75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1990
B-Engrossed
Senate Bill 788
Ordered by the Senate June 26
Including Senate Amendments dated May 6 and June 26
Sponsored by Senator DINGFELDER, Representative SHIELDS; Senators
MONROE, ROSENBAUM, Representatives BAILEY, DEMBROW, WITT
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.
Imposes { - $250 - } { + $300 + } recording fee for
specified ground water uses that are exempt from certain
regulations. Requires Water Resources Department to collect fee.
Requires department to deposit fee to credit of Water Resources
Department Water Right Operating Fund for specified purposes.
Requires owner of land on which well is drilled for ground
water use that is exempt from certain regulations to provide
department with map showing exact location of well. Specifies
procedures by which map must be provided.
{ + Authorizes Water Resources Commission to impose civil
penalty on violators of new requirements.
Increases and creates certain fees that department charges for
appropriations and other specified uses of water until July 1,
2013. + }
Declares emergency, effective { - on passage - } { + July
1, 2009 + }.
A BILL FOR AN ACT
Relating to water; creating new provisions; amending ORS 536.050,
536.900, 537.150, 537.153, 537.545, 537.610, 537.620, 537.621,
537.785 and 540.045; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 537.545 is amended to read:
537.545. (1) No registration, certificate of registration,
application for a permit, permit, certificate of completion or
ground water right certificate under ORS 537.505 to 537.795 and
537.992 is required for the use of ground water for:
(a) Stockwatering purposes;
(b) Watering any lawn or noncommercial garden not exceeding
one-half acre in area;
(c) Watering the lawns, grounds and fields not exceeding 10
acres in area of schools located within a critical ground water
area established pursuant to ORS 537.730 to 537.740;
(d) Single or group domestic purposes in an amount not
exceeding 15,000 gallons a day;
(e) Down-hole heat exchange purposes;
(f) Any single industrial or commercial purpose in an amount
not exceeding 5,000 gallons a day; or
(g) Land application, so long as the ground water:
(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right
issued for industrial purposes or a water right authorizing use
of water for confined animal feeding purposes;
(B) Is reused for irrigation purposes and the period of
irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality or the State Department of Agriculture
under either ORS 468B.050 to construct and operate a disposal
system or ORS 468B.215 to operate a confined animal feeding
operation.
(2) { - The use of - } { + A + } ground water { - for
a - } use { + for a purpose that is + } exempt under subsection
(1) of this section, to the extent that { - it - } { + the
use + } is beneficial, constitutes a right to appropriate ground
water equal to that established by a ground water right
certificate issued under ORS 537.700.
{ + (3) + } Except for the use of water under subsection
(1)(g) of this section, the Water Resources Commission by rule
may require any person or public agency using ground water for
any such purpose to furnish information with regard to such
ground water and the use thereof. For a use of water described in
subsection (1)(g) of this section, the Department of
Environmental Quality or the State Department of Agriculture
shall provide to the Water Resources Department a copy of the
permit issued under ORS 468B.050 or 468B.215 authorizing the land
application of ground water for reuse. The permit shall provide
the information regarding the place of use of such water and the
nature of the beneficial reuse.
{ - (3) - } { + (4) + } If it is necessary for the Water
Resources Department to regulate the use or distribution of
ground water, including uses { + for purposes that are + }
exempt under subsection (1) of this section, the department shall
use as a priority date for the exempt uses the date indicated in
the log for the well filed with the department under ORS 537.765
or other documentation provided by the well owner showing when
water use began.
{ + (5) The owner of land on which a well is drilled to allow
ground water use for a purpose that is exempt under subsection
(1) of this section shall provide the Water Resources Department
with a map showing the exact location of the well on the tax lot.
The landowner shall provide a map required by this subsection to
the department no later than 30 days after the well is completed.
The map must be prepared in accordance with standards established
by the department.
(6) The owner of land on which a well described in subsection
(5) of this section is located shall file the exempt ground water
use with the Water Resources Department for recording. The filing
must be accompanied by the fee described in subsection (7) of
this section. The filing must be received by the department no
later than 30 days after the well is completed.
