Mont. Code Ann. » TITLE 85. WATER USE · CHAPTER 2. SURFACE WATER AND GROUND WATER · Part 3. Appropriations, Permits, and Certificates of Water Rights
Montana Code Annotated

Mont. Code Ann. § 85-2-343 (2026)

Basin Closure -- Exceptions

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 85
  3. CHAPTER 2
  4. Part 3
  5. 85-2-343 Basin closure -- exceptions

TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 3. Appropriations, Permits, and Certificates of Water Rights

Basin Closure -- Exceptions

85-2-343. Basin closure -- exceptions. (1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not grant an application for a permit to appropriate water or for a reservation to reserve water within the upper Missouri River basin until the final decrees have been issued in accordance with part 2 of this chapter for all of the subbasins of the upper Missouri River basin.

(2) The provisions of subsection (1) do not apply to:

(a) an application for a permit to appropriate ground water if the applicant complies with the provisions of 85-2-360;

(b) an application for a permit to appropriate water for a nonconsumptive use;

(c) an application for a permit to appropriate water for:

(i) domestic use from surface water or pursuant to 85-2-306;

(ii) stock use; or

(iii) use of surface water by or for a municipality;

(d) an application to store water during high spring flows;

(e) an application for a permit to use water from the Muddy Creek drainage, which drains to the Sun River, if the proposed use of water will help control erosion in the Muddy Creek drainage;

(f) an application submitted pursuant to 85-20-1401, Article VI;

(g) temporary emergency appropriations, including for emergency fire training and emergency fire-related operations, as provided for in 85-2-113(3); or

(h) an application for a permit 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 Title 75, chapter 10, part 7.

(3) A permit issued to conduct remedial actions or aquatic resource activities under subsection (2)(h) may not be used for dilution.

(4) A change of use authorization for changing the purpose of use may not be issued for any permit issued pursuant to subsection (2)(b), (2)(c), (2)(e), (2)(g), or (2)(h).

History: En. Sec. 2, Ch. 385, L. 1993; amd. Sec. 455, Ch. 418, L. 1995; amd. Sec. 1, Ch. 441, L. 1997; amd. Sec. 15, Ch. 213, L. 2007; amd. Sec. 11, Ch. 391, L. 2007; amd. Sec. 5, Ch. 264, L. 2017.

Notes of Decisions
Cited in 3 cases (1 in the last 5 years), 2006–2025 · leading case: Montana Trout Unlimited v. Montana Dep't of Nat. Resources & Conservation, 2006 MT 72 (Mont. 2006).
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Montana Trout Unlimited v. Montana Dep't of Nat. Resources & Conservation, 2006 MT 72 (Mont. 2006). · cites it 58× “" Section 85-2-343, MCA. The legislature provided for several exceptions to the general ban on processing or granting applications.”
Lohmeier v. State, Montana Dep't of Nat. Resources & Conservation, 2008 MT 307 (Mont. 2008). · cites it 10× “Section 85-2-343, MCA (2005). Municipal use was one of those exceptions: (1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not process or grant an application for a permit to appropriate water or for a reservation to…”
Trout Unlimited v. DNRC, 2025 MT 1 (Mont. 2025). · cites it 2× “In Diamond Cross Props, the lower court understood what this Court refuses to face; that is, the ground water produced in mining operations dwarfs the amounts of water that might constitute de minimis exceptions to State regulatory review.”
— Mont. Code Ann. § 85-2-343(1) — 1 case
Montana Trout Unlimited v. Montana Dep't of Nat. Resources & Conservation, 2006 MT 72 (Mont. 2006). “" Section 85-2-343, MCA. The legislature provided for several exceptions to the general ban on processing or granting applications.”
— Mont. Code Ann. § 85-2-343(2)(a) — 1 case
Montana Trout Unlimited v. Montana Dep't of Nat. Resources & Conservation, 2006 MT 72 (Mont. 2006). “" Section 85-2-343, MCA. The legislature provided for several exceptions to the general ban on processing or granting applications.”
— Mont. Code Ann. § 85-2-343(2)(c) — 1 case
Lohmeier v. State, Montana Dep't of Nat. Resources & Conservation, 2008 MT 307 (Mont. 2008). “Section 85-2-343, MCA (2005). Municipal use was one of those exceptions: (1) As provided in 85-2-319 and subject to the provisions of subsection (2) of this section, the department may not process or grant an application for a permit to appropriate water or for a reservation to…”
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