Relating to temporary transfers; creating new provisions; amending ORS 536.050, 536.900, 540.570 and 540.990 and section 14, chapter 788, Oregon Laws 2001; and declaring an emergency.

 
 
 
     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 1411
 
                           A-Engrossed
 
                         House Bill 3281
                   Ordered by the House May 15
             Including House Amendments dated May 15
 
Sponsored by Representative BUTLER
 
 
                             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.
 
  Allows irrigation district with manager to, for one irrigation
season, temporarily change point of diversion  { - , change point
of - }   { + or + } appropriation { +  combined with change in
place of use + }, change point of diversion to allow for
appropriation of ground water  { - , change supplemental right to
primary right - }  or change primary right to supplemental right.
   { +  Directs Water Resources Department to establish pilot
project allowing irrigation districts to use water on any land
within legal boundary of district for water uses subject to
transfer.  Sunsets pilot project on June 30, 2008.
  Declares emergency, effective on passage. + }
 
                        A BILL FOR AN ACT
Relating to temporary transfers; creating new provisions;
  amending ORS 536.050, 536.900, 540.570 and 540.990 and section
  14, chapter 788, Oregon Laws 2001; and declaring an emergency.
Be It Enacted by the People of the State of Oregon: + }
  SECTION 1. ORS 540.570 is amended to read:
  540.570. (1) 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) Provided that the proposed transfer complies with all
the provisions of this subsection and will not result in injury
to or enlargement of an existing water right, a district with a
manager may, for one irrigation season, temporarily change the
point of diversion or appropriation combined with a change in
place of use, change the point of diversion to allow for the
appropriation of ground water or change a primary right to a
supplemental right if:
  (a) The land on which the water is to be used is within the
district's legal boundaries established pursuant to ORS chapter
545, 547, 552, 553 or 554;
  (b) The other terms of the permit or certificate remain the
same, including the beneficial use for which the water is used
and the number of acres to which water is applied;
  (c) The diversion is provided with a proper fish screen, if
required by the Water Resources Department; and
  (d) For a proposal to transfer the point of diversion to allow
for the appropriation of ground water, the proposed change meets
the standards set forth in ORS 540.531 (2). + }
    { - (2) - }   { + (3) + } 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 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) - }   { + (4) + } 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) - }   { + (3) + } 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  { + for 30 days + } 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) - }   { + (5) + } 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.
    { - (5) - }   { + (6) + } 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.
    { - (6) - }   { + (7) + } 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 adjudication under ORS chapter 539 as evidenced by
a court decree.
 
