Chapter 299 Oregon Laws 2001
AN ACT
SB 870
Relating to water rights;
creating new provisions; and amending ORS 540.530.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 540.530 is amended to read:
540.530. (1)(a)
If, after hearing or examination, the Water Resources Commission finds that [the] a proposed change can be effected without injury to existing water
rights, the commission shall make an order approving the transfer and fixing a
time limit within which the approved changes may be completed. [The time allowed by the Water Resources
Commission for completion of an authorized change shall not be used when
computing a five-year period of nonuse under the provisions of ORS 540.610 (1).]
(b) If, after
hearing or examination, the commission finds that a proposed change in point of
diversion cannot be effected without injury to existing water rights, upon
receipt by the commission of an affidavit consenting to the change from every
holder of an affected water right, the commission may make an order approving
the transfer and fixing a time limit within which the approved changes may be
completed.
(c) If, after hearing or
examination, the commission finds that a proposed change in point of diversion
cannot be effected without injury to an in-stream water right granted pursuant
to a request under ORS 537.336 or an in-stream water right created pursuant to
ORS 537.346 (1), the Water Resources Department may consent to the change only
upon a recommendation that the department do so from the agency that requested
the in-stream water right. The agency that requested the in-stream water right
may recommend that the department consent to the change only if the change will
result in a net benefit to the resource consistent with the purposes of the
in-stream water right.
(d)(A) If an in-stream
water right would be injured by a proposed change under paragraph (c) of this
subsection, the department shall obtain a recommendation from the agency that
requested the in-stream water right. If the recommendation of the agency is to
consent to the change, the department shall provide public notice of the
recommendation and, consistent with state laws regarding cooperation with
Indian tribes in the development and implementation of state agency programs
that affect tribes or rights and privileges of tribes, the department shall
consult with affected Indian tribes.
(B) The recommendation
of an agency under this paragraph must be in writing and, if the recommendation
is to consent to the change, must describe the extent of the injury to the
in-stream water right, the effect on the resource and the net benefit that will
occur as a result of the proposed change. The recommendation may include any
proposed conditions that are necessary to ensure that the proposed change will
be consistent with the recommendation.
(C) In determining
whether a net benefit will result from the proposed change, the recommendation
of an agency must include an analysis of the cumulative impact of any previous
changes under paragraphs (b) and (c) of this subsection that allow injury to the
affected in-stream water right.
(D) A person may comment
on the recommendation of an agency. The comment must be in writing and must be
received by the department within 30 days after publication of notice under
this paragraph. If a written comment received by the department requests a
meeting on the proposed change, the department and the agency that requested
the in-stream water right shall hold a joint public meeting within 90 days of
the receipt of the comment requesting a meeting.
(e)(A) If, after review
of public comments and consultation with the agency that requested the
in-stream water right, the agency that requested the in-stream water right does
not withdraw its recommendation to consent to the change, the department may
approve the change consistent with the requirements of paragraphs (b) and (c)
of this subsection.
(B) An order approving a
change under paragraph (c) of this subsection shall include written findings on
the extent of the injury to the in-stream water right, the effect on the
resource and the net benefit that will occur as a result of the change. The order
shall include any conditions necessary to ensure that the change will be
consistent with the findings and ensure that the change will result in a
continued net benefit to the resource consistent with the purposes of the
in-stream water right.
(C) In determining
whether a net benefit will result from the change, the order of the department
must include an analysis of the cumulative impact of any previous changes
approved under paragraphs (b) and (c) of this subsection that allow injury to
the affected in-stream water right.
(f) The time allowed by
the commission for completion of an authorized change under paragraphs (a) to (e)
of this subsection may not be used when computing a five-year period of nonuse
under the provisions of ORS 540.610 (1).
(2)(a) If a certificate covering the water right has been
previously issued, the commission shall cancel the previous certificate or, if
for an irrigation district, the commission may modify the previous certificate
and, when proper proof of completion of the authorized changes has been filed
with the commission, issue a new certificate or, if for an irrigation district,
modify the previous certificate, preserving the previously established priority
of rights and covering the authorized changes. If only a portion of the water
right covered by the previous certificate is affected by the changes, a
separate new certificate may be issued to cover the unaffected portion of the
water right.
(b) If the change authorized under subsection (1) of this
section is necessary to allow a change in a water right pursuant to ORS
537.348, is necessary to complete a project funded under ORS 541.375, or is
approved by the State Department of Fish and Wildlife as a change that will
result in a net benefit to fish and wildlife habitat, the Water Resources
Department, at the discretion of the Water Resources Director, may waive or
assist the applicant in satisfying any of the proof of completion requirements
of paragraph (a) of this subsection. The assistance provided by the department
may include, but need not be limited to, development of a final proof survey
map and claim of beneficial use.
(3) Upon receiving notification of the merger or
consolidation of municipal water supply entities, or the formation of a water
authority under ORS chapter 450, the commission shall cancel the previous
certificates of the entities replaced by the merger, consolidation or formation
and issue a new certificate to the newly formed municipality or water
authority. The new certificate shall preserve the previously established
priority of rights of the replaced entities and shall allow beneficial use of
the water on any lands acquired in the merger, consolidation or formation.
SECTION 2.
ORS 540.530, as amended by section 1 of this 2001 Act, is amended to read:
540.530. (1)[(a)]
If, after hearing or examination, the Water Resources Commission finds that a
proposed change can be effected without injury to existing water rights, the
commission shall make an order approving the transfer and fixing a time limit
within which the approved changes may be completed.
