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| Montana Administrative Register Notice 36-22-219 | No. 19 10/06/2023 | |
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BEFORE THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On October 26, 2023, at 11:00 a.m., the Department of Natural Resources and Conservation (DNRC) will hold a public hearing at the DNRC building in the Montana Conference Room, First Floor, located at 1539 Eleventh Avenue, Helena, Montana, and via Zoom, to consider the proposed adoption, amendment, and repeal of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways:
b. Dial by Telephone: +1 646 558 8656; Meeting ID: 889 7000 5425; Password: 273124; Find your local number: https://mt-gov.zoom.us/u/kcClUefh60
2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m. on October 16, 2023, to advise us of the nature of the accommodation that you need. Please contact Jamie Price, Department of Natural Resources and Conservation, 1539 Eleventh Avenue, P.O. Box 201601, Helena, MT 59620-1601, 406-444-6615, or e-mail [email protected].
3. The rules as proposed to be adopted provide as follows:
NEW RULE I VARIANCE REQUESTS (1) An applicant may make a written request for a variance from the requirements of ARM 36.12.121 or 36.12.1702 to the appropriate regional office on a form provided by the department. The variance request must be: (a) postmarked or sent electronically to the department by the deadline established at the preapplication meeting; or (b) if a preapplication meeting is not held, the applicant may include a request for variance with a filed application, or as part of a deficiency response pursuant to ARM 36.12.1501. (2) a variance request that is not submitted within the timeframe identified in (a) or (b) shall be denied. (3) The department shall grant or deny the variance within 30 business days of receipt of the written request. The department's grant of a variance request may impose conditions necessary to ensure the application materials and data provided is sufficient to evaluate the applicable criteria.
AUTH: 85-2-113, MCA IMP: 85-2-302, 85-2-307, 85-2-311, 85-2-330, 85-2-336, 85-2-341, 85-2-343, 85-2-344, 85-2-360, 85-2-361, 85-2-362, 85-2-402, 85-2-506, 85-2-508, MCA
REASON: HB 114 from the 2023 legislative session modified the timelines and process for application review and increased importance of a preapplication meeting. The current rules include multiple provisions that authorize the department to grant a variance from certain requirements. NEW RULE I is necessary to consolidate the rules for a variance request and provide timelines for approval or denial of a variance request consistent with the requirements of HB 114.
NEW RULE II PREAPPLICATION MEETING (1) If the applicant completes a preapplication meeting with the department, the department will provide for a discounted application filing fee provided for in ARM 36.12.103 and expedited timelines provided for in ARM 36.12.1501. (2) A written request for a preapplication meeting must identify the following elements of the proposed permit or change in appropriation: (a) the flow rate and volume of water required; (b) the point of diversion; (c) the place of use; (d) the source of water; (e) the purpose; (f) for changes, the water right(s) proposed to be changed; (g) for changes, an explanation of historical use of the right(s) proposed for change; (h) any proposed places of storage, if applicable; and (i) for applications proposing a new well or wells, the well depth(s) and location. (3) A preapplication meeting must be documented by a department-provided checklist that identifies: (a) all necessary technical analyses and whether the analyses will be completed by the applicant or the department; (b) applicable aquifer testing requirements, measurement requirements, variances to be requested, or planned mitigation; and (c) any additional information necessary for completion of the technical analyses identified by the checklist under (3)(a). (4) If the technical analyses are to be completed by the department, the 45-day department deadline for completion of the technical analyses will be set upon receipt of the preapplication fee, receipt of the information provided for in (3)(c), and signed preapplication checklist. These items must be received within 180 days of the preapplication meeting. (5) If the technical analyses are to be completed by the applicant, the 45-day department deadline for scientific credibility review will be set upon receipt of the preapplication fee, receipt of the applicant's technical analyses, and signed preapplication checklist. These items must be received within 180 days of the preapplication meeting. (6) An applicant does not qualify for a discounted filing fee provided for in ARM 36.12.103 and expedited timelines provided for in ARM 36.12.1501 if: (a) upon submittal of the application to the department, the applicant has changed any element of the proposed application after the 180-day timeline in (4) or (5); or (b) the application is not filed within 180 days of the department's completion of technical analyses. (7) The preapplication meeting procedure for a combined permit and change application documented on the preapplication checklist, will be conducted as follows: (a) The applicant will be required to complete two preapplication meetings pursuant to (1) through (3) to receive a full discount of the application fees. Each preapplication meeting will require the fee set forth in ARM 36.12.103. (b) A preapplication meeting for the permit will be conducted first. The technical analyses completed for the permit application will identify information necessary to consider for the change application. (c) A preapplication meeting for the change will be conducted once the applicant has gathered the information needed under (2). (d) The combined permit and change application must be filed with the department within 180 days from the date of completion of the technical analyses for the change application. The 180-day timeframe will apply to both the permit and change application and will not start until completion of the technical analyses for the change application. (8) Any technical analyses completed by the department expire one year from the technical analysis completion date.
