Chapter 555 Oregon Laws 1999

Session Law

AN ACT

SB 301

Relating to water right transfers; creating new provisions; and amending ORS 536.050, 540.520 and 540.531.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 1999 Act is added to and made a part of ORS 540.505 to 540.580.

SECTION 2. (1) Notwithstanding ORS 540.510 or 540.670, upon approval of an application submitted to the Water Resources Department, the holder of both a primary water right originating from a surface water source and a supplemental water right permit or certificate originating from a ground water source may substitute the use of the supplemental water right for the primary water right. A substitution may not be made under this subsection if the use of the supplemental water right results in an enlargement or expansion of the primary water right. This subsection does not authorize a change in place of use, type of use, point of diversion or point of appropriation.

(2) An application required under subsection (1) of this section shall be submitted on forms provided by the department. The department may request additional information if necessary to assist with the injury evaluation. Each application shall be submitted with the fee described in ORS 536.050 (1)(s).

(3) Upon receiving an application under subsection (1) of this section, the department shall provide notice, accept protests and conduct hearings on protests in the manner described in ORS 540.520 (4), (5) and (6).

(4) The Water Resources Director shall issue an order approving or denying the substitution. If the proposed substitution will result in injury to other water rights, the director shall prohibit or condition the use to avoid or mitigate the injury. The director shall issue an order approving or denying the substitution within 90 days after the department receives an application under subsection (1) of this section.

(5) For the purpose of ORS 540.610, a substituted primary surface water right shall be treated as a supplemental water right, and a substituted supplemental ground water right shall be treated as a primary water right.

(6) A completed and approved substitution of a supplemental ground water right for a primary surface water right under this section may be terminated upon a request by the water right holder or by an order of the director if the director determines that the use of the ground water as the primary water right causes injury to other water rights. Upon termination, the substituted primary and supplemental water rights shall revert back to their original status.

SECTION 3. ORS 536.050 is amended to read:

536.050. (1) For applications filed after July 23, 1997, the following fees shall be collected by the Water Resources Department in advance:

(a) Except as provided under ORS 543.280 for an application for a hydroelectric project, for examining an application for a permit to appropriate water, $250, plus $150 for the first second-foot or fraction thereof, plus $75 for each additional second-foot or fraction thereof.

(b) For examining an application for a permit to store water under ORS 537.400, an application for a permit to store water under ORS 537.534 (4) or an application for a permit to exclusively appropriate stored water, $250, plus $10 for the first acre-foot up to 10 acre-feet, plus $1 for each additional acre-foot up to 1,000 acre-feet, plus 25 cents for each additional acre-foot in excess of 1,000.

(d) For filing or recording any other water right instrument, $25 for the first page and $5 for each additional page.

(e) For copying records in the department, $2 for the first page and 50 cents for each additional page.

(f) For certifying to copies, documents, records, or maps, $10 for each certificate.

(g) For blueprint copy of any map or drawing, the actual cost of the work.

(h) For examining an application for approval of a change to an existing water right, $200, plus $100 for each additional type of change requested, plus, if a request for a change in place of use or type of use or for a water exchange under ORS 540.533, $100 for each second-foot or fraction thereof requested in addition to the first second-foot.

(i) For examining an application for a temporary change in place of use under ORS 540.523 or 540.570, $100, plus:

(A) For nonirrigation uses, $50 for each second-foot or fraction thereof requested in addition to the first second-foot; or

(B) For irrigation uses, 25 cents per acre of land irrigated.

(j) For submitting a protest under ORS 537.153, 537.621 or 543A.120, $200, reduced by the amount of any protest previously paid toward the same application and for filing any other protest with the department, $25.

(k) For filing an application for extension of time within which irrigation or other works shall be completed or the right perfected, $100.

(L) For a limited license under ORS 537.143 or 537.534 (2), the fee established by rule by the Water Resources Commission.