(7) The Water Resources Department shall collect a fee of $300
for recording an exempt ground water use under subsection (6) of
this section. Moneys from fees collected under this subsection
shall be deposited to the credit of the Water Resources
Department Water Right Operating Fund. Notwithstanding ORS
536.009, moneys deposited to the fund under this subsection shall
be used for the purposes of evaluating ground water supplies,
conducting ground water studies, carrying out ground water
monitoring, processing ground water data and the administration
and enforcement of this subsection and subsections (3), (5), (6)
and (8) of this section.
(8) The Water Resources Commission shall adopt rules to
implement, administer and enforce subsections (5) to (7) of this
section. + }
SECTION 2. 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 ORS 537.545 (5) or (6) or of a rule
described in ORS 537.545 (8). + }
{ - (c) - } { + (d) + } Violation of any rule or order of
the Water Resources Commission that pertains to well maintenance.
{ - (d) - } { + (e) + } 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 3. ORS 540.045 is amended to read:
540.045. (1) Each watermaster shall:
(a) Regulate the distribution of water among the various users
of water from any natural surface or ground water supply in
accordance with the users' existing water rights of record in the
Water Resources Department.
(b) Upon the request of the users, distribute water among the
various users under any partnership ditch, pipeline or well or
from any reservoir, in accordance with the users' existing water
rights of record in the department.
(c) Divide the waters of the natural surface and ground water
sources and other sources of water supply among the canals,
ditches, pumps, pipelines and reservoirs taking water from the
source for beneficial use, by regulating, adjusting and fastening
the headgates, valves or other control works at the several
points of diversion of surface water or the several points of
appropriation of ground water, according to the users' relative
entitlements to water.
(d) Attach to the headgate, valve or other control works the
watermaster regulates under paragraph (c) of this subsection, a
written notice dated and signed by the watermaster, setting forth
that the headgate, valve or other control works has been properly
regulated and is wholly under the control of the watermaster.
(e) Perform any other duties the Water Resources Director may
require.
(2) When a watermaster must rely on a well log or other
documentation to regulate the use or distribution of ground
water, the regulation shall be in accordance with ORS 537.545
{ - (3) - } { + (4) + }.
(3) For purposes of regulating the distribution or use of
water, any stored water released in excess of the needs of water
rights calling on that stored water shall be considered natural
flow, unless the release is part of a water exchange under the
control of, and approved by, the watermaster.
(4) As used in this section, 'existing water rights of record'
includes all completed permits, certificates, licenses and ground
water registration statements filed under ORS 537.605 and related
court decrees.
SECTION 4. { + The amendments to ORS 537.545 by section 1 of
this 2009 Act apply to a well completed on or after the effective
date of this 2009 Act. + }
SECTION 5. 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 { - $500 - } { + $700 + } for an
appropriation of water through a single use, point of diversion
or point of appropriation;
(ii) { - $200 - } { + $250 + } for the first second-foot or
fraction thereof appropriated under the permit;
(iii) { - $100 - } { + $250 + } for each additional
second-foot or fraction thereof appropriated under the permit;
(iv) { - $200 - } { + $250 + } for each additional use,
point of diversion or point of appropriation included in the
application; { - and - }
(v) If appropriating stored water, { - $20 - } { + $25 + }
for the first acre-foot or fraction thereof up to 20 acre-feet,
plus $1 for each additional acre-foot or fraction thereof
{ - . - } { + ; and
(vi) If appropriating ground water, in addition to any other
fees, $300 for each application filed. + }
(B) To store water under ORS 537.400 or 537.534 (4):
(i) A base fee of { - $500 - } { + $700 + }; { - and - }
(ii) { - $20 - } { + $25 + } for the first acre-foot or
fraction thereof up to 20 acre-feet, plus $1 for each additional
acre-foot or fraction thereof { - . - } { + ; and
(iii) $100 for each additional storage location. + }
(C) To exclusively appropriate stored water:
(i) A base fee of { - $250 - } { + $400 + }; and
(ii) { - $15 - } { + $25 + } for the first acre-foot or
fraction thereof up to { - 10 - } { + 20 + } acre-feet, plus
$1 for each additional acre-foot or fraction thereof.
