Form 600 SW: A Step-by-Step Guide
Obtaining any new Montana water right can be a daunting endeavor. Picture this: you’ve moved to Montana and you’ve found the perfect property (the one with the pristine creek meandering through) and you’ve gotten some ideas for how might put the water that appears available to good use. Of course, the water is on your property and you are in the Wild West, but how do you know if you have the legal right to use it?
As we mentioned in Part I of this series, obtaining or confirming a water right in Montana often requires a bit of research. If you’re feeling uneasy about conducting this research yourself, you’re not alone! Water rights and usage in Montana are complex and can easily turn into highly contentious disputes even among those who formerly considered themselves friends. As the questionably attributed but keenly observant saying goes, “Whiskey is for drinking, water is for fighting.” As water and natural resource attorneys, we find this saying validated more and more each day.
Of course, at Ferguson & Coppes, our goal is always to keep this fighting to a minimum unless the situation calls for it. Therefore, we like to ensure that clients and potential clients have access to as many resources as possible in order to make the right decision for themselves and avoid future conflict over that choice. This blog is intended as a resource for those interested in obtaining a Surface Water Permit from the DNRC via Form 600 SW. Below please find a step-by-step guide for obtaining a water right to divert more than 35 gallons per minute or 10 acre-feet per year from any surface water source owned by the State of Montana.
Step 0. Meet with DNRC to discuss the proposed project & complete Pre-Application Checklist.
This is an optional meeting provided by the DNRC and comes with the added incentive of a $200.00 reduction in the filing fee for simply attending. In order to qualify, a signed copy of the Pre-Application Checklist must be returned to the DNRC with a completed application within 6-months of the date of the pre-application meeting. The DNRC also encourages that attendees are joined by their attorney, consultant, or other individual with detailed knowledge of the proposed project. There are a number of reasons why it is recommended to have an attorney present in particular, as discussed in some detail below. If you are unsure about certain aspects of your proposed project but are still interested in taking advantage of this incentive, we recommend you contact us at Ferguson & Coppes for a free consultation with an experienced water law attorney.
Step 1. File Form 600 SW: Surface Water Application for Beneficial Use Permit.
In addition to paying the required filing fees and providing a valid, signed Pre-Application Checklist if applicable, the DNRC requires that the applicant submit Form 600 SW – Surface Water Application for Beneficial Use Permit. Below is an outline of the information required to satisfy the application criteria:
- Obtain Required Reports & Addendum Information. This includes the following:
- Storage Addendum: required if you plan to store water, but not required for water tanks and cisterns. In this case you may also need to submit a Reservoir Addendum.
- Water Marketing Addendum: required if the purpose of the permit will be to market or sell water.
- Basin Closure Area Addendum: required if your point of diversion is located in a basin closure area. If yes, you may also need to submit a Hydrogeologic Assessment Report.
- Sage Grouse Habitat Project Review: required if your diversion and/or place of use are located within an area designated as sage grouse habitat.
- Notice to Existing Users. Provide written notice of the application to each owner of an appropriation right sharing the point of diversion or means of conveyance (canal, ditch, flue, pipeline, or other constructed waterway). The DNRC’s water query system is a useful resource for researching the source and point of diversion that you intend to claim, but if you have any questions, it is often helpful to consult a water law attorney.
- Gather & Provide Information Regarding Use of the Water. This generally includes the following:
- Purpose & Diversion Information: This includes providing the name of the source (stream) from which you intend to divert, whether the use is temporary, the purpose for which you intend to use the water, your proposed means of diversion, total acreage irrigated (if applicable), the period of diversion and use, and, finally, the flow rate and volume needed.
- Point of Diversion: This includes providing the legal description of the point of diversion of the water right, as well as specifics such as well depth and spring name, if applicable.
- Place of Use: This includes providing the legal description of the physical location where the water will be applied for beneficial use. Geocodes can often be identified by contacting your county’s Clerk and Recorder, or by vising your local GIS website and/or the Montana Cadastral. If you’re unable to identify or unsure of the legal description that you’d like to claim as the place of use, we also recommend calling our office for a short consultation.
- Map: This includes providing either a USDA Aerial Photo or USGS Quad of the diversion and place of use. It is important to note on the map the section corners, township, range, and N-S direction. You should also identify the proposed point of diversion, the proposed place of use, and any conveyance facilities or routes use to convey the water.
- Supplemental Water Rights: This is required if there are any other water rights used on the proposed place of use for the same purpose, or if the application is for water intended to supplement contract water from a Federal Project, ditch company, or other source.
