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Show 458 MONTANA face waters are not subject to appropriation, but may be captured by landowners on their lands across or through which such waters occa- sionally flow without regard to the law of appropriation and priority.96 4. Ground Water In 1961 the Montana legislature enacted a new law governing the appropriation and regulation of ground water.97 Administration of the act was originally placed in the State engineer, but subsequently was transferred to the Montana Water Resources Board, and by the Executive Reorganization Act of 1971, to the Division of Water Re- sources.98 The administrator is authorized and directed to compile in- formation, make investigations and surveys to enable him to carry out the provisions of the law,99 to regulate the use of ground water to prevent waste and contamination,100 to ascertain and find priorities of rights,101 to designate controlled ground water areas,102 and in such areas to provide for limiting withdrawals to the safe annual yield 103 and to grant or deny permits to appropriate.104 Ground water is defined by law as any fresh water under the sur- face of the land including the water under the bed of any stream, lake, reservoir, or other body of surface water.105 Excluded from the administrator's jurisdiction within controlled areas is fresh, brackish, or saline water produced in association with oil or gas withdrawals, the production of which is under the prior jurisdiction of the Montana Oil and Gas Conservation Commission.106 "Ground water areas" are defined as areas which, as nearly as known facts permit, may be designated so as to inclose a single and distinct body of ground water, described both horizontally and vertically.107 Areas of controlled ground water use may be designated in a ground water area where withdrawals are, or are likely to be, in excess of recharge or where significant disputes regarding priorities and amounts of use exist.108 Within a controlled area the administra- tor may limit withdrawals by orders requiring appropriators to cease excessive withdrawals in reverse order of their priority of rights, and he may enforce his orders through suits for injunction.109 Any person desiring to appropriate ground water in a controlled area must first obtain a permit from the administrator.110 No permit may be granted if the proposed withdrawal would be beyond the capacity of the aquifer or aquifers in the ground water area to yield water 88 Boney v. Beatty, 124 Mont. 41, 220 P. 2d 77 (1950). 07 Sees. 89-2911 to 89-2936, Repl. vol. 6 (part 1), R.C.M., 1947, as amended (1971 supp.). 98 Sec. 89-2911, Repl. vol. 6 (part 1), R.C.M., 1947 ; see p. 2, n. 2, supra. 99 Sec. 89-2933, Repl. vol. 6 (part 1), R.C.M., 1947. *» Sec. 89-2926, Repl. vol. 6 (part 1), R.C.M., 1947. 101 Sec. 89-2916, Repl. vol. 6 (part 1), R.C.M., 1947. 102 Sec. 89-2914, Repl. vol. 6 (part 1), R.C.M., 1947. *» Sec. 89-2915, Repl. vol. 6 (part 1), R.C.M., 1947. io* Sec. 89-2918, Repl. vol. 6 (part 1), R.C.M., 1947. 105 Sec. 89-2911, Repl. vol. 6 (part 1), R.C.M., 1947 (1971 supp.). 108 Sec. 89-2916, Repl. vol. 6 (part 1). R.C.M.. 1947. iot Sec. 89-2911 (g), Repl. vol. 6 (part 1). R.C.M., 1947. M8iSec. 89-2914, Repl. vol. 6 (part 1), R.C.M. 1947. 109 Sec. 89-2915, Repl. vol. 6 (part 1), R.C.M., 1947. 110 Sec. 89-2918, Repl. vol. 6 (part 1), R.C.M., 1947. |