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| Montana Administrative Register Notice 36-22-165 | No. 19 10/11/2012 | |
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BEFORE THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION OF THE STATE OF MONTANA
To: All Concerned Persons
1. On July 26, 2012, the Department of Natural Resources and Conservation published MAR Notice No. 36-22-165 regarding a notice of public hearing on the proposed amendment to the above-stated rules at page 1465 of the 2012 Montana Administrative Register, Issue No. 14.
2. The department has amended ARM 36.12.102, 36.12.103, 36.12.107, 36.12.120, 36.12.121, 36.12.1401, 36.12.1601, 36.12.1701, 36.12.1703, 36.12.1801, 36.12.1901, 36.12.1904, and 36.12.2001 as proposed.
3. The department has amended ARM 36.12.101, 36.12.1301, 36.12.1702, 36.12.1704, 36.12.1705, 36.12.1706, 36.12.1902, 36.12.1903 as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
36.12.101 DEFINITIONS Unless the context requires otherwise, to aid in the implementation of the Montana Water Use Act and as used in these rules: (1) through (50) remain as proposed. (51) "Pre-application review" means the applicant or the applicant's attorney or consultant or others who may know about the proposed project have met with the department in person, via teleconference, or via video conference to discuss details of the proposed project and application. (52) through (79) remain as proposed.
36.12.1301 PERMIT AND CHANGE APPLICATION ACCEPTANCE (1) through (1)(f) remain as proposed. (g) the applicant's signature; (g) through (i) remain as proposed but are renumbered (h) through (j). (2) remains as proposed.
36.12.1702 PERMIT APPLICATION CRITERIA - PHYSICAL SURFACE WATER AVAILABILITY (1) through (4)(a) remain as proposed. (b) If it is not possible to take measurements every month due to high spring flow conditions or other limiting conditions approved by the department, at least one measurement must be collected during the lowest flow period. (c) through (6) remain as proposed.
36.12.1704 PERMIT APPLICATION - EXISTING LEGAL DEMANDS (1) and (2) remain as proposed. (a) For groundwater appropriations, this shall include identification of existing legal demands for any surface water source in which water flow could be reduced by any amount
36.12.1705 PERMIT APPLICATION CRITERIA - COMPARISON OF PHYSICAL WATER AVAILABILITY AND EXISTING LEGAL DEMANDS (1) remains as proposed (2) For groundwater appropriations, in addition to (1) the department will compare the physical water supply for any surface water source in which water flow could be reduced by any amount
36.12.1706 PERMIT APPLICATION CRITERIA - ADVERSE EFFECT (1) through (3) remain as proposed. (4) For groundwater applications, the department will evaluate how water levels in wells of prior water rights could be lowered and the rate, timing, and location where water flow could be reduced by any amount from hydraulically connected surface waters.
36.12.1902 CHANGE APPLICATION - HISTORIC USE (1) through (16) remain as proposed.
Table 1 - Montana County Weather Station IWR Data for Seasonal Alfalfa Evapotranspiration and Montana County Management Factor.
36.12.1903 CHANGE APPLICATION - ADVERSE EFFECT (1) Lack of (2) remains as proposed.
4. The following comments were received and appear with the department's responses. The department noted that a number of comments received both as written comments and through oral testimony at hearing were not specifically aimed at a particular rule change. Those comments are addressed below under "General Comments and Responses", prior to the specific comments and responses.
GENERAL COMMENTS AND RESPONSES:
GENERAL COMMENT 1: Concern was expressed to the effect that DNRC does not have the resources to take on a larger role in the analysis and processing of applications. Commenters also noted the need for ongoing communication throughout the process of applying for, processing, and analyzing applications for permits and changes.
GENERAL RESPONSE 1: DNRC recognizes the larger role that it will have in the process and has evaluated the amount of time and effort it will take staff to make the new process successful. DNRC believes that the current staffing structure will be adequate to accomplish this new role and will make any internal adjustments in resources as needed. Certain elements of application review may be less time intensive where DNRC performs the analysis than where the applicant provides analysis which must then be deciphered and reviewed by DNRC. DNRC will also be conducting training for staff in implementing the new process and is planning to provide training and guidance documents to external entities as needed. DNRC agrees with the comments that the new process will likely increase the amount of communication that takes place between DNRC and applicants both prior to the actual filing of the application and through processing and analysis. DNRC believes that this increased communication will result in better applications at the initial filing stage, a better understanding of the proposal throughout the process, and a faster review time. House Bill 40 (2009) statutorily facilitated DNRC communication with applicants to better understand their applications. DNRC believes that this communication will be enhanced under the reforms.
GENERAL COMMENT 2: Concern was raised that having DNRC conduct the analysis of the application may result in a potential conflict of interest between DNRC, the applicant, and/or an objector. Some commenters are also concerned that DNRC will be preparing an application or design an applicant's project.
