Mont. Water Right Claim Examination R. 2

Rule 2(a). Adjudication definitions. Unless the context

requires otherwise, the following definitions apply in these rules.

(1) “Abstract” means the computer printout of each claim of

an existing water right showing the information submitted on the

original or amended statement of claim, any changes authorized

by these rules or by the water court, remarks noting any obvious

factual or legal issues presented by the claim, and other remarks

explaining the nature and extent of the claimed water right.

(2) “Acreage” means the number of irrigated acres.

(3) “Adjudication” means the judicial determination of water

rights that existed prior to July 1, 1973, including the total or

partial abandonment of existing water rights occurring at any time

before the entry of the final decree.

(4) “Amended Claim” means the contents of a submitted

claim as altered or changed by the claimant as to any matter

contained in the original claim and as allowed by the water court.

(5) “Animal Unit” means a measurement of livestock

numbers. For example, one cow and calf pair is one animal unit,

three pigs are one animal unit, five sheep are one animal unit, and

one horse is 1.5 animal units.

(6) “Appropriate” means to divert, impound or withdraw a

quantity of water for a beneficial use.

(7) “Associated Rights” means more than one water right

used at a common point of diversion, place of use or place of

storage.

(8) “Basin Code” means the respective number/letter

combination used to identify each of the 85 basins in Montana

(e.g. 43QJ) according to the Atlas of Water Resources of Montana

prepared by the Montana water resources board.

(9) “Beneficial Use” means a use of water recognized as

beneficial prior to July 1, 1973 and used for the benefit of the

appropriator, other persons, or the public and may include but not

be limited to irrigation, stock, domestic, fish and wildlife,

industrial, mining, municipal, power generation, and recreational

uses.

(10) “Centralized Record System” means the original,

electronic, microfilm or scanned records of all claims of existing

rights, permits, certificates, applications, ownership updates, and

other documents filed with the department.

(11) “Change in Appropriation Right” means a change made

in accordance with § 85-2-402, MCA.

(12) “Claim” or “Statement of Claim” means a sworn

statement of claim for an existing water right, as defined in § 85-2-

224, MCA, filed with the department upon order of the Montana

supreme court.

(13) “Claimant” means any individual, association,

partnership, corporation, state agency, political subdivision, Tribe,

the United States or any agency of the United States, or any other

entity, who has filed a statement of claim or is successor in

interest to a statement of claim as identified in the centralized

records system.

(14) “Claimant Contact” means communication between the

department and a claimant or claimant's authorized representative

regarding the claimed water right.

(15) “Clarification” means the process by which elements of a

water right are made more complete, clear, concise and

interpretable without changing the intent of the claimed

information.

(16) “Climatic Area” means areas defined by differing

climatic and geographic conditions containing similar crop

consumptive use data as delineated by the United States

Department of Agriculture Natural Resource Conservation Service.

(17) “Decree Abstract” means the abstract that is part of a

water court issued decree. The decree abstract contains the

original or amended claim information, changes authorized by

these rules or the water court, and water court ordered data,

changes and remarks.

(18) “Decreed Right” means a claimed water right determined

in a judicial decree prior to the commencement of this

adjudication or after commencement of this adjudication as

provided in § 85-2-216, MCA.

(19) “Department” means the Montana Department of

Natural Resources and Conservation.

(20) “Enforceable priority date” means a priority date of June

30, 1973, or later, which is administratively assigned to late

claims that are subordinate to valid, timely filed claims and

certain permits in accordance with § 85-2-221(3)(f), MCA.

(21) “Examination” means the process under these rules of

examining, gathering information, and reporting data, facts, and

issues pertaining to the claims of existing water rights. Prior to

the adoption of the Water Right Claim Examination Rules on July

15, 1987, this process was referred to as “verification”.

(22) “Exempt Water Right” means an existing water right for

which a statement of claim did not have to be filed pursuant to §

85-2-222, MCA.

(23) “Existing Water Right” means a right to the use of water

that would be protected under the law as it existed prior to July 1,

1973. The term includes federal non-Indian and Indian reserved

water rights created under federal law and water rights created

under state law.

(24) “Field Investigation" means an on-site inspection, under

§ 85-2-243, MCA, of physical evidence and features relating to the

individual elements of a claimed water right.

