in this section, when completed, is considered to be
8 sufficient notice of the hearing to all interested persons.
9 (5)(6) (a) The department may designate a permanent public health, safety, and welfare controlled
10 ground water area by rule if it finds by a preponderance of the evidence that any of the following criteria have
11 been met and cannot be appropriately mitigated:
12 (a)(i) current or projected reductions of recharge to the aquifer or aquifers in the proposed controlled
13 ground water area will cause ground water levels to decline to the extent that water right holders cannot
14 reasonably exercise their water rights;
15 (b)(ii) current or projected ground water withdrawals from the aquifer or aquifers in the proposed
16 controlled ground water area have reduced or will reduce ground water levels or surface water availability
17 necessary for water right holders to reasonably exercise their water rights;
18 (c)(iii) current or projected ground water withdrawals from the aquifer or aquifers in the proposed
19 controlled ground water area have induced or altered or will induce or alter contaminant migration exceeding
20 relevant water quality standards;
21 (d)(iv) current or projected ground water withdrawals from the aquifer or aquifers in the proposed
22 controlled ground water area have impaired or will impair ground water quality necessary for water right holders
23 to reasonably exercise their water rights based on relevant water quality standards;
24 (e)(v) ground water within the proposed controlled ground water area is not suited for beneficial use;
25 or
26 (f)(vi) public health, safety, or welfare is or will become at risk.
27 (b) A public health, safety, and welfare controlled ground water area may include provisions for:
28 (i) closing a controlled ground water area to further appropriations of ground water; ****
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1 (ii) restricting the development of future ground water appropriations in the controlled ground water
2 area by flow, volume, purpose, aquifer, depth, water temperature, water quality, density, or other criteria the
3 department determines are necessary;
4 (iii) requiring measurement of future ground water or surface water appropriations;
5 (iv) requiring the filing of notice on land records within the boundary of a permanent controlled
6 ground water area to inform prospective holders of an interest in the property of the existence of a permanent
7 controlled ground water area. This notice of the designation must be removed or modified as necessary to
8 accurately reflect the modification or repeal of a permanent designation within 60 days.
9 (v) requiring well spacing, constraining well construction, and requiring prior approval from the
10 department before well drilling unless the well is regulated pursuant to Title 82, chapter 11;
11 (vi) mitigating ground water withdrawals;
12 (vii) testing water quality;
13 (viii) requiring data reporting to the department; and
14 (ix) requiring other provisions the department determines are appropriate and adopts through
15 rulemaking.
16 (6)(7) (a) If the department finds that sufficient facts are not available to designate a permanent public
17 health, safety, and welfare controlled ground water area, it may designate by rule a temporary public health,
18 safety, and welfare controlled ground water area to allow studies to obtain the facts needed to determine
19 whether or not it is appropriate to designate a permanent controlled ground water area. The department shall
20 set the length of time that the temporary controlled ground water area will be in effect. Subject to subsection
21 (6)(c) (7)(c), the term of a temporary controlled ground water area may be extended by rule.
22 (b) A temporary public health, safety, and welfare controlled ground water area designation is for
23 the purpose of study and cannot include the control provisions provided in subsection (7) (6), other than
24 measurement, water quality testing, and reporting requirements.
25 (c) A temporary public health, safety, and welfare controlled ground water area designation may
26 not exceed a total of 6 years, including any extensions.
27 (d) Prior to expiration of a temporary public health, safety, and welfare controlled ground water
28 area, the department may amend or repeal the rule establishing the temporary controlled ground water area or ****
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1 may designate a permanent controlled ground water area through the rulemaking process under this section.
2 (e) Studies for temporary public health, safety, and welfare controlled ground water areas may be
3 considered for funding under the renewable resource grant and loan program in Title 85, chapter 1, part 6.
4 (f) If there is a ground water investigation program within the bureau, the ground water
5 assessment steering committee established by 2-15-1523 shall consider temporary public health, safety, and
6 welfare controlled ground water areas for study.
7 (7) A controlled ground water area may include but is not limited to the following control provisions:
8 (a) a provision closing the controlled ground water area to further appropriation of ground water;
9 (b) a provision restricting the development of future ground water appropriations in the controlled
10 ground water area by flow, volume, purpose, aquifer, depth, water temperature, water quality, density, or other
11 criteria that the department determines necessary;
12 (c) a provision requiring measurement of future ground water or surface water appropriations;
13 (d) a provision requiring the filing of notice on land records within the boundary of a permanent
14 controlled ground water area to inform prospective holders of an interest in the property of the existence of a
15 permanent controlled ground water area. Notice of the designation must be removed or modified as necessary
16 to accurately reflect modification or repeal of a permanent designation within 60 days.
17 (e) a provision for well spacing requirements, well construction constraints, and prior department
18 approval before well drilling, unless the well is regulated pursuant to Title 82, chapter 11;
19 (f) a provision for mitigation of ground water withdrawals;
20 (g) a provision for water quality testing;
21 (h) a provision for data reporting to the department; and
22 (i) other control provisions that the department determines are appropriate and adopts through
23 rulemaking.
24 (8) (a) The department shall designate or modify a water quantity controlled ground water area by
25 rule if:
26 (i) the department finds by a preponderance of the evidence that there are over 125 wells using
27 ground water exempt from permitting pursuant to 85-2-306 a square mile;
28 (ii) the department determines: ****
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1 (A) that the ground water level is declining or is projected to decline due to pumping based on a 6-
2 year period of review, which demonstrates a chronic lowering of the ground water table or permanent loss of
3 aquifer storage. This review must be based on available data or consultation with the bureau or other relevant
4 agencies.