AUTH: 85-2-302, MCA IMP: 85-2-302, 85-2-307, 85-2-311, 85-2-330, 85-2-336, 85-2-341, 85-2-343, 85-2-344, 85-2-360, 85-2-361, 85-2-362, 85-2-402, 85-2-506, 85-2-508, MCA
REASON: HB 114 from the 2023 legislative session modified the timelines and process for application review, increased importance of a preapplication meeting, and added the opportunity for public comment on permit and change applications. New Rule II is necessary to establish the requirements and procedures for a preapplication meeting. The fee associated with preapplication meetings is assessed in ARM 36.12.103 as a new fee and the projected cumulative net impact of this fee is $0. The reason the projected cumulative net impact is $0 is because the applicant receives a filing fee discount on the application if they complete the preapplication meeting process and the preapplication fee is then applied to the discounted application fee.
NEW RULE III TECHNICAL ANALYSES (1) Technical analyses may be required for permit and change applications to provide the minimum information necessary for the department to complete a criteria assessment under 85-2-311, MCA for permits, or 85-2-402, MCA for changes. The department will conduct technical analyses necessary to evaluate criteria if not provided by the applicant. It remains the applicant's burden to prove the criteria. (2) For surface water permit applications, the following technical analyses are required: (a) a surface water analysis, which must include: (i) for perennial or intermittent streams where measurement records are available, the gage name, location, period of record, and calculated median of the mean monthly flow rate and volume; (ii) for perennial or intermittent streams where measurement records are not available, an estimated mean monthly flow rate and volume, and identify the estimation technique and basin characteristics used for the estimation; (iii) for ephemeral streams, an explanation of the method used to calculate mean annual runoff and associated climate and drainage area data; and (iv) for lakes, the source of the bathymetric data and associated volume or description of the method and associated data used to calculate volume; (b) an analysis of the area of potential impact. (3) For surface water change applications, the following technical analyses are required: (a) a historical use analysis; (b) an analysis of impacted surface water sources; (c) for applications where aquifer recharge is proposed for mitigation, an analysis of the monthly accretions to affected hydraulically connected surface water(s); and (d) for irrigation water rights changing the place of use or purpose, a return flow analysis of historical return flows and projected return flows for the amount of water being changed. This analysis must include: (i) amount of return flow; (ii) location of return flow; and (iii) if water rights are identified which will be impacted by a change in return flow, the return flow analysis must include a monthly breakdown of the rate and timing of return flow and evaluate impacts to the identified rights. (4) For groundwater permit applications in an open basin, the following technical analyses are required: (a) a groundwater analysis, which must include: (i) aquifer transmissivity and storage coefficient; (ii) maximum drawdown and remaining available water column in the proposed point of diversion(s); (iii) 0.01-foot drawdown contour; (iv) location and distance between the proposed point of diversion(s) and the 0.01-foot drawdown contour; (v) annual groundwater flux through the 0.01-foot drawdown contour, annual groundwater recharge, or annual groundwater discharge. The quantification must be in acre-feet per year; and (vi) all groundwater rights within the 0.01-foot drawdown contour or area of potential impact; (vii) 1-foot drawdown contour, which is based on five years of constant pumping, which is derived from the requested annual volume and apportioned monthly based on the proposed period of diversion; (viii) distance and location on a map between the proposed point of diversion(s) and the 1-foot drawdown contour; (ix) all groundwater rights within the 1-foot drawdown contour; and (x) remaining available water column for each groundwater point of diversion identified in (ix); (b) a surface water depletion analysis, which must include: (i) all hydraulically connected surface water(s) to the source aquifer for the proposed point of diversion; and (ii) annual consumed volume and monthly rate and volume of net depletion to hydraulically connected surface water(s); (c) a surface water analysis, which must include: (i) for perennial or intermittent streams where measurement records are available, the gage name, location, period of record, and calculated median of the mean monthly flow rate and volume; (ii) for perennial or intermittent streams where measurement records are not available, an estimated mean monthly flow rate and volume, and identify the estimation technique and basin characteristics used for the estimate; (iii) for ephemeral streams, an explanation of the method used to calculate mean annual runoff and associated climate and drainage area data; and (iv) for lakes, the source of the bathymetric data and associated volume or description of the method and associated data used to calculate volume; (d) an analysis of the area of potential impact. (5) For groundwater change applications, the following technical analyses are required: (a) a historical use analysis; (b) a groundwater analysis, which must include: (i) aquifer transmissivity and storage coefficient; (ii) maximum drawdown and remaining available water column in the proposed point of diversion(s); (iii) 1-foot drawdown contour, which is based on five years of constant pumping, which is derived from the requested annual volume and apportioned monthly based on the proposed period of diversion; (iv) the distance and location on a map between the proposed point of diversion(s) and the 1-foot drawdown contour; (v) all groundwater rights within the 1-foot drawdown contour; and (vi) remaining available water column for each groundwater point of diversion identified in (v); (c) surface water depletion analysis, which must include: (i) all hydraulically connected surface water(s) to the source aquifer for the proposed point of diversion; and (ii) historic and proposed annual consumed volumes and monthly rate and volume of net depletion to hydraulically connected surface water(s); and (iii) a comparison of the historical net depletion and new net depletion to hydraulically connected surface water(s); (d) for irrigation water rights changing the place of use or purpose, a return flow analysis of historical return flows and projected return flows for the amount of water being changed. This analysis must include: (i) amount of return flow; (ii) location of return flow; and (iii) if water rights are identified which will be impacted by a change in return flow, the return flow analysis must include a monthly breakdown of the rate and timing of return flow and evaluate impacts to the identified rights. (6) For groundwater permit applications in a closed basin, in addition to a hydrogeologic report conducted pursuant to 85-2-361, MCA, the following technical analyses are required: (a) for applications with proposed mitigation, an analysis of the net effect to hydraulically connected surface water(s); (b) for applications where aquifer recharge is proposed for mitigation, an analysis of the monthly accretions to affected hydraulically connected surface water(s). (7) Technical analyses completed by the applicant must be submitted with the permit or change application. (8) The department will evaluate technical analyses completed by the applicant for scientific credibility.
