Mont. Code Ann. » TITLE 85. WATER USE · CHAPTER 2. SURFACE WATER AND GROUND WATER · Part 1. General Provisions
Montana Code Annotated

Mont. Code Ann. § 85-2-113 (2026)

Department Powers And Duties

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 85
  3. CHAPTER 2
  4. Part 1
  5. 85-2-113 Department powers and duties

TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 1. General Provisions

Department Powers And Duties

85-2-113. Department powers and duties. (1) The department may prescribe fees or service charges for any public service rendered by the department under this chapter, including fees for the filing of applications or for the issuance of permits and certificates, for rulemaking hearings under 85-2-319, for administrative hearings conducted under this chapter, for investigations concerning permit revocation, for field verification of issued and completed permits, and for all change approvals. There may not be fees for any action taken by the department at the request of the water judge or for the issuance of certificates of existing rights.

(2) The department may adopt rules necessary to implement and carry out the purposes and provisions of this chapter. These rules may include but are not limited to rules to:

(a) govern the issuance and terms of interim permits authorizing an applicant for a regular permit under this chapter to begin appropriating water immediately, pending final approval or denial by the department of the application for a regular permit;

(b) require the owner or operator of appropriation facilities to install and maintain suitable controlling and measuring devices, except that the department may not require a meter on a water well outside of a controlled ground water area or proposed controlled ground water area unless the maximum appropriation of the well is in excess of the limitation contained in 85-2-306;

(c) require the owner or operator of appropriation facilities to report to the department the readings of measuring devices at reasonable intervals and to file reports on appropriations; and

(d) regulate the construction, use, and sealing of wells to prevent the waste, contamination, or pollution of ground water.

(3) The department shall adopt rules providing for and governing temporary emergency appropriations, including for emergency fire training and emergency fire-related operations, without prior application for a permit, necessary to protect lives or property.

(4) (a) The department shall adopt rules to require the owner or operator of an appropriation facility on a watercourse or portions of a watercourse identified as chronically dewatered by the department under 85-2-150 to acquire, install, and maintain a suitable controlling and measuring device no later than 2 years after designation of the watercourse or portions of the watercourse as chronically dewatered, except that when the department specifically finds that the installation of measuring devices along the entire watercourse or portions of the watercourse is not practicable within the 2-year deadline, it may establish a later deadline.

(b) For the purposes of subsection (4), an appropriation facility includes but is not limited to any method used to divert, impound, or withdraw water from a watercourse. Hydroelectric facilities that are using recognized methods of flow measurement, as determined by the department, are in compliance with subsection (4).

History: En. Sec. 5, Ch. 452, L. 1973; amd. Sec. 1, Ch. 238, L. 1974; amd. Sec. 2, Ch. 485, L. 1975; R.C.M. 1947, 89-869; amd. Sec. 1, Ch. 292, L. 1979; amd. Sec. 31, Ch. 697, L. 1979; amd. Sec. 2, Ch. 448, L. 1983; amd. Sec. 2, Ch. 543, L. 1991; amd. Sec. 2, Ch. 805, L. 1991; amd. Sec. 443, Ch. 418, L. 1995; amd. Sec. 2, Ch. 161, L. 2005; amd. Sec. 1, Ch. 264, L. 2017.

Notes of Decisions
Cited in 4 cases (1 in the last 5 years), 1987–2025 · leading case: Clark Fork Coalition v. Montana Wel, 2016 MT 229 (Mont. 2016).
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Clark Fork Coalition v. Montana Wel, 2016 MT 229 (Mont. 2016). · cites it 6× “” Section 85-2-113(2), MCA. Such authority includes whether, in the judgment of the DNRC, a rule other than the reinstated 1987 rule should be implemented.”
Lohmeier v. State, Montana Dep't of Nat. Resources & Conservation, 2008 MT 307 (Mont. 2008). · cites it 3× “Section 85-2-113(2), MCA, delegates authority to the DNRC to “adopt rules necessary to implement and carry out the purposes” of surface and groundwater regulation.”
In Re the Activities of the Dep't of Nat. Resources & Conservation, 740 P.2d 1096 (Mont. 1987). · cites it 3× “Section 85-2-113, MCA. We are aware that Section 85-2-121 provides that the Montana Administrative Procedures Act governs administrative proceedings conducted under Parts 1 through 4 of Title 85, MCA.”
Trout Unlimited v. DNRC, 2025 MT 1 (Mont. 2025). · cites it 2× “Section 85-2-306, MCA, also equips the Department to establish similar exceptions through rules adopted under § 85-2-113, MCA. Section 85-2-306(8), MCA.”
Mont. Code Ann. § 85-2-113(2): 2 cases
Clark Fork Coalition v. Montana Wel, 2016 MT 229 (Mont. 2016). “” Section 85-2-113(2), MCA. Such authority includes whether, in the judgment of the DNRC, a rule other than the reinstated 1987 rule should be implemented.”
Lohmeier v. State, Montana Dep't of Nat. Resources & Conservation, 2008 MT 307 (Mont. 2008). “Section 85-2-113(2), MCA, delegates authority to the DNRC to “adopt rules necessary to implement and carry out the purposes” of surface and groundwater regulation.”
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