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Montana Administrative Register Notice 36-22-134 No. 22   11/25/2009    
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BEFORE THE DEPARTMENT OF NATURAL RESOURCES

AND CONSERVATION OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 36.12.1901, Filing a Change Application and 36.12.1902, Change Application - Historic Use

 

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NOTICE OF AMENDMENT

 

 

            To:       All Concerned Persons

 

            1.  On May 28, 2009, the Department of Natural Resources and Conservation published MAR Notice No. 36-22-134 regarding a notice of public hearing on the proposed amendment of the above-stated rules at page 814 of the 2009 Montana Administrative Register, Issue No. 10.

 

            2.  The department has amended ARM 36.12.1901 and 36.12.1902 as proposed but with the following changes from the original proposal, matter to be stricken interlined, new matter underlined:

 

36.12.1901  FILING A CHANGE APPLICATION  (1)  An applicant who desires to change the point of diversion, place of use, purpose of use, or place of storage of a water right must file an application to change a water right (Form No. 606) and applicable addendum; all materials must include, but are not limited to the information required by Title 36, Chapter 12.

(2) remains as proposed.

(3) In addition to the change application rules, a temporary change application for instream flow must submit the information required under 85-2-407 and , 85-2-408, and or 85-2-436, MCA.

(4) through (14)(c) remain as proposed.

            (d)  the applicant must provide information to show that the historic flow rate diverted will be adequate for the new use, even though the additional stock tanks may be farther away from the source of supply.

            (15) remains as proposed.

 

            36.12.1902  CHANGE APPLICATION - HISTORIC USE  (1)  The description of the historic information is related to a date that is dependent on the type of water right being changed.  The following dates are applicable for each type of water right:

(a)  historic information for a statement of claim must be described as it was used prior to July 1, 1973, unless the Water Right Claim was subject to a previous change in which case it is the date of completion of the change;

            (b) through (5) remain as proposed.

            (6)  For an application to change water rights that overlap the historic place of use, an applicant shall include those water rights in the change application or shall explain how each of the water rights has been historically used and how the unchanged water rights will be used if the change authorization were granted.  If water will continue to be used at the historic place of use, the applicant shall explain how the continued use will not increase the combined historic maximum diverted flow rate, the historic diverted volume, and the historic consumptive volume.

            (7) through (7)(e) remain as proposed.

(f)  typical historic diversion schedule and operation pattern;

(g) through (7)(k) remain as proposed.

(l)  typical historic period of use for each purpose;

(m) remains as proposed.

(n)  the annual or monthly historic consumptive volume for each purpose;

(i)  for irrigation, an applicant may choose to use the methodology described in (15) (16); and

(ii)  for irrigation, an applicant who chooses not to use the methodology described in (15) (16), shall provide the factual basis for the historic consumptive volume calculation and why the historic consumptive use is less than or greater than the methodology described in (15) (16);

(o) through (9) remain as proposed.

(10)  Calculations for each water right showing how the historic flow rate, consumed and diverted volumes for each water right, and capacity were determined must be included in the application materials, and the methodology employed must be described.

(11)  The annual or monthly historic diverted volume must be based on the appropriator's typical historic operation of their diversion, irrigation, and harvest schedule throughout the period of diversion and the period of use.  If applicable, in addition to the information required in 36.12.1902(7),  the historic operation information must include if a discussion of the primary diversion from the source and  secondary diversion from a ditch or reservoir exists, an applicant shall identify the diversion means and the typical operation of that secondary diversion.

(12) remains as proposed.

(13)  The following may be used to calculate ditch capacity, historic available water supply, and reservoir capacity: 

(a)  Manning's equation;

(b)  Orsborn's equation;

(c)  Blaney-Criddle equation; and

(d)  the department will determine the acceptability of other reports or methods on a case-by-case basis.

(13) (14)  The methodology in (15) (16) may be used to determine the historic consumptive volume for irrigation.  The methodology is based on data from the United States Department of Agriculture (USDA) National Agricultural Statistics Service (NASS), and generated using the USDA NRCS Irrigation Water Requirements (IWR) program.  If the applicant chooses not to use the methodology, they shall provide evidence showing how the historical consumptive use was calculated and why that amount is less than or greater than the methodology described in (15) (16).

(14) (15)  IWR Data for Seasonal Alfalfa Evapotranspiration County Management Factor are shown in Table 1 and may be used to identify the historic consumptive volume.  If this table is used to establish the historic consumptive volume, the department will recognize that volume as a reasonable calculation, unless a valid objection is received which offers proof that the volume is inaccurate.

(15) remains as proposed but is renumbered (16).

 

Table 1 - Montana County Weather Station IWR Data for Seasonal Alfalfa Evapotranspiration and Montana County Management Factor.

Column A

 

 

 

 

 

 

 

 

 

County

Column B

 

 

 

 

 

 

 

 

 

Weather Station

Column C

 

 

 

 

 

 

 

 

 

Elevation

Column D

 

IWR

Flood Irrigation, Wheeline & Handline

Seasonal ET (inches)

Column E

 

 

 

IWR

Center Pivot    Irrigation

Seasonal ET (inches)

Column F

 

 

 

 

 

 

Management Factor Percentage

1964 - 1973

Beaverhead

Dillon

5239

18.3417.05

20.7419.78

63.7 %

 

Wisdom

6060

7.346.72

9.298.82

 

 

Jackson

6480

8.357.73

10.309.83

 

 

Lakeview

6710

8.397.52

10.6710.02

 

 

Lima

6583

13.7512.72

16.0115.23

 

Big Horn

Busby

3430

20.3218.96

22.8821.87

55.4 %

 

Hardin

2905

27.4626.01

29.9628.88

 

 

Hysham 25

3100

20.2518.84

22.8621.80

 

 

Wyola

3750

19.1917.79

21.8920.84

 

 

Yellowtail Dam

3305

28.0726.12

31.3029.83

 

Blaine

Chinook

2420

20.8019.12

23.5722.32

58.7 %

 

Harlem

2362

21.6219.99

24.2723.05

 

Broadwater

Townsend

3840

19.4217.93

21.8820.77

69.2 %

 

Trident

4040

20.6419.07

23.3122.14

 

Carbon

Joliet

3776

22.4120.94

25.1224.03

58.3 %

 

Red Lodge

5500

15.5714.28

18.4117.44

 

Carter

Ekalaka

3425

20.1318.38

23.1421.83

38.4 %

 

Ridgeway

3320

20.2818.70

23.0121.83

 

Cascade

Cascade 20

4600

14.1212.83

16.6315.67

57.3 %

 

Cascade 5

3360

17.9016.31

20.7519.56

 

 

Great Falls

3675

19.7818.21

22.5521.37

 

 

Neihart

4945

12.1710.73

15.0814.01

 

 

Sun River

3340

18.1016.68

20.6519.59

 

Chouteau

Big Sandy

2700

21.5219.76

24.3723.06

52.5 %

 

Fort Benton

2640

21.9820.32

24.7523.51

 

 

Geraldine

3130

20.3018.55

23.2721.95

 

 

Iliad

2950

21.5519.89

24.2723.03

 

 

Loma

2700

22.6421.00

25.3724.14

 

 

Shonkin

4300

13.3211.64

16.7015.44

 

Custer

Miles City

2628

26.6824.89

29.5528.21

54.5 %

 

Mizpah

2480

23.8022.14

26.5725.32

 

 

Powderville

2800

24.8323.09

27.6826.38

 

Dawson

Glendive

2076

26.0124.08

28.9927.54

56.8 %

Deer Lodge

No weather station

 

 

 

See appropriate adjacent county

Fallon

Plevna

2780

22.4820.79

25.3424.07

47.6 %

Fergus

Denton

3620

15.3913.87

18.1216.97

48.8 %

 

Grass Range

3490

18.9317.16

21.9320.60

 

 

Lewistown

4167

15.5413.96

18.4417.25

 

 

Roy

3450

19.9418.23

22.7821.50

 

 

Winifred

3240

17.8616.18

20.7519.50

 

Flathead

Creston

2949

14.9713.49

17.8116.70

87.6 %

 

Hungry Horse Dam

3160

14.6613.18

18.0616.95

 

 

Kalispell

2972

16.4515.21

19.0318.10

 

 

Olney

3165

12.5011.37

15.1614.31

 

 

Polebridge

3600

10.209.36

12.5011.87

 

 

West Glacier

3154

13.7412.48

16.7815.83

 

 

Whitefish

3100

15.7414.32

18.6117.55

 

Gallatin

Bozeman Exp Farm

4775

16.8415.41

19.5518.48

73.5 %

 

Bozeman MT State

4913

18.4216.78

21.3920.16

 

 

Hebgen Dam

6667

10.099.13

12.7712.05

 

Garfield

Cohagen

2710

22.3620.81

24.9923.83

43.4 %

 

Jordan

2661

23.5821.91

26.3225.07

 

 

Mosby

2750

24.5122.76

27.3426.03

 

Glacier

Babb

4300

12.1210.70

14.8713.80

59.7 %

 

Cut Bank

3855

16.0114.54

18.6017.50

 

 

Del Bonita

4340

14.6113.10

17.3016.17

 

 

East Glacier

4810

10.609.61

13.2612.53

 

 

St Mary

4560

13.6412.37

16.6015.64

 

Golden Valley

Ryegate

4440

17.6016.16

20.1719.09

62.6 %

Granite

Philipsburg Ranger Station

5270

12.9011.83

15.2614.46

86.5 %

Hill

Fort Assinniboine

2613

22.4220.72

25.2023.93

54.1 %

 

Guilford

2820

19.5418.00

22.0620.91

 

 

Havre

2585

20.9419.46

23.4622.35

 

 

Simpson

2815

19.6718.15

22.1321.00

 

Jefferson

Boulder

4904

17.0815.78

19.4718.50

61.0 %

Judith Basin

Moccasin Exp Station

4243

16.1714.51

19.0617.83

49.3 %

 

Raynesford

4220

16.1414.54

19.0517.86

 

 

Stanford

4860

16.7415.06

19.6918.43

 

Lake

Bigfork

2910

17.3715.67

20.6119.33

55.0 %

 

Polson

2949

20.4618.95

23.2322.10

 

 

Polson Kerr Dam

2730

21.3719.85

24.0822.95

 

 

