Chapter 541 — Water Distributors; Water Releases; Conservation and Storage;

2011 EDITION

Water Development Projects; Watershed Management and Enhancement

DEVELOPMENT PROJECTS; WATERSHED PROTECTION

WATER LAWS

WATER COMPANIES ORGANIZED UNDER 1891 ACT

541.010 Furnishing of water for certain purposes declared to be a public use; rates; amendment of law

541.020 Construction of ditches and canals by corporation; route across lands

541.030 Ditches and canals across state lands; grant of right of way

541.040 Headgate; mode of construction

541.050 Leakage or overflow; liability; exception

541.055 District liability for seepage and leakage from water or flood control works; limitation on commencement of action

541.060 Waste of water; flooding premises; unnecessary diversion

541.070 Ditches, canals and flumes as real estate

541.080 Suits involving water rights; parties; decree as to priorities

APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER UNDER 1899 ACT

541.110 Use of water to develop mineral resources and furnish power

541.120 Ditches and canals through lands; use of existing ditch by others than owner; joint liability

541.130 Right of way for ditches across state lands

APPROPRIATION OF WATER BY THE UNITED STATES

541.220 Survey of stream system; delivery of data to Attorney General; suits for determination of water rights

541.230 State lands within irrigated area; restrictions on sale; conveyance of lands needed by United States

541.240 Right of way for ditches and canals; reservation in conveyances

541.250 Cession to United States not rescinded

SUITS FOR DETERMINATION OF WATER RIGHTS UNDER 1905 ACT

541.310 Suits for determination of rights; parties; survey of stream; disbursements

541.320 Decrees adjudicating rights; filing; statement as to matters adjudicated

DISTRICT WATER RIGHTS MAPPING

541.325 Definitions for ORS 541.327 to 541.333

541.327 Failure or refusal of district to act; joint applications; eligible participants

541.329 Petition for approval of district map; contents; notice to users; corrections

541.331 Protest against approval of petition; hearing; issuance of water right certificate; land subject to inclusion

541.333 Application for change of place of use, point of diversion or use; contents; form of map

HABITAT STEWARDSHIP AGREEMENTS

541.423 Stewardship agreements; contents; procedures for adoption; rules

541.425 Stewardship Agreement Grant Fund

541.426 Criteria for funding projects from Stewardship Agreement Grant Fund

USE OF WATER TO OPERATE WATER-RAISING MACHINERY

541.430 Use of machinery by riparian owner to raise water; prior rights of others

SPLASH DAMS

541.450 Definitions for ORS 541.450 to 541.460

541.455 Splash dams unlawful

541.460 Abatement proceedings by Attorney General

RELEASE OF WATER FROM IMPOUNDMENT OR DIVERSION STRUCTURE

541.510 Authority of Water Resources Commission to require signs warning public of stream level fluctuation

541.515 Notice by commission when hazard created by release of stored water

541.520 Procedure when owner or operator of structure fails to request hearing; order regulating release of water

541.525 Hearing upon request of owner or operator of structure; notice and conduct of hearing

541.530 Order of commission regulating release of water

541.535 Installation of automatic stream level recording devices

541.540 Procedure in emergency when release of water essential

541.545 Compliance with orders of commission; enforcement

WATER CONSERVATION, REUSE AND STORAGE GRANTS

541.561 Establishment of grant program; direct service cost payment; limitations; project evaluation

541.566 Planning studies eligible for grants or direct service cost payments

541.576 Water Conservation, Reuse and Storage Investment Fund

541.581 Rules for grant and direct service cost payment program

(Umatilla Basin Aquifer Assessment)

(Temporary provisions relating to Umatilla Basin aquifer assessment are compiled as notes following ORS 541.581)

WATER DEVELOPMENT IN COLUMBIA RIVER BASIN

541.600 Definitions for ORS 541.600 to 541.641 and temporary provisions relating to loans for Columbia River Basin projects

541.606 Water Investment Grant Fund

541.611 Application for grant from Water Investment Grant Fund; fee

541.616 Incomplete applications; public notice of application; assessment of project

541.621 Review of grant application; rules; project priority; mandatory considerations; net environmental public benefit

541.631 Conditions for approval of grant application; water storage project design requirements; protection of public benefit; waiver of conditions; rules

541.636 Conditions for issuance of grant; fees

541.641 Exception to water measurement requirement

541.646 Rules for grant and loan programs

(Temporary provisions relating to loans for Columbia River Basin projects are compiled as notes following ORS 541.646)

WATER DEVELOPMENT PROJECTS

(Definitions)

541.700 Definitions for ORS 541.700 to 541.855

(Loan Applications)

541.703 Project applications; preference for approval

541.705 Project applications; contents

541.710 Processing project application; fee

541.715 Applicant authorized to obtain private planning, engineering and construction services

541.720 Conditions for project application approval

541.725 Standards for borrowers; rules

(Loan Contracts)

541.730 Loan contract; repayment plan; interest rate; other terms and conditions

541.735 Payment of funds by State Treasurer pursuant to loan contract

541.740 Liens and other loan security; foreclosure; rules

541.741 Recovery of certain interest amounts

541.745 Remedies of commission when water developer fails to comply with contract

541.750 Repayment of moneys to Water Development Administration and Bond Sinking Fund

541.760 Reduction of loan amount when secondary use funding available

541.765 Authorization for loans for certain federal projects

541.770 Federal project loan contract terms; foreclosure

(Bonds)

541.780 Bonds to provide project financing

541.785 Disposition and use of bond proceeds

541.800 Payment of bond principal and interest from Water Development Administration and Bond Sinking Fund

541.815 Limitation on bond issuance amount

(Administration)

541.830 Water Development Administration and Bond Sinking Fund; sources; use; Governor’s approval

541.835 Water Development Fund; use

541.840 Emergency Board request for funds to pay administrative expenses; repayment of board allocations

541.845 Rules

541.850 Commission acceptance of gifts or grants

541.855 Biennial report to Legislative Assembly and Governor

NORTH UMPQUA RIVER DAMS

541.875 Dams and use of water for hydroelectric generation on North Umpqua prohibited; exceptions

541.880 Responsibility of government entity for repair or maintenance costs of dams on North Umpqua

WATERSHED MANAGEMENT AND ENHANCEMENT

(Definitions)

