Montana Administrative Register Notice 36-22-177 No. 2   01/30/2014    
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In the matter of the amendment of ARM 36.12.203 and 36.12.2101 regarding appointment of hearing examiner and temporary leases







To: All Concerned Persons


            1. On February 27, 2014, at 10:00 a.m., the Department of Natural Resources and Conservation will hold a public hearing in the Fred Buck Conference Room (bottom floor), Water Resources Building, 1424 Ninth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.


            2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than February 20, 2014, to advise us of the nature of the accommodation that you need. Please contact Millie Heffner, Montana Department of Natural Resources and Conservation, PO Box 201601,1424 Ninth Avenue, Helena, MT 59620-1601; telephone (406) 444-0581; fax (406) 444-0533; e-mail mheffner@mt.gov.


            3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


            36.12.203 HEARING EXAMINERS (1)  When the department orders a contested case hearing, the director shall assign a hearing examiner to hear the case.  The director may not assign as hearing examiner an individual that was involved in the preliminary determination on the application. The file that is submitted to the hearing examiner, subsequent to the assignment of the case, shall contain the parties' applications, notices of applications, petitions, objections to applications, or permits under consideration to be modified or revoked. After reviewing the file, the hearing examiner shall contact the parties and advise them as to the location and time during which a hearing should be held.  Except as required under the circumstances of ARM 36.12.232, no hearing shall be scheduled on a Saturday, Sunday, or legal holiday.

            (2) remains the same.


            AUTH: 2-4-201(2), 85-2-113(2), MCA

            IMP:  2-4-611, MCA


REASONABLE NECESSITY: The proposed amendment ensures that an individual involved in preliminary determination on a water right application on behalf of the department will not serve as a hearing examiner in a contested case hearing on that application in order to make certain that hearings are fair and without bias.



            (1) through (3) remain the same.

            (4) The department will use the following standards for consumptive use when reviewing applications for temporary leases:

            (a) for irrigation, consumptive volume may not exceed 1.0 acre-foot per acre irrigated as defined in 85-2-427(2), MCA;. Consumptive volume for irrigation is the lesser of:

            (i)  the historic consumptive use as calculated using the methodology from ARM 36.12.1902(14) through 36.12.1902(16)(f); or

            (ii)  1.0 acre-foot per acre irrigated;

            (b) through (6) remain the same.


            AUTH:  85-2-113, 85-2-427, MCA

            IMP:  85-2-427, MCA


REASONABLE NECESSITY: 85-2-427, MCA, provides: "The amount of water leased may not exceed the total consumptive use of the appropriation right. For an irrigation right, the consumptive volume may not exceed 1.0 acre-foot per acre irrigated." The amendment to ARM 36.12.2101(4)(a) clarifies that the department will determine the consumptive volume for irrigation based upon the method set forth in ARM 36.12.1902(14) through 36.12.1902(16)(f), which is an accepted method for determining consumptive volume of irrigation rights, to ensure the amount of water leased for an irrigation right does not exceed the lesser of the total consumptive volume, or 1.0 acre-foot per acre irrigated. It further notifies applicants of the methodology to be used in calculating consumptive volume for irrigation under the rule. 


            4. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted in writing to Millie Heffner, Department of Natural Resources and Conservation, PO Box 201601, 1424 Ninth Avenue, Helena, MT  59620; fax (406) 444-0533; or e-mail mheffner@mt.gov, and must be received no later than 5:00 p.m. on February 27, 2014.


            5. David Vogler, Department of Natural Resources and Conservation, has been designated to preside over and conduct the public hearing.


            6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding conservation districts and resource development, forestry, oil and gas conservation, trust land management, water resources, or a combination thereof. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to Lucy Richards, PO Box 201601, 1625 Eleventh Avenue, Helena, MT 59620; fax (406) 444-2684; e-mail lrichards@mt.gov; or may be made by completing a request form at any rules hearing held by the department.


            7. An electronic copy of this proposal notice is available through the department's web site at http://www.dnrc.mt.gov.  The department strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.


            8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsors were contacted by e-mail on January 16, 2014.


            9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendments of the above-referenced rules will not significantly impact small businesses.


/s/ John E. Tubbs                                                    /s/ Brian Bramblett__

JOHN E. TUBBS                                                     BRIAN BRAMBLETT

Director                                                                 Rule Reviewer

Natural Resources and Conservation


Certified to the Secretary of State on January 21, 2014.





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