85-2-408. Temporary change authorization for instream flow -- additional requirements. (1) The department shall accept and process an application for a temporary change in appropriation rights to maintain or enhance instream flow to benefit the fishery resource under the provisions of 85-2-402, 85-2-407, and this section. 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 point where and the manner in which the streamflow must be measured.
     (2) (a) A temporary change authorization under the provisions of this section is allowable only if the owner of the water right voluntarily agrees to:
     (i) change the purpose of a consumptive use water right to instream flow for the benefit of the fishery resource; or
     (ii) lease a consumptive use water right to another person for instream flow to benefit the fishery resource.
     (b) For the purpose of this subsection (2), "person" means and is limited to an individual, association, partnership, or corporation.
     (3) In addition to the requirements of 85-2-402 and 85-2-407, an applicant for a change authorization under this section shall prove by a preponderance of evidence that:
     (a) the temporary change authorization for water to maintain and enhance instream flow to benefit the fishery resource, as measured at a specific point, will not adversely affect the water rights of other persons; and
     (b) the amount of water for the proposed use is needed to maintain or enhance instream flows to benefit the fishery resource.
     (4) The department shall approve the method of measurement of the water to maintain and enhance instream flow to benefit the fishery resource through a temporary change authorization as provided in this section.
     (5) Only the owner of the water right may seek enforcement of the temporary change authorization or object under 85-2-308.
     (6) A temporary change authorization under this section does not create a right of access across private property or allow any infringement of private property rights.
     (7) 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, or a smaller amount if specified by the department in the lease authorization, may be used to maintain or enhance streamflows to benefit the fishery resource below the existing point of diversion.

     History: En. Sec. 1, Ch. 322, L. 1995; amd. Sec. 6, Ch. 85, L. 2005.