85-2-145. Removal of natural obstruction to exercise water right -- consent or court ruling required. (1) A person who owns a water right but cannot exercise the right because a natural obstruction on another person's property prevents the flow of the water shall, in writing, seek consent from the landowner to remove the natural obstruction.
(2) The water right owner may remove the natural obstruction if the landowner consents in writing and the water right owner complies with applicable laws and regulations.
(3) If the landowner does not consent in writing to the removal of the natural obstruction, the water right owner may seek a declaration from district court that the removal of the natural obstruction would not harm the landowner and is necessary for the water right owner to exercise the water right.
(4) In seeking a district court declaration, the water right owner shall:
(a) agree to pay all costs of the removal;
(b) show that the utility of the landowner's property would not be lessened;
(c) show that the landowner would not incur additional, uncompensated burdens from the removal of the natural obstruction; and
(d) agree to comply with applicable laws and regulations.
(5) The landowner may present evidence showing that the removal is not necessary for the water right owner to exercise the right or that the provisions of subsection (4) could not be met if the removal is permitted.
(6) The court shall determine if the removal of the natural obstruction:
(a) is necessary for the water right owner to exercise the right; and
(b) would meet the provisions of subsection (4).
(7) If the court permits the removal, the court may require any conditions to ensure that the provisions of subsection (4) are met.
(8) The court may award court costs and attorney fees.
(9) Removal of a natural obstruction under this section does not impair any existing right of the landowner.
History: En. Sec. 1, Ch. 408, L. 2013.
Structure Montana Code Annotated
Chapter 2. Surface Water and Ground Water
85-2-101. Declaration of policy and purpose
85-2-103. Measurement of water
85-2-105. Water policy interim committee duties
85-2-106. through 85-2-110 reserved
85-2-113. Department powers and duties
85-2-114. Judicial enforcement
85-2-117. Water right records for filing with local clerk and recorder
85-2-118. through 85-2-120 reserved
85-2-121. Administrative proceedings
85-2-123. Deposit of fees and penalties
85-2-124. Costs and fees for environmental impact statements
85-2-125. Recovery of costs and attorney fees by prevailing party
85-2-126. through 85-2-130 reserved
85-2-131. Application for change of watercourse name
85-2-132. Change of watercourse name -- public notice
85-2-133. Change of watercourse name -- hearing
85-2-134. Change of watercourse name -- judgment to be filed with county clerk
85-2-135. through 85-2-140 reserved
85-2-141. Water leasing program
85-2-142. through 85-2-144 reserved
85-2-145. Removal of natural obstruction to exercise water right -- consent or court ruling required
85-2-146. through 85-2-149 reserved
85-2-150. Chronically dewatered watercourse -- identification
85-2-151. through 85-2-153 reserved