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Montana Water Access and Water Rights (19-MT-a)

In Montana, geothermal fluid is considered a water resource. A developer must secure a water right before diverting geothermal resources, unless an exception applies. State water laws apply to all geothermal developments involving the production and diversion of geothermal fluids, unless the limited exception in MCA 85-2-306(3) applies. Nonconsumptive closed-loop geothermal development not within the boundaries of the controlled groundwater area may fit within the exception. Water rights in Montana are based on the Doctrine of Prior Appropriation, which is generally characterized by the phrase "first in time, first in right." (Water Law Basics in Montana).

The water acquisition process is the same for both traditional water uses and geothermal resources with the exception of acquiring a water right under a geothermal lease on state lands. MCA 77-4-108 requires the lessee to apply to the land board (at least one year before expiration of the lease) for the water right. If permission is granted, the water right is acquired as provided below, but must be acquired in the state's name.

Water Access and Water Rights Process

19-MT-a.1 - Application for Beneficial Water Use Permit (Form 600) & fee

Forms are available on the Water Bureau's website. A fillable form is available on the Montana Water Rights Form Webpage as well.

In order to meet the evidentiary burden, the applicant should include hydrologic data including water supply data, field reports and other pertinent evidence. See MCA 85-2-311(5).

The application fees range from $200 - $800. The application is submitted the appropriate Water Resources Division office. The offices are located in Kalispell, Missoula, Helena, Bozeman, Havre, Glasgow, Lewistown and Billings.

Once an application is filed, its status may be tracked using the Montana Pending Water Right Application Status website.

19-MT-a.2 - Post Notice of Application

Notice of application is addressed in MCA 85-2-307. Upon receipt of a complete application, a Notice of Application is posted on the Board's website.

19-MT-a.3 - Review Application Materials

Upon receipt of a complete application, the Board may meet with the applicant and anyone who may claim standing and make a preliminary determination within 120 days of receipt of the application.

19-MT-a.4 - Is the Application Complete

If the application is incomplete, the application is returned to the applicant.

19-MT-a.5 - Does the Application Meet the Criteria Under MC 85-2-311

MCA 85-2-311 contains the criteria for issuing a permit. The requisite criteria includes:

  1. there is water physically available at the proposed point of diversion in the amount that the applicant seeks to appropriate;
  2. water can reasonably be considered legally available during the period in which the applicant seeks to appropriate, in the amount requested, based on the records of the department and other evidence provided to the department;
  3. the water rights of a prior appropriator under an existing water right, a certificate, a permit or a state water reservation will not be adversely affected;
  4. the proposed means of diversion, construction and operation of the appropriation works are adequate;
  5. the proposed use of water is a beneficial use;
  6. the applicant has a possessory interest or the written consent of the person with the possessory interest in the property where the water is to be put to beneficial use, or if the proposed use has a point of diversion, conveyance or place of use on national forest system lands, the applicant has any written special use authorization required by federal law to occupy, use or traverse national forest system lands for the purpose of diversion, impoundment, storage, transportation, withdrawal, use or distribution of water under the permit;
  7. the water quality of a prior appropriator will not be adversely affected;
  8. the proposed use will be substantially in accordance with the classification of water set for the source of supply pursuant to MCA 75-5-301;
  9. the ability of a discharge permit holder to satisfy effluent limitations of a permit issued in accordance with Title 75 will not be adversely affected.

The criteria is evaluated by a preponderance of the evidence.

19-MT-a.6 - Notice of Preliminary Determination

The preliminary determination may be to grant the application, grant the application with conditions or deny the application. If the Board chooses to grant the application, the preliminary determination must be published in a local newspaper and served upon any permit holder who will be affected by the proposed appropriation, interested property purchaser and public agencies with reserved waters in the source. If the Board decides to deny the application, a hearing under MCA 85-2-310 must be held.

19-MT-a.7 - Notify Interested Parties of Preliminary Determination

Notice of the preliminary determination is served on all potentially interested parties. The notice should include the date by which objections must be received.

19-MT-a.8 - Is There an Objection to the Application

Under MCA 85-2-308, one has standing to object to any permit as long as the objector's property, water right, or other interests would be adversely affected by the proposed permit. The objector must also identify the criteria that is not met in the application. The objector must provide his or her name and address. If there is a defect to the objection, the department must notify the objector of the defect and allow 15 days to correct the defect.

19-MT-a.9 - Contested Case Hearing

Under MCA 85-2-309, a contested hearing should be held when a proper objection is filed in the appropriate amount of time. The hearing should be held within 90 days of the filing of the objection. Typically the hearing is an administrative hearing, but the department may certify the case to the district court.

19-MT-a.10 - Proposal for Decision

A proposal for decision is circulated for comments before the final decision is issued.

19-MT-a.11 - Final Decision

Under MCA 85-2-310(5), a final decision should be made within 90 days of closing the administrative record.

19-MT-a.12 - Interim or Provisional Permit (optional)

Provisional permits are issued under MCA 85-2-313. Provisional permits are granted before permittee receives a vested right. The provisional permit may be challenged in a show cause hearing.

19-MT-a.13 - Construct Water Project

Before a water acquisition is complete, the diversion must be completed.

19-MT-a.14 - Certificate of Water Right

MCA 85-2-315 governs the grant of certificate of water right. Once the water is applied to the beneficial use approved under the permit, the permittee becomes eligible for the certificate of water right. The permittee need only notify the department the appropriation is complete. The notification must include a certified statement by a an expert describing how the appropriation was completed. The department has discretion to inspect the construction.

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