72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 2560
A-Engrossed
House Bill 3215
Ordered by the House May 1
Including House Amendments dated May 1
Sponsored by Representative WESTLUND; Representative KNOPP,
Senator CLARNO
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.
{ - Requires point of diversion in transfer from surface
water to ground water appropriation to be from confined aquifer.
Defines confined aquifer. - }
{ + Allows transfer of point of diversion in Deschutes basin
ground water study area under certain circumstances. Allows
return to last authorized surface water point of diversion after
five years.
Directs Water Resources Commission to adopt rules relating to
review of applications. + }
A BILL FOR AN ACT
Relating to water; creating new provisions; and amending ORS
537.211 and 540.531.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 540.531 is amended to read:
540.531. (1) Notwithstanding ORS 537.515 and 537.535, an owner
of a surface water use subject to transfer may apply for a
transfer of the point of diversion to allow the appropriation of
ground water if the proposed transfer complies with the
requirements of subsection (2) { + or (3) + } of this section
and with the requirements for a transfer in point of diversion
specified in ORS 540.520 and 540.530.
(2) The Water Resources Department may allow a transfer of the
point of diversion under subsection (1) of this section if
{ - either - } :
(a)(A) The new point of diversion appropriates ground water
from an unconfined aquifer that is hydraulically connected to the
authorized surface water source;
(B) The proposed change in point of diversion will not result
in enlargement of the original water right or in injury to other
water right holders;
(C) The use of the new point of diversion will affect the
surface water source similarly to the authorized point of
diversion specified in the water use subject to transfer; and
(D) The withdrawal of ground water at the new point of
diversion is located within 500 feet of the surface water source
and, when the surface water source is a stream, is also located
within 1,000 feet upstream or downstream of the original point of
diversion as specified in the water use subject to transfer; or
(b) The new point of diversion is not located within the
distance requirements set forth in paragraph (a)(D) of this
subsection, the holder of the water use subject to transfer
submits to the department evidence prepared by a licensed
geologist that demonstrates that the use of the ground water at
the new point of diversion will meet the criteria set forth in
paragraph (a)(A) to (C) of this subsection.
{ + (3) Notwithstanding subsection (2) of this section, the
department shall allow a transfer of the point of diversion under
subsection (1) of this section in the Deschutes basin ground
water study area if:
(a) The new point of diversion appropriates ground water from
an aquifer that is hydraulically connected to the authorized
surface water source;
(b) The proposed change in the point of diversion will not
result in enlargement of the original water right or in injury to
other water right holders; and
(c) The use of the new point of diversion will affect the
surface water source hydraulically connected to the authorized
point of diversion specified in the water use subject to
transfer. The department may not require that the use of the new
point of diversion affect the surface water source similarly to
the authorized point of diversion specified in the water use
subject to transfer under this subsection. + }
{ - (3) - } { + (4) + } All applicable restrictions that
existed at the original point of diversion shall apply at the new
point of diversion allowed under this section.
{ - (4) - } { + (5) + } The new point of diversion shall
retain the original date of priority. However, if within five
years after approving the transfer, the department finds that the
transfer results in substantial interference with existing ground
water rights that would not have occurred in the absence of the
transfer, the new point of diversion shall be subordinate to any
existing right injured by the transferred water right or permit.
{ - (5) - } { + (6)(a) + } The department shall approve an
application to return to the last authorized surface water point
of diversion if a holder of a water use subject to transfer
submits an application to the department within five years after
the department approves a transfer under this section.
{ + (b) The department shall approve an application to return
to the last authorized surface water point of diversion after
five years of the date the department allows a transfer under
subsection (3) of this section if a holder of a water use subject
to transfer submits an application to the department, and the
return will not result in injury to an existing water right. + }
{ - (6) - } { + (7) + } For { - any transfer - }
{ + transfers + } allowed under
{ - subsection (1) of - } this section, the department shall
require mitigation measures to prevent depletion from any surface
water source not specified in the permit or certificated or
decreed water right { + , except that the department may not
require mitigation measures if the transfer complies with
subsection (3) of this section + }.
{ - (7) - } { + (8) + } As used in this section:
{ + (a) 'Deschutes basin ground water study area' means the
part of the Deschutes River Basin that is designated by the Water
Resources Commission by rule. + }
{ - (a) - } { + (b) + } 'Similarly' means that the use of
ground water at the new point of diversion affects the surface
water source specified in the permit or certificated or decreed
water right and would result in stream depletion of at least 50
percent of the rate of appropriation within 10 days of continuous
pumping.
{ - (b) - } { + (c) + } 'Unconfined aquifer' means an
aquifer in which the pressure at the upper surface of saturation
is equal to atmospheric pressure.
