85-2-313. Provisional permit.

697 words·~3 min read·/mt/title-85/chapter-2/part-3/85-2-313

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85-2-313 . Provisional permit.

(1)A permit authorized prior to the issuance of a final decree pursuant to 85-2-234 in the basin where the permit is located is provisional and is subject to that final decree. A person may not obtain any vested right to an appropriation obtained under a provisional permit by virtue of construction of diversion works, purchase of equipment to apply water, planting of crops, or other action in which the permit would have been denied or modified if the final decree had been available to the department.

(a)Within 60 days after the issuance of a final decree pursuant to 85-2-234 , the department shall serve, by first-class mail, owners of record of existing water rights and provisional permits within the decreed basin with a notice of final decree and opportunity to petition for the reduction, modification, or revocation of a provisional permit located in the decreed basin.

(b)The department shall also provide notice to other interested persons who request service of the notice of final decree from the department.

(c)For basins in which a final decree was issued prior to January 1, 2026, the department shall provide notice by January 31, 2026, in accordance with subsections (2)(a) and (2)(b).

(a)An owner of an existing water right in the decreed basin may file a correct and complete petition to reduce, modify, or revoke a provisional permit issued prior to the final decree in the subject basin. Within 180 days of issuance of the notice required under subsection (2), the petition must be:

(i)made on a form prescribed by the department;

(ii)filed with the department; and

(iii)served by first-class mail on all owners of record of the provisional permit.

(b)The department shall notify the petitioner of any defects in a petition within 60 days of the close of the petition period described in subsection (3)(a). A petition that is not corrected and completed within 30 days of the notice of the defects is terminated. If the department does not notify the petitioner of any defects within 60 days, the petition must be treated as correct and complete.

(c)The department shall provide notice of a correct and complete petition to the petitioner and each owner of record of the provisional permit identified in the petition by first-class mail. Within 60 days of the notice, the owner of a provisional permit identified in a petition may file a response to the petition with the department and serve the response on the petitioner by first-class mail.

(d)The petitioner shall prove by a preponderance of the evidence that:

(i)reduction, modification, or revocation of the provisional permit is necessary to protect the petitioner's existing water right determined in the final decree;

(ii)the provisional permit would have been denied or modified if the final decree had been available to the department; and

(iii)based on the findings of the final decree, water could not be considered legally available at the time of issuance of the permit.

(e)Within 120 days of the close of the 60-day response period provided in subsection (3)(c), the department shall deny the petition or propose to reduce, modify, or revoke the provisional permit based on the information in the petition, the response, the final decree, the records of the department, and other evidence submitted to the department. The department shall consider whether, based on the final decree, unappropriated waters or legally available water existed at the time the provisional permit was issued.

(i)If the department proposes to reduce, modify, or revoke a provisional permit, the department shall provide the owner of the provisional permit with an opportunity to show cause why the department should not take the proposed action. If the owner of the provisional permit fails to show sufficient cause, the department shall reduce, modify, or revoke the provisional permit in accordance with the department's findings and conclusions.

(ii)A department determination to deny a petition is final.

(4)If no petition to reduce, modify, or revoke a provisional permit is filed pursuant to subsection (3), the department shall issue a certificate of water right in accordance with 85-2-315 .