85-2-439. (Temporary) Upper Clark Fork River basin instream flow pilot program. (1) The department shall accept and process change applications from a person in accordance with 85-2-402 for the purpose of leasing or temporarily changing existing water rights to maintain and enhance streamflows to benefit the fishery resource in the Upper Clark Fork River basin, as defined in 85-2-335. The application must:
     (a) include specific information on the length and location of the stream reach in which the streamflow is to be maintained or enhanced; and
     (b) provide a detailed streamflow measuring plan that describes the points where and the manner in which the streamflow must be measured.
     (2) The applicant shall pay all costs associated with installing measuring devices, measuring flows, and providing measurement records according to the measurement plan required in subsection (1).
     (3) The maximum quantity of water that may be changed to maintain and enhance streamflows to benefit the fishery resource is the amount historically diverted. However, only the amount historically consumed may be used to maintain or enhance streamflows to benefit the fishery resource below the existing point of diversion.
     (4) The department may modify or revoke a change approval if an appropriator other than an appropriator described in subsection (5) proves by a preponderance of the evidence that the appropriator's water right is adversely affected.
     (5) A person issued a water use permit with a priority of appropriation after the date of filing an application for change under this section may not object to the change approval, the use of the appropriation right according to the terms of the change approval, or the reversion of the appropriation right to its previous use.
     (6) The priority of appropriation for a right to maintain and enhance streamflows to benefit the fishery resource under this section is the same as the priority of appropriation of the right approved for change.
     (7) Neither a change in appropriation right nor any other approval is required for the reversion of the appropriation right to its previous use.
     (8) Only the owner of the water right may seek enforcement of the change authorization or object under 85-2-308.
     (9) The Upper Clark Fork River basin steering committee shall complete and submit to the governor and the legislature by December 31, 2004, a report evaluating the effects of all change approvals issued to maintain and enhance streamflows to benefit the fishery resource under this section. The report must:
     (a) consider the effects upon other water right holders, tax values and revenue, fisheries, recreation, water quality, and other economic, social, and environmental effects; and
     (b) include recommendations to terminate, continue, enlarge, or otherwise modify the pilot program.
     (10) Nothing in this section authorizes the sale of an appropriation right to maintain or enhance streamflows. (Terminates June 30, 2005--sec. 14, Ch. 487, L. 1995.)

     History: En. Sec. 6, Ch. 487, L. 1995.