(25) “Filed Appropriation Right” means a water right which

has been filed and recorded in the office of the county clerk and

recorder as provided by statute prior to July 1, 1973.

(26) “Final Decree” means the final water court

determination of existing water rights within a basin or subbasin,

as described in § 85-2-234, MCA.

(27) “Flow Rate” means the rate at which water has been

diverted, impounded, or withdrawn from the source for beneficial

use.

(28) “Groundwater” means any water under the surface of

the land including the water under the bed of any stream, lake,

reservoir, or other body of surface water. Section 89-2911, R.C.M.

1947 (1961 Groundwater Code).

(29) “Guideline” means an estimate of reasonable use to be

used as the benchmark for initiating further department review or

claimant contact under these rules. The estimate of reasonable

water use is derived from technical data and recommendations of

the department and adopted by the water court.

(30) “Historical Irrigation” means irrigation that took place

for the first time before July 1, 1973.

(31) “Historical Right” means an existing water right claim.

(32) “Household” means the dwelling, house, or other

domestic facilities where a person, family or social unit lives.

(33) “Implied Claim” means a claim authorized by the water

court to be separated and individually identified when a statement

of claim includes multiple rights.

(34) “Interior Drainage” means an area in which water

drains into a depression from which water only escapes by

evapotranspiration or subsurface drainage. The scale varies from

a small kettle in a glaciated area to a large playa lake, such as the

Great Salt Lake in Utah.

(35) “Irrigation” means the application of water to the land to

eliminate the moisture limitation to crop production. (Soil

Conservation Service, 1979.)

(36) “Irrigation District” means a statutory district created

pursuant to Title 85, Chapter 7, MCA.

(37) “Lake” means a naturally occurring inland body of

water.

(38) “Late Claim” means a claim to an existing water right

forfeited pursuant to the conclusive presumption of abandonment

under § 85-2-226, MCA.

(39) “Legal Land Description” means the description given to

a parcel of land in terms of, but not limited to, quarter section,

section, township, range, and county.

(40) “Means of Diversion” means the structures, facilities, or

methods used to appropriate water from the source of supply. For

instream or inlake appropriations, the means of diversion is

“instream.”

(41) “Microfilm Record” means a photographic film record on

a reduced scale of all paper documents related to a water right.

(42) “Multiple Use” means the same appropriation used for

more than one purpose by a single owner.

(43) “Natural Overflow” means the water that results in the

flooding of land adjoining a stream during high flow with no manmade diversion involved.

(44) “Natural Subirrigation” means a naturally occurring

high water table condition that supplies water for crop use.

(45) “Non-consumptive” means a beneficial use of water that

does not cause a reduction in the source of supply.

(46) “On-site visit” means a field investigation conducted at a

claimant’s invitation.

(47) “Other Uses” means all uses of water for beneficial

purposes other than stockwater, domestic, and irrigation uses.

(48) “Owner” means any person, according to § 85-2-102,

MCA, who has title or interest in water rights or properties.

(49) “Ownership Update” means the updating of the

department’s water right ownership records by the filing of an

Ownership Update Form, Form #608, formerly known as a water

right transfer certificate, pursuant to §§ 85-2-421 through 85-2-

426, MCA. The department’s form does not transfer water rights

or legally determine water right ownership. It updates the

department’s centralized record system to reflect the ownership

identified on the legal documents that actually transfer water

rights.

(50) “Period of Diversion” means the period in a calendar

year when water is diverted, impounded or withdrawn from the

source.

(51) “Period of Use” means the period in a calendar year

when water is used for a specified beneficial use.

(52) “Place of Use” (POU) means the lands, facilities, or sites

where water is beneficially used.

(53) “Point of Diversion” (POD) means the location or

locations where water is diverted from the source. For instream or

inlake appropriations, the point of diversion is the portion of the

source in which the instream or inlake use occurs.

(54) “Preliminary Decree” means the preliminary water court

determination of existing water rights within a basin or subbasin

as described in § 85-2-231, MCA, which precedes the final decree.

(55) “Priority Date” means the allocation date associated

with a beneficial use of water which determines ranking among

water rights, usually expressed by day, month, and year.

(56) “Regional Office” means a branch office established by

the department to provide water right information and assistance

to the public or public agencies.

