36.13.103    EXTENSION OF DEADLINE FOR INSTALLATION

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.

History: Sec. 85-2-113, MCA; IMP, Sec. 85-2-113, MCA; NEW, 1993 MAR p. 561, Eff. 4/16/93.