72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
HA to B-Eng. SB 820
LC 2546/SB 820-B12
HOUSE AMENDMENTS TO
B-ENGROSSED SENATE BILL 820
By COMMITTEE ON JUDICIARY
July 1
On page 1 of the printed B-engrossed bill, line 2, after '
water' insert '; creating new provisions; and amending ORS
536.050, 537.211, 540.510 and 540.531'.
Delete lines 4 through 24 and delete pages 2 and 3 and insert:
' { + 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. + } { + Section 6 of this 2003 Act is added
to and made a part of ORS 540.505 to 540.580. + }
' { + SECTION 6. + } { + (1) In accordance with the
provisions of this section, a person may request that the Water
Resources Department approve the temporary transfer of the place
of use and type of use and temporarily change the point of
diversion if necessary to convey water to the new temporary place
of use, of all or a portion of a water right, for a period not to
exceed 25 years if:
' (a) The person holds a water use subject to transfer;
' (b) The type of use specified in the original water use
subject to transfer is irrigation;
' (c) The person to whom the right is transferred is:
' (A) Located within the Deschutes River Basin; and
' (B) A city, a quasi-municipal corporation, 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;
' (d) The proposed use is municipal use; and
' (e) The proposed temporary transfer will not result in injury
to any existing water right.
' (2) An application for a temporary transfer under this
section shall:
' (a) Be submitted in writing to the Water Resources
Department;
' (b) Be accompanied by the appropriate fee for a change in the
place of use and type of use as set forth in ORS 536.050;
' (c) Include the information required under ORS 540.520 (2);
and
' (d) Include any other information the Water Resources
Commission by rule may require.
' (3)(a) Any portion of the use of a water right that is not
temporarily transferred under this section may be used on the
designated part of the lands described in the original water
right permit, certificate or adjudication under ORS chapter 539
as evidenced by a court decree, if the use does not encompass
more than the remaining portion of the lands, enlarge the water
right or increase the rate, duty, total acreage benefited or
season of use.
' (b) The Water Resources Department shall designate the lands
on which water may be applied under this subsection and shall
prescribe mapping, measurement and recording requirements under
this subsection.
' (4) Upon expiration of a 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.
' (5) 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.
' (6) The department may revoke a prior approval of a temporary
transfer at any time if:
' (a) The department finds that the transfer is causing injury
to any existing water right; or
' (b) The person fails to comply with the requirements
prescribed by the department pursuant to subsection (3) of this
section.
' (7) The department shall provide notice, in the manner
provided in ORS 540.520 (5), that the department received an
application for a temporary transfer under this section.
' (8) The department may:
' (a) Prescribe the duration of the temporary transfer period
allowed under this section, up to 25 years;
' (b) Impose conditions in the terms of the temporary transfer,
including revocation of the transfer for noncompliance with
applicable state, local or federal laws; and
' (c) Determine the parties that may participate in the review
of applications submitted under this section. + }
' { + SECTION 7. + } 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 540.570, { + or for a
temporary transfer under section 6 of this 2003 Act, + } $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 8. + } ORS 540.510 is amended to read:
' 540.510. (1) Except as provided in subsections (2) to (8) 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 { + or section
6 of this 2003 Act + }, 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.
' { + SECTION 9. + } { + The Water Resources Commission
shall adopt rules regarding mapping, measurement and recording
requirements under section 6 (3)(b) of this 2003 Act no later
than March 31, 2004. + }
' { + SECTION 10. + } { + The Water Resources Department
shall submit a report, in the manner provided in ORS 192.245,
that shall include a summary of the features of the process
employed by the Water Resources Commission to implement section 6
of this 2003 Act. The report shall be submitted no later than
January 31 of each year to the Legislative Assembly or to an
interim committee related to natural resources, as
appropriate. + }
' { + SECTION 11. + } { + The Water Resources Department
shall submit a report, in the manner provided in ORS 192.245,
that shall include a detailed description of the features of the
process employed by the Water Resources Commission to implement
section 6 of this 2003 Act, including any recommendation for
further legislation. The report shall be submitted to the
Legislative Assembly no later than January 31, 2009. + }
' { + SECTION 12. + } { + Notwithstanding the requirement in
section 10 of this 2003 Act that the Water Resources Department
submit a report by January 31 of each year, the first report
required by section 10 of this 2003 Act shall be submitted by
January 31, 2005. + }
' { + SECTION 13. + } { + Section 6 of this 2003 Act and the
amendments to ORS 536.050 and 540.510 by sections 7 and 8 of this
2003 Act apply to applications submitted on or after April 1,
2004. + }
' { + SECTION 14. + } { + 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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