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
Senate Bill 644
Sponsored by Senator R BEYER
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 as
introduced.
Prohibits transfer of water rights for agricultural use to
nonagricultural use. Requires Water Resources Commission or Water
Resources Director to determine whether water is available for
appropriation by determining whether water is available for
demands 50 percent of time.
A BILL FOR AN ACT
Relating to water rights; amending ORS 537.170 and 540.510.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 537.170 is amended to read:
537.170. (1) Within 45 days after the Water Resources Director
schedules a contested case hearing under ORS 537.153 (8), the
Water Resources Department shall hold the contested case hearing.
The issues to be considered in the contested case hearing shall
be limited to issues identified by the hearings officer.
(2) Notwithstanding the provisions of ORS 183.310 to 183.550
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 537.153 (5) and who requests to intervene in the contested
case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS 183.310 to
183.550 except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
(4) If applicable, an application to appropriate water for the
generation of electricity submitted under ORS 537.140 shall be
included in the consolidated review and hearings process under
ORS 543.255.
(5) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
(6) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest, the director determines that the proposed use does not
comply with the standards set forth in ORS 543.017 or rules
adopted by the Water Resources Commission under ORS 543.017 or
would otherwise impair or be detrimental to the public interest,
the director shall issue a final order rejecting the application
or modifying the proposed final order to conform to the public
interest. If, after the contested case hearing or, if a hearing
is not held, after the close of the period allowed to file a
protest, the director determines that the proposed use would not
impair or be detrimental to the public interest, the director
shall issue a final order approving the application or otherwise
modifying the proposed final order. A final order may set forth
any of the provisions or restrictions to be included in the
permit concerning the use, control and management of the water to
be appropriated for the project, including, but not limited to, a
specification of reservoir operation and minimum releases to
protect the public interest.
(7) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 537.153 (6) within 14 days after the director issues
the final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in ORS
183.310 to 183.550 for appeal of order other than contested
cases.
(8) If the presumption of public interest under ORS 537.153 (2)
is overcome, then before issuing a final order, the director or
the commission, if applicable, shall make the final determination
of whether the proposed use or the proposed use as modified in
the proposed final order would impair or be detrimental to the
public interest by considering:
(a) Conserving the highest use of the water for all purposes,
including irrigation, domestic use, municipal water supply, power
development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial
purposes, navigation, scenic attraction or any other beneficial
use to which the water may be applied for which it may have a
special value to the public.
(b) The maximum economic development of the waters involved.
(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.
(d) The amount of waters available for appropriation for
beneficial use. { + In considering the amount of waters
available for appropriation for beneficial use, the director or
commission shall consider a source to be overappropriated and
unavailable for appropriation if the quantity of water available
during a specified period is not sufficient to meet the expected
demands from all water rights at least 50 percent of the time
during that period. + }
(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.
(f) All vested and inchoate rights to the waters of this state
or to the use of the waters of this state, and the means
necessary to protect such rights.
(g) The state water resources policy formulated under ORS
536.295 to 536.350 and 537.505 to 537.534.
(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or
protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 2. ORS 540.510 is amended to read:
540.510. (1) Except as provided in subsections (2) to
{ - (8) - } { + (9) + } of this section, all water used in
this state for any purpose shall remain appurtenant to the
premises upon which it is used and no change in use or place of
use of any water for any purpose may be made without compliance
with the provisions of ORS 540.520 and 540.530. However, the
holder of any water use subject to transfer may, upon compliance
with the provisions of ORS 540.520 and 540.530, change the use
and place of use, the point of diversion or the use theretofore
made of the water in all cases without losing priority of the
right theretofore established. A district may change the place of
use in the manner provided in ORS 540.572 to 540.580 in lieu of
the method provided in ORS 540.520 and 540.530. When an
application for change of the use or 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 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 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
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 transfer of the supplemental water
right or permit in accordance with the provisions of ORS 540.520
and 540.530. The department shall not approve the transfer of a
supplemental water right or permit if the transfer would result
in enlargement of the original water right or injury to an
existing water right. If the department approves the transfer of
the primary water right but does not approve the transfer of the
supplemental water right or permit, the department shall notify
the applicant of the department's intent to cancel that portion
of the supplemental water right or permit described in the
transfer application before the department issues the primary
water right transfer order, unless the applicant withdraws the
transfer application within 90 days.
(2) Subject to the limitations in ORS 537.490, any right to the
use of conserved water allocated by the Water Resources
Commission under ORS 537.470 may be severed from the land and
transferred or sold after notice to the commission as required
under ORS 537.490.
(3)(a) Any water used under a permit or certificate issued to a
municipality, or under rights conferred by ORS 538.410 to
538.450, or under the registration system set forth in ORS
537.132, may be applied to beneficial use on lands to which the
right is not appurtenant if:
(A) The water is applied to lands which are acquired by
annexation or through merger, consolidation or formation of a
water authority, so long as the rate and use of water allowed in
the original certificate is not exceeded;
(B) The use continues to be for municipal purposes and would
not interfere with or impair prior vested water rights; or
(C) The use is authorized under a permit granted under ORS
468B.050 or 468B.053 and for which a reclaimed water registration
form has been filed under ORS 537.132.
(b) As used in this subsection, 'municipality' means a city, a
port formed under ORS 777.005 to 777.725, 777.915 to 777.953 and
778.010, a domestic water supply district formed under ORS
chapter 264, a water supplier as defined in ORS 448.115 or a
water authority formed under ORS chapter 450.
(4) Pursuant to the provisions of ORS 540.570, any water used
under a permit or certificate issued to a district may be applied
to beneficial use on lands within the district to which the right
is not appurtenant.
(5) The relocation of a point of diversion as necessary to
follow the movements of a naturally changing stream channel does
not constitute a change in point of diversion for purposes of ORS
540.520 if:
(a) The diversion point stays within 500 feet of the point of
diversion on record with the Water Resources Department;
(b) The change does not move the diversion point upstream or
downstream beyond the diversion point of another appropriator;
and
(c) The diversion is provided with a proper fish screen, if
requested by the State Department of Fish and Wildlife.
(6) In the event that government action results in or creates a
reasonable expectation of a change in the surface level of a
surface water source that impairs or threatens to impair access
to a point of diversion authorized by a water right permit,
certificate or decree, the owner of the water right may change
the point of diversion or add an additional point of diversion in
accordance with the provisions of this section in lieu of
complying with the requirements of ORS 540.520 and 540.530.
Before changing the point of diversion, the water right owner
shall provide written notice of the proposed change to the Water
Resources Department. Within 15 days after receipt of such
notice, the department shall provide notice by publication in the
department's public notice of water right applications. Within 60
days after the department receives notice from the owner, the
Water Resources Director, by order, shall approve the change
unless the director finds the changes will result in injury to
other existing water rights. All other terms and conditions of
the water right shall remain in effect.
(7) The sale or lease of the right to the use of conserved
water under ORS 537.490 does not constitute a change of use or a
change in the place of use of water for purposes of ORS 540.520.
(8) Ground water applied to an exempt use as set forth in ORS
537.141 or 537.545 may be subsequently applied to land for
irrigation purposes under ORS 537.141 (1)(i) or 537.545 (1)(g)
without application for a change in use or place of use under
this section.
{ + (9) Any certificated or decreed water right issued for
agricultural uses may be transferred only to other agricultural
uses. + }
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