36.12.117 OBJECTION TO APPLICATION
(1) A person objecting to a proposed application under 85-2-308, MCA, must file an objection to an application on Form No. 611, Objection to Application, which can be obtained from the department, and must comply with the requirements set forth in this rule.
(2) A separate Objection to Application must be filed for each water right application.
(3) Persons owning separate water rights must each file an Objection to Application form. For example, if person A owns a water right and B owns a different water right and both want to file an objection to the same application, owner A and owner B must each file a separate Objection to Application form.
(4) Co-owners (owners of a water right that is not split between the owners) of an undivided water right may file one Objection to Application form.
(5) Each objector who wants to participate in the department's contested case hearing must sign the Objection to Application form.
(6) An Objection to Application is timely if the postmark date on the form is on or before the objection deadline stated in the public notice of the application. A fax of the Objection to Application form will be accepted, provided the original Objection to Application form is postmarked or hand-delivered timely. Electronic mail (e-mail) submissions of the Objection to Application will not be accepted.
(7) An Objection to Application filed with the department before an application has been published will not be accepted and will be returned.
(8) Upon receipt of an Objection to Application or response to an Objection Deficiency Notice, the department will place the envelope postmark date on the form. If the postmark date is not legible, the department will assign the date as two days prior to the department's receipt of the objection form. An objector is solely responsible for ensuring timeliness, a legible postmark, and filing of the objections.
(9) An Objection to Application is correct and complete if it includes the following legible information:
(a) filing fee;
(b) objector's name and mailing address;
(c) name of the water right applicant;
(d) water right application number;
(e) if an objector is claiming the objector's water right will be adversely affected if the application were granted, the objector must provide the department-assigned water right number. If the water right was exempt from the statewide water right filing requirements and is not on record with the department, the objector must provide the following information:
(i) date of first use;
(iii) means of diversion;
(iv) type of use (stock or domestic);
(v) the flow rate and volume of water used;
(vi) the point of diversion; and
(f) facts indicating that the application does not meet one or more of the applicable criteria set forth in 85-2-302, 85-2-311, 85-2-316, 85-2-402, 85-2-407, or 85-2-408, MCA. The facts provided must specifically describe why or how one or more of the criteria are not met;
(g) facts explaining how the person has standing to object. To have standing, a person must have property, water rights, or other interests that would be adversely affected were the application to be granted. The objection must describe how the person's property, water rights, or interests will be adversely affected if the water right application were granted;
(h) if an objector is claiming adverse effect to instream flow water rights for fish, wildlife, and recreation, the objector must:
(i) describe the reach or portion of the reach of the stream or river subject to the instream flow water right and the beneficial use that is adversely affected;
(ii) identify the point or points where the instream flow water right is measured and monitored; and
(i) signature of the objector or the objector's legal representative. If a representative of the objector other than objector's attorney signs the Objection to Application affidavit, the representative shall state the relationship of the representative to the objector and provide documentation demonstrating the authenticity of that relationship.
(10) An objection that is deemed correct and complete and valid pursuant to 85-2-308(3) and (6), MCA, may proceed to an administrative hearing. The administrative hearing will be limited to the criteria objected to in the objection. An objector may participate in the administrative hearing only on the criteria to which the objector specifically objected and which is determined valid by the department.
(11) The department will mail notice to the objector of the Objection to Application of any deficiencies in the objection. The objector must address the information requested in the Objection Deficiency Notice and must have the response postmarked or hand delivered to the department within 15 calendar days from the date on the Objection Deficiency Notice. A fax submission of the deficiency letter response will be accepted provided the original response is postmarked timely. Electronic mail (e-mail) submissions of a response will not be accepted.
(12) If the objector does not correct the deficiencies as determined by the department by the deadline, the objection will be terminated without further notice.
(13) The department will document a valid objection by completing an objection validity form.
(14) The department will determine on which criteria the objector has filed a valid objection.
(15) An objection may be withdrawn at any time in writing. A party withdrawing an objection will not be considered a party by the department to any hearing that may be held by the department.
(16) An applicant is not required to meet a water quality criterion when a valid water quality objection is not raised or is withdrawn.
(17) Private agreements between applicants and objectors which provide for the withdrawal of objections and include conditions that must be met by an applicant or objector may not be recognized by the department or included in a granted application. The department will only place a condition on a granted application if the department determines the condition is necessary to meet the application criteria.
History: 85-2-308, MCA; IMP, 85-2-308, MCA; NEW, 2008 MAR p. 567, Eff. 3/28/08; AMD, 2018 MAR p. 451, Eff. 2/24/18.