Matter of the Activities of Dnrc

IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 86-397
___________________________________
IN RE THE MATTER OF THE REVISIONS TO THE )
WATER RIGHT CLAIM EXAMINATION RULES ) ORDER
AND THE WATER COURT PRACTICE AND )
PROCEDURE RULES. )
___________________________________
On December 30, 2004, the Honorable Bruce C. Loble, Chief Water Judge of the
Montana Water Court, filed herein a Petition to Revise Water Right Claim Examination
Rules (Petition). The Petition proposed universal revisions of the Water Right Claim
Examination Rules adopted by this Court in 1991. The 1991 Water Right Claim
Examination Rules apply to the water right claim examination duties of the Department of
Natural Resources and Conservation (DNRC) and to the Water Court’s water adjudication
duties. The Petition proposed revisions both to the water right claim examination duties of
DNRC and to the Water Court’s practice and procedure rules.
We issued an order on January 19, 2005, directing that the bench and bar and any
interested persons file written comments, suggestions, or criticisms to the Clerk of this Court
regarding the Petition filed by the Water Court on or before April 30, 2005. We later
extended the comment deadline to May 31, 2005, at the request of the Water Court, in an
order dated May 11, 2005. Various entities, including DNRC, the Department of Fish,
Wildlife and Parks (DFWP), and the Montana Stockgrowers Association (MSGA) filed
comments on the Petition.
The Court considered the Petition at its public meeting conducted on August 31, 2005.
The Court deferred adoption of the proposed rules until the Water Court and the interested
parties could collaborate on further revisions. This collaboration resulted in the Water Court
filing a First Amended Petition to Revise Water Right Claim Examination Rules (First
Amended Petition). The First Amended Petition supersedes the original Petition filed by the
Water Court.
The First Amended Petition focuses on revisions to rules currently used by DNRC in
conducting its examination of water right claims. We have attached the new Water Right
Claim Examination Rules to this Order as Exhibit A. DNRC, DFWP, and MSGA submitted
comments on the proposed Water Right Claim Examination Rules contained in the First
Amended Petition. All parties supported the adoption of the proposed Water Right Claim
Examination Rules 1 through 26 and Rules 28 through 46, including the title page and table
of contents. DFWP objected to the requirement in proposed Rule 27 (h)(5), that the Water
Court hold a hearing to determine the validity of every wildlife, recreation, and fish and
wildlife claim, other than claims filed by the DFWP under the Murphy right statutes. MSGA
filed a response to DFWP’s objection.
The Water Court filed a Second Amended Petition to Revise Water Right Claim
Examination Rules (Re: Water Court Practice and Procedure Rules) (Second Amended
Petition) on May 30, 2006. The Second Amended Petition also supersedes the original
Petition filed by the Water Court. The Second Amended Petition focuses on the practice and
procedure rules used by the Water Court. The Second Amended Petition also recommends
that the title of these practice and procedure rules be changed to Water Right Adjudication
Rules. We have attached the new Water Right Adjudication Rules to this Order as Exhibit B.
DNRC and DFWP also submitted comments on the proposed Water Right Claim
Examination Rules contained in the Second Amended Petition. DFWP objected to proposed
W.R.Adj.R. 9(b), Notice of Intent to Appear (NIA), on the grounds that it fails to reflect
Water Court decisions on the scope of NIA participation.
The Court reviewed the comments submitted by the Water Court, DNRC, DFWP, and
MSGA to the First Amended Petition and the Second Amended Petition. The Court also
discussed the First Amended Petition and the Second Amended Petition at its public meetings
conducted on August 31, 2005, and September 26, 2006. We express our sincere
appreciation to the Water Court and to all of the interested parties for their participation,
cooperation, and collaboration in seeking consensus in the revision of the proposed rules.
The Court first determines that DFWP correctly points out that the Montana Code
contemplates when hearings are necessary. Section 85-2-248(8), MCA, requires the Water
Court to hold an evidentiary hearing on any issue remark that remains unresolved by the
2
process set out in § 85-2-248(2)-(7), MCA. We agree with DFWP that many of the remarks
on wildlife, recreation, and fish and wildlife claims likely would be resolved through the
process set out in § 85-2-248(2)-(7), MCA. As a result, we adopt DFWP’s amended Water
Right Claim Examination Rule 27(h)(5), as reflected in the attached Exhibit A.
We next recognize DFWP’s concern of a potential conflict between the Water Court’s
past decisions on the scope of NIA participation and the scope as allowed under proposed
Rule 9(b), W.R.Adj.R. We conclude, however, that the better practice would be to resolve
any conflicts arising between the Water Court’s application of M. R. Civ. P. 24 and its
application of Rule 9(b), W.R.Adj.R., when a case in controversy exists rather than issue
what would amount to an advisory opinion.
The Court has determined that the proposed rules, including the revisions to the claim
examination rules set forth in the First Amended Petition, and the revisions to the Water
Court practice and procedure rules set forth in the Second Amended Petition, would benefit
the Water Court and parties appearing before it, promote the prompt and accurate resolution
of water right claims and disputes, and facilitate the completion of water rights adjudications
in Montana. These determinations complete our review and approval of the proposed rules,
with one exception.
The one exception involves the issue of the appearance of non-lawyers in the Water
Court on behalf of parties. DFWP argued that non-lawyers have appeared in Water Court
proceedings far beyond the parameters of pro se representation allowed in Montana district
courts. DFWP asked this Court to clarify the Water Court’s policies for non-lawyer
appearances. The Water Court justifiably relied upon informal advice provided by the Chief
Justice of the Supreme Court in 1993 regarding the acceptability of the Water Court’s
historical practice of allowing non-lawyer appearances in circumstances that exceeded the
parameters of pro se representation allowed in Montana district courts. The time has come,
however, to move the Water Court into compliance with Montana law regarding the
unauthorized practice of law.
The Court agrees with DFWP that the Water Court needs to clarify its policies and
rules regarding non-lawyer appearances. The Water Court will promulgate, in consultation
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with DNRC, DFWP, and other interested parties, rules regarding non-lawyer appearances in
Water Court. These proposed rules will apply prospectively only and will reflect the unique
nature of practice in the Water Court. At the same time, however, these proposed rules must
comport with the requirements of § 37-61-210, MCA, and the Rules of the Commission on
the Unauthorized Practice of Law, adopted in 1991, and amended in 2000.
Therefore,
IT IS HEREBY ORDERED that the First Amended Petition to Revise the Water Right
Claim Examination Rules is GRANTED, with the revised rules to take effect upon the date
of this Order;
IT IS FURTHER ORDERED that the Second Amended Petition to revise the Water
Rights Adjudication Rules is GRANTED, with the revised rules to take effect upon the date
of this Order;
IT IS FURTHER ORDERED that the Water Court, in consultation with DNRC,
DFWP, and other interested parties, shall file with this Court within 60 days, proposed rules
on non-lawyer appearances in Water Court;
IT IS FURTHER ORDERED that the State Bar of Montana publish in the next
available issue of The Montana Lawyer a copy of this Order. The notice shall indicate that
copies of the revised Water Right Claim Examination Rules, attached as Exhibit A, and the
revised Water Right Adjudication Rules, attached as Exhibit B, are available for review and
copying on the State Bar of Montana and the Montana State Law Library websites,
www.montanabar.org and courts.mt.gov/library The Clerks of the District Courts of the
State of Montana and the Clerk of the Montana Water Court also shall post a copy of this
Order for public review in these offices.
IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by
mail to Peggy Probasco, President of the State Bar of Montana; Chris Manos, Executive
Director, State Bar of Montana; The Honorable C. Bruce Loble, Chief Water Judge, Montana
Water Court; Tim D. Hall, Legal Counsel, Montana Department of Natural Resources and
Conservation; G. Steven Brown, Attorney for the Montana Board of Natural Resources and
Conservation; Mike Murphy, Executive Director of the Montana Water Resources
4
Association; Krista Lee Evans, Environmental Quality Council; Judy Meadows, Librarian,
State Law Library, and Gregory J. Petesch, Code Commissioner. The Clerk of this Court
also shall give notice by electronic mail to the Clerks of the District Courts of the State of
Montana. The Clerks of the District Courts of the State of Montana shall, in turn, post a copy
of this Order for public review in these offices, and shall provide a copy of this Order to the
respective District Court Judges.
IT IS FURTHER ORDERED that the Montana Water Court shall mail a copy of this
Order to the members of the Water Adjudication Advisory Committee.
DATED this 6th day of December 2006.
/S/ KARLA M. GRAY
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
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Exhibit A
WATER RIGHT CLAIM EXAMINATION RULES
AMENDED BY THE MONTANA SUPREME COURT
EFFECTIVE
DECEMBER 5, 2006
TABLE OF CONTENTS
FOR
THE WATER RIGHT CLAIM EXAMINATION RULES
Page
I. Introductory Provisions
1. Scope of Rules 1
2. Definitions 2
3. Centralized Record System 11
4. Standard Measurements of Water 13
5. Summary Report 14
II. Irrigation Claims
6. Purpose 17
7. Owner Name and Address 18
8. Point of Diversion (POD) 19
9. Means of Diversion 22
10. Reservoirs 23
11. Source 25
12. Place of Use (POU) 27
13. Priority Date 30
14. Flow Rate 35
15. Volume 39
16. Period of Use 42
III. Domestic Claims
17. Reference to Irrigation Chapter 45
18. Place of Use (POU) 45
19. Flow Rate and Volume 47
20. Period of Use 51
6
IV. Stockwater Claims
21. Reference to Irrigation Chapter 53
22. Point of Diversion (POD) 53
23. Place of Use (POU) 53
24. Flow Rate and Volume 55
25. Period of Use 59
V. Other Uses Claims
26. Reference to Irrigation Chapter 60
27. Purpose 61
28. Place of Use (POU) 64
29. Flow Rate and Volume 65
30. Period of Use 71
31. Point of Diversion (POD) and Means of Diversion 73
for Instream or Inlake Appropriations
VI. General Provisions
32. Public Meetings 74
33. Clarification 75
34. Amendments to Claims 77
35. Implied Claims 79
36. Claims Filed After April 30, 1982 81
37. Termination of a Claim 83
38. Ownership Updates 84
39. Change in Appropriation Right 86
40. Supplemental Rights 88
41. Multiple Use of a Right 89
42. Irrigation Districts 90
43. Documenting the Department's Examination 91
44. Claimant Contact 92
45. Returned Mail 93
46. Post-Decree Revisions 95
7
EXHIBITS
A. Example of Department's Summary Report with Water Right
Abstract
B. Definition of Claimant Contact Regarding Irrigated Acres
C. Example Claim Amendment Form
D. Example Claim Termination Form
WATER RIGHT CLAIM EXAMINATION RULES
AMENDED BY THE MONTANA SUPREME COURT
EFFECTIVE
DECEMBER 5, 2006
I. INTRODUCTORY PROVISIONS
RULE 1. SCOPE OF RULES
Rule 1(a). Purpose. As provided by § 85-2-101(4), MCA:
“Pursuant to Article IX, Section 3(1) of the Montana Constitution, it
is further the policy of the state and a purpose of this chapter to
recognize and confirm all existing rights. . . for any useful or
beneficial purpose.”
Rule 1(b). Role of the department. These water right claim
examination rules are applicable to the Department of Natural
Resources and Conservation (department) and specify how water
right claims are examined prior to decree issuance by the
department during Montana's general water rights adjudication.
Throughout the adjudication process, the department is an
executive agency providing technical assistance and information to
the water court subject to the direction of water judges, pursuant to
§ 85-2-243, MCA. The department assists the water court by
gathering, examining, and reporting data, facts, and issues
pertaining to the claims of existing rights. In examining claims, the
department's role is limited to factual analysis and the identification
of issues. The water right claim examination rules describe how the
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department gathers data and facts pertinent to the claims of
existing water rights. The water court determines the necessity and
scope of any preliminary department examination as set out in
these rules, but in no way influences the results of the directed
examination.
Rule 1(c). Title. These rules shall be known as the Water Right
Claim Examination Rules and may be cited as Rule ___, W.R.C.E.R.
RULE 2. DEFINITIONS
Rule 2(a). Adjudication definitions. Unless the context
requires otherwise, the following definitions apply in these rules.
(1) “Abstract” means the computer printout of each claim of
an existing water right showing the information submitted on the
original or amended statement of claim, any changes authorized by
these rules or by the water court, remarks noting any obvious
factual or legal issues presented by the claim, and other remarks
explaining the nature and extent of the claimed water right.
(2) “Acreage” means the number of irrigated acres.
(3) “Adjudication” means the judicial determination of water
rights that existed prior to July 1, 1973, including the total or
partial abandonment of existing water rights occurring at any time
before the entry of the final decree.
(4) “Amended Claim” means the contents of a submitted claim
as altered or changed by the claimant as to any matter contained in
the original claim and as allowed by the water court.
(5) “Animal Unit” means a measurement of livestock numbers.
For example, one cow and calf pair is one animal unit, three pigs
are one animal unit, five sheep are one animal unit, and one horse
is 1.5 animal units.
(6) “Appropriate” means to divert, impound or withdraw a
quantity of water for a beneficial use.
(7) “Associated Rights” means more than one water right used
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at a common point of diversion, place of use or place of storage.
(8) “Basin Code” means the respective number/letter
combination used to identify each of the 85 basins in Montana (e.g.
43QJ) according to the Atlas of Water Resources of Montana
prepared by the Montana water resources board.
(9) “Beneficial Use” means a use of water recognized as
beneficial prior to July 1, 1973 and used for the benefit of the
appropriator, other persons, or the public and may include but not
be limited to irrigation, stock, domestic, fish and wildlife, industrial,
mining, municipal, power generation, and recreational uses.
(10) “Centralized Record System” means the original,
electronic, microfilm or scanned records of all claims of existing
rights, permits, certificates, applications, ownership updates, and
other documents filed with the department.
(11) “Change in Appropriation Right” means a change made in
accordance with § 85-2-402, MCA.
(12) “Claim” or “Statement of Claim” means a sworn
statement of claim for an existing water right, as defined in § 85-2-
224, MCA, filed with the department upon order of the Montana
supreme court.
(13) “Claimant” means any individual, association,
partnership, corporation, state agency, political subdivision, Tribe,
the United States or any agency of the United States, or any other
entity, who has filed a statement of claim or is successor in interest
to a statement of claim as identified in the centralized records
system.
(14) “Claimant Contact” means communication between the
department and a claimant or claimant's authorized representative
regarding the claimed water right.
(15) “Clarification” means the process by which elements of a
water right are made more complete, clear, concise and
10
interpretable without changing the intent of the claimed
information.
(16) “Climatic Area” means areas defined by differing climatic
and geographic conditions containing similar crop consumptive use
data as delineated by the United States Department of Agriculture
Natural Resource Conservation Service.
(17) “Decree Abstract” means the abstract that is part of a
water court issued decree. The decree abstract contains the
original or amended claim information, changes authorized by these
rules or the water court, and water court ordered data, changes and
remarks.
(18) “Decreed Right” means a claimed water right determined
in a judicial decree prior to the commencement of this adjudication
or after commencement of this adjudication as provided in § 85-2-
216, MCA.
(19) “Department” means the Montana Department of Natural
Resources and Conservation.
(20) “Enforceable priority date” means a priority date of June
30, 1973, or later, which is administratively assigned to late claims
that are subordinate to valid, timely filed claims and certain permits
in accordance with § 85-2-221(3)(f), MCA.
(21) “Examination” means the process under these rules of
examining, gathering information, and reporting data, facts, and
issues pertaining to the claims of existing water rights. Prior to the
adoption of the Water Right Claim Examination Rules on July 15,
1987, this process was referred to as “verification”.
(22) “Exempt Water Right” means an existing water right for
which a statement of claim did not have to be filed pursuant to §
85-2-222, MCA.
(23) “Existing Water Right” means a right to the use of water
that would be protected under the law as it existed prior to July 1,
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1973. The term includes federal non-Indian and Indian reserved
water rights created under federal law and water rights created
under state law.
(24) “Field Investigation" means an on-site inspection, under §
85-2-243, MCA, of physical evidence and features relating to the
individual elements of a claimed water right.
(25) “Filed Appropriation Right” means a water right which
has been filed and recorded in the office of the county clerk and
recorder as provided by statute prior to July 1, 1973.
(26) “Final Decree” means the final water court determination
of existing water rights within a basin or subbasin, as described in
§ 85-2-234, MCA.
(27) “Flow Rate” means the rate at which water has been
diverted, impounded, or withdrawn from the source for beneficial
use.
(28) “Groundwater” means any water under the surface of the
land including the water under the bed of any stream, lake,
reservoir, or other body of surface water. Section 89-2911, R.C.M.
1947 (1961 Groundwater Code).
(29) “Guideline” means an estimate of reasonable use to be
used as the benchmark for initiating further department review or
claimant contact under these rules. The estimate of reasonable
water use is derived from technical data and recommendations of
the department and adopted by the water court.
(30) “Historical Irrigation” means irrigation that took place for
the first time before July 1, 1973.
(31) “Historical Right” means an existing water right claim.
(32) “Household” means the dwelling, house, or other
domestic facilities where a person, family or social unit lives.
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(33) “Implied Claim” means a claim authorized by the water
court to be separated and individually identified when a statement
of claim includes multiple rights.
(34) “Interior Drainage” means an area in which water drains
into a depression from which water only escapes by
evapotranspiration or subsurface drainage. The scale varies from a
small kettle in a glaciated area to a large playa lake, such as the
Great Salt Lake in Utah.
(35) “Irrigation” means the application of water to the land to
eliminate the moisture limitation to crop production. (Soil
Conservation Service, 1979.)
(36) “Irrigation District” means a statutory district created
pursuant to Title 85, Chapter 7, MCA.
(37) “Lake” means a naturally occurring inland body of water.
(38) “Late Claim” means a claim to an existing water right
forfeited pursuant to the conclusive presumption of abandonment
under § 85-2-226, MCA.
(39) “Legal Land Description” means the description given to a
parcel of land in terms of, but not limited to, quarter section,
section, township, range, and county.
(40) “Means of Diversion” means the structures, facilities, or
methods used to appropriate water from the source of supply. For
instream or inlake appropriations, the means of diversion is
“instream.”
(41) “Microfilm Record” means a photographic film record on a
reduced scale of all paper documents related to a water right.
(42) “Multiple Use” means the same appropriation used for
more than one purpose by a single owner.
(43) “Natural Overflow” means the water that results in the
flooding of land adjoining a stream during high flow with no man-
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made diversion involved.
(44) “Natural Subirrigation” means a naturally occurring high
water table condition that supplies water for crop use.
(45) “Non-consumptive” means a beneficial use of water that
does not cause a reduction in the source of supply.
(46) “On-site visit” means a field investigation conducted at a
claimant’s invitation.
(47) “Other Uses” means all uses of water for beneficial
purposes other than stockwater, domestic, and irrigation uses.
(48) “Owner” means any person, according to § 85-2-102,
MCA, who has title or interest in water rights or properties.
(49) “Ownership Update” means the updating of the
department’s water right ownership records by the filing of an
Ownership Update Form, Form #608, formerly known as a water
right transfer certificate, pursuant to §§ 85-2-421 through 85-2-
426, MCA. The department’s form does not transfer water rights or
legally determine water right ownership. It updates the
department’s centralized record system to reflect the ownership
identified on the legal documents that actually transfer water rights.
