Montana Code § 85-20-1902

85-20-1902 . Unitary administration and management ordinance. CHAPTER I WATER RESOURCES CONSERVATION, DEVELOPMENT AND ADMINISTRATION PART 1 - GENERAL PROVISIONS 1-1-101 . Authority. 1. This Ordinance parallels legislation adopted by the Confederated Salish and Kootenai Tribes pursuant to Tribal approval of the Confederated Salish and Kootenai Tribes-Montana Compact and the Montana Water Use Act of 1973 to effectuate Unitary Administration and Management on the Flathead Indian Reservation. 2. This Ordinance and the parallel Tribal legislation are contingently effective; neither operates with the force and effect of law without the other. No modification by the Tribes or the State of Montana of these respective laws shall be effective within the exterior boundaries of the Reservation unless and until the other makes an analogous modification. No amendment of this Ordinance that may affect a use of the Tribal Water Right may be made without Secretarial approval. 3. Upon the Effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation. 1-1-102 . Reserved. 1-1-103 . Reserved. 1-1-104 . Definitions. Unless otherwise defined herein, capitalized terms used in this Ordinance shall have the meaning set forth in the Compact. 1. "Allottee" or "Allottees" means an owner of an interest in a tract of land held in trust by the United States which was allotted pursuant to the Act of April 23, 1904, 33 Stat. 302, as amended, or the Act of February 25, 1920, 41 Stat. 452, as amended. 2. "Appropriate" means to divert, impound, maintain an instream, inlake, inwetland or impoundment use, or withdraw a quantity of water for a beneficial use on the Flathead Indian Reservation under color of law. 3. "Appropriation" means the diversion, impoundment, maintenance of an instream, lake, Wetland, or impoundment use, or the withdrawal of a quantity of water for a Beneficial Use on the Flathead Indian Reservation under color of law. 4. "Appropriation Right" means a right to Appropriate water issued by the Water Management Board pursuant to the terms of the Compact and this Ordinance. 5. "Aquifer Injection" means the subsurface discharge of fluids into the ground by means of an Injection Well. 6. "Appropriator" means a Person who Appropriates water. 7. "Beneficial Use" means a consumptive or non-consumptive use of water for the benefit of the Appropriator, other Persons, the Tribes, one or more Tribal members, or the general public, including but not limited to agricultural, stock water, domestic, fish and wildlife, cultural and religious practices, industrial, Instream Flow, irrigation, mining, Mitigation Water, municipal, power, recreational uses, and Wetlands purposes. 8. "Business" means a building or site where commercial work is carried on, including but not limited to a factory, store, or office. 9. "Change in Use" means an authorized change in the point of diversion, the place of use, the period of use, the purpose of use, or the place of storage of an Appropriation Right issued by the Water Management Board under the Compact and this Ordinance, or of an Existing Use. A changed water right retains the original priority date of that right. 10. "Compact" means that water rights settlement entered into by the Confederated Salish and Kootenai Tribes, the State of Montana, and the United States. 11. "Complainant" means one who files a Complaint. 12. "Complaint" means a written assertion of injury submitted to the Engineer pursuant to Section 3-1-102 of this Ordinance. 13. "Consumptive Use" means the amount of water used for a beneficial purpose, such as water transpired by growing vegetation, evaporated from soils or water surfaces, or incorporated into products, that does not return to the Groundwater or surface water source. 14. "Designee" means an individual selected by the Engineer to exercise, in regard to a particular application or objection, those powers assigned to the Engineer under Chapter II of this Ordinance. Any Staff is eligible to be selected as a Designee provided that he or she has not previously worked on the particular application or objection at issue. 15. "Developed Spring" means any artificial opening or excavation in the ground, however made, including any physical alteration at the point of discharge regardless of whether it results in any increase in the yield of Groundwater, from which Groundwater is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn. 16. "Development" means contiguous or closely grouped parcels of land under the same or affiliated ownership, including, but not limited to, housing subdivisions or any combination of business and residential units. 17. "DNRC" means the Montana Department of Natural Resources and Conservation, or any successor agency. 18. "Domestic Allowance" means an entitlement to use water issued to households and small businesses pursuant to the provisions of Section 2-2-117 of this Ordinance; Domestic Allowances include Individual Domestic Allowances, Shared Domestic Allowances, and Development Domestic Allowances. 19. "Domestic Use" means those water uses common to a household, including washing, drinking, bathing, waste disposal, cooling and heating, domestic animals, and garden and landscape irrigation. Domestic Use does not include the filling of ponds, pits, pit-dams or reservoirs. 20. "Effective Date" means the date on which the Compact is finally approved by the Tribes, by the State, and by the United States, and on which the Law of Administration has been enacted and taken effect as the law of the State and the Tribes, whichever date is latest. 21. "Emergency" means a situation that demands unusual or immediate action to prevent imminent injury to life, property, or the environment. 22. "Enclosed Storage" means a storage container fully enclosed to include a cistern or tank. 23. "Existing Use" means a use of water under color of Tribal, State or Federal law in existence as of the Effective Date, including uses in existence on that date that are eligible for either of the registration processes set forth in Sections 2-1-101 through 2-1-108 of this Ordinance; provided that any portion of a Water Right Arising Under State Law within the Reservation that is, at any point after the date the ratification of the Compact by the Montana Legislature takes effect under State law, voluntarily relinquished or is legally determined to be abandoned, relinquished, or have otherwise ceased to exist, shall be stricken from the relevant basin decree as a Water Right Arising Under State Law and be entitled to no further protection as such a right or as an Existing Use. 24. "Flathead Indian Irrigation Project" or "FIIP" means the irrigation project developed by the United States to irrigate lands within the Reservation pursuant to the Act of April 23, 1904, Public Law 58-159, 33 Stat. 302 (1904), and the Act of May 29, 1908, Public Law 60-156, 35 Stat. 441 (1908), and includes, but is not limited to, all lands, reservoirs, easements, rights-of-way, canals, ditches, laterals, or any other FIIP facilities (whether situated on or off the Reservation), head gates, pipelines, pumps, buildings, heavy equipment, vehicles, supplies, records or copies of records and all other physical, tangible objects, whether of real or personal property, used in the management and operation of the FIIP. 25. "FIIP Influence Area" means the lands influenced by the operations of the FIIP as identified on the map attached to the Compact as Appendix 2. 