AUTH: 85-2-113, MCA IMP: 85-2-302, 85-2-307, 85-2-311, 85-2-330, 85-2-336, 85-2-341, 85-2-343, 85-2-344, 85-2-360, 85-2-361, 85-2-362, 85-2-402, 85-2-506, 85-2-508, MCA
REASON: HB 114 from the 2023 legislative session modified the timelines and process for application review and increased importance of a preapplication meeting, which includes consideration of requisite technical analysis. New Rule III is necessary to identify the required technical analysis for the different application types and establishes the department's role in completion and evaluation of technical analyses.
NEW RULE IV FILING A PERMIT APPLICATION AND FORM ACCEPTANCE (1) A permit application (Form No. 600) must be filed when an applicant desires to use surface water or groundwater that does not meet an exception to permit requirements under 85-2-306, MCA. (2) The department will not accept a permit application and will not assign a priority date if any of the following items are missing: (a) the flow rate and volume of water; (b) the point of diversion; (c) the place of use; (d) the source of water; (e) the purpose; (f) the applicant's signature; (g) for a groundwater well, aquifer testing results conforming to ARM 36.12.121; (h) for projects proposed in sage grouse habitats designated as a core area, general habitat, or a connectivity area, a letter from the Montana Sage Grouse Habitat Conservation Program stating the project is consistent with Executive Orders 12-2015 and 21-2015; and (i) the appropriate filing fee in ARM 36.12.103. (3) Separate applications are required for: (a) each source of supply; or (b) different purposes or places of use supplied by different points of diversion on the same source. If the entire project is manifold into one system, then a single application is allowed. (4) One application is allowed for: (a) one purpose and multiple points of diversion on the same source; and (b) for several purposes, if all the points of diversion supply all of the same purposes. (5) The time needed to complete construction and put the water to beneficial use must be identified. Information must be included in the application materials that justify the requested time.
REASON: New Rule IV is necessary to consolidate the existing application receipt rules (ARM 36.12.1301) and filing a permit application rules (ARM 36.12.1701) into one rule, to improve readability of rule, and to streamline the rule consistent with the sequencing of the application process.
NEW RULE V FILING A CHANGE APPLICATION AND FORM ACCEPTANCE (1) An applicant who desires to change the point of diversion, place of use, purpose of use, or place of storage of a water right must file an application to change a water right (Form No. 606) and any applicable addendums. (2) The department will not accept a change application if any of the following items are missing: (a) the water right element(s) proposed for change; (b) the water right number for each water right changed; (c) the proposed diverted flow rate and diverted volume of water for each changed right; (d) the applicant's signature; (e) for projects proposed in sage grouse habitats designated as a core area, general habitat, or a connectivity area, a letter from the Montana Sage Grouse Habitat Conservation Program stating the project is consistent with Executive Orders 12-2015 and 21-2015; and (f) the appropriate filing fee in ARM 36.12.103. (3) An application for a temporary change must meet the same rule requirements as those for a permanent change application. (4) In addition to the change application rules, an applicant proposing to temporarily change to instream flow must submit the information required under 85-2-407 and 85-2-408, MCA, or 85-2-436, MCA. (5) Only an owner of record, as shown in the department's water right records, can apply to change a water right, except if a change application is for a water right lease pursuant to 85-2-436, MCA, the change applicant must be the Montana Department of Fish, Wildlife and Parks. (a) For water rights that are co-owned, all owners shall sign the application form consenting to the change. (6) Multiple water rights may be changed on one application if the place of use and purpose will be exactly the same for each water right, and all water rights will share a common conveyance system. (7) The time needed to complete and put the change into operation must be identified. Information must be included in the application materials that justify the requested time. (8) For a change application that only adds stock tanks to an existing stock water system: (a) Form No. 606 and any applicable addendum(s) must be completed and must describe the details of the proposed project; (b) the applicant must explain the extent of the historical use, including the flow rate and volume, for each water right proposed for change; (c) the applicant must provide information to show that the historical diverted flow rate will be adequate for the new use; and (d) for changes from instream stock rights based on 85-2-222, MCA, to stock tank(s), the maximum flow rate authorized for the new use will be 35 gallons per minute unless the applicant demonstrates a higher historical rate.