St Ignatius

2940

19.5318.01

22.3321.18

 

Lewis & Clark

Augusta

4070

17.5116.06

20.1319.04

60.1 %

 

Austin

4790

15.4114.19

17.9617.04

 

 

Helena

3828

20.2318.82

22.6921.63

 

 

Holter Dam

3490

23.8822.18

26.6125.34

 

 

Lincoln Ranger Station

4575

12.8711.93

15.2214.51

 

Liberty

Chester

3132

19.2817.79

21.7420.62

54.8 %

 

Joplin

3300

19.0117.53

21.4020.29

 

 

Tiber Dam

2850

22.9821.41

25.4624.29

 

Lincoln

Eureka Ranger Station

2532

20.6319.21

23.2622.20

47.1 %

 

Fortine

3000

16.0914.77

18.6917.70

 

 

Libby Ranger Station

2096

21.2020.06

23.7122.86

 

 

Libby

3600

11.0610.29

13.3612.79

 

 

Troy

1950

19.9018.70

22.6821.78

 

Madison

Alder

5800

14.3313.13

16.7515.85

65.2 %

 

Ennis

4953

17.1915.86

19.7118.71

 

 

Glen

5050

17.8116.57

20.0119.09

 

 

Norris

4750

20.8819.06

23.9722.61

 

 

Twin Bridges

4777

16.9815.75

19.2218.30

 

 

Virginia City

5770

15.5714.30

18.1317.17

 

McCone

Brockway

2630

20.7419.12

23.3522.14

43.7 %

 

Circle

2480

22.2320.55

25.0123.75

 

 

Fort Peck Power Plant

2070

25.3723.54

28.1626.79

 

 

Vida

2400

21.7419.93

24.6523.30

 

Meagher

Lennep

5880

11.9310.82

14.3813.55

57.3 %

 

Martinsdale

4800

15.1913.83

17.7316.71

 

 

White Sulpher Spr

5060

16.4115.12

18.8917.92

 

Mineral

St Regis Ranger Stn

2680

17.6116.54

20.0519.26

56.1 %

 

Superior

2710

21.9420.64

24.5423.57

 

Missoula

Lindbergh Lake

4320

14.6313.65

17.2216.48

69.5 %

 

Missoula

3420

18.8517.52

21.4920.50

 

 

Missoula WSO AP

3199

19.4518.23

21.8920.98

 

 

Potomac

3620

14.0513.18

16.2615.60

 

 

Seeley Lake Ranger Station

4100

14.8613.85

17.3116.55

 

Musselshell

Melstone

2920

24.2222.42

27.1725.83

50.0 %

 

Roundup

3386

23.9822.26

26.7925.50

 

Park

Cooke City

7460

8.687.36

11.6310.64

56.9 %

 

Gardiner

5275

22.4621.22

24.7023.77

 

 

Livingston

4870

16.5915.05

19.4118.25

 

 

Livingston FAA AP

4656

18.6317.11

21.3920.25

 

 

Wilsall

5840

13.2011.84

16.0114.98

 

Petroleum

Flatwillow

3133

22.2720.63

25.0123.78

44.0 %

Phillips

Content

2340

21.1519.86

23.9723.00

54.7 %

 

Malta 35

2650

20.2818.63

22.9921.76

 

 

Malta 7

2262

21.6119.88

24.3923.10

 

 

Port of Morgan

2830

20.1518.44

22.7221.44

 

 

Saco

2180

20.1318.61

22.7021.56

 

 

Zortman

4660

14.3812.67

17.4016.12

 

Pondera

Conrad

3550

16.9315.57

19.4218.40

71.4 %

 

Valier

3810

18.3116.73

20.9619.77

 

Powder River

Biddle

3597

21.8720.24

24.6623.45

38.5 %

 

Broadus

3032

23.0321.52

25.6924.56

 

 

Moorhead

3220

23.7222.12

26.4225.22

 

 

Sonnette

3900

18.3216.89

20.9619.89

 

Powell

Deer Lodge

4678

13.1412.09

15.3214.53

77.6 %

 

Ovando

4109

12.2811.41

14.4313.77

 

Prairie

Mildred

2510

22.9221.32

25.5824.39

59.6 %

 

Terry

2248

22.8221.21

25.4724.26

 

 

Terry 21

3260

18.6517.09

21.3420.17

 

Ravalli

Darby

3880

18.9117.68

21.4420.52

79.5 %

 

Hamilton

3529

19.9318.75

22.3421.45

 

 

Stevensville

3380

19.1918.16

21.4420.67

 

 

Sula

4475

12.0911.09

14.4213.67

 

 

Western Ag Research

3600

19.8218.63

22.1521.25

 

Richland

Savage

1990

23.6121.70

26.5925.16

56.0 %

 

Sidney

1931

22.4920.63

25.4524.06

 

Roosevelt

Bredette

2638

19.9918.18

22.8621.50

46.5 %

 

Culbertson

1942

20.8419.01

23.7322.36

 

 

Wolf Point

1985

24.1622.29

27.0325.63

 

Rosebud

Birney

3160

24.5722.98

27.2926.10

47.7 %

 

Brandenberg

2770

23.8322.32

26.5225.38

 

 

Colstrip

3218

23.3221.69

26.1024.87

 

 

Forsythe

2520

25.1723.42

28.0426.73

 

 

Ingomar

2780

23.1821.61

25.8324.65

 

 

Rock Springs

3020

21.3519.79

23.9322.76

 

Sanders

Heron

2240

14.8213.70

17.7616.92

58.8 %

 

Thompson Falls Power

2380

22.4921.15

25.3624.36

 

 

Trout Cr Ranger Station

2356

16.6015.54

19.4018.61

 

Sheridan

Medicine Lake

1975

21.6419.82

24.4923.14

44.8 %

 

Plentywood

2063

20.6418.86

23.4822.15

 

 

Raymond Border Station

2384

19.1317.26

22.0420.64

 

 

Redstone

2300

17.8616.22

20.5819.36

 

 

Westby

2120

18.1016.27

21.0319.66

 

Silverbow

Butte FAA AP

5545

14.7313.61

17.0616.22

68.8 %

 

Divide

5350

15.2514.09

17.5816.72

 

Stillwater

Columbus

3602

22.3120.76

25.0923.93

46.5 %

 

Mystic Lake

6544

13.5712.19

16.5715.54

 

 

Nye

4840

15.0013.39

17.9316.73

 

 

Rapelje

4125

20.3518.84

23.0721.94

 

Sweet Grass

Big Timber

4100

20.6018.97

23.4722.25

44.7 %

 

Melville

5370

12.8311.51

15.4914.50

 

Teton

Blackleaf

4240

14.7413.33

17.3416.28

68.8 %

 

Choteau Airport

3845

20.5318.88

23.0721.83

 

 

Fairfield

3980

19.1017.53

21.7620.58

 

 

Gibson Dam

4724

13.5712.23

16.2215.22

 

Toole

Goldbutte

3498

16.3014.79

18.9617.83

51.8 %

 

Sunburst

3610

18.7417.11

21.4620.24

 

 

Sweetgrass

3466

18.2216.32

21.2219.80

 

Treasure

Hysham

2660

25.0123.35

27.7826.54

53.4 %

Valley

Glasgow WSO AP

2293

23.4821.78

26.1224.85

57.9 %

 

Hinsdale

2670

22.1820.23

25.2523.79

 

 

Opheim 10

2878

16.1914.60

18.8617.67

 

 

Opheim 16

3258

16.7315.18

19.3418.19

 

Wheatland

Harlowton

4162

17.8316.26

20.5619.38

46.6 %

 

Judith Gap

4573

13.7712.37

16.4015.36

 

Wibaux

Carlyle

3030

19.8718.19

22.7521.49

See appropriate adjacent county

 

Wibaux

2696

18.6917.02

21.5020.25

 

Yellowstone

Billings Water Plant

3097

26.1624.53

28.9227.70

59.5 %

 

 

Billings WSO

3648

25.4923.94

28.2227.06

 

 

Huntley Exp Station

3034

21.9220.39

24.6123.47

 

 

            3.  The following comments were received and appear with the department's responses.  The department noted that in the various comments there are two misconceptions that need to be addressed.  Those are addressed below under "General Response", prior to the specific comments and responses.

 

General Response: 

There are two general misconceptions that should be addressed prior to addressing specific comments. 

 

(1) The proposed consumptive use table and figures are not mandatory.  An applicant for change can elect to use the consumptive use table.  Alternatively, an applicant can bring forward proof of the actual amount of water diverted and consumed.  In so doing, the applicant will have to demonstrate that the factual conditions exist for the use of formulas and guides, such as the Montana Irrigation Guide.  For example, the Montana Irrigation Guide assumes optimum conditions, including but not limited to water availability. The applicant will have to make this showing in the absence of use of the rules. The proposed rules provide an option to applicants who want to change a water right, but have no knowledge of the actual historic use or who would rather not expend resources to determine the historic use.

 

(2)  Elements of a water right include the priority date; flow rate; volume; point of diversion and place of use.  A water right that has been preliminarily decreed may not show a figure for the volume (acre-foot) limit of the right, but the right is decreed with the statement that the volume is limited to the historic use.  In a change proceeding, previous case law and department orders limit the change to the historic diverted flow rate, historic diverted volume, and the historic consumptive use cannot be increased.  An increase in historic consumptive use would generally reduce return flows.  While the limit of a water right for the purposes of changing the right has is historic consumptive use, this figure has not typically been recorded on the water right.  The DNRC is not reducing the right through a change process.  It is identifying those figures so that the record contains that information for future changes to the water right.  The identification of the consumed volume by a change applicant is critical to both junior and senior water right owners.  That water not consumed generally creates return flows upon which seniors and juniors are entitled to rely.  If the historic consumptive use is unknown, it would be difficult in a change proceeding for applicants to prove that it will not be increasing the amount of water consumed from the source.