26. "Flathead Indian Reservation" or "Reservation" means all land within the exterior boundaries of the Indian Reservation established under the July 16, 1855 Treaty of Hellgate (12 Stat. 975), notwithstanding the issuance of any patent, and including rights-of-way running through the Reservation. 27. "Flathead System Compact Water" means that portion of the Tribal Water Right consisting of 229,383 acre feet per year that the Tribes may withdraw from the Flathead River or Flathead Lake, which includes up to 90,000 acre feet per year stored in Hungry Horse Reservoir, with a maximum total volume consumed of 128,158 acre feet per year. 28. "Groundwater" means any water that is beneath the surface of the earth. 29. "Groundwater Management Area" means an area designated and managed under Section 1-1-109 of this Ordinance. 30. "Heating/Cooling Exchange Well" means a Well for the purpose and with the attributes set forth in Section 2-2-119 (1) of this Ordinance. 31. "Home" means a house, apartment, or other shelter that is a permanent or temporary residence of a Person, family, or household. 32. "Illegal" or "Illegally" means, as it pertains to the use of water, to Appropriate water not pursuant to an Appropriation Right or Existing Use. 33. "Injection Well" means a Well utilized for injecting fluids or gases into geologic materials. Open pits, ponds, or excavations are not considered Injection Wells. 34. "Instream Flow" means a stream flow retained in a watercourse to benefit the aquatic environment. Instream Flow may include Natural Flow or streamflow affected by regulation, diversion, or other modification. A water right for Instream Flow purposes is quantified for a stream reach and measured for enforcement purposes at a specified point. 35. "Livestock" means cattle, bison, sheep, swine, horses, mules, goats, or other animals specifically raised and used for food or fiber or as a beast of burden. 36. "Mitigation" means the reallocation of surface water or Groundwater through a Change in Use or other means to offset adverse effect resulting from Net Depletion by any proposed new Appropriation. 37. "Mitigation Plan" means a plan as developed by an applicant to provide Mitigation. 38. "NRD" means the Confederated Salish and Kootenai Tribes' Natural Resources Department. 39. "Natural Wetland" means a Wetland area that is maintained with a natural surface water source, natural Groundwater source or a combination of natural surface water and natural Groundwater without any artificial means of diversion, impoundment, withdrawal, excavation, or other artificial means of control. 40. "Net Depletion" means the calculated volume, rate, timing, and location of reductions to a water source resulting from a proposed new Appropriation that are not offset by the corresponding accretions to that source caused by the proposed new Appropriation. 41. "Non-consumptive Use" means any beneficial use of water that does not meet the definition of consumptive use. 42. "Other Instream Flows" means the Tribal instream flow water rights for stream reaches described in Article III.C.1.d.iii of the Compact. 43. "Office of the Engineer" means the Engineer and Staff, acting in their official capacities. 44. "Person" means an individual or any other entity, public or private, including the Tribes, the State, and the United States, and all officers, agents and departments of each sovereign. 45. "Pits, Pit-dams, Constructed Ponds, or Reservoirs" refer to bodies of water that are created by man-made means and which store water for beneficial use. 46. "Project Manager" means the person or team of persons hired by the Project Operator to operate and manage the FIIP in accordance with its direction, this and other applicable agreements, and applicable law, including the Compact. 47. "Project Operator" means that entity with the legal authority and responsibility to operate the Flathead Indian Irrigation Project. 48. "Public Water Supply System" means a system for the provision of water for human consumption that has at least 15 service connections or that regularly serves at least 25 Persons daily for any 60 or more days in a calendar year. 49. "Publish" or "Publication" means, unless otherwise designated, the printing of an announcement of document availability, or the text of the document itself, in a newspaper of general circulation on the Reservation and in the Tribal newspaper and posting on the Water Management Board's website. 50. "Redundant Well" means a Well to provide a backup source of water for a Public Water Supply System. 51. "Restored Natural Wetland" means a Wetland area that, upon restoration, shall be maintained with a natural surface water source, natural Groundwater source, or a combination of natural surface water and natural Groundwater without any artificial means of diversion, impoundment, withdrawal, excavation, or other artificial means of control. 52. "Secretary" means the Secretary of the United States Department of the Interior or the Secretary's duly assigned representative. 53. "Shall" means a mandatory and not a discretionary act. 54. "Shared Well" means a single Well that is physically manifold to multiple homes and/or businesses and is cooperatively used pursuant to a Shared Well Agreement. 55. "Shared Well Agreement" means a legally binding document that stipulates the manner in which a Shared Well is jointly used between or among all Homes or Businesses connected to the well; to be valid, it must be signed by representatives for each Person having a possessory interest in each individual Home or Business connected to a Shared Well. 56. "Spring" means a perennial hydrologic occurrence of water involving the natural flow of water originating from beneath the land surface and arising to the surface of the ground. 57. "Staff" means the employees, contractors and others assigned to or engaged by the Board or the Engineer to assist or facilitate the Engineer in carrying out the duties assigned to the Engineer by the Compact and this Ordinance, and by the Board pursuant to the same. 58. "Stock Tank" means a 30 to 1500 gallon tank used to provide drinking water for Livestock that is equipped with a water level regulator that shuts off supply to keep the Stock Tank from overflowing. 59. "Substitute Well" means a Well that replaces an existing Well which is to be abandoned. 60. "Temporary Emergency Appropriation" means the temporary beneficial use of water necessary to protect lives, property, or the environment, by reason of fire, storm, earthquake or other disaster, or unforeseen combination of circumstances which call for immediate action. An appropriation made necessary due to drought conditions is not a temporary emergency appropriation. 61. "Temporary Groundwater Management Area" means an area established pursuant to Section 1-1-109 (10) of this Ordinance. 62. "Tribal Member" means a Person who is lawfully enrolled by and whose name appears on the official enrollment list of the Confederated Salish and Kootenai Tribes. 