(m) For filing, examining and certifying a petition under ORS 541.329, $250 plus 10 cents per acre of water involved in the application. For purposes of computing this fee, when any acreage within a quarter quarter of a section is involved, the 10 cents per acre shall apply to all acres in that quarter quarter of a section.

(n) For requesting standing under ORS 537.153 (5), 537.621 (6) or 543A.120, $50.

(o) For participating in a contested case proceeding under ORS 537.170 (2), 537.622 (2) or 543A.130, $150.

(p) Except for an applicant, for obtaining a copy of both a proposed final order and a copy of a final order for a water right application under ORS 537.140 to 537.252, 537.505 to 537.795 or 543A.005 to 543A.300, $10.

(q) For submitting an application for a water right permit for a reservoir under ORS 537.409, $10 for each acre-foot, but not more than $100 per application.

(r) For submitting a notice of intent under ORS 543A.030 or 543A.075, the amount established by the director under ORS 543A.410.

(s) For examining an application for a substitution made under section 2 of this 1999 Act, $100.

(2) Notwithstanding the fees established under subsection (1) of this section, the commission may by rule establish examination and permit fees lower than those under subsection (1) of this section for:

(a) The right to appropriate water for a storage project of five acre-feet or less; or

(b) The right to appropriate water for the purpose of allowing the applicant to water livestock outside of a riparian area. As used in this paragraph, "riparian area" has the meaning given that term in ORS 541.350.

(3) Notwithstanding subsections (4) and (5) of this section, if the Water Resources Director determines a refund of a fee paid under this section is appropriate in the interest of fairness to the public or necessary to correct an error of the department, the director may refund all or part of a fee paid to the department.

(4) Except as provided in subsection (5) of this section, all moneys received under subsection (1) of this section shall be deposited in the Water Resources Department Operating Account and credited to the Water Resources Department. Such moneys are continuously appropriated to the Water Resources Department to pay the department's expenses in administering and enforcing the provisions of ORS chapters 536 to 543.

(5) All fees received for power purposes under ORS 543.280 shall be paid to the Water Resources Department Hydroelectric Fund established in ORS 536.015.

SECTION 4. ORS 540.520 is amended to read:

540.520. (1) Except when the application is made under ORS 541.327 or when an application for a temporary transfer is made under ORS 540.523, whenever the holder of a water use subject to transfer for irrigation, domestic use, manufacturing purposes, or other use, for any reason desires to change the place of use, the point of diversion, or the use made of the water, an application to make such change, as the case may be, shall be filed with the Water Resources Department.

(2) The application required under subsection (1) of this section shall include:

(a) The name of the owner;

(b) The previous use of the water;

(d) A description of the premises upon which it is proposed to use the water;

(e) The use which is proposed to be made of the water;

(f) The reasons for making the proposed change; and

(g) Evidence that the water has been used over the past five years according to the terms and conditions of the owner's water right certificate or that the water right is not subject to forfeiture under ORS 540.610.

(3) If the application is to change the point of diversion, the transfer shall include a condition that the holder of the water right provide a proper fish screen at the new point of diversion, if requested by the State Department of Fish and Wildlife.

(4) Upon the filing of the application the department shall give notice by publication in a newspaper having general circulation in the area in which the water rights are located, for a period of at least three weeks and not less than one publication each week. The notice shall include the date on which the last notice by publication will occur. The cost of the publication shall be paid by the applicant in advance to the department. In applications for only a change in place of use or for a change in the point of diversion of less than one-fourth mile, and where there are no intervening diversions between the old diversion of the applicant and the proposed new diversion, no newspaper notice need be published. The department shall include notice of such applications in the weekly notice published by the department.

(5) Within 30 days after the last publication of a newspaper notice of the proposed transfer or the mailing of the department's weekly notice, whichever is later, any person may file, jointly or severally, with the department, a protest against approval of the application.

