Chapter 664 Oregon Laws 1999

Session Law

AN ACT

HB 3356

Relating to water rights; creating new provisions; and amending ORS 536.050, 537.020, 537.040, 537.211, 537.470, 540.520 and 540.530 and section 3, chapter 726, Oregon Laws 1997.

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

SECTION 1. 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.

(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) and (6) 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) Notwithstanding subsections (5) and (6) of this section, the Water Resources Director may waive all or part of a fee for a change to a water right permit under ORS 537.211 (4) or a water right subject to transfer under ORS 540.520 or 540.523, if the change is made pursuant to ORS 537.348, is necessary to complete a project funded under ORS 541.375, or is approved by the State Department of Fish and Wildlife as a change that will result in a net benefit to fish and wildlife habitat.

[(4)] (5) Except as provided in subsection [(5)] (6) 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)] (6) 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 2. 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 required under subsection (1) of this section is necessary to allow a change in a water right pursuant to ORS 537.348, is necessary to complete a project funded under ORS 541.375, or is approved by the State Department of Fish and Wildlife as a change that will result in a net benefit to fish and wildlife habitat, the department, at the discretion of the Water Resources Director, may waive or assist the applicant in satisfying the requirements of subsection (2)(c) and (d) of this section. The assistance provided by the department may include, but need not be limited to, development of an application map.

[(3)] (4) 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)] (5) 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)] (6) 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)] (7) 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)] (8) An application for a change of use under this section shall not be 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.

SECTION 3. ORS 540.530 is amended to read:

540.530. (1) If, after hearing or examination, the Water Resources Commission finds that the proposed change can be effected without injury to existing water rights, the commission shall make an order approving the transfer and fixing a time limit within which the approved changes may be completed. The time allowed by the Water Resources Commission for completion of an authorized change shall not be used when computing a five-year period of nonuse under the provisions of ORS 540.610 (1).

(2)(a) If a certificate covering the water right has been previously issued, the commission shall cancel the previous certificate and, when proper proof of completion of the authorized changes has been filed with the commission, issue a new certificate preserving the previously established priority of rights and covering the authorized changes. If only a portion of the water right covered by the previous certificate is affected by the changes, a separate new certificate may be issued to cover the unaffected portion of the water right.

(b) If the change authorized under subsection (1) of this section is necessary to allow a change in a water right pursuant to ORS 537.348, is necessary to complete a project funded under ORS 541.375, or is approved by the State Department of Fish and Wildlife as a change that will result in a net benefit to fish and wildlife habitat, the Water Resources Department, at the discretion of the Water Resources Director, may waive or assist the applicant in satisfying any of the proof of completion requirements of paragraph (a) of this subsection. The assistance provided by the department may include, but need not be limited to, development of a final proof survey map and claim of beneficial use.

(3) Upon receiving notification of the merger or consolidation of municipal water supply entities, or the formation of a water authority under ORS chapter 450, the commission shall cancel the previous certificates of the entities replaced by the merger, consolidation or formation and issue a new certificate to the newly formed municipality or water authority. The new certificate shall preserve the previously established priority of rights of the replaced entities and shall allow beneficial use of the water on any lands acquired in the merger, consolidation or formation.

SECTION 4. ORS 537.020 is amended to read:

537.020. (1) Except as provided in subsection (2) of this section, a person applying to register a water use shall:

(a) Submit a completed notice of registration in conjunction with the application for a permit under ORS 537.140. The notice of registration shall be on forms provided by the Water Resources Department and shall require the applicant to list the name and address of each adjacent property owner.

(b) Mail a copy of the completed notice of registration and application to each adjacent property owner.

(c) Pay fees equivalent to the fees under ORS 536.050 for an application for a permit to appropriate water to be deposited in the Water Resources Department Operating Account as described in ORS 536.050 [(4)] (5).

(d) Provide a map indicating the location of the water use that complies with requirements established by rule by the Water Resources Commission. Except as provided in subsection (3) of this section, the map need not be prepared by a certified water right examiner under ORS 537.798.

(e) Provide any other information the commission may require by rule.

(2) Except as provided in subsection (3) of this section, up to 10 reservoirs may be included in an application under subsection (1) of this section if all the reservoirs are within the same ownership on contiguous property and within the same drainage basin as defined by the commission.

(3) A person may register a reservoir that stores 9.2 acre-feet or more of water or includes a dam 10 feet or higher for wetland, stream and riparian restoration or storm water management if the use qualifies under ORS 537.020 to 537.027. A person applying to register a reservoir that stores 9.2 acre-feet or more of water or includes a dam 10 feet or higher shall:

(a) Submit a separate, completed notice of registration and application for a permit under ORS 537.140 for each reservoir;

(b) Pay fees equivalent to the fees paid under ORS 536.050 for an application for a permit to appropriate water to be deposited in the Water Resources Department Operating Account as described in ORS 536.050 [(4)] (5);

(d) Provide any other information the commission may require by rule.