(50) “Period of Diversion” means the period in a calendar year
when water is diverted, impounded or withdrawn from the source.
(51) “Period of Use” means the period in a calendar year when
water is used for a specified beneficial use.
(52) “Place of Use” (POU) means the lands, facilities, or sites
where water is beneficially used.
(53) “Point of Diversion” (POD) means the location or locations
where water is diverted from the source. For instream or inlake
appropriations, the point of diversion is the portion of the source in
which the instream or inlake use occurs.
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(54) “Preliminary Decree” means the preliminary water court
determination of existing water rights within a basin or subbasin as
described in § 85-2-231, MCA, which precedes the final decree.
(55) “Priority Date” means the allocation date associated with
a beneficial use of water which determines ranking among water
rights, usually expressed by day, month, and year.
(56) “Regional Office” means a branch office established by the
department to provide water right information and assistance to the
public or public agencies.
(57) “Remarks” means statements added to the decree
abstract by the department or the water court to limit or define a
water right, to explain unique aspects of the water right, and to
identify potential factual and legal issues. Remarks that limit,
define, or explain unique aspects of a claim are “clarifying” or
“information” remarks. Remarks that identify potential factual and
legal issues are “issue” remarks.
(58) “Reserved Water Rights” means a right to use water that
is expressly or impliedly reserved by treaty, an act of Congress, or
an executive order.
(59) “Reservoir” means a storage facility, created or
augmented by manmade means that impounds and stores water for
beneficial use.
(60) “Scanned Record” means a digitally scanned record of
paper documents related to a water right.
(61) “Service List” means the list of persons notified of all
future hearings or proceedings relevant to a specific claim or case.
This list may include the claimants and their representatives, any
objectors and their representatives, any persons filing a notice of
intent to appear and their representatives, any counterobjectors
and their representatives, any intervenors and their representatives,
and other persons receiving courtesy notification.
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(62) “Source” means the specific supply from which water is
taken for a beneficial use.
(63) “Split Claim” means the division of one water right claim
into two or more separate claims. When a claim is split, one portion
of the claim maintains the original claim number and the other
separated portions are assigned new claim numbers.
(64) “Spring” means a naturally occurring extrusion of
groundwater upon the land surface.
(i) “Developed Spring” means a spring with some man-
made development at or below the point of extrusion that brings
additional flow to the surface which would not naturally be
available for use and is classified as groundwater.
(ii) “Undeveloped Spring” means the flow from the spring
is not increased by some development at its point of extrusion from
the ground and is classified as surface water.
(65) “Subbasin” means a designated area that drains surface
water to a common point within a basin.
(66) “Summary Report” means the department’s report to the
Montana water court consisting of individual abstracts, the claimed
and clarified data and a summary of the department's examination
findings for each claim within a basin or subbasin.
(67) “Supplemental Rights” means separate water rights for
the same purpose, owned by the same claimant, and used on
overlapping places of use.
(68) “Surface water” means water occurring at or on the
surface of the ground, including but not limited to any river,
stream, creek, ravine, coulee, undeveloped spring, lake and other
source of water.
(69) “Temporary Preliminary Decree” means a water court
16
decree, prior to the issuance of the preliminary decree, as necessary
for the orderly administration of existing water rights pursuant to §
85-2-231, MCA.
(70) “Type of Historical Right” refers to the historical basis of
an existing water right as a decreed right, filed appropriation right,
reserved right or use right.
(71) “Use Right” means a claimed existing water right
perfected by appropriating and putting water to beneficial use
without written notice, filing, or decree.
(72) “Volume” means the amount of water which has been
diverted, impounded, or withdrawn from the source over a period of
time for beneficial use, usually measured in acre-feet per year.
(73) “Water Court” means the water division of the state
courts, presided over by water judges responsible for adjudicating
existing water rights in Montana, as provided for in Title 3, Chapter
7, MCA.
(74) “Water Judge” means a judge responsible for adjudicating
existing water rights as provided for in Title 3, Chapter 7, Part 2,
MCA.
(75) “Water Master” means a person appointed by a water
judge to assist in the adjudication of existing water rights as
provided for in Title 3, Chapter 7, Part 3, MCA, and Rule 53 of the
Montana Rules of Civil Procedure.
(76) “Water Resources Survey” (WRS) means a survey of water
resources and water rights in Montana on a county basis by the
former state engineer's office or water resources board,
predecessors of the department.
(77) “Water Spreading” means surface flood irrigation
involving the diversion of occasional (flood or runoff) surface water
from natural, usually nonperennial, watercourses by means of
dams, dikes, or ditches, or a combination of these. It differs from
17
conventional irrigation because it is totally dependent on and
regulated by the availability of water, not crop needs.
(78) “Well” means any artificial opening or excavation in the
ground, however made, by which groundwater can be obtained or
through which it flows under natural pressure or is artificially
withdrawn. Section 89-2911, R.C.M. 1947(1961 Groundwater
Code).
Rule 2(b). Non-adjudication definitions. For additional
definitions concerning post June 30, 1973 terms, see § 85-2-102,
MCA.
RULE 3. CENTRALIZED RECORD SYSTEM
Rule 3(a). Maintaining records. The centralized record system
for the adjudication is maintained by the department in three parts
as follows:
(1) numbered files of the original claim forms and
documentation submitted by the claimant along with related
materials added by the water court or the department;
(2) a computer record system which is initially the claimed
information as clarified by the department; and
(3) a microfilm or scanned record of each numbered claim file.
Rule 3(b). Finding information. All water right information as
claimed can be found in the claim file or microfilm or scanned
records maintained by the department. Additionally, the claim files
and the microfilm or scanned records will be updated to document
each stage of the adjudication process.
Rule 3(c). Data. The data in the computer record system,
initially the clarified claimed information, is used as the
adjudication process advances to prepare the department's
summary report and, ultimately, to produce the final decrees.
Rule 3(d). Changing water right claims. The department will
18
not change the claimed elements of an existing water right in the
computer record system except as follows:
(1) prior to issuance of a decree:
(i) to implement procedures as authorized in these rules;
(ii) to comply with § 85-2-103, MCA, § 85-2-402, MCA, and
§§ 85-2-421 through 85-2-426, MCA;
(iii) to reflect a claimant's amendments to a claim according
to Rule 34 W.R.C.E.R.;
(iv) to correct a department data entry error; or
(v) as specifically ordered or directed in writing by the
water court.
(2) after issuance of a decree:
(i) as specifically ordered or directed in writing by the water
court;
(ii) in compliance with § 85-2-402, MCA and §§ 85-2-421
through 85-2-426, MCA;
(iii) to change an owner address; or
(iv) to remove asterisks identifying changes to claimed
elements.
Rule 3(e). Public records. All records pertaining to the
centralized record system are public records and therefore open to
inspection by any person as provided in § 2-6-102, MCA. Prior to
final decree anything in the file is part of a work in progress and
may be subject to change.
Rule 3(f). Reproducing materials. For parties requesting
reproductions of department materials, fees will be charged and
19
collected at rates established by the department. Reproduced
materials for which costs will be recovered include, but are not
limited to, photocopies, copies from microfilm, copies of microfilm,
and computer generated materials.
Rule 3(g). Fees for decrees. Any person may obtain a copy of
a water court decree from the department for a fee covering the cost
of the printed or electronic copy. Indexes of decrees may be
obtained for a fee covering the cost of the printed or electronic copy.
RULE 4. STANDARD MEASUREMENTS OF WATER
Rule 4(a). Converting measurements. The department will
use the following conversions in determining equivalent flow rates
and volumes:
(1) forty (40) statutory or miner's inches equals 1.0 cubic
foot per second (cfs);
(2) one (1) miner's inch equals 11.22 gallons per minute
(gpm);
(3) one (1) cubic foot per second (cfs) equals 448.8 gallons
per minute (gpm); and
(4) one (1) acre-foot of water equals 325,851 gallons.
Rule 4(b). Units of water measurement. The decree abstract
and the department's summary report to the water court shall
identify units of water measurement in compliance with § 85-2-103,
MCA, as follows:
(1) for flow rates:
(i) less than one (1) cfs will be in units of gallons per
minute;
20
(ii) equal to or greater than one (1) cfs will be in units of
gallons per minute or cubic feet per second, as claimed or based on
the customary reference for the method of diversion;
(2) volumes will be in acre-feet or gallons.
RULE 5. SUMMARY REPORT
Rule 5(a). Summary report. The department will prepare a
summary report for each claim in a basin or subbasin as directed
by the water court, which will be submitted to the water court for
its review and use in adjudicating existing rights. An example is
shown as Exhibit A. The summary report of a claimed water right
is an abstract which includes:
(1) the claimed or clarified data, unless otherwise directed by
these rules, for the following elements:
(i) owner and address;
(ii) purpose;
(iii) source;
(iv) type of irrigation system;
(v) priority date;
(vi) type of historical right;
(vii) flow rate;
(viii) volume;
(ix) maximum acres;
(x) period of use;
(xi) point of diversion and means of diversion;
21
(xii) reservoir; and
(xiii) place of use.
(2) The department's data may supersede the claimed data.
Changes to claimed information made during the department's
examination will be denoted on the abstract.
(3) Other information necessary to describe a water right
will be listed on each abstract, where appropriate:
(i) basin code;
(ii) water right identification number;
(iii) surface water or groundwater designation;
(iv) climatic area for irrigation;
(v) number of households; and
(vi) period of diversion.
(4) Remarks limiting supplemental rights and multiple
uses of a right will be added according to Rules 40 and 41,
W.R.C.E.R.
(5) Other data and remarks to identify unique aspects or
features of the water right as required by these rules.
(6) Remarks concerning unresolved issues or questions
about an element identified during the examination of a water right
claim. When the department's examination substantiates or does
not appear to contradict those elements as claimed, no additional
facts, data, or issues will be reported.
Rule 5(b). Examining materials. The department's summary
report will be sent to the water court. The examination materials,
22
including but not limited to, computations, data and facts, and
correspondence are maintained in the claim file.
(1) The examination materials and summary report will be
available for inspection and copying by all persons.
(2) A microfilm or scanned copy of the examination
materials for a basin, when completed, will be located at the local
water resources regional office and the department's central office
in Helena.
(3) A printed, microfilmed or scanned copy of the summary
report for a basin, when completed, will be located at the water
court. The summary report at the water court must be returned to
the department five years after the decree is issued. The
department must maintain the summary report as a public
document as required by law.
(4) Inquiries concerning the examination materials and
summary report may be directed to the local water resources
regional office, or the department's central office in Helena. Any
legal issues raised shall be referred to the water court.
II. IRRIGATION CLAIMS
RULE 6. PURPOSE
Rule 6(a). Identifying purpose. Facts and information
concerning the purpose of a water right will be identified using the
information in the claim together with any other data gathered by
the department.
Rule 6(b). Examining purpose. When the claimed purpose
cannot be substantiated, the department will gather further facts
and data pertaining to the specific claim. The claimant may be
contacted pursuant to Rule 44, W.R.C.E.R. In addition, an on-site
visit may be conducted pursuant to Rule 44, W.R.C.E.R.
Discrepancies in the claimed purpose that may require claimant
contact or an on-site visit include, but are not limited to:
23
(1) the purpose cannot be discerned from the information
in the claim;
(2) the water use appears to be for a purpose other than
that claimed;
(3) the claimed purpose cannot be substantiated; or
(4) several purposes are indicated in the claim as multiple
uses of the right. Fire protection will be considered an incidental
use.
Rule 6(c). Multiple uses. All claims under one ownership will
be reviewed to identify multiple uses of a right pursuant to Rule 41,
W.R.C.E.R.
Rule 6(d). Changing purpose. The claimed purpose of a water
right will not be changed during the department's examination
unless:
(1) amended by the claimant; or
(2) clarified by the department to identify similar purposes
consistently.
Rule 6(e). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the purpose of a right:
(1) the claimed or clarified purpose;
(2) identification of unique aspects or features of the
purpose;
(3) for irrigation claims, the type of irrigation system;
(4) a notation of changes made during the department's
examination; and
24
(5) remarks concerning unresolved issues or questions
about the claimed purpose such as the following situations:
(i) the right apparently has not been used for the
claimed purpose for 10 or more consecutive years;
(ii) the right apparently has not been perfected; or
(iii) the type of irrigation is natural overflow.
RULE 7. OWNER NAME AND ADDRESS
Rule 7(a). Examining owner name and address. The name
and address on all water right claims by the same ownership will be
made consistent and current as follows:
(1) the name and address given for all water right claims
belonging to each claimant in a basin will be reviewed.
Discrepancies will be identified by comparing the claimant's name
and address with information on record with the department's
centralized record system, telephone directories, other sources, and
if necessary, claimant contact data; and
(2) ownership shall be updated in compliance with §§ 85-2-
421 through 85-2-426, MCA pursuant to Rule 38, W.R.C.E.R.
Rule 7(b). Changing owner name and address. The
department, as a result of its examination, may revise the
claimant's name or address to make them consistent and current.
RULE 8. POINT OF DIVERSION (POD)
Rule 8(a). Identifying point of diversion. The claimed POD
will be identified and described by the nearest reasonable and
concise legal land description.
(1) The information in the claim, aerial photographs,
topographic maps, Water Resources Survey information, county
land ownership records, and other sources available to the
department may be used to review the claimed POD.
25
(2) When the claimed POD cannot be substantiated, the
department will gather further facts and data pertaining to the
specific claim. The claimant may be contacted pursuant to Rule 44,
W.R.C.E.R. In addition, an on-site visit may be requested pursuant
to Rule 44, W.R.C.E.R.
(3) A diversion structure used for more than one claim will
have a consistent legal land description specified on all respective
claims.
Rule 8(b). Reviewing basin codes. Claims having diversions
within a common drainage basin or subbasin will be identified with
a common basin code. The basin code will be reviewed to confirm
that the claim has been grouped in the correct basin.
(1) If the department finds that a claim was omitted from a
basin where a decree has been issued, the water court shall be
notified.
(2) If the department finds that a claim was omitted from a
basin where a decree has not been issued, the department will
change the basin code in the claim file and in the centralized record
system.
Rule 8(c). Identifying interbasin transfers. When the POD is
in one basin and the place of use, or a portion thereof, is in another
basin, an interbasin transfer shall be identified for the basin of the
POU as well as the basin of the POD.
Rule 8(d). Changing point of diversion. The claimed point of
diversion of a water right will not be changed during the
department's examination unless:
(1) amended by the claimant;
(2) clarified by the department to the nearest reasonable
and concise legal land description; or
26
(3) revised to identify and describe a POD used by more
than one claim consistently.
Rule 8(e). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the point of diversion:
(1) the basin code designated by the department;
(2) the claimed or clarified legal land description;
(3) additional legal land descriptions identified by the
department such as government lots, subdivisions, certificates of
survey, homestead entry surveys, and mineral surveys;
(4) identification of named ditches or canals;
(5) identification of unique aspects or features of the point
of diversion;
(6) a notation of changes made during the department's
examination;
(7) a remark identifying an interbasin transfer of water;
Examples:
THIS APPROPRIATION OF WATER TAKES WATER FROM THE
_____ RIVER DRAINAGE (BASIN _____) AND USES IT IN THE
_____ RIVER DRAINAGE (BASIN _____). ANY OBJECTION TO
THIS RIGHT MAY BE FILED DURING THE OBJECTION
PERIODS FOR EITHER THE POINT OF DIVERSION OR PLACE
OF USE BASIN.
THIS APPROPRIATION OF WATER TAKES WATER FROM THE
_____ RIVER DRAINAGE (BASIN _____) AND USES IT IN THE
_____ RIVER DRAINAGE (BASIN _____) AND THE _____ RIVER
DRAINAGE (BASIN _____). ANY OBJECTION TO THIS RIGHT
MAY BE FILED DURING THE OBJECTION PERIODS FOR
EITHER THE POINT OF DIVERSION OR PLACE OF USE BASIN.
27
and
(8) remarks concerning unresolved issues or questions
about the claimed point of diversion such as the point of diversion
legal land description could not be refined.
RULE 9. MEANS OF DIVERSION
Rule 9(a). Identifying means of diversion. Facts and
information concerning the means of diversion of a water right will
be identified using the information in the claim, aerial photographs,
topographic maps, Water Resources Survey information, and other
sources available to the department.
Rule 9(b). Examining means of diversion. When the means
of diversion cannot be substantiated, the department will gather
further facts and data pertaining to the specific claim. The claimant
may be contacted pursuant to Rule 44, W.R.C.E.R. In addition, an
on-site visit may be requested pursuant to Rule 44, W.R.C.E.R.
Rule 9(c). Changing means of diversion. The claimed means
of diversion of a water right will not be changed during the
department's examination unless:
(1) amended by the claimant; or
(2) clarified by the department to identify similar means of
diversion consistently.
Rule 9(d). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the means of diversion:
(1) the claimed or clarified means of diversion;
(2) identification of unique aspects or features of the means
of diversion;
(3) a notation of changes made during the department's
28
examination; and
(4) remarks concerning unresolved issues or questions about
the means of diversion, such as “the means of diversion cannot be
identified.”
RULE 10. RESERVOIRS
Rule 10(a). Identifying reservoirs. When stored water is
claimed, the legal land description of the impoundment structure,
onstream and offstream designation, and the period of diversion will
be identified. When available, the following reservoir data will be
included:
(1) dam height;
(2) surface area;
(3) reservoir depth;
(4) maximum reservoir storage capacity; and
(5) reservoir name.
Rule 10(b). Reservoir data. The information in the claim
along with other data gathered by the department will be used to
check the reservoir designation.
(1) The legal land description will be identified to the
nearest reasonable and concise legal land description.
(2) When a reservoir is claimed, the claimant will be
contacted pursuant to Rule 44, W.R.C.E.R., to determine the period
of diversion.
(3) When the claimed volume is greater than 15 acre-feet
and less than 50 acre-feet, and data are not sufficient to identify the
size of the reservoir, the claimant may be contacted pursuant to
Rule 44, W.R.C.E.R., or the size of the reservoir may be estimated
by the department.
29
(4) When the claimed volume is greater than 50 acre-feet,
the claimant will be contacted pursuant to Rule 44, W.R.C.E.R. A
questionnaire may be sent to the claimant.
In addition, an on-site visit may be conducted pursuant to
Rule 44, W.R.C.E.R. Information to be obtained may include:
(i) dam height;
(ii) surface area;
(iii) reservoir depth;
(iv) maximum reservoir storage capacity;
(v) date constructed;
(vi) period of diversion into storage;
(vii) period of use from storage;
(viii) volume of use per year;
(ix) carry-over storage; and
(x) number of fills per year.
Rule 10(c). Flow rate guidelines. The flow rate guidelines for
claims involving reservoirs are found in the respective flow rate rule
of the irrigation, domestic, stock, and other uses chapters.
Rule 10(d). Volume guidelines. The volume guidelines for
uses involving reservoirs are found in the respective volume rule of
the irrigation, domestic, stock, and other uses chapters.
Rule 10(e). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning reservoirs including:
30
(1) a notation of the reservoir as onstream or offstream;
(2) the legal land description of the impoundment
structure;
(3) additional legal land descriptions identified by the
department such as government lots, subdivisions, certificates of
survey, homestead entry surveys, and mineral surveys;
(4) the period of diversion;
(5) the dam height, the surface area, reservoir depth, and
reservoir name, when available;
(6) identification of unique aspects or features of the
reservoir;
(7) a notation of changes made during the department
examination; and
(8) remarks concerning unresolved issues or questions
about the claimed reservoir such as the following situations:
(i) existence of the reservoir is unconfirmed; or
(ii) maximum claimed storage capacity differs from
department estimates.
