71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2699
B-Engrossed
Senate Bill 644
Ordered by the House May 25
Including Senate Amendments dated May 2 and House Amendments
dated
May 25
Sponsored by Senator R BEYER; Representative LEE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Permits Water Resources Commission to establish, by rule,
expedited notice and waiting period requirements for substitution
of supplemental ground water right for primary water right during
drought. Allows water right holder to enter into option or
agreement { - , at any time prior to declaration of drought
emergency, - } to use existing permit or right during certain
drought periods. Provides that, after approval of { - option or
agreement - } { + application + } by commission, holder of
option or agreement may use transferred right to replace water
not available to holder because of drought.
{ + Modifies aspects of water right subject to transfer by
adding type of use. Limits temporary transfers of place of use,
point of diversion, point of appropriation and type of use to
maximum of five years.
Modifies existing provisions allowing transfers of place of use
within districts. Adds type of use to aspects of right subject to
temporary transfer within district. Reduces maximum length of
transfer from five years to one irrigation season. Provides that
use of water at new, temporary, place of use and old place of use
in same irrigation season or calendar year is prohibited.
Authorizes civil and criminal penalties for using transferred
right in both locations.
Modifies provisions dealing with permanent transfers of place
of use within districts. Provides civil penalties for failure of
district to comply with requirements applicable to permanent
transfers within district. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to water rights; creating new provisions; amending ORS
536.750, 536.770, 536.900, 540.523, 540.570, 540.580 and
540.990; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 536.750 is amended to read:
536.750. (1) Notwithstanding any provision of ORS chapters 536
to 543A, after a declaration that a severe, continuing drought
exists, the Water Resources Commission may:
(a) Issue without first conducting a hearing under ORS 537.170,
a temporary permit for an emergency use of water;
(b) Allow a temporary change in use, place of use or point of
diversion of water without complying with the notice and waiting
requirements under ORS 540.520;
(c) Notwithstanding the priority of water rights, grant
preference of use to rights for human consumption or stock
watering use;
(d) Waive the notice requirements under ORS 537.753 and the
report required under ORS 537.762; { - and - }
(e) Allow a temporary exchange of water without giving notice
as required under ORS 540.535 { + ; and
(f) Utilize an expedited notice and waiting requirement
established by rule for the substitution of a supplemental ground
water right for a primary water right under drought conditions in
place of the notice and waiting requirement provided in ORS
540.524 + }.
(2) The commission by rule may establish procedures for
carrying out the provisions of this section and a schedule of
fees that must accompany a request under subsection (1) of this
section.
SECTION 2. ORS 536.770 is amended to read:
536.770. (1) The Water Resources Commission { - , - }
{ + or + } a local government { + , + } { - or - } public
corporation { + or water right holder + } may purchase an option
or enter an agreement to use an existing permit or water right
{ - , for the purpose of distribution for any beneficial use - }
during the time in which a severe, continuing drought is declared
to exist.
{ + (2) A local government, public corporation or water right
holder proposing to purchase an option or enter an agreement
under this section shall submit to the commission an application
accompanied by the fee required under ORS 536.050 (1)(a).
(3) After approval of the application by the commission,
the + }
{ - The commission, local government or public corporation
holding such an - } option or agreement { + user + }:
(a) Is not required to construct any diversion or appropriation
facilities or works;
(b) May use the water acquired under the option or agreement on
property or for a use different than allowed in the permit or
water right { + transferred under the option or agreement + },
if the water is used to replace water not available to the local
government { + , + } { - or - } public corporation { + or
water right holder + } because of the drought; and
(c) May begin use at any time after approval by the commission
so long as the total use by the water right or permit holder and
the option or agreement user is within the rate, volume and
seasonal limits of the permit or water right.
{ - (2) The local government or public corporation proposing
the option or agreement shall submit to the commission an
application accompanied by the fee required under ORS 536.050
(1)(a). - }
SECTION 3. ORS 540.523 is amended to read:
540.523. (1) In accordance with the provisions of this section,
any person who holds a water use subject to transfer may request
that the Water Resources Department approve { + , for a period
not to exceed five years:
(a) + } The temporary transfer of place of use and, if
necessary to convey water to the new temporary place of use,
temporarily change the point of diversion or point of
appropriation { - for a period not to exceed five years - }
{ + ; and
(b) The temporary transfer of the type of use identified in a
right to store water + }.
{ + (2) + } An application for a temporary transfer shall:
(a) Be submitted in writing to the Water Resources Department;
(b) Be accompanied by the appropriate fee for a change in the
place of use as set forth in ORS 536.050;
(c) Include the information required under ORS 540.520 (2); and
(d) Include any other information the Water Resources
Commission by rule may require.
