36.25.1104 AUTHORIZATION FOR USE OF NAVIGABLE WATERWAYS
(1) Except as otherwise provided in this rule, the following shall require prior written authorization from the department:
(a) fixed structures placed within the bed of a navigable river or suspended above the bed of a navigable river; and
(b) boats positioned, moored, or anchored longer than fourteen days within any 30-day period within a specific location upon navigable waters.
(2) The following uses require no prior written department authorization:
(a) public uses as defined in ARM 36.25.1101; and
(b) uses and structures described in 85-16-101, MCA.
(3) Individuals seeking department authorization for the use of the bed of a navigable river must complete and submit an application form as prescribed by the department.
(4) Department authorization shall be in the form of a lease, license, or easement.
(5) All leases, licenses, or easements shall include a provision reserving all rights and interests other than those specifically granted by the lease, license, or easement. These reservations include, but are not limited to mineral reservations.
(a) No lease, license, or easement issued under this rule shall allow that lessee, licensee, or easement holder to mine upon the premises described therein any:
(i) coal, oil, gas and other minerals; and
(ii) deposits of stone, gravel, sand, gems, and other nonminerals valuable for building, mining, or other commercial purposes.
(6) With the exception of applications for authorization sought by the Montana Department of Transportation (MDT), all necessary federal, state, and local permits shall be acquired by those requesting authorization to use a navigable river or other river as specified in ARM 36.25.1102(3), except where the department issues contingent authorizations under (6)(b).
(a) Copies of permits must be furnished to the department prior to the department authorizing the use of the bed of a navigable river.
(b) However, the department may choose to issue a lease, license, or easement prior to the department's receipt of permit copies where the lease, license, or easement is conditioned upon the applicant's receipt of a permit and the filing of a copy of the permit with the department.
(7) As provided in 77-1-121, MCA, the department is exempt from the provisions of Title 75, chapter 1, parts 1 and 2, MCA, when issuing a lease, license, or easement for the use of the bed of a navigable river that expressly states that the lease, license, or easement is subject to further permitting under any of the provisions of Title 75 or 82, MCA.
(a) An environmental analysis may be conducted to assess the impact a permanent easement may have on the navigability of the river.
(8) The department may require holders of leases, licenses, or easements to remove hazards from the river, including structures that are no longer in use.
(9) Leases and easements for the use of the beds of navigable rivers are assignable. Easements for the use of beds of navigable rivers shall be appurtenant to dominant tenement real property.
History: 77-1-1111, 77-1-1115, 77-1-1117, MCA; IMP, 77-1-1115, 77-2-102, MCA; NEW, 2012 MAR p. 2475, Eff. 12/7/12.