63. "Tribal Water Right" means the water rights of the Confederated Salish and Kootenai Tribes, including any Tribal member or Allottee, that arise under Federal law, as set forth in Article III.A, Article III.C.1.a through j, Article III.C.1.k.i, Article III.C.1.l.i, Article III.D.1 through 3, and Article III.D.7 and 8 of the Compact. The term "Tribal Water Right" also includes those rights identified in Article III.H of the Compact that are appurtenant to lands taken into trust by the United States on behalf of the Tribes. 64. "Tribes" means the Confederated Salish and Kootenai Tribes of the Flathead Reservation, and all officers, agencies, and departments thereof. 65. "Waste" or "Wasting" means the unreasonable loss of water resulting from the design, construction, operation or maintenance of a water diversion, storage or distribution facility, Well, Developed Spring, or the application of water to anything but a beneficial use. 66. "Water Engineer" or "Engineer" means the Person satisfying the criteria in Section 1-2-109 of this Ordinance employed by the Water Management Board pursuant to Article IV.I.5.c of the Compact to exercise the powers and duties of the Water Engineer as set forth in the Compact and this Ordinance. 67. "Water Management Board" or "Board" means the board created by Article IV.I of the Compact and vested with the responsibilities set forth in the Compact and in Tribal and State law for the administration of water within the Reservation. 68. "Water Rights Arising Under State Law" means those valid water rights Arising Under State Law existing as of the Effective Date and not subsequently relinquished or abandoned, as those rights are: decreed or to be decreed by the Montana Water Court pursuant to 85-2-234 , MCA; permitted by the DNRC; exempted from filing in the Montana general stream adjudication pursuant to 85-2-222 , MCA; or excepted from the permitting process pursuant to 85-2-306 , MCA. 69. "Well" means any artificial opening or excavation in the ground, however made, by which Groundwater is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn. 70. "Well Log Report" means DNRC Form No. 603 (see ARM 36.12.102), or any successor reporting form and requirement promulgated in State law. 71. "Well Shaft Casing" means an impervious durable pipe placed in a well or Developed Spring to prevent the walls from caving, to seal off surface drainage, or undesirable water, gas, or other fluids to prevent their entering the well, and to prevent the Waste of Groundwater. 72. "Wetland" means an area that is inundated or saturated by surface water or Groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. 73. "Wetland Quantified Appropriation Right" means an Appropriation Right issued for a Wetlands purpose that utilizes any man-made diversions, impoundment, withdrawals, excavations, or other artificial means for the purposes of appropriation for either all or a portion of a Wetland. 74. "Wetland Protective Appropriation Right" means an Appropriation Right issued for either a Natural Wetland or Restored Natural Wetland. 75. "Works" means all property, real or personal, necessary or convenient to the appropriation, conservation, storage, diversion, distribution, development, screening and utilization of water. 1-1-105 . Measurement of Water. Upon the effective date of this Ordinance, legal standards of measurement of water within the Flathead Reservation shall be as follows: 1. Flow rates shall be measured in cubic feet per second, unless otherwise provided herein. Where documentary evidence of an existing use is expressed in gallons per minute, 448.8 gallons per minute shall be considered equivalent to a flow of one cubic foot per second. Where documentary evidence of an existing use is expressed in statutory or miner's inches, 40 statutory or miner's inches shall be considered equivalent to a flow of one cubic foot per second. 2. Volumes of water shall be measured in acre-feet, unless otherwise provided herein. One acre-foot shall be considered equivalent to a volume of 43,560 cubic feet. One cubic foot shall be considered equivalent to a volume of 7.48 gallons. 1-1-106 . Measurement of Time. Whenever in this Ordinance an action is required to be performed within a certain number of days, the time for completion of the act shall be measured in calendar days unless the last day falls on a Friday, Saturday, Sunday, or Tribal, State or Federal legal holiday, in which case the time for performance is extended to the next subsequent business weekday. 1-1-107 . Appropriation Rights Allowed. 1. The following Appropriation Rights or Changes in Use may be authorized by the Board pursuant to the Compact and this Ordinance: a. Appropriation Rights for Groundwater appropriations for Redundant or Substitute Wells as set forth in Section 2-2-115 of this Ordinance. b. Appropriation Rights for Stock Water Allowances as set forth in Section 2-2-116 of this Ordinance. c. Appropriation Rights for Domestic Allowances as set forth in Section 2-2-117 of this Ordinance. d. Appropriation Rights for uses of Flathead System Compact Water as set forth in Section 2-2-118 of this Ordinance. e. Appropriation Rights for non-consumptive geothermal heating or cooling exchange Wells as set forth in Section 2-2-119 of this Ordinance. f. Appropriation Rights for Temporary Emergency Appropriations as set forth in Section 2-2-120 of this Ordinance. g. Appropriation Rights or Change in Use authorizations for Wetlands as set forth in Sections 2-2-123 and 2-2-124 of this Ordinance. h. Appropriation Rights for Non-consumptive Uses, including, but not limited to, hydropower generation and not including flow-through ponds. i. Appropriation Rights for which adverse effects to existing Appropriators are offset by Mitigation. j. Changes in Use of all Appropriation Rights or Existing Uses except for those Appropriation Rights authorized under subsections (1)(a), (1)(b), (1)(c), (1)(e), (1)(f), (1)(k), or (1)(l) of this Section or those for Existing Uses exempt from the permitting requirements of 85-2-306 , MCA, or from the claim filing requirements of 85-2-221 , MCA, as set forth in 85-2-222 , MCA; provided that a use authorized under subsection (1)(h) may not be changed from a Non-consumptive Use to a consumptive use. k. Appropriation Rights to Appropriate surface water to conduct response actions related to natural resource restoration required for: i. remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq.; ii. aquatic resource activities carried out in compliance with and as required by the federal Clean Water Act of 1977, 33 U.S.C. 1251 through 1387; or iii. remedial actions taken pursuant to the Remedial Action Upon Release of Hazardous Substance Act, Title 75, chapter 10, part 7, MCA. No Appropriation Rights issued pursuant to this subsection may be used for dilution. l. Appropriation Rights for uses of surface water for or by a municipality or regional distribution system. m. Appropriation Rights for new uses of the Tribal Water Right by the Tribes, Tribal Members, or Allottees, provided that any such new uses be sourced from: i. Flathead System Compact Water; or ii. another source, provided that any adverse effects to existing Appropriators caused by the Net Depletion of the new Appropriation Right must be offset by Mitigation pursuant to Section 1-1-112 of this Ordinance. 2. Other than those Appropriation Rights set forth in subsection (1) of this Section, the Board may not grant an Appropriation Right or other authorization to Appropriate surface water or Groundwater within the exterior boundaries of the Flathead Indian Reservation. 