SECTION 5. ORS 537.040 is amended to read:

537.040. (1) In lieu of applying for a permit for a water right under ORS 537.130, a public agency having jurisdiction over roads or highways may register a water use for road and highway maintenance, construction and reconstruction purposes.

(2) A public agency applying to register a water use under subsection (1) of this section shall:

(a) Submit a completed application to register the water use;

(b) Pay a fee of $300 to be deposited in the Water Resources Department Operating Account in the manner described in ORS 536.050 [(4)] (5);

(d) Identify the sources of surface water or ground water to be used;

(e) Specify the maximum amount of water to be used during a calendar year and during any 24-hour period; and

(f) If the public agency is withdrawing water from a conveyance or storage facility that is a perfected or certificated water right:

(A) Identify the permit or certificate number of the conveyance or storage right; and

(B) Provide written authorization from the owner of the perfected or certificated water right that allows the public agency to use water from the conveyance or storage facility.

(3) A use of water registered under subsection (1) of this section shall continue until the public agency voluntarily withdraws the registration. However, the public agency shall submit an annual renewal statement accompanied by an annual fee of $50 to be deposited in the Water Resources Department Operating Account to be used in the manner described in ORS 536.050. The annual renewal statement shall specify any change in the map, the sources of water to be used or maximum amount of water to be used.

(4) The use of water registered under subsection (1) of this section:

(a) Shall not have priority over any water right exercised under a permit, water right certificate, certificate of registration, order of the Water Resources Commission or the Water Resources Director and related court decrees;

(b) Shall be subordinate to all other future permitted or certificated rights; and

(5) The commission may require a public agency to cease withdrawal or diversion of water at any time the director has reason to believe the registered use is causing a significant adverse impact upon:

(a) The affected watershed;

(b) Any other water user entitled to use water under a permit issued under ORS 537.211 or 537.625 or a certificate issued under ORS 537.250, 537.630 or 539.140; or

(6) The commission may adopt rules to implement this section. The commission shall not require the map to be prepared by a water right examiner certified under ORS 537.798.

(7) As used in this section, "public agency" means the State of Oregon, any agency of the State of Oregon, a county, a special road district of a county, a city, town, incorporated municipality and any federal agency that has jurisdiction over a roadway in this state.

SECTION 6. ORS 537.211 is amended to read:

537.211. (1) The approval of an application referred to in ORS 537.140 or 537.400 shall be set forth in a water right permit issued by the Water Resources Department. The permit shall specify the details of the authorized use and shall set forth any terms, limitations and conditions as the department considers appropriate including but not limited to any applicable condition required under ORS 537.289. A copy of the permit shall be filed as a public record in the department. The permit shall be mailed to the applicant, and upon receipt of the permit the permittee may proceed with the construction of the necessary works and may take all action required to apply the water to the designated beneficial use and to perfect the proposed appropriation.

(2) Except as provided in subsection (5) of this section, if an application under ORS 537.140 or 537.400 indicates that the applicant does not have written authorization or an easement permitting access to nonowned land crossed by the proposed ditch, canal or other work, the department may issue a final order approving the application if the approval includes a condition requiring the applicant to obtain such written authorization, or easement or ownership of such land and to provide the department with a copy of the written authorization, easement or evidence of ownership.

(3) If an application referred to in ORS 537.140 or 537.400 is rejected, the department shall enter a written order setting forth the reasons for the rejection. The applicant shall take no action towards construction of the works or use of the water. The department shall mail a copy of the order to the applicant.

(4) The holder of a water right permit may change the point of diversion, change the point of appropriation, change the point of diversion to allow the appropriation of ground water or use the water on land to which the right is not appurtenant if:

(a) The use of water on land to which the right is not appurtenant, the change of point of diversion or the change in point of appropriation does not result in injury to an existing water right;

(b) For a proposed change in the place of use of the water, the land on which the water is to be used is owned or controlled by the holder of the permit and is contiguous to the land to which the permit is appurtenant;

(c) All other terms of the permit remain the same, including but not limited to the beneficial use for which the water is used and the number of acres to which water is applied;

(d) Prior approval is obtained from the district if the water is transported or conveyed by an irrigation district organized under ORS chapter 545, a drainage district organized under ORS chapter 547, a water improvement district organized under ORS chapter 552, a water control district organized under ORS chapter 553 or a district improvement company or a corporation organized under ORS chapter 554;

(e) The holder of the permit provides written notice to the department at least 60 days before making any changes to the lands, point of diversion or point of appropriation described in the permit;

(f) The holder of the permit complies with the publication requirements of ORS 540.520 [(4)] (5), if applicable;

(g) Diversion is provided with a proper fish screen, if requested by the State Department of Fish and Wildlife; and

(h) For a request to transfer the point of diversion to allow the appropriation of ground water, the proposed change meets the standards set forth in ORS 540.531 (2).

(5) For an application made by or on behalf of a public corporation, the department may issue a permit approving the application without requiring the applicant to obtain prior written authorization or an easement permitting access to nonowned lands affected by the proposed project. However, nothing in this subsection shall be construed to allow any person to trespass on the lands of another person.

