Chapter 665 Oregon Laws 1999

Session Law

AN ACT

HB 3357

Relating to water rights; amending ORS 536.050, 537.230 and 537.534.

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:

(A) To store water under ORS 537.400[, an application for a permit to store water under ORS] or 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.

(B) To exclusively appropriate stored water, $100, 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) 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 2. ORS 537.230 is amended to read:

537.230. (1) Except as provided in ORS 537.240 or 537.248 or under an application by a municipal corporation for municipal uses or purposes, actual construction work shall begin within one year from the date of approval of the application. The construction of any proposed irrigation or other work shall be prosecuted with reasonable diligence and be completed within a reasonable time, as fixed in the permit by the Water Resources Department, not to exceed five years from the date of approval.

(2) Except as provided in ORS 537.240 or 537.248, the department, for good cause shown, shall order and allow an extension of time, including an extension beyond the five-year limit established in subsection (1) of this section within which irrigation or other works shall be completed or the right perfected. In determining the extension, the department shall give due weight to the considerations described under ORS 539.010 (5) and to whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right.

(3) Except as provided in subsection (4) of this section and ORS 537.409, upon completion of beneficial use as required under subsection (1) of this section, the permittee shall hire a water right examiner certified under ORS 537.798 to survey the appropriation. Within one year after application of water to a beneficial use or the beneficial use date allowed in the permit, the permittee shall submit a map of the survey as required by the Water Resources Department, which shall accompany the request for a water right certificate submitted to the department under ORS 537.250. If any property described in the permit is not included in the request for a water right certificate, the permittee shall state the identity of the record owner of that property.

(4) The Water Resources Director may waive the requirement under subsection (3) of this section that a permittee hire a water right examiner certified under ORS 537.798 if:

(a) The permit is a supplemental water right that shares the same distribution system and same place of use as the primary water right; and

(b) The department determines that there is sufficient information in the records of the department to determine proof of beneficial use.

[(4)] (5) Notwithstanding ORS 537.410, for purposes of obtaining a water right certificate under ORS 537.250 for a supplemental water right, the permittee shall have a facility capable of handling the full rate and duty of water requested from the supplemental source and be otherwise ready, willing and able to use the amount of water requested, up to the amount of water approved in the water right permit. To obtain a certificate for a supplemental water right, the permittee is not required to have actually used water from the supplemental source if:

(a) Water was available from the source of the primary water right and the primary water right was used pursuant to the terms of the primary water right; or

(b) The nonuse of water from the supplemental source occurred during a period of time within which the exercise of the supplemental water right permit was not necessary due to climatic conditions.

SECTION 3. ORS 537.534 is amended to read:

537.534. (1) In accordance with this section, the Water Resources Commission shall establish rules for the permitting and administration of aquifer storage and recovery projects. The rules shall establish the Water Resources Department as the sole permitting agency for the projects, but the Department of Environmental Quality and the Health Division may comment on permits for a project and recommend conditions to be included on the permit. When necessary, the applicant also shall obtain land use and development approval from a local government.

(2) Notwithstanding the provisions of ORS 537.130, the Water Resources Commission shall establish by rule a procedure to allow a person to obtain a limited license to store and use water injected into an underground aquifer for aquifer storage and recovery testing purposes for a short term or fixed duration after the person complies with the notice provision set forth in ORS 537.144. The rules shall provide a 30-day public comment period before issuance of a limited license. The department may attach conditions to the limited license regarding monitoring, sampling and rates of recovery up to 100 percent of the injection quantity. Aquifer storage and recovery under a limited license may be conditioned by the department to protect existing ground water rights that rely upon the receiving aquifer and the injection source water. The department may revoke or modify the limited license to use the stored water acquired under a limited license if that use causes injury to any other water right or to a minimum perennial streamflow. The Water Resources Director may issue a limited license for aquifer storage and recovery purposes for a term of not more than five years. The license may be renewed if the applicant demonstrates further testing is necessary.

(3) To obtain a limited license for aquifer storage and recovery, the applicant shall provide to the department:

(a) Well construction information;

(b) Test results of the quality of the injection source water;

(d) The proposed injected water storage time, recovery rates and recovery schedule;

(e) Preliminary hydrogeologic information including a description of the aquifer, estimated flow direction and rate of movement, allocation of surface water, springs or wells within the area affected by aquifer storage and recovery wells;

(f) The fee established by rule by the commission pursuant to ORS 536.050 (1)(L); and

(g) Any other information required by rule of the commission.

(4) Only after completion of a test program under a limited license issued under subsection (3) of this section may the applicant apply for a permanent aquifer storage and recovery permit. Each application for an aquifer storage and recovery permit shall be accompanied by the fee set forth in ORS 536.050 (1)(b)(A). The Water Resources Department shall be the sole permitting agency for the project and may place conditions on the permit consistent with rules adopted by the commission, but the Department of Environmental Quality and the Health Division may review, comment on and recommend conditions to be included on the permit. When necessary, the applicant shall obtain land use and development approval from a local government. Where existing water rights for the injection source water have been issued, the Water Resources Department shall receive comments from interested parties or agencies, but the public interest review standards shall apply only to the matters raised by the aquifer storage and recovery permit application in the same manner as any new water right application, not to the underlying water rights. If new water rights for injection source water and aquifer storage and recovery are necessary, then the public interest review standards shall apply to the new permit application in the same manner as any new water right application. The Water Resources Director may refer policy matters to the commission for decision.

(5) The commission shall adopt rules consistent with this section to implement an aquifer storage and recovery program. The rules shall include:

(a) Requirements for reporting and monitoring the aquifer storage and recovery project aquifer impacts and for constituents reasonably expected to be found in the injection source water.

(b) Provisions that allow any person operating an aquifer storage and recovery project under a permit, upon approval by the department, to recover up to 100 percent of the water stored in the aquifer storage facility if valid scientific data gathered during operations under the limited license or permit demonstrate that the injected source water is not lost through migration or other means and that ground water otherwise present in the aquifer has not been irretrievably lost as a result of aquifer storage or retrieval. The department may place such other conditions on withdrawal of stored water necessary to protect the public health and environment, including conditions allowing reconsideration of the permit to comply with ORS 537.532.

(c) The procedure for allowing the Department of Environmental Quality and the Health Division to comment on and recommend permit conditions.

(6) The use of water under a permit as injection source water for an aquifer storage and recovery project up to the limits allowed in subsection (5)(b) of this section shall not affect the priority date of the water right permit or otherwise affect the right evidenced by the permit.

(7) The holder of a permit for aquifer storage and recovery shall apply for a transfer or change of use if the use of recovered water is different from that which is allowed in the source water permit or certificate.

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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