- Physical Surface Water Availability: This includes confirming whether a gauging station exists on your source, that you have obtained at least one stream flow measurement from the source from each month of the requested period of diversion and providing those results (this is considered your Physical Availability addendum), any variances approved by the department and whether you have requested a variance from measurement requirements which were approved by the DNRC (on ephemeral sources only), along with applicable variance approval.
- Adverse Effect. To comply with Montana law, you are required to provide a detailed description of your plan to ensure that existing water rights will be satisfied during times of water shortage.
- Adequate Diversion Means and Operation: This includes confirming whether you have plans to measure your diversion and use, providing a description of how the system will operate from the point of diversion to the place of use, confirming whether the system will be designed to discharge water from the project and providing a detailed description if so, and finally, providing a detailed description and diagram of the preliminary design plans and specifications for the proposed diversion and conveyance facilities (including equipment used to put the water to beneficial use).
- Beneficial Use: This includes providing an explanation of the requested flow rate and volume and why it is needed for your intended purpose. If the purpose includes in-house domestic use, you must also submit the applicable Certificate of Subdivision Approval issued by the County in which the property is located.
- General Project Plan & Proposed Completion Period: This includes providing an estimate of how many years you expect to need to complete the project and begin applying the water for its intended use as well as explaining why this requested time is needed for the project.
- Affidavit & Certification. This section requires the applicant to certify, under penalty of perjury and under the laws of the State of Montana, that the information provided in the document is correct. Although simple, this is an important part of completing the application process and it is in the applicant’s best interest to ensure that all of the information provided is correct to the best of their knowledge. For this reason, we do recommend contacting an attorney experienced with Montana water law to ensure that you’ve provided the most accurate and legally relevant information.
Step 2: DNRC Review for Correctness and Completeness.
After submitting Form 600 SW to the DNRC, the DNRC will begin its review process of your application. The goal of this step is to receive a “Correct & Complete” determination by the DNRC’s compliance officer. These determinations are made within 180 days of the DNRC’s receipt of the application. At times, this will also require a field inspection by DNRC staff. During this period, the application may be amended at any time. If the DNRC notices any deficiencies in your application material, they will notify you and provide 120 days to make appropriate changes and provide any additional information. In the event that the applicant determines that they will be unable to meet the 120-day deadline, they may withdraw their application at any time, but will forfeit their initial filing fees.
Upon determination that the application is Correct and Complete, the DNRC will notify the applicant and provide the applicant 15 days to request a meeting with the department if necessary. In addition, the DNRC will complete their required MEPA review and documentation at this time.
Step 3: Obtain Preliminary Determination & Meet with DNRC If Necessary.
After determining that the applicant has provided sufficient information to meet the application criteria, the DNRC will prepare a draft Preliminary Determination to either grant, deny, or grant with modifications. The DNRC will then provide this draft opinion to the applicant and again allow 15 days to request a meeting to discuss the department’s findings. If the applicant requests, the DNRC may then schedule a hearing to review the inadequate criteria. In the event that the final decision is still to deny the application, the applicant may appeal the decision to the District Court. Upon review, the District Court may reverse the DNRC’s decision. In this case, the DNRC is also afforded the opportunity to appeal Final Orders to the District Court within the 30-day appeal deadline.
Step 4: Public Notice & Objection Period.
If the DNRC grants the application or grants with modifications, the applicant then moves to a public notice period in which the DNRC provides notice generally and also to surrounding landowners that the application has been received and granted. The public has 45 days to object. In the event no objections are received, the DNRC will issue a Final Order adopting the Preliminary Determination and issue a permit to the applicant pursuant to the information provided in that Preliminary Determination.
When an objection is received, the DNRC will determine whether the objections are valid and, if so, will schedule a hearing within 90 days of the objection deadline. After the hearing and the record is closed, a Final Order must be issued within 90 days. In the even that objections are withdrawn, the hearing will be dismissed and a Final Order issued. If not, a Hearing Examiner will prepare a Final Order to grant with or without stipulations and may include a private agreement. After DNRC review, a Final Order granting the application will be issued.
Of course, the process for filing any new Montana water right is complicated with many opportunities to go south. Therefore, it is always recommended to consult with an experienced water law attorney before beginning the process. Contact our office for a free consultation with one of our experienced water law attorneys.
For information on the history of Montana Water Law, check out this blog post.
For information on filing Form 600: Groundwater Application for Beneficial Use Permit, click here.
For information on filing Form 602: Notice of Completion of Groundwater Development, click here.