RULE 11. SOURCE
Rule 11(a). Identifying source name. The source name will
be identified using information in the claim along with other data
gathered by the department. Source names for all claims on a
particular source will be made consistent.
(1) The United States Geological Survey (USGS)
topographic maps will serve to substantiate the claimed source
name.
(2) If the source or source name cannot be substantiated
31
on the USGS maps, the department will review Water Resources
Survey (WRS) maps, other published maps, or other available
information to substantiate the claimed source name. In addition
the claimant may be contacted pursuant to Rule 44, W.R.C.E.R.
Rule 11(b). Identifying and reviewing multiple sources.
When more than one source is indicated in a claim, the multiple
sources will be identified according to this rule. The claimant may
be contacted pursuant to Rule 44, W.R.C.E.R. When it appears
that more than one water right is claimed, the claim will be sent to
the water court requesting a review for possible implied claims
pursuant to Rule 35, W.R.C.E.R.
Rule 11(c). Changing claimed source. The department, as a
result of its examination, may revise the claimed source name using
the following standard descriptions to identify the same sources
consistently:
(1) streams, lakes, reservoirs, and named springs shall be
standardized using, in order of preference, USGS topographic
map, WRS map, or other published maps;
(2) the most common colloquial name will serve to identify
the source when not in conflict with the USGS or WRS maps;
(3) unnamed springs flowing into a named hydrological
feature shall be named "Spring Unnamed Tributary of ________”;
(4) named wells and unnamed wells shall be named
"Well";
(5) unnamed streams, lakes, and reservoirs flowing into a
named hydrological feature shall be named "Unnamed Tributary of
____________”; and
(6) other standard descriptions which accurately and
consistently describe the source.
Rule 11(d). Summary report. In the summary report to the
32
water court, the department shall provide on each abstract the
following data and facts concerning the source:
(1) the claimed source name or the standardized source
name as identified by the department;
(2) identification of the source type (surface water or
groundwater);
(3) identification of unique aspects or features of the
source;
(4) a notation of changes made during the department's
examination; and
(5) remarks concerning unresolved issues or questions
about the claimed source.
RULE 12. PLACE OF USE (POU)
Rule 12(a). Identifying place of use. The claimed POU will
be identified and described by the nearest reasonable and concise
legal land description and the associated irrigated acreage.
(1) The information in the claim, aerial photographs,
topographic maps, Water Resources Survey information, county
land ownership records, U. S. National Forest Service maps,
Bureau of Land Management maps, as well as other sources
available to the department may be used to review the claimed
POU and associated claimed acreage.
(2) When the claimed legal land descriptions or claimed
acreage cannot be substantiated, the claimant may be contacted
pursuant to Rule 44, W.R.C.E.R. In addition, an on-site visit may
be conducted pursuant to Rule 44, W.R.C.E.R. Discrepancies in
the claimed place of use that may require claimant contact or an
on-site visit include, but are not limited to:
(i) no legal land description is given for the claimed
33
place of use;
(ii) the claimed legal land description or claimed
acreage is vague or incomplete; or
(iii) the claimed legal land description or claimed
acreage is inconsistent with the source, point of diversion, or other
documentation or data.
Rule 12(b). Examining place of use. The claimant's map
and two or more post-priority date data sources, if available, will
be used to examine the claimed irrigated acreage.
(1) If the acreage identified by the department on any data
source differs significantly from the claimed acreage, additional
information will be gathered.
(2) Acreage differences exceeding the amount defined in
Exhibit B will require claimant contact pursuant to Rule 44,
W.R.C.E.R. If additional facts are needed, the department may
conduct an on-site visit pursuant to Rule 44, W.R.C.E.R.
Rule 12(c). Overlapping place of use. When the department
identifies a claimed POU of one party overlapping any portion of
the claimed POU of another party, both parties will be contacted
pursuant to Rule 44, W.R.C.E.R. If the parties do not reach
agreement among themselves resolving the overlapping POUs, the
overlap shall be identified as an issue in the summary report to
the water court. This section may not apply when one or more of
the parties is a ditch company or other water supply organization.
Rule 12(d). Changing place of use. The claimed place of use
and acreage irrigated of a water right will not be changed during
the department's examination unless:
(1) amended by the claimant; or
(2) clarified by the department to the nearest reasonable
34
and concise legal land description.
Rule 12(e). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the place of use:
(1) the claimed or clarified acreage;
(2) the claimed or clarified legal land description;
(3) additional legal land descriptions identified by the
department such as government lots, subdivisions, certificates of
survey, homestead entry surveys, and mineral surveys;
(4) identification of unique aspects or features of the place
of use;
(5) a notation of changes made during the department's
examination; and
(6) remarks concerning unresolved issues or questions
about the claimed place of use such as the following situations:
(i) the acreage found on a data source differs from
the acreage claimed by more than the amount specified in Exhibit
B;
Example:
USDA AERIAL PHOTOGRAPH NO. 179-150, DATED 11-05-79,
APPEARS TO INDICATE 50.00 ACRES IRRIGATED. A
DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE.
or
(ii) overlapping places of use on claims by different
owners.
35
Example:
THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT
WERE FILED BY DIFFERENT PARTIES WHO CLAIM
OVERLAPPING PLACES OF USE. 000000-00, 000000-00,
000000-00, 000000-00.
RULE 13. PRIORITY DATE
Rule 13(a). Identifying priority date. The claimed priority
date and claimed type of historical right will be identified from the
submitted documentation in the claim along with other data
gathered by the department.
Rule 13(b). Type of historical right. The type of
historical right (i.e., use right, filed appropriation right, decreed
right, reserved right) will be identified based on the definitions in
Rule 2, W.R.C.E.R.
(1) If the claimed type of historical right differs from the
definitions, or the information available is insufficient to
substantiate the type of historical right, the claimant will be
contacted pursuant to Rule 44, W.R.C.E.R.
(2) Claims for reserved rights will not be examined while
negotiations for the conclusion of a compact under Title 85,
Chapter 2, Part 7, MCA, are being pursued except as directed by
the water court.
Rule 13(c). Standardizing incomplete priority date. Each
claim will be reviewed to identify that the priority date (i.e., day,
month, and year) on the claim form is complete and consistent
with the submitted documentation.
(1) When no specific day, month, season, or year date is
on the claim form, information in the claim file will be checked to
see if a complete priority date exists.
(2) The priority date on the claim form will be compared
with the priority date referred to in the submitted documentation.
36
(3) Late claims will be reviewed to determine their
subordination status pursuant to 85-2-221(3), MCA. An
enforceable priority date of June 30, 1973 (11:59 P.M.) will be
assigned to late claims that are subordinate to valid, timely filed
claims under § 85-2-221(3)(f)(i), MCA.
Rule 13(d). Examining priority date. When the claimed
priority date is inconsistent, the department will gather further
facts and data pertaining to the specific claim. The claimant may
be contacted pursuant to Rule 44, W.R.C.E.R. Discrepancies in
the claimed priority date that may require claimant contact
include, but are not limited to:
(1) documentation to support a decreed or filed
appropriation right was not submitted;
(2) no priority date has been claimed;
(3) the priority date on the claim form of a decreed right
differs or cannot be identified from the submitted documentation;
(4) the priority date on the claim form of a filed surface
water appropriation (1885 surface water statutes) is other than the
earliest date on the document;
(5) the priority date on the claim form of a filed
groundwater appropriation (1961 groundwater statutes, sections
89-2911 et seq., RCM 1947) is not supported with documentation
or is other than the date the documentation was filed with the
county clerk and recorder;
(6) the priority date on the claim form of a use right is
other than the date of first use or as specified in the
documentation;
(7) the source or POU on the claim form differs
significantly from the source or POU provided in the priority date
37
documentation;
(8) duplicate claims of the same water right filed by the
same individual are identified;
(9) the claimed priority date is post-June 30, 1973;
(10) the claimed priority date is earlier than settlement
within a basin or subbasin according to historical records;
(11) a sprinkler system is claimed with a priority date
preceding 1950; or
(12) the claimed priority date of any claim based on the
same documentation is inconsistent.
Rule 13(e). Multiple priority dates. When more than one
priority date is indicated in a claim, the multiple priority dates will
be identified according to this rule. The claimant may be
contacted pursuant to Rule 44, W.R.C.E.R. When the two or more
priority dates are confirmed, the claim will be sent to the water
court requesting a review for possible implied claims pursuant to
Rule 35, W.R.C.E.R.
Rule 13(f). Changing priority dates. The claimed type of
water right or priority date will not be changed during the
department's examination unless:
(1) amended by the claimant; and
(2) clarified by the department;
(3) to complete day, month, season date or general year
when the claimed priority date is incomplete:
(i) if no day date, the last day of the month will be
used;
38
(ii) if no month date, the last month of the year will
be used;
(iii) if a general year is claimed, the date at the end
of the period will be used;
(iv) if a season is claimed, the following dates will be
used:
(A) Fall - December 19,
(B) Winter - March 19,
(C) Spring - June 19,
(D) Summer - September 19;
(4) to reflect the date a GW2 or GW3 groundwater notice
was filed with the county clerk in compliance with the 1961
groundwater statutes. The following remark shall be added to the
water right abstract:
Example:
THE PRIORITY DATE OF THIS WATER RIGHT HAS BEEN
CHANGED TO THE DATE OF FILING THE NOTICE OF
COMPLETION OF GROUNDWATER APPROPRIATION (FORM
GW2/GW3). THE PRIORITY DATE MAY BE CONTESTED BY
PROPER OBJECTION.
or
(5) to reflect the date the claim form was received by the
department when no indication that a groundwater notice was
filed in compliance with the 1961 groundwater statutes. The
following remarks shall be added to the water right abstract:
Examples:
THIS IS AN EXISTING RIGHT. ITS POST 1973 PRIORITY DATE
39
IS DECREED PURSUANT TO SECTION 85-2-306(2) MCA.
THE PRIORITY DATE OF THIS WATER RIGHT HAS BEEN
CHANGED TO THE FILING DATE OF THE STATEMENT OF
CLAIM. THE PRIORITY DATE MAY BE CONTESTED BY
PROPER OBJECTION.
Rule 13(g). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the priority date:
(1) the claimed or clarified type of historical right;
(2) the claimed or clarified priority date, or the priority
date as specified in these rules;
(3) identification of unique aspects or features of the
priority date;
(4) a notation of changes made during the department's
examination; and
(5) remarks concerning unresolved issues or questions
about the claimed priority date such as the following situations:
(i) questions concerning the claimed priority date or
claimed type of historical right as specified in this rule;
(ii) a use right or a filed right appears improperly
claimed on a prior decreed source; or
(iii) no priority date has been claimed.
RULE 14. FLOW RATE
Rule 14(a). Identifying flow rate. Facts and information
concerning flow rate for the claimed system will be identified using
information in the claim along with other data gathered by the
department.
40
Rule 14(b). Guideline. The guideline for irrigation within a
basin or subbasin will be the flow rate necessary to reasonably
irrigate one acre of crop.
(1) The flow rate guideline will be 17 gallons per minute
per acre (gpm/ac) and was based on:
(i) the commonly accepted method of irrigation;
(ii) the peak consumptive use of alfalfa during a
drought year growing season; and
(iii) a reasonable efficiency for the method of
irrigating the field.
(2) The flow rate guideline for reservoirs associated with
irrigation use claims will be as follows:
(i) for onstream reservoirs a flow rate guideline will
not be identified.
(ii) for offstream reservoirs the flow rate guideline for
storage will be the capacity of the diversion and conveyance
system. If there is no information regarding the capacity of the
diversion and conveyance system, or the system is shared by more
than one claimant, the flow rate guideline of 17 gpm/ac will be
used.
(3) The department, in conjunction with the water court,
may hold public meetings within the basin or subbasin to gather
further facts, data, and public comment so that reasonable water
use guidelines are identified for the area. See Rule 32, W.R.C.E.R.
Rule 14(c). Examining flow rate. When the claimed flow rate
differs from the guideline, the department may gather further data
and facts in an attempt to determine the actual flow rate for the
specific claim. The claimant may be contacted pursuant to Rule
41
44, W.R.C.E.R. In addition, an on-site visit may be conducted
pursuant to Rule 44, W.R.C.E.R. Discrepancies that may require
claimant contact include, but are not limited to:
(1) the claimed flow rate on a per acre basis exceeds the
guideline using the acreage identified by the department;
(2) the claimed flow rate appears insufficient to satisfy the
purpose; and
(3) no flow rate was claimed.
Rule 14(d). Type of historical right. Changes may be made
to the claimed flow rates for the following types of irrigation
claims.
(1) For irrigation claims based on prior decreed rights, no
changes to the claimed flow rate will be made. If the
claimed flow exceeds 17 gpm/ac guideline, a remark shall be
added to the water right abstract:
Example:
THE CLAIMED FLOW RATE EXCEEDS THE 17 GPM PER
ACRE GUIDELINE AND CANNOT BE CONFIRMED DUE TO
LACK OF DATA. THE FLOW RATE EQUALS XX.XX GPM PER
ACRE.
(2) For irrigation claims based on filed appropriation or
use rights, where an onstream reservoir is not the primary means
of diversion, flow rates exceeding 17 gpm/ac will be reduced to
this guideline unless:
(i) information in the claim file clearly substantiates
the claimed flow rate; or
(ii) information to support the actual flow rate is
obtained through claimant contact.
42
When a claimed flow rate is reduced to the 17 gpm/ac guideline, a
remark shall be added to the water right abstract:
Example:
THE FLOW RATE OF THIS CLAIM HAS BEEN REDUCED TO
THE GUIDELINE OF 17 GPM PER ACRE. THE FLOW RATE
MAY BE CONTESTED BY PROPER OBJECTION.
(3) For irrigation claims involving only water from
onstream reservoirs based on filed appropriation or use rights, a
flow rate will not be decreed. A remark shall be added to the water
right abstract:
Example:
A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR
THIS USE FROM THIS ONSTREAM RESERVOIR.
(4) For irrigation claims involving a reservoir where stored
water is not utilized, a flow rate will be decreed. A remark shall be
added to the water right abstract:
Example:
PRIMARILY A DIRECT FLOW SYSTEM; FLOW RATE
RETAINED.
(5) For direct flow water spreading irrigation systems
without reservoirs, a flow rate will not be decreed. A remark shall
be added to the water right abstract:
Example:
A SPECIFIC FLOW RATE HAS NOT BEEN DECREED
BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER
SPREADING.
(6) For natural subirrigation or natural overflow, a flow
rate will not be decreed. A remark shall be added to the water
right abstract:
43
Examples:
NO FLOW RATE HAS BEEN DECREED FOR THIS USE OF
NATURAL SUBIRRIGATION.
NO FLOW RATE HAS BEEN DECREED FOR THIS NATURAL
OVERFLOW METHOD OF IRRIGATION.
Rule 14(e). Decree exceeded. When the flow rate of a prior
decreed water right has been exceeded by respectively filed claims,
the parties involved will be contacted pursuant to Rule 44,
W.R.C.E.R. If the parties do not reach agreement among
themselves to correct the over-claimed flow rate, the issue shall be
identified in the department's summary report to the water court.
Rule 14(f). Changing flow rates. The claimed flow rate will
not be changed during the department's examination unless:
(1) amended by the claimant;
(2) clarified by the department;
(3) as authorized in part (d) of this rule; and
(4) standardized as to units of measure according to Rule
4, W.R.C.E.R.
Rule 14(g). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the flow rate:
(1) the claimed or clarified flow rate, or changes
authorized by this rule;
(2) identification of unique aspects or features of the flow
rate;
(3) a notation of changes made during the department's
examination; and
44
(4) remarks concerning unresolved issues or questions
about the claimed flow rate, such as the claimed flow rate appears
excessive for the specific application and delivery methods.
RULE 15. VOLUME
Rule 15(a). Identifying volume. Facts and information
concerning the volume of the claimed system will be identified
using information in the claim along with other data gathered by
the department.
Rule 15(b). Identifying climatic area. The climatic area of
the claimed place of use will be identified on the abstract of each
irrigation right. The climatic area identification will be determined
from the United States Department of Agriculture Natural
Resource Conservation Service climatic area map of Montana.
Rule 15(c). Direct flow irrigation claims. For direct flow
irrigation claims, except water spreading systems and irrigation
systems involving reservoirs, a volume will not be decreed. A
remark shall be added to the abstract of direct flow irrigation
rights.
Example:
THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED
THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE.
Rule 15(d). Direct flow irrigation claims decreed by
volume in prior decree. If a direct flow irrigation claim has been
decreed by volume in a prior decree, the claimed volume shall be
included on the water right abstract. A remark shall be added:
Example:
THIS VOLUME WAS DECREED IN A PRIOR DECREE, CASE
NUMBER 2345, MISSOULA COUNTY, MONTANA.
45
Rule 15(e). Decreeing volume for water spreading irrigation
systems without reservoirs. A volume for water spreading
irrigation systems without reservoirs will be decreed. The volume
guideline for these systems will be the peak consumptive use of
alfalfa in a drought year growing season.
(1) The peak consumptive uses of alfalfa in a drought year
growing season, listed by climatic area are:
(i) Climatic Area I 2.3 acre-feet per acre;
(ii) Climatic Area II 2.0 acre-feet per acre;
(iii) Climatic Area III 1.9 acre-feet per acre;
(iv) Climatic Area IV 1.7 acre-feet per acre; and
(v) Climatic Area V 1.4 acre-feet per acre.
(2) When the claimed volume on a water spreading claim
exceeds the guideline, the volume will be reduced to the guideline
unless:
(i) information in the claim file clearly substantiates
the claimed volume; or
(ii) information to support the actual volume is
obtained through claimant contact.
When the claimed volume is reduced to the water spreading
guideline, a remark shall be added to the water right abstract:
Example:
THE VOLUME OF THIS CLAIM HAS BEEN REDUCED TO THE
GUIDELINE OF X.XX ACRE FEET PER ACRE. THE VOLUME
MAY BE CONTESTED BY PROPER OBJECTION.
Rule 15(f). Decreeing volume for irrigation systems with
46
stored water from reservoirs. The claimed volume for irrigation
systems using stored water from reservoirs will be decreed. There
is no specific volume guideline for these systems. To confirm the
claimed volume, facts and data will be collected by the department
following the procedures specified in Rule 10(b), W.R.C.E.R.
For irrigation claims involving a reservoir where stored water is
not utilized, a volume will not be decreed. A remark shall be
added to the water right abstract:
Example:
PRIMARILY A DIRECT FLOW SYSTEM; VOLUME NOT
DECREED.
Rule 15(g). Changing volume. The claimed volume will not
be changed during the department's examination unless:
(1) amended by the claimant;
(2) clarified by the department;
(3) as authorized in parts (c) and (e) of this rule; or
(4) standardized as to units of measure according to Rule
4, W.R.C.E.R.
