74th OREGON LEGISLATIVE ASSEMBLY--2007 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 437
House Bill 2099
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Water Resources Department)
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 as
introduced.
Provides that Water Resources Director may refund protest fee
if order of Water Resources Commission establishes that all or
part of water right has not been canceled or modified.
A BILL FOR AN ACT
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 Oregon:
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. + }
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