1-1-108 . Reservation Water Rights Database. The Board shall cause all Appropriation Rights and Changes in Use authorized by the Board, including those uses registered pursuant to the provisions of Sections 2-1-101 through 2-1-107 of this Ordinance, to be entered into the DNRC water rights database in a format agreed to by the Board and the DNRC. 1-1-109 . Groundwater Management Areas. The Board may designate, modify, or repeal either permanent or Temporary Groundwater Management Areas as provided in this part. 1. Each designation of a Groundwater Management Area shall identify the need for the special management, the boundaries of the area, the water resources targeted for special management, and the specific restrictions that will apply in the Groundwater Management Area. 2. The designation, modification, or repeal of a Groundwater Management Area may be initiated by submission of a correct and complete petition by: a. the Tribes, the State, or the United States; b. a local public health agency; c. a municipality, county, or conservation district; or d. at least one-third of the water rights holders in a proposed Groundwater Management Area. 3. A correct and complete petition shall: a. be in a form prescribed by the Board; b. contain facts and analysis prepared by a hydrologist, hydrogeologist, qualified scientist, or a qualified licensed professional engineer demonstrating the existence of one or more of the criteria set forth in subsection (8) are met; and c. describe proposed measures, if any, needed to mitigate effects of the criteria identified in subsection (8) of this Section; and that are alleged in the petition or describe the rationale as to why a Groundwater Management Area should be repealed or modified. 4. Upon receipt of a completed petition complying with subsection (3) of this Section, the Office of the Engineer shall date stamp the petition. 5. Office of the Engineer review: a. within 180 days of the date of receipt of the petition pursuant to subsection (4) of this Section, the Office of the Engineer shall: i. determine in writing that the petition is correct and complete; or ii. notify the petitioner of any defects in a petition, with an explanation in writing of the defect(s). b. any petition that is returned pursuant to subsection (5)(a)(ii) of this Section and not corrected within 90 days from the date of return shall be deemed terminated. c. if the Office of the Engineer does not notify the petitioner pursuant to subsection (5)(a) of this Section, the petition shall be treated as correct and complete. 6. Board review: a. within 60 days after a petition is determined to be correct and complete, the Board shall: i. deny the petition in writing in whole or part, stating the reasons for denial; ii. inform the petitioner in writing that the Board will study the information presented in the petition for a period not to exceed 90 days before denying or proceeding with the petition; or iii. publish notice of the Board's consideration of action concerning a permanent or Temporary Groundwater Management Area pursuant to subsection (8) of this Section. b. failure of the Board to act under subsection (6)(a) of this Section shall be deemed a denial of the petition. 7. If the Board determines that a correct and complete petition contains sufficient information to warrant the Board granting the petition, the Board shall proceed to hear the petition. The Board shall provide public notice of the hearing by: a. publishing a notice at least once each week for 3 successive weeks, with the first notice not less than 30 days before the date of the hearing in a newspaper of general circulation on the Reservation; b. serving by mail a copy of the notice, not less than 30 days before the hearing, upon each Person or public agency known from an examination of the records of the Board to be a water right holder within the proposed or existing Groundwater Management Area; c. serving by mail a copy of the notice upon any other Person, including Tribal, State or federal agencies, that the Board knows to be interested in or affected by the proposed designation, modification, or repeal of a Groundwater Management Area. d. the notice under subsections (7)(a) through (7)(c) must include a summary of the basis for the proposed action. Publication and mailing of the notice as prescribed in this Section, when completed, is considered to be sufficient notice of the hearing to all interested parties. e. the Board shall make available to the public on its website a complete copy of the petition or request to designate, modify, or repeal either permanent or Temporary Groundwater Management Areas. 8. The Board may designate a permanent Groundwater Management Area if it finds by a preponderance of the evidence that any of the following criteria have been met: a. current or projected reductions of recharge to the aquifer or aquifers within the boundaries of the proposed permanent Groundwater Management Area will cause Groundwater levels to decline to the extent that water rights holders cannot reasonably exercise their water rights; b. current or projected Groundwater withdrawals from the aquifer or aquifers in the boundaries of the proposed Groundwater Management Area have reduced or will reduce Groundwater levels or surface water availability necessary for water rights holders to reasonably exercise their water rights; c. current or projected Groundwater withdrawals from the aquifer or aquifers in the proposed permanent Groundwater Management Area have impaired or will impair Groundwater quality necessary for water right holders to reasonably exercise their water rights based on relevant water quality standards; d. Groundwater within the proposed permanent Groundwater Management Area is not suitable for any beneficial use; or e. public health, safety, or welfare is or will become at risk. 9. Monitoring and studies: a. if the Board finds that sufficient facts, including monitoring information, are not available to designate a permanent Groundwater Management Area, the Board may designate a Temporary Groundwater Management Area to allow studies to obtain the facts needed to: i. correct deficiencies that the Board identifies in a petition for a permanent Groundwater Management Area; ii. determine the extent to which the criteria identified in subsection (8) are met or not met; iii. determine appropriate control measures to implement to designate a permanent Groundwater Management Area. b. the Board shall set the length of time that the Temporary Groundwater Management Area shall be in effect. The term of a Temporary Groundwater Management Area may be extended by the Board, but may not exceed a total of 6 years. c. the Board shall determine the responsibility for funding the costs associated with subsection (9)(a). Any person on whom a funding responsibility is placed by the Board pursuant to this subsection may appeal that determination to a Court of Competent Jurisdiction, which shall review the determination for an abuse of discretion. d. prior to designating a Temporary Groundwater Management Area, the Board shall provide notice and the opportunity for public hearing pursuant to the notice provisions of subsection (7) of this Section. e. a Temporary Groundwater Management Area designation is for the purpose of monitoring and study and shall not include the control provisions set forth in subsection (10) of this Section, other than measurement, water quality testing, and reporting. f. prior to expiration of a Temporary Groundwater Management Area, and subject to the limitations of subsection (9)(b) of this Section, the Board may amend or repeal the establishment of the Temporary Groundwater Management Area, or may designate a permanent Groundwater Management Area under this Section. 