 

A water right owner who wishes to change the point of diversion of a water right still has the right to the flow rate of water historically diverted and may divert under the same diversion practices as has been done previously; however, at present the water right will show a figure that identifies the amount of water currently consumed.  A water right owner who wants to change the purpose from irrigation to municipal use, can only change the amount of water diverted from the source, less the amount of water returned to a source.  If the change were not limited to the historic consumptive use, the operation of the right could reduce the return flow of water to which others have a right (see "Thompson v. Harvey" (1974), 164 Mont. 133, 519 P.2d 963; "McIntosh v. Graveley" (1972), 159 Mont. 72, 495 P.2d 186; "Head v. Hale" (1909), 38 Mont. 302, 100 P. 222 [cannot so change water use as to deprive lower appropriators of their rights, already acquired]; "Gassert v. Noyes" (1896), 18 Mont. 216, 44 P. 959 [change unlawful, downstream water users entitled to return flow]).  The portion of a water right not changed due to lack of proof of historic use remains as stated under the applicable Statement of Claim.  Water rights are not forfeited through a change process (see Beck, Robert E., Water and Water Rights at § 14.04(c)(1)(b), pp. 14-50, 51 (1991 edition); Wells A. Hutchins, "Water Rights and Laws in the Nineteen Western States", at 624 (1971)).

 

COMMENT 1: 

Commenter said that historic consumptive use only applies to instream flow, and based on Montana law, that language should only apply to changes to instream flow and not for general changes. 

 

RESPONSE 1: 
DNRC has determined that in all change application proceedings, an applicant must identify the historic consumptive use of each water right that is being changed.  Also, see General Response.

 

COMMENT 2: 

By disallowing maximum beneficial use as the measure of a historic water right, the application of ARM 36.12.1902 has resulted in change applicants losing the right to the continued use of water that was historically used, and therefore results in a taking. 

 

RESPONSE 2:

The proposed rules do not disallow the maximum beneficial use of a historic water right. An applicant can bring forward proof of the actual amount of water diverted and consumed.  In so doing, the applicant should be aware that it will have to demonstrate that the factual conditions exist for the use of formulas and guides, such as the Montana Irrigation Guide.  For example, the Montana Irrigation Guide assumes optimum conditions including, but not limited to water availability. The applicant will have to make this showing in the absence of the use of the rules.

 

The proposed rules provide an option to applicants who want to change a water right, but have no knowledge of the historic use, or who would rather not expend resources to determine the historic use.  The proposed rules do not mandate use of the methodology by an applicant for change of a water right.  These rules are for optional use, if an applicant so chooses. The portion of a water right not changed due to lack of proof of historic use remains as stated under the applicable Statement of Claim. Water rights are not forfeited through a change process. The rights simply are not authorized for a different use.

 

COMMENT 3: 

DNRC only allows "net consumptive use" instead of total consumptive use.  Net consumptive use subtracts seasonal rainfall from the amount of water consumptively used by irrigating a crop even though that rainfall would contribute to surface water if not consumed by the crop.  

 

RESPONSE 3: 

Please refer to the General Response.  As explained, "consumptive use has been defined as 'diversions less returns, the difference being the amount of water physically removed (depleted) from the stream through evapotranspiration by: irrigated crops or consumed by industrial processes, manufacturing, power generation or municipal use' (Beck 1991)." 

 

A water right is limited to the legal flow rate of water diverted by the appropriator's diversion works.  The flow rate and volume of water that an appropriator has a legal right to is the maximum flow rate diverted and the maximum volume diverted minus the volume of water that is not consumed.  An appropriator may gain a benefit from rainfall because the appropriator may not have to divert water as often; however, the appropriator cannot lay claim to water that is naturally dispersed on the place of use.

 

COMMENT 4: 

Few people can document pre-1973 water usage, and commenter believes it is critically important for DNRC to provide applicants with a reasonable and reliable method to estimate consumptive use.

 

RESPONSE 4: 

DNRC agrees and believes the proposed amendments will afford a reasonable and reliable option to applicants who want to change a water right.  Evidence of, and establishing the historic use of a water right is by far the most important evidence presented in a change application.  Prior to filing a change application, an applicant must thoroughly research a water right so that it is known to the applicant whether the water right is a "paper" right or a "real" water right.  The applicant must know that the water right they propose to change is real and that the facts pertaining to the historic use are accurate.  Without those two components being known, an applicant would have a difficult time meeting the statutory requirement that changing a water right will not create an adverse affect.  DNRC recognizes the challenges in proving historic use, and this is why it is offering this rule as an option.

 

COMMENT 5: 

The rule of law in Montana has provided that the total award of water should be fixed as "the largest area ever irrigated by" the use ("Conrow v. Huffine", (1914) 48 Mont. 437, 446, 138 p. 1094).  Use of the management factor, the normal year crop consumption, and net consumptive use would abrogate this ruling by decreasing the maximum amount of water historically used. It would result in too little water available under the historic right to irrigate the historical acreage (or a changed place of use of equal acreage under the same crop).  Commenter believes that any rules promulgated by DNRC should result in a consumptive use estimate based on maximum historic use.  The IWR software program uses crop irrigation requirements for a normal year to estimate consumptive use.  Commenter believes instead that the driest year should be used to replicate maximum historic use.   It is not unreasonable to assume that all irrigated lands have consumed the maximum volume of water identified by the IWR program for a dry year at least once in their past production history.  Therefore, commenter encourages DNRC to promulgate rules that recognize maximum beneficial use and take into account the difficulties in proving water use prior to 1973. 

 

RESPONSE 5: 

DNRC agrees that a water right is limited to the maximum acres irrigated.  Further, as a result of comments DNRC received, the proposed consumptive use table will reflect the figures as shown in a dry year.  DNRC notes that while it may be difficult to prove historic water use, it is not impossible.  These rules merely provide an option for applicants in the absence of any other evidence as to the amount of irrigation historically applied to irrigated property.  Applicant is free to bring forward whatever proof he or she wishes as to the actual historic use on the irrigated land.

 

Additionally, the department believes it is unreasonable to assume that all irrigated lands have consumed the maximum volume of water identified by the IWR program for a dry year at least once in their past production history.  There are many factors that determine the extent of actual, historic water use. The department has a long history of processing applications for irrigation changes, conducting extensive research on individual irrigation projects, and field investigating projects that show maximum consumptive use as portrayed by the IWR program was not possible.  Further, the department has worked with agriculture producers for 35+ years who also indicate the impossibility of maximum production on select parcels of land.  Each irrigation parcel is different and requires specific evaluation for historic use.  If the department were to assume maximum values for all irrigated acres it would be sanctioning water right expansions that adversely affect existing water rights.  A primary impetus for passage of the Water Use Act was to protect existing water users and shift the legal burden of proof to new water users or those wishing to change their existing water rights.

 

COMMENT 6: 

Commenter strongly feels that the methodology used to calculate the management factor unrealistically under-weights the pre-1973 yield, and therefore skews the management factor to the low side. 

 

RESPONSE 6: 

Available literature suggests that alfalfa requires approximately five to six inches of water to produce one ton per acre of dried alfalfa hay.  That response is linear, so each subsequent ton of hay produced requires another five to six inches of water (Smith et al., 1998; Bauder, 1977, 1978, 2001; Irmak, 2007; Hill, 2002; Hanson and Putnam, 2000).

 

To be conservative, DNRC analysis adopted a statewide value of six inches of water to produce each ton per acre of dried alfalfa. This value is similar to data from North Dakota, but slightly lower than the value reported for Kimberly, Idaho (Sammis, 1981; Shewmaker et. al., date unknown).

 

The estimated obtainable yield at each weather station was determined by dividing the total crop water requirement calculated with the IWR program by six inches per ton per acre. These estimated yields were then divided by the countywide alfalfa hay yields from the NASS data for the four analysis periods to obtain a management factor. The management factors give an estimate of what percent of the obtainable yield producers are typically obtaining in the field at a particular area. However, there are challenges with calculating a management factor for a specific site when NASS data is a countywide average.

 

The greatest challenge is whether the elevation of the weather station used for the IWR computed yields is applicable to all of the irrigated land in the county.  For counties where the elevation is relatively uniform, this does not present a problem. But in Beaverhead County for instance, where there are large differences in elevation, problems occur. Some of these problems can be seen in Table 3 for higher elevation sites such as Wisdom and Jackson. The alfalfa hay yields at these higher elevation sites are likely well below the Beaverhead County average, as are the corresponding crop irrigation requirements. But when the relatively high countywide hay yields averages are multiplied by the six inches of water per ton and then subsequently divided by the relatively low evapotranspiration (ET) requirements for these high elevation sites, a management factor of over 100 percent can result.

 

DNRC's approach resolves this issue by calculating a countywide management factor that was most representative for the majority of the irrigated lands in that county. The first step in this analysis was to determine the most representative weather station for the county-wide NASS data. GIS data was used to determine the average elevation and the approximate centroid of irrigated land within each county (the GIS data did not indicate any irrigated land in Wibaux county). The data was then compared to elevation and coordinate data for the weather stations to determine the most representative station for each county. In counties with only one weather station, that station was considered to be the most representative. Once the most representative weather station was chosen, the methodology described above was used to find the management factor.

 

Multiple regression and climatic area approaches were also tested; however, the results still did not reduce management factors below 100 percent.

 

DNRC used the best information it could find to determine the management factor.  However, if an applicant believes the management factor is too low, applicant should provide information in the application that would support the management factor determined by the applicant.  Use of DNRC's rule is not mandatory and applicant can present its own information to support its calculation.

 

COMMENT 7: 

Ranchers are distrustful of providing information to the government, especially information such as crop records that could potentially be used to tax them at a higher rate.  As a result, most ranchers understate the production from their land.  Ranchers do not always subtract the footprint of their house, out buildings, roads and other nonirrigated areas from the total property acreage, in which can result in low yield per acre estimates.

 

RESPONSE 7:  The USDA National Agriculture Statistics Service (NASS) conducts hundreds of surveys every year and prepares reports covering virtually every aspect of U.S. agriculture. Production and supplies of food and fiber, prices paid and received by farmers, farm labor and wages, farm finances, chemical use, and changes in the demographics of U.S. producers are only a few examples.

 

After data collection, NASS processes the data independent of names and addresses.  Original paper questionnaires are kept in a secure area, and then destroyed as prescribed by law.  Names, addresses, phone numbers, and other personal identifiers are held securely by NASS and used only to conduct official business. The Confidential Information Protection and Statistical Efficiency Act and 7 USC 2276 prohibit public disclosure of individual information or personal information, including reported data, and is protected from legal subpoena and Freedom of Information Act requests.

