Chapter 93 Oregon Laws 2003

AN ACT

HB 2456

Relating to allocation of conserved water; creating new provisions; amending ORS 537.460, 537.463, 537.465, 537.470 and 537.485; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 537.460 is amended to read:

537.460. (1) The Legislative Assembly finds and declares that conservation and efficient utilization of water benefits all water users, provides water to satisfy current and future needs through reduction of consumptive waste, improves water quality by reducing contaminated return flow, prevents erosion and allows increased in-stream flow; and

(2) It is therefore declared to be the policy of the State of Oregon to:

(a) Aggressively promote conservation;

(b) Encourage the highest and best use of water by allowing the sale or lease of the right to the use of conserved water; and

(c) Encourage local cooperation and coordination in development of conservation [proposals] projects to provide incentives for increased efficiency and to improve streamflows.

(3) As used in this section, “efficient utilization” means use without waste, upgrading of irrigation equipment to comply with modern practices within a reasonable time period or other methods used to meet both current and future water needs at the least cost.

SECTION 2. ORS 537.463 is amended to read:

537.463. The provisions of ORS 537.455 to 537.500 establish a voluntary program and apply only to those persons who choose to [submit a conservation proposal] apply for an allocation of conserved water under ORS 537.465.

SECTION 3. ORS 537.465 is amended to read:

537.465. (1) Any person or group of persons holding [one or more water right certificates issued under ORS 537.250, 537.630 or 539.140 or decrees may submit a conservation proposal] a water use subject to transfer as defined in ORS 540.505 may submit an application to the Water Resources Commission for approval of an allocation of conserved water for a measure that:

(a) The person or group of persons intends to implement; or

(b) Was implemented by the person or group of persons within five years prior to the submission of the application.

(2) [A conservation proposal submitted under subsection (1)] An application submitted under subsection (1)(a) of this section shall include:

(a) A description of the proposed measures;

(b) A description of the existing diversion facilities and an estimate of the amount of water that can be diverted at the facilities;

(c) The amount of water [which] that will be needed to supply [the] existing rights after implementation of the conservation measures;

(d) The amount of conserved water expected from implementation of the conservation measures;

(e) The proposed allocation and use of the conserved water if different from the allocation specified in ORS 537.470;

(f) The intended use of any water allocated to the applicant; [and]

(g) The applicant’s choice of priority date for the conserved water; and

[(g)] (h) Any other information the commission considers necessary to evaluate the effectiveness of the proposal.

(3) An application under subsection (1)(b) of this section shall include:

(a) A description of the measure as implemented and the date on which the measure was implemented;

(b) A description of the diversion facilities before the conservation measure was implemented and the amount of water that was diverted at the facilities before the conservation measure was implemented;

(c) The amount of water needed to supply existing rights after implementation of the conservation measure;

(d) The amount of water conserved by implementing the conservation measure;

(e) The proposed allocation and use of the conserved water if different from the allocation specified in ORS 537.470;

(f) The intended use of any water allocated to the applicant;

(g) The applicant’s choice of priority date for the conserved water;

(h) Evidence that the measure was implemented within five years prior to the date of filing the application; and

(i) Any other information the commission considers necessary to evaluate the application.

[(3)] (4) If a person proposes conservation measures within the boundaries of an irrigation district organized under ORS chapter 545 or a water control district organized under ORS chapter 553, at the time the person submits the [proposal] application, the person also must submit evidence that the district has approved the conservation [proposal] application.

SECTION 4. ORS 537.470 is amended to read:

537.470. (1) Upon receipt of [a conservation proposal] an application for allocation of conserved water under ORS 537.465, the Water Resources Commission shall give notice of receipt of the [proposal] application in accordance with ORS 540.520 (5).

(2) The commission shall allocate conserved water as provided in subsection (3) of this section and approve modifications of water rights as provided in subsection (6) of this section. The commission may not allocate conserved water pursuant to an application under ORS 537.465 if the application is filed more than five years after the conservation measure was implemented.

(3) After determining the quantity of conserved water, if any, required to mitigate the effects on other water rights, the commission shall allocate 25 percent of the remaining conserved water to the state and 75 percent to the applicant, unless the applicant proposes a higher allocation to the state or more than 25 percent of the funds used to finance the conservation measures comes from federal or state public sources. If more than 25 percent of the funds used to finance the conservation measures comes from federal or state public sources and is not subject to repayment, the commission shall allocate to the state a percentage equal to the percentage of public funds used to finance the conservation measures and allocate to the applicant a percentage equal to the percentage of other funds used to finance the conservation measures. If the commission determines that the water allocated to the state is necessary to support in-stream flow purposes in accordance with ORS 537.332 to 537.360, the water shall be converted to an in-stream water right. If the water allocated to the state is not necessary to support in-stream flow purposes, it shall revert to the public for appropriation by the next user in priority. In no event, however, shall the applicant receive less than 25 percent of the remaining conserved water unless the applicant proposes a higher allocation to the state.

(4) The commission shall notify the applicant and any other person requesting notice, of the action the commission intends to take under subsection (3) of this section. Any person objecting to the proposed allocation may file a protest requesting a contested case hearing before the commission.

(5) The modification of water rights under [a conservation proposal shall] an allocation of conserved water may not require a separate request for transfer under ORS 540.520.

(6) After the commission completes the allocation of conserved water under subsection (3) of this section, the commission shall issue orders for proposed new certificates covering the changes in the original water rights. Once the conservation project is completed, separate new certificates preserving the previously established priority of rights shall be issued to cover the unaffected portion of the water rights and separate new certificates indicating the priority of rights as set forth in ORS 537.485 shall be issued to cover the right to the use of the allocated water.

SECTION 5. ORS 537.485 is amended to read:

537.485. (1) Notwithstanding any other provision of ORS chapter 536, 537, 538, 539, 540, 541, 542 or 543, the priority of any right to the use of conserved water, including an in-stream water right, under [a proposal] an application submitted and approved by the Water Resources Commission under ORS 537.465 and 537.470 shall be either the same as or one minute after the priority of the water right held by the person implementing the conservation measures.

(2) A person who implements a conservation measure may choose the priority of the water right for the conserved water in accordance with subsection (1) of this section. However, the priority date chosen must be the same for the portion of water allocated to the applicant and the portion of water allocated to the state.

SECTION 6. The amendments to ORS 537.460, 537.463, 537.465, 537.470 and 537.485 by sections 1 to 5 of this 2003 Act apply to applications for allocations of conserved water submitted on or after July 1, 2003.

SECTION 7. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

Approved by the Governor May 24, 2003

Filed in the office of Secretary of State May 27, 2003

Effective date May 24, 2003

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