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| Montana Administrative Register Notice 36-22-134 | No. 10 05/28/2009 | |
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BEFORE THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF
To: All Concerned Persons 1. On June 29, 2009, at 1:00 p.m., the Department of Natural Resources and Conservation will hold a public hearing in the Fred Buck Conference Room (first floor), at the Department of Natural Resources and Conservation, Water Resources Division, 2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the agency no later than 5:00 p.m. June 8, 2009, to advise the agency of the nature of the accommodation that you need. Please contact Kim Overcast, Department of Natural Resources and Conservation, 3. The rules as proposed to be amended provide as follows, stricken matter interlined, new matter underlined: 36.12.1901 FILING A CHANGE APPLICATION (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 applicable addendum; all materials must include, but are not limited to the information required by Title 36, Chapter 12. (2) An application for a temporary change must meet the same rule requirements as those for a permanent change application. (3) In addition to the change application rules, a temporary change application for instream flow must submit the information required under 85-2-407, 85-2-408, and 85-2-436, MCA. (2) and (3) remain the same but are renumbered (4) and (5).
(6) and (7) remain the same. (8) Multiple water rights may be changed on one application if (9) remains the same.
(11) remains the same but is renumbered (10). (11) The application must contain a narrative explaining the specific details of the requested water right change and why it is being requested. (12) The proposed diverted flow rate and (13) through (14)(a) remain the same. (b) a current department generated water right abstract of each water right being changed must be submitted. The proposed changes must be noted on the abstract. The abstract should reflect how the water right would appear if the change application was granted (c) remains the same. (d) the applicant must provide information to show that the historic flow rate diverted will be adequate, even though the additional stock tanks may be (15) remains the same. AUTH: 85-2-112, MCA IMP: 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-436, MCA 36.12.1902 CHANGE APPLICATION - HISTORIC USE (1) The description of the historic information is related to a date that is dependent on the type of water right being changed. The following dates are applicable for each type of water right: (a) historic information for a statement of claim must be described as it was used prior to July 1, 1973; (b) historic information for a provisional permit must be described as it was used at the filing date of the completion notice; (c) historic information for a certificate of water right must be described as it was used at the filing date of the completion notice; and (d) historic information for an exempt or nonfiled water right must be described as it was completed prior to July 1, 1973. (2) (2) remains the same, but is renumbered (3). (4) (5) For an application to change multiple irrigation water rights, the total number of acres for each water right located within the place of use must be identified. (6) For an application to change water rights that overlap the place of use, an applicant shall include those water rights in the change application or shall explain how each of the water rights has been historically used and how the unchanged water rights will be used if the change authorization were granted. If water will continue to be used at the historic place of use, the applicant shall explain how the continued use will not increase the combined maximum diverted flow rate, the diverted volume, and the historic consumptive volume.
(a) water right number and the priority date; (b) most recent year the water right was used; (c) historic point of diversion; (d) historic period of diversion; (e) historic means of diversion; (f) historic diversion schedule and operation pattern; (g) means of conveyance; (h) historic ditch capacity; (i) maximum historic flow rate diverted from each point of diversion and how the amount was determined; (j) historic place of use for each purpose; (k) maximum number of acres historically irrigated; (l) historic period of use for each purpose; (m) annual or monthly historic diverted volume and how this amount was determined; (n) the annual or monthly historic consumptive volume for each purpose; (i) for irrigation, an applicant may choose to use the methodology described in (15); and (ii) for irrigation, an applicant who chooses not to use the methodology described in (15), shall provide the factual basis for the historic consumptive volume calculation and why the historic consumptive use is less than or greater than the methodology described in (15); (o) the historic efficiency including the diversion, conveyance, and overall system; (p) the legal land description of a reservoir; (q) the maximum volume in acre-feet of stored water; (r) evaporation loss of stored water (evaporation standards can be found in ARM 36.12.116); (s) maximum number of times a reservoir was filled during a year; and (t) maximum period of time when water was legally collected for storage. (8) A narrative must be included in the application materials explaining why the historic operation of the right can be considered reasonable and typical of the purpose for which the historic right was used. (9) The following information may help an applicant establish the requirements under (7): (a) aerial photographs depicting irrigated land: (i) 1979, 1997, and 2005 photos showing the irrigated land would be beneficial; (b) aerial or other photographs showing diversion or conveyance structures; (c) Water Resources Survey book information; (d) Water Resources Survey field notes; (e) water commissioner field notes; (f) Natural Resources Conservation Service (NRCS) information, such as field specific soils information; (g) affidavits from persons with first-hand knowledge of historic use; (h) calculation of historic ditch capacities; (i) description of irrigation equipment, field treatments, means of conveyance, control structures, and other onsite features related to water use; (j) description of water supply availability; (k) log books or diaries of previous irrigators or farm operations, crop yield records, or diversion records; or (l) an evaluation of the seniority of the water right in relation to other users.
