Montana LC 1453: Align provisional water rights with final decrees

Bill Text

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69th Legislature 2025 LC 1453
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1 _____________ BILL NO. _____________
2 INTRODUCED BY _________________________________________________
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT REVISING WATER LAWS TO ALIGN PROVISIONAL WATER
5 RIGHTS WITH FINAL DECREES; CLARIFYING PROCESSES FOR POST-DECREE PETITIONS TO
6 REDUCE, MODIFY, OR REVOKE PERMITS; CLARIFYING POST-DECREE VERIFICATION OF PERMITS
7 AND CHANGES IN APPROPRIATION RIGHTS; AND AMENDING SECTIONS 85-2-313, 85-2-315, AND 85-2-
8 402, MCA.”
9
10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
11
12 Section 1. Section 85-2-313, MCA, is amended to read:
13 "85-2-313. Provisional permit. (1) A permit issued prior to a final determination of existing water
14 rights is provisional and is subject to that final determination. Upon petition, the amount of the appropriation
15 granted in a provisional permit must be reduced, modified, or revoked by the department following a show
16 cause hearing in which it is determined that reduction, modification, or revocation is necessary to protect and
17 guarantee existing water rights determined in the final decree. Because a provisional permit is issued on a
18 reasonable determination of legal availability under 85-2-311(1)(b), in a show cause hearing under this section,
19 legal availability must be determined on a consideration of the final decree in the affected basin or subbasin. A
20 permit authorized prior to the issuance of a final decree pursuant to 85-2-234 in the basin where the permit is
21 located is provisional and is subject to that final decree. A person may not obtain any vested right to an
22 appropriation obtained under a provisional permit by virtue of construction of diversion works, purchase of
23 equipment to apply water, planting of crops, or other action where in which the permit would have been denied
24 or modified if the final decree had been available to the department.
25 (2) (a) Within 60 days after the issuance of a final decree pursuant to 85-2-234, the department
26 shall serve, by first-class mail, owners of record of existing water rights and provisional permits within the
27 decreed basin with a notice of final decree and opportunity to petition for the reduction, modification, or
28 revocation of a provisional permit located in the decreed basin.
(Primary Sponsor)

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1 (b) The department shall also provide notice to other interested persons who request service of the
2 notice of final decree from the department.
3 (c) For basins in which a final decree was issued prior to January 1, 2026, the department shall
4 provide notice by January 31, 2026, in accordance with subsections (2)(a) and (2)(b).
5 (3) (a) An owner of an existing water right in the decreed basin may file a correct and complete
6 petition to reduce, modify, or revoke a provisional permit issued prior to the final decree in the subject basin.
7 Within 180 days of issuance of the notice required under subsection (2), the petition must be:
8 (i) made on a form prescribed by the department;
9 (ii) filed with the department; and
10 (iii) served by first-class mail on all owners of record of the provisional permit.
11 (b) The department shall notify the petitioner of any defects in a petition within 60 days of the close
12 of the petition period described in subsection (3)(a). A petition that is not corrected and completed within 30
13 days of the notice of the defects is terminated. If the department does not notify the petitioner of any defects
14 within 60 days, the petition must be treated as correct and complete.
15 (c) The department shall provide notice of a correct and complete petition to the petitioner and
16 each owner of record of the provisional permit identified in the petition by first-class mail. Within 60 days of the
17 notice, the owner of a provisional permit identified in a petition may file a response to the petition with the
18 department and serve the response on the petitioner by first-class mail.
19 (d) The petitioner shall prove by a preponderance of the evidence that:
20 (i) reduction, modification, or revocation of the provisional permit is necessary to protect the
21 petitioner's existing water right determined in the final decree;
22 (ii) the provisional permit would have been denied or modified if the final decree had been
23 available to the department; and
24 (iii) based on the findings of the final decree, water could not be considered legally available at the
25 time of issuance of the permit.
26 (e) Within 120 days of the close of the 60-day response period provided in subsection (3)(c), the
27 department shall deny the petition or propose to reduce, modify, or revoke the provisional permit based on the
28 information in the petition, the response, the final decree, the records of the department, and other evidence

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1 submitted to the department. The department shall conside