(b) For { - recording - } a permit { + issued under ORS
537.147, 537.211, 537.409 or 537.625 + }to appropriate or store
water { - , $300. - } { + :
(A) A base fee of $400 for recording the permit; and
(B) An additional fee of $500 if the permit is issued pursuant
to a final order that contains provisions requested by the
applicant for mitigating impacts to the proposed water
source. + }
(c) For filing and recording the assignment or partial
assignment of a water right application, permit or license under
ORS 537.220 or 537.635, { - $50 - } { + $75 + }.
(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 { - $400 - } { + $900 + } for a change to
a single water right or permit;
(B) { - $400 - } { + $700 + } for each additional type of
change requested;
(C) For a request for a change in place of use or type of use
or for a water exchange under ORS 540.533, { - $200 - } { +
$250 + } for each second-foot or fraction thereof requested
beyond the first second-foot; { - and - }
(D) { - $200 - } { + $400 + } for each additional water
right or permit included in the application { - . - } { + ; and
(E) An additional fee of $300 per application, if the
application is for an additional point of appropriation, a change
in a point of appropriation or a change from surface water to
ground water or for substitution as described in ORS 540.524. + }
(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 { - $200 - } { +
$600 + } for the first water right or permit, plus { - $50 - }
{ + $200 + } for each additional water right or permit included
in the application and:
(A) For nonirrigation uses, { - $80 - } { + $150 + } for
each second-foot or fraction thereof requested beyond the first
second-foot; or
(B) For irrigation uses, { - $1 - } { + $2 + } per acre of
land irrigated or, if the application and required map are
submitted to the department in a department-approved digital
format, { - 25 - } { + 50 + } cents per acre of land
irrigated.
(j) For submitting a protest to the department { - , $350 - }
{ + :
(A) $600 if the protest is by a nonapplicant; and
(B) $300 if the protest is by an applicant + }.
(k) For filing an application for extension of time within
which irrigation or other works shall be completed or a water
right perfected, { - $350 - } { + $500 + }.
(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 - } { + $300 + } 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, { - $100 - } { + $150 + }.
(o) For participating in a contested case proceeding under ORS
537.170, 537.622 or 543A.130, { - $250 - } { + $350 + }.
(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 or an extension issued under ORS 537.230,
537.248 or 537.630, { - $10 - } { + $20 + }.
(q) For examining an application to store water under ORS
537.409:
(A) A base fee of { - $80 - } { + $300 + }; and
(B) { - $20 - } { + $25 + } for each acre-foot or fraction
thereof.
(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 { - , $280. - } { + :
(A) A base fee of $630 for the first well substitution; and
(B) A fee of $300 for each additional well substitution. + }
(t) For examining an application for an allocation of conserved
water under ORS 537.455 to 537.500 { - , $700. - } { + :
(A) A base fee of $850 for the first water right that is part
of the allocation; and
(B) An additional fee of $300 for each water right that is part
of the allocation beyond the first water right. + }
(u) For submitting a water management and conservation plan
pursuant to rules of the commission:
(A) { - $250 - } { + $400 + }, if the plan is submitted by
an agricultural water supplier;
(B) { - $500 - } { + $800 + }, if the plan is submitted by
a municipal water supplier serving a population of 1,000 or fewer
persons; or
(C) { - $1,000 - } { + $1,600 + }, 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 - } { + $400 + } for an application for a
lease with four or more landowners or four or more water rights;
or
(B) { - $100 - } { + $250 + } for all other applications.
(w) For examining an application for an in-stream water right
lease renewal, { - $50 - } { + $100 + }.
{ + (x) For submitting a claim of beneficial use under a
permit having a priority date of July 9, 1987, or later, $150.
