Unless the context requires and clearly states otherwise, in these rules:

(1) "Appropriation facility" means a system including structures used to divert, impound, or withdraw water from a watercourse and convey water for a beneficial use.

(2) "Board" means the board of natural RESOURCES AND CONSERVATION provided for in Title 2, chapter 15, part 33.

(3) "Chronically dewatered watercourse" means a watercourse or portion of a watercourse identified by the department pursuant to section 85-2-150, MCA.

(4) "Department" means the department of natural RESOURCES AND CONSERVATION provided for in Title 2, chapter 15, part 33.

(5) "Director" means the director of the department or his/her designee.

(6) "Natural overflow" means the water which results in the flooding of lands adjoining streams during high flow with no man-made diversion involved.

(7) "Operator" means the owner or any other person having a right, title, or other interest in an appropriation facility or is responsible for the management of the appropriation facility.

(8) "Owner" means the individual, association, partnership, corporation, state agency, political subdivision, the United States or any agency thereof, or any other entity having a water right or interest in an appropriation facility.

(9) "Suitable controlling device" means a headgate or other adjustable structure to regulate the amount of water diverted from a watercourse. The suitable controlling device must be capable of being closed completely and to adequately vary the amount of water diverted into a ditch, canal, pipeline or other conveyance system.

(10) "Suitable measuring device" means a structure, gauging station or meter that determines the amount of water being diverted into an appropriation facility. The suitable measuring device may be integrated and be a part of a suitable controlling device or it may be separate. Plans and/or specifications of measuring devices must be approved by the department prior to installation. The suitable measuring device must be capable of measuring one hundred twenty five per cent (125%) of the flow rate of the appropriative or reserved water right. The measuring device must be located as close as is reasonably possible to the point of diversion from the watercourse.

(11) "Water measurement program" means the program established by the 1991 legislature through HB 908 and codified in 85-2-113(4) , 85-2-150, and 85-1-602, MCA. The purpose of the program is to more closely manage water uses from chronically dewatered watercourses.

(12) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It does not include ditches, culverts, or other manmade waterways.

(13) "Water spreading" means surface flood irrigation involving the diversion of occasional (flood or runoff) surface water from natural, usually nonperennial, watercourses by means of dams, dikes, or ditches, or a combination of these. It differs from conventional irrigation because it is totally dependent on and regulated by the availability of water, not crop needs.

(1) The owner or operator of an appropriation facility on a watercourse or portion of a watercourse identified as chronically dewatered by the department pursuant to 85-2-150, MCA, must have a properly maintained suitable measuring device as part of the appropriation facility. The appropriation facility must also have a suitable controlling device to regulate the amount of water diverted from the watercourse. The appropriation facility must have a suitable controlling device and measuring device operational no later than two years after department identification of the watercourse or portions of the watercourse as chronically dewatered.

(2) If the board specifically finds that the installation of suitable controlling and measuring devices along the entire watercourse or portion of watercourse is not practical within the two (2) year deadline, it may establish a later deadline pursuant to ARM 36.13.103.

(3) Notice of an order issued under this rule must be pursuant to ARM 36.13.107.

The board may establish a deadline for acquiring and installing measuring devices beyond two (2) years from the department's identification of a chronically dewatered watercourse or portion of a watercourse for the following circumstances:

(1) The board may consider an extension of the deadline for installation of measuring devices on a watercourse or portion of a watercourse identified by the department as chronically dewatered if the owners of at least fifty per cent (50%) of the appropriation facilities or the owners of twenty (20) appropriation facilities, whichever is less, petition the board to establish a deadline beyond two (2) years from the department's identification of a watercourse or portion of a watercourse as chronically dewatered. The petition must be accompanied by a written justification addressing the finding that must be made by the board. The petition must be received by the board at least one hundred eighty (180) days prior to the ordered deadline. The board must approve or deny the extension within ninety (90) days of receiving the petition. The board may extend the deadline by a maximum of two (2) years. The board's finding must be made from information presented by petitioners and participants at a scheduled board meeting.

(a) At a minimum the board must find:

(i) The two (2) year deadline is not practical for at least fifty per cent (50%) of the appropriation facilities.

(ii) Installation of measuring devices is not practical because of factors including the availability of materials, labor and construction equipment, the time period necessary to obtain permits and to finance, acquire, and install controlling and measuring devices.