GENERAL RESPONSE 2: DNRC fails to see how a conflict of interest could develop under the new process any more than under the existing process. Under the existing process DNRC uses its own expertise in evaluating the analysis provided by the applicant and either believes applicant's analysis to be adequate or not. Under the new process, DNRC utilizes the information provided by the applicant to run the same sorts of analysis it currently performs to evaluate the applicant's analysis. The new process will simply eliminate the need for the applicant to conduct an analysis that duplicates the analysis DNRC already conducts for each application. Additionally, under the new process applicants will receive DNRC technical analysis earlier in the process than they do under the current process and will have the opportunity to provide DNRC with additional information and/or analysis to consider when making its determination on the application. Applications will continue to be processed through regional offices which have knowledge of the local area.
DNRC does not prepare applications or design an applicant's project. The applicant must still have a plan as to the proposed use of the water; this requirement has not changed. DNRC will be preparing analysis on the data and information submitted by applicant, as it does presently.
To say that DNRC becomes an "advocate" of the applicant under the new process is not correct. Under both the existing and the new process DNRC is making a decision based on the applicable criteria and its analysis of the information submitted by the applicant as to whether an application can be granted. Under both processes, a potential objector is left in the same situation: DNRC has made a decision based on the criteria and its analysis as to whether an application can be granted. If a contested case hearing is held then both the applicant and the objector must provide evidence of why DNRC's decision should be upheld or overruled. Under both processes, DNRC experts can be examined by the parties under oath. No conflict of interest is implicated under either process. DNRC is an objective reviewer with no stake in the outcome of an application either way.
There is no requirement that the applicant perform the analyses discussed in the reforms or submit them as part of a correct and complete application. This should save the average applicant time and resources. Commenters are correct in that less information will be required for an application to be correct and complete. DNRC has reviewed what information it believes it will need to make a determination of whether the requisite criteria are proven and is only requesting that information. Should DNRC find that it needs additional information from the applicant after the correct and complete stage, it will contact the applicant. This is the advantage of the process facilitated by HB 40.
COMMENT 1: The definition for ARM 36.12.101(51) should clarify that the pre-application review meeting can take place in person, teleconference, or video conference.
RESPONSE 1: DNRC agrees and has amended the definition accordingly.
COMMENT 2: Commenter said that DNRC is proposing to replace the applicant's notarized signature with an "Affidavit & Certification", and that change does not appear in the proposed rule.
RESPONSE 2: DNRC inadvertently struck all of ARM 36.12.1301(2)(g). (2)(g) has been amended to read "the applicant's signature".
COMMENT 3: Commenter stated in reference to ARM 36.12.1702(4)(b) that there are many reasons why it is impossible to take measurements every month. The proposed rule should read as follows: "If it is not possible to take measurements every month due to physical conditions at the measuring site".
RESPONSE 3: DNRC recognizes that there are other reasons it may not be possible to take measurements every month due to conditions other than high spring flows. (4)(b) has been amended to read: "If it is not possible to take measurements every month due to high spring flow conditions or other limiting conditions approved by the department, at least one measurement must be collected during the lowest flow period."
COMMENT 4: Commenter was concerned that use of "depleted" without a definition of that term in ARM 36.12.1704(2)(a) and 36.12.1705(2) could result in misinterpretation to mean the dictionary definition of "to lessen markedly", when the term is used in the vernacular of water use to mean any reduction in stream flow.
RESPONSE 4: DNRC agrees. Those subsections have been amended to replace "that could be depleted" with "in which water flow could be reduced by any amount".
COMMENT 5: Commenter was concerned that the removal of ARM 36.12.1706(5) would result in no technical evaluation of potential adverse effect (calculation of resulting water column in neighboring wells). Commenter suggested that (5) read: "For groundwater applications, in addition to (1), (2), and (3), the department shall describe how water levels in wells of prior water rights will be lowered and the rate, timing, and location of any depletions from hydraulically connected surface waters."
RESPONSE 5: DNRC generally agrees and has amended ARM 36.12.1706(5) to read: "For groundwater applications the department will evaluate how water levels in wells of prior water rights could be lowered and the rate, timing, and location where water flow could be reduced by any amount from hydraulically connected surface waters."
COMMENT 6: Commenter was concerned about how to use the new "Column G" in Table 1 under ARM 36.12.1902, the determination of historic use. Also there is what appears to be a reference to a footnote in Column G in the Powell County row, but no footnote appears.
RESPONSE 6: DNRC agrees that some explanation of the use of Column G would be useful. However, it was determined there was an error in the calculations for the proposed Column G in Table 1. Therefore, DNRC will not be adopting the figures in Column G at this time but will propose the correct figures in a future rulemaking.
COMMENT 7: Commenter suggested that DNRC further clarify the use of the phrase "on-farm-efficiency" for the calculation of historic diverted volume in ARM 36.12.1902(10). Commenter also asked for the source for those numbers. Commenter also suggests that DNRC cross reference in rule a PowerPoint presentation used at public meetings on the proposed changes.