(y) For submitting a request no later than 60 days after
cancellation of a permit under ORS 537.260 to reinstate the
permit, $400.
(z) For submitting a request for a basin program exception
under ORS 536.295, $500.
(2)(a) The department may charge a dam owner an annual fee
based upon the dam's hazard rating as determined by the
department. The fees the department may charge the dam owner are:
(A) $75 for a dam with a low hazard rating.
(B) $150 for a dam with a significant hazard rating.
(C) $500 for a dam with a high hazard rating.
(D) If the dam owner fails to pay an annual fee on or before
six months after the billing date, a late fee of $100.
(b) If a dam owner fails to pay an annual fee or a late fee
charged by the department, the department may, after giving the
dam owner notice by certified mail, place a lien on the real
property where the dam is located for the fees owed by the dam
owner. + }
{ - (2) - } { + (3) + } Notwithstanding the fees
established under subsection (1) of this section, the 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) - } { + (4)(a) + } The 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) - } { + (5) + } 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) - } { + (6) + } 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) - } { + (7) + } All moneys received under this
section, less any amounts refunded under subsection { - (3) - }
{ + (4) + } of this section, shall be deposited in the Water
Resources Department Water Right Operating Fund.
{ - (7) - } { + (8) + } Notwithstanding subsection
{ - (6) - } { + (7) + } 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 6. ORS 537.150 is amended to read:
537.150. (1) Within 15 days after receiving an application, the
Water Resources Department shall determine whether the
application contains the information listed under ORS 537.140 (1)
and is complete and not defective, including the payment of all
fees required under ORS 537.140 (5). If the department determines
that the application is incomplete or defective or that not all
fees have been paid, the department shall return the fees paid
and the application.
(2) Upon determining that an application contains the
information listed under ORS 537.140 (1) and is complete and not
defective, the department shall indorse on the application the
date upon which the application was received at the department,
which shall be the priority date for any water right issued in
response to the application. All applications that comply with
the provisions of law shall be recorded in a suitable book kept
for that purpose.
(3) If an application is complete and not defective, the
department shall determine whether the proposed use is prohibited
by ORS chapter 538. If the proposed use is prohibited by ORS
chapter 538, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by ORS chapter 538,
the department shall undertake an initial review of the
application and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (1) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of { - $150 - } { + $200 + }. If the
department receives no timely response from the applicant, the
department shall proceed with the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050 (1).
SECTION 7. 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) - } { + (4)(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 8. ORS 537.610 is amended to read:
537.610. (1) The Water Resources Commission shall accept all
registration statements referred to in ORS 537.605 completed and
returned to the commission in proper form, endorse on the
registration statement the date of the return and record each
statement. Upon recording the statement, the commission shall
issue to the registrant a certificate as evidence that the
registration is completed.
(2) The issuance of the certificate of registration serves as
prima facie evidence that the registrant is entitled to a right
to appropriate ground water and apply it to beneficial use to the
extent and in the manner disclosed in the recorded registration
statement and in the certificate of registration.
(3) A certificate of registration issued under this section may
not be construed as a final determination of any matter stated in
the certificate of registration. The right of the registrant to
appropriate ground water under a certificate of registration is
subject to determination under ORS 537.670 to 537.695, and is not
final or conclusive until so determined and a ground water right
certificate issued. A right to appropriate ground water under a
certificate of registration has a tentative priority from the
date when the construction of the well was begun.
(4) The commission shall adopt by rule the process and
standards by which the commission will recognize changes in the
place of use, type of use or point of appropriation for claims to
appropriate ground water registered under this section. The
commission shall adopt fees not to exceed { - $500 - } { +
$1,125 + } for actions taken to modify a certificate of
registration.
SECTION 9. ORS 537.620 is amended to read:
537.620. (1) The Water Resources Department shall accept all
applications for permits submitted under ORS 537.615 in proper
form.