541.890 Definitions for ORS 541.890 to 541.969

(The Oregon Plan)

541.895 Legislative findings; principles of Oregon Plan; policy

541.898 Oregon Plan described; goals; elements; Governor to negotiate with federal government

(Oregon Plan Administration)

541.900 Oregon Watershed Enhancement Board; officers; qualifications

541.902 Executive director of Oregon Watershed Enhancement Board; appointment

541.904 Authority of executive director to enter into interagency agreements

541.906 Rules

541.910 Voluntary local watershed councils; protection against liability

541.912 Duties of Natural Resources Division

541.914 Independent Multidisciplinary Science Team; duties; agency response to science team recommendations

541.916 Responsibilities of state agency participating in Oregon Plan

541.918 Implementation of grant programs

(Watershed Enhancement Program)

541.920 Conduct of watershed enhancement program; integration of geographic information

541.923 Watershed management program; project funding; high priority watersheds

541.926 Duties of board; grant program; advisory committees

541.929 Duties of board; integrated watershed planning framework; expenditures

541.932 Watershed enhancement project assistance; criteria for funding approval; acquisition of interest in land or water

(Program Funding)

541.935 Oregon Plan for Salmon and Watersheds Legal Fund; sources; uses

541.937 Flexible Incentives Account; sources; uses

541.940 Parks and Natural Resources Fund

541.942 Natural Resources Subaccount

541.945 Watershed Conservation Operating Fund; purposes

541.947 Watershed Conservation Grant Fund

541.949 Authority of board to accept moneys; disposition

541.950 Authority of Governor to accept moneys; disposition

541.953 Watershed Improvement Operating Fund; sources; uses

541.954 Watershed Improvement Grant Fund; sources; uses

(Program Projects)

541.956 Watershed Conservation Grant Fund purposes

541.958 Criteria for project receiving moneys from Watershed Conservation Grant Fund

541.960 Title restrictions on land purchased through grant agreement; rules

(Reports)

541.963 Oregon Watershed Enhancement Board report to Legislative Assembly

541.965 State agency reports to be provided to board

541.967 Agency report to legislative committee prior to adjustment of expenditure limitation or additional funding related to Oregon Plan

541.969 Report to Legislative Assembly by state agencies receiving subaccount moneys

541.972 Oregon Watershed Enhancement Board reports to Governor and Legislative Assembly on Oregon Plan

PENALTIES

541.990 Penalties

WATER COMPANIES ORGANIZED UNDER 1891 ACT

541.010 Furnishing of water for certain purposes declared to be a public use; rates; amendment of law. (1) The use of the water of the lakes and running streams of Oregon, for general rental, sale or distribution, for purposes of irrigation, and supplying water for household and domestic consumption, and watering livestock upon dry lands of the state, is a public use, and the right to collect rates or compensation for such use of water is a franchise. A use shall be deemed general within the purview of this section when the water appropriated is supplied to all persons whose lands lie adjacent to or within reach of the line of the ditch, canal or flume in which the water is conveyed, without discrimination other than priority of contract, upon payment of charges therefor, as long as there may be water to supply.

(2) Rates for the uses of water mentioned in this section may be fixed by the Legislative Assembly or by such officer as may be given that authority by the Legislative Assembly, but rates shall not be fixed lower than will allow the net profits of any ditch, canal, flume or system thereof to equal the prevailing legal rate of interest on the amount of money actually paid in and employed in the construction and operation of the ditch, canal, flume or system.

(3) This section and ORS 541.020 to 541.080 may at any time be amended by the Legislative Assembly, and commissioners for the management of water rights and the use of water may be appointed.

541.020 Construction of ditches and canals by corporation; route across lands. Whenever any corporation organized under the Act of 1891, pages 52 to 60, Oregon Laws 1891, finds it necessary to construct its ditch, canal, flume, distributing ditches, or feeders across the improved or occupied lands of another, it shall select the shortest and most direct route practicable, having reference to cost of construction upon which the ditch, canal, flume, distributing ditches, or feeders can be constructed with uniform or nearly uniform grade.

541.030 Ditches and canals across state lands; grant of right of way. The right of way, to the extent specified in the Act of 1891, pages 52 to 60, Oregon Laws 1891, for the ditches, canals, flumes, distributing ditches, and feeders of any corporation appropriating water under the provisions of the Act of 1891, across all lands belonging to the State of Oregon and not under contract of sale, is granted.

541.040 Headgate; mode of construction. Every corporation having constructed a ditch, canal or flume under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, shall erect and keep in good repair a headgate at the head of its ditch, canal or flume, which, together with the necessary embankments, shall be of sufficient height and strength to control the water at all ordinary stages. The framework of the headgate shall be of timber not less than four inches square, and the bottom, sides and gate shall be of plank not less than two inches in thickness.

541.050 Leakage or overflow; liability; exception. Every corporation having constructed a ditch, canal, flume or reservoir under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, shall be liable for all damages done to the persons or property of others, arising from leakage or overflow of water therefrom growing out of want of strength in the banks or walls, or negligence or want of care in the management of the ditch, canal, flume or reservoir. However, damage resulting from extraordinary and unforeseen action of the elements, or attributable in whole or in part to the wrongful interference of another with the ditch, canal, flume or reservoir, which may not be known to the corporation for such length of time as would enable it by the exercise of reasonable efforts to remedy the same, shall not be recovered against the corporation.

541.055 District liability for seepage and leakage from water or flood control works; limitation on commencement of action. (1) Any person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 that owns, operates or maintains any irrigation, drainage, water supply, water control or flood control works shall be liable for damage caused by seepage and leakage from such works only to the extent that such damage is directly and proximately caused by the negligence of the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 and not otherwise. Damage resulting from extraordinary and unforeseen action of the elements, or attributable in whole or in part to the wrongful interference of another person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 with the irrigation, drainage, water supply, water control or flood control works, which may not be known to the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 for such length of time as would enable the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 by the exercise of reasonable efforts to remedy the same, shall not be recovered against the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554.