REASON: New Rule V is necessary to consolidate the existing application receipt rules (ARM 36.12.1301) and filing a change application rules (ARM 36.12.1901) into one rule, to improve readability of rule, and to streamline the rule consistent with the sequencing of the application process.
4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
36.12.101 DEFINITIONS In addition to definitions provided for in 82-2-102, MCA, and (1) remains the same. (2) "Amount" refers to both a flow rate in gallons per minute ( (3) through (8) remain the same. (9) "CFS" (10) through (16) remain the same.
(18) and (19) remain the same but are renumbered (17) and (18).
(21) through (24) remain the same but are renumbered (19) through (22).
(26) remains the same but is renumbered (23).
(28) remains the same but is renumbered (25).
(30) through (34) remain the same but are renumbered (27) through (31).
(36) remains the same but is renumbered (33).
(38) through (46) remain the same but are renumbered (35) through (43).
(49) through (54) remain the same but are renumbered (44) through (49).
(56) through (58) remain the same but are renumbered (50) through (52).
(60) through (72) remain the same but are renumbered (53) through (65). (66) "Supplemental rights" means separate water rights for the same purpose, owned by the same water user, and used on overlapping places of use. (73) through (75) remain the same but are renumbered (67) through (69).
(77) through (80) remain the same but are renumbered (70) through (73).
(82) through (87) remain the same but are renumbered (75) through (80).
AUTH: 2-4-201, 85-2-113, 85-2-308, 85-2-370, MCA IMP: 85-2-113, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344,
REASON: This amendment is necessary to remove terms already defined in statute, to remove unnecessary examples from defined terms, and to update or add other definitions to provide clarity to applicants.
36.12.102 FORMS (1) The following necessary forms for implementation of the act and these rules are available from the Department of Natural Resources and Conservation, P.O. Box 201601, Helena, Montana 59620-1601 and its Water Resources regional offices, or on the (a) Form No. 600P, "Permit Preapplication Meeting";
(c) and (d) remain the same but are renumbered (d) and (e). (f) Form No. 606P, "Change Preapplication Meeting"; (e) through (i) remain the same but are renumbered (g) through (k).
(k) through (q) remain the same but are renumbered (l) through (r).
(s) remains the same but is renumbered (t).
(u) through (y) remain the same but are renumbered (v) through (z).
(ab) remains the same but is renumbered (ac).
(ae) remains the same but is renumbered (af).
(
(ai) Form No. 653, "Variance Request," which must be submitted for variance requests in [NEW RULE I]; (aj) Form No. 654, "Public Comment," which must be submitted for public comment under 85-2-307(4), MCA; and (ak) Form No. 655, "Application Amendment Form," which must be submitted to modify an application under ARM 36.12.1401.
AUTH: 85-2-113, MCA IMP: 85-2-113, 85-2-302, 85-2-306, 85-2-307, 85-2-311, 85-2-316, 85-2-402, 85-2-424, 85-20-401, MCA
REASON: HB 114 from the 2023 legislative session modified the timelines and process for application review and increased importance of a preapplication meeting. The current rules include multiple provisions that authorize the department to grant a variance from certain requirements. New Rule I provides the requirements for a variance request. The current rule references forms that are no longer in use. This amendment is necessary to implement HB 114 and New Rule I and to remove forms that are no longer in use.
36.12.103 FORMS AND SPECIAL FEES (1) remains the same. (2) The department will assess the following filing fees: (a) For an Application for Beneficial Water Use Permit, Form No. 600, filed pursuant to 85-2-330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, or in an administratively closed basin pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, or a controlled groundwater area pursuant to 85-2-506 (b) For an Application for Beneficial Water Use Permit, Form No. 600, filed pursuant to 85-2-330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, or in an administratively closed basin pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, or a controlled groundwater area pursuant to 85-2-506 (c) For an Application for Beneficial Water Use Permit, Form No. 600, not filed pursuant to 85-2-330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, nor in an administratively closed basin pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, nor a controlled groundwater area pursuant to 85-2-506
(i) if the change application concerns a replacement well greater than 35 GPM (ii) remains the same.
(i) through (vi) remain the same.
(i) through (vi) remain the same.
(i) through (iv) remain the same.
(u) and (v) remain the same but are renumbered (t) and (u).
(y) remains the same but is renumbered (x).