 

Individual participants in a NASS survey can rest assured that summary data will not be published in a way that would identify them or data for their operation without their written permission. For instance, if only one farm in a county produced a particular crop, then NASS will protect the privacy of that individual farm by combining the data for that crop with reports from other counties and publish only combined totals.

 

The survey's questions for agriculture production separate irrigated and nonirrigated land in Montana; however, other states do not make that designation.  The survey also asks how many total acres are owned by an operator and how many of those acres are covered by the farmstead, including roads and storage facilities.  The survey also separates acres in cropland from the acres in permanent pasture, wastelands, and wetlands.  DNRC determined the information from the NASS to be a credible source for use in development of these rules.

 

COMMENT 8: 

The highest alfalfa yields come from developed fields that are three to five years old.  While the second year may produce 80 percent of maximum yield, the first year usually produces about 50 percent.  Fields older than five years produce 80 percent or less.  As a result of the different ages of developed fields, averaged annual estimates are not representative of maximum obtainable yield or the maximum historic consumptive use.  Wind-blown hay (common in the Helena Valley); over drying of hay; and loss of crop to mold or hail due to untimely weather are known to cause a reduction in crop yield, and are not accounted for in the management factor. 

 

RESPONSE 8: 

The sampling of producers selected by NASS statisticians for data collection is varied yearly to ensure the results presented are accurate and that the data collection method will stand up to both the science community and the scrutiny of the multiple individuals relying on the data.  The NASS statisticians are highly knowledgeable of agriculture practices commenter's problems above.  They select the method for collection to ensure the usefulness of the collected data.

 

COMMENT 9: 

Commenter said the data is confidential and it cannot be accessed and reviewed to verify whether a particular property meets or exceeds the countywide value for historic production. 

 

RESPONSE 9: 

The commenter is correct that the data collected by NASS is confidential.  However, individual producers can provide their own data to the commenter, and that data can be compared to the countywide value.

 

COMMENT 10: 

Because the NASS data cannot be reviewed and verified, it represents hearsay evidence.  A system that puts so much weight on short-term, hearsay data that cannot be reviewed and verified is clearly flawed.

 

RESPONSE 10: 

Most producers would not provide data if it were not kept confidential.  As such, information can generally be relied upon as accurate. This information is used worldwide.  An applicant is not required to use the rule and can certainly provide his or her firsthand evidence of historic use to support applicant's calculations.

 

COMMENT 11:  Under the proposed rule, a producer will need to get an additional water use permit if he can plant, fertilize, harvest, or irrigate more efficiently to increase crop yield, profit, and food supply in order to increase that yield.

 

RESPONSE 11:  Commenter is generally correct. The Montana Water Use Act requires that increased water use that occurs after June 30, 1973, must be authorized by the DNRC.

 

COMMENT 12: 

Any erroneous volume reductions only provide water to downstream states and contradict the state's obligation to protect existing Montana water rights.

 

RESPONSE 12: 

The commenter concludes that requiring an applicant to identify the historic consumptive use would contradict the state's obligation to protect existing rights.  Protection of existing water rights refers to those water rights protected under law prior to July 1, 1973, and does not infer that the state should overlook historic consumptive use in order to reserve water for Montana.  Again, the rule is not mandatory and an applicant can present his or her own evidence.

 

COMMENT 13: 

Commenter's understanding of the amendment to ARM 36.12.1901(3) is that it will allow an applicant that is addressing multiple water rights that may have historic use on different acres to be changed under the cover of a single application if the change contributes to a single project. Commenter believes that makes sense in the realm of instream flow changes, where there is often the necessity to work with multiple users on the same ditch.

 

However, commenter questioned whether a single application under ARM 36.12.1901(8) can encompass multiple water right owners. If it is the intent to allow more than one ownership of water rights to apply under a single application, it would be useful to indicate that in the rule.  Commenter suggested adding the following language: "Multiple water rights, regardless of ownership, may be changed on one application."

 

RESPONSE 13:  The rule intent is to allow multiple water rights that are owned by a single owner or owners who hold an undivided interest to be applied for on a single change application—if all of the rights are being changed to accomplish a single new project.  Multiple water right owners who may be seeking to accomplish a single project will have to file separate change applications.  

 

COMMENT 14: 

Commenter said that while most of the proposed changes to ARM 36.12.1902(7) generally make sense, the prefatory language …"including the following of each water right being changed…," seems to require information at a level of precision that may be impossible to achieve in many cases. This may be particularly true as to subsection (7)(f), "historic diversion schedule and operation pattern". In many cases where the pre-July 1, 1973, use is sought, the people who originally irrigated and who would know that information are often long gone. While it may be possible to extrapolate the pattern to some extent based on local custom and practice and based upon review of aerial photos, it is nonetheless likely to be an educated guess or estimate. If that would be acceptable, it would be useful to indicate that in this subsection.

 

RESPONSE 14: 

DNRC agrees and the term "typical" has been added to ARM 36.12.1902(7)(f) and 36.12.1902(7)(l).

 

COMMENT 15: 

Commenter said the opportunity to provide calculations of ditch capacities has been offered in ARM 36.12.1902(9)(h). To the extent that DNRC can identify methodologies such as Manning's equation—or any others that DNRC considers acceptable—it would be useful to do so within the rule.

 

RESPONSE 15: 

DNRC agrees and has added 36.12.1902(13) accordingly.

 

COMMENT 16: 

Commenter said that ARM 36.12.1902(14) requires a "discussion" of primary and secondary diversions, without describing what the discussion should include.   Commenter asked if DNRC is looking for an acknowledgment that there are secondary diversions, or if DNRC wants more details, such as how much water went down each lateral?   The latter may be imposing an impossible hurdle to clear. Commenter said if it is the former—or at least something less draconian than estimates of each secondary diversion's flow rate and volume—then DNRC should clarify the rule.

 

RESPONSE 16: 

A primary diversion must identify all of the requirements in ARM 36.12.1707.  DNRC does not need to know the flow rate and volume used at a secondary diversion, simply how the diversion is operated.  The rules have been changed to clarify DNRC's intent.

 

COMMENT 17: 

Commenter's concern with ARM 36.12.1902(14) lies in the last sentence:  "…the department will recognize that volume, unless a valid objection is received." The last phrase makes it possible to defeat the applicant's use and the DNRC's recognition of this new methodology by simply filing an objection.  An applicant could file an objection, offer no proof that the estimate based on the methodology is wrong, and an applicant's reliance on the DNRC's methodology is nullified.  If an applicant can offer up evidence that calls the methodology into question, applicant should be allowed to do so. Commenter said it is wrong to allow the defeat of an applicant's estimates based on this methodology by the simple filing of an application. Commenter suggested removing the phrase after "that volume", and replacing it with, "unless an objector offers proof that the volume is inaccurate", or something to similar effect.

 

RESPONSE 17: 

DNRC agrees and has made the change.

 

COMMENT 18:  Commenter said the only management factor given in Table 1 is for a single location in each county.  However, DNRC provided management factors for multiple locations within each county in an explanatory memo from fall 2008.

 

With the exception of outliers like Beaverhead County, where the management factor seems really strange for places like Wisdom, it makes sense to provide management factors as locally as possible. Table 1 does not clarify whether DNRC intends to preclude the use of more local management factors; but if not, it would be useful to put them back in to Table 1. Commenter said if DNRC does not intend to recognize a local management factor, then it should explain why.

 

RESPONSE 18: 

Table 1 still includes the management factors for various locations.  However, the rules table does not include the management factors for various years as shown in DNRC explanation memorandum.  DNRC's opinion is that historic consumptive use refers to that amount of use that existed before July 1, 1973, because after that date, any increase in use would have to have a provisional permit that grants the additional water use.  Therefore, the rules table only displays the management factor for 1964 through 1973.  Again, use of the table is not mandatory.

 

COMMENT 19: 

As written, ARM 36.12.1901(3) could be interpreted to require an applicant who wishes to convert an historic right to instream flow to comply with three different statutes. Commenter recommends this rule be reworded to compel applicants to "submit information as required by 85-2-407, 85-2-408, and 85-2-436, MCA."

 

RESPONSE 19: 

The rule as stated requires an applicant to submit information required under those statutes, if applicable.  The only change made by the commenter is to the words "as" and "by".  The department doesn't think the word change adds to the understanding of the rule.

 

COMMENT 20: 

Commenter agrees that a water right is defined by its historic use and development (ARM 36.12.1902).  Commenter cautions DNRC in the interpretation of the rule as drafted. The operation of any water right is not static. Operators are continually adjusting their operations in response to environmental, technical, and market changes. While historic used defines a water right, a snap-shot at July 1, 1973, is an over simplification of historic use (ARM 36.12.1902(7)).

 

In combination, the proposed rules can be read to imply that submitted evidence must be actual measurement of pre-1973 conditions.  A 2009 measurement of ditch capacity combined with some evidence that relates today's conditions to pre-1973 conditions would be adequate. DNRC should be aware that it is rare to have pre-1973 measurements of water use and production.

 

RESPONSE 20: 

DNRC understands that operators continue to adjust their operations.  The rules are not meant to imply that evidence of pre-1973 water rights requires actual physical measurements.  However, if the changes in the operation result in the use of additional water after June 30, 1973, the Montana Water Use Act requires the additional water use be authorized in a provisional permit.  An analysis of yields over 40+ years shows an increase of 2.5 tons per acre to 3.2 tons per acre.  Statewide these increases average 0.7 tons per acre.  While some increase in yield is due to fertilizers and irrigation systems that allow for better coverage, an increase in yield often results in increased water use.  If one were to attribute only half of the increase (0.35 tons per acre) to additional water use, on a 100 acre field, the increase in water use would be about 17.5 acre feet (af).  Statewide, some two million acres are irrigated.  If all of those were increased by 0.35 tons, the total additional water used is 350,000 acre-feet.  Again the rule is not mandatory and an applicant can present his or her own information and evidence.  That evidence can include evidence of today's operation as relevant to historic practices.  Presentation of this type of evidence is not precluded.

 

COMMENT 21:  Commenter FWP recommended that ARM 36.12.1902(11) through (15) be put in a new rule titled "Determining Historic Consumption".

 

RESPONSE 21:  This comment will be considered by DNRC in a subsequent rulemaking action.

