Chapter 188
AN ACT
HB 2099
Relating to water right forfeiture; creating new provisions; and
amending ORS 536.050, 537.153 and 537.621.
Be It Enacted by the People of
the State of
SECTION 1. ORS 536.050 is amended to read:
536.050. (1) The Water
Resources Department may collect the following fees in advance:
(a) For examining an
application for a permit:
(A) To appropriate
water, except as provided under ORS 543.280 for an application for a
hydroelectric project:
(i) A base fee of $300;
(ii) $200 for the first
second-foot or fraction thereof;
(iii) $100 for each
additional second-foot or fraction thereof; and
(iv) If appropriating
stored water, $20 for the first acre-foot or fraction thereof up to 10
acre-feet, plus $1 for each additional acre-foot or fraction thereof.
(B) To store water under
ORS 537.400 or 537.534 (4):
(i) A base fee of $300;
and
(ii)
$20 for the first acre-foot or fraction thereof up to 10 acre-feet, plus $1 for
each additional acre-foot or fraction thereof.
(C) To exclusively
appropriate stored water:
(i) A base fee of $150;
and
(ii)
$15 for the first acre-foot or fraction thereof up to 10 acre-feet, plus $1 for
each additional acre-foot or fraction thereof.
(b) For recording a
permit to appropriate or store water, $250.
(c) For filing or
recording any other water right instrument, $25 for the first page and $5 for
each additional page.
(d) For copying records
in the department, $2 for the first page and 50 cents for each additional page.
(e) For certifying
copies, documents, records or maps, $10 for each certificate.
(f) For a blueprint copy
of any map or drawing, the actual cost of the work.
(g) For a
computer-generated map, the actual cost of the work.
(h) For examining an
application for approval of a change to an existing water right or permit:
(A) A base fee of $350;
(B) $350 for each
additional type of change requested; and
(C) For a request for a
change in place of use or type of use or for a water exchange under ORS
540.533, $175 for each second-foot or fraction thereof requested beyond the
first second-foot.
(i) For examining an
application for a temporary change in place of use under ORS 540.523, for a
temporary transfer under ORS 540.585 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,
a base fee of $175 and:
(A) For nonirrigation
uses, $75 for each second-foot or fraction thereof requested beyond the first
second-foot; or
(B) For irrigation uses,
$1 per acre of land irrigated or, if the application and required map are
submitted to the department in a department-approved digital format, 25 cents
per acre of land irrigated.
(j) For submitting a
protest to the department, $250.
(k) For filing an
application for extension of time within which irrigation or other works shall
be completed or a water right perfected, $250.
(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.
Notwithstanding the fee amount established in this paragraph, a district
notifying the department under ORS 541.327 (4) shall pay the actual cost of
filing, examining and certifying the petition.
(n) For requesting
standing under ORS 537.153, 537.621 or 543A.120, $50.
(o) For participating in
a contested case proceeding under ORS 537.170, 537.622 or 543A.130, $200.
(p) Except for an
applicant, for obtaining a copy of both a proposed final order and 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 examining an
application to store water under ORS 537.409:
(A) A base fee of $40;
and
(B)
$10 for each acre-foot or fraction thereof, not to exceed a total of $250.
(r) For submitting a
notice of intent under ORS 543A.030 or 543A.075, the amount established by the
Water Resources Director under ORS 543A.410.
(s) For examining an
application for a substitution made under ORS 540.524, $250.
(t) For examining an
application for an allocation of conserved water under ORS 537.455 to 537.500, $700.
(u) For submitting a
water management and conservation plan pursuant to rules of the [Water Resources] commission:
(A) $250, if the plan is
submitted by an agricultural water supplier;
(B) $500, if the plan is
submitted by a municipal water supplier serving a population of 1,000 or fewer
persons; or
(C) $1,000, if the plan
is submitted by a municipal water supplier serving a population of more than
1,000 persons.
(v) For examining a new
application for an in-stream water right lease under ORS 537.348:
(A) $200 for an
application for a lease with four or more landowners or four or more water
rights; or
(B)
$100 for all other applications.