SECTION 2. ORS 537.211 is amended to read:
537.211. (1) The approval of an application referred to in ORS
537.140 or 537.400 shall be set forth in a water right permit
issued by the Water Resources Department. The permit shall
specify the details of the authorized use and shall set forth any
terms, limitations and conditions as the department considers
appropriate including but not limited to any applicable condition
required under ORS 537.289. A copy of the permit shall be filed
as a public record in the department. The permit shall be mailed
to the applicant, and upon receipt of the permit the permittee
may proceed with the construction of the necessary works and may
take all action required to apply the water to the designated
beneficial use and to perfect the proposed appropriation.
(2) Except as provided in subsection (6) of this section, if an
application under ORS 537.140 or 537.400 indicates that the
applicant does not have written authorization or an easement
permitting access to nonowned land crossed by the proposed ditch,
canal or other work, the department may issue a final order
approving the application if the approval includes a condition
requiring the applicant to obtain such written authorization, or
easement or ownership of such land and to provide the department
with a copy of the written authorization, easement or evidence of
ownership.
(3) If an application referred to in ORS 537.140 or 537.400 is
rejected, the department shall enter a written order setting
forth the reasons for the rejection. The applicant shall take no
action towards construction of the works or use of the water. The
department shall mail a copy of the order to the applicant.
(4) The holder of a water right permit may change the point of
diversion, change the point of appropriation, change the point of
diversion to allow the appropriation of ground water or use the
water on land to which the right is not appurtenant if:
(a) The use of water on land to which the right is not
appurtenant, the change of point of diversion or the change in
point of appropriation does not result in injury to an existing
water right;
(b) For a proposed change in the place of use of the water, the
land on which the water is to be used is owned or controlled by
the holder of the permit and is contiguous to the land to which
the permit is appurtenant;
(c) All other terms of the permit remain the same, including
but not limited to the beneficial use for which the water is used
and the number of acres to which water is applied;
(d) Prior approval is obtained from the district if the water
is transported or conveyed by an irrigation district organized
under ORS chapter 545, a drainage district organized under ORS
chapter 547, a water improvement district organized under ORS
chapter 552, a water control district organized under ORS chapter
553 or a district improvement company or a corporation organized
under ORS chapter 554;
(e) The holder of the permit provides written notice to the
department at least 60 days before making any changes to the
lands, point of diversion or point of appropriation described in
the permit;
(f) The holder of the permit complies with the publication
requirements of ORS 540.520 (5), if applicable;
(g) Diversion is provided with a proper fish screen, if
requested by the State Department of Fish and Wildlife; and
(h) For a request to transfer the point of diversion to allow
the appropriation of ground water, the proposed change meets the
standards set forth in ORS 540.531 (2) { + or (3) + }.
(5) Notwithstanding the requirements of subsection (4)(b) of
this section, the holder of a water right permit may change the
place of use of all or any portion of water under the permit to
land that is not contiguous to the land to which the permit is
appurtenant if:
(a) The change to noncontiguous land is in furtherance of
mitigation or conservation efforts undertaken for the purposes of
benefiting a species listed as sensitive, threatened or
endangered under ORS 496.171 to 496.192 or the federal Endangered
Species Act of 1973 (16 U.S.C. 1531 to 1544), as determined by
the listing agency; and
(b) All other requirements of subsection (4) of this section
are met.
(6) For an application made by or on behalf of a public
corporation, the department may issue a permit approving the
application without requiring the applicant to obtain prior
written authorization or an easement permitting access to
nonowned lands affected by the proposed project. However, nothing
in this subsection shall be construed to allow any person to
trespass on the lands of another person.
(7) When the department receives notice under subsection (4)(e)
of this section, the department shall publish the notice in the
department's weekly public notice of water right applications.
(8) If the use of water under the permit is for operation of a
chemical process mine as defined in ORS 517.953:
(a) Review of the application and approval or denial of the
application shall be coordinated with the consolidated
application process under ORS 517.952 to 517.989. However, such
review and approval or denial shall take into consideration all
policy considerations for the appropriation of water as set forth
in this chapter and ORS chapter 536.
(b) The permit may be issued for exploration under ORS 517.702
to 517.740, but the permit shall be conditioned on the
applicant's compliance with the consolidated application process.
(c) The permit shall include a condition that additional
conditions may be added to the use of water when a water right
certificate is issued, or when the use of water is changed
pursuant to ORS 540.520 and 540.530 to use for a chemical process
mine operation.
(9) As used in this section, 'contiguous' includes land
separated from the land to which a water right is appurtenant by
roads, utility corridors, irrigation ditches or publicly owned
rights of way.
SECTION 3. { + The Water Resources Commission shall adopt
rules that prescribe:
(1) The process for reviewing applications submitted under ORS
540.531;
(2) The persons to whom the department shall provide notice of
the receipt of an application submitted under ORS 540.531; and
(3) The persons who may participate in the process of reviewing
applications submitted under ORS 540.531. + }
SECTION 4. { + The Water Resources Commission shall adopt
rules as required under section 3 of this 2003 Act no later than
March 31, 2004. + }
SECTION 5. { + The amendments to ORS 537.211 and 540.531 by
sections 1 and 2 of this 2003 Act apply to applications submitted
to the Water Resources Department on or after April 1, 2004. + }
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