(aa) $500 for Form No. 600P, Permit Preapplication Meeting. This fee will be credited to the filing fee of Form No. 600 for preapplication meetings that meet the requirements of [NEW RULE II]; and (ab) $500 for Form No. 606P, Change Preapplication Meeting. This fee will be credited to the filing fee of Form No. 606 for preapplication meetings that meet the requirements of [NEW RULE II]. (3) There shall be no fees charged for filing the following forms: (a) through (d) remain the same. (e) Form No. 636, Petition to Subordinate a State Water Reservation; (e) remains the same but is renumbered (f).
(h) Form No. 653, Variance Request; (i) Form No. 654, Public Comment; and (j) Form No. 655, Application Amendment Form. (4) The department will charge special service fees not to exceed reasonable amounts, including, but not limited to the following: (a) and (b) remain the same. (c) reasonable public information access fees including copies, blueprints or tracings, audio copies of a hearing, and other requests as per 2-6-110
AUTH: 85-2-113, MCA IMP: 85-2-113, 85-2-302, 85-2-306, 85-2-307, 85-2-311, 85-2-312, 85-2-314, 85-2-402, 85-2-426,
REASON: Fees associated with processing applications have not been updated since 2013. The legislature approved funding for HB114 with a 50/50 split between general fund and state special revenue funds needed for implementation. The fee increases proposed in this rule package provide the necessary revenue from state special revenue to hire the staff to meet the deadlines in HB114. Outdated forms need to be removed and new forms associated with HB 114 need to be added. The titles of some forms are being updated to clarify for consistency with the purpose of the form.
36.12.110 LEGAL LAND DESCRIPTION STANDARDS (1) Primary (a) and (b) remain the same. (c) government lot, 1/4 section, section, township, range, and county; (d) certificate of survey number with (e) latitude/longitude coordinates and the geodetic reference system used to collect the coordinates. (2) remains the same. (3) Transitory diversions must be described as the most upstream diversion point and the most downstream diversion point. (4) If secondary diversions are described, they must be identified as "secondary" and meet one of the description standards in (1). (5) The legal land description for the place of use must be listed to the nearest
AUTH: 85-2-113, MCA IMP: 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344,
REASON: This amendment is necessary to clarify legal description standards approved by the department including the use of latitude and longitude coordinates. The examples removed from (3) and (5) are more appropriate for explanatory documents or forms. The removal of the alternative method for describing transitory points of diversion is necessary to increase consistency.
36.12.111 MAP STANDARDS (1) (a) through (d) remain the same. (e) all (f) all (g) (h) (i) date the aerial photograph was taken, if available.
(a) all past points of diversion; (b) all past places of use; (c) all past reservoir locations, if applicable; and (d) all past locations of conveyance facilities.
AUTH: 85-2-113, MCA IMP: 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344,
REASON: Applicants currently have access to a wide variety of maps and aerial photographs that were not readily available at the time this rule was written. The amendment to (1) is necessary to allow the use of modern map and photograph resources and not unduly restrict the source of the map or photograph. The amendment to (2) is necessary to recognize that modern technology can easily overlay maps of different scales, and the requirement is no longer useful or necessary. The amendment to (3) is necessary to clarify the requirements for each application type. The amendment removes the requirement that the applicant provide a copy of the WRS map because the DNRC possesses complete WRS maps.
36.12.112 PERIOD OF DIVERSION AND PERIOD OF USE STANDARDS (1) The department will use the following standards for period of diversion and use based on the purpose of beneficial water use: (a) through (c)(v) remain the same. (vi) climatic area VI April 25 to October 5 (2) remains the same.
(4) Deviations from the period of use standards listed in (1) must be explained and documented based on the operation of the project.
AUTH: 85-2-113, MCA IMP: 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344,
REASON: The addition of climatic region VI is necessary to ensure all of the climatic regions of the state are identified in rule. Section (3) which is being deleted relates to start and end dates for a temporary permit and does not refer to period of diversion or period of use. The amendments to (3) and (4) are necessary to clarify when additional information regarding the period of use must be provided and the information required to support a deviation from the period of use standards.
36.12.113 RESERVOIR STANDARDS (1) An application (2) through (5) remain the same. (6) Place of storage does not include: (a) reservoirs, pits, pit-dams, or ponds with a capacity of less than 0.10 acre-feet; (b) the use of a temporary or permanent diversion structure within a canal or ditch designed to raise water surface elevation for primary diversions or to direct flows to a secondary conveyance facility (7) remains the same but is renumbered (6)(c). (8) remains the same but is renumbered (7).
AUTH: 85-2-113, MCA IMP: 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344,
REASON: The amendment is necessary to clarify that reservoir capacity is required and that evaporation calculations should be based on net evaporation, which is a more accurate representation of conditions. The remaining amendment is necessary to improve readability and clarity.
36.12.116 EVAPORATION STANDARDS (1)
(c) other department-approved methods.