(w) For examining an
application for an in-stream water right lease renewal, $50.
(2) Notwithstanding the
fees established under subsection (1) of this section, the [Water Resources] commission may
establish lower examination and permit fees by rule 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 that term is defined in ORS 541.351.
(3)(a) The [Water Resources] director may refund all
or part of a fee paid to the department under this section if the director
determines that a refund of the fee is appropriate in the interests of fairness
to the public or necessary to correct an error of the department.
(b) The director may
refund all or part of the protest fee described in subsection (1)(j) of this section to the legal owner or occupant who
filed a protest under ORS 540.641 if an order of the Water Resources Commission
establishes that all or part of a water right has not been canceled or modified
under ORS 540.610 to 540.650.
(4) The director may
waive all or part of a fee for a change to a water right permit under ORS
537.211 (4), a change to a water right subject to transfer under ORS 540.520 or
540.523 or an allocation of conserved water under ORS 537.470, if the change or
allocation of conserved water is:
(a) Made pursuant to ORS
537.348;
(b) Necessary to
complete a project funded under ORS 541.375; or
(c) Approved by the
State Department of Fish and Wildlife as a change or allocation of conserved
water that will result in a net benefit to fish and wildlife habitat.
(5) Notwithstanding the
fees established pursuant to this section, the commission may adopt by rule
reduced fees for persons submitting materials to the department in a digital
format approved by the department.
(6) All moneys received
under this section, less any amounts refunded under subsection (3) of this
section, shall be deposited in the Water Resources Department Water Right
Operating Fund.
(7) Notwithstanding
subsection (6) of this section, all fees received by the department for power
purposes under ORS 543.280 shall be deposited in the Water Resources Department
Hydroelectric Fund established by ORS 536.015.
SECTION 2. ORS 537.153 is amended to read:
537.153. (1) Within 60
days after the Water Resources Department proceeds with the application under
ORS 537.150 (5), the department shall complete application review and issue a
proposed final order approving or denying the application or approving the
application with modifications or conditions. The department may request the
applicant to provide additional information needed to complete the review. If
the department requests additional information, the request shall be specific
and shall be sent to the applicant by registered mail. The department shall
specify a date by which the information must be returned, which shall be not
less than 10 days after the department mails the request to the applicant. If
the department does not receive the information or a request for a time
extension under ORS 537.175 by the date specified in the request, the
department may reject the application and may refund fees in accordance with
ORS 536.050 (3)(a). The time period specified by the department in a
request for additional information shall allow the department to comply with
the 60-day time limit established by this subsection.
(2) In reviewing the
application under subsection (1) of this section, the department shall presume
that a proposed use will not impair or be detrimental to the public interest if
the proposed use is allowed in the applicable basin program established
pursuant to ORS 536.300 and 536.340 or given a preference under ORS 536.310
(12), if water is available, if the proposed use will not injure other water
rights and if the proposed use complies with rules of the Water Resources
Commission. This shall be a rebuttable presumption and may be overcome by a
preponderance of evidence that either:
(a) One or more of the
criteria for establishing the presumption are not satisfied; or
(b) The proposed use
will impair or be detrimental to the public interest as demonstrated in comments,
in a protest under subsection (6) of this section or in a finding of the
department that shows:
(A) The specific public
interest under ORS 537.170 (8) that would be impaired or detrimentally
affected; and
(B) Specifically how the
identified public interest would be impaired or detrimentally affected.
(3) The proposed final
order shall cite findings of fact and conclusions of law and shall include but
need not be limited to:
(a) Confirmation or
modification of the preliminary determinations made in the initial review;
(b) A brief statement
that explains the criteria considered relevant to the decision, including the
applicable basin program and the compatibility of the proposed use with
applicable land use plans;
(c) An assessment of
water availability and the amount of water necessary for the proposed use;
(d) An assessment of
whether the proposed use would result in injury to existing water rights;
(e) An assessment of
whether the proposed use would impair or be detrimental to the public interest
as provided in ORS 537.170;
(f) A draft permit,
including any proposed conditions, or a recommendation to deny the application;
(g) Whether the
rebuttable presumption that the proposed use will not impair or be detrimental
to the public interest has been established; and
(h) The date by which
protests to the proposed final order must be received by the department.