(2) An action or suit under subsection (1) of this section must be commenced within two years from the date when the damage is first discovered or in the exercise of reasonable care should have been discovered. However, in no event shall any such action or suit be commenced more than four years from the date the damage actually occurred. [1979 c.882 §1]

541.060 Waste of water; flooding premises; unnecessary diversion. Every corporation having constructed a ditch, canal or flume under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, shall carefully keep and maintain the embankments and walls thereof, and of any reservoir constructed to be used in conjunction therewith, so as to prevent the water from wasting and from flooding or damaging the premises of others. The corporation shall not divert at any time any water for which it has no actual use or demand.

541.070 Ditches, canals and flumes as real estate. All ditches, canals and flumes permanently affixed to the soil, constructed under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, are declared to be real estate, and the same or any interest therein shall be transferred by deed only, duly witnessed and acknowledged. The vendee of the same, or any interest therein, at any stage shall succeed to all the rights of the vendor, and shall be subject to the same liabilities during ownership.

541.080 Suits involving water rights; parties; decree as to priorities. In any suit commenced for the protection of rights to water acquired under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, the plaintiff may make any or all persons who have diverted water from the same stream or source parties to the suit, and the court may in one decree determine the relative priorities and rights of all parties to the suit. Any person claiming a right on the stream or source, not made a party to the suit, may become such on application to the court, when it is made to appear that the person is interested in the result, and may have the right of the person determined. The court may at any stage, on its own motion, require any persons having or claiming rights to water on the stream or source, to be brought in and made parties, when it appears that a complete determination of the issue involved cannot be made without their presence.

APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER UNDER 1899 ACT

541.110 Use of water to develop mineral resources and furnish power. The use of the water of the lakes and running streams of Oregon for the purpose of developing the mineral resources of the state and to furnish electric power for all purposes, is declared to be a public and beneficial use and a public necessity. Subject to the provisions of the Water Rights Act (as defined in ORS 537.010), the right to divert unappropriated waters of any such lakes or streams for such public and beneficial use is granted.

541.120 Ditches and canals through lands; use of existing ditch by others than owner; joint liability. No tract or parcel of improved or occupied land in this state shall, without the written consent of the owner, be subjected to the burden of two or more ditches, canals, flumes or pipelines constructed under the Act of 1899, pages 172 to 180, Oregon Laws 1899, for the purpose of conveying water through the property, when the same object can be feasibly and practically attained by uniting and conveying all the water necessary to be conveyed through such property in one ditch, canal, flume or pipeline. Any person having constructed a ditch, canal, flume or pipeline for the purpose provided in the Act of 1899 shall allow any other person to enlarge such ditch, canal, flume or pipeline, so as not to interfere with the operations of the person owning the same, and to use such ditch, canal, flume or pipeline in common with the person owning the same, upon payment to such person of a reasonable proportion of the cost of constructing and maintaining the ditch, canal, flume or pipeline. Such persons shall be jointly liable to any person damaged.

541.130 Right of way for ditches across state lands. The right of way to the extent specified in the Act of 1899, pages 172 to 180, Oregon Laws 1899, for the ditches, canals, flumes, pipelines, distributing ditches, and feeders of any person appropriating water under the provisions of that Act, across any and all lands belonging to the State of Oregon and not under contract of sale, is granted.

541.210 [Repealed by 1953 c.328 §2]

APPROPRIATION OF WATER BY THE UNITED STATES

541.220 Survey of stream system; delivery of data to Attorney General; suits for determination of water rights. In any stream system where construction is contemplated by the United States under the Act of Congress approved June 17, 1902, 32 Stat. 388 to 390, and known as the Reclamation Act, the Water Resources Commission shall make a hydrographic survey of the stream system, and shall deliver an abstract thereof together with an abstract of all data necessary for the determination of all rights for the use of the waters of such system, to the Attorney General. The Attorney General, together with the district attorneys of the districts affected by the stream system shall, at the request of the Secretary of the Interior, enter suit on behalf of the State of Oregon, in the name of the state, for the determination of all rights for the use of the water, and shall diligently prosecute the same to a final adjudication. [Amended by 1985 c.673 §101]

541.230 State lands within irrigated area; restrictions on sale; conveyance of lands needed by United States. No lands belonging to the state, within the areas to be irrigated from work constructed or controlled by the United States or its authorized agents, shall be sold except in conformity with the classification of farm units by the United States. The title of such land shall not pass from the state until the applicant therefor has fully complied with the provisions of the laws of the United States and the regulations thereunder concerning the acquisition of the right to use water from such works, and shall produce the evidence thereof duly issued. After the withdrawal of lands by the United States for any irrigation project, no application for the purchase of state lands within the limits of such withdrawal shall be accepted, except under the conditions prescribed in this section. Any state lands needed by the United States for irrigation works may, in the discretion of the Department of State Lands, be conveyed to it without charge. [Amended by 1967 c.79 §1]

541.240 Right of way for ditches and canals; reservation in conveyances. There is granted over all the unimproved lands now or hereafter belonging to the state the necessary right of way for ditches, canals, and reservoir sites for irrigation purposes constructed by authority of the United States or otherwise. All conveyances of state land made after May 18, 1905, shall contain a reservation of such right of way and reservoir sites.

541.250 Cession to United States not rescinded. Nothing in ORS 541.220 to 541.240 shall be construed as rescinding the cession by the state to the United States of lands, as provided in chapter 5, Oregon Laws 1905.

SUITS FOR DETERMINATION OF WATER RIGHTS UNDER 1905 ACT

541.310 Suits for determination of rights; parties; survey of stream; disbursements. In any suit wherein the state is a party, for determination of a right to the use of the waters of any stream system, all who claim the right to use the waters shall be made parties. When any such suit has been filed the court shall call upon the Water Resources Commission to make or furnish a complete hydrographic survey of the stream system as provided in ORS 541.220, in order to obtain all data necessary to the determination of the rights involved. The disbursements made in litigating the rights involved in the suit shall be taxed by the court as in other equity suits. [Amended by 1985 c.673 §102]

541.320 Decrees adjudicating rights; filing; statement as to matters adjudicated. Upon the adjudication of the rights to the use of the water of a stream system, a certified copy of the decree shall be prepared by the clerk of the court, without charge, and filed in the Water Resources Department. The decree shall declare, as to the water right adjudged to each party, whether riparian or by appropriation, the extent, the priority, amount, purpose, place of use, and, as to water used for irrigation, the specific tracts of land to which it shall be appurtenant, together with such other conditions as may be necessary to define the right and its priority. [Amended by 1985 c.673 §103]

DISTRICT WATER RIGHTS MAPPING

541.325 Definitions for ORS 541.327 to 541.333. As used in ORS 541.327 to 541.333:

(1) “District” means any district or corporation organized under ORS chapter 545, 547, 552, 553 or 554 or any corporation, cooperative, company or other association formed before 1917 for the purpose of distributing water for irrigation purposes.