(6) Whenever a timely protest is filed, or in the opinion of the Water Resources Director a hearing is necessary to determine whether the proposed changes as described by the application would result in injury to existing water rights, the department shall hold a hearing on the matter. Notice and conduct of the hearing shall be under the provisions of ORS 183.310 to 183.550, pertaining to contested cases, and shall be held in the area where the rights are located unless all parties and persons who filed a protest under this subsection stipulate otherwise.

(7) An application for a change of use under this section [shall not be] is not required if the beneficial use authorized by the water use subject to transfer is irrigation and the owner of the water right uses the water for incidental agricultural, stock watering and other uses related to irrigation use, so long as there is no increase in the rate, duty, total acreage benefited or season of use.

(8) A water right transfer under subsection (1) of this section is not required for a general industrial use that was not included in a water right certificate issued for a specific industrial use if:

(a) The quantity of water used for the general industrial use is not greater than the rate allowed in the original water right and not greater than the quantity of water diverted to satisfy the authorized specific use under the original water right;

(b) The location where the water is to be used for general industrial use was owned by the holder of the original water right at the time the water right permit was issued; and

(c) The person who makes the change in water use provides the following information to the Water Resources Department:

(A) The name and mailing address of the person using water under the water right;

(B) The water right certificate number;

(C) A description of the location of the industrial facility owned by the holder of the original water right at the time the water right permit was issued; and

(D) A description of the general industrial use to be made of the water after the change.

SECTION 5. ORS 540.531 is amended to read:

540.531. (1) Notwithstanding ORS 537.515 and 537.535, an owner of a surface water use subject to transfer may apply for a transfer of the point of diversion to allow the appropriation of ground water if the proposed transfer complies with the requirements of subsection (2) of this section and with the requirements for a transfer in point of diversion specified in ORS 540.520 and 540.530.

(2) The Water Resources Department may allow a transfer of the point of diversion under subsection (1) of this section if either:

(a)(A) The new point of diversion appropriates ground water from an unconfined aquifer that is hydraulically connected to the authorized surface water source;

(B) The proposed change in point of diversion will not result in enlargement of the original water right or in injury to other water right holders;

(C) The use of the new point of diversion will affect the surface water source similarly to the authorized point of diversion specified in the water use subject to transfer; and

(D) The withdrawal of ground water at the new point of diversion is located within 500 feet of the surface water source and, when the surface water source is a stream, is also located within 1,000 feet upstream or downstream of the original point of diversion as specified in the water use subject to transfer; or

(b) The new point of diversion is not located within the distance requirements set forth in subsection (2)(a)(D) of this section, the holder of the water use subject to transfer submits to the department evidence prepared by a licensed geologist that demonstrates that the use of the ground water at the new point of diversion will meet the criteria set forth in paragraph (a)(A) to (C) of this subsection.

(3) All applicable restrictions that existed at the original point of diversion shall apply at the new point of diversion allowed under this section.

(4) The new point of diversion shall retain the original date of priority. However, if within five years after approving the transfer, the department finds that the transfer results in substantial interference with existing ground water rights that would not have occurred in the absence of the transfer, the new point of diversion shall be subordinate to any existing right injured by the transferred water right or permit.

(5) The department shall approve an application to return to the last authorized surface water point of diversion if a holder of a water use subject to transfer submits an application to the department within five years after the department approves a transfer under this section.

(6) For any transfer allowed under subsection (1) of this section, the department shall require mitigation measures to prevent depletion from any surface water source not specified in the permit or certificated or decreed water right.

[(6)] (7) As used in this section:

(a) "Similarly" means that the use of ground water at the new point of diversion affects [only] the surface water source specified in the permit or certificated or decreed water right and would result in stream depletion of at least 50 percent of the rate of appropriation within 10 days of continuous pumping.

(b) "Unconfined aquifer" means an aquifer in which the pressure at the upper surface of saturation is equal to atmospheric pressure.

Approved by the Governor July 8, 1999

Filed in the office of Secretary of State July 8, 1999

Effective date October 23, 1999

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