 

COMMENT 22: 

Column F of Table 1 (ARM 36.12.1902(15)) is derived from the USDA county-by-county survey of production. These crop production figures are used to adjust the consumptive water use.  The column should be deleted. The IWR process defines site-specific crop water requirements. The use of countywide production averages dilutes the validity of the IWR process. Commenter suggests that a more accurate evaluation of crop consumption would include the use of monthly IWR crop requirement data applied to the water right specific period of use, which is in turn limited by water supply and priority date of the water right involved.

 

RESPONSE 22: 

Commenter provides an alternative approach to using the NASS production information; however, the suggestion requires additional information from an applicant that may not be known.  The IWR only estimates the amount of water that the crop needs for evapotranspiration; it does not estimate the amount of water that needs to be delivered to the field, which is the crop irrigation requirement divided by the irrigation efficiency.  The management factors give an estimate of what percent of the obtainable yield producers are typically obtaining in the field at a particular area.

 

COMMENT 23: 

ARM 36.12.1901(7)( f) and (l) through (n) require the applicant to report the information that defines the irrigation period of use.  The issue of full service versus partial service irrigation is far more important than any increase in consumption related to irrigation improvements post-1973.  However, even that issue is minimized since ARM 36.12.1902(1) makes it clear that DNRC is going to evaluate the water right based upon the method of water application in place pre-1973, not the center pivot that might be in place today.  The proposed rules are silent as to how DNRC will evaluate irrigation efficiency standards for both conveyance and on-field efficiency post change. The amount of water historically consumed is often a small fraction of the amount of water historically diverted by the applicant. Overall irrigation efficiencies are historically 25 to 50 percent over much of Montana. The fate of this nonconsumed water can have a much higher impact on other water users than the consumptive portion. The proposed rules, "while requiring an applicant to quantify the historic rate of diversion, do not tell the water user how much of the non-consumptive portion may be changed."

 

Commenter strongly suggests that DNRC address the change of nonconsumptive portions of water rights in these proposed rules, or through a separate proposed rule. This could include an evaluation of water use design standards for irrigation and other uses as well as rules related to acceptable water use and conveyance standards.

 

RESPONSE 23: 

DNRC believes commenter may have overlooked an existing rule that was not changed in this rulemaking effort.  Existing ARM 36.12.1902(2) states:

 

"The amount of water being changed for each water right cannot exceed or increase the flow rate historically diverted under the historic use, nor exceed or increase the historic volume consumptively used under the existing use."

 

DNRC believes that the rule cited explains how much water a change applicant has a right to change.  In response to the last sentence of the comment, DNRC is reluctant to set acceptable water use and conveyance standards.  The Montana Water Use Act does not incorporate efficiency standards and the beneficial use criteria simply require an applicant to explain the benefit to the applicant, in addition to explaining why the flow rate and volume are the amount necessary for the purpose.  In some instances, albeit inefficient by some standards, a project that is only 20 percent efficient could be a deemed a benefit to an appropriator.  A project that is only 20 percent efficient would likely contribute return flows downstream to other water users and could benefit those users because the timing of the return flows is better suited to their needs. 

 

COMMENT 24:  

Commenter believes that ARM 36.12.1901(8) is a beneficial amendment for water right changes to instream flow, in that it will allow for a more efficient process to change multiple water rights involved in a single instream flow project.  While the language currently does not necessarily preclude changing multiple water rights with different owners on one application, it would be helpful for the rule to clarify that this is acceptable and specifically allow for multiple applicants/water right owners to file a joint application involving multiple water rights to be changed for a single project.

 

RESPONSE 24: 

Please see Response 13.

 

COMMENT 25: 

While commenter agrees that the information required under ARM 36.12.1902(7)(a) through (t) is relevant in determining the historic use of a water right; however, the commenter is concerned that a bright-line rule requiring actual information (which is what the proposed introductory language seems to indicate) on the operation of a historic water right will be difficult to achieve for pre-July 1,1973, water rights, because much of this information never existed and/or is no longer attainable because those with first-hand knowledge of historic irrigation practices are no longer available to interview. 

 

Commenter appreciates DNRC's delineation of the necessary information, but believes that eliminating the "best available estimate" language will unduly burden applicants by requiring actual information that may not exist. Commenter would like to see some acknowledgement in the rule that an estimate or approximation of historic use is appropriate where actual records are not available. This estimate would be based on physical information such as ditch capacities, number of acres irrigated, aerial photographs, etc. However, the first-hand information on the actual practice of using the water right that cannot be determined from that information, such as "diversion schedule and operation patterns", will not be available in most cases for pre-July 1, 1973, water rights.

 

RESPONSE 25: 

DNRC found that the language "best available estimate" was used inappropriately in many applications and therefore removed that language.  Rather than locate and provide information from reliable sources, applicants simply said that the information provided was the best available estimate and the department knew otherwise.  DNRC however, added the term "typical" to (f) and (l) so that an applicant may find information for those two elements from interviewing others in the area who may have irrigated in the same manner or from reports that may include such information (see Comment/Response 14).

 

COMMENT 26: 

Commenter asked that language be included in ARM 36.12.1902(14) that states that any valid objection must include specific reasons why the historic consumptive use value obtained by using the table is not appropriate. Otherwise, it appears from this language that if an unsupported objection is filed, DNRC will be forced to require the applicant to further substantiate historic consumptive use even if the objection is not well founded.  That would defeat the purpose of providing the table.

 

RESPONSE 26: 

Please see Comment/Response 17.

 

COMMENT 27: 

Commenter said the requirement that all materials must include all information required by Title 36, chapter 12 is too broad.

 

RESPONSE 27:  DNRC agrees and has made the change.

 

COMMENT 28: 

ARM 36.12.1902(7)(a) and (d) ignore the fact that an element of a water right is the right to perfection. The right to perfection was not cut off as of July 1, 1973.  The 1973 Water Use Act recognized explicitly that the right to the use of the water in existence on July 1, 1973, is protected under the law as it existed prior to July 1, 1973, that included the right to perfection which could exceed many years after July 1, 1973, depending on the type of water right and the reasonable diligence being exercised to perfect the water right.

 

Commenter said (a) and (d) should read:

 

"(a) historic information for a statement of claim must be described as it was used through the date of the perfection of the water right."

 

"(d) historic information for an exempt or nonfiled water right must be described as it was completed through the date of the perfection of the water right."

 

A junior user has to expect that that there may be a period of time necessary to perfect a right. The DNRC went through this analysis in great detail in its City of Deer Lodge decision, but appears to fail to recognize this under these proposed rule changes (see "In the Matter of the Petition For Declaratory Judgment by the City of Deer Lodge No. 97514-766", Mont. Admin. Reg. No. 1, at 194-202 (Jan. 15, 1998).

 

RESPONSE 28: 

Rarely was a water right was not perfected as of July 1, 1973 (see generally, "General Agriculture Corp. v. Moore" (1975), 166 Mont. 510, 534 P.2d 859 [limited exception for perfection]).  The relevant date for historic use will be July 1, 1973, with rare exception. Statute defines "existing right" or "existing water right" as "right to the use of water that would be protected under the law as it existed prior to July 1, 1973," (85-2-102(12), MCA). The relevant date is before July 1, 1973, because no changes could have been made to those rights after that date without DNRC's approval (85-2-401 and 85-2-402, MCA). This assumes no intervening change authorizations were granted post-July 1, 1973.  If applicants would like to make an argument that their water rights were not perfected until after July 1, 1973, they may certainly do so.  These rules set a minimum of information to be submitted.

 

COMMENT 29: 

Order on Petition for Judicial Review, Cause No. BDV-2008-750, First Judicial District, Judge Sherlock, June 9, 2009, calls into question the validity of ARM 36.12.1901 as it exists, and as proposed for amendment.  The Order puts in question the DNRC's enactment of the entirety of its historic consumptive use rules.

 

In requiring detailed information regarding historic consumptive use, DNRC is essentially requiring information regarding historic return flows.  The DNRC should take notice of the court's ruling in "Hohenlohe v. DNRC", where the court held:

 

"There is no requirement in any applicable statutes requiring the Hohenlohes to provide the in-depth analysis regarding historic and current return flows to the extent required by DNRC in this case.  Nothing in the statutes requires the Hohenlohes to prove either historic or current return flows.  Both DNRC and the hearing examiner interpret Section 85-2-408(7), MCA, as requiring such proof— even though the statute does not contain the term 'return flows.'" (Hohenlohe v. DNRC , Order on Petition for Judicial Review, Cause No. BDV-2008-750, First Judicial District, Judge Sherlock, June 9, 2009, at 10).

 

The primary purpose of the doctrine of historic use in Montana is to protect the vested rights of junior water right holders to the maintenance of stream conditions that existed at the time of their appropriation. The doctrine of historic use is not intended to protect senior users, because they are already protected by the doctrine of prior appropriation.

 

RESPONSE 29: 

Commenter is mistaken in the very broad reading of the recent decision.  The district court disagreed with DNRC's factual determination on historic use, not that the examination of historic use was not relevant or that the rule was in question.  The district court's decision as to the factual finding on historic use was based on specific information in the file including an affidavit, testimony, and statements as to historic use beyond simply presenting evidence that a water right claim exists.  The decision is fact-specific and based on an instream flow change.  Although not relevant to these rules, the decision is also currently on appeal.  Commenter should review "McDonald v. State", (1986) 220 Mont. 519, 722 P.2d 598, where the Supreme Court stated:

 

"…what is preserved to owners of appropriated or decreed water rights by the provision of the 1972 Constitution is what the law has always contemplated in this state as the extent of a water right: such amount of water as, by pattern of use and means of use, the owners or their predecessors put to beneficial use. Thus an owner may have a decreed right to a certain number of miner's inches of water; or a statutory appropriative right to a stated amount; or a right depending upon mere use; or even a prescriptive right to a stated amount; nonetheless, the Water Use Act contemplates that all water rights, regardless of prior statements or claims as to amount, must nevertheless, to be recognized, pass the test of historical, unabandoned beneficial use. … no matter how the water right is expressed in the decrees of the water court, either in flow rate or in acre feet or a combination thereof, such expression of amount is not the final determining factor. It is best expressed in the statutes of other states: beneficial use shall be the basis, the measure and the limit of all rights to the use of water." (220 Mont. at 530, 722 P.2d at 605).