(57) “Remarks” means statements added to the decree

abstract by the department or the water court to limit or define a

water right, to explain unique aspects of the water right, and to

identify potential factual and legal issues. Remarks that limit,

define, or explain unique aspects of a claim are “clarifying” or

“information” remarks. Remarks that identify potential factual

and legal issues are “issue” remarks.

(58) “Reserved Water Rights” means a right to use water that

is expressly or impliedly reserved by treaty, an act of Congress, or

an executive order.

(59) “Reservoir” means a storage facility, created or

augmented by manmade means that impounds and stores water

for beneficial use.

(60) “Scanned Record” means a digitally scanned record of

paper documents related to a water right.

(61) “Service List” means the list of persons notified of all

future hearings or proceedings relevant to a specific claim or case.

This list may include the claimants and their representatives, any

objectors and their representatives, any persons filing a notice of

intent to appear and their representatives, any counterobjectors

and their representatives, any intervenors and their

representatives, and other persons receiving courtesy notification.

(62) “Source” means the specific supply from which water is

taken for a beneficial use.

(63) “Split Claim” means the division of one water right claim

into two or more separate claims. When a claim is split, one

portion of the claim maintains the original claim number and the

other separated portions are assigned new claim numbers.

(64) “Spring” means a naturally occurring extrusion of

groundwater upon the land surface.

(i) “Developed Spring” means a spring with some manmade development at or below the point of extrusion that brings

additional flow to the surface which would not naturally be

available for use and is classified as groundwater.

(ii) “Undeveloped Spring” means the flow from the spring

is not increased by some development at its point of extrusion

from the ground and is classified as surface water.

(65) “Subbasin” means a designated area that drains surface

water to a common point within a basin.

(66) “Summary Report” means the department’s report to the

Montana water court consisting of individual abstracts, the

claimed and clarified data and a summary of the department's

examination findings for each claim within a basin or subbasin.

(67) “Supplemental Rights” means separate water rights for

the same purpose, owned by the same claimant, and used on

overlapping places of use.

(68) “Surface water” means water occurring at or on the

surface of the ground, including but not limited to any river,

stream, creek, ravine, coulee, undeveloped spring, lake and other

source of water.

(69) “Temporary Preliminary Decree” means a water court

decree, prior to the issuance of the preliminary decree, as

necessary for the orderly administration of existing water rights

pursuant to § 85-2-231, MCA.

(70) “Type of Historical Right” refers to the historical basis of

an existing water right as a decreed right, filed appropriation right,

reserved right or use right.

(71) “Use Right” means a claimed existing water right

perfected by appropriating and putting water to beneficial use

without written notice, filing, or decree.

(72) “Volume” means the amount of water which has been

diverted, impounded, or withdrawn from the source over a period

of time for beneficial use, usually measured in acre-feet per year.

(73) “Water Court” means the water division of the state

courts, presided over by water judges responsible for adjudicating

existing water rights in Montana, as provided for in Title 3,

Chapter 7, MCA.

(74) “Water Judge” means a judge responsible for

adjudicating existing water rights as provided for in Title 3,

Chapter 7, Part 2, MCA.

(75) “Water Master” means a person appointed by a water

judge to assist in the adjudication of existing water rights as

provided for in Title 3, Chapter 7, Part 3, MCA, and Rule 53 of the

Montana Rules of Civil Procedure.

(76) “Water Resources Survey” (WRS) means a survey of

water resources and water rights in Montana on a county basis by

the former state engineer's office or water resources board,

predecessors of the department.

(77) “Water Spreading” means surface flood irrigation

involving the diversion of occasional (flood or runoff) surface water

from natural, usually nonperennial, watercourses by means of

dams, dikes, or ditches, or a combination of these. It differs from

conventional irrigation because it is totally dependent on and

regulated by the availability of water, not crop needs.

(78) “Well” means any artificial opening or excavation in the

ground, however made, by which groundwater can be obtained or

through which it flows under natural pressure or is artificially

withdrawn. Section 89-2911, R.C.M. 1947(1961 Groundwater

Code).

Rule 2(b). Non-adjudication definitions. For additional

definitions concerning post June 30, 1973 terms, see § 85-2-102,

MCA.