10. A permanent Groundwater Management Area may include, but is not limited to, one or more of the following provisions: a. closing the permanent Groundwater Management Area to further appropriation of surface water and/or Groundwater; b. restricting the development of future surface water and/or Groundwater appropriations within the permanent Groundwater Management Area; c. prohibiting or restricting the issuance of Stock Water Allowances pursuant to Section 2-2-116 of this Ordinance; d. prohibiting or restricting the issuance of Domestic Allowances pursuant to Section 2-2-117 of this Ordinance; e. requiring measurement and reporting of future surface water or Groundwater appropriations within the permanent Groundwater Management Area; f. requiring water conservation measures within the permanent Groundwater Management Area; g. requiring mitigation of Groundwater withdrawals within the permanent Groundwater Management Area; h. reporting data to the Board within the permanent Groundwater Management Area; and i. other provisions that the Board determines are appropriate and adopts. 11. The Board, upon petition, may modify or repeal a Groundwater Management Area. Any petition seeking the modification or repeal of a permanent Groundwater Management Area must demonstrate by a preponderance of the evidence that current or projected recharge to the aquifer or aquifers or changes to current or projected Groundwater withdrawals from the aquifer or aquifers in the boundaries of an existing Groundwater Management Area justify modification or repeal of that Groundwater Management Area. 12. Appeal from any final decision of the Board concerning the designation, modification or repeal of any permanent Groundwater Management Area pursuant to this Section shall be as set forth in Section 2-2-112 of this Ordinance. 13. If the Board determines that it is appropriate for a Groundwater Management Area identified pursuant to this section to extend to an area adjacent to but outside the boundaries of the Reservation, the Board, through the Office of the Engineer, may petition the DNRC, pursuant to 85-2-506 (2)(c)(i), MCA, to designate a Controlled Groundwater Area in that adjacent area. Designation or modification by the DNRC of a Controlled Groundwater Area in any such adjacent area shall be governed by the procedures set forth in 85-2-506 , MCA. 1-1-110 . Standards for Applications for Appropriation Rights and Changes in Use. For any application for an Appropriation Right or Change in Use that is not one of the categories of Appropriation Right identified in Sections 1-1-112 (1) or 2-2-118 of this Ordinance, in addition to whatever information is required by specific provisions of the Ordinance, all applications for Appropriation Rights and Changes in Use must include: 1. An identification of the proposed beneficial use. 2. An identification of the source of water supply. 3. A project description, including an identification of any water right(s) to be changed to a new use, if applicable. 4. A legal description of the point of diversion and the place of use. 5. The monthly volume(s) and flow rate(s) of the water supply to be diverted, withdrawn, or impounded, and the monthly volume(s) to be consumed; however the Office of the Engineer may require a more frequent quantification time step. 6. The monthly historic diverted, withdrawn, or impounded volume(s) and flow rate(s) and the historically consumed volume(s) of the water right(s) to be changed to a new use, if applicable; however, the Office of the Engineer may require a more frequent quantification time step. 7. The calculations, references and methodologies used to determine the volume(s) and flow rate(s) in subsections (5) and (6) above. 8. Identification of physical water availability and existing legal demands on the source of supply of water. 9. Evidence that the proposed means of diversion, construction, and operation of the appropriation Works are adequate. 10. Evidence of possessory interest or the written consent of the person with the possessory interest in the property where the water is to be put to beneficial use, diverted, conveyed, impounded, stored, transported, withdrawn, used, and distributed. 11. Information showing that the water quantity or quality of an Appropriator will not be adversely affected, if applicable. 12. A United States Geological Survey (USGS) quadrangle map or United States Department of Agriculture (USDA) aerial photo must be included with the application. a. The following items shall be clearly identified on the map: (1) North arrow; (2) Scale bar; (3) Section corners and numbers; (4) Township and range numbers; (5) Property lines and ownership; (6) Source(s); (7) Point(s) of diversion; (8) Means of conveyance; (9) Place(s) of use; (10) Place(s) of storage, if applicable; (11) Surface water features; (12) Measurement and instrument locations associated with the application; and (13) The place(s) of use of all associated and supplemental water rights. b. If the application is for a Change in Use, the site map shall also show the historic point(s) of diversion, place(s) of use, and place(s) of storage, as applicable. c. Additional maps shall be submitted if the information on one map cannot convey the required information clearly and shall be of the same scale so the maps can be overlain. 1-1-111 . Groundwater Diversion Standards 1. Wells: a. Persons that drill, make, or construct Wells, including monitoring Wells, on the Reservation shall comply with Title 37 Chapter 43, MCA, and ARM 36 Chapter 21 licensing, conduct, and regulatory requirements, or any successor provisions promulgated in State law. b. All Well construction on the Reservation shall meet the standards set forth in ARM 36 Chapter 21, or any successor provisions promulgated in State law. c. Construction and operations of all Wells must comply with all applicable federal, State, Tribal, and local environmental regulations. 2. Developed Springs: a. All Developed Spring collection components, including but not limited to infiltration galleries, infiltration basins, and French drains, shall be installed and buried under the surface of the ground. b. All means of storage and conveyance, including but not limited to supply pipes, cisterns, and pump housings, shall be sealed and made impervious to water and designed in a manner that protects the source from backflow and surface contamination. c. Open pits, ponds, or excavations shall not be used as a means of diversion for Developed Springs. d. Construction and operation of all Developed Springs must comply with all applicable federal, State, Tribal, and local environmental regulations. 3. Aquifer Injection and Injection Wells are not allowed except when used exclusively for Heating/Cooling Exchange Wells. 