5 (B) that 80% or more of the ground water in the aquifer has been appropriated; or
6 (C) that 100% or more of the legally available hydraulically connected surface water has been
7 appropriated during any month. Ground water that is hydrologically connected to surface water is all ground
8 water that, if extracted, may cause stream depletion by induced filtration or pre-stream capture of tributary
9 water.
10 (iii) a study conducted under the ground water investigation program established in 2-15-1523
11 determines that groundwater withdrawals will result in a measurable net depletion of surface water, resulting in
12 adverse effects to prior appropriators.
13 (b) Control provisions for a water quantity controlled ground water area must include but are not
14 limited to:
15 (i) closing the water quantity controlled ground water area to all exceptions from the permitting
16 process pursuant to 85-2-306, except for those specific appropriations authorized by rule pursuant to this
17 section;
18 (ii) requiring metering and reporting for all new water rights and authorizations issued pursuant to
19 85-2-306, 85-2-311, and 85-2-402 in water quantity controlled ground water areas. A totalizing metering device
20 must be used, and the measurements must be reported annually to the department on a form provided by the
21 department.
22 (iii) allowing for the completion of appropriations on parcels created after October 17, 2014, that
23 received a certificate of subdivision approval from the department of environmental quality and a
24 predetermination letter from the department before February 14, 2024;
25 (iv) closing an aquifer area to all exceptions from the permitting process pursuant to 85-2-306,
26 except for appropriations pursuant to subsection (8)(b)(iii) or one exception allowing for up to 0.5 acre-feet a
27 year without a permit that is authorized by the department for a single living unit on a tract of record when
28 connection to a public water system is infeasible or for stock water. A change in the purpose of a water right ****
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1 excepted from permitting pursuant to this subsection (8)(b)(iv) is prohibited.
2 (v) requiring other control provisions the department determines are appropriate and adopts
3 through rulemaking.
4 (9) (a) The department shall designate or modify a water quantity ground water monitoring area by
5 rule if it finds by a preponderance of the evidence that there is a high concentration of ground water exempt
6 from permitting pursuant to 85-2-306(4) and the department:
7 (i) determines the ground water level is declining or is projected to decline due to pumping based
8 on a review of the most recent 10-year period of record that demonstrates a chronic lowering of the ground
9 water table or permanent loss of aquifer storage. This review must be based on available data or in consultation
10 with the bureau or other relevant agencies.
11 (ii) determines that 70% or more of the ground water in the aquifer has been appropriated;
12 (iii) determines that aquifer recharge is reliant on irrigation losses or where the geologic structure
13 or formation has limited storage or limited storage potential based on available data or in consultation with the
14 bureau or other relevant agencies; or
15 (iv) determines that 90% or more of the hydraulically connected surface water has been
16 appropriated during any month.
17 (b) (i) Control provisions for water quantity ground water monitoring areas must include but are not
18 limited to:
19 (A) requiring the department to develop a monitoring plan for each designated ground water
20 monitoring area in consultation with the bureau or other relevant agencies; and
21 (B) requiring metering and reporting for all new water rights and authorizations issued pursuant to
22 85-2-311, 85-2-306, and 85-2-402 in water quantity ground water monitoring areas. A totalizing metering device
23 must be used, and the measurements must be reported annually to the department on a form provided by the
24 department.
25 (ii) The department shall review the monitoring data and plan provided for in subsection (9)(b)(i)(A)
26 each biennium to determine if a change in area status is necessary.
27 (10) (a) The department may initiate rulemaking for the modification or removal of an area
28 designated pursuant to subsections (6) through (9) if the area no longer meets the designation criteria. ****
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1 (b) A petition may be filed pursuant to subsection (3) to modify or remove an area designated
2 pursuant to subsections (6) through (9). The petitioner shall demonstrate how the designated area no longer
3 meets the designation criteria. If the petitioner proves the criteria are no longer being met, the department shall
4 modify or remove the designation.
5 (c) The entities in subsection (3) may file a petition to modify or remove a designated area to the
6 department.
7 (8)(11) Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior
8 boundaries of the Flathead Indian reservation."
9
10 Section 85-2-524, MCA, is amended to read:
11 "85-2-524. Municipalities, counties, conservation districts, and
12 local water quality districts may establish specific criteria for acceptance of an application to the municipality,
13 county, conservation district, or local water quality district to petition for creation of a controlled ground water
14 area and other criteria necessary to implement this part. Those criteria may include but are not limited to:
15 (1) the submission of substantial credible evidence that one or more of the criteria provided in 85-
16 2-506(5) are met;
17 (2) a description of proposed measures, if any, to mitigate effects of the criteria identified in 85-2-
18 506(5);
19 (3) a description of proposed studies for a temporary controlled ground water area;
20 (4) a requirement that an application be supported by owners of at least one-fourth of the water
21 rights with a point of diversion of water within the boundaries of the proposed controlled ground water area;
22 (5) a requirement that an applicant pay an application or processing fee for the application; and
23 (6) a description of proposed funding for studies for a controlled ground water area."
24
25 NEW SECTION. Section 7. [Section 1] is intended to be codified as an
26 integral part of Title 85, chapter 2, part 5, and the provisions of Title 85, chapter 2, part 5, apply to [section 1].
27
28 NEW SECTION. Section 8. [This act] is effective on passage and approval. ****
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2 NEW SECTION. Section 9. [Section 1] terminates January 1, 2032.
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