 

COMMENT 30: 

Commenter said by requiring historic use information on pre-1973 existing water rights, the Legislature has delegated authority for adjudicating historic use solely to the Water Court (Title 85, chapter 2, part 2, MCA).  If the Water Court makes a determination as to historic use, the DNRC should be required to accept it and not use a change application to readjudicate rights. As authorized by the Legislature, DNRC's sole authority for reducing an existing right that has been adjudicated by the Water Court is to bring an abandonment proceeding, where DNRC bears the burden of proof (82-2-405, MCA).

 

For pre-1973 claimed existing rights, this rule essentially creates a shift in burden regarding the proof of the elements of an existing right that is not authorized anywhere in the statutes.  According to 85-2-227(1), MCA, for existing rights being adjudicated, "a claim of an existing right . . . constitutes prima facie proof of its content", and that after adjudication, "[f]or the purposes of administering water rights, the provisions of a temporary preliminary decree or temporary decree...supersede a claim of existing right."

 

Commenter said these rules place a new burden on the owner of an existing right, requiring the owner of the right to provide factual proof of all contents and elements of the right, even after the water right was adjudicated. During the adjudication the burden was on objectors and the department to provide facts and evidence that contradicted the contents of the claimed right, and then the right was either granted as claimed, modified, or terminated by the Water Court. Under this rule, without any direction by the legislature or statutory authority, DNRC essentially places a new and shifted burden on the owner of an existing right to provide factual proof of all its contents and elements, even after the right has been adjudicated by the Water Court.

 

RESPONSE 30: 

DNRC notes for the record that commenter is currently in litigation with DNRC over these very issues. These issues will be resolved as to the commenter's specific complaints in that litigation and will not herein be litigated.  Nevertheless, DNRC will respond to these general assertions.

DNRC does not adjudicate water rights as part of the change process.  Any water rights not approved in a change authorization remain exactly as they have been decreed and are unaffected by the department's actions.  DNRC is charged with applying and deciding the criteria under 85-2-402, MCA, which is not within the purview of the Water Court.  Historic use is an integral part of that determination because only when one knows how the water right has been used can one determine if there will be adverse effect (85-2-402(2)(a), MCA) from a new use.  Other appropriators have a vested right to have the stream conditions maintained substantially as they existed at the time of their appropriations ("Spokane Ranch & Water Co. v. Beatty" (1908), 37 Mont. 342, 96 P. 727; Robert E. Beck, "Water and Water Rights" § 14.04(c)(1) (1991 edition); W. Hutchins, "Selected Problems in the Law of Water Rights in the West"  378 (1942)).

 

While 85-2-227(1), MCA, does provide that for existing rights being adjudicated, "a claim of an existing right …constitutes prima facie proof of its content", this applies to proceedings in the Water Court not before DNRC in a change proceeding under the specific change criteria.  In Montana and other prior appropriation over 100 years of western law provides that, "beneficial use is the basis, the measure and the limit of a water right." (See for discussion above on, "McDonald v. State", (1986) 220 Mont. 519, 722 P.2d 598; "In re Application for Water Rights in Rio Grande County',  53 P.3d 1165, 1169 -1170 (Colo.,2002).  The McDonald case provides a good discussion of the principle.  See also "Toohey v. Campbell", (1900), 24 Mont. 13, 60 P. 396).

 

Finally, it should be clarified that DNRC bears no burden of proof in the adjudication.  DNRC is not a party, but provides factual analysis in the form of claims examination as technical assistance to the Montana Water Court.  It should also be noted that many Water Court Claims are decreed without a volume.

 

COMMENT 31: 

Commenter said rule changes would place a new and unfair burden on any water user that currently, or historically implemented farming practices that resulted in yields exceeding an average yield. Such a burden of proof is not supported anywhere in the authorizing statutes, and essentially penalizes good farming practices.

 

RESPONSE 31: 

DNRC recognizes that the methodology may help producers that did not employ good farming practices and may penalize those who did.  However, as stated in ARM 36.12.1902(13), the methodology in (15) (now renumbered (14) and (16), respectively) may be used to determine the historic consumptive volume for irrigation.  The use of the methodology is optional.  An applicant may choose to provide other data that would better support the historic use purported.  If the applicant provides other data, then as required in (13), if the amount is less than or greater than the amount determined by using the methodology, then the applicant simply needs to prove the difference. An applicant always bears the burden of proof in a change proceeding (85-2-402, MCA).

 

COMMENT 32: 

A beneficial and existing use of water includes the right to use the full amount of the IWR in "any" year if the water is available, and the elements of the right supports that level of use. Under these rules, the presumption would be that the water user's right is limited or restricted to the amount of water required for an average precipitation year.

 

RESPONSE 32: 

Please see General Response and Response 33.

 

COMMENT 33: 

The DNRC's values expressed in columns D and E are expressed as seasonal ET for two application methodologies—they are not. The IWR calculations for ET are consistently higher and there is no explanation in the proposed rules nor footnote at the bottom of the table as to where the values come from.

 

RESPONSE 33: 

Columns D and E are the total irrigation season alfalfa crop water requirement (inches) minus that portion of the total crop water requirement (inches) that was supplied by precipitation.  An applicant for change cannot claim as part of their consumptive use the amount of water that was supplied by rainfall.  See Response 3.

 

COMMENT 34: 

Commenter said that for pre-1973 existing claimed, exempt, and nonfiled water rights, the ability and practicality of obtaining the information required in these rules will become more difficult as more time passes since 1973. No new pre-1973 data can be collected other than by personal knowledge in some instances, and the people with that knowledge are getting older and older.

 

RESPONSE 34: 

DNRC agrees and as a result proposed to implement the subject optional historic consumption rules.

 

COMMENT 35: 

For changes involving pre-1973 water rights that have been previously changed post-1973, the frame of reference should be relative to the current operation of that right (ARM 36.12.1902(1)). That is what the other users on the source have been accustomed to relative to their operations, not an estimate of pre-1973 use.

 

RESPONSE 35: 

A change application that was issued after January 1, 2005, will have been reviewed using rules that required identification of the historic consumptive use.  In those instances, the historic consumptive use would likely remain the same, provided no new evidence is presented that would show that the previous determination was in error.  For changes that were issued prior to January 1, 2005, the historic consumptive use may not have been identified.  If not, the applicant would be required to provide that information in the new application.

 

COMMENT 36: 
Commenter asked if ARM 36.12.1902(5) refers to the historic place of use or the proposed place of use?  Commenter suggested the insertion of the word "historic".

 

RESPONSE 36: 

DNRC agrees and has made the change.

 

COMMENT 37: 

Commenter asked if applicants cannot change a water right if they cannot provide corroborated substantial credible information about every item under ARM 36.12.1902(7)? 

 

RESPONSE 37: 

An applicant for change must provide the information described in (7).  The applicant may not find an individual who can corroborate the information; however, if practices have not changed since 1973, one could make an argument that the current practices reflects the historic practice.  If that is not the case, the applicant will need to find other information sources to support the facts being presented.  DNRC recommends talking with those familiar with typical historical practices for the type of use being changed, including the other farmers and ranchers in the area, USDA, or NRCS staff. Also, research on the internet may be found that would confirm the applicant's historic water use.  However, an applicant does bear the burden to prove that the criteria in 85-2-402, MCA are met and the scope of the right to be changed.

 

COMMENT 38: 

ARM 36.12.1902(7)(d) and (m), present similar situations for the period of diversion and monthly or annual diverted volume. Diversion schedules can be variable. Dry years are different from wet years, early or late spring thaws and run-off can affect the timing and quantity of irrigation. Farming practices vary over time. Commenter asked what applicant can do if "old timers" with pre-1973 knowledge are not available?

 

Also, being able to produce evidence of the historic efficiency of the system as required in (7)(o), would be very difficult.  It is not possible to create data for a practice that occurred 30, 40, or even 100 years ago. Additionally, the diversion, conveyance, and system efficiency may not be relevant in some instances.  If required information does not contribute substantively to the evaluation of a change application, the applicant should not have the burden of producing said information.

 

Commenter concluded the level of detail required by the items in (7) goes beyond the information that would be necessary both to substantiate that a water right has historically been exercised, and to arrive at a reasonable figure of the amount of water that was historically used. Water rights and water use are not an exact science. There is no single answer to:  "what was the historic use?".

 

RESPONSE 38: 

An applicant is entitled to the longest diversion period that was used historically.  The applicant is also entitled to change for beneficial use the maximum amount of water that was historically diverted, and the amount of water that was consumptively used.  DNRC is uncertain why the commenter believes that diversion, conveyance, and system efficiency may not be relevant.  An applicant who does not believe that the required rule information is relevant may document the reasons for that belief in an application.  However, if DNRC determines the information is relevant, DNRC will include its assessment in a deficiency letter.

 

The commenter raise concerns about the validity of a water right.  A water right that has not been used for a long period of time (and therefore has limited historic data available) may present a problem for the applicant.  A water right user, regardless of water right priority date, does not have an inherent right to make a change to a water right.  In a change proceeding, the applicant must first prove that there is a water right to change.  Then the applicant must document the historic use of the water right before the applicant moves on to prove the criteria for a change authorization can be met.  Also, see Response 37.

 

COMMENT 39: 

Commenter asked if the application would fail because no commissioner field notes are available (ARM 36.12.1902(9)(e))?

RESPONSE 39: 

ARM 36.12.1902(9) is not mandatory.  It only describes some sources of information that may help an applicant to support the historic use of a water right.

 

COMMENT 40: 

Commenter asked if an application could be successful if first hand evidence cannot be produced for one or more of the items 36.12.1902(7) if the applicant is willing to accept the historic consumptive use values described in ARM 36.12.1902(15)?

 

RESPONSE 40: 

There may be circumstances documented by an applicant that would allow an application to go forward; however, without knowing such details, DNRC cannot respond to the comment affirmatively or negatively.  An applicant must remember that in a change proceeding, the applicant must first prove that there is a water right to change.  The applicant must then document the historic use of the water right before moving on to prove that the criteria for a change authorization can be met.  Only when the scope of the historical right is known can potential adverse effect to other appropriators be evaluated.

 

COMMENT 41: 

Commenter asked what the scientific basis was for flood, handline and wheelline irrigation having a lower seasonal ET than center pivot irrigation?