(10) Calculations for each water right showing how the historic flow rate, consumed and diverted volume for each water right, and capacity were determined must be included in the application materials, and the methodology employed must be described. (11) The annual or monthly historic diverted volume must be based on the appropriator's historic operation of their diversion, irrigation, and harvest schedule throughout the period of diversion and the period of use. If applicable, the historic operation information must include a discussion of the primary diversion from the source and secondary diversion from a ditch or reservoir. (12) Historic consumptive volume must be based on the acre-feet of water used for the beneficial purpose, such as water transpired by growing vegetation, evaporated from soils or water surfaces, or incorporated into products that do not return to ground or surface water. (13) The methodology in (15) may be used to determine the historic consumptive volume for irrigation. The methodology is based on data from the United States Department of Agriculture (USDA) National Agricultural Statistics Service (NASS), and generated using the USDA NRCS Irrigation Water Requirements (IWR) program. If the applicant chooses not to use the methodology, they shall provide evidence showing how the historical consumptive use was calculated and why that amount is less than or greater than the methodology described in (15). (14) IWR Data for (15) To determine the historic consumptive volume using the table, complete the following steps: (a) determine which weather station (column B) is the most representative for the place of use (column C). The most representative weather station may not be in the county of the place of use, but must be nearby and about the same elevation and climatic conditions as the irrigated acres. A map showing the weather stations is located on the Internet at: http://dnrc.mt.gov/wrd/water_rts/default.asp; (b) find the evapotranspiration inches based on whether the historic irrigation is flood, wheeline, handline, or center pivot, to estimate the historic IWR (columns D or E); (c) identify the county in which the irrigated acres are located to determine the county management factor percentage (column F); (d) multiply the IWR estimate found in column D or E by the management factor percentage in column F. The result is the number of inches used per irrigated acre; (e) multiply the number of total acres within the historic place of use by the county adjusted inches used per irrigated acre calculated in (d) above to determine the historic consumptive inches for those acres; and (f) divide the cumulative historic consumptive inches from (e) by 12 to determine the cumulative historic consumptive acre-feet for the total acres. Table 1 -
AUTH: 85-2-112, MCA IMP: 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-436, MCA REASONABLE NECESSITY: An applicant and the department must be certain that the historic use of a water right that is being changed is accurately known. If a change authorization is granted that exceeds the historic use of the water right being changed, adverse affect to junior or senior water rights may occur. Often, the individuals who know about the historic use are no longer available; so, there can be difficulty in determining the exact amount of water that was historically used, and how that water right was historically operated. These rules are necessary to assist the public and the department to identify a credible amount of water that may have been historically used on irrigation water rights to facilitate changes in water rights. 4. 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 Kim Overcast, Department of Natural Resources and Conservation, 1424 Ninth Avenue, Helena, MT 59620; fax (406) 444-5918; or e-mail [email protected], and must be postmarked no later than June 29, 2009. 5. Kim Overcast, Department of Natural Resources and Conservation, has been designated to preside over and conduct the hearing. 6. An electronic copy of this Proposal Notice is available through the department's site on the World Wide Web at http://www.dnrc.mt.gov. The department strives to make the electronic copy of this Notice of Public Hearing on Proposed Amendment conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. 7. 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 that the person wishes to receive notices regarding conservation districts and resource development, forestry, oil and gas conservation, trust land management, water resources, or a combination thereof. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be sent or delivered to the contact person in (4) above or may be made by completing a request form at any rules hearing held by the department. 8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply. DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION Mary Sexton Anne Yates MARY SEXTON ANNE YATES Director Rule Reviewer Natural Resources and Conservation Certified to the Secretary of State May 18, 2009. |
A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
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