72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
HA to C-Eng. SB 820
LC 2546/SB 820-C13
HOUSE AMENDMENTS TO
C-ENGROSSED SENATE BILL 820
By COMMITTEE ON JUDICIARY
July 11
On page 1 of the printed C-engrossed bill, line 2, after the
second semicolon delete the rest of the line and insert 'amending
ORS 536.050, 536.900, 537.211, 540.510, 540.531, 540.570 and
540.990 and section 14, chapter 788, Oregon Laws 2001; and
declaring an emergency.'.
On page 6, delete lines 18 and 19 and insert:
' (i) For examining an application for a temporary change in
place of use under ORS 540.523, for a temporary transfer under
section 6 of this 2003 Act or for a temporary change in place of
use, a change in the point of diversion to allow for the
appropriation of ground water or a change of a primary right to a
supplemental right under ORS 540.570, $100 plus:'.
On page 9, after line 26, insert:
' { + SECTION 15. + } 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 16. + } 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 17. + } 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 18. + } 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 19. + } 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 20. + } 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 21. + } 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 22. + } { + Section 23 of this 2003 Act is
added to and made a part of ORS 540.505 to 540.580. + }
' { + SECTION 23. + } { + (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 24. + } { + 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 23 of this 2003 Act. + }
' { + SECTION 25. + } { + Sections 22 and 23 of this 2003
Act are repealed on June 30, 2008. + }
' { + SECTION 26. + } { + The amendments to 540.570 by
section 15 of this 2003 Act apply to applications submitted to
the Water Resources Department on or after the effective date of
this 2003 Act. + }
' { + SECTION 27. + } { + (1) The Department of
Environmental Quality shall foster and encourage wastewater reuse
in urban areas as a means of conserving potable water.
' (2) The Department of Environmental Quality shall work in
consultation with interested parties and state agencies to
examine the opportunities and barriers associated with wastewater
reuse in urban areas and shall submit a report to an interim
committee related to natural resources as appropriate, in the
manner provided by ORS 192.245, no later than December 31, 2004.
The report shall include:
' (a) An inventory of regulatory mechanisms that govern
wastewater issues at local, state and federal levels;
' (b) A list of issues, including regulatory barriers,
scientific concerns, issues of public perception and economic
issues, that could restrict wastewater reuse;
' (c) Readily available information on the current number,
types and locations of wastewater reuse activities in urban
areas;
' (d) A list of existing and potential incentives for
wastewater reuse; and
' (e) Recommendations for legislative or other regulatory
changes that may be needed to implement wastewater reuse.
' (3) The Department of Environmental Quality may seek federal
funding to be used for one or more wastewater reuse demonstration
projects within urban areas in the Willamette River Basin that
seek to illustrate the economic, environmental and other values
of wastewater reuse.
' (4) As used in this section, 'wastewater reuse' means the
recycling of treated wastewater derived from domestic sources,
including municipal and individual systems, and industrial
sources. + }
' { + SECTION 28. + } { + Section 27 of this 2003 Act is
repealed on January 2, 2005. + }
' { + SECTION 29. + } { + 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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