[(b) If, after
hearing or examination, the commission finds that a proposed change in point of
diversion cannot be effected without injury to existing water rights, upon
receipt by the commission of an affidavit consenting to the change from every
holder of an affected water right, the commission may make an order approving
the transfer and fixing a time limit within which the approved changes may be
completed.]
[(c) If, after
hearing or examination, the commission finds that a proposed change in point of
diversion cannot be effected without injury to an in-stream water right granted
pursuant to a request under ORS 537.336 or an in-stream water right created
pursuant to ORS 537.346 (1), the Water Resources Department may only consent to
the change upon a recommendation that the department do so from the agency that
requested the in-stream water right. The agency that requested the in-stream
water right may recommend that the department consent to the change only if the
change will result in a net benefit to the resource consistent with the
purposes of the in-stream water right.]
[(d)(A) If an
in-stream water right would be injured by a proposed change under paragraph (c)
of this subsection, the department shall obtain a recommendation from the
agency that requested the in-stream water right. If the recommendation of the
agency is to consent to the change, the department shall provide public notice
of the recommendation and, consistent with state laws regarding cooperation
with Indian tribes in the development and implementation of state agency
programs that affect tribes or rights and privileges of tribes, the department
shall consult with affected Indian tribes.]
[(B) The
recommendation of an agency under this paragraph must be in writing and, if the
recommendation is to consent to the change, must describe the extent of the
injury to the in-stream water right, the effect on the resource and the net
benefit that will occur as a result of the proposed change. The recommendation
may include any proposed conditions that are necessary to ensure that the
proposed change will be consistent with the recommendation.]
[(C) In determining
whether a net benefit will result from the proposed change, the recommendation
of an agency must include an analysis of the cumulative impact of any previous
changes under paragraphs (b) and (c) of this subsection that allow injury to the
affected in-stream water right.]
[(D) A person may
comment on the recommendation of an agency. The comment must be in writing and
must be received by the department within 30 days after publication of notice
under this paragraph. If a written comment received by the department requests
a meeting on the proposed change, the department and the agency that requested
the in-stream water right shall hold a joint public meeting within 90 days of
the receipt of the comment requesting a meeting.]
[(e)(A) If, after
review of public comments and consultation with the agency that requested the
in-stream water right, the agency that requested the in-stream water right does
not withdraw its recommendation to consent to the change, the department may
approve the change consistent with the requirements of paragraphs (b) and (c)
of this subsection.]
[(B) An order
approving a change under paragraph (c) of this subsection shall include written
findings on the extent of the injury to the in-stream water right, the effect
on the resource and the net benefit that will occur as a result of the change.
The order shall include any conditions necessary to ensure that the change will
be consistent with the findings and ensure that the change will result in a
continued net benefit to the resource consistent with the purposes of the
in-stream water right.]
[(C) In determining
whether a net benefit will result from the change, the order of the department
must include an analysis of the cumulative impact of any previous changes
approved under paragraphs (b) and (c) of this subsection that allow injury to
the affected in-stream water right.]
[(f) The time allowed
by the commission for completion of an authorized change under paragraphs (a)
to (e) of this subsection may not be used when computing a five-year period of
nonuse under the provisions of ORS 540.610 (1).] The time allowed by the Water Resources Commission for completion of an
authorized change may not be used when computing a five-year period of nonuse
under the provisions of ORS 540.610 (1).
(2)(a) If a certificate covering the water right has been
previously issued, the commission shall cancel the previous certificate or, if
for an irrigation district, the commission may modify the previous certificate
and, when proper proof of completion of the authorized changes has been filed
with the commission, issue a new certificate or, if for an irrigation district,
modify the previous certificate, preserving the previously established priority
of rights and covering the authorized changes. If only a portion of the water
right covered by the previous certificate is affected by the changes, a
separate new certificate may be issued to cover the unaffected portion of the
water right.
(b) If the change authorized under subsection (1) of this
section is necessary to allow a change in a water right pursuant to ORS
537.348, is necessary to complete a project funded under ORS 541.375, or is
approved by the State Department of Fish and Wildlife as a change that will
result in a net benefit to fish and wildlife habitat, the Water Resources
Department, at the discretion of the Water Resources Director, may waive or
assist the applicant in satisfying any of the proof of completion requirements
of paragraph (a) of this subsection. The assistance provided by the department
may include, but need not be limited to, development of a final proof survey
map and claim of beneficial use.
(3) Upon receiving notification of the merger or
consolidation of municipal water supply entities, or the formation of a water
authority under ORS chapter 450, the commission shall cancel the previous
certificates of the entities replaced by the merger, consolidation or formation
and issue a new certificate to the newly formed municipality or water
authority. The new certificate shall preserve the previously established
priority of rights of the replaced entities and shall allow beneficial use of
the water on any lands acquired in the merger, consolidation or formation.
SECTION 3.
The amendments to ORS 540.530 by section
2 of this 2001 Act become operative July 31, 2005.
SECTION 4.
The amendments to ORS 540.530 by section
2 of this 2001 Act do not apply to:
(1) Applications for a
change in point of diversion submitted to the Water Resources Department before
July 31, 2005; or
(2) Changes in points of
diversion approved after the effective date of this 2001 Act and before July
31, 2005.
Approved by the Governor
June 4, 2001
Filed in the office of
Secretary of State June 4, 2001
Effective date January 1,
2002
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