Rule 15(h). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the volume:
(1) the claimed or clarified volume, or changes authorized
by this rule;
(2) climatic area;
(3) identification of unique aspects or features of the
volume;
(4) a notation of changes made during the department's
47
examination; and
(5) remarks concerning unresolved issues or questions
about the claimed volume, such as the following situations:
(i) the maximum feasible volume when the flow rate
to be decreed cannot deliver the volume to be decreed during the
claimed period of use;
(ii) when a claimed volume to be decreed is greater
than two times the capacity of the reservoir or exceeds a
reasonable number of fills; or
(iii) no volume claimed.
RULE 16. PERIOD OF USE
Rule 16(a). Identifying period of use. Facts and information
concerning the period of use will be identified using information in
the claim along with other data gathered by the department. The
period of use will be identified by the earliest month and day to the
latest month and day that water has been used within a calendar
year.
(1) The claimed period of use of flood and sprinkler systems
will be compared to the following irrigation period of use
guidelines:
(i) Climatic Area I: March 15 to November 15;
(ii) Climatic Area II: April 1 to October 30;
(iii) Climatic Area III: April 15 to October 15;
(iv) Climatic Area IV: April 20 to October 10; and
(v) Climatic Area V: April 25 to October 5.
(2) The period of use guideline for claims involving water
48
spreading systems, natural subirrigation and natural overflow will
be year round use.
(3) The documentation will be examined for conditions or
limitations that may exist on the period of use.
Rule 16(b). Examining period of use. When the claimed
period of use is incomplete or inconsistent, the department will
gather further facts and data pertaining to the specific claim. The
claimant may be contacted pursuant to Rule 44, W.R.C.E.R.
Discrepancies in the claimed period of use that may require
claimant contact include, but are not limited to:
(1) no period of use is claimed;
(2) the claimed period of use differs significantly from the
period of use guidelines specified in this rule; or
(3) the period of use on the claim form differs significantly
from the period of use specified in the documentation.
Rule 16(c). Changing period of use. The claimed period of
use of a water right will not be changed during the department's
examination unless:
(1) amended by the claimant;
(2) clarified by the department; or
(3) to complete the period of use to year round for claims
involving water spreading systems, natural subirrigation and
natural overflow when no period of use has been claimed or the
period of use claimed is not year round and there are no reasons
in accordance with these examination rules to contact the
claimant.
Rule 16(d). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
49
following data and facts concerning the period of use:
(1) the claimed or clarified period of use, or changes
authorized by this rule;
(2) identification of unique aspects or features of the
period of use, such as: the right includes or is limited to high or
flood waters.
(3) a notation of changes made during the department's
examination; and
(4) remarks concerning unresolved issues or questions
about the claimed period of use such as the claimed period of use
exceeds the guidelines for the climatic area.
Example:
THE CLAIMED PERIOD OF USE EXCEEDS THE USUAL
GROWING SEASON FOR THIS CLIMATIC AREA WHICH IS
APRIL 15 TO OCTOBER 19.
III. DOMESTIC CLAIMS
RULE 17. REFERENCE TO IRRIGATION CHAPTER
This chapter applies to claims for domestic, multiple domestic and
lawn and garden uses. Except as specifically provided in this
chapter, the department's examination of domestic claims shall
follow the procedures described in Chapter II for irrigation claims.
This chapter contains specific examination procedures for the
following elements of a domestic water right:
(1) place of use;
(2) flow rate and volume; and
(3) period of use.
RULE 18. PLACE OF USE (POU)
50
Rule 18(a). Identifying place of use. The place of use for
domestic purposes will be identified and described by the nearest
reasonable and concise legal land description and the associated
irrigated acreage. The POU may include the house, garden or
other facilities for this purpose.
(1) The information in the claim, topographic maps, aerial
photographs, Water Resources Survey information, county land
ownership records, U. S. National Forest Service maps, Bureau of
Land Management maps, as well as other sources available to the
department may be used to review the claimed POU and
associated claimed acreage.
(2) When the claimed legal land description or claimed
acreage cannot be substantiated, the department will gather
further facts and data. The claimant may be contacted for
additional information pursuant to Rule 44, W.R.C.E.R.
Discrepancies in the claimed place of use that may require
claimant contact include, but are not limited to:
(i) no legal land description is given for the claimed
place of use;
(ii) the claimed legal land description or claimed
acreage is vague or incomplete;
(iii) the claimed legal land description or claimed
acreage is inconsistent with the source, point of diversion, or
purpose claimed; and
(iv) a claimed POU of one party overlaps any portion
of the claimed POU of another party.
Rule 18(b). Examining place of use. The claimant's map(s)
and at least one other post-priority date data source, when
available, will be used to examine the acreage claimed.
(1) When the acreage claimed exceeds a reasonable
51
acreage, generally 5 acres, for lawn and garden or shelterbelt
purposes, the claimant will be contacted pursuant to Rule 44,
W.R.C.E.R.
(2) When the acreage identified by the department differs
from the acreage claimed by more than the amount specified in
exhibit B, the claimant will be contacted pursuant to Rule 44,
W.R.C.E.R.
Rule 18(c). Changing place of use. The claimed place of use
of a water right will not be changed during the department's
examination unless:
(1) amended by the claimant; or
(2) clarified by the department to the nearest reasonable
and concise legal land description.
Rule 18(d). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the place of use:
(1) the claimed or clarified irrigated acreage;
(2) the claimed or clarified legal land description;
(3) additional legal land descriptions identified by the
department such as government lots, subdivisions, certificates of
survey, homestead entry surveys, and mineral surveys;
(4) identification of unique aspects or features of the place
of use;
(5) a notation of changes made during the department's
examination; and
(6) remarks concerning unresolved issues or questions
about the claimed place of use such as the following situations:
52
(i) the acreage found on a data source differs from
the acreage claimed by more than the amount specified in Exhibit
B; or
(ii) the claimed place of use could not be identified.
RULE 19. FLOW RATE AND VOLUME
Rule 19(a). Identifying flow rate and volume. Facts and
information concerning flow rate and volume for domestic use will
be identified using information in the claim along with other data
gathered by the department.
Rule 19(b). Guidelines. The flow rate and volume guidelines
for domestic use within a basin or subbasin will be as follows:
(1) the flow rate guideline that would reasonably supply
domestic use will be 35 gallons per minute;
(2) the volume guideline will be:
(i) one and one-half acre-feet per household;
(ii) two and one-half acre-feet per acre of lawn and
garden or shelter belt up to a reasonable amount for domestic
irrigation (generally 5 acres or less);
(3) the flow rate and volume guidelines for reservoirs
associated with domestic use claims will be as follows:
(i) for domestic use involving only water from
onstream reservoirs a flow rate guideline will not be identified, and
a flow rate will not be decreed. A remark shall be added to the
water right abstract;
Example:
A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR
THIS USE FROM THIS ONSTREAM RESERVOIR.
53
(ii) for offstream reservoirs the flow rate guideline for
storage will be the capacity of the diversion and conveyance
system. If there is no information regarding the capacity of the
diversion and conveyance system, or the system is shared by more
than one claimant, the flow rate guideline of 35 gallons per minute
will be used;
(iii) the volume guideline will be one and one half
acre-feet per household and two and one-half acre-feet per acre of
lawn and garden or shelterbelt, plus a reasonable amount for
evaporation. The minimum volume guideline for domestic use will
be 1.5 acre-feet.
Rule 19(c). Identifying number of households. The
department will use the information in the claim as well as other
information to identify the number of households served by the
water right in the place of use.
(1) Domestic claims - the number of households for a
domestic claim is one.
(2) Multiple domestic claims - the number of households
may be calculated based on:
(i) the number of persons or households indicated in
the claim (five persons will be considered equivalent to one
household); or
(ii) the number of dwellings indicated on a map or
an aerial photograph of the place of use.
(3) When the number of households cannot be identified
from the claim or available information, the claimant will be
contacted pursuant to Rule 44, W.R.C.E.R.
Rule 19(d). Examining flow rate and volume. When the
claimed flow rate or volume differs from the guideline, the
54
department will gather further data and facts in an attempt to
determine the actual flow rate or volume for the specific claim.
The claimant may be contacted pursuant to Rule 44, W.R.C.E.R.
Discrepancies that may require claimant contact include, but are
not limited to:
(1) the number of households or the number of acres of
domestic irrigation cannot be determined;
(2) the claimed flow rate exceeds the guideline;
(3) the claimed volume exceeds the guideline for number
of households plus lawn and garden or shelterbelt acreage; or
(4) the claimed flow rate or claimed volume appear to be
in error, inconsistent, or insufficient to satisfy the purpose.
Rule 19(e). Decree exceeded. When the flow rate of a prior
decreed water right has been exceeded by respectively filed claims,
the parties involved may be contacted pursuant to Rule 44,
W.R.C.E.R. If the parties do not reach agreement among
themselves and correct the over claimed flow rate, the issue shall
be identified in the department's summary report to the water
court.
Rule 19(f). Changing flow rate and volume. The claimed
flow rate and volume of a water right will not be changed during
the department's examination unless:
(1) amended by the claimant;
(2) clarified by the department;
(3) as authorized in part (b) of this rule; or
(4) standardized as to units of measure according to Rule
4, W.R.C.E.R.
55
Rule 19(g). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the flow rate and volume:
(1) the claimed or clarified flow rate, or changes
authorized by this rule;
(2) the claimed or clarified volume, or changes authorized
by this rule;
(3) identification of unique aspects or features of the flow
rate and volume;
(4) a notation of changes made during the department's
examination; and
(5) remarks concerning unresolved issues or questions
about the claimed flow rate and volume such as the following
situations:
(i) the claimed flow rate or volume cannot be
confirmed or appears excessive for this purpose; or
(ii) the claimed volume exceeds the maximum
feasible volume when the claimed flow rate cannot deliver the
claimed volume during the claimed period of use.
RULE 20. PERIOD OF USE
Rule 20(a). Identifying period of use. Facts and information
concerning the period of use for domestic purposes will be
identified using the information in the claim together with any
other data gathered by the department. The period of use will be
identified by the earliest month and day to the latest month and
day that water has been used within a calendar year.
(1) The period of use guideline for domestic and multiple
domestic purposes will be year round use.
56
(2) The irrigation period of use guidelines specified in Rule
16, W.R.C.E.R. will be the criteria for examining lawn and garden
purposes.
(3) The documentation will be examined for conditions or
limitations that may exist on the period of use.
Rule 20(b). Examining period of use. When the claimed
period of use is incomplete or inconsistent, the department will
gather further facts and data pertaining to the specific claim. The
claimant may be contacted pursuant to Rule 44, W.R.C.E.R.
Discrepancies in the claimed period of use that may require
claimant contact include, but are not limited to:
(1) no period of use is claimed;
(2) the claimed period of use differs significantly from the
period of use guidelines specified in this rule; or
(3) the period of use on the claim form differs significantly
from the period of use specified in the documentation.
Rule 20(c). Changing periods of use. The claimed period of
use of a water right will not be changed during the department's
examination unless:
(1) amended by the claimant;
(2) clarified by the department; or
(3) to complete the period of use to year round for
domestic and multiple domestic claims when no period of use has
been claimed.
Rule 20(d). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the period of use:
57
(1) the claimed or clarified period of use, or changes
authorized by this rule;
(2) identification of unique aspects or features of the
period of use;
(3) a notation of changes made during the department's
examination; and
(4) remarks concerning unresolved issues or questions
about the claimed period of use as specified in this rule.
IV. STOCKWATER CLAIMS
RULE 21. REFERENCE TO IRRIGATION CHAPTER
Except as specifically provided in this chapter, the
department's examination of stockwater claims shall follow the
procedures described in Chapter II for irrigation claims. This
chapter contains specific examination procedures for the following
elements of a stock water right:
(a) point of diversion;
(b) place of use;
(c) flow rate and volume; and
(d) period of use.
RULE 22. POINT OF DIVERSION (POD)
The department's examination of the claimed POD for
stockwater claims shall follow the procedures described in Rule 8,
W.R.C.E.R. In addition, the following procedures will apply to the
examination of the POD for stockwater claims.
58
(a) For direct instream surface water stock use, the legal land
description of the POD will be the same as the legal land
description of the POU.
(b) The claimed POD may be revised by the department so that
the POD and POU legal land descriptions for direct instream
surface water stock use will be the same.
RULE 23. PLACE OF USE (POU)
RULE 23(a). Identifying place of use. The place of use for
stock purposes will be identified and described by the nearest
reasonable and concise legal land description. The POU is the
actual place where the stock drink the water.
(1) The information in the claim, topographic maps, aerial
photographs, U. S. National Forest Service maps, Bureau of Land
Management maps, Water Resources Survey information, county
land ownership records, as well as other sources available to the
department may be used to review the POU legal land
descriptions.
(2) When the claimed legal land description cannot be
substantiated, the department will gather further facts and data.
The claimant may be contacted for additional information
pursuant to Rule 44, W.R.C.E.R. Discrepancies in the claimed
place of use that may require claimant contact or an on-site visit
include, but are not limited to:
(i) no legal land description is given for the claimed
place of use;
(ii) the claimed legal land description is incomplete;
and
(iii) the claimed legal land description is inconsistent
with the source, point of diversion, or purpose claimed.
RULE 23(b). Changing place of use. The claimed place of
59
use of a water right will not be changed during the department's
examination unless:
(1) amended by the claimant;
(2) clarified by the department to the nearest reasonable
and concise legal land description; or
(3) revised so that the POU and POD legal land
descriptions for direct instream surface water stock use will be the
same.
RULE 23(c). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the place of use:
(1) the claimed or clarified legal land description or
changes authorized by this rule;
(2) additional legal land descriptions identified by the
department such as government lots, subdivisions, certificates of
survey, homestead entry surveys, and mineral surveys;
(3) identification of unique aspects or features of the place
of use;
(4) a notation of changes made during the department's
examination; and
(5) remarks concerning unresolved issues or questions
about the claimed place of use such as the claimed place of use
could not be identified.
RULE 24. FLOW RATE AND VOLUME
RULE 24(a). Identifying flow rate and volume. Facts and
information concerning flow rate and volume for stockwater use
will be identified using information in the claim along with other
data gathered by the department.
60
RULE 24(b). Flow rate guideline. The flow rate guideline for
stock use within a basin or subbasin will be as follows:
(1) The flow rate guideline for wells, developed springs,
pumped diversions, or gravity flow pipelines will be 35 gallons per
minute.
(2) There will be no flow rate guideline for stock drinking
from the source either directly, from a ditch system, or from an
undeveloped spring. For these types of stock use, a specific flow
rate will not be decreed. A remark shall be added to the water
right abstract.
Example:
A SPECIFIC FLOW RATE HAS NOT BEEN DECREED
BECAUSE THIS USE CONSISTS OF STOCK DRINKING
DIRECTLY FROM THE SOURCE OR FROM A DITCH SYSTEM.
THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT
HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE.
(3) The flow rate guideline for reservoirs associated with
stockwater use claims will be as follows:
(i) For stockwater claims involving only water from
on-stream reservoirs a flow rate guideline will not be identified,
and a flow rate will not be decreed. A remark shall be added to the
water right abstract.
Example:
A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR
THIS USE FROM THIS ONSTREAM RESERVOIR. THE FLOW
RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY
NECESSARY TO SUSTAIN THIS PURPOSE.
61
(ii) For offstream reservoirs the flow rate guideline
for storage will be the capacity of the diversion and conveyance
system. If there is no information regarding the capacity of the
diversion and conveyance system, or the system is shared by more
than one claimant, the flow rate guideline of 35 gallons per minute
will be used.
RULE 24(c). Volume guideline. A volume for stockwater
claims will not be quantified except as directed by the water court.
When a volume is not quantified, the following remark shall be
added to the water right abstract.
Example:
THIS RIGHT INCLUDES THE AMOUNT OF WATER
CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES
AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT.
ANIMAL UNITS SHALL BE BASED ON REASONABLE
CARRYING CAPACITY AND HISTORICAL USE OF THE AREA
SERVICED BY THIS WATER SOURCE.
If the water court directs that volumes be quantified for certain
stockwater claims, the water court, in consultation with the
department, shall determine appropriate volume guidelines.
RULE 24(d). Examining flow rate and volume. When the
claimed flow rate or volume differs from the guideline, the
department will gather further data and facts in an attempt to
determine the actual flow rate or volume for the specific claim.
The claimant may be contacted pursuant to Rule 44, W.R.C.E.R.
Discrepancies that may require claimant contact include, but are
not limited to:
(1) the claimed flow rate exceeds the guideline established
for wells, developed springs, pumped diversion or gravity flow
pipelines; or
(2) the claimed flow rate for wells, developed springs,
pumped diversion or gravity flow pipelines appears to be in error,
62
inconsistent or insufficient to satisfy the purpose.
RULE 24(e). Decree exceeded. When the flow rate of a prior
decreed water right has been exceeded by respectively filed claims,
the parties involved may be contacted pursuant to Rule 44,
W.R.C.E.R. If the parties do not reach agreement among
themselves and correct the over claimed flow rate, the issue shall
be identified in the department's summary report to the water
court.
RULE 24(f). Changing flow rate or volume. The claimed
flow rate and claimed volume of a water right will not be changed
during the department's examination unless:
(1) amended by the claimant;
(2) clarified by the department;
(3) as authorized in parts (b) and (c) of this rule; or
(4) standardized as to units of measure according to Rule
4, W.R.C.E.R.
RULE 24(g). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the flow rate and volume:
(1) the claimed or clarified flow rate, or changes
authorized by this rule;
(2) the claimed or clarified volume, or changes authorized
by this rule;
(3) identification of unique aspects or features of the flow
rate and volume;
(4) a notation of changes made during the department's
examination; and
63
(5) remarks concerning unresolved issues or questions
about the claimed flow rate and volume such as the claimed flow
rate or volume to be decreed cannot be confirmed or appears
excessive for this purpose.
RULE 25. PERIOD OF USE
RULE 25(a). Identifying period of use. Facts and data
concerning period of use for stockwater purposes will be identified
using information in the claim along with other data gathered by
the department. The period of use will be identified by the earliest
month and day to the latest month and day that water has been
used within a calendar year.
(1) The period of use guideline for stockwater will be year
round use.
(2) The documentation will be examined for conditions or
limitations that may exist on the period of use.
RULE 25(b). Examining period of use. When the claimed
period of use is incomplete or inconsistent, the department will
gather further facts and data pertaining to the specific claim. The
claimant may be contacted pursuant to Rule 44, W.R.C.E.R.
Discrepancies in the claimed period of use that may require
claimant contact include, but are not limited to:
(1) no period of use is claimed;
(2) the claimed period of use differs significantly from the
period of use guideline specified in this rule; or
(3) the period of use on the claim form differs significantly
from the period of use specified in the documentation.
RULE 25(c). Changing period of use. The claimed period of
use of a water right will not be changed during the department's
examination unless:
64
(1) amended by the claimant;
(2) clarified by the department; or
(3) no period of use was claimed for the stock claim and
claimant contact is non-responsive, then the period of use may be
changed to match a multiple use irrigation claim which shares the
same point and means of diversion.
RULE 25(d). Summary report. In the summary report to the
water court, the Department shall provide on each abstract the
following data and facts concerning the period of use:
(1) the claimed or clarified period of use, or changes
authorized by this rule;
(2) identification of unique aspects or features of the
period of use;
(3) a notation of changes made during the department's
examination; and
(4) remarks concerning unresolved issues or questions
about the claimed period of use as specified in this rule.