1-1-112 . Mitigation 1. Unless any provision of a Groundwater Management Area established pursuant to Section 1-1-109 of this Ordinance specifically requires Mitigation for any of the following categories of Appropriation Rights, Mitigation is not required for Appropriation of: a. Redundant or Substitute Wells pursuant to Section 2-2-115 of this Ordinance; b. Stock Water Allowances pursuant to Section 2-2-116 of this Ordinance; c. Domestic Allowances pursuant to Section 2-2-117 of this Ordinance; d. Heating/Cooling Exchange Wells pursuant Section to 2-2-119 of this Ordinance; e. Temporary Emergency Appropriations pursuant to Section 2-2-120 of this Ordinance; or f. Short-term uses of an Appropriation Right pursuant to Sections 2-2-121 and 2-2-122 of this Ordinance. 2. Mitigation is not required for Appropriation of Flathead System Compact Water Pursuant to 2-2-118 of this Ordinance. 3. Any Appropriation Right that results in a Net Depletion of either surface water or Groundwater shall offset the entire Net Depletion that results in adverse effect to any Appropriator through the use of Mitigation pursuant to a Mitigation Plan. 4. An adverse effect to a Wetland Protective Appropriation Right recognized in Article III.C.1.f of the Compact or a Wetland Protective Appropriation Right issued pursuant to Section 2-2-123 of this Ordinance that requires Mitigation shall include, but is not limited to, a water supply alteration that would cause: a. reductions of the Wetland boundary in excess of the normal range of variability in water; or b. unnatural Wetland plant community change. 5. A Mitigation Plan must include: a. a plan of use for the proposed Appropriation Right for which the Mitigation Plan is required; b. an identification of the location, volume, and timing (by monthly or more frequent time step as determined by the Engineer) of the adverse effect to be mitigated; c. if necessary, evidence that an application for a Change in Use has been submitted; d. the amount of water reallocated through exchange or substitution that is required to mitigate the adverse effect; e. evidence that the water for Mitigation is legally and physically available; f. evidence of how the Mitigation Plan will offset the Net Depletion in a manner that will offset any adverse effect to any Appropriator; and g. evidence that the necessary water quality permits, if any, have been applied for pursuant to the Tribal Water Quality Management Ordinance. 6. No applicant for an Appropriation Right shall be required to provide more Mitigation than the quantity needed to offset the adverse effects of that proposed new Appropriation Right on any Appropriator. 7. Compliance with a Mitigation Plan and proof of any water quality permit(s) issued pursuant to the Tribal Water Quality Management Ordinance, if applicable, must be included as a written condition on any Appropriation Right or Change in Use authorization that is conditioned on Mitigation. 8. If compliance with a Mitigation Plan or any applicable water quality permit(s) issued pursuant to the Tribal Water Quality Management Ordinance ceases or terminates, the holder of the Appropriation Right conditioned on compliance with the Mitigation Plan shall immediately notify the Office of the Engineer, and use of the Appropriation Right shall be suspended immediately until a new Mitigation Plan is approved and implemented pursuant to this Ordinance. 1-1-113 . Codification, Severability and Defense. 1. The provisions of this Ordinance are severable, and a finding of invalidity of one or more provisions hereof shall not affect the validity of the remaining provisions. 2. This Ordinance is intended to function in conjunction with the legislation adopted by the Confederated Salish and Kootenai Tribes pursuant to Tribal approval of the Confederated Salish and Kootenai Tribes-Montana Compact and the Montana Water Use Act of 1973 to effectuate Unitary administration and Management on the Flathead Indian Reservation. Should those portions of the parallel Tribal Legislation be amended by subsequent legislation without contemporaneous and materially identical State amendment to this Ordinance, this Ordinance shall govern the use of waters within the Reservation, irrespective of the amended provisions of Tribal law, until such time as the laws of the Tribes and the State are rendered mutually consistent. Similarly, should this Ordinance be amended without contemporaneous and materially identical amendment of the provisions adopted into Tribal law, those pre-existing provisions of Tribal law shall govern the use of waters within the Reservation, irrespective of the amended provisions, until such time as the laws of the Tribes and the State are rendered mutually consistent. 3. Any amendment to this Ordinance that is approved by the Tribes, the State and the Secretary is pursuant to, and shall not be deemed a modification of, the Compact. 4. The State adopts this Ordinance only after concluding its provisions are lawful. Should the legality of the Ordinance, or parallel Tribal legislation, or any provision thereof be challenged in any court, the parties shall use their best effort jointly to defend the enforceability of the Ordinance, the parallel Tribal legislation and each of the respective provisions. 1-1-114 . Effective Date. This Ordinance and each provision hereof according to its terms shall take on the Effective Date of the Compact. PART 2 - UNITARY ADMINISTRATION AND MANAGEMENT 1-2-101 . Purpose. The purpose of this Part is to establish the processes applicable to all surface and Groundwater use within the exterior boundaries of the Flathead Indian Reservation. 1-2-102 . Establishment and Composition of the Water Management Board. Pursuant to Article IV.I of the Compact, the Water Management Board is established. 1-2-103 . Qualifications of Board Members. As set forth in Article IV.I.2.f of the Compact: 1. A Board member shall be over 18 years of age. 2. A Board member shall be a Reservation resident, which means, for the purposes of filling a position on the Board, an individual who: a. does business within Flathead Indian Reservation boundaries; b. is domiciled within Flathead Indian Reservation boundaries; or c. owns and maintains a seasonal residence within Flathead Indian Reservation boundaries. 3. No elected official of the State of Montana, or any political subdivision thereof, or of the United States, or of the Tribes is eligible for nomination to the Board while holding such elective office. However, a nominee for Board membership shall not be disqualified by reason of the fact that he or she is an employee or contractor of the State of Montana or any political subdivision thereof, or of the Tribes, or of the United States. 4. A Board member shall have education and experience in one or more of the following fields: natural resources management, public administration, agriculture, engineering, commerce or finance, hydrology, biological sciences, water law or water policy. 5. No Board member may vote on any application or appeal that the member participated in personally and substantially in any non-Board capacity. 1-2-104 . Public Meetings and Records. As set forth in Article IV.I.7 of the Compact: 1. Notwithstanding any other provisions of law, the Board is a public agency for purposes of the applicability of State and Tribal right to know laws. 2. All regular and special meetings of the Board, including all hearings conducted by the Office of the Engineer or the Board pursuant to the provisions of Chapter 2 Part 2, and Chapter 3 of this Ordinance, shall be open to the observation of the general public pursuant to State and Tribal open meeting laws. Where there is a conflict of laws, the law that provides for greater openness to the public applies. 