    { - (7) - }   { + (8) + } The time during which water is used
under an approved temporary transfer order does not apply toward
a finding of forfeiture under ORS 540.610.
  SECTION 2. ORS 540.570, as amended by section 10, chapter 788,
Oregon Laws 2001, 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) Provided that the proposed transfer complies with all the
provisions of this subsection and will not result in injury to or
enlargement of an existing water right, a district with a manager
may, for one irrigation season, temporarily change the point of
diversion or appropriation combined with a change in place of
use, change the point of diversion to allow for the appropriation
of ground water or change a primary right to a supplemental right
if:
  (a) The land on which the water is to be used is within the
district's legal boundaries established pursuant to ORS chapter
545, 547, 552, 553 or 554;
  (b) The other terms of the permit or certificate remain the
same, including the beneficial use for which the water is used
and the number of acres to which water is applied;
  (c) The diversion is provided with a proper fish screen, if
required by the Water Resources Department; and
  (d) For a proposal to transfer the point of diversion to allow
for the appropriation of ground water, the proposed change meets
the standards set forth in ORS 540.531 (2) + }.
    { - (2) - }   { + (3) + } 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. - }
 { + submit to the 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).
  (4) 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 (3) 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 for 30 days 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.
  (5) 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. + }
    { - (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. - }
  (6) 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) 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) The time during which water is used under an approved
temporary transfer order does not apply toward a finding of
forfeiture under ORS 540.610.
  SECTION 3. ORS 536.050 is amended to read:
  536.050. (1) For applications filed after July 23, 1997, the
following fees shall be collected by the Water Resources
Department in advance:
  (a) Except as provided under ORS 543.280 for an application for
a hydroelectric project, for examining an application for a
permit to appropriate water, $250, plus $150 for the first
second-foot or fraction thereof, plus $75 for each additional
second-foot or fraction thereof.
  (b) For examining an application for a permit:
  (A) To store water under ORS 537.400 or 537.534 (4), $250, plus
$10 for the first acre-foot up to 10 acre-feet, plus $1 for each
additional acre-foot up to 1,000 acre-feet, plus 25 cents for
each additional acre-foot in excess of 1,000.
  (B) To exclusively appropriate stored water, $100, plus $10 for
the first acre-foot up to 10 acre-feet, plus $1 for each
additional acre-foot up to 1,000 acre-feet, plus 25 cents for
each additional acre-foot in excess of 1,000.
  (c) For recording a permit to appropriate or store water, $175.
  (d) For filing or recording any other water right instrument,
$25 for the first page and $5 for each additional page.
  (e) For copying records in the department, $2 for the first
page and 50 cents for each additional page.
  (f) For certifying to copies, documents, records, or maps, $10
for each certificate.
  (g) For blueprint copy of any map or drawing, the actual cost
of the work.
  (h) For examining an application for approval of a change to an
existing water right, $200, plus $100 for each additional type of
change requested, plus, if a request for a change in place of use
or type of use or for a water exchange under ORS 540.533, $100
for each second-foot or fraction thereof requested in addition to
the first second-foot.
  (i) For examining an application for a temporary change in
place of use under ORS 540.523 or  { + a temporary change in
place of use, in the point of diversion to allow for the
appropriation of ground water, or of a primary right to a
supplemental right under ORS + } 540.570, $100, plus:
  (A) For nonirrigation uses, $50 for each second-foot or
fraction thereof requested in addition to the first second-foot;
or
  (B) For irrigation uses, 25 cents per acre of land irrigated.
  (j) For submitting a protest under ORS 537.153, 537.621 or
543A.120, $200, reduced by the amount of any protest previously
paid toward the same application and for filing any other protest
with the department, $25.
  (k) For filing an application for extension of time within
which irrigation or other works shall be completed or the right
perfected, $100.
  (L) For a limited license under ORS 537.143 or 537.534 (2), the
fee established by rule by the Water Resources Commission.
  (m) For filing, examining and certifying a petition under ORS
541.329, $250 plus 10 cents per acre of water involved in the
application. For purposes of computing this fee, when any acreage
within a quarter quarter of a section is involved, the 10 cents
per acre shall apply to all acres in that quarter quarter of a
section.
  (n) For requesting standing under ORS 537.153 (5), 537.621 (6)
or 543A.120, $50.
  (o) For participating in a contested case proceeding under ORS
537.170 (2), 537.622 (2) or 543A.130, $150.
  (p) Except for an applicant, for obtaining a copy of both a
proposed final order and a copy of a final order for a water
right application under ORS 537.140 to 537.252, 537.505 to
537.795 or 543A.005 to 543A.300, $10.
  (q) For submitting an application for a water right permit for
a reservoir under ORS 537.409, $10 for each acre-foot, but not
more than $100 per application.
  (r) For submitting a notice of intent under ORS 543A.030 or
543A.075, the amount established by the director under ORS
543A.410.
  (s) For examining an application for a substitution made under
ORS 540.524, $100.
  (2) Notwithstanding the fees established under subsection (1)
of this section, the commission may by rule establish examination
and permit fees lower than those under subsection (1) of this
section for:
  (a) The right to appropriate water for a storage project of
five acre-feet or less; or
  (b) The right to appropriate water for the purpose of allowing
the applicant to water livestock outside of a riparian area. As
 