{ - (2) - } { + (3) + } Notwithstanding the notice and
waiting requirements under ORS 540.520, the department shall
approve by order a request for a temporary transfer under this
section if the department determines that the temporary transfer
will not injure any existing water right.
{ - (3) - } { + (4) + } All uses of water for which a
temporary transfer is allowed under this section shall revert
automatically to the terms and conditions of the water use
subject to transfer upon expiration of the temporary transfer
period.
{ - (4) - } { + (5) + } The time during which water is used
{ + or stored + } under an approved temporary transfer order
{ - shall - } { + does + } not apply toward a finding of
forfeiture under ORS 540.610.
{ - (5) - } { + (6) + } The department may revoke a prior
approval of the temporary transfer at any time if the department
finds that the transfer is causing injury to any existing water
right.
{ - (6) - } { + (7) + } Any map that may be required under
subsection { - (1) - } { + (2) + } of this section need not be
prepared by a certified water right examiner.
{ - (7) - } { + (8) + } The lands from which the water
right is removed during the period of a temporary transfer shall
receive no water under the transferred water right.
{ - (8) - } { + (9) + } When an application for a temporary
change of the place of use for a primary water right is submitted
in accordance with this section, the applicant also shall
indicate whether the land described in the application has an
appurtenant supplemental water right or permit. If the applicant
also intends to temporarily transfer the supplemental water right
or permit, the applicant also shall include the information
required under ORS 540.520 (2) for the supplemental water right
or permit. If the applicant does not include the supplemental
water right or permit in the temporary transfer application, the
Water Resources Department shall notify the applicant that the
supplemental water right or permit will be canceled before the
department issues the order approving the temporary transfer of
the primary water right, unless within 30 days the applicant
modifies the application to include the supplemental water right
or permit or withdraws the application. The department may
approve the temporary transfer of the supplemental water right or
permit in accordance with the provisions of this section. The
department { - shall - } { + may + } not approve the
temporary transfer of a supplemental water right or permit if the
temporary transfer would result in enlargement of the original
water right or injury to an existing water right. If the
department approves the temporary transfer of the primary water
right but does not approve the temporary transfer of the
supplemental water right or permit, the department shall notify
the applicant of the department's intent not to allow the
temporary transfer of the supplemental water right or permit
before the department issues the order for the temporary transfer
of the primary water right. If the department does not allow the
temporary transfer of the supplemental right, the supplemental
right shall remain appurtenant to the land described in the
application, but may not be exercised until the primary right
reverts to the original water use. If the primary water right
does not revert soon enough to allow use of water under the
supplemental right within five years, the supplemental right
shall become subject to cancellation for nonuse under ORS
540.610.
{ - (9) - } { + (10) + } In issuing an order under
subsection { - (2) - } { + (3) + } of this section, the
department shall include any condition necessary to protect other
water rights.
SECTION 4. ORS 540.570 is amended to read:
540.570. (1) { - Upon compliance with subsection (2) of this
section, - } { + Provided that the proposed transfer complies
with all of the provisions of this subsection and will not result
in injury to any existing water right, + } a district { + with a
manager + } may { + , for one irrigation season, + } temporarily
transfer the place of use of water appurtenant to any land within
the legal boundaries of the district { - , - } to an equal
acreage elsewhere within the legal boundaries of that
district { + or temporarily transfer the type of use identified
in a right to store water. A temporary transfer of the place of
use may occur if:
(a) The rate and duty, and the total number of acres to which
water will be applied under the transfer, do not exceed existing
limits on the water use subject to transfer;
(b) The type of use authorized under the water use subject to
transfer remains the same; and
(c) The land from which the water use is being transferred does
not receive any water under the right being transferred during
the irrigation season in which the change is made + }.
(2) When a district or an owner or an owner's agent within a
district who is subject to the charges or assessments of the
district wishes to use water on alternate acreage within the
district, if the district has approved the owner's request, the
district shall { - notify the Water Resources Department of
that intent at least 60 days before the beginning of irrigation
deliveries for the season or March 1, whichever is earlier. The
notice shall contain a statement that each landowner affected by
a temporary transfer has authorized the transfer in a writing on
file with the district. - }
{ - (3) The department may deny the request to use water on
the alternate acreage if such use would interfere with existing
water rights or result in enlargement of the water right. If the
department fails to deny the request to use water on alternate
acreage within 60 days after receipt of the request, the
department's approval shall be considered to have been
granted. - }
{ - (4) The Water Resources Commission by rule may require
that a district maintain or submit documentary evidence,
including maps, of the lands from which and to which water is to
be applied temporarily under this section. - }
{ - (5) A temporary transfer may be approved under this
section for a period not to exceed five years. - } { + submit
to the Water Resources Department a petition seeking a temporary
transfer under this section. The district shall submit the
petition prior to making the proposed change. The petition may
contain changes to one or more tax lots within the district and
shall:
(a) Include the information required under ORS 540.574 (3);
(b) Be accompanied by a map in a form satisfactory to the
department and certified by the district. If the water right is
on a tract of land of five acres or less, the assessor's tax map
with a notation of the acres of water right shall be sufficient
for identification of the tract and place of use;
(c) Include a statement that a written authorization for the
transfer from each landowner affected by the particular temporary
transfer is on file with the district;
(d) Include any other information required by rules of the
Water Resources Commission; and
(e) Include a fee in the amount required under ORS 536.050
(1)(i).