(2) (3) The department will determine the acceptability of other
AUTH: 85-2-113, MCA IMP: 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344,
REASON: Net evaporation reflects the most accurate way to evaluate evaporation from a proposed project. The department does not use the Joint Technical Working Group Report, Water Rights Compact Between the State of Montana and the Department of the Interior, Bureau of Land Management, November 1998; the Evaporation from Lakes and Reservoirs, a study based on 50 years of weather bureau records, Minnesota Resource Commission, June 1942; or a standard USGS pan for determining evaporation.
As newer methods become available for calculating net evaporation, the department needs to be able to evaluate those methods. This amendment is necessary to reflect the accepted methods for calculating net evaporation and to provide the flexibility for the applicants to justify the use of new methods.
36.12.117 OBJECTION TO APPLICATION (1) through (10) remain the same. (11) The department will mail notice to the objector of the Objection to Application of any deficiencies in the objection. The objector must address the information requested in the Objection Deficiency Notice and must have the response postmarked or hand delivered to the department within 15 (12) through (17) remain the same.
AUTH: 85-2-308, MCA IMP: 85-2-308, MCA
REASON: HB 114 from the 2023 legislative session sets forth the timeline for an objector to respond to a deficiency letter. This amendment is necessary to reflect the timelines in HB 114.
36.12.121 AQUIFER TESTING REQUIREMENTS (1) Aquifer testing design and procedures must follow standard procedures that are discussed in hydrogeology textbooks and professional literature.
(2) Minimum information that must be submitted with applications: (a) a (b)
(3) Minimum testing procedures are as follows (a) Pumping must be maintained (b) The (c) The proposed pumping rate may be demonstrated by testing multiple wells as long as (e) is met by one well and the remaining flow rate is demonstrated by eight-hour drawdown and yield tests on additional production wells under (e)(ii) and (e)(iii).
(i) At a minimum if a variance from (e) is granted, an eight-hour drawdown and yield test is required on all new production wells. (ii) In addition to (e), if more than one new production well is proposed, at a minimum an eight-hour drawdown and yield test is required on all subsequent new production wells. (iii) The testing procedures for a minimum eight-hour drawdown and yield test performed on any production well must follow (a), (d), and (h).
(4) An applicant may make a written request for a variance from the aquifer testing requirements in (2) and (3). The variance process is provided for in [NEW RULE I].
IMP: 85-2-302, 85-2-311, 85-2-330,
REASON: The current rule includes requirements that are not necessary for a valid aquifer test. This amendment removes references to unnecessary information and clarifies that eight-hour drawdown and yield tests are required on additional production wells in a multi-well system.
36.12.1401 PERMIT AND CHANGE APPLICATION MODIFICATION (1) After application acceptance, an applicant may modify any (2) Modification of an element of a permit or change application requires an application amendment Form No. 656 to be submitted to the department which identifies the elements being modified; (3) Modification of an element will reset the statutory timelines for application processing identified in 85-2-302 and 85-2-307, MCA. (a) If the applicant completed a preapplication meeting and the modification does not require the department to update its technical analyses, the reduced preapplication timelines shall still apply. (b) If the applicant completed a preapplication meeting and the modification requires the department to update any of its technical analyses, the reduced preapplication timelines shall no longer apply. (2) remains the same but is renumbered (4).
(a) through (j) remain the same. (6) If the draft preliminary determination is to deny or to grant with modifications, the applicant may modify their application, after the draft preliminary determination has been issued. The applicant may modify their application only if they have been granted an extension of time under 85-2-307(3), MCA, and may only modify it one time under this provision.
AUTH: 85-2-113, MCA
REASON: This amendment is necessary to incorporate changes to the permitting process based on statutory changes in HB 114. The goal is to provide clear steps for when an application can be modified and what happens when the application is modified.
36.12.1501 PERMIT AND CHANGE APPLICATION DEFICIENCY LETTER AND TERMINATION (1) If the department determines the application does not contain the information requested in ARM 36.12.1601, the department will notify the applicant in one deficiency letter of any defects in a permit or change application (a) If a preapplication meeting is held, and the application is filed in compliance with [NEW RULE II], the applicant will be notified of any defects within 15 business days of receipt of the application by the appropriate regional office. (b) If there was no preapplication meeting, the applicant will be notified of any defects within 30 business days of receipt of the application by the appropriate regional office. (2) remains the same.
AUTH: 85-2-113, MCA
REASON: HB 114 from the 2023 legislative session modified the timelines and process for application review. This amendment is necessary to establish the requirements and procedures for deficiency letters consistent with the timelines set forth in HB 114.
36.12.1601 WATER RIGHT PERMIT AND CHANGE APPLICATION -CORRECT AND COMPLETE DETERMINATION (1) remains the same. (2) A correct and complete application must conform to the standard of substantial and credible information and all applicable sections of the application form and addendums must be completed with the required information. (2) through (4) remain the same but are renumbered (3) through (5).