(2) Within 15 days after receiving the application, the
department shall determine whether the application contains the
information listed under ORS 537.615 (2) and is complete and not
defective, including the payment of all fees required under ORS
537.615 (5). If the department determines that the application is
incomplete or defective or that not all fees have been paid, the
department shall return the fees paid and the application to the
applicant to remedy the defect. If an application is complete and
not defective, the department shall indorse on the application
the date upon which the application was received at the
department, which shall be the priority date for any water right
issued in response to the application.
(3) Upon determining that an application is complete and not
defective, the department shall determine whether the proposed
use is prohibited by statute. If the proposed use is prohibited
by statute, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by statute, the
department shall undertake an initial review of the application
and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule or because the proposed use is located within a
designated critical ground water area;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (2) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of { - $150 - } { + $200 + }. If the
department receives no timely response from the applicant, the
department shall proceed with the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050
(1)(p).
SECTION 10. 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) - } { + (4)(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 11. ORS 537.785 is amended to read:
537.785. (1) In the administration of ORS 537.505 to 537.795
and 537.992, the Water Resources Commission shall collect in
advance, the fees set forth in ORS { - 536.050 and - } 539.081
for any service similar to any of those referred to in ORS
{ - 536.050 or - } 539.081.
(2) All fees collected by the commission under subsection (1)
of this section shall be paid into the General Fund of the State
Treasury.
SECTION 12. ORS 536.050, as amended by section 5 of this 2009
Act, 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 { - $700 - } { + $500 + } for an
appropriation of water through a single use, point of diversion
or point of appropriation;
(ii) { - $250 - } { + $200 + } for the first second-foot or
fraction thereof appropriated under the permit;
(iii) { - $250 - } { + $100 + } for each additional
second-foot or fraction thereof appropriated under the permit;
(iv) { - $250 - } { + $200 + } for each additional use,
point of diversion or point of appropriation included in the
application; { + and + }
(v) If appropriating stored water, { - $25 - } { + $20 + }
for the first acre-foot or fraction thereof up to 20 acre-feet,
plus $1 for each additional acre-foot or fraction
thereof { + . + } { - ; and - }
{ - (vi) If appropriating ground water, in addition to any
other fees, $300 for each application filed. - }
(B) To store water under ORS 537.400 or 537.534 (4):
(i) A base fee of { - $700 - } { + $500 + }; { + and + }
(ii) { - $25 - } { + $20 + } for the first acre-foot or
fraction thereof up to 20 acre-feet, plus $1 for each additional
acre-foot or fraction thereof { + . + } { - ; and - }
{ - (iii) $100 for each additional storage location. - }
(C) To exclusively appropriate stored water:
(i) A base fee of { - $400 - } { + $250 + }; and
(ii) { - $25 - } { + $15 + } for the first acre-foot or
fraction thereof up to { - 20 - } { + 10 + } acre-feet, plus
$1 for each additional acre-foot or fraction thereof.
(b) For { + recording + } a permit { - issued under ORS
537.147, 537.211, 537.409 or 537.625 - } to appropriate or store
water { + , $300. + } { - : - }
{ - (A) A base fee of $400 for recording the permit; and - }
{ - (B) An additional fee of $500 if the permit is issued
pursuant to a final order that contains provisions requested by
the applicant for mitigating impacts to the proposed water
source. - }
(c) For filing and recording the assignment or partial
assignment of a water right application, permit or license under
ORS 537.220 or 537.635, { - $75 - } { + $50 + }.
(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 { - $900 - } { + $400 + } for a change to
a single water right or permit;
(B) { - $700 - } { + $400 + } for each additional type of
change requested;
(C) For a request for a change in place of use or type of use
or for a water exchange under ORS 540.533, { - $250 - } { +
$200 + } for each second-foot or fraction thereof requested
beyond the first second-foot; { + and + }
(D) { - $400 - } { + $200 + } for each additional water
right or permit included in the application { + . + } { - ;
and - }
{ - (E) An additional fee of $300 per application, if the
application is for an additional point of appropriation, a change
in a point of appropriation or a change from surface water to
ground water or for substitution as described in ORS 540.524. - }
(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 { - $600 - } { +
$200 + } for the first water right or permit, plus { - $200 - }
{ + $50 + } for each additional water right or permit included
in the application and:
(A) For nonirrigation uses, { - $150 - } { + $80 + } for
each second-foot or fraction thereof requested beyond the first
second-foot; or
(B) For irrigation uses, { - $2 - } { + $1 + } per acre of
land irrigated or, if the application and required map are
submitted to the department in a department-approved digital
format, { - 50 - } { + 25 + } cents per acre of land
irrigated.