RESPONSE 7: The numbers for "on-farm-efficiency" are derived from the Montana Irrigation Guide. DNRC does not believe that a cross reference to the PowerPoint presentation is appropriate in the rule itself; however, that PowerPoint is available to DNRC personnel and applicants for guidance as suggested by the commenter.
COMMENT 8: Concern was expressed that in ARM 36.12.1903 DNRC automatically assumes that a change will adversely affect other water users.
RESPONSE 8: DNRC does not assume that adverse effects will result from a change authorization. In order to clarify the intent of ARM 36.12.1903, the words "lack of" are added just before "adverse effect".
COMMENT 9: A number of comments were received regarding more flexibility in allowing multiple water rights to be changed in one application under ARM 36.12.1901, especially if they are to be used for the same project.
RESPONSE 9: DNRC believes that it has provided as much flexibility as it can in allowing multiple water rights to be changed in one application without risking adverse effect to other water users due to combined analyses of multiple water rights. Suggesting more flexibility in allowing multiple water rights with different points of diversion or in main stem streams and tributaries would make it much more difficult to evaluate adverse effects on other water users who have points of diversion between the multiple water rights proposed to be changed.
In the past, water rights changed as a group have at times been changed later on an individual basis. It is important that DNRC be able to evaluate the effect of a change of each water right individually, acknowledging that some rights may have been historically used in combination. Joint analysis of multiple water rights in a single application can make it difficult to analyze the requisite criteria as they apply to each right. While it may be convenient for the applicant to join multiple water rights in one analysis, the analysis for each right may be impossible based on the information submitted or may take significantly longer than if individual rights are grouped as set forth in the rule. While DNRC has the discretion to require a separate application for each right, it has chosen not to do so. DNRC believes that the proposed rule best facilitates DNRC's mandate to evaluate the requisite statutory criteria and accurately described the individual water rights post change.
COMMENT 10: The deletions to ARM 36.12.120 appear to streamline this process. However, commenter asked how, and what information DNRC will use to evaluate water use in closed basins.
RESPONSE 10: ARM 36.12.120(5) through (7) were removed because DNRC believes those sections simply reiterate the requirements for hydrogeologic assessments pursuant to 85-2-361, MCA. Rules are to expound on or clarify statutory language, not to parrot that language. The deletions leave applicants in the same position that they would find themselves when undertaking any hydrogeologic assessment under the requirements of 85-2-361, MCA.
COMMENT 11: There were several comments received on the draft revised application forms and addendums, provision of guidance documents, staffing of pre-application meetings, and application reviews referenced in the rules.
RESPONSE 11: DNRC appreciates the comments and will take them into consideration.
COMMENT 12: There were several comments about fees. One commenter stated that the fees were significantly increased for change and new permit applications. One commenter wanted a sliding scale for fees for multiple applications. Other commenters supported the fee incentive to attend pre-application review meetings.
RESPONSE 12: The fees for the change authorization and new permit applications were not increased if the applicant attends the pre-application review meeting. The fees will only be increased if the applicant does not participate in a pre-application meeting. DNRC declines to implement a sliding scale for multiple applications at this time due to the work required for each application review. DNRC will, however, take this suggestion under advisement and future consideration.
COMMENT 13: Commenter would like to be able to submit a mitigation change application prior to a new permit application.
RESPONSE 13: Mitigation change applications and new permit applications are treated as a single application pursuant to 85-2-363, MCA.
COMMENT 14: Commenter was concerned that 60 days is too short a timeframe for responding to a Draft Preliminary Decision to Deny an application. Commenter suggested a 90- or 120-day timeframe to respond and issue for a revised Draft Preliminary Determination. The applicant should also be able to provide further information to support the application.
RESPONSE 14: If DNRC issues a Draft Preliminary Determination to Deny, the applicant may sign a waiver of the statutory timelines and is afforded the opportunity to present further information and analysis/support. The 60 days is simply offered as a starting point as guidance for the applicant and DNRC regional office staff. If the applicant demonstrates good faith in collecting the additional information it would like to present, DNRC would consider extending this timeframe. If DNRC proceeds to issue a final Preliminary Determination to Deny, the applicant is afforded further opportunity to present additional information through a show cause hearing before DNRC. This hearing process offers the applicant the ability to present further evidence, information, analysis, and support for the application. Once in the hearing process, the hearing examiner may consider and approve continuances of the matter until the party(s) are prepared to present their case.
COMMENT 15: Commenter asked if DNRC will attend the contested case hearing to defend the determinations regarding each criteria if a Draft Preliminary Determination to Grant is issued and objections are received.
RESPONSE 15: DNRC staff involved in the technical review of the application will be available upon request. They will not need to be subpoenaed. Any party may subpoena any additional DNRC staff member.
DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
/s/ Mary Sexton /s/ Anne Yates MARY SEXTON ANNE YATES Director Rule ReviewerNatural Resources and Conservation
Certified to the Secretary of State on October 1, 2012.
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