(3) The district shall notify each affected landowner that the
department may reject the transfer or may require mitigation to
avoid injury to other water rights. Upon receipt of a completed
petition under subsection (2) of this section, the department
shall place a summary of the petition in the weekly notice
published by the department. The department shall accept written
public comments on the petition following publication of the
weekly notice. The department shall consider comments that
pertain to the potential for injury to an existing water right or
to the enlargement of the water use subject to transfer in
determining whether to condition, reject or revoke a temporary
transfer.
(4) Use of water on lands from which the right is transferred
and in the new temporary location during the same irrigation
season or calendar year is prohibited and may subject the
district and the landowner to civil penalties. + }
{ - (6) - } { + (5) + } The department may condition { + ,
reject + } or revoke a temporary transfer at any time to the
extent necessary to avoid injury if the department finds the
transfer is causing injury to an existing water right.
{ - (7) - } { + (6) + } Upon expiration of the temporary
transfer period, all uses of water for which a temporary transfer
is allowed under this section shall revert automatically to the
terms and conditions of the original water right permit,
certificate or { - an - } adjudication { - proceeding - }
under ORS chapter 539 as evidenced by a court decree.
{ - (8) - } { + (7) + } The time during which water is used
under an approved temporary transfer order { - shall - }
{ + does + } not apply toward a finding of forfeiture under ORS
540.610.
SECTION 5. ORS 540.580 is amended to read:
540.580. (1) In accordance with this section, a district may by
petition request that the Water Resources Department approve the
permanent transfer of the place of use of water within a district
{ - , so - } { + as + } long as the proposed transfer complies
with all of the following:
(a) The rate, duty and total number of acres to which water is
to be applied under the water use subject to transfer are not
exceeded;
(b) The use authorized under the water use subject to transfer
remains the same;
(c) The change in place of use will not result in injury to any
existing water right; and
(d) The land from which the water right is removed by the
transfer shall receive no water under the transferred right.
(2) A district { - may submit a petition for a permanent
transfer - } { + electing to petition the department under
subsection (1) of this section shall file a petition + } prior to
or subsequent to the change in place of use, but no later than
the end of the calendar year in which the change occurs. The
petition submitted by the district may include an unlimited
number of transfers within the same petition. A petition under
this section shall:
(a) Include the information required under ORS 540.574 (3),
except for the statement that a notice under ORS 540.572 (2) has
been given;
(b) Be accompanied by a map in a form satisfactory to the
department and certified by the district. If the water right is
on a tract of land of five acres or less, the assessor's tax map
with a notation of the acres of water right shall be sufficient
for identification of the tract and place of use;
(c) Include a statement that each landowner affected by a
permanent transfer has authorized the transfer in { - a - }
writing that is on file with the district;
(d) Include any other information required by rules of the
Water Resources Commission; and
(e) Include the fee required under ORS 536.050 (1)(h) for a
change in the place of use.
(3) If a district allows a change in the place of use of water
before obtaining the approval of the department, the district
shall:
(a) Notify each affected landowner that the change is subject
to the approval of the department and that the department may
reject the transfer or may require mitigation to avoid injury to
other water right holders; { - and - }
(b) Notify the department in advance of the change. The notice
shall include:
(A) The name of the district and the certificate number of each
water right that is the subject of the change;
(B) The names of the users within the district from whose lands
and to whose lands water rights are to be transferred;
(C) A general description of the users' lands by township,
range, quarter quarter section and tax lot number, and of the
water right, for each parcel from which and to which water rights
are to be transferred; and
(D) A description of the use that is proposed to be made of the
water on each parcel { + ; and
(c) File a petition with the department, as provided under
subsection (2) of this section + }.
(4) Upon receipt of the notice required under subsection (3)(b)
of this section, the department shall provide public notice in
the weekly notice published by the department.
(5) If a district allows a change in the place of use of water
before obtaining approval of the department under this section,
the department may direct the district to cease delivery of water
or mitigate injury where the change in place of use is causing
injury to an existing water right.
(6) Within 15 days after the filing of a petition under
subsection (2) of this section, the department shall include
notice of the petition in the weekly notice published by the
department. Within 30 days after the mailing of the department's
weekly notice, any potentially affected holder of an existing
water right may file, jointly or severally, with the department,
a protest against approval of the petition.