V. OTHER USES CLAIMS
RULE 26. REFERENCE TO IRRIGATION CHAPTER
Except as specifically provided in this chapter, the
department's examination of other uses claims shall follow the
procedures described in Chapter II for irrigation claims. This
chapter contains specific examination procedures for the following
elements of an "other uses" water right:
(a) purpose;
(b) place of use;
65
(c) flow rate and volume;
(d) period of use; and
(e) point of diversion and means of diversion for instream or
inlake appropriations.
RULE 27. PURPOSE
Water right purposes categorized as “other uses” and governed
by this rule include all uses of water for purposes other than
stockwater, domestic, and irrigation. For example, these may
include, but are not limited to:
(a) agricultural spraying;
(b) commercial;
(c) fire protection;
(d) fish and wildlife;
(e) fish raceways;
(f) industrial;
(g) institutional;
(h) mining;
(i) municipal;
(j) navigation;
(k) oil well flooding;
(l) power generation;
(m) recreation; and
(n) wildlife.
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RULE 27(b). Identifying purpose. Facts and information
concerning the purpose of a water right will be identified using the
information in the claim together with any other data gathered by
the department.
Rule 27(c). Examining purpose. When the claimed purpose
cannot be substantiated, the department will gather further facts
and data pertaining to the specific claim. The claimant may be
contacted pursuant to Rule 44, W.R.C.E.R. In addition, an on-site
visit may be conducted pursuant to Rule 44, W.R.C.E.R.
Discrepancies in the claimed purpose that may require claimant
contact or an on-site visit include, but are not limited to:
(1) the purpose cannot be discerned from the information
in the claim;
(2) the water use appears to be for a purpose other than
that claimed;
(3) the claimed purpose cannot be substantiated; or
(4) several purposes are indicated in the claim as multiple
uses of the right. Fire protection will be considered an incidental
use.
RULE 27(d). Questionnaire. A questionnaire requesting data
concerning specific other uses may be sent to claimants. The
questionnaire serves to gather facts and data describing the
history, status, and operation of the claimed purpose.
RULE 27(e). Municipal uses. A water right claim for
municipal use that meets the presumption of nonabandonment
provisions of 85-2-227, MCA must be examined following the
procedures described in Rule 6, W.R.C.E.R. The department shall
not add an issue remark regarding nonuse. The department shall
add the following clarifying remark to the water right abstract:
Example:
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THIS WATER RIGHT IS PRESUMED TO NOT BE
ABANDONED PURSUANT TO 85-2-227, MCA.
RULE 27(f). Multiple uses. All claims under one ownership
will be reviewed to identify multiple uses of a right pursuant to
Rule 41, W.R.C.E.R.
RULE 27(g). Changing purpose. The claimed purpose of a
water right will not be changed during the department's
examination unless:
(1) amended by the claimant; and
(2) clarified by the department to identify similar
purposes consistently.
RULE 27(h). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the purpose of a right:
(1) the claimed or clarified purpose;
(2) identification of unique aspects or features of the
purpose;
(3) a notation of changes made during the department's
examination;
(4) remarks concerning unresolved issues or questions
about the claimed purpose; and
(5) wildlife, recreation, and fish and wildlife claims that
do not receive a factual or legal issue remark as a result of the
claims examination process will receive the following remark:
BECAUSE THIS CLAIM DID NOT RECEIVE A FACTUAL OR LEGAL
ISSUE REMARK DURING THE CLAIMS EXAMINATION PROCESS,
THE WATER COURT WILL NOT HOLD A HEARING ON THIS
68
CLAIM UNDER Matter of the Adjudication of Existing Rights in Basin
41I, 2002 MT 216, 311 Mont. 327, 55 P.3d 396 UNLESS A VALID
OBJECTION IS FILED UNDER SECTION 85-2-233, MCA, OR THE
WATER COURT CALLS THE CLAIM IN ON ITS OWN MOTION
UNDER RULE 8, W.R.ADJ.R.
(6) wildlife, recreation, and fish and wildlife claims that
receive a factual or legal issue remark as a result of the claims
examination process will receive the following remark: THE
WATER COURT WILL HOLD A HEARING ON THIS CLAIM TO
DETERMINE ITS VALIDITY SUBJECT TO SECTION 85-2-248,
MCA, AND Matter of the Adjudication of Existing Rights in Basin 41I,
2002 MT 216, 311 Mont. 327, 55 P.3d 396. A HEARING MAY
ALSO BE HELD ON THIS CLAIM IF A VALID OBJECTION IS
FILED UNDER SECTION 85-2-233, MCA, OR THE WATER COURT
CALLS THE CLAIM IN ON ITS OWN MOTION UNDER RULE 8,
W.R.ADJ.R.
RULE 28. PLACE OF USE (POU)
RULE 28(a). Identifying place of use. The place of use for
other use purposes will be identified and described to the nearest
reasonable and concise legal land description.
(1) The information in the claim, topographic maps, aerial
photographs, Water Resources Survey information, county land
ownership records, U. S. National Forest Service maps, Bureau of
Land Management maps, as well as other sources available to the
department may be used to review the POU legal land
descriptions.
(2) When the claimed POU cannot be substantiated, the
department will gather further facts and data. The claimant may
be contacted pursuant to Rule 44, W.R.C.E.R. In addition, an on-
site visit may be requested, pursuant to Rule 44, W.R.C.E.R.
Discrepancies in the claimed POU that may require claimant
contact or an on-site visit include, but are not limited to:
(i) no legal land description is given for the claimed
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place of use;
(ii) the claimed legal land description is vague or
incomplete; or
(iii) the claimed legal land description is inconsistent
with the source, point of diversion, or purpose claimed;
RULE 28(b). Changing place of use. The claimed legal land
description will not be changed during the department's
examination unless:
(1) amended by the claimant;
(2) clarified by the department to the nearest reasonable
and concise legal land description; or
(3) revised so that the POU and POD legal land
descriptions for instream surface water use will be the same.
RULE 28(c). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the place of use:
(1) the claimed or clarified legal land description;
(2) additional legal land descriptions identified by the
department such as government lots, subdivisions, certificates of
survey, homestead entry surveys, and mineral surveys;
(3) identification of unique aspects or features of the place
of use;
(4) a notation of changes made during the department's
examination; and
(5) remarks concerning unresolved issues or questions
70
about the claimed place of use such as the claimed place of use
could not be identified.
RULE 29. FLOW RATE AND VOLUME
RULE 29(a). Identifying flow rate and volume. Facts and
information concerning flow rate and volume for other uses will be
identified using information in the claim along with other data
gathered by the department.
RULE 29(b). Guidelines for claims with a diversion but
without a reservoir. The flow rate and volume guidelines for the
following types of other uses claims within a basin or subbasin,
involving a diversion but not involving a reservoir, will be:
(1) All other uses except mining, fire protection,
municipal, agricultural spraying.
(i) The flow rate guideline will be the capacity of the
diversion and conveyance system using information in the claim
and other data gathered by the department.
(ii) The volume guideline will be identified as that
which appears reasonable and customary for the specific purpose
using information in the claim and other data gathered by the
department.
(2) Mining.
(i) The flow rate guideline will be the capacity of the
diversion and conveyance system using information in the claim
and other data gathered by the department.
(ii) A volume guideline will not be identified, and a
volume will not be decreed. A remark will be added to the water
right abstract.
Example:
THIS RIGHT IS LIMITED TO THE VOLUME OF WATER
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HISTORICALLY USED FOR MINING PURPOSES.
(3) Fire Protection.
(i) The flow rate guideline will be the capacity of the
diversion and conveyance system using information in the claim
and other data gathered by the department.
(ii) A volume guideline will not be identified, and no
volume will be decreed. A remark will be added to the water right
abstract.
Example:
THE VOLUME OF THIS RIGHT IS LIMITED TO THE MINIMUM
AMOUNTS NECESSARY FOR FIRE PROTECTION PURPOSES.
(4) Municipal.
(i) The flow rate guideline will be the capacity of the
diversion and conveyance system using information in the claim
and other data gathered by the department.
(ii) The volume guideline will be 250 gallons per
capita per day.
(5) Agricultural Spraying.
(i) The flow rate guideline will be the capacity of the
diversion and conveyance system using information in the claim
and other data gathered by the department.
(ii) The volume guideline will be 2 acre-feet per year
or 4 acre-feet per year if a reservoir is involved.
RULE 29(c). Guidelines for claims with reservoirs. The flow
rate guideline and volume guideline for other uses claims with
reservoirs will be as follows:
72
(1) for other uses claims involving only water from on-
stream reservoirs, a flow rate guideline will not be identified, and a
flow rate will not be decreed. The following remark shall be added
to the water right abstract:
Example:
A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR
THIS USE FROM THIS ONSTREAM RESERVOIR.
(i) For offstream reservoirs the flow rate guideline for
storage will be the capacity of the diversion and conveyance
system. If there is no information regarding the capacity of the
diversion and conveyance system, or the system is shared by more
than one claimant, the flow rate guideline will be that which
appears reasonable and customary for the specific purpose.
(ii) The volume for other uses claims involving
reservoirs will be decreed. The volume guideline for these systems
will be as follows:
(A) When the claimed volume is less than 15
acre-feet, it will generally be accepted as claimed;
(B) When the claimed volume is greater than 15
acre-feet, facts and data will be collected by the department
following the procedures specified in Rule 10, W.R.C.E.R. The
volume guideline will be the maximum storage capacity plus the
estimate of evaporation.
RULE 29(d). Guidelines for instream use. For all instream
other uses claims, other than claims filed by the Montana
Department of Fish, Wildlife and Parks on Murphy Right streams
as identified under section 85-801, R.C.M. 1947 (1969), the flow
rate and volume guidelines will be the minimum amount
necessary to sustain the specific purpose using information in the
claim and other data gathered by the department.
RULE 29(e). Examining flow rate and volume. When the
73
claimed flow rate or claimed volume differs from the guideline for
the identified purpose, the department may gather further data
and facts in an attempt to determine the actual flow rate or
volume for the specific claim. The claimant may be contacted
pursuant to Rule 44, W.R.C.E.R. In addition, an on-site visit may
be conducted pursuant to Rule 44, W.R.C.E.R. Discrepancies that
may require claimant contact or an on-site visit include, but are
not limited to:
(1) a guideline for flow rate or volume cannot be determined
from the available information;
(2) the claimed flow rate or claimed volume exceeds the
guideline for the identified purpose; or
(3) the claimed flow rate or claimed volume appear to be
in error, inconsistent or insufficient to satisfy the identified
purpose.
Rule 29(f). Flow rate and volume for Murphy right claims.
For all claims filed by the Montana Department of Fish, Wildlife
and Parks on Murphy Right streams as identified under section
85-801, R.C.M. 1947 (1969), the claimed flow rate and volume
will be decreed.
Rule 29(g). Type of historical right. Changes may be made
to the claimed flow rates and claimed volumes for the following
types of other uses claims:
(1) for other uses claims based on prior decreed rights, no
changes to the claimed flow rate will be made;
(2) for other uses claims based on filed appropriation or
use rights, flow rates will be reduced to the guideline unless:
(i) information in the claim file clearly substantiates
the claimed flow rate and volume; or
74
(ii) information to support the actual flow rate and
volume is obtained through claimant contact.
When a claimed flow rate or volume is reduced to the
guideline, a remark shall be added to the water right abstract:
Examples:
THE FLOW RATE OF THIS CLAIM HAS BEEN REDUCED TO
THE GUIDELINE OF _____________. THE FLOW RATE MAY
BE CONTESTED BY PROPER OBJECTION.
THE VOLUME OF THIS CLAIM HAS BEEN REDUCED TO
THE GUIDELINE OF _____________. THE VOLUME MAY BE
CONTESTED BY PROPER OBJECTION.
Rule 29(h). Decree exceeded. When the flow rate of a prior
decreed water right has been exceeded by respectively filed claims,
the parties involved must be contacted pursuant to Rule 44,
W.R.C.E.R. If the parties do not reach agreement among
themselves and correct the over claimed flow rate, the issue shall
be identified in the department's summary report to the water
court.
Rule 29(i). Changing flow rate and volume. The claimed
flow rate and claimed volume of a water right will not be changed
during the department's examination unless:
(1) amended by the claimant;
(2) clarified by the department;
(3) as authorized in this rule; or
(4) standardized as to units of measure according to Rule
4, W.R.C.E.R.
Rule 29(j). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
75
following data and facts concerning the flow rate and volume:
(1) the claimed or clarified flow rate, or changes
authorized by this rule;
(2) the claimed or clarified volume, or changes authorized
by this rule;
(3) identification of unique aspects or features of the flow
rate and volume;
(4) a notation of changes made during the department's
examination; and
(5) remarks concerning unresolved issues or questions
about the claimed flow rate and volume such as the following
situations:
(i) the claimed flow rate or volume appears excessive
for the purpose;
(ii) the claimed volume exceeds the maximum
feasible volume when the claimed flow rate cannot deliver the
claimed volume during the claimed period of use; or
(iii) the claimed flow rate or volume cannot be
confirmed.
RULE 30. PERIOD OF USE
RULE 30(a). Examining period of use. Facts and data
concerning period of use for other uses purposes will be identified
using information in the claim together with other data gathered
by the department. The period of use will be identified by the
earliest month and day to the latest month and day that water has
been used within a calendar year.
(1) The usual and customary period of use for other uses
76
claims will vary for the specific purpose identified. The claimed
period of use will be reviewed for reasonableness for the purpose
identified.
(2) The documentation will be examined for conditions or
limitations that may exist on the period of use.
RULE 30(b). Incomplete or inconsistent period of use.
When the claimed period of use is incomplete or inconsistent, the
department will gather further facts and data pertaining to the
specific claim. The claimant may be contacted pursuant to Rule
44, W.R.C.E.R. Discrepancies in the claimed period of use that
may require claimant contact include, but are not limited to:
(1) no period of use is claimed;
(2) the claimed period of use differs significantly from that
which is usual and customary for the specific purpose identified;
(3) insufficient information is available to determine the
usual and customary period of use for the purpose identified; or
(4) the period of use on the claim form differs significantly
from the period of use specified in the documentation.
RULE 30(c). Changing period of use. The claimed period of
use of a water right will not be changed during the department's
examination unless:
(1) amended by the claimant; or
(2) clarified by the department.
RULE 30(d). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the period of use:
(1) the claimed or clarified period of use;
77
(2) identification of unique aspects or features of the
period of use;
(3) a notation of changes made during the department's
examination; and
(4) remarks concerning unresolved issues or questions
about the claimed period of use such as the following situations:
(i) questions about the claimed period of use as
specified in this rule; or
(ii) use of the water is not feasible during winter
months.
Example:
THE CLAIMED PERIOD OF USE MAY BE QUESTIONABLE.
USE OF THIS WATER MAY NOT BE FEASIBLE DURING
WINTER MONTHS.
RULE 31. POINT OF DIVERSION (POD) AND MEANS OF
DIVERSION FOR INSTREAM OR INLAKE APPROPRIATIONS
The department’s examination of the claimed POD for instream
or inlake other uses claims shall follow the procedures described
in Rule 8, W.R.C.E.R. In addition, the following procedures will
apply to the examination of the POD for such claims.
(a) For instream water use, the legal land description of the
POD will be the same as the legal land description of the POU.
(b) The claimed POD may be revised by the department so that
the POD and POU legal land descriptions for instream water use
will be the same.
(c) A clarifying remark should be added to the point of
diversion to provide a general geographic description of the
instream reach claimed and to promote the public’s ability to
78
understand the extent of the claim.
Example:
THIS RIGHT FOR INSTREAM USE APPLIES FROM SMITH DAM
IN JONES COUNTY DOWNSTREAM TO THE CONFLUENCE OF
THE NORTH FORK OF ROCK CREEK WITH THE GREEN
RIVER IN MACON COUNTY.
(d) For all instream or inlake surface appropriations, the
claimed means of diversion will be changed during the
department’s examination to “INSTREAM” or “INLAKE.”
VI. GENERAL PROVISIONS
RULE 32. PUBLIC MEETINGS
RULE 32(a). Purpose of public meetings. The department, if
directed by the water court pursuant to § 85-2-243, may conduct
public meetings in each basin or subbasin. The purpose of these
meetings may include:
(1) gathering facts and data related to flow rate, volume,
and period of use for irrigation that may include the usual and
customary method of irrigation, crops grown, and growing season
within a basin or subbasin;
(2) gathering facts and data related to flow rate, volume,
and period of use for other uses of water within a basin or
subbasin; and
(3) gathering facts and data addressing any other specific
issues that may affect the basin or subbasin.
RULE 32(b). Public meetings in conjunction with water
court. The department may conduct public meetings in each
basin or subbasin to provide the public with information on
availability of materials at the regional offices and any technical
information or procedures used by the department during
examination. These meetings may be held in conjunction with the
79
water court.
RULE 32(c). Time and place. Public meetings will be held at
a time and place appropriate to the material being presented and
convenient to the participants.
RULE 32(d). Notice. Meetings will be announced using one
or more of the following: radio stations, newspapers, or television
stations which have general coverage in the appropriate area. In
addition, notices may be posted in various public locations in the
area. The water court will be notified in writing at least 10
working days prior to announcement.
RULE 33. CLARIFICATION
RULE 33(a). Clarification of claimed information.
Elements of a water right may be clarified during the department's
examination of claims to make elements complete, clear, concise
and interpretable as long as the intent of the claimed information
is unchanged. Claimed information may be clarified except when
an amendment is required pursuant to Rule 34, W.R.C.E.R.
Changes to claimed data made as clarifications will be denoted on
the water right abstract.
RULE 33(b). Clarification without claimant contact.
Discrepancies in the claimed information, such as the following,
may be edited for standardization and consistency without
claimant contact as long as the intent of the claimed information
is clear:
(1) priority date, period of use, source, POD, POU, means
of diversion and type of historical right are not on the claim form
but are clearly stated in the documentation;
(2) similar purposes are not referenced consistently;
(3) owner names and addresses are not consistent;
80
(4) POD and POU discrepancies:
(i) claimed legal land descriptions are not described
to the nearest reasonable and concise legal land description;
(ii) legal land descriptions on the claim form and the
claimant’s map disagree;
(iii) claimed legal land descriptions for direct surface
water stock use are not the same;
(iv) legal land descriptions are reversed; or
(v) N, S, E, or W are not indicated in the legal land
description for township or range;
(5) common points of diversion or similar means of
diversion are not referenced consistently;
(6) source names are not referenced consistently;
(7) flow rate or volume discrepancies:
(i) claimed flow rate or volume units are
inconsistent;
(ii) units for flow rate are not on the claim form but
are clearly indicated in the documentation; or
(8) priority date discrepancies.
RULE 33(c). Clarification with claimant contact. When a
claim exhibits discrepancies or clerical errors as described in Rule
33(b), W.R.C.E.R. and the claimed intent is unclear, the
department will contact the claimant pursuant to Rule 44,
W.R.C.E.R. The correct interpretation of the claimed information
will be clearly denoted by the department in the claim file.
81
Clarifications of this type may be implemented upon instruction
from the claimant.
RULE 33(d). Correcting clerical errors. When an abstract of
a claim exhibits clerical errors by the department, such as the
following, the discrepancy will be corrected in the computer
record:
(1) claimed items were not entered into the computer;
(2) claimed items were entered into the computer
incorrectly; or
(3) claimed items were previously clarified incorrectly.