AUTH: 85-2-302, MCA IMP: 85-2-302, MCA
REASON: This amendment is necessary to improve the readability of the correct and complete rules, to delete redundancies, and to reduce confusion regarding the applicability of this rule.
36.12.1702 PERMIT APPLICATION CRITERIA - PHYSICAL SURFACE WATER AVAILABILITY (1) Physical availability for perennial or intermittent streams will be determined based on monthly flow rate and volume.
(b) If measurement records pursuant to (1)(a) are not available, physical availability may be estimated using a department-accepted method in conjunction with applicant collected flow measurements to validate the estimation technique. The applicant must collect a minimum of three measurements that reflect high, moderate, and low flows during the period of diversion. The applicant shall explain how the measurements are representative of high, moderate, and low flows. (2) Physical availability for ephemeral streams will be determined based on annual runoff volume above the proposed point of diversion using climate and drainage area data. (3) Physical availability for a lake will be determined based on stored volume. (a) If the volume of a lake has been quantified by a qualified entity based on bathymetric data, that volume will be used to quantify physical availability. (b) If the volume of a lake has not been quantified pursuant to (3)(a), volume may be quantified by a qualified professional based on department-approved methodology. (4) For all other source types, physical availability of water will be determined based on monthly flow rate and volume. The applicant is required to collect measurements for these sources once monthly at department-approved intervals during the proposed period of diversion. (5) Streamflow measurements required in (1)(b) and (4) must include a description of the methodology used to collect measurements and include all data collected. (6) The department will determine the acceptability of measurements based on the information submitted. Measurements collected by an applicant must be measured in CFS or GPM and be collected at a department-approved location on the source of supply. The department may require from the applicant additional information and data necessary to complete its analysis. (7) An applicant may make a written request for a variance from the measurement requirements in (1)(b) or (4) as provided for in [NEW RULE I].
REASON: The type of information available and necessary to establish surface water physical availability depends on the surface water source. This amendment is necessary to clarify how physical availability will be determined for different categories of surface water sources. The list of accepted estimation techniques in the current rule are not all-inclusive, and there may be multiple estimation techniques applicable for a given source of water.
36.12.1703 PERMIT APPLICATION CRITERIA - PHYSICAL
(3) Physical availability of groundwater will be determined using the measurements in (1), evaluation of the aquifer test data in (2), or using published groundwater data.
IMP: 85-2-302, MCA
REASON: This amendment is necessary to clarify the information necessary to determine physical availability for groundwater. Determination of physical availability for a developed spring must be based on measurements rather than modeling. This amendment is necessary to ensure the department is provided with the information necessary to determine physical availability for developed springs. Drawdown in production wells is related to adequacy of diversion rather than physical availability. This amendment is necessary to remove the drawdown requirement from physical availability. Drawdown is addressed through the amendment to ARM 36.12.1707.
36.12.1704 PERMIT APPLICATION -
(a) For groundwater appropriations, this shall include identification and quantification of existing legal demands for any surface water source that the department determines will (2) The department will compare the physical water supply at the proposed point of diversion and the legal demands within the area of potential impact to determine if water is legally available for the proposed permit. For groundwater permits, the department will compare the physical water supply and existing legal demands for impacted groundwater sources and surface water sources it determines will be depleted pursuant to (1)(a), to determine if water is legally available. (a) The department may consider an applicant's mitigation or aquifer recharge plan as evidence that water is legally available. (b) The department may consider additional water right information as evidence that water is legally available.
IMP: 85-2-302, MCA
REASON: This amendment is necessary to clarify that the department legal availability analysis: relies on water right records contained in the WRIS to determine legal demands; evaluates legal demands on depleted surface water sources for groundwater applications; and may consider other evidence that relates to legal availability such as mitigation and aquifer recharge. The amendment removes references to adverse effect, which is a separate criterion, and consolidates ARM 36.12.1704 and 36.12.1705 to clarify how legal availability is determined and to remove redundancies.
36.12.1706 PERMIT APPLICATION CRITERIA - ADVERSE EFFECT (1)
(a) and (b) remain the same. (c) the use of a mitigation or aquifer recharge plan as a means of offsetting adverse effect; or (d) remains the same. (4) remains the same but is renumbered (3).
IMP: 85-2-302, MCA
REASON: This amendment is necessary for readability and clarity.
36.12.1707 PERMIT APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS AND OPERATION (1) through (4) remain the same. (5) Preliminary design plans and specifications for the diversion and conveyance facilities and the equipment used to put the water to beneficial use must be submitted including the following: (a) and (b) remain the same.
(d) remains the same but is renumbered (c).
(6) remains the same. (7) For groundwater wells, the department will compare the drawdown projected for the proposed period of diversion to the height of the water column above the bottom of the proposed production well to determine if the well design is adequate for the proposed appropriation.
IMP: 85-2-302, MCA
REASON: This amendment is necessary to include drawdown as a consideration for adequacy of diversion rather than physical availability consistent with the amendment to ARM 36.12.1703.