 

RESPONSE 41: 

DNRC talked to the NRCS about application rates of various irrigation systems.  Hand line and wheel line systems are far less efficient than center pivots and those systems would be more similar to flood systems and for the purposes of these rules, hand lines and wheel lines were included with the flood systems.  Flood irrigation, hand lines and wheel lines typically have an application rate of four inches per irrigation compared to an application rate of one inch per irrigation for center pivots. Since the amount of carryover moisture available to the crop each spring is 25 percent of the irrigation application there is more water available to the plants in the spring under flood, hand line and wheel line systems (one inch) compared to center pivot systems (0.25 inches). Because there is more water available in the soil under flood, hand line and wheel lines systems, less water is needed early in the season to satisfy crop ET, which leads to less water required over the entire season. In addition, center pivots require more irrigation applications per year due to their lower application rate, which leads to more surface evaporation from saturated leaf area and soil surfaces. The combination of lower carryover moisture and higher surface evaporation results in center pivot irrigation having a higher seasonal irrigation ET demand than flood, hand-line and wheel-line irrigation.

 

COMMENT 42: 

The values in columns D and E of Table 1 appear to be consistently lower than the values arrived at by running the IWR program under the default settings (50 degrees Fahrenheit as the beginning of the season and 28 degrees Fahrenheit as the end of the season as per the Historic Consumptive Use Public Meetings Memo issued by Kim Overcast on September 9, 2008).

 

RESPONSE 42: 

The values as shown in the memorandum are exactly the same as shown in these rules.  However, the memorandum included total ET, whereas the rules do not.  The reason for that is the total ET includes rainfall.  Also, see Response 3.

 

COMMENT 43: 

A significant component of consumptive use is left out of these estimates for acreage that was sprinkler irrigated prior to 1973. That is the amount of water that is evaporated between the sprinkler head and the plant canopy or the soil surface. The University of Nebraska publication states that "the amount of water lost between the sprinkler nozzle and the top of the crop canopy, air evaporation and drift is three percent for low-angle impact sprinklers and one percent for spray heads."

 

RESPONSE 43: 

Irrigation systems vary in design, such as in nozzle types and heights above the ground.  Also, wind conditions vary across the state; therefore, DNRC does not believe it would be feasible to apply a standard adjustment for evaporation loss from sprinklers.  However, DNRC encourages an applicant to provide this data in an application.

 

COMMENT 44: 
Commenter questioned the accuracy of the numbers in Column F of Table 1. The method as described by Mike Roberts of the DNRC to arrive at the management factor was evaluated for all the weather stations in Yellowstone and Ravalli counties. Also, commenter said there is a discrepancy between the average value for the obtainable yield/average production ratio and the management factor and asked that it be explained.

 

RESPONSE 44: 

DNRC's management factor is based on the most representative weather station for the majority of irrigated lands in that county, not the average of the weather stations in the county.  GIS data was used to determine the average elevation and the approximate centroid of irrigated land within each county (the GIS data did not indicate any irrigated land in Wibaux County). The data was then compared to elevation and coordinate data for the weather stations to determine the most representative station for each county. In counties with only one weather station, that station was considered to be the most representative.

 

COMMENT 45: 

Commenter said one requirement of any rule or law is that it is practicable to be in compliance with said rule or law. DNRC has said that an applicant can only change the consumptive volume of its water right. In many cases, it is not feasible for an applicant to be able to accurately measure the consumptive volume of a new use. This puts an overly onerous requirement on recipients of change authorizations when water measurements are required by order or condition.

 

RESPONSE 45: 

DNRC is uncertain if the comment is pertaining to the proposed rules or to the existing rules.  Therefore, DNRC cannot respond to the comment.

 

COMMENT 46: 

Commenter's concern is the use of the modified Blaney-Criddle (B-C) method and SCS Technical Release 21 (SCS TR-21) in the proposed rule change as the basis for determining ET and the IWR. The B-C method significantly underestimates ET and has been replaced by more accurate methods worldwide since at least the 1980s.  The use of the B-C method in the proposed rule change will result in estimates of historic consumptive use that are significantly smaller than the actual historic consumptive use, thus shortchanging irrigators that submit a change application.

 

The new methods are supported by dedicated weather stations across Montana that were established for the specific purpose of recording the data required by the modern methods of measuring ET. These weather stations are operated by the U.S. Bureau of Reclamation and are referred to as AgriMet stations. Twenty-six AgriMet stations are present in Montana at locations selected to provide representative values of ET throughout those parts of the state where agriculture uses irrigation.  Although most AgriMet stations provide records beginning in 1997, the conventional practices and procedures include methods for statistical correlation of the record since 1997 to early weather station records.  That way, the modern methods can be used to determine ET for historic weather conditions, including those during the period of historic irrigation prior to July 1, 1973, and at weather stations not located immediately near an AgriMet station.

 

Values of AgriMet ET from the period 1997 through the present statistically adjusted to the pre-1973 period of historic consumptive use will not differ significantly from the current ArgiMet values ET. Therefore, use of the AgriMet ET for the current period of record (beginning generally in 1997 in Montana) will provide as good an estimate of historic consumptive use as AgriMet ET values statistically adjusted to the pre-1973 weather conditions. Certainly, these values are better than those estimated with the B-C method.

 

The B-C method calculates 23.92 inches of total seasonal ET at Dillon, Montana. The average total seasonal ET measured at the AgriMet station at Dillon for the years 1997 through 2008 is 29.61 inches. Accordingly, the Blaney-Criddle method as applied by DNRC (using the NRCS IWR model to calculate total seasonal ET and net IWR) underestimates the measured ET for alfalfa by 5.69 inches per year (19 percent) at Dillon. From a technically correct point of view, the difference between the B-C IWR and the AgriMet IWR will change slightly if effective precipitation is calculated from the AgriMet ET values rather than the Blaney-Criddle values. The DNRC's calculated value of effective precipitation is used in this example as an estimate of effective precipitation for the purpose of simplifying the illustration. Recalculation of effective precipitation from the AgriMet station information will not change the final conclusions of this analysis, even if effective precipitation and IWR values change somewhat.

 

Also, in the Montana Irrigation Guide, the effective precipitation for alfalfa at Dillon, Montana is 4.13 inches in a normal year. Accordingly, the 6.87 inches of effective precipitation indicated by the numbers in the proposed rule change is questionable and may unrealistically reduce the irrigation water requirement calculated in the proposed rule change.

 

RESPONSE 46: 

DNRC chose to use NRCS Irrigation Water Requirements (IWR) program because the method utilizes some 180 weather stations throughout Montana.  The B-C (TR21) method is the only IWR methodology applicable to Montana.  The B-C method is simple, using measured data on temperature only.  However, the method may not be accurate especially under "extreme" climatic conditions.  In windy, dry, or sunny areas, the ETo may be underestimated while in calm, humid, clouded areas, the ETo may be overestimated.  The B-C method was compared with other evapotranspiration methods by USGS. Those results indicate B-C produces acceptable predictability (Cruff and Thompson, 1967). There are a large number of theoretical methods to determine the ET.  Many of them have been determined and tested locally. If such local formulae are available, they should be used.  If such local formulae are not available then an applicant may choose to use the methods in these proposed rules.  Also, see Response 2. 

 

COMMENT 47: 

Commenter said the problem is the proposed amendments require that historic consumptive use be determined by multiplying the management factor percentage by the IWR in column D, Table 1.  That is not the correct way to apply the management factor percentage. In order to obtain the correct value of historic consumptive use, the management factor percentage must be multiplied by the total consumptive use (total ET in the growing season) of the crop plant because the management factor percentage is based on total ET, not the IWR (which is ET minus effective precipitation).

 

The management factor percentage is calculated as the ratio of obtained crop production, divided by potential maximum crop production. Potential maximum crop production is based on total ET. Accordingly, the management factor percentage is based on total ET and must be multiplied by the total ET to calculate historic consumptive use.

 

This matter is further confused by the fact that in columns D and E of Table 1, the IWR for flood and center pivot irrigation are labeled "IWR Flood Irrigation, Wheeline & Handline Seasonal ET (inches)" and "IWR Center Pivot lrrigation Seasonal ET (inches)". The term "Seasonal ET" is not a term generally used in the literature regarding ET determination and is confusing because it is not defined in the proposed amendments. It appears to be used by the DNRC as the ET that occurs during the growing season (irrigation season), as compared to total annual ET. IWR and "seasonal" ET are not the same thing, and the interchangeable use of the terms "IWR" and "seasonal ET" by DNRC is very confusing.  Commenter said this could be indicative of a failure by DNRC to distinguish between the two variables.  That conclusion is suggested by the fact that the amendments require the management factor percentage to be incorrectly multiplied by the IWR to determine historic consumptive use when it should be multiplied times the ET for the growing season, uncorrected for effective precipitation or carryover moisture.

 

The values in column D are used in the proposed rule change method as if they are total ET. However, the values in column D are not total ET; they are the IWR, which is equal to ET minus effective precipitation.  Both of the columns showing IWR for flood and center pivot irrigation are essentially unnecessary for correct application of the MFP to estimate historic consumptive use, and could be completely eliminated from the proposed rule change and replaced with one column that is the total ET. The values for total ET (based on the B-C method) are provided in the Draft DNRC Consumptive Use Review Document dated September 8, 2008 (Attachment B), in the fourth column of Table 2: IWR data for seasonal alfalfa evapotranspiration, under the column heading "IWR Total Seasonal ET (in)".

 

For example, at Dillon, Montana, DNRC determined a countywide average production of alfalfa of 2.54 tons per acre per year for the historic irrigation period of 1964 to 1973. This value is provided in Table 1: NASS county data broken into four time periods, in the Draft DNRC Consumptive Use Review document. In the same document, the DNRC concludes that six inches of water are required to produce one ton of alfalfa per acre per year. Therefore, the historic consumptive use associated with production of 2.54 tons per acre per year is necessarily 15.24 inches per year (2.54 ton/ac/yr x 6 in/ton/ac/yr = 15.24 inches/yr). This is the simplest form of determining historic consumptive use. It is not a sufficient basis for determining historic diversion requirements, which require a separate determination of effective precipitation.

