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Show MONTANA 313 By interlocutory decree awarding an appropriation of water of an adjudi- cated source, the court could prescribe the conditions under which the work necessary to the complete appropriation had to be done and the time within which it had to be completed. Upon full compliance, the court entered its decree establishing the appropriation and fixing the date of priority. This priority date, if the appropriator had been diligent in complying with the court order, was the date of filing the petition, but it could be fixed at a later time if the facts so warranted.35 Procedure for appropriating water: 1973 Montana Water UseAct.-ln 1972, Montana adopted a new State constitution which, among other provisions relating to water rights, declared, "The legislature shall provide for the administration, control, and regulation of water rights and shall establish a system of centralized records, in addition to the present system of local records."36 Pursuant to this provision, in 1973 the Montana Legislature adopted the Montana Water Use Act,37 which substantially altered the existing provisions relating to appropriation and adjudication of water rights.38 Under this new legislation, "After the effective date of this act, a person'39' may not appropriate water'40' except as provided in this act. A person may only appropriate water for a beneficial use."41 "Except as otherwise provided in subsection (4)l421 of this section, a person may not appropriate water or commence construction of diversion, impoundment, withdrawal, or distribu- tion works therefor except by applying for and receiving a permit from the department."43 The Department is the Department of Natural Resources and 35 Mont. Rev. Codes Ann. §89-834 (1964). 36 Mont. Const, art. IX, § 3(4). 37 Mont. Rev. Codes Ann. §89-865 etseq. (Supp. 1973), as amended. 38 Mont. Rev. Codes Ann. §89-801 et seq. (1964). 39 "Person" is defined as "an individual, association, partnership, corporation, state agency, political subdivision, and the United States or any agency thereof." Mont. Rev. Codes Ann. §89-867(11) (Supp. 1973). 40 "Water" means "all water of the State, surface and subsurface, regardless of its character or manner of occurrence, including geothermal water." Id. § 89-867(1). 41 Id. §89-880(1). "Beneficial use" is defined as "a use of water for the benefit of the appropriator, other persons, or the public, including, but not limited to, agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal power, and recreational uses; provided, however, that a use of water for slurry to export coal from Montana is not a beneficial use." Mont. Rev. Codes Ann. §89-867(2) (Interim Supp. 1974). 42 This subsection exempts, from the permit requirements, appropriations of ground water outside the boundaries of controlled ground water areas for which the withdrawal rate is less than 100 gallons per minute. Mont. Rev. Codes Ann. § 89-880(4) (Supp. 1973). Controlled ground water areas are discussed at notes 125-126 infra. 43 Mont Rev. Codes Ann. §89-880(2) (Supp. 1973). A person intending to appropriate water by means of a reservoir must also apply for a permit as prescribed by the Act. Mont. Rev. Codes Ann. § 89-889 (Supp. 1973). (Continued) |