3. Where no more specific notice provisions are set forth in this Ordinance, notice of any meeting, including a draft agenda, shall be provided to the public in a manner and on a timeframe consistent with the criteria set forth in State and Tribal law. Where there is a conflict of laws, the law that provides for earlier notice shall apply. 4. The Board shall keep the following records: a. minutes of all meetings; b. recordings of all hearings conducted by the Board or the Office of the Engineer pursuant to the provisions of Chapter 2 Part 2, and Chapter 3 of this Ordinance; c. all documents filed with or generated by the Board or the Office of the Engineer pursuant to this Ordinance; d. any other records required by applicable provisions of State or Tribal law, provided that if there is a conflict of laws, the law that provides for more expansive record retention shall apply. 5. All Board records are public records and shall be made available to the public for inspection under such reasonable terms and conditions as the Board shall establish. 1-2-105 . Compensation and Expenses of the Board. As set forth in Article IV.I.2.h of the Compact, each Board member shall receive such compensation for services and reimbursement for expenses for attendance at Board meetings as shall be fixed by the State and the Tribal Council for the Board members appointed by the same. The compensation for the fifth Board member shall set jointly by the State and the Tribal Council. The compensation and expenses of the Federal ex officio member shall be paid by the United States. 1-2-106 . Quorum and Voting of the Board. As set forth in Article IV.I.3 of the Compact, four voting members of the Board shall constitute a quorum. No Board action may be voted upon in the absence of a quorum. All Board decisions shall be by affirmative vote of a majority of the Board. If a proposal put to a vote of a quorum of Board members ends in a tie vote, the proposal, or matter under consideration is deemed disapproved or denied. 1-2-107 . Powers and Duties of the Board. 1. The Board shall have those powers and duties set forth in Article IV.I.4 and 5 of the Compact and in this Ordinance, including those powers necessary and proper to carry out all Board responsibilities as set forth in the Compact and this Ordinance. 2. As set forth in the Compact, the Board shall have exclusive jurisdiction to resolve any controversy as between the Parties or between or among holders of Appropriation Rights and Existing Uses on the Reservation over the meaning and interpretation of the Compact and this Ordinance. 1-2-108 . Technical Assistance to the Board and the Engineer. The NRD and the DNRC shall, within the limits of their respective expertise and resources, and when so requested by the Board or the Office of the Engineer, collect, compile, and analyze information related to waters of the Reservation, their use, and the Works associated with their use, and produce reports and provide technical assistance and advice to the Board or the Office of the Engineer. 1-2-109 . Qualifications of the Water Engineer. 1. The Water Engineer shall be a professional in one or more of the following water resources or management related fields: a. water resources management; b. hydrology; c. hydrogeology; d. environmental science; e. business or public administration; f. biological science; g. civil engineering; h. environmental engineering; or i. law. 2. The Water Engineer shall have a minimum of a bachelor's degree with 10 years of increasingly responsible experience, including three years of management experience, or a master's degree with seven years of increasingly responsible experience, including three years of management experience, or an appropriate combination of education and experience. 3. The Water Engineer shall have the skill to deal with a diverse and sometimes contentious public. 4. The Water Engineer shall have the ability to: a. successfully manage the water resources staff; b. provide technical assistance to the Board; and c. act as a hearings officer and document decisions and orders in writing. 1-2-110 . Duties of the Engineer. The Engineer shall be an employee of the Board and shall exercise the duties set forth in the Compact and this Ordinance, and as assigned by the Board pursuant to the Compact and this Ordinance. These duties include, but are not limited to: 1. The administration of water rights on the Reservation, and the enforcement of the terms of this Ordinance and the conditions of all Appropriation Rights, determinations, orders, regulations, plans, policies, guidelines, and other actions taken by the Engineer or the Board, pursuant to the Compact and this Ordinance; 2. Coordination with the Project Manager, as far as practicable, of the operations of the FIIP with the administration and enforcement of water rights outside of the FIIP; 3. The supervision and management of Staff; and 4. The development and submission to the Board of budget requests for approval by the Board and forwarding to the Tribes and State for the purpose of securing necessary appropriations. 1-2-111 . Immunity from Suit. Members of the Board, the Engineer, any Designee, any Water Commissioner appointed pursuant to Section 3-1-114 of this Ordinance, and any Staff shall be immune from suit for damages arising from the lawful discharge of an official duty associated with the carrying out of powers and duties set forth in the Compact or this Ordinance relating to the authorization, administration or enforcement of water rights on the Reservation. 1-2-112 . Filing Fees. A filing fee shall be paid at the time an application is filed with the Office of the Engineer under Section 2-1-107 , 2-2-104 , 2-2-115 , 2-2-116 , 2-2-117 , 2-2-118 , 2-2-119 , 2-2-123 , or 2-2-124 of this Ordinance. The amount of the fee shall be the same as the fee charged by DNRC for the same type of application under State law, as those fees may be modified from time to time by the DNRC. The Board shall post notice of the applicable amount of these fees at the Office of the Engineer and on the Board's website. CHAPTER II WATER USE PART 1 - GENERAL PROVISIONS 2-1-101 . Registration of Uses of the Tribal Water Right in Existence as of the Effective Date of the Compact. 1. Pursuant to Article III.C.1.b of the Compact, the Tribes, each Tribal Member, and each Allottee who claims to have an Existing Use of waters of the Reservation which is part of the Tribal Water Right shall file a registration of Existing Use of the Tribal Water Right with the Engineer. Uses of the Tribal Water Right for which abstracts are appended to this Compact, including uses on the FIIP, are exempt from this registration requirement. 2. Historically irrigated allotments with serviceable delivery systems that are held by individuals and in trust by the United States, and are not served by the FIIP, shall be eligible to be registered pursuant to the provisions of Sections 2-1-101 et seq. of this Ordinance even if such allotments are not being irrigated on the Effective Date of the Compact. 3. The NRD shall provide assistance to the Tribes, Tribal Members, and Allottees in preparing registrations of Existing Uses of the Tribal Water Right for filing. 