(iii) The public welfare will not be negatively impacted by an extended deadline because:

(A) there are no significant adverse environmental impacts; and

(B) there are no adverse effects on the quality of water for existing beneficial uses.

(2) An owner or owners of an individual appropriation facility on an identified watercourse may request an extension of a deadline for installation of measuring devices. The request for extension must be presented to the board at least one hundred eighty (180) days prior to the ordered deadline. The board will determine if an extension is to be granted and if so will specify a length of the extension. The board may request the department to investigate the request and report its findings to the board. Additional requests for individual extensions may be considered by the board. Reasons for an individual extension will be limited to:

(a) extreme health or financial circumstances;

(b) circumstances beyond the owners control which delay any necessary permits from being obtained; or

(c) an owner who takes possession of the appropriation facility with insufficient time to acquire and install controlling and measuring devices before the established deadline.

(3) The board may extend the deadline for having a suitable controlling device and measuring device installed on an appropriation facility which is not currently used because the land to which the water is applied is contracted under a state or federal conservation set-aside program or the existing water right is leased pursuant to 85-2-436, MCA or the existing water right has a temporary change pursuant to 85-2-407, MCA. However the appropriation facility must have a suitable controlling and measuring device before it can be put into service. It is the responsibility of the owner or operator of the appropriation facility to request the board to consider an extension of the deadline.

(4) The board may extend the deadline for having a suitable measuring device for an established instream water right for a beneficial use dependent upon an appropriation facility on an identified chronically dewatered watercourse or portion of a watercourse. If there are no junior water rights or a measuring device will probably not help to solve the chronically dewatered condition or resolve conflicts among water right holders, an extension of the deadline may be granted by the board. The owner or owners of an instream water right must request an extension from the board. The extension will be for up to two (2) years. Additional requests for extensions may be considered by the board.

(a) Instream water rights for livestock drinking directly from a watercourse and waterspreading and natural overflow irrigation rights will not be required to have a measuring device.

(5) A one (1) year extension of the deadline for acquiring and installing measuring devices may be granted by the board for the owner or owners of appropriation facilities who are consolidating diversions or ditches.

(6) The board must place a notice of consideration of an extension in the legal section and paid advertisement of a newspaper of general circulation in the area of the identified watercourse or portion of watercourse. The notice shall be made at least thirty (30) days before the date of a scheduled board meeting. Actual advertisement costs must be paid by the owners or operators requesting an extension.

(7) Notice of an order issued under this rule must be pursuant to ARM 36.13.107.

(1) The department may verify to the extent possible, owner compliance with the requirement for suitable controlling and measuring devices.

(2) Entry upon land to verify compliance may be made pursuant to 85-2-115, MCA.

(3) Penalties for violating, refusing, or neglecting to comply with these rules or a board order are defined in 85-2-122, MCA.

(1) Complaints alleging a violation of these rules or a board order shall be submitted to the board, the department, and the alleged violator in a written affidavit.

(2) The alleged violator will respond in writing to the board, the department, and the complainant within ten (10) days of receiving the complaint.

(3) The department may investigate the complaint and report its findings to the board in writing.

(4) Only complaints regarding the installation, operation, and/or maintenance of a controlling or measuring device will be considered. Complaints regarding the validity of the water rights, property rights, and/or easements will not be considered.

(1) To improve the management of a watercourse or portion of watercourse identified by the department as chronically dewatered, the owners or operators of appropriation facilities and/or the owners or operators of instream water rights which require a measuring device will record and report to the department or another designated entity water measurements at reasonable intervals determined by the department after consultation with the affected owners or operators.

(1) Upon action by the board establishing a deadline or granting an extension of time, the department shall prepare a notice containing the facts pertinent to the order and shall publish the notice once in a newspaper of general circulation in the area of the identified watercourse.

(2) Before the date of publication, the department shall serve the notice by first-class mail upon:

(a) appropriators of water according to the records of the department who may be affected by the board action.

(b) any purchaser under contract for deed, as defined in 70-20-155, MCA, of the property that may be affected by the board action.

(c) any other person or agency the department feels may be interested in or affected by the board action.

(3) The department shall file in its records proof of service by affidavit of the publisher in the case of notice by publication and by its own affidavit in the case of service by mail.