(7) Subject to the provisions of subsection (8) of this
section, whenever a timely protest is filed, or in the opinion of
the Water Resources Director a hearing is necessary to determine
whether the proposed changes as described in the petition would
result in injury to existing water rights, the department may
hold a hearing on the petition. Notice and conduct of the hearing
shall be according to the provisions of ORS 183.310 to 183.550
pertaining to contested cases, shall be scheduled within 45 days
after the filing of the petition, and shall be held in the area
where the rights are located unless all parties and persons who
filed a protest under this subsection stipulate otherwise.
(8) If a water user within the district files a protest
claiming injury to a water right delivery by the district, no
contested case hearing shall be required, but the district shall
resolve the matter directly with the water user.
(9) After examination or hearing, the department shall issue an
order approving the transfer if the proposed change can be
effected without injury to existing water rights. If no hearing
is scheduled under subsection (7) of this section, the order of
the department shall be issued within 90 days after the date of
the filing of the petition. If the proposed change cannot be
effected without injury to existing water rights, the department
may condition approval, including requiring mitigation of the
effects on other water rights, to the extent necessary to avoid
injury. If a hearing is scheduled, the department shall issue a
final order within 120 days after scheduling the hearing.
(10) Within 20 days after the director issues a final order
under this section, the district or any protestant may file with
the commission exceptions to the final order. The commission
shall issue an order granting or denying the exceptions within 30
days after receiving the exceptions.
(11) If a certificate covering the water right has been
previously issued, the department may amend the certificate or
may cancel the certificate and issue a new 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. A certificate as amended or issued
under this section has the evidentiary effect provided for in ORS
537.270 as to the new lands except when the right to appropriate
water described in the certificate is abandoned after the
certificate is amended or issued.
(12) Notwithstanding the provisions of subsection (2) of this
section, a petition filed on or before December 31, 1996, may
include all changes in place of use allowed by a district after
July 1, 1992, and before November 30, 1996.
SECTION 6. ORS 536.900 is amended to read:
536.900. (1) In addition to any other liability or penalty
provided by law, the Water Resources Commission may impose a
civil penalty on a person for any of the following:
(a) Violation of any of the terms or conditions of a permit,
certificate or license issued under ORS chapters 536 to 543A.
(b) Violation of ORS 537.130 or 537.535.
(c) Violation of any rule or order of the Water Resources
Commission that pertains to well maintenance.
(d) Violation of ORS 540.045, 540.145, 540.210, 540.310,
540.320, 540.330, 540.340, 540.435, 540.440, { + 540.570 (4),
540.580 (3), + } 540.710, 540.720 and 540.730 or rules adopted
under ORS 540.145.
(2) A civil penalty may be imposed under this section for each
day of violation of ORS 537.130, 537.535, 540.045, 540.310,
540.330, { + 540.570 (4), + } 540.710, 540.720 or 540.730.
(3) In the event the petitioner knowingly misrepresents the map
and petition required in ORS 541.329, the commission may assess a
penalty of up to $1,000 based upon guidelines to be established
by the commission. In addition, the petition and map shall be
amended to correct the error at the petitioner's cost. Affected
users shall be given notice as provided in ORS 541.329 (5).
(4) A civil penalty may not be imposed until the commission
prescribes a reasonable time to eliminate the violation. The
commission shall notify the violator of the time allowed to
correct a violation within five days after the commission first
becomes aware of the violation.
(5) Notwithstanding any term or condition of a permit,
certificate or license, the rotation of the use of water under
ORS 540.150 { - shall - } { + may + } not be considered a
violation under subsection (1) of this section.
SECTION 7. ORS 540.990 is amended to read:
540.990. (1) Violation of any provision of ORS 540.440 is
punishable, upon conviction, by a fine of not less than $25 nor
more than $150, together with the costs and disbursements of the
action, and in default of the payment of the fine and costs, by
confinement in the county jail one day for each $2 thereof.
Justice courts shall have concurrent jurisdiction with the
circuit courts in the trial of all proceedings under this
subsection.
(2) Violation of any provision of ORS { + 540.570 (4), + }
540.710, 540.720 or 540.730, or 540.370 (2), is punishable, upon
conviction, by a fine of not less than $10 nor more than $250, or
by imprisonment in the county jail for not more than six months,
or both. Justice courts shall have concurrent jurisdiction with
the circuit courts in the trial of all violations under this
subsection.
SECTION 8. { + The amendments to ORS 536.900, 540.523,
540.570, 540.580 and 540.990 by sections 3 to 7 of this 2001 Act
apply to petitions for transfers of water use subject to transfer
submitted on or after the effective date of this 2001 Act. + }
SECTION 9. { + This 2001 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2001 Act takes effect on its
passage. + }
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