 

Commenter said the value of 15.24 inches per year (based on 6-in/ton/ac/yr and 2.54 ton/ac/yr) is correct, whereas the value of 10.86 inches is incorrect because a consumptive use of 10.86 inches per year would only produce 1.81 ton/ac/yr.  That is considerably less than the recorded countywide average production of 2.54 ton/ac/yr. The incorrect value of 10.86 inches is obtained because the proposed rule change multiplies the management factor percentage by the IWR in Column D, not by the ET. If the management factor percentage is multiplied times the total seasonal ET of 23.92 inches for alfalfa at Dillon, as provided in "Table 2: IWR data for seasonal alfalfa evapotranspiration", an historic consumptive use value of 15.24 inches is obtained (0.637 x 23.92 inches = 15.24 inches). This is the same value of consumptive use obtained by multiplying 2.54 ton/ac/yr by 6 in/ton/ac/yr. Accordingly, the method presented in the proposed amendments is flawed and must be changed to obtain the correct values of historic irrigation. Historic consumptive use must be calculated by multiplying the management factor percentage times total ET, not by the IWR.

 

RESPONSE 47: 
Please see Response 3.

 

COMMENT 48: 

The proposed method can make a significant difference to an irrigator who can document historically high crop yields.  The methods in the proposed amendments will favor irrigators who have no documentation of historic crop yields or irrigation application rates by providing a reasonable amount of historic consumptive use based on historic countywide crop yields.  However, the amendments will penalize irrigators who have good documentation of historic irrigation and produced high crop yields.

 

RESPONSE 48: 

The proposed amendments are not mandatory.  An irrigator who has documentation of historic yields may present that data in their change application.

 

COMMENT 49: 

The total ET for alfalfa at Dillon, Montana, measured at the AgriMet station, is 29.61 inches per year. This indicates a potential maximum alfalfa production of 4.94 ton/ac/yr (29.61 inches + 6 in/ton/ac/yr = 4.94 ton/ac/yr). Accordingly, the management factor percentage for Beaverhead County should be 2.54 ton/ac/yr divided by 4.94 ton/ac/yr (51.4 percent). The MFP of 51.4 percent multiplied by the total seasonal ET of 29.61 inches, indicates a historic consumptive use of 15.22 inches per year (0.514 x 29.61 inches = 15.22 inches), or essentially the same value obtained for 2.54 ton/ac/yr times 6 in/ton/ac/yr of 15.24 inches. Thus, the results of this calculation are consistent with the DNRC conclusion that 6 inches of water will produce one ton of alfalfa per acre per year. The method provided in the proposed amendments that result in an historic consumptive use of 10.83 inches per year, is inconsistent with those results, indicates an annual production of only 1.81 ton/ac/yr.

 

The proposed amendments incorrectly calculate historic consumptive use as the product of the MFP and IWR, an approach that should be corrected as shown above. The management factor percentage is a clever concept used in the proposed DNRC rule change to take into account all of the various inefficiencies that result in irrigators obtaining crop yields that are less than the maximum yield potentially allowed by the consumptive use of water by the crop plant (total irrigation season ET). The inefficiencies may include water shortages, poor management of irrigation water applications, lack of fertilizer or nutrients, crop loss to pests or hail, overly mature alfalfa stands, or a host of other problems that can effect crop production.

 

It is virtually impossible to take all of these factors into account individually in estimating historic consumptive use; but, the management factor percentage takes them into account collectively.  However, the historic consumptive use determined as the product of the management factor percentage and the crop ET does not indicate how much water was historically diverted and applied to result in the historic consumptive use.  After the historic consumptive use is determined, it is necessary to further adjust it to determine the historic diversion required to result in the historic consumptive use.  Application of the DNRC proposed rule change will diminish the amount of water allowed to operators who can document historic production rates that approach the maximum that is possible with the ET for their local area. The principal factor contributing to diminishment of water for efficient irrigators with documentation of high crop yields is the old and inaccurate B-C equation used in the proposed rule change.

 

RESPONSE 49:   

The total ET values calculated at the AgriMet stations accounts for all water consumed by alfalfa.  This includes water applied through irrigation, antecedent soil moisture, and effective precipitation.  Because the DNRC is concerned with water rights, and therefore water diverted from source to apply as irrigation, the values that the management factor is multiplied by in the proposed methodology do not include effective precipitation as the AgriMet total ET data does.  Therefore, the approach used in Comment 49 will show significantly larger historic consumptive use but that value will not reflect water used by irrigation and thus is an incorrect accounting to serve the purpose of the proposed methodology.

 

COMMENT 50:   
Commenter suggested the Penman-Monteith equation that is adopted as the American Society of Civil Engineers, "Standardized Reference Evapotranspiration Equation", (ASCE, 2005), and adopted by the NRCS as a standard method in the Soil Conservation Service, "Part 623 National Engineering Handbook", chapter 2, Irrigation Water Requirements as the standard method for the State of Montana to calculate total seasonal ET.  This is also the standard method used in the AgriMet stations to calculate mean daily ET at each station, based on precise measurements of the factors governing ET.

 

RESPONSE 50:  

DNRC looked for a standardized method that could be utilized statewide and the data required to drive the Penman-Monteith equation (and the Kimberely-Penman equation which is what is actually used by AgriMet) is not available statewide.  However, an applicant whose acreage is located near an AgriMet site or another data source for humidity, wind speed, and radiation can certainly apply these equations and submit that information with the change application.

 

COMMENT 51: 

The proposed regulatory amendments pose several technical concerns and set a standard of proof far higher than has ever been required before by either DNRC or the Montana Water Court. The proposed amendments at least impliedly limit the amount of water that can be changed in a change application to the amount of water historically consumed, which is inaccurate and contrary to existing law.

 

RESPONSE 51: 

Please see General Response and Response 30.  Generally, a change applicant may change its historic diverted volume and flow rate, but may not increase its historic consumptive use.

 

COMMENT 52: 

Commenter expressed concerns about the use of the B-C method, similar to the concerns in Comment 46.  Commenter also said that inaccurately underestimating the amount of water available for a change application could have a significant impact on the development community in particular.  For example, by underestimating the amount of water available for a change to instream flow for mitigation purposes, use of the B-C method could require developers of workforce housing to acquire additional existing water rights in order to have enough water available for mitigation purposes, as calculated under the proposed amendments.  Underestimation of historic use and an increased need for mitigation water could very easily accelerate Montana's fledging water market to the point where existing irrigators and developers of workforce housing are priced out of the water market. 

 

An accurate and reliable method for determining historic consumptive use, such as the Penman-Montieth equation that has now widely replaced the outmoded B-C method, would ensure that existing water right holders retain the ability to use the full extent of their water rights.  It would reduce the possibility of over-mitigation and the consequential water market impacts.

 

RESPONSE 52: 

Please see responses 46 and 50.

 

COMMENT 53: 

Applying the B-C method has the very real potential to under-credit the owner of the changed surface water right for the water left instream, while actually leaving a larger amount of instream water than was calculated to have been historically applied to beneficial use.  The under-calculation could result in a significant benefit to other existing water right holders, in that there would be more water available instream than ever before. 

 

Commenter said it is agreed that the amount of water historically applied to beneficial use is the limit of the amount of water that can be changed for mitigation purposes, to apply a method known to under calculate historic use robs water right holders of the full benefit of their rights, resulting in an undeserved windfall to other water users.  Additionally, this under-crediting could even contribute to acceleration of the water market by requiring applicants for new water right to obtain excessive rights for mitigation due to under-calculation of existing surface water rights available for mitigation purposes.

 

RESPONSE 53: 

Use of the proposed rules is not mandatory.  Please see General Comment and Response 2.

 

COMMENT 54: 

Commenter's concern with the proposed regulatory amendments is that the proposed amendments for determining historic use set a far higher standard than has ever before been applied by either DNRC in evaluating change applications or the Montana Water Court, the entity properly and solely authorized to adjudicate historic water rights.  ARM 36.12.1902(7)(i) and (m), require an application for a change authorization to provide substantial credible information on the maximum historic diverted flow rate and volume, respectively, as well as an explanation of how each amount was determined.  Even in cases where an individual with firsthand knowledge of the historic use of water is available, to expect that precise records of diverted flow rate and volume were kept is not only unreasonable, but unrealistic. Particularly in cases of irrigation water, the water users simply do not have the time, capacity, or need to keep such detailed records.  Commenter also refers to Hohenlohe case.

 

RESPONSE 54: 

An individual who has firsthand knowledge of historic water use may not have kept flow rate or volume records; however, that individual would very likely know or have information about the capacity of the diversion and the diversion schedule.  Using that information one can identify the diverted flow rate and diverted volume.  The individual may not know how much of the diverted water was consumed, but the individual can determine that consumed amount using the method proposed in the rules or other methods that may be available to the individual.  The identification of the historic consumptive use has been a requirement of a change application for many years, even though not expressly set forth by rule (see "In the Matter of the Application for Beneficial Use Permit No. 20736-s41H by the City of Bozeman and In the Matter of the Application to Sever or Sell Appropriation Water Right 20737-s41H" (1985) (change from irrigation to municipal use)).  The current rules, adopted in 2005, require the identification of the historic consumptive use.   Also, see Response 29.

 

COMMENT 55: 

Commenter has significant concerns with the implied, if not outright, limit on the amount of water that can be changed in a change application to the amount of water historically consumed.  Consideration of historic consumptive volume fails to take into consideration the amount of water required for carriage water.  In the case of historic irrigation, particularly by means of flood irrigation or water conveyed to the place of use via lengthy ditch systems, the amount of carriage water required can be significant and is considered to be part of the existing water right, as carriage water is water applied to beneficial use. The proposed amended amendments are unclear as to whether—and how much—carriage water can be taken into consideration when determining the amount of water that has historically been applied to beneficial use and, therefore, is available for a change application. To disregard or discount carriage water is yet another significant reduction to existing water rights and another unwarranted windfall to other existing water users. The proposed amendments should be modified to clarify that carriage water will be considered as part of the amount of water available to be changed to a new purpose or otherwise modified in a change authorization.        

 

RESPONSE 55:  A change applicant has the right to change the historic diverted flow rate and volume but may not increase the historic consumed volume of water.  Also, see General Comment. 

 

 

 

 

 

 

DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION

 

/s/ Mary Sexton___                                                               /s/ Anne Yates__

MARY SEXTON                                                                    ANNE YATES

Director                                                                                  Rule Reviewer

Natural Resources and Conservation

 

Certified to the Secretary of State November 16, 2009.

 

 

 

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