(6) When the department receives notice under subsection (4)(e) of this section, the department shall publish the notice in the department's weekly public notice of water right applications.

(7) If the use of water under the permit is for operation of a chemical process mine as defined in ORS 517.953:

(a) Review of the application and approval or denial of the application shall be coordinated with the consolidated application process under ORS 517.952 to 517.989. However, such review and approval or denial shall take into consideration all policy considerations for the appropriation of water as set forth in this chapter and ORS chapter 536.

(b) The permit may be issued for exploration under ORS 517.702 to 517.740, but the permit shall be conditioned on the applicant's compliance with the consolidated application process.

(c) The permit shall include a condition that additional conditions may be added to the use of water when a water right certificate is issued, or when the use of water is changed pursuant to ORS 540.520 and 540.530 to use for a chemical process mine operation.

(8) As used in this section, "contiguous" includes land separated from the land to which a water right is appurtenant by roads, utility corridors, irrigation ditches or publicly owned rights of way.

SECTION 7. ORS 537.470 is amended to read:

537.470. (1) Upon receipt of a conservation proposal under ORS 537.465, the Water Resources Commission shall give notice of receipt of the proposal in accordance with ORS 540.520 [(4)] (5).

(2) The commission shall allocate conserved water as provided in subsection (3) of this section and approve modifications of water rights as provided in subsection (6) of this section.

(3) After determining the quantity of conserved water, if any, required to mitigate the effects on other water rights, the commission shall allocate 25 percent of the remaining conserved water to the state and 75 percent to the applicant, unless the applicant proposes a higher allocation to the state or more than 25 percent of the funds used to finance the conservation measures comes from federal or state public sources. If more than 25 percent of the funds used to finance the conservation measures comes from federal or state public sources and is not subject to repayment, the commission shall allocate to the state a percentage equal to the percentage of public funds used to finance the conservation measures and allocate to the applicant a percentage equal to the percentage of other funds used to finance the conservation measures. If the commission determines that the water allocated to the state is necessary to support in-stream flow purposes in accordance with ORS 537.332 to 537.360, the water shall be converted to an in-stream water right. If the water allocated to the state is not necessary to support in-stream flow purposes, it shall revert to the public for appropriation by the next user in priority. In no event, however, shall the applicant receive less than 25 percent of the remaining conserved water unless the applicant proposes a higher allocation to the state.

(4) The commission shall notify the applicant and any other person requesting notice, of the action the commission intends to take under subsection (3) of this section. Any person objecting to the proposed allocation may file a protest requesting a contested case hearing before the commission.

(5) The modification of water rights under a conservation proposal shall not require a separate request for transfer under ORS 540.520.

(6) After the commission completes the allocation of conserved water under subsection (3) of this section, the commission shall issue orders for proposed new certificates covering the changes in the original water rights. Once the conservation project is completed, separate new certificates preserving the previously established priority of rights shall be issued to cover the unaffected portion of the water rights and separate new certificates indicating the priority of rights as set forth in ORS 537.485 shall be issued to cover the right to the use of the allocated water.

SECTION 8. Section 3, chapter 726, Oregon Laws 1997, is amended to read:

Sec. 3. (1) Upon receipt of a conservation proposal or a request for allocation of conserved water for conservation measures already implemented, as submitted under section 2 [of this Act], chapter 726, Oregon Laws 1997, the Water Resources Commission shall give notice of receipt of the proposal or request in accordance with ORS 540.520 [(4)] (5).

(2) The commission shall allocate conserved water as provided in subsection (3) of this section and approve modifications of water rights as provided in subsection (6) of this section. The commission shall not allocate conserved water pursuant to a request under section 2 (3) [of this Act], chapter 726, Oregon Laws 1997, if:

(a) The request is filed more than five years after the conservation measure was implemented; or

(b) The conserved water was used by the holder of the water right since implementation of the conservation measure.

(4) The commission shall notify the applicant and any other person requesting notice of the action the commission intends to take under subsection (3) of this section. Any person objecting to the proposed allocation may file a protest requesting a contested case hearing before the commission.

(5) The modification of water rights under a conservation proposal shall not require a separate request for transfer under ORS 540.520.

(6) After the commission completes the allocation of conserved water under subsection (3) of this section, the commission shall issue orders for proposed new certificates covering the changes in the original water rights. Once the conservation project is completed, separate new certificates preserving the previously established priority of rights shall be issued to cover the unaffected portion of the water rights and separate new certificates indicating the priority of rights as set forth in section 4 [of this Act], chapter 726, Oregon Laws 1997, shall be issued to cover the right to the use of the allocated water.

SECTION 9. Nothing in the amendments to ORS 537.470 or section 3, chapter 726, Oregon Laws 1997, by section 7 or 8 of this 1999 Act affects the applicable-in-lieu, repealing or operative date provisions of sections 5 and 6, chapter 726, Oregon Laws 1997.

Approved by the Governor July 13, 1999

Filed in the office of Secretary of State July 14, 1999

Effective date October 23, 1999

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