(2) “Owned” or “controlled” means ownership in fee, purchase on a land sale contract, option to purchase or lease.

(3) “User” means an owner of land with an appurtenant water right that is subject to assessment by a district and that would be altered by the petition and map filed under ORS 541.329. [1989 c.1000 §1; 1993 c.818 §1]

Note: 541.325 to 541.333 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 541 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

541.327 Failure or refusal of district to act; joint applications; eligible participants. (1) If a district fails or refuses to act under ORS 541.329 and 541.331, the owner of land with an appurtenant water right within a district and subject to assessment by the district may transfer the use or place of use of the water right on or before July 1, 1994, pursuant to ORS 541.333. An owner transferring the use or place of use under this subsection shall comply with ORS 536.050.

(2) If the owners of land within a quarter quarter of a section in a district agree as to the use and place of use of all water rights in the quarter quarter of the section subject to assessment by the district, the owners may jointly submit an application, without the fees required under ORS 536.050, to the Water Resources Department to conform the department’s records to the present usage within the quarter quarter of a section. The application must be filed in accordance with ORS 541.333 on or before July 1, 1994.

(3) The district or users within a district authorized to participate in the process described under ORS 541.325 to 541.333 shall be limited to those districts or users who have notified the department on or before July 1, 1993, of their intention to submit a petition.

(4) Notwithstanding subsection (3) of this section, the Walla Walla River Irrigation District, or its successor district formed under ORS chapter 545 and created after July 1, 1994, may participate in the process described under ORS 541.325 to 541.333 if the district notifies the department on or before June 30, 2004. [1989 c.1000 §2; 1991 c.957 §12; 1993 c.818 §2; 1995 c.554 §5; 2003 c.691 §1]

Note: See note under 541.325.

541.329 Petition for approval of district map; contents; notice to users; corrections. (1) Pursuant to the requirements of subsection (2) of this section, a district may petition the Water Resources Commission for approval and acceptance of a district map indicating the location and use of the water rights within the district or any part thereof. The petition and map shall be in a form satisfactory to the commission and shall be certified by the district rather than a certified water right examiner. For a district that notifies the Water Resources Department under ORS 541.327 (4), the map must be submitted in an electronic format meeting the standards set by the department. The petition and map may not expand a water right of the district or its users beyond the total right of record of the district. If the district has met the requirements of ORS 541.325 to 541.331 and after the opportunity for hearing under ORS 541.331, the commission shall instruct the director to issue a new certificate to the district listing the requested locations and uses and retaining the original priority date. If the commission denies the petition, the commission shall hold a hearing on the denial. Notice and conduct of the hearing shall be under the provisions of ORS chapter 183 pertaining to contested cases. The hearing shall be conducted in the area where the right is located unless the parties and the persons who file the protest under this section stipulate otherwise.

(2) The petition required under subsection (1) of this section shall be submitted on or before July 1, 1994, or before June 30, 2010, for a district notifying the department under ORS 541.327 (4), and shall include:

(a) The name of the district and the certificate number of each water right contained in the petition.

(b) The names of all users within the district whose lands are included in the petition.

(d) A general description of the users’ land and all water rights per each parcel affected by the petition and the map. If the water right is on a tract of land of five acres or less, a notation of the acres of water right on the assessor’s tax map shall be sufficient for identification of the place of use and the extent of use.

(e) A description of the use that is proposed to be made of the water on each parcel.

(f) An affirmation by the petitioner that the map and petition are accurate to the best of the petitioner’s knowledge.

(3) A petition submitted under this section shall contain no more acres of land than the least of the following:

(a) The number of acres assessed by the district as of July 1, 1989;

(b) The number of acres assessed by the district as of July 1, 1993; or

(c) If a district notifies the department under ORS 541.327 (4), the number of acres assessed by the district as of December 31, 2003.

(4) Before submitting a petition under subsection (2) of this section, the district shall send a notice to the user of every parcel whose right of record is to be altered, as evidenced by the district’s records. This notice shall be sent to the last-known address for the user with a return receipt requested. The notice shall include the number of acre-feet of water or its equivalent, for which the user is being assessed, a general description or tax lot of the land to which the water is assigned, a description of the use and a request for confirmation that the information in the notice is correct. Thirty days after the notice is mailed, the district shall prepare a petition and map as described in subsections (1) and (2) of this section. Payment for water by the user or the user’s predecessor for a period of five years before the petition shall create a rebuttable presumption that the number of acres billed and paid by the user or the user’s predecessor is equal to the user’s water right.

(5) Within 30 days after the commission issues a proposed order regarding the petition, the district shall send notice to the users of the district whose right of record is to be altered by the proposed order. This notice shall be sent to the last-known address of the user with a return receipt requested. The notice shall include the number of acres of land, or its equivalent, for which the user is being assessed, a general description or tax lot number of the land to which the water is assigned and a description of the use. In addition to the notice of the proposed order that the district sends to the users, the district shall publish at the same time notice in a newspaper having general circulation in the area in which the water rights are located for a period of at least two weeks. Not less than one publication in each week shall be made. The notice shall state:

(a) The number of acres of water right that each parcel shall receive and the associated priority dates;

(b) That the proposed map and order are available for inspection at the office of the district during normal business hours for a period of 60 days from the date of first publication;

(c) That not less than 60 days after the date of first publication, the commission shall approve the petition and map and issue a final order unless a protest is filed or the petition does not meet the requirements of subsections (1) and (2) of this section; and

(d) That the user has the right to protest the proposed order and map as described in ORS 541.331.