RULE 34. AMENDMENTS TO CLAIMS
RULE 34(a). Claimant request to modify claim. A claimant
may request and authorize a modification of their claim prior to
that claim’s inclusion in an interlocutory decree issued for the
particular basin.
RULE 34(b). Amendment of claim. An amendment is
required to alter any element of a claim when that element cannot
be clarified or changed in accordance with these rules.
RULE 34(c). Amendment form. An amendment form or a
written request must be submitted by the claimant to authorize an
amendment. An amendment form is attached as Exhibit C.
(1) The amendment request, whether on an amendment
form or other written request, must include the amendment and
the date.
(2) The amendment request must contain the notarized
signature of all current owners of the right as listed in the
centralized record system or a legal authorized representative. The
amendment may not be submitted by a non-owner (e.g., tenant,
82
ranch manager, forest service district employee).
(3) The amendment request may include the reasons for
the amendment and may be supplemented with maps, letters,
copies of documents, or other materials.
RULE 34(d). Processing of amendment. An amendment
received by the department will be processed in the following
manner:
(1) if received prior to printing the decree, it will be
microfilmed or scanned, added to the claim file, and the respective
elements will be amended in the centralized record system; or
(2) if received after printing of the decree, it will be
microfilmed or scanned and sent to the water court.
RULE 34(e). Examination of amendment. The department
will examine amendments according to the procedures in the rule
governing the amended element.
RULE 34(f). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the amended claim:
(1) the claimed or clarified element as amended;
(2) a remark indicating the date the amendment was
received and the water right element changed;
Example:
THE FLOW RATE WAS AMENDED BY THE CLAIMANT ON
04-15-87.
(3) the department's examination information which may
include an identification of any other pertinent data, facts or
issues; and
83
(4) remarks concerning unresolved issues or questions
about the amendment such as the amendment was not signed by
all current owners, or was not notarized.
Examples:
AN AMENDMENT WAS SUBMITTED ON 08-01-98
REQUESTING TO AMEND THE PLACE OF USE. THE
AMENDMENT HAS NOT BEEN IMPLEMENTED AS IT HAS NOT
BEEN SIGNED BY ALL OWNERS OF DNRC RECORD.
AN AMENDMENT WAS SUBMITTED 06-11-98 ADJUSTING
THE POINT OF DIVERSION, PLACE OF USE, PRIORITY DATE,
SOURCE, FLOW RATE, PURPOSE AND PLACE OF STORAGE.
THE AMENDMENT SUBSTANTIALLY CHANGES THE
ORIGINALLY FILED STATEMENT OF CLAIM.
RULE 35. IMPLIED CLAIMS
RULE 35(a). Water court review of implied claims.
Whenever a single claim appears to contain more than one right,
the claim will be sent to the water court requesting a review for
possible implied claims.
RULE 35(b). Authorization of implied claims. When the
water court, in writing, authorizes implied claims to separate the
individual rights, the claimant will be contacted pursuant to Rule
44, W.R.C.E.R. to assist in separating the rights into individual
claims.
RULE 35(c). Procedure. The following items and procedures
will apply to implied claims.
(1) The implied claim shall include the items required
pursuant to § 85-2-224, MCA.
(2) The claimant's signature and notarization is required,
unless otherwise ordered by the water court.
84
(3) The date received on the implied claim will be the
same date as that on the original claim.
RULE 35(d). Processing implied claims. Implied claims
authorized by the water court shall be processed by the
department as follows:
(1) filing fees will be collected pursuant to § 85-2-225,
MCA;
(2) the original claim will be referenced on the implied
claim;
(3) the implied claim will be clarified, microfilmed or
scanned, and entered into the centralized record system; and
(4) the implied claim will be examined by the department
according to the rules governing the purpose identified.
RULE 35(e). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the implied claim:
(1) the implied claim information;
(2) a remark referring to the original claim;
Example:
THIS IMPLIED CLAIM WAS AUTHORIZED BY THE WATER
COURT BASED ON INFORMATION IN CLAIM NO. 000000-00.
and
(3) the department's examination information which may
include an identification of any other pertinent facts, data, and
issues.
RULE 36. CLAIMS FILED AFTER APRIL 30, 1982.
85
RULE 36(a). Identification. A claim filed with the
department after the 5:00 p.m. April 30, 1982 filing deadline and
physically submitted or postmarked on or before July 1, 1996 is a
late claim, unless it was exempt from the filing requirements by §
85-2-222, MCA. Late claims were forfeited pursuant to the
conclusive presumption of abandonment under § 85-2-226, MCA.
The legislature provided limited remission of the forfeiture of late
claims in § 85-2-221(3), MCA, based on the late claim filing date.
Claims for exempt rights filed after 5:00 p.m. April 30, 1982 and
physically submitted or postmarked on or before July 1, 1996 are
not late claims.
Rule 36(b). Claims submitted after July 1, 1996.
Claims physically submitted or postmarked after July 1,
1996 will not be accepted by the department.
RULE 36(c). Examination of claims. The department will
examine claims filed after April 30, 1982 according to the
procedures in these rules for the identified purpose. The date the
claim was filed will be specified in a remark.
RULE 36(d). Summary report. The summary report to the
water court shall include all forfeited late claims, remitted late
claims, and claims for exempt rights filed between 5:00 p.m. April
30, 1982 and physically submitted or postmarked on or before
July 1, 1996, along with all pertinent data and facts. This
includes an abstract of the water right listing the late claim
information and the department’s examination information. In
addition, remarks denoting the type of late claim will be added as
follows:
(1) For a late claim placed in the United States mail and
postmarked on or before 5:00 p.m. April 30, 1982, or, if there is no
evidence of the date of mailing, there is evidence of execution on or
before 5:00 p.m. April 30, 1982, and actual receipt by the
department on or before May 7, 1982, a clarifying remark shall be
added to the water right abstract:
86
Example:
CLAIM FILED LATE 05/03/82. AS MANDATED BY SECTION
85-2-221(3), MCA, THIS CLAIM IS SUBORDINATE, AND
THERFORE JUNIOR, TO ALL INDIAN AND FEDERAL
RESERVED WATER RIGHTS.
(2) For all other late claims physically submitted to the
department or postmarked on or before July 1, 1996, a clarifying
remark and an issue remark shall be added to the water right
abstract:
Examples:
CLAIM FILED LATE 08/01/85. AS MANDATED BY SECTION
85-2-221(3), MCA, THIS CLAIM IS SUBORDINATE, AND
THEREFORE JUNIOR, TO ALL INDIAN AND FEDERAL
RESERVED WATER RIGHTS AND ALL VALID TIMELY FILED
CLAIMS BASED ON STATE LAW.
CLAIM FILED LATE 08/01/85. IN ADDITION TO BEING
SUBORDINATE TO ALL INDIAN AND FEDERAL RESERVED
WATER RIGHTS AND ALL VALID TIMELY FILED CLAIMS
BASED ON STATE LAW, THIS RIGHT MAY ALSO BE
SUBORDINATE TO CERTAIN PERMITS AND RESERVATIONS
OF WATER. SEE SECTION 85-2-221 MCA.
(3) For an exempt water right claim filed after 5:00 p.m.
April 30, 1982 and physically submitted or postmarked on or
before July 1, 1996, a remark shall be added to the water right
abstract:
Example:
CLAIM FILED 08/01/85. THIS RIGHT IS AN EXEMPT RIGHT
VOLUNTARILY FILED UNDER SECTION 85-2-222, MCA.
RULE 37. TERMINATION OF A CLAIM
RULE 37(a). Procedure for terminating a claim. The
department shall terminate a water right claim only when it has
been withdrawn at the request of the claimant(s).
87
(1) A written request must be submitted by the claimant
to withdraw a claim. An example request to withdraw form to
withdraw a claim from the adjudication process is attached as
Exhibit D.
(2) The withdrawal request must be dated with notarized
signatures of all current owners of the right as listed in the
centralized record system.
(3) The reason for the withdrawal may be included.
RULE 37(b). Processing a withdrawal request. A withdrawal
request and claim will be processed in the following manner.
(1) The withdrawal request will be microfilmed or scanned
and entered into the centralized record system.
(2) The claimed information in the centralized record
system will be retained but will be denoted as terminated for
reference purposes.
(3) The withdrawal request and claim will be maintained
by the department.
RULE 37(c). Availability of owner name and address. The
owner name and address will be available to the water court for
notice purposes.
RULE 37(d). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning the terminated claim
including:
(1) the water right file number;
(2) the owner name and address;
(3) the purpose, source, and point of diversion;
88
(4) a remark indicating a withdrawn claim
Example:
THIS CLAIM WAS WITHDRAWN FROM THE ADJUDICATION
PROCESS AT THE REQUEST OF THE CLAIMANT ON 04/15/87.
and
(5) the department's examination information which may
include an identification of any other pertinent facts, data, and
issues.
RULE 38. OWNERSHIP UPDATES
RULE 38(a). Purpose. The department shall process
ownership updates to water rights in compliance with §§ 85-2-421
through 85-2-426, MCA. The ownership update does not transfer
water rights or legally determine water right ownership. It updates
the department’s centralized ownership records reflected on the
legal documents that actually transfer water rights.
RULE 38(b). Procedure. When a water right ownership update
has been received, the department will revise the ownership of the
right in the centralized record system as follows:
(1) When the entire water right is conveyed to a new owner,
the name and address of the new owner will be listed as the owner
of the right. A remark may be added indicating the date the
ownership update was received.
Example:
WATER RIGHT OWNERSHIP UPDATE RECEIVED 04/15/87.
(2) When the ownership update denotes a conveyance of a
portion of the water right to a new owner:
(i) The water right may be split by the department
89
upon written authorization of all of the claimants. Remarks may
be added to the original claim:
Examples:
WATER RIGHT OWNERSHIP UPDATE RECEIVED 04/15/87.
SPLIT CLAIM NO. ______ WAS GENERATED.
Remarks may be added to the split claim:
Examples:
WATER RIGHT OWNERSHIP UPDATE RECEIVED
04/15/87
THIS SPLIT CLAIM WAS GENERATED BY THE
DEPARTMENT BASED ON INFORMATION IN CLAIM NO.
________.
THIS CLAIM NUMBER WAS NOT INCLUDED IN THE
BASIN (NAME) DECREE ISSUED ON (DATE).
(ii) The water right may not be split by the
department if all claimants have not provided written authorization
to split the right. Remarks may be added indicating that an
ownership update has been received:
Examples:
WATER RIGHT OWNERSHIP UPDATE RECEIVED 04/15/87.
OWNERSHIP UPDATE PROCESSED TO ADD NEW OWNERS.
THE WATER RIGHT MAY BE SPLIT INTO SEPARATE WATER
RIGHTS AFTER FINAL DECREE UPON REQUEST OF THE
OWNERS.
(iii) The name and address of a new owner will be
added as an additional owner of the right.
90
(3) When the ownership update identifies a contract for
deed, the seller’s name may be retained in the department’s
computer database.
RULE 38(c). Owners involved with an updated water right will
be notified by the department using the following procedures:
(1) When a water right ownership update is filed before the
printing of the decree, both the buyer and the seller will be notified
of the receipt and recording of the ownership update and any split
claims resulting from that ownership update.
(2) When a water right ownership update is filed after the
printing of the decree, the department will notify both the buyer,
the seller, and the water court. If the right is being split, the
reviewer should prepare a memorandum detailing the split to be
made and send the memorandum and claim file(s) to the water
court to implement the split.
RULE 39. CHANGE IN APPROPRIATION RIGHT
RULE 39(a). Procedure for pre-July 1, 1973 claims. When a
pre-July 1, 1973 water right for which a statement of claim has
been received is changed pursuant to § 85-2-402, MCA, the
department will proceed as follows:
(1) The department will create a new record for the change
in the centralized record system.
(2) The department will not update the original claim
information to reflect the change when a notice of completion has
been received until after the final decree.
RULE 39(b). Procedure for post-June 30, 1973 claims.
When the department finds that a statement of claim appears to
reflect a post-June 30, 1973 change, the claimant will be contacted
pursuant to Rule 44, W.R.C.E.R. for additional information. In
addition, an on-site visit may be conducted pursuant to Rule 44,
W.R.C.E.R.
91
(1) If an amended claim is submitted to identify the right
as it existed before July 1, 1973, the department will process the
amended claim according to the rules governing the purpose
identified.
(2) If an amended claim is not submitted to identify the
right as it existed before July 1, 1973, the department will examine
the claim as originally submitted.
RULE 39(c). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning a change in appropriation right:
(1) A remark referring to the status of the change
application;
Example:
AUTHORIZATION TO CHANGE POINT OF DIVERSION
COMPLETED 04/15/87. FILE REFLECTS RIGHT AS IT
EXISTED PRIOR TO JULY 1, 1973. APPROVED CHANGES
WILL BE UPDATED IN THE CENTRALIZED RECORDS SYSTEM
AFTER FINAL DECREE. SEE G(W) 000000-00.
(2) The department's examination information which may
include:
(i) an issue remark when the claimed right appears to
reflect an unauthorized post-June 30, 1973 change;
Example:
IT APPEARS THAT AN UNAUTHORIZED POST-JUNE 30, 1973
CHANGE IN POINT OF DIVERSION MAY BE REFLECTED IN
THIS CLAIM.
or
(ii) an identification of any other pertinent facts, data,
and issues.
92
RULE 40. SUPPLEMENTAL RIGHTS
RULE 40(a). Identifying supplemental rights. Supplemental
rights occur when a claimed place of use of a water right overlaps
the claimed place of use on another water right having the same
purpose and belonging to the same owner. The place of use for all
claims of one ownership, except claims for stockwater and domestic
use, will be reviewed for supplemental rights.
RULE 40(b). Supplemental rights remark. For irrigation
claims, irrigation district claims and "other uses" claims, the
supplemental rights relationship will be identified by a remark on
the water right abstract. The remark will identify and limit the flow
rate, place of use, and volume and will list the supplemental water
rights involved.
RULE 40(c). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning supplemental rights:
(1) a remark indicating supplemental rights;
Example (Irrigation and Irrigation District Claims):
THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE
SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE
OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE
COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS.
EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE
OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL
VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED
THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE.
000000-00, 000000-00, 000000-00, 000000-00.
Example (Other Uses Claims):
WHENEVER THE WATER RIGHTS FOLLOWING THIS
STATEMENT ARE COMBINED TO SUPPLY WATER FOR THE
CLAIMED PURPOSE, EACH IS LIMITED TO THE
HISTORICAL FLOW RATE AND PLACE OF USE OF THAT
93
INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE
WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT
TO HISTORICAL AND BENEFICIAL USE. 000000-00,
000000-00, 000000-00, 000000-00.
and
(2) the department's examination information which may
include:
(i) an issue remark when the combined flow rates of
supplemental irrigation rights exceed the guideline by 60 gpm per
acre; or
(ii) an identification of any other pertinent facts, data,
and issues.
RULE 41. MULTIPLE USE OF A RIGHT
RULE 41(a). Identifying multiple use. A multiple use of a
water right occurs when the same appropriation has been used for
more than one purpose by the original claimant.
RULE 41(b). Examining multiple use. All claims filed by the
original claimant will be examined to identify multiple uses of a
right. The information in the claim, especially priority date,
purpose, type of right, and documentation, together with other data
gathered by the department will be used. In addition, the claimants
may be contacted pursuant to Rule 44, W.R.C.E.R.
RULE 41(c). Multiple use remark. The multiple use of a water
right will be identified by a remark on the abstract.
RULE 41(d). Summary report. In the summary report to the
water court, the department shall provide on each abstract the
following data and facts concerning multiple use of a right:
(1) a remark indicating multiple use;
Example:
94
THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT
ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT
AND BASED ON THE SAME RIGHT. THE USE OF THIS RIGHT
FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT
OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO
ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE
WATER IN ACCORD WITH HISTORICAL PRACTICES. 000000-
00, 000000-00.
(2) and the department's examination information which
may include an identification of any other pertinent facts, data,
and issues.
RULE 42. IRRIGATION DISTRICTS
The irrigation district claim form differed from the standard
irrigation, domestic, stock, or other uses claim forms in that several
water rights from one source for the same place of use could be
identified on one form. The intent of the form was that lengthy
place of use descriptions would be listed only once for several
rights. The form was not limited to irrigation districts but could be
used by any claimant for any claimed purpose.
(a) Claims filed on irrigation district forms will be examined by
the department according to the rules governing the purpose
identified.
(b) All irrigation districts will have their place of use examined
by the department.
(c) The place of use descriptions will be identified on the
abstract of all water rights identified on a irrigation district form.
(d) In its summary report to the water court, the department
shall identify irrigation districts created under Title 85, Chapter 7,
MCA.
RULE 43. DOCUMENTING THE DEPARTMENT'S EXAMINATION
RULE 43(a). Purpose. The claim file, maintained by the
department as part of the centralized record system, will serve as
95
the repository of all claimed information and other materials related
to the department's examination. All documents related to § 85-2-
402, MCA and §§ 85-2-421 through 85-2-426, MCA, will be placed
in the claim file. Additionally, all materials added to the claim file
will be filmed or scanned for the microfilm or electronic record.
RULE 43(b). Worksheet. The department's examination of
each element of a water right will be documented on a worksheet.
The worksheet will contain an abstract of the clarified claimed
information and will serve as a checklist of items to be examined.
In addition, the claimed and examined acres for irrigation claims
will be mapped.
RULE 43(c). Documentation. Telephone contact, personal
interviews and field investigations pertaining to a claim will be
documented and placed in the claim file. The documentation may
include but not be limited to:
(1) persons contacted;
(2) date and time;
(3) location;
(4) address or phone number;
(5) topics discussed; and
(6) facts, data, and issues identified.
RULE 43(d). Correspondence. Copies of all written
correspondence sent or received by the department pertaining to a
claim will be added to the claim file. All written correspondence
sent by the department will include the date and the names of
addressee and signatory.
RULE 44. CLAIMANT CONTACT
RULE 44(a). Purpose. The department will use claimant
contact as the primary means of gathering facts and data pertaining
96
to issues on claims unresolved by routine examination procedures.
RULE 44(b). Means. The department will initiate contact by
the means capable of providing the necessary facts and data in the
least intrusive and most efficient manner. The department will
attempt to review all claims of an owner to consolidate issues before
claimant contact. Claimant contact may be through telephone
interviews, written correspondence, or personal interviews, or on-
site visits at claimant’s invitation.
RULE 44(c). Documentation. Claimant contact activity will be
documented in the claim file and may include such items as the
name of the department employee, the name of person contacted,
date, means of contact, telephone number, location, issues covered,
and conclusions reached.
(1) All written correspondence and interview reports will be
added to the claim file.
(2) The department may send a letter of confirmation to the
claimant for data gathered by telephone.
RULE 44(d). Examining information. When the department
gathers data and facts concerning a claim, the information will be
examined according to the rule governing the purpose identified.
Pertinent new information will be entered into the centralized record
system.
RULE 44(e). Summary report. In the summary report to the
water court, the department shall provide pertinent information
gathered through claimant contact.
RULE 45. RETURNED MAIL
RULE 45(a). Notice of availability. When a decree is issued,
the water court serves, by mail, a notice of availability and abstract
of water right to each person who has filed a claim of existing water
right or to that person’s successor in interest as shown in the
department’s updated ownership record. The notice of availability
is also sent to other persons specified by the water court.