(4) The department shall
mail copies of the proposed final order to the applicant and to persons who
have requested copies and paid the fee required under ORS 536.050 (1)(p). The department also shall publish notice of the
proposed final order by publication in the weekly notice published by the
department.
(5) Any person who
supports a proposed final order may request standing for purposes of
participating in any contested case proceeding on the proposed final order or
for judicial review of a final order. A request for standing shall be in
writing and shall be accompanied by the fee established under ORS 536.050 (1)(n).
(6) Any person may
submit a protest against a proposed final order. A protest shall be in writing
and shall include:
(a) The name, address
and telephone number of the protestant;
(b) A description of the
protestant’s interest in the proposed final order and, if the protestant claims
to represent the public interest, a precise statement of the public interest
represented;
(c) A detailed
description of how the action proposed in the proposed final order would impair
or be detrimental to the protestant’s interest;
(d) A detailed
description of how the proposed final order is in error or deficient and how to
correct the alleged error or deficiency;
(e) Any citation of
legal authority supporting the protest, if known; and
(f) For persons other
than the applicant, the protest fee required under ORS 536.050.
(7) Requests for
standing and protests on the proposed final order shall be submitted within 45
days after publication of the notice of the proposed final order in the weekly
notice published by the department. Any person who asks to receive a copy of
the department’s final order shall submit to the department the fee required
under ORS 536.050 (1)(p), unless the person has
previously requested copies and paid the required fee under ORS 537.150 (7),
the person is a protestant and has paid the fee required under ORS 536.050
(1)(j) or the person has standing and has paid the fee under ORS 536.050
(1)(n).
(8) Within 60 days after
the close of the period for receiving protests, the Water Resources Director
shall:
(a)
Issue a final order as provided under ORS 537.170 (6); or
(b) Schedule a contested
case hearing if a protest has been submitted and if:
(A) Upon review of the
issues, the director finds that there are significant disputes related to the
proposed use of water; or
(B) Within 30 days after
the close of the period for submitting protests, the applicant requests a
contested case hearing.
SECTION 3. ORS 537.621 is amended to read:
537.621. (1) Within 60
days after the Water Resources Department proceeds with the application under
ORS 537.620 (5), the department shall complete application review and issue a
proposed final order approving or denying the application or approving the
application with modifications or conditions. The department may request the
applicant to provide additional information needed to complete the review. If
the department requests additional information, the request shall be specific
and shall be sent to the applicant by registered mail. The department shall
specify a date by which the information must be returned, which shall be not
less than 10 days after the department mails the request to the applicant. If
the department does not receive the information or a request for a time
extension under ORS 537.627 by the date specified in the request, the
department may reject the application and may refund fees in accordance with
ORS 536.050 (3)(a). The time period specified by the department in a
request for additional information shall allow the department to comply with
the 60-day time limit established by this subsection.
(2) In reviewing the
application under subsection (1) of this section, the department shall
determine whether the proposed use will ensure the preservation of the public
welfare, safety and health as described in ORS 537.525. The department shall
presume that a proposed use will ensure the preservation of the public welfare,
safety and health if the proposed use is allowed in the applicable basin
program established pursuant to ORS 536.300 and 536.340 or given a preference
under ORS 536.310 (12), if water is available, if the proposed use will not
injure other water rights and if the proposed use complies with rules of the
Water Resources Commission. This shall be a rebuttable presumption and may be
overcome by a preponderance of evidence that either:
(a) One or more of the
criteria for establishing the presumption are not satisfied; or
(b) The proposed use
would not ensure the preservation of the public welfare, safety and health as
demonstrated in comments, in a protest under subsection (7) of this section or
in a finding of the department that shows:
(A) The specific aspect
of the public welfare, safety and health under ORS 537.525 that would be
impaired or detrimentally affected; and
(B) Specifically how the
identified aspect of the public welfare, safety and health under ORS 537.525
would be impaired or be adversely affected.
