BEFORE THE DEPARTMENT OF NATURAL RESOURCES

AND CONSERVATION OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 36.12.102, 36.12.103, 36.12.905, 36.12.1301, 36.12.1702, 36.12.1902 and the adoption of New Rule I regarding water right permitting

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NOTICE OF AMENDMENT AND ADOPTION

 

To:       All Concerned Persons

 

            1.  On June 6, 2013, the Department of Natural Resources and Conservation published MAR Notice No. 36-22-174 regarding a notice of public hearing on the proposed amendment and adoption of the above-stated rules at page 931 of the 2013 Montana Administrative Register, Issue No. 11.

 

            2. The department has amended ARM 36.12.905, 36.12.1301, 36.12.1702, and 36.12.1902 as proposed.

 

            3. The department has amended ARM 36.12.102 and 36.12.103 as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

            36.12.102 FORMS

            (1) through (1)(ai) remain as proposed.

            (aj) Form No. 652, "Petition for Net Stream Depletion Zone.".

 

            36.12.103 FORM AND SPECIAL FEES

            (1) through (2)(aa) remain as proposed.

            (ab) $750 for Form No. 652, Petition for Net Stream Depletion Zone.

            (3) and (4) remain as proposed.

 

            4. The department has adopted New Rule I (36.12.2101) as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

            NEW RULE I (36.12.2101) TEMPORARY LEASE OF APPROPRIATION RIGHT (1) An appropriator wishing to temporarily lease a water right pursuant to 85-2-427, MCA, must file an application to temporarily lease an appropriation right (Form 650). An application may only be filed by the owner of the water right as recorded in the department's water rights records.

            (2) and (3) remain as proposed.

            (4) The department will use the following standards for consumptive use when reviewing applications for temporary leases:

            (a) for irrigation, consumptive use is volume may not exceed 1.0 acre-foot per acre irrigated as defined in 85-2-427(2), MCA;

            (b) through (6) remain as proposed.

 

5. The department has thoroughly considered the comments received. A summary of the comments received and the department's responses follow:

 

COMMENT 1:

Commenter stated that New Rule I Temporary Lease of Appropriation Right needs to clarify that "the two out of every ten years provision" (ARM 36.12.2101(2)) only applies to temporary leases under HB 37 (Chapter 236, 2013 Laws of Montana), not instream flow leases under 85-2-408, MCA. 

 

RESPONSE 1:

The department intends that the rule only implement 85-2-427, MCA, as noted in the cited implementation statute. In order to clarify the entire rule, the department has amended New Rule I(1) (ARM 36.12.2101(1)) to read: "An appropriator wishing to temporarily lease a water right pursuant to 85-2-427, MCA, must file an application to temporarily lease an appropriation right (Form 650). An application may only be filed by the owner of the water right as recorded in the department's water rights records."

 

COMMENT 2:

Commenter provided general suggestions for the content and use of proposed form "Petition for Net Depletion Zone."

 

RESPONSE 2: 

85-2-112(2), MCA, authorizes the department to develop forms consistent with the requirements of Title 85, chapter 2, MCA. Pursuant to this authority, the department will develop an appropriate Form No. 652 setting forth the information required by the department to initiate rulemaking to establish a stream depletion zone consistent with SB 346.

 

COMMENT 3:

Commenter was concerned that SB 346 (Chapter 421, 2013 Laws of Montana) does not use the term "Net Depletion Zone," and that the proposed title for Form 652 in ARM 36.12.102(1)(aj) and 36.12.103(2)(ab) was inaccurate.

 

RESPONSE 3:

The department agrees and has amended the title of Form 652 in ARM 36.12.102(1)(aj) and 36.12.103(2)(ab) to "Petition for Net Stream Depletion Zone."

 

DEPARTMENT COMMENT:

85-2-427(2), MCA, provides: "For an irrigation right, the consumptive volume may not exceed 1 acre-foot per acre irrigated." The department has determined the language and citation to 85-2-427, MCA, in New Rule I(4)(a) was deficient and conflicted with the statutory section implemented by the rule. The department has amended New Rule I (ARM 36.12.2101(4)(a)) to correct the language and citation to conform with the statute.    

 

DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION

 

/s/ John E. Tubbs                                                                /s/ Brian Bramblett 

JOHN E. TUBBS                                                                BRIAN BRAMBLETT

Director                                                                                Rule Reviewer

Natural Resources and Conservation

 

 

Certified to the Secretary July 15, 2013.