97
Additional notice proceedings occur as the adjudication of a basin
or subbasin advances to final decree.
RULE 45(b). Investigation. The department shall investigate
the reason mail associated with the issuance of a decree is returned
by the U.S. Postal Service. An attempt will be made to research and
process returned mail within the time allotted by the water court for
claimant action.
RULE 45(c). Extent of investigation. The department's
research to determine the current owner name or current owner
address shall include but not be limited to claimant contact,
telephone directories, and county records.
RULE 45(d). Processing address changes. The results of the
department's research will be processed as follows.
(1) When the addressee has a new address, the department
will correct the address in the centralized record system. The
addressees will be sent their abstract of water right and notice of
availability.
(2) When there has been an unrecorded change in
ownership, the department will send the current owner a notice of
availability, the abstract(s) of water right and a request to file a
water right ownership update form pursuant to § 85-2-421 through
§ 85-2-426, MCA.
(3) When the proper owner or address is not found by the
department, the results of the research will be placed in the claim
file.
RULE 45(e). General certificate of mailing. The department
shall send the water court a general certificate of mailing certifying
that the returned mail has been researched and processed. The
general certificate of mailing will identify the water rights where the
current owner or address could not be found.
98
RULE 45(f). Documentation. Documents and records involved
in processing returned mail shall be placed in the respective water
right claim file.
RULE 45(g). Miscellaneous. Returned mail associated with
other stages of the adjudication process will be researched
according to procedures similar to this rule. Previously researched
mail where the owner or address could not be found will not be
researched again.
RULE 46. POST-DECREE REVISIONS
RULE 46(a). Review of decrees. The department may review
water court decrees during the objection period. If clerical errors,
computation errors, and other errors or omissions are identified,
the water court and claimant shall be notified by the department by
an objection or a letter. The department will add copies of all
correspondence and other materials relating to errors to the claim
file.
RULE 46(b). Error in decreed water right. When an error is
identified in a decreed water right after the objection period has
expired, the department shall notify the water court and claimant
by letter. The letter will include how the error was discovered, the
water right elements in error, the proposed correction, any
documentation, a copy of the decree abstract with the correction
delineated, whether the claimant agrees with the correction, and,
when possible, a signed claimant authorization to make the
correction. The department will add copies of all correspondence
and other materials relating to errors to the claim file.
RULE 46(c). Correcting errors. Except as allowed in Rule
3(d), W.R.C.E.R. the department may change the centralized record
system to correct errors in claims or include claims post-decree only
by written authorization of a water judge or water master. Upon
written authorization from the water judge or water master, the
authorization will be microfilmed or scanned, the correction entered
into the centralized record system, and a corrected abstract sent to
the water court.
99
100
August 15,2005 -
Summary Report Page 1
41E 30014863
Page 1 of 2
SUMMARY REPORT TO THE WATER COURT
BY THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
PART A: ABSTRACT OF WATER RIGHT CLAIM
BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER
BASIN 41E
THE FOLLOWING INFOWVIATION IS NOT THE DECREE OF THE MONTANA WATER
COURT. IT IS AN INFORMATIONAL ABSTR4CT PREPARED BY THE DEPARTiMENT O F
NATURAL RESOURCES AND CONSERVATION (DNRC) AND PROVIDED TO THE WATER
COURT FOR ITS USE IN PREPARING THE DECREE FOR THIS BASIN.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY THE DNRC
DURING THE EXAMINATION PROCESS. THESE CHANGES ARE AUTHORIZED BY THE
MONTANA SUPREME COURT WATER RIGHT CLAILMS EXAlkllNATION RULES O R BY
ORDER OF THE WATER COURT.
Water Right Number: 41 E 30014863 STATEMENT OF CLAIM
Version: 1 -- ORIGINAL RIGHT
Status: ACTIVE
Owners: SCHMANSKY RANCH CO
% FRED SCHMANSKY
FLOODPLAIN, MT 59000
"Priority Date: JUNE 19,1866
Enforceable Priority Date: JUNE 19, 1866
Type of Historical Right: FILED
Purpose (use): IRRIGATION
Irrigation Type: SPRINKLERIFLOOD
Flow Rate: 63.00 CFS
*Volume: 6,440 AC-FT
Climatic Area: 4 - MODERATELY LOW
Maximum Acres: 920.00
"Source: LONG CREEK
Source Type: SURFACE WATER
*Point of Diversion and Means of Diversion:
Govt Lot Otr Sec Sec Twp *
R County
NENENE 4 6N 7W JEFFERSON
Diversion Means: HEADGATE
2 SESWSW 5 6N 7W JEFFERSON
Diversion Means: HEADGATE
POINT OF DIVERSION NO. 2 IS ON AN UNNAMED TRIBUTARY LONG CREEK.
August 15,2005
4 1E 30014863
**EXHIBIT A continued** Summary Report - Page 2
Page 2 of 2
Reservoir: OFFSTREAM Reservoir Name: SCHMANSKY POND
Govt Lot Otr Sec Sec Twu Egg County
SWSWSW 4 6N 7W JEFFERSON
Surface Area: 0.70 ACRES
Capacity: 17.50 ACRE-FEET
SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDITIONAL
INFORMATION.
Period of Diversion: JANUARY 1 to DECEMBER 31
Period of Use: APRIL 15 to AUGUST 15
*Place of Use:
Acres GovtLot Qtr Sec Sec Twr, & County
1 360.00 5 6N 7W JEFFERSON
2 320.00 E2 32 6N 7W JEFFERSON
3 160.00 NE 8 7N 7W JEFFERSON
4 -
80.00 N2SE 30 7N 7W JEFFERSON
Total: 920.00
Remarks:
THE WATER RIGHTS FOLLOWING THlS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE
RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE
ONLY OVERLAPPING PARCELS OF THE CLAIMANT'S TOTAL ACRES. EACH RIGHT IS LIMITED TO
THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF
THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL
USE.
30001224 30001225 30001226 30001227 30001228 3000 1229
30001230 300 14863
THE WATER RIGHTS LISTED FOLLOWING THlS STATEMENT ARE MULTIPLE USES OF THE SAME
RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT
OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE
USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES.
30001218 30001220 30001224 30014863
..................................................................................................................................................................................................
PART B: EXAMINATION FIEPORT
THE DNRC EXAMINATION OF THIS CLAIM FOUND NO SIGNIFICANT FACTS, DATA, OR
ISSUES TO REPORT TO THE WATER COURT.
5...................,...............I.................................................,......................................,...........................................,.,...,.....,......,.. ?
Definition for Claimant Contact Concerning Irrigated Acreage
10 100 1000
TOTAL CLAIMED ACRES (X)
AMENDMENT
TO STATEMENT OF CLAIM
Claim Nos.:
Owner@):
I make the following amendment@) to the above statement of claim@):
(Complete only those sections that require amendment.)
1. Owner of Water Right: See attachment
(last, first, middle initial)
Co-owner or Other
Interested Owner:
(last, first, middle initial)
City, State, Zip Code
Home Phone No. (
-
1 Business Phone No. ( )
2. Purpose (use):
a. If irrigation, method of irrigation use Sprinkler C] Flood Water spreading
Subirrigation Natural Overflow
b. If domestic, number of households served:
c. If stock, total number and type of livestock served:
3. Source of Water: Tributary of
4. Point of Diversion: County - See attachment
- Lot - Block -% % -% Section T
- R
L o t - Block -% -% -% Section T- R-
- Lot - Block -% % - -% Section T- R
L o t -Block -% - % -% Section T- R-
L o t - Block -'A ?4 - -'A Section T- R-
L o t -Block -% -% -'A Section T- R
Subdivision:
C] Replaces claimed information Supplements claimed information C]Addendum included
Please attach a map showing all points of diversion for this water right.
5. Means of Diversion: Well lnstream Use Dam
Headgate Pump: Capacity - gPm
Other -
6. Means of Conveyance: Ditch C] Pipeline C] lnstream Use
Other -
* *EXHIBIT C continued **
AMENDMENT
7. Place of Use: County - See attachment
-acres - Lot - Block %- -% Section -
-% T- R-
-acres - Lot - Block %- -% Section -
-% T- R-
-acres - Lot - Block -
% % Section -
-M T- R-
-acres - Lot - Block -
% % Section -
-M T- R-
-acres - Lot - Block %- - - Section -
% M T- R-
Total Acres. Subdivision -
Replaces claimed information Supplements claimed information Addendum included
Please attach map showing entire place of use for this water right
cubic feet per second
8. Flow Rate Claimed: gallons per minute
miner's inches
9. Volume Claimed: acre-feet per year
10. Period(s) of Use:
(MonthIDay TO MonthiDay)
11. Priority Date: (date of first use) -
(Hour Month/Day/Year)
12. Type of Historical Right: Decreed Right
C] Filed Appropriation Right
C Use Right
] rioritv date or tvpe of right.
13. Reasons for Amendment:
14. Comments:
15. Notarized Statement Signed by Owner: C] See attachment
I, having been duly sworn, depose and say that I, being of legal age and being the owner of this
claim of existing water right know the contents of this amendment and that the matters and things
stated there are true and correct. (All current owners of the right as listed in the DNRC centralized
record system are required to sign.)
Signature Date
Signature Date
STATE OF MONTANA
County of
Subscribed and sworn before me this day of
(notary seal) Residing at
My commission expires
REQUEST TO WITHDRAW STATEMENT OF CLAIM
I /We, hereby request the
withdrawal of mytour Statement of Claim number
The reason for this request is:
I /We have an existing right which is exempt from filing.
This claim is for a use of water after July 1, 1973.
I /We have no existing water right to claim.
Other:
Signature Date
Signature Date
STATE OF MONTANA
County of
Subscribed and sworn before me this day of ,20
Notary Public for the State of Montana
Notary Seal Residing at
My commission expires
Exhibit B
WATER RIGHT ADJUDICATION RULES
AMENDED BY THE MONTANA SUPREME COURT
EFFECTIVE
DECEMBER 5, 2006
TABLE OF RULES
Rule
1. Purpose of rules and summary of adjudication process
(a) Authority of Montana water court
(b) The adjudication process
2. Water court practice and procedures
(a) Citation
(b) Application of other rules
(c) Water Court
3. Issuing a decree
4. Preliminary, temporary preliminary, other interlocutory
decree
5. Procedure for filing objection to preliminary or temporary
preliminary decrees
(a) Notice of objection
(b) Service of objection
(c) Filing of objection
(d) Extension of objection period
6. Notice of the filing of an objection an opportunity to file
counterobjection
(a) Notice
(b) Counterobjection
(c) Service and filing
7. Issue remarks
8. Claims called in on motion of the water court
9. Notice that objections and counterobjections have been
filed and opportunity to file notice of intent to appear
(a) Objection list
(b) Notice of intent to appear
10. Motions to Amend
101
11. Masters
(a) Appointment
(b) Order of reference
(c) Powers and duties
12. Department assistance
(a) Direction
(b) Requests for assistance
(c) Field investigations
13. Department data
(a) Admissibility
(b) Limitations
14. Continuances
15. Discovery
16. Settlement conferences and mediation
17. Settlements
(a) Approval required
(b) Expansion of claim
(c) Reduction of claim
18. Pretrial conference
19. Burden of proof
20. No right to jury trial
21. Hearings
(a) Subpoenas
(b) Recordings
(c) Procedure in evidentiary hearings involving only
the claimant
(d) Procedure in evidentiary hearin gs involving the
claimants and other parties
(e) Modification of abstract
(f) Enforcement
22. Sanctions
23. Master’s Report
24. Final decrees
(a) Issuance
(b) Notice of entry
(c) Inspection of final decree
25. Appeals
26. Split claims
102
27. Public notice of adjudication proceedings
28. Perpetuation of testimony
29. Miscellaneous fees
30. Late claim administrative costs and expenses
31. Water court decree enforcement
(a) Preliminary procedure
(b) Identification of diversions and instream uses
(c) Public meetings
(d) Tabulations
(e) Controversies
32. Assistance to district courts
RULE 1. PURPOSE OF RULES AND SUMMARY OF
ADJUDICATION PROCESS
Rule 1(a). Authority of Montana water court. The Montana
water court has a statutory obligation and the exclusive authority to
adjudicate claims of existing water rights. The Montana supreme
court establishes these special Montana water court rules of
practice and procedure to guide the adjudication of pre-July 1,
1973 water rights.
Rule 1(b). The adjudication process. Briefly, the
adjudication process consists of the following steps:
(1) upon order of the Montana supreme court, the filing of
statements of claim for uses of water that existed prior to July 1,
1973;
(2) a review of the submitted claim and accompanying
materials for clarity and completeness with editing to allow entry
into computerized storage;
(3) the compiling of the claim information into a
centralized record system by the Department of Natural Resources
and Conservation (hereinafter referred to as the department);
103
(4) under the direction of the water court pursuant to §
85-2-243, MCA, the department's examination of claims and the
reporting of facts, data, and issues pertaining to the claims as set
forth in these rules;
(5) the issuance, by the water court, of interlocutory,
temporary preliminary, or preliminary decrees based upon the
information on the sworn claims, data submitted by the
department, additional information obtained by the water judge,
and, where appropriate, the contents of approved compacts or the
filings for Indian and federal reserved water rights;
(6) the notice and opportunity for interested persons to
review and object to the interlocutory, temporary preliminary, or
preliminary decrees for good cause;
(7) judicial hearing by the water court on issues raised in
these proceedings;
(8) the issuance, by the water court, of final decrees based
upon the previous decrees and the judicial determinations made
upon hearings; and,
(9) the opportunity for interested parties to review and
appeal the final decrees under § 85-2-235, MCA.
RULE 2. WATER COURT PRACTICE AND PROCEDURES
Rule 2(a). Citation. These rules shall be known as the Water
Right Adjudication Rules and may be cited as Rule __, W.R.Adj.R.
Rule 2(b). Application of other rules. Unless the context of
these Rules requires otherwise, the Montana Rules of Civil
Procedure (M.R.Civ.P.), the Montana Rules of Evidence (M.R.Evid.),
and the Montana Uniform District Court Rules govern the practice
of the water courts. Unless the context requires otherwise, the
definitions in Rule 2, W.R.C.E.R. apply to these Rules.
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Rule 2(c). Water court. The term "water court" in these
practice and procedure rules includes water judges and water
masters.
RULE 3. ISSUING A DECREE. The chief water judge shall
issue an order of reference assigning a basin to a water master.
The water master shall review the department’s summary report.
The water master shall advise the chief water judge in writing when
the decree is ready for issuance. If the chief water judge is not
satisfied with the decree, the chief water judge may make the
necessary modifications and issue the decree. If the water court
modifies a claim abstract during the summary report review, it
must state its reasons in writing and the department shall place
that documentation in the claim file. Upon determination that the
decree is ready for issuance, the chief water judge will issue an
order for the department to proceed with printing all of the
abstracts of existing water rights to be included in the decree. The
order shall identify the type of decree to be issued.
RULE 4. PRELIMINARY, TEMPORARY PRELIMINARY, OR
OTHER INTERLOCUTORY DECREE. "Preliminary decree," as used
in these rules, means a preliminary decree issued in accordance
with § 85-2-231, MCA. Any other decree of a water court, not a
final decree under § 85-2-234, MCA, shall be considered a
temporary preliminary decree or interlocutory decree.
RULE 5. PROCEDURE FOR FILING OBJECTION TO
PRELIMINARY OR TEMPORARY PRELIMINARY DECREES.
Rule 5(a). Notice of objection. The water judge shall provide
notice of the objection period in accordance with § 85-2-232, MCA.
Notices of objection must be filed in compliance with § 85-2-233,
MCA. The water court shall provide objection forms. The objector
shall include a statement of:
(1) the findings and conclusions with which the objector
disagrees;
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(2) the elements or part of the claim abstract which the
objector believes should be modified; and
(3) the grounds and evidence on which the objection is
based.
Rule 5(b). Service of objection. The objector must mail a
completed copy of the objection to each claimant and complete the
certificate of mailing on the objection form before filing the original
objection with the water court. If the objector is the sole claimant
on the claim, no certificate of mailing is necessary.
Rule 5(c). Filing of objection. Objections must be filed within
180 days after entry of the decree. The water judge may, for good
cause shown, extend this time limit up to two additional 90-day
periods if application for an extension is made prior to the
expiration of the original 180-day period or any extension of it.
Section 85-2-233(2), MCA.
Rule 5(d). Extension of objection period. Applications for
extensions may be made on forms supplied by the water court. An
extension for one objector in a basin is an extension for all other
objectors. Any order of extension shall state the specific calendar
date on which the period of extension ends.
RULE 6. NOTICE OF THE FILING OF AN OBJECTION AND
OPPORTUNITY TO FILE COUNTEROBJECTION.
Rule 6(a). Notice. Pursuant to § 85-2-233, MCA, the water
court shall notify each person whose claim received an objection
that an objection was filed. The notice shall set forth the name of
each objector and shall allow an additional 60 days for the person
whose claim received an objection to file a counterobjection to any
claim of the objector in the decree. Counterobjections are limited to
those claims included within the specific decree issued by the water
court.
Rule 6(b). Counterobjection. Counterobjections must be filed
in compliance with § 85-2-233, MCA. The water court shall provide
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counterobjection forms. The counterobjector shall include a
statement of:
(a) the elements or part of the claim abstract which the
counterobjector believes should be modified; and
(b) the grounds and evidence on which the
counterobjection is based.
Rule 6(c). Service and filing. The counterobjector must mail
a copy of the completed counterobjection to the claimants of the
claim to which the counterobjection is filed and complete the
certificate of mailing on the counterobjection form before filing the
original counterobjection with the water court.
RULE 7. ISSUE REMARKS. If not otherwise resolved by the
objection process, the water court shall review, resolve, and remove
all issue remarks appearing on the abstracts of any claim as
directed by §§ 85-2-247 through 85-2-250, MCA.
RULE 8. CLAIMS CALLED IN ON MOTION OF THE WATER
COURT. The water court may issue such orders on its own motion
as may be reasonably required to allow it to determine whether a
claim accurately reflects its claimed pre-July 1, 1973 beneficial use.
The order calling any claim in on motion shall state the basis of the
water court's decision to review the claim and shall identify the
elements of the claim and the issues to be reviewed. In reviewing
claims called in on its own motion, the water court shall generally
follow the procedures set forth in § 85-2-248, MCA.
RULE 9. NOTICE THAT OBJECTIONS AND
COUNTEROBJECTIONS HAVE BEEN FILED AND OPPORTUNITY
TO FILE NOTICE OF INTENT TO APPEAR.
Rule 9(a). Objection list. After expiration of the time for filing
counterobjections, the water court shall compile an objection list
which identifies all claims to which objections or counterobjections
were filed, all issue remarks reported by the department, and any
claim which the court knows at the time of the compilation of the
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list will be called in on the court’s own motion. The water court
shall notify in writing each party named in the water court decree or
the successor in interest as documented in the department’s
centralized record system that the objection list has been compiled,
where the objection list can be reviewed, and from where copies of
the objection list, objections, counterobjections, and issue remarks
may be obtained. The written notice shall set a date on or before
which persons other than the claimants, objectors, or
counterobjectors to a particular claim shall file a notice of intent to
appear with the water court. The water court shall notify the
Montana Attorney General, and may also notify other interested
parties identified in § 85-2-232, MCA, and other water users that
the objection list has been prepared. The clerk or person
designated by the water judge to mail the written notice shall make
a general certificate of mailing certifying that a copy of the notice
has been placed in the U.S. Mail, postage prepaid, addressed to
each party required to be served the notice. The certificate shall be
conclusive evidence of due legal notice that objections and
counterobjections have been filed. The notice may also be
published once in at least one newspaper of general circulation in
the area where the basin, subbasin, or drainage is located.