(3) The proposed final
order shall cite findings of fact and conclusions of law and shall include but
need not be limited to:
(a) Confirmation or modification
of the preliminary determinations made in the initial review;
(b) A brief statement
that explains the criteria considered relevant to the decision, including the
applicable basin program and the compatibility of the proposed use with
applicable land use plans;
(c) An assessment of
water availability and the amount of water necessary for the proposed use;
(d) An assessment of
whether the proposed use would result in injury to existing water rights;
(e) An assessment of
whether the proposed use would ensure the preservation of the public welfare,
safety and health as described in ORS 537.525;
(f) A draft permit,
including any proposed conditions, or a recommendation to deny the application;
(g) Whether the
rebuttable presumption under subsection (2) of this section has been
established;
(h) The date by which
protests to the proposed final order must be received by the department; and
(i) The flow rate and
duty of water allowed.
(4) In establishing the
flow rate and duty of water allowed, the department may consider a general
basin-wide standard, but first shall evaluate information submitted by the
applicant to demonstrate the need for a flow rate and duty higher than the
general standard. If the applicant provides such information, the department
shall authorize the requested rate and duty except upon specific findings
related to the application to support a determination that a lesser amount is
needed. If the applicant does not provide information to demonstrate the need
for a flow rate and duty higher than the general basin-wide standard, the
department may apply the general standards without specific findings related to
the application.
(5) The department shall
mail copies of the proposed final order to the applicant and to persons who have
requested copies and paid the fee required under ORS 536.050 (1)(p). The department also shall publish notice of the
proposed final order by publication in the weekly notice published by the
department.
(6) Any person who
supports a proposed final order may request standing for purposes of
participating in any contested case proceeding on the proposed final order or
for judicial review of a final order. A request for standing shall be in
writing and shall be accompanied by the fee established under ORS 536.050 (1)(n).
(7) Any person may
submit a protest against a proposed final order. A protest shall be in writing
and shall include:
(a) The name, address
and telephone number of the protestant;
(b) A description of the
protestant’s interest in the proposed final order, and if the protestant claims
to represent the public interest, a precise statement of the public interest
represented;
(c) A detailed
description of how the action proposed in the proposed final order would impair
or be detrimental to the protestant’s interest;
(d) A detailed
description of how the proposed final order is in error or deficient and how to
correct the alleged error or deficiency;
(e) Any citation of
legal authority supporting the protest, if known; and
(f) For persons other
than the applicant, the protest fee required under ORS 536.050.
(8) Requests for
standing and protests on the proposed final order shall be submitted within 45
days after publication of the notice of the proposed final order in the weekly
notice published by the department. Any person who asks to receive a copy of
the department’s final order shall submit to the department the fee required
under ORS 536.050 (1)(p), unless the person has
previously requested copies and paid the required fee under ORS 537.620 (7),
the person is a protestant and has paid the fee required under ORS 536.050
(1)(j) or the person has standing and has paid the fee under ORS 536.050
(1)(n).
(9) Within 60 days after
the close of the period for receiving protests, the Water Resources Director
shall:
(a)
Issue a final order as provided under ORS 537.625 (1); or
(b) Schedule a contested
case hearing if a protest has been submitted and if:
(A) Upon review of the
issues, the director finds that there are significant disputes related to the
proposed use of water; or
(B) Within 30 days after
the close of the period for submitting protests, the applicant requests a
contested case hearing.
SECTION 4. The amendments to ORS 536.050 by section 1
of this 2007 Act apply only to protests of the proposed cancellation of water
rights filed on or after the effective date of this 2007 Act.
Approved by the Governor May 30, 2007
Filed in the office of Secretary of State May 31, 2007
Effective date January 1, 2008
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