(j) For submitting a protest to the department { + , $350. + }
{ - : - }
{ - (A) $600 if the protest is by a nonapplicant; and - }
{ - (B) $300 if the protest is by an applicant. - }
(k) For filing an application for extension of time within
which irrigation or other works shall be completed or a water
right perfected, { - $500 - } { + $350 + }.
(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, { - $300 - } { + $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, { - $150 - } { + $100 + }.
(o) For participating in a contested case proceeding under ORS
537.170, 537.622 or 543A.130, { - $350 - } { + $250 + }.
(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 or an extension issued under ORS 537.230,
537.248 or 537.630, { - $20 - } { + $10 + }.
(q) For examining an application to store water under ORS
537.409:
(A) A base fee of { - $300 - } { + $80 + }; and
(B) { - $25 - } { + $20 + } for each acre-foot or fraction
thereof.
(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 { + , $280. + } { - : - }
{ - (A) A base fee of $630 for the first well substitution;
and - }
{ - (B) A fee of $300 for each additional well
substitution. - }
(t) For examining an application for an allocation of conserved
water under ORS 537.455 to 537.500 { + , $700. + } { - : - }
{ - (A) A base fee of $850 for the first water right that is
part of the allocation; and - }
{ - (B) An additional fee of $300 for each water right that
is part of the allocation beyond the first water right. - }
(u) For submitting a water management and conservation plan
pursuant to rules of the commission:
(A) { - $400 - } { + $250 + }, if the plan is submitted by
an agricultural water supplier;
(B) { - $800 - } { + $500 + }, if the plan is submitted by
a municipal water supplier serving a population of 1,000 or fewer
persons; or
(C) { - $1,600 - } { + $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) { - $400 - } { + $200 + } for an application for a
lease with four or more landowners or four or more water rights;
or
(B) { - $250 - } { + $100 + } for all other applications.
(w) For examining an application for an in-stream water right
lease renewal, { - $100 - } { + $50 + }.
{ - (x) For submitting a claim of beneficial use under a
permit having a priority date of July 9, 1987, or later,
$150. - }
{ - (y) For submitting a request no later than 60 days after
cancellation of a permit under ORS 537.260 to reinstate the
permit, $400. - }
{ - (z) For submitting a request for a basin plan exception
under ORS 536.295, $500. - }
{ - (2)(a) The department may charge a dam owner an annual
fee based upon the dam's hazard rating as determined by the
department. The fees the department may charge the dam owner
are: - }
{ - (A) $75 for a dam with a low hazard rating. - }
{ - (B) $150 for a dam with a significant hazard rating. - }
{ - (C) $500 for a dam with a high hazard rating. - }
{ - (D) If the dam owner fails to pay an annual fee on or
before six months after the billing date, a late fee of $100. - }
{ - (b) If a dam owner fails to pay an annual fee or a late
fee charged by the department, the department may, after giving
the dam owner notice by certified mail, place a lien on the real
property where the dam is located for the fees owed by the dam
owner. - }
{ - (3) - } { + (2) + } Notwithstanding the fees
established under subsection (1) of this section, the 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.
{ - (4)(a) - } { + (3)(a) + } The 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.
{ - (5) - } { + (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.
{ - (6) - } { + (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.
{ - (7) - } { + (6) + } All moneys received under this
section, less any amounts refunded under subsection { - (4) - }
{ + (3) + } of this section, shall be deposited in the Water
Resources Department Water Right Operating Fund.