Rule 9(b). Notice of intent to appear. Any person other than
the claimant or objector who intends to appear and participate in
further proceedings for any claims or issues included on the
objection list must file a notice of intent to appear in compliance
with § 85-2-233, MCA. The water court shall provide notice of
intent to appear forms. The person filing a notice of intent to
appear shall specify the claim number and include a statement of
the appearing person's legal rights that might be affected by the
resolution of the objections or issues involving the specified claim,
and the purposes for which further participation is sought. Persons
who file notices of intent to appear as provided in this rule shall
receive notice of all future proceedings involving the claims specified
in their notice and are entitled to participate in the resolution of the
issues associated with those claims.
RULE 10. MOTIONS TO AMEND. Pursuant to § 85-2-233(6),
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MCA, claimants may file motions to amend their own claims and
objectors may file motions to amend their own objections. A motion
to amend must specify the requested amendment and the grounds
for such amendment. Upon review, the water court will determine
the notice required pursuant to § 85-2-233(6), MCA, and issue an
appropriate order.
RULE 11. MASTERS.
Rule 11(a). Appointment. Water judges may appoint one or
more water masters for the water court or for a particular water
division, basin, subbasin, or case.
Rule 11(b). Order of reference. The order of reference to a
master may specify or limit the master's powers or may direct the
master to report only upon particular issues or to do or perform
particular acts or to receive or report evidence only, and may fix the
time or place for beginning or closing the hearings before the filing
of the master's report. Subject to the specifications or limitations
stated in the order, the master has and shall exercise the power to
regulate all proceedings in every hearing before the master and to
take all measures necessary and proper for the efficient
performance of the master’s duties specified under the order.
Rule 11(c). Powers and duties. The water master has the
general powers and duties granted a master by Rule 53(c), (d), and
(e), M.R.Civ.P.
RULE 12. DEPARTMENT ASSISTANCE.
Rule 12(a). Direction. The water court may at any time direct
the department to provide such information and assistance as may
be required by the water court to adjudicate claims of existing
rights, as provided in § 85-2-243, MCA.
Rule 12(b). Requests for assistance.
(1) All water court requests for department assistance
issued after the expiration of the notice of intent to appear filing
period and directed at the adjudication of a specific claim or claims
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contained in the decree shall be made in writing, delivered to the
department, and served upon all parties in the water court
proceeding that are identified on the water court service list
involving the claim or claims which are the subject of the request
for assistance. The request for assistance shall:
(i) state the basis for the request for assistance. If
the request for assistance has been initiated at the request of the
department, the water court's written request for assistance shall
identify the information conveyed to the water court by the
department and the department employee who conveyed the
information to the water court;
(ii) specify the elements of each water right claim or
claims to be reviewed by the department;
(iii) if known, identify the department employee who
will conduct the review;
(iv) notify all persons on the water court service list
of their right to submit written information to the department
concerning the elements of the water right claim or claims being
reviewed by the department and shall require all persons who
submit information to mail a complete copy to all persons on the
water court service list;
(v) specify a time period for completion of the
department’s review and the submission of the department’s
memorandum; and
(vi) direct the department to file the original
memorandum with the water court and mail a complete copy of the
memorandum to all persons on the water court service list.
(2) The department must document all contact with the
claimant or any other person regarding the water right claim as
provided in Rules 43 and 44 W.R.C.E.R. All persons on the water
court service list are entitled to notice and reasonable opportunity
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to be present during any field investigation conducted in
conjunction with the request for assistance.
(3) If necessary during the course of the review, the
department may communicate in writing with the presiding water
judge or water master to discuss the substance of the review being
conducted by the department. All such communication and court
response must be in writing with full service upon all persons on
the water court service list.
Rule 12 (c). Field investigations. Upon written order of the
water court, the department shall conduct field investigations of
claims. Unless otherwise directed by the water court, a field
investigation shall be conducted with the claimant or a claimant’s
representative in attendance. The other persons on the water court
service list may attend for the purpose of observing the
department’s field investigation.
(1) The water court’s written order for field investigation
shall:
(i) state the basis for the order;
(ii) specify the elements of each water right claim or
claims to be field investigated by the department;
(iii) if known, identify the department employee who
will conduct the field investigation;
(iv) specify a time period for completion of the field
investigation and the submission of the department’s field
investigation report; and
(v) direct the department to file the original field
investigation report with the water court and mail a complete copy
of the report to all persons on the water court service list.
(2) When the water court orders a field investigation, the
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department shall contact the claimant or the claimant’s
representative to establish the date and time of the field
investigation and, when necessary, to arrange access. The date and
time for the field investigation shall be confirmed through a letter
from the department to the claimant with a copy sent to the water
court, the person who has arranged access, and all other persons
on the water court service list.
(3) The department shall send its confirmation letter at
least 20 days before the intended date of the field investigation. The
20-day notice period may be shortened by order of the water court,
or waived by written agreement of all persons on the water court
service list.
(4) The field investigation data will be documented in
accord with Rules 43 and 44 W.R.C.E.R. The department shall file
the original field investigation report with the water court and mail
a complete copy of the report, including a certificate of mailing, to
all persons on the water court service list.
(5) If necessary, the department may communicate in
writing with the presiding water judge or water master to discuss
the substance of the field investigation. All such written
communication must be served upon all persons on the water court
service list.
(6) The water court may set a deadline for parties to
comment on the department’s final memoranda for requests for
assistance or on the department’s field investigation reports.
(7) This Rule does not limit the authority of the water
court to issue appropriate orders under the provisions of Rule 34,
M.R.Civ.P., or Rule 614, M.R.Evid.
RULE 13. DEPARTMENT DATA.
Rule 13(a). Admissibility. In any proceedings before the
water court, any investigative reports, data, or other written
information produced or promulgated by the department during
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examination or under the direction of the water court pursuant to §
85-2-243, MCA, shall be admissible without further foundation and
not subject to the hearsay objection in situations where the
department is not itself a party. Due provisions shall be made by
the water court to allow any party to cross-examine the department
employee who provided the assistance under § 85-2-243, MCA, and
to controvert the report, data, or other information by other
evidence.
Rule 13(b). Limitations. If the department fails to comply
with the protocols specified in Rule 12, W.R.Adj.R., the water court,
upon appropriate motion by any party, may issue an order
prohibiting or limiting the department employee's testimony at a
hearing on the water right claim, and may strike all or portions of
the memorandum prepared in response to the request for
assistance or a field investigation report prepared by the
department.
RULE 14. CONTINUANCES. Requests for continuance of any
hearing or proceedings in the water court must be made in
accordance with the Uniform District Court Rules, and served upon
all interested parties not less than 5 days before the date set for
hearing or proceedings. The water court will grant the continuance
upon a substantial showing of good cause. The water court may
grant an untimely request for a continuance upon a showing of
exigent circumstances.
RULE 15. DISCOVERY. Parties may obtain discovery as
provided by the Montana Rules of Civil Procedure. The water court,
upon motion of a party or on its own initiative, may enter an order
controlling or directing the course of discovery.
RULE 16. SETTLEMENT CONFERENCES AND MEDIATION.
The water court may require parties to participate in settlement
conferences or may assign the matter to a mediator. In the event
the water court assigns an outside mediator, the parties shall share
and pay the expense of hiring the mediator as directed by the water
court.
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RULE 17. SETTLEMENTS.
Rule 17(a). Approval required. The water court is not bound
by settlement agreements. Any settlement reached by the parties is
subject to review and approval by the water court. Settlement
includes the documents filed by a claimant in cases where the
claimant is the only party.
Rule 17(b). Expansion of claim. If a settlement seeks to
enlarge or expand an element of a claim and the documentation
provided by the parties does not include sufficient evidence to meet
the burden of proof, the water court shall provide notice to the
settling parties of the deficient documentation and allow reasonable
time for the parties to file additional supporting evidence. If
sufficient evidence to meet the burden of proof is not presented
within the time allowed, the water court shall not enlarge or expand
the element of the claim.
Rule 17(c). Reduction of claim. The claimant of a water right
claim may waive the advantage of § 85-2-227, MCA. If a claimant
agrees to reduce or limit an element of a claim, the water court does
not need to determine whether the burden of proof has been met.
The water court may accept a claimant’s requested reduction or
limitation without further presentation of evidence, unless there is
an unresolved issue remark on the claim, in which case § 85-2-248,
MCA, must be applied.
RULE 18. PRETRIAL CONFERENCE. Pretrial conferences
shall be conducted in accordance with and governed by Rule 16,
M.R.Civ.P., and Uniform District Court Rule 5, insofar as the same
is applicable to procedures in the water courts. Final pretrial
conferences shall be the rule rather than the exception. The water
court may order such preliminary pretrial conferences as may serve
to expedite formulation of issues of law or fact or the course of the
litigation.
RULE 19. BURDEN OF PROOF. A properly filed Statement of
Claim for Existing Water Right is prima facie proof of its content
pursuant to § 85-2-227, MCA. This prima facie proof may be
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contradicted and overcome by other evidence that proves, by a
preponderance of the evidence, that the elements of the claim do
not accurately reflect the beneficial use of the water right as it
existed prior to July 1, 1973. This is the burden of proof for every
assertion that a claim is incorrect including for claimants objecting
to their own claims.
RULE 20. NO RIGHT TO JURY TRIAL. Right to trial by jury
does not exist in this adjudication of existing water rights.
RULE 21. HEARINGS.
Rule 21(a). Subpoenas. The parties may procure the
attendance of witnesses before the water court by the issuance and
service of subpoenas as provided in Rule 45, M.R.Civ.P. Failure by
any person, without adequate excuse, to obey a subpoena served
upon that person may subject that person to the consequences,
penalties, and remedies provided in Rules 37 and 45, M.R.Civ.P.
Rule 21(b). Recordings. All hearings held before the water
court may be recorded by audio tape, audio-visual, stenographic,
electronic, or other appropriate means. If a hearing was held before
a water master, the water master shall file a transcript or recording
of the proceedings and of the evidence and the original exhibits.
RULE 21(c). Procedure in evidentiary hearings involving
only the claimant. In an evidentiary hearing involving only the
claimant, the order of procedure shall be:
(1) introductory and explanatory remarks by the water
court;
(2) discussion of the format of the proceeding;
(3) testimony of the department and introduction of any
report, data, or other written information prepared by the
department;
(4) cross-examination of the department by the claimant;
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(5) opening statement of the claimant;
(6) introduction of evidence and testimony by the claimant
and the claimant’s witnesses;
(7) closing statement of the claimant; and
(8) optional briefing schedule for the claimant.
Rule 21(d). Procedure in evidentiary hearing involving the
claimants and other parties. In an evidentiary hearing involving
the claimant and other parties, the order of procedure shall be
formulated during the final prehearing conference as required by
Rule 16(d), M.R.Civ.P., and included in the final prehearing order.
Rule 21(e). Modification of abstract. Following the
conclusion of the evidentiary hearing and the expiration of any
post-hearing briefing schedule, the water court shall review the
evidence in the record, render its written decision in accordance
with the burden of proof set forth in Rule19, W.R.Adj.R., and modify
the abstract of each applicable claim in accordance with the written
decision.
Rule 21(f). Enforcement. Until a water judge adopts or
modifies a master’s report, any claim modified by the master’s
report may not be enforced under Rule 31, W.R.Adj.R.
RULE 22. SANCTIONS. If a claimant, objector, or intervenor
fails to appear at a scheduled conference or hearing, or fails to
comply with an order issued by the water court, the water court,
upon motion, or its own initiative, may issue such orders of
sanction with regard thereto as are just. Sanctions applied against
claimants may include termination of the claim; or modification of
the claim to conform with data provided by the department,
information obtained by the court, or information included in an
objection. Sanctions applied against objectors and intervenors may
include dismissal of the objector or intervenor from the proceeding.
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RULE 23. MASTER’S REPORT. As stated in Rule 53(e),
M.R.Civ.P., the master shall prepare a report upon the matters
submitted to the master by the order of reference. If required to
make findings of fact and conclusions of law, the master shall set
them forth in the report. The master shall file the report with the
clerk of the water court unless otherwise directed by the order of
reference. The clerk of the water court shall serve notice of the filing
and a copy of the report on all parties who appeared before the
master and who were not previously dismissed from the proceeding.
At the discretion of the water court, notice of the filing and a copy
of the master’s report may also be given to other claimants or other
persons not otherwise appearing before the master in that
proceeding.
Subject to Rule 6, M.R.Civ.P., any party to the proceeding
before the master may file written objections with the water court
within 10 days after the service date of the notice of filing of the
master's report. In more complex cases, the water master may
enlarge the objection period to 30 days. Upon request, a 10-day
extension to the objection period may be freely granted. Any party
filing objections shall also serve a copy of the objections upon the
other parties on the service list. A hearing will not be held on the
objections unless requested by a party or deemed necessary by the
water judge. The water judge shall accept the master’s findings of
fact unless they are clearly erroneous. After reviewing the report,
the water judge may adopt, modify, or reject the report, in whole or
in part, or may receive further evidence or recommit it with
instructions.
RULE 24. FINAL DECREES.
Rule 24(a). Issuance. A final decree shall be issued for a
basin, subbasin, or drainage after all objections, counterobjections,
and issue remarks have been resolved; all motions to amend and on
motion proceedings have been completed; and the requirements of §
85-2-237(1), MCA, within the water division have been satisfied.
Rule 24(b). Notice of entry. Notice of entry of a final decree
shall be sent to all parties named in the decree whose rights are
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stated, determined or affected thereby. The notice of entry of the
final decree shall also be published once in a newspaper of general
circulation in the area where the basin, subbasin, or drainage set
forth in the decree is located.
Rule 24(c). Inspection of final decree. The notice of entry of
final decree shall be in writing, and shall state where in the water
division and for what period of time a copy of the final decree may
be examined by the parties or interested persons. Any person may
obtain a copy of the final decree upon payment of a fee covering the
cost of printing or electronic copying.
RULE 25. APPEALS. Appeals to the Montana supreme court
by those parties entitled to an appeal under § 85-2-235, MCA, shall
be taken in the manner specified in Rule 72, M.R.Civ.P., and made
within the time frames permitted in Rule 5, M.R.App.P. The notice
of appeal shall be in the form prescribed by Rule 4(c), M.R.App.P.
The notice of appeal must also include a specific listing of all water
right numbers for which the appeal is taken. Within 30 days of the
filing of the notice of appeal, the water court may revise the caption
of the proceeding to reflect the current status and posture of the
parties, file a copy with the clerk of supreme court, and serve a copy
on the parties.
RULE 26. SPLIT CLAIMS. The water court may split claims
into separate claims at any time prior to the final decree upon
request of the claimants, or on its own initiative. The remarks in
Rule 38(b), W.R.C.E.R. or similar remarks may be added.
RULE 27. PUBLIC NOTICE OF ADJUDICATION
PROCEEDINGS. The water court may provide notice of
adjudication proceedings to the public through direct mail,
newspaper advertising, public meetings, radio and television, the
internet, or by other means.
RULE 28. PERPETUATION OF TESTIMONY. A person who
desires to perpetuate testimony regarding the historical beneficial
use of any water right claim filed in accordance with § 85-2-221,
MCA, may file a verified petition with the water court. The
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procedure set forth in Rule 27, M.R.Civ.P., shall be followed, but
each reference in that rule to the district court shall refer to the
water court and notice to expected adverse parties shall be served
by mail to the most recently updated address documented in the
department’s centralized record system. If the completed deposition
is filed with the water court, it may be placed in the claim file of the
claim involved in the deposition. If more than one claim is involved,
the deposition will be placed in the lowest numbered claim file of
the claims involved and a notice of that filing location shall be
inserted in the other claim files involved in the deposition.
Alternatively, the depositions may be placed in the case file
containing the verified petition and a notice of filing location shall
be placed in the file of the claims identified in the deposition.
RULE 29. MISCELLANEOUS FEES. The chief water judge
shall periodically establish a schedule of fees for copies of filed and
microfiche documents and for fax and other electronic
transmissions that do not exceed the highest fee charged for similar
services by the state law library, clerks of court, or the department.
RULE 30. LATE CLAIM ADMINISTRATIVE COSTS AND
EXPENSES. On or before July 1 of each odd numbered year, the
chief water judge shall establish a schedule of administrative costs
and expenses to assess against late claimants as required by § 85-
2-225, MCA. The assessment shall be determined by calculating
the number of hours a water judge or master works on a late claim
and multiplying that number against a uniform hourly rate. The
uniform hourly rate shall be derived by dividing the water court’s
annual budget by 2080 hours and dividing that quotient by the
number of FTEs authorized by the legislature for the water court.
If late claims are consolidated and reviewed with non-late claims
and the time devoted to the late claim cannot be separately
assessed to a late claim, the water court shall prorate the
assessment to fairly allocate the costs of working on a late claim.
Unless the fees are waived by the water court, the minimum
assessment will be $20.00. If the assessment is not paid within 60
days after notice is provided, the water court shall hold a show
cause hearing to determine why the late claim or claims should not
be terminated for failing to pay the assessment. If the assessment
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is not paid or adequate explanation provided, the claim may be
terminated. Late claim costs and expenses will not be assessed
against withdrawn or terminated claims.
RULE 31. WATER COURT DECREE ENFORCEMENT. Upon
written request from a district court, water court decrees may be
enforced pursuant to §§ 3-7-212, 85-2-406(3) and (4), and 85-5-
101, MCA.
Rule 31(a). Preliminary procedure. Upon receipt of a district
court request for enforcement, the water court shall:
(1) determine the scope of the enforcement project and
project staffing in consultation with the department; and
(2) assess the status of all proceedings within the
proposed enforcement area to confirm that all objections have been
resolved and that the decree is ready for enforcement.
Rule 31(b). Identification of diversions and instream uses.
If the decree is ready for enforcement, the water court will:
(1) identify every diversion and instream use within the
enforcement area;
(2) map diversions and instream uses as needed;
(3) identify ditch names as necessary;
(4) note any point of diversion discrepancies or other
issues that might adversely affect the distribution of water
under the water court’s tabulation of existing water rights; and
(5) notify the claimant of these discrepancies or issues.
The water court may resolve any discrepancy or issue through
the procedures set forth in §§ 85-2-233(6) and 85-2-248, MCA.
Rule 31(c). Public meetings. The water court may conduct
public meetings on any proposed decree enforcement.
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Rule 31(d). Tabulations. The water court shall provide
tabulations of existing water rights within the proposed
enforcement area to the district courts.
Rule 31(e). Controversies. If a water distribution controversy
arises on a source that is included in the enforcement project, a
dissatisfied water user may file a complaint with the district court
pursuant to § 85-5-301, MCA, and petition the district court to
certify the matter to the chief water judge pursuant to § 85-2-
406(2)(b), MCA.
RULE 32. ASSISTANCE TO DISTRICT COURTS. The water
court may assist the district courts in developing water user billing
systems, water commissioner training, and any other requirement
to facilitate the distribution of water under the water court decree
and tabulations.
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