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(1) An appropriator wishing to temporarily lease a water right pursuant to 85-2-427, MCA, must file an application to temporarily lease an appropriation right (Form 650). An application may only be filed by the owner of the water right as recorded in the department's water rights records.

(2) A place of use may not be retired for lease purposes more than two years within any consecutive ten-year period, though that place of use may have multiple water rights that could be leased separately.

(3) The applicant must provide evidence that the water right has been used within the five years prior to the date an application is filed. Evidence of use under this subsection includes, but is not limited to the following:

(a) dated photographs or aerial imagery demonstrating irrigation at the place of use;

(b) notarized affidavit(s); or

(c) power bills, if the conveyance system includes a pump.

(4) The department will use the following standards for consumptive use when reviewing applications for temporary leases:

(a) for irrigation, consumptive volume may not exceed 1.0 acre-foot per acre irrigated as defined in 85-2-427(2), MCA;

(b) for domestic use by one household, consumptive use is 0.1 acre-foot per year based on ten percent of 1.0 acre-foot per year of water for year-round use;

(c) for lawn and garden, shrubbery, and shelterbelts, consumptive use is 1.5 acre-feet per acre per year based on 60 percent of 2.5 acre-feet per acre per year;

(d) for stockwater, consumptive use is 15 gallons per day or 0.017 acre-foot per year per animal unit based on ARM 36.12.115. Animal unit equivalencies for water consumption are set out in ARM 36.12.101 and the water conversion table, Form No. 615; and

(e) other consumptive uses not covered in this subsection will be determined by the department.

(i) An application for consumptive uses not set forth in (4)(a) through (d) must include a completed waiver of timelines form signed by the applicant.

(ii) The department will make a determination with regard to consumptive uses not set forth in (4)(a) through (d) within 90 days of the date the application is received.

(5) An application must include a written narrative addressing the applicant's plan to prevent potential adverse effects to existing water rights, certificates, permits, and water reservations, including any mitigation to prevent adverse effect.

(a) The applicant's plan must demonstrate:

(i) the operation of the proposed lease will not exceed historic use, including flow rate, historic diverted volume, and historic consumptive volume; and

(ii) the proposed lease is capable of being implemented and operated to prevent adverse effect.

(b) The applicant's plan must document the effects to other water rights including the following:

(i) water rights using the same point of diversion;

(ii) other ditch users;

(iii) the effect to water rights dependent on the return flow; and

(iv) the effects of changing the historic diversion pattern including rate and timing of depletions.

(c) The applicant's plan must describe any mitigation that will be used to prevent adverse effect to existing water rights, certificates, permits, and water reservations.

(6) If the approved temporary lease is for two years and the years are not consecutive, the applicant must notify the department in writing prior to the commencement of the second year of the lease.

History: 85-2-113, 85-2-427, MCA; IMP, 85-2-427, MCA; NEW, 2013 MAR p. 1344, Eff. 7/26/13.

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