used in this paragraph, 'riparian area' has the meaning given
that term in ORS 541.351.
  (3) Notwithstanding subsections (5) and (6) of this section, if
the Water Resources Director determines a refund of a fee paid
under this section is appropriate in the interest of fairness to
the public or necessary to correct an error of the department,
the director may refund all or part of a fee paid to the
department.
  (4) Notwithstanding subsections (5) and (6) of this section,
the Water Resources Director may waive all or part of a fee for a
change to a water right permit under ORS 537.211 (4) or a water
right subject to transfer under ORS 540.520 or 540.523, if the
change is made 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.
  (5) Except as provided in subsection (6) of this section, all
moneys received under subsection (1) of this section shall be
deposited in the Water Resources Department Operating Account and
credited to the Water Resources Department. Such moneys are
continuously appropriated to the Water Resources Department to
pay the department's expenses in administering and enforcing the
provisions of ORS chapters 536 to 543A.
  (6) All fees received for power purposes under ORS 543.280
shall be paid to the Water Resources Department Hydroelectric
Fund established in ORS 536.015.
  SECTION 4. 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) - }  { +  (5) + }, 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) - }  { +  (5) + }, 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 may not be considered a violation under subsection
(1) of this section.
  SECTION 5. ORS 536.900, as amended by section 12, chapter 788,
Oregon Laws 2001, 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
(5), + } 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 (5), + } 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 may not be considered a violation under subsection
(1) of this section.
  SECTION 6. 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) - }
 { +  (5) + }, 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 7. Section 14, chapter 788, Oregon Laws 2001, is
amended to read:
   { +  Sec. 14. + } The amendments to ORS 536.900, 540.523
 { - , 540.570, - }  { + and + } 540.580   { - and 540.990 - }
by sections 9 { + , 11 and 12, chapter 788, Oregon Laws 2001, + }
 { - to 13 of this 2001 Act - }  become operative July 1, 2005.
  SECTION 8. ORS 540.990, as amended by section 13, chapter 788,
Oregon Laws 2001, 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 (5), + }
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 9.  { + Section 10 of this 2003 Act is added to and
made a part of ORS 540.505 to 540.580. + }
 
  SECTION 10.  { + (1) In order to increase district water
management flexibility, the Water Resources Department shall
establish a pilot project in which districts may temporarily
allow, for water uses subject to transfer, the use of water on
any land within the legal boundaries of the district established
pursuant to ORS chapter 545, 547, 552, 553 or 554.
  (2) The use of water on any land within the legal boundaries of
the district may be allowed 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.
  (3) The department shall allow the pilot project to be
implemented in the Talent Irrigation District, the Owyhee
Irrigation District and the Tualatin Valley Irrigation District
or their successor irrigation districts. However, any district
participating in the project must:
  (a) Have defined state irrigation district boundaries;
  (b) Have a management structure that can ensure that water is
applied only where the water use is authorized;
  (c) Not irrigate an area in any one irrigation season that
exceeds the maximum number of acres allowed to be irrigated under
the original water right;
  (d) Have a full and accurate measurement of the water
appropriated;
  (e) Have an accurate map identifying the location of authorized
use, by priority date, for watermaster review upon request; and
  (f) Have on file statements by any landowner affected by the
water use change indicating that the landowner agrees to the
change.
  (4) If any of the specified irrigation districts are unable to
participate in the project, the department may identify another
district for the project.
  (5) The department may require that use of water under the
pilot project cease and that the use revert to the use allowed
under the water right of record if the department determines
that:
  (a) The district does not meet the qualifications established
in subsection (3) of this section;
  (b) The water is being used in a manner that violates the
requirements in subsection (2) of this section; or
  (c) The changes made to the use of water would result in injury
to existing water rights or an enlargement of the original water
right.
  (6) Use of water under the pilot project constitutes a
beneficial use of water and does not constitute nonuse for
purposes of forfeiture under ORS 540.610. + }
  SECTION 11.  { + The Water Resources Department shall report to
the Seventy-fourth Legislative Assembly, no later than January
31, 2007, on the operation of the pilot project established under
section 10 of this 2003 Act. + }
  SECTION 12.  { + Sections 9 and 10 of this 2003 Act are
repealed on June 30, 2008. + }
  SECTION 13.  { + The amendments to 540.570 by section 1 of this
2003 Act apply to applications submitted to the Water Resources
Department on or after the effective date of this 2003 Act. + }
  SECTION 14.  { + 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. + }
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