(6) If the commission returns a petition or map to a district for correction, the commission may prescribe a deadline for the petitioner to provide additional information or correct the petition or map. If the petitioner fails to meet the deadline prescribed by the commission, the commission may deny the petition. [1989 c.1000 §3; 1991 c.957 §13; 1993 c.818 §3; 2003 c.691 §2; 2011 c.52 §8]

Note: See note under 541.325.

541.331 Protest against approval of petition; hearing; issuance of water right certificate; land subject to inclusion. (1) Any user may file with the Water Resources Department, within 60 days after the date of first publication, under ORS 541.329, a protest against a proposed order approving the petition. Whenever a timely protest is filed or in the opinion of the Water Resources Director a hearing is necessary to determine whether the district has met the requirements of ORS 541.325 to 541.333 or the proposed changes described in the proposed order would result in injury to existing water rights, the department shall hold a hearing on the matter. The hearing shall be conducted according to the provisions of ORS chapter 183 applicable to contested cases. The hearing shall be held in the area where the rights are located unless the parties and the persons who filed the protest under this section stipulate otherwise.

(2) If after examination or hearing, the department finds that the district has met the requirements of ORS 541.325 to 541.331 and that the changes described in the proposed order would not result in injury to existing water rights, the department shall issue a final order approving the petition and map as described in the proposed order. If a water right certificate for the water right has been issued previously, the department shall cancel the previous certificate and issue a new certificate that conforms to the final order and map and retains the original priority date.

(3) A certificate issued under this section shall have the evidentiary effect provided for in ORS 537.270 except when the right to appropriate water described in the certificate is abandoned after the certificate is amended or issued.

(4) The department may approve for inclusion in a new certificate under ORS 541.329 and this section only land which, on July 1, 1993, or, if a district notifies the department under ORS 541.327 (4), on December 31, 2003, is:

(a) Land within the legal boundaries of the district as those boundaries were originally described or as they may have been changed by legally prescribed inclusion or exclusion proceedings.

(b) Land for which inclusion in the district has been requested previously as prescribed by law.

(c) Land on which a previously perfected water right has been applied beneficially and for which the user has been charged or assessed by the district in at least one of the last five years and for which the user is currently being charged or assessed. [1989 c.1000 §4; 1993 c.818 §4; 1995 c.554 §7; 1999 c.590 §1; 2003 c.691 §3]

Note: See note under 541.325.

541.333 Application for change of place of use, point of diversion or use; contents; form of map. (1) Whenever the owner of a water right for irrigation, domestic use, stock water storage or other use, for any reason desires to change the place of use, the point of diversion or the use made of the water under ORS 541.327, an application 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;

(g) If the application is made under ORS 541.327 (1), evidence that the water has been used within the past five years upon lands owned or controlled by the owner of the water right;

(h) In the event the application is made pursuant to ORS 541.327 (2), evidence that the water has been used within the past five years in the quarter quarter of a section; and

(i) The approval of the district in which the water right is located.

(3) The description of the premises or mapping required under ORS 541.329 (2) shall not require a map prepared by a certified water right examiner, but shall be in a form satisfactory to the Water Resources Commission. If the water right is on a tract of land of five acres or less, the assessor’s tax map with a notation of the acres of water right shall be sufficient for identification of the tract and place of use.

(4) A certificate issued under this section has the evidentiary effect provided for in ORS 537.270 except when the right to appropriate water described in the certificate is abandoned after the certificate is amended or issued. [1989 c.1000 §5; 1995 c.554 §8]

Note: See note under 541.325.

541.345 [Formerly 536.600; repealed by 1999 c.1026 §29]

541.347 [1993 c.601 §1; repealed by 1999 c.1026 §3 (541.353 enacted in lieu of 541.347)]

541.350 [1987 c.734 §1; 1995 c.187 §1; repealed by 1999 c.1026 §1 (541.351 enacted in lieu of 541.350)]

541.351 [1999 c.1026 §2 (enacted in lieu of 541.350); 2011 c.643 §7; renumbered 541.890 in 2011]

541.353 [1999 c.1026 §4 (enacted in lieu of 541.347); renumbered 541.895 in 2011]

541.355 [1987 c.734 §2; 1995 c.187 §2; 1999 c.1026 §20; repealed by 2001 c.841 §5]

541.360 [1987 c.734 §3; 1995 c.187 §3; 1999 c.1026 §8; 2011 c.643 §20; renumbered 541.900 in 2011]

541.362 [1999 c.1026 §9; renumbered 541.902 in 2011]

541.363 [1999 c.1026 §10; renumbered 541.904 in 2011]

541.365 [1987 c.734 §5; 2001 c.841 §3a; 2001 c.842 §1; renumbered 541.920 in 2011]

541.368 [1999 c.1026 §6; renumbered 541.918 in 2011]

541.370 [1987 c.734 §6; 1995 c.187 §4; 1997 c.8 §8; 1999 c.59 §174; 1999 c.1026 §11; 2001 c.708 §15; 2011 c.643 §21; renumbered 541.926 in 2011]

541.371 [1999 c.1026 §12; 2011 c.643 §18; renumbered 541.929 in 2011]

541.372 [1991 c.657 §2; renumbered 541.949 in 2011]

541.373 [2003 c.452 §3; 2011 c.643 §17; renumbered 541.950 in 2011]

541.375 [1987 c.734 §7; 1989 c.171 §71; 1995 c.187 §5; 1997 c.7 §8; 1999 c.1026 §13; 2011 c.643 §§22,30a; renumbered 541.932 in 2011]

541.376 [2001 c.645 §2; 2011 c.643 §23; renumbered 541.960 in 2011]

541.377 [1999 c.1026 §7; 2003 c.14 §346; 2011 c.643 §1; renumbered 541.940 in 2011]

541.378 [1999 c.1026 §7a; 2007 c.217 §6; repealed by 2011 c.643 §25]

541.379 [1999 c.1026 §7b; 2011 c.643 §26; renumbered 541.953 in 2011]

541.380 [1987 c.734 §8; 1997 c.7 §9; 1999 c.270 §5; 1999 c.1026 §14; 2001 c.708 §16; renumbered 541.396 in 2001]

541.381 [2001 c.708 §13; 2007 c.608 §3; renumbered 541.937 in 2011]

541.382 [Formerly 541.385; repealed by 1999 c.1026 §29]

