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Committee hears bill to reinstate voluntary "waiver of adverse effect" for water-right applications
Summary
Senate Bill 190 would reinstate a previously expired option allowing a water-right holder to voluntarily waive consideration of their right in an adverse-effect review for certain permit and change applications; proponents said it provides flexibility, opponents were not present.
Senate Bill 190 would reinstate a statutory waiver of adverse effect for water-right permit and change applications, allowing a water-right holder to voluntarily exclude their right from the DNRC's adverse‑effect assessment during an application review.
Senator (sponsor) introduced the bill as a reinstatement of a provision that existed from Oct. 1, 2017, through Sept. 30, 2023, and that was removed by a sunset. Anna Pakenham Stevenson, water division administrator at the Department of Natural Resources and Conservation, said the bill was developed by a multi‑stakeholder working group and would simplify the application process when the waiver is provided.
"This bill allows a water user to voluntarily, right from consideration in that adverse effect assessment," Pakenham Stevenson said, and she added that DNRC would still be required to evaluate legal availability for permits under existing statutes.
Clayton Elliott of Montana Trout Unlimited, a member of the stakeholder group, said the waiver has been used in prior cases to help craft mitigation and creative solutions for constrained water supplies and that reinstating it would provide flexibility to applicants and affected users.
Committee members asked whether the waiver could be rescinded after it had been granted; proponents and DNRC staff said it could not be rescinded later. Clayton Elliott said the waiver applies at the moment a permit or change application is considered and cannot be taken back after the decision is made. DNRC staff noted that statutory responsibilities to evaluate legal availability and to protect priority water rights remain in place even when a waiver is provided.
Proponents included municipal, agricultural and water-rights organizations that had served on the working group; no opponents testified at the hearing. Several committee members asked technical questions about potential downstream effects, transfers, and protections for future water-right holders; DNRC staff recommended consulting a water-rights attorney for specific legal questions about long-term consequences.
Why it matters: The waiver is designed to make certain permitting and change processes more flexible and to encourage voluntary mitigation arrangements among water-right holders in areas where water supply is constrained. Restoring the waiver could affect how mitigation and water-right negotiations occur in Montana.
What’s next: The hearing closed with several members expressing support; no final committee vote was recorded during the hearing.
