In typical Headwaters State fashion, you can expect more legislation focused on water to arise during this year’s Legislative Session. Montana’s Water Policy Interim Committee (WPIC), a joint bipartisan committee of the Legislature, has approved eight bills for introduction. Of particular note are two bills that aim to simplify the process of changing a water right.
Currently, any change in point of diversion, place of use, purpose of use, or place of storage of a water right necessitates a water user participate in the change of water right process overseen by DNRC. A change in irrigation method is not defined as a change in water right. An applicant for a change of water right must prove, through a preponderance of evidence, that the change will not cause adverse effects to other water rights. This includes analysis of historic diversions, historic consumption, and historic return flows. Consequently, the process has become both time consuming and expensive.
The change process is important to agriculture and developers. Efforts to simplify the change process cannot threaten senior water rights. By the same token, the process shouldn’t be so burdensome that it impedes upon agricultural interests. In the interim, WPIC endeavored to find solutions to the change process that both ease the burden on applicants while protecting senior water rights. Their efforts culminated into two pieces of legislation:
· “An Act modifying a deadline to correct and complete an application for permit or change in appropriation right.”
o The language presented in this bill would afford an applicant in a change proceeding additional time to respond to deficiencies in a change application. Currently, an applicant is provided 30 days before losing their priority date. They may, however, opt to extend that date to no longer than 90 days. This bill would extend the afforded 30 days to 120 days. Read the full text of LCw003.
· “An Act clarifying that legal availability analysis does not determine adverse effects as a criteria for a water rights change application.”
o This bill makes a statutory clarification, for the purpose of a water change application, that the adverse effects analysis done by DNRC is specific to the proposed change and that the department’s legal availability analysis in 85-2-311(1)(a)(ii) cannot be a presumption of adverse effects. Essentially, it specifies that depletion does not equate adverse effect. Read the full text of LCw04a.
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