541.384 [1993 c.601 §2; 1995 c.187 §6; renumbered 541.923 in 2011]

541.385 [1987 c.734 §4; renumbered 541.382 in 1995]

541.388 [1993 c.601 §3; 1995 c.187 §7; 1999 c.300 §1; renumbered 541.910 in 2011]

541.390 [1987 c.734 §9; 2001 c.104 §228; renumbered 541.912 in 2011]

541.392 [Formerly 541.400; 1999 c.1026 §15; 2011 c.643 §24; renumbered 541.963 in 2011]

541.395 [1987 c.734 §10; renumbered 541.965 in 2011]

541.396 [Formerly 541.380; 2007 c.354 §19; renumbered 541.906 in 2011]

541.397 [1997 c.8 §4; 1999 c.1026 §15b; 2011 c.643 §28; renumbered 541.954 in 2011]

541.399 [1997 c.8 §5; 1999 c.1026 §16; repealed by 2011 c.643 §15]

541.400 [1993 c.601 §4; 1995 c.187 §8; renumbered 541.392 in 1997]

541.401 [1997 c.8 §6; 2011 c.643 §14; renumbered 541.958 in 2011]

541.403 [1997 c.8 §7; repealed by 1999 c.1026 §29]

541.405 [1997 c.7 §1; 1999 c.270 §3; 1999 c.1026 §5; 2001 c.841 §4; 2003 c.452 §1; 2007 c.354 §20; renumbered 541.898 in 2011]

541.407 [1997 c.7 §4; 1999 c.244 §1; 1999 c.270 §6; 1999 c.1026 §21; 2007 c.354 §21; repealed by 2011 c.272 §25]

541.409 [1997 c.7 §5; 1999 c.270 §7; 1999 c.1026 §22; 2007 c.354 §22; renumbered 541.914 in 2011]

541.410 [Renumbered 541.430 in 1997]

541.411 [1997 c.7 §10; 1999 c.270 §8; 2007 c.354 §23; renumbered 541.916 in 2011]

541.413 [1997 c.7 §13; 1999 c.270 §9; 1999 c.1026 §23; 2007 c.354 §24; renumbered 541.967 in 2011]

541.415 [1999 c.1026 §17; renumbered 541.935 in 2011]

541.420 [2001 c.841 §1; 2007 c.354 §25; renumbered 541.972 in 2011]

HABITAT STEWARDSHIP AGREEMENTS

541.423 Stewardship agreements; contents; procedures for adoption; rules. (1) As used in this section, “stewardship agreement” means an agreement voluntarily entered into and signed by a landowner, or representative of the landowner, and the State Department of Agriculture or the State Board of Forestry that sets forth the terms under which the landowner will self-regulate to meet and exceed applicable regulatory requirements and achieve conservation, restoration and improvement of fish and wildlife habitat or water quality.

(2) The State Department of Agriculture and the State Board of Forestry may, individually or jointly, enter into stewardship agreements with landowners.

(3) The purposes of a stewardship agreement are to provide:

(a) An incentive for landowners to provide for conservation, restoration and improvement of fish and wildlife habitat or water quality;

(b) A mechanism to coordinate, facilitate and memorialize a landowner’s compliance with the requirements of state and federal regulatory schemes; and

(A) Improve the delivery of financial and technical assistance to landowners engaged in conservation activities;

(B) Reduce redundancy among programs;

(D) Leverage the investment of federal funds;

(E) Make more efficient use of technical assistance funds;

(F) Provide greater incentives for landowners;

(G) Foster partnerships and improve cooperation with nongovernmental organizations;

(H) Provide greater environmental benefits;

(I) Tailor and more effectively target conservation programs administered by federal, state and local governments to the unique conservation needs of, and opportunities presented by, individual parcels of eligible land; and

(J) Give landowners an increased level of regulatory certainty.

(4) The State Board of Forestry and the State Department of Agriculture, in consultation with the State Department of Fish and Wildlife, shall adopt by rule procedures and criteria for stewardship agreements. The procedures and criteria shall include, but need not be limited to:

(a) The certification of a land management plan which shall, at a minimum, include:

(A) A comprehensive description and inventory of the subject property, its features and uses; and

(B) A prescription for the protection of resources that exceeds land management practices, standards and activities otherwise required by law and that is designed to achieve conservation, restoration and improvement of fish and wildlife habitat or water quality.

(b) A requirement that each landowner subject to a stewardship agreement demonstrate a clear capability to carry out the provisions of the land management plan and have a past record of good compliance with applicable laws and regulations regarding land use and management.

(5) Each government agency that is a party to a stewardship agreement shall conduct periodic audits on lands subject to the stewardship agreement to determine whether the land management plan is being implemented and whether the agreement should be continued, revised or discontinued.

(6) Stewardship agreements may provide benefits to landowners that include, but are not limited to:

(a) Expedited permit processing;

(b) Regulatory certainty;

(d) Government certification that certain land management practices have been implemented.

(7) Within a stewardship agreement and on a case-by-case basis, the State Department of Agriculture or the State Board of Forestry may provide a landowner with an increased level of regulatory certainty regarding state rules. The stewardship agreement may identify specific voluntary landowner actions that exceed regulatory requirements. In return, the State Department of Agriculture or the State Board of Forestry may agree to exempt the landowner from future changes to a specific rule.

(8) The State Department of Agriculture and the State Board of Forestry may, individually or jointly, make a binding determination that activities undertaken by a particular landowner, or a representative of the landowner, as part of a stewardship agreement are consistent with the purposes and policies of any relevant Safe Harbor Agreements or Candidate Conservation Agreements entered into between the State of Oregon and agencies of the United States Government, pursuant to the federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et seq.) and federal regulations. [2003 c.539 §31; 2007 c.608 §4]

Note: 541.423 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 541 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

541.425 Stewardship Agreement Grant Fund. (1) The Stewardship Agreement Grant Fund is established separate and distinct from the General Fund. The Stewardship Agreement Grant Fund shall consist of all moneys placed in the fund as provided by law. All moneys in the Stewardship Agreement Grant Fund are continuously appropriated to the State Board of Forestry to provide grants to carry out the purposes of stewardship agreements described in ORS 541.423. Interest accruing to the Stewardship Agreement Grant Fund shall be credited to the fund. Funds appropriated and not expended by the completion of a biennium shall remain in the Stewardship Agreement Grant Fund.