36.12.1801 PERMIT AND CHANGE APPLICATIONS - BENEFICIAL USE
(a) how the purpose for the water benefits the applicant or other persons as authorized by law; and (b) remains the same.
(a) the requested volume of water for each purpose conforms to standards set out in ARM 36.12.115 for a permit application or ARM 36.12.1902 for a change application; and (b) there are no other associated or overlapping water rights appurtenant to the proposed place of use (c) the purpose of use, place of use, and operation of the proposed project is not changing from that found by the department's historical use analysis.
IMP: 85-2-302, MCA
REASON: The deletion of (1) is necessary because statute defines who can appropriate water for beneficial use. Amended (2)(c) clarifies that certain beneficial use information is not required if certain elements of historic use are not being changed.
36.12.1903 CHANGE APPLICATION - ADVERSE EFFECT (1) Lack of adverse effect for change applications is generally based on the applicant's plan showing the diversion and use of water and operation of the proposed project will not exceed historical use, and can be implemented and properly regulated. A written narrative must be provided addressing the applicant's plan to prevent potential adverse effects to existing water rights, certificates, permits, and water reservations. (2) The applicant's plan must document the effects to the other water rights including, but not limited to, the following: (a) through (d) remain the same. (e) the effects of changing the historical diversion pattern including rate and timing of depletions; (f) for groundwater applications, the applicant shall explain how the changed water right will affect water levels in wells of junior and senior water rights and the rate and timing of net depletions from hydraulically connected surface waters, and what effect those changes will have on those water rights within the notice area. (3) The department must consider historical use in determining whether changing the water right would constitute an enlargement of the original water right.
IMP: 85-2-302, MCA
REASON: This amendment is necessary to clarify that the department evaluates net depletion as defined by rule when evaluating a change application.
36.12.1904 CHANGE APPLICATION CRITERIA - ADEQUATE DIVERSION MEANS AND OPERATION (1) remains the same. (2) Preliminary design plans and specifications for the current and/or proposed diversion and conveyance facilities and the equipment used to put the water to beneficial use must be submitted with the application including the following: (a) and (b) remain the same. (c) the historical and proposed flow rate and volume design capacity. (3) remains the same. (4) Wells must be constructed according to provisions in ARM Title 36, chapter 21, subchapter 6. (5) For developed springs an explanation of how the spring will be developed must be included in the application. (6) For groundwater wells, the department will compare the drawdown projected for the proposed period of diversion to the height of the water column above the bottom of the proposed production well to determine if the well design is adequate for the proposed appropriation.
IMP: 85-2-302, MCA
REASON: This amendment is necessary to include drawdown as a consideration for adequacy of diversion and to make the adequacy of diversion rule for change applications similar to the rule for permit applications.
5. The department proposes to repeal the following rules:
36.12.1301 PERMIT AND CHANGE APPLICATION ACCEPTANCE
AUTH: 85-2-113, MCA
REASON: The repeal of this rule is necessary because the requisite information from ARM 36.12.1301 is incorporated into New RULES IV and V.
36.12.1701 FILING A PERMIT APPLICATION
REASON: The repeal of this rule is necessary because the requisite information from ARM 36.12.1701 is incorporated into NEW RULE IV.
36.12.1705 PERMIT APPLICATION CRITERIA - COMPARISON OF PHYSICAL WATER AVAILABILITY AND EXISTING LEGAL DEMANDS
IMP: 85-2-302, MCA
REASON: The repeal of this rule is necessary because the requisite information from ARM 36.12.1705 is incorporated into the amendment to ARM 36.12.1704.
36.12.1901 FILING A CHANGE APPLICATION
AUTH: 85-2-112, 85-2-113, 85-2-302, MCA IMP: 85-2-302, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-436, MCA
REASON: The repeal of this rule is necessary because requisite information from ARM 36.12.1901 is incorporated into NEW RULE IV.
6. Pursuant to 2-4-302(1)(c), MCA, based on 2022 application statistics, the department estimates the monetary impact from the increase in fees set forth in the proposed amendments to ARM 36.12.103 as follows:
The monetary impact of the new fees set forth in the proposed amendment to ARM 36.12.103(2)(aa) and (ab) is accounted for in ARM 36.12.103(2)(a), (c), and (f).
7. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted in writing to: Martin Balukas, Department of Natural Resources and Conservation, 1539 Eleventh Avenue, P.O. Box 201601, Helena, MT 59620-1601, or e-mail at [email protected], and must be received no later than 5:00 p.m. on November 3, 2023.
8. Martin Balukas, Department of Natural Resources and Conservation, has been designated to preside over and conduct this hearing.
9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 2 above or may be made by completing a request form at any rules hearing held by the department.
10. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.
11. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by e-mail on August 1, 2023.
12. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Brian Bramblett /s/ Amanda Kaster Brian Bramblett Amanda Kaster Rule Reviewer Director Natural Resources and Conservation
Certified to the Secretary of State September 26, 2023.
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