{ - (8) - } { + (7) + } Notwithstanding subsection
{ - (7) - } { + (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 13. ORS 537.150, as amended by section 6 of this 2009
Act, is amended to read:
537.150. (1) Within 15 days after receiving an application, the
Water Resources Department shall determine whether the
application contains the information listed under ORS 537.140 (1)
and is complete and not defective, including the payment of all
fees required under ORS 537.140 (5). If the department determines
that the application is incomplete or defective or that not all
fees have been paid, the department shall return the fees paid
and the application.
(2) Upon determining that an application contains the
information listed under ORS 537.140 (1) and is complete and not
defective, the department shall indorse on the application the
date upon which the application was received at the department,
which shall be the priority date for any water right issued in
response to the application. All applications that comply with
the provisions of law shall be recorded in a suitable book kept
for that purpose.
(3) If an application is complete and not defective, the
department shall determine whether the proposed use is prohibited
by ORS chapter 538. If the proposed use is prohibited by ORS
chapter 538, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by ORS chapter 538,
the department shall undertake an initial review of the
application and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (1) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of { - $200 - } { + $150 + }. If the
department receives no timely response from the applicant, the
department shall proceed with the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050 (1).
SECTION 14. ORS 537.153, as amended by section 7 of this 2009
Act, 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 { - (4)(a) - } { + (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 15. ORS 537.610, as amended by section 8 of this 2009
Act, is amended to read:
537.610. (1) The Water Resources Commission shall accept all
registration statements referred to in ORS 537.605 completed and
returned to the commission in proper form, endorse on the
registration statement the date of the return and record each
statement. Upon recording the statement, the commission shall
issue to the registrant a certificate as evidence that the
registration is completed.
(2) The issuance of the certificate of registration serves as
prima facie evidence that the registrant is entitled to a right
to appropriate ground water and apply it to beneficial use to the
extent and in the manner disclosed in the recorded registration
statement and in the certificate of registration.
(3) A certificate of registration issued under this section may
not be construed as a final determination of any matter stated in
the certificate of registration. The right of the registrant to
appropriate ground water under a certificate of registration is
subject to determination under ORS 537.670 to 537.695, and is not
final or conclusive until so determined and a ground water right
certificate issued. A right to appropriate ground water under a
certificate of registration has a tentative priority from the
date when the construction of the well was begun.
(4) The commission shall adopt by rule the process and
standards by which the commission will recognize changes in the
place of use, type of use or point of appropriation for claims to
appropriate ground water registered under this section. The
commission shall adopt fees not to exceed { - $1,125 - } { +
$500 + } for actions taken to modify a certificate of
registration.
SECTION 16. ORS 537.620, as amended by section 9 of this 2009
Act, is amended to read:
537.620. (1) The Water Resources Department shall accept all
applications for permits submitted under ORS 537.615 in proper
form.
(2) Within 15 days after receiving the application, the
department shall determine whether the application contains the
information listed under ORS 537.615 (2) and is complete and not
defective, including the payment of all fees required under ORS
537.615 (5). If the department determines that the application is
incomplete or defective or that not all fees have been paid, the
department shall return the fees paid and the application to the
applicant to remedy the defect. If an application is complete and
not defective, the department shall indorse on the application
the date upon which the application was received at the
department, which shall be the priority date for any water right
issued in response to the application.
(3) Upon determining that an application is complete and not
defective, the department shall determine whether the proposed
use is prohibited by statute. If the proposed use is prohibited
by statute, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by statute, the
department shall undertake an initial review of the application
and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule or because the proposed use is located within a
designated critical ground water area;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (2) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of { - $200 - } { + $150 + }. If the
department receives no timely response from the applicant, the
department shall proceed with the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050
(1)(p).
SECTION 17. ORS 537.621, as amended by section 10 of this 2009
Act, 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 { - (4)(a) - } { + (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 18. { + The amendments to ORS 536.050, 537.150,
537.153, 537.610, 537.620 and 537.621 by sections 12 to 17 of
this 2009 Act become operative July 1, 2013. + }
SECTION 19. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect
July 1, 2009. + }
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