4. No Tribal Member or Allottee may exercise, for the same water use, both a registration of Existing Use of the Tribal Water Right and a Water Right Recognized Under State Law. 2-1-102 . Process for Registration of Existing Use of the Tribal Water Right. 1. The Tribes, Tribal Members, and Allottees claiming a use of water that falls under the terms of Section 2-1-101 of this Ordinance shall, within five years of the Effective Date of this Ordinance, file a Registration Form with the Board documenting the registration of Existing Use of the Tribal Water Right and identifying: a. the rate and volume of water used; b. the source of supply for the use; c. the point of diversion by legal land description; d. the place of use by legal land description; e. the period of use; f. the period of diversion; g. the place of storage (if applicable); h. the capacity of storage (if applicable); i. the purpose; and j. the means of diversion. 2. Upon receipt, the Board shall transmit the Registration Form to the Office of the Engineer. 3. Upon receipt of the Registration Form, the Office of the Engineer shall review the Registration Form within 180 days and may either issue a Registration Certificate or return a defective Registration Form to the filer, together with the reasons for returning it. Upon receiving a corrected Registration Form, the Office of the Engineer has 90 days from the certified receipt of the corrected Registration Form to issue a Registration Certificate or reject the registration. If the Office of the Engineer neither issues a Registration Certificate nor rejects the registration within the initial 180 day review period, the Registration Form shall be deemed approved and the Board shall issue a Registration Certificate. If the Office of the Engineer neither issues a Registration Certificate nor rejects the registration within 30 days of certified receipt of a corrected Registration Form, the Registration Form shall be deemed approved and the Board shall issue a Registration Certificate. 4. Any Person filing a Registration Form or a corrected Registration Form with the Office of the Engineer pursuant to subsections (1) and (3) of this Section who is dissatisfied with the rejection of that corrected Registration Form by the Office of the Engineer pursuant to subsection (3) of this Section may appeal that rejection to the Board by filing a notice of appeal to the Board within 30 days of the rejection of the corrected Registration Form. To be filed, a notice must be placed in the custody of the Board within the time fixed for filing. Filing may be accomplished by mail addressed to the Board, but filing shall not be timely unless the papers are actually received within the time fixed for filing. Immediately upon receipt by the Board, the notice of appeal shall be date stamped. 5. Any appeal to the Board filed pursuant to subsection (4) of this Section shall be conducted pursuant to the provisions of Section 3-1-104 of this Ordinance. 2-1-103 . Fee for Filing Registration of Existing Use of the Tribal Water Right. The Board shall not charge a fee for the processing of registrations or corrected registrations of Existing Uses of the Tribal Water Right. 2-1-104 . Tribal Member and Allottee Entitlements Pursuant to 25 U.S.C. Section 381. All Tribal Members' and Allottees' entitlements pursuant to 25 U.S.C. Section 381 are hereby recognized and confirmed. The attributes of these entitlements shall be defined through either: 1. the process set forth in Section 2-1-101 et seq. of this Ordinance, if the Tribal Member or Allottee with an entitlement pursuant to 25 U.S.C. Section 381 also has a use of water eligible for the registration process set forth in those sections of this Ordinance; or 2. by applying for a New Appropriation as provided in Section 2-2-101 et. seq. of this Ordinance or by applying to develop a use of Flathead System Compact Water as provided in Section 2-2-118 of this Ordinance, if the Tribal Member or Allottee with an entitlement pursuant to 25 U.S.C. Section 381 does not have a use of water eligible for the registration process set forth in Section 2-1-101 et seq. of this Ordinance. 2-1-105 . Tribal, Tribal Member and Allottee Challenge of a Registration Certificate Issued by the Office of the Engineer. The Tribes, Tribal Members, and Allottees may seek judicial review of any final decision by the Board pursuant to Section 2-1-102 (4) of this Ordinance by filing a petition for judicial review with the Tribal Court of the Tribes within 30 days of the issuance of the final Board decision. In considering the petition, the Board's legal conclusions shall be reviewed for correctness and its factual findings for abuse of discretion. 2-1-106 . Registration of Certain Other Previously Unrecorded Existing Uses. Persons who have Existing Uses on the Reservation as of the effective date of this Ordinance shall register such Existing Uses with the Board if those uses: 1. Were not required to be filed, pursuant to 85-2-222 , MCA, and in fact were not filed as claims in the Montana General Stream Adjudication for a pre-1973 use of water arising under State law; or 2. Were developed on or after July 1, 1973, at a volume and flow rate that would qualify as an exception to the permit requirements of 85-2-306 , MCA, and for which a notice of completion of Groundwater development (DNRC Form 602) or an application for provisional permit for completed Stock Water pit or reservoir (DNRC Form 605) was filed with the DNRC but not processed by the DNRC. 3. Were developed after July 1, 1973, at a volume and flow rate that would qualify as an exception to the permit requirements of 85-2-306 , MCA, and for which a notice of completion of Groundwater development (DNRC Form 602) or an application for provisional permit for completed Stock Water pit or reservoir (DNRC Form 605) was not filed with the DNRC. 2-1-107 . Process for Registration of Certain Other Previously Unrecorded Existing Uses. 1. Each Person claiming an Existing Use of water that falls under the terms of Section 2-1-106 of this Ordinance shall, within 180 days of the effective date of this Ordinance, file a Registration Form with the Board documenting that the Existing Use is for a purpose and with a flow rate and volume that falls within the terms of Section 2-1-106 , and identifying: a. the date of first use of the water; b. the source of supply for the use; c. the point of diversion by legal land description; d. the place of use by legal land description; and e. the period of use. 2. Within 30 days of the Effective Date, the DNRC shall transmit to the Board all filed but not processed completion notices (DNRC Form 602 or 605) it has received for water uses excepted from the permitting requirements of State law developed within the boundaries of the Reservation after August 22, 1996. The transmission of these notices shall constitute compliance with Section 2-1-107 (1) of this Ordinance for those uses eligible for registration pursuant to Section 2-1-106 (2) of this Ordinance. No additional fee shall be required for the processing of the forms transmitted by the DNRC. 3. Upon receipt, the Board shall transmit the Registration Form to the Office of the Engineer. 4. Upon receipt of the Regis

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