(2) The State Board of Forestry shall administer the Stewardship Agreement Grant Fund and provide grants from the fund to landowners who have entered into stewardship agreements for the purposes described in ORS 541.423.

(3) In addition to the funds made available for the purposes of ORS 541.423, the board also may accept gifts and grants from any public or private source for the purpose of providing the grants described in subsection (2) of this section. [2007 c.608 §1]

Note: 541.425 and 541.426 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 541 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

541.426 Criteria for funding projects from Stewardship Agreement Grant Fund. The State Board of Forestry may award funds from the Stewardship Agreement Grant Fund only for the purposes described in ORS 541.425. Any projects that the board approves for funding must comply with the following criteria:

(1) There must be matching contribution from other program funds, in-kind services or other investment in the project; and

(2) The project must provide a public benefit through improved water quality or improved fish or wildlife habitat. [2007 c.608 §2]

Note: See note under 541.425.

USE OF WATER TO OPERATE WATER-RAISING MACHINERY

541.430 Use of machinery by riparian owner to raise water; prior rights of others. Any person who owns or has the possessory right to any land bordering on any lake or natural stream of water shall have the right to employ wheels, pumps, hydraulic engines, or other machinery for the purpose of raising water to the level required for use of the water in irrigating any land belonging to the person; provided, that the use of the water shall not conflict with the better or prior right of any other person. [Formerly 541.410]

SPLASH DAMS

541.450 Definitions for ORS 541.450 to 541.460. As used in ORS 541.450 to 541.460 and 541.990:

(1) “Splash dam” means a dam constructed and used in the floating and driving of logs and other lumber products whereby water behind the dam is released for the purpose of causing or aiding the floating of logs or other lumber products on a navigable or nonnavigable river in the waters thereof below the location of the dam.

(2) “Splash dam” does not mean any device used on the waters of this state for the assembly or storage of logs or other lumber products, or for any other purpose incidental thereto. [1957 c.163 §1]

541.455 Splash dams unlawful. It is unlawful to operate a splash dam on any of the navigable or nonnavigable waters of this state. An officer or agency of this state may not issue any permit for the construction or maintenance of any dam to be used for splash dam purposes. [1957 c.163 §2; 2005 c.22 §380]

541.460 Abatement proceedings by Attorney General. The Attorney General, upon being informed that any violation of ORS 541.450 to 541.460 or 541.990 (1) has occurred, is hereby empowered to proceed immediately in the circuit court of the county in which said splash dam is located, to petition the court for the removal of said splash dam by abatement proceedings; and all costs in connection therewith incurred by the Attorney General shall be assessed against the offending person, firm or corporation. [1957 c.163 §3]

RELEASE OF WATER FROM IMPOUNDMENT OR DIVERSION STRUCTURE

541.510 Authority of Water Resources Commission to require signs warning public of stream level fluctuation. (1) Whenever it appears to the satisfaction of the Water Resources Commission upon the commission’s own determination or upon evidence submitted by any person that the release of water from an impoundment or diversion structure constructed before or after May 26, 1959, endangers or may endanger the public safety, the commission shall send a written notice to the owner or operator of the structure.

(2) The notice provided for in subsection (1) of this section shall state:

(a) That the release of water from the impoundment or diversion structure endangers or may endanger the public safety.

(b) That the owner or operator of the structure shall within a time to be set by the commission post notices downstream from the structure at places of public access to the stream to be designated by the commission warning the public that the stream level below the structure is subject to fluctuation. [1959 c.624 §1; 1961 c.379 §9a; 1985 c.673 §104]

541.515 Notice by commission when hazard created by release of stored water. (1) Whenever it appears to the satisfaction of the Water Resources Commission, upon the commission’s own determination or upon evidence submitted by any person that the present or proposed release of stored water from an impoundment or diversion structure, including any water power project, constructed before or after May 1, 1961, results in rapid increase in the stream level below the structure which creates or will create a hazard to human life or property, the commission shall cause written notice of such determination to be mailed to the owner or operator of the structure.

(2) The notice provided for in subsection (1) of this section shall state:

(a) That the present or proposed release of stored water from the impoundment or diversion structure creates or may create an unreasonable hazard to human life or property.

(b) The manner in which such unreasonable hazard to human life or property is or may be created.

(c) The action which is required, in the opinion of the commission, to minimize such unreasonable hazard to human life or property.

(d) That the owner or operator of the impoundment or diversion structure, within 15 days after the mailing of the notice, may request in writing that the commission hold a hearing on such unreasonable hazard or action required to minimize such unreasonable hazard, and that upon failure to request a hearing the commission shall make an order stating the terms, limitations and conditions of the action required to minimize such unreasonable hazard. [1961 c.379 §1; 1985 c.673 §105]

541.520 Procedure when owner or operator of structure fails to request hearing; order regulating release of water. If, within 15 days after the mailing of the notice provided for in ORS 541.515, the owner or operator of the impoundment or diversion structure fails to request in writing that the Water Resources Commission hold a hearing, the commission shall make and file in the Water Resources Department an order stating the terms, limitations and conditions relating to the release of water from the structure necessary to minimize unreasonable hazard to human life or property as set forth in the notice. The order shall become effective upon filing a copy in the Water Resources Department. The commission shall cause a copy of the order to be mailed to the owner or operator of the structure. The order is not subject to appeal. [1961 c.379 §2; 1985 c.673 §106]

541.525 Hearing upon request of owner or operator of structure; notice and conduct of hearing. (1) If, within 15 days after mailing of the notice provided for in ORS 541.515, the owner or operator of the impoundment or diversion structure requests in writing that the Water Resources Commission hold a hearing, the commission shall hold a hearing in accordance with ORS chapter 183 on the hazard to human life or property which is or will be created by the rapid increase in the stream level below the structure resulting from the release of water from the structure and the terms, limitations and conditions relating to such release of water necessary to minimize such unreasonable hazard.

(2) At least 10 days prior to the hearing the commission, in addition to the notice requirements of ORS chapter 183, shall cause a copy of the notice to be published in a newspaper of general circulation in each county in which the structure is located and in which unreasonable hazard to human life or property is or may be created. [1961 c.379 §3; 1971 c.734 §83; 1985 c.673 §107]

541.530 Order of commission regulating release of water. After the hearing provided for in ORS 541.525, if the Water Resources Commission determines that the release of stored water from the impoundment or diversion structure results or will result in rapid increase in the stream level below the structure and the increase creates or will create an unreasonable hazard to human life or property, the commission shall make and file in the offices of the Water Resources Department an order stating the terms, limitations and conditions relating to the release of water from the structure necessary to minimize the unreasonable hazard. In determining what constitutes unreasonable hazard and what terms, limitations and conditions are necessary to minimize it, the commission shall consider the likelihood of harm to the public, recreation benefits, power benefits, agriculture benefits, purpose of the structure, water flows, extent, nature and time of use by the public and all other material factors. [1961 c.379 §4; 1971 c.734 §84; 1985 c.673 §108]

541.535 Installation of automatic stream level recording devices. An order of the Water Resources Commission under ORS 541.520 or 541.530 may require the owner or operator of an impoundment or diversion structure to install one or more automatic stream level recording devices satisfactory to the commission at one or more locations satisfactory to the commission. The cost of each such device and the installation and maintenance thereof shall be paid by the owner or operator of the structure. [1961 c.379 §5; 1985 c.673 §109]

541.540 Procedure in emergency when release of water essential. When conditions beyond the control of the owner or operator of an impoundment or diversion structure, to which an order of the Water Resources Commission, made as provided in ORS 541.520 or 541.530 relates, threaten the safety of the structure, and the release of water from the structure contrary to the terms, limitations and conditions stated in the order is or may be necessary to remove such threat:

(1) The terms, limitations and conditions of the order shall not apply to such release of water.

(2) The owner, operator or person in immediate charge of the structure shall immediately notify the commission or the Water Resources Department of the situation.

(3) The owner, operator or person in immediate charge of the structure shall immediately notify, to the best of the person’s ability, those persons whose life or property may be threatened by such release of water. [1961 c.379 §6; 1985 c.673 §110]

541.545 Compliance with orders of commission; enforcement. (1) No person shall fail to comply with an order of the Water Resources Commission made as provided in ORS 541.520 or 541.530.

(2) The commission may enforce any order made as provided in ORS 541.520 or 541.530, and may prosecute proceedings to enjoin violations of subsection (1) of this section. [1961 c.379 §§7, 8; 1985 c.673 §111]

541.550 [1987 c.855 §3; 1989 c.904 §69; renumbered 196.600 in 1989]

541.555 [1987 c.855 §2; renumbered 196.605 in 1989]

541.557 [1987 c.855 §7; renumbered 196.610 in 1989]

541.560 [1987 c.855 §8; renumbered 196.615 in 1989]

WATER CONSERVATION, REUSE AND STORAGE GRANTS

541.561 Establishment of grant program; direct service cost payment; limitations; project evaluation. (1) The Water Resources Department shall establish a grant program to pay the qualifying costs of planning studies performed to evaluate the feasibility of developing a water conservation, reuse or storage project, as described in ORS 541.566. A grant under this section may be made to a local government as defined in ORS 174.116, to an Indian tribe as defined in ORS 391.802 or to a person.

(2) In lieu of grants, the department may pay the cost of providing direct services, including but not limited to technical planning services, for a planning study that is eligible for a grant under this section.

(3) A grant or the cost of direct services provided under this section may not exceed $500,000 per project. A grant or payment for direct services may be provided only if the amount of the grant or the cost of the direct services is matched by funding from another source that is not less than a dollar-for-dollar match of the amount or cost.

(4) Grants and the cost of direct services provided under this section must be paid for from moneys available in the Water Conservation, Reuse and Storage Investment Fund.

(5)(a) In evaluating above ground storage projects for awards of grants or payments for direct services under this section, the department shall give priority to projects that include provisions for using stored water to augment in-stream flows to conserve, maintain and enhance aquatic life, fish life or other ecological values.

(b) In evaluating all other eligible projects, the department shall give priority to projects identified by the department in a statewide water assessment and inventory for the award of grants or provision of payment for direct services under this section. [2008 c.13 §1]

Note: 541.561 to 541.581 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 541 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

541.565 [1987 c.855 §9; renumbered 196.620 in 1989]

541.566 Planning studies eligible for grants or direct service cost payments. (1) A planning study receiving a grant or payment for direct services under ORS 541.561 may include, but is not limited to:

(a) Analyses of hydrological refill capacity;

(b) Water needs analyses;

(d) Engineering and financial feasibility studies;

(e) Geologic analyses;

(f) Water exchange studies;

(g) Analyses of by-pass, optimum peak, flushing and other ecological flows of the affected stream and the impact of a proposed water conservation, reuse or storage project on those flows;

(h) Comparative analyses of alternative means of supplying water, including but not limited to the costs and benefits of conservation and efficiency alternatives and the extent to which long-term water supply needs may be met using those alternatives;

(i) Analyses of environmental harm or impacts from a proposed water conservation, reuse or storage project;

(j) Analyses of public benefits accruing from a proposed water conservation, reuse or storage project;

(k) Fiscal analyses of a proposed water conservation, reuse or storage project, including estimated project costs, financing for the project and projected financial returns from the project;

(L) Hydrological analyses of a proposed water conservation, reuse or storage project, including the anticipated effects of climate change on hydrological refill capacity; and

(m) Analyses of potential water quality impacts of the project.

(2) If a planning study concerns a proposed storage project that would impound surface water on a perennial stream, divert water from a stream that supports sensitive, threatened or endangered fish or divert more than 500 acre-feet of surface water annually, a grant or direct services payment may be provided only if the study contains:

(a) Analyses of by-pass, optimum peak, flushing and other ecological flows of the affected stream and the impact of the storage project on those flows;

(b) Comparative analyses of alternative means of supplying water, including but not limited to the costs and benefits of conservation and efficiency alternatives and the extent to which long-term water supply needs may be met using those alternatives;

(d) Evaluation of the need for and feasibility of using stored water to augment in-stream flows to conserve, maintain and enhance aquatic life, fish life and any