71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 870
Sponsored by Senator NELSON; Representatives JENSON, LEE (at the
request of City of Pendleton)
CHAPTER ................
AN ACT
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.
Enrolled Senate Bill 870 (SB 870-A) Page 1
(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
Enrolled Senate Bill 870 (SB 870-A) Page 2
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
Enrolled Senate Bill 870 (SB 870-A) Page 3
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
Enrolled Senate Bill 870 (SB 870-A) Page 4
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. + }
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Passed by Senate May 3, 2001
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 21, 2001
...........................................................
Speaker of House
Enrolled Senate Bill 870 (SB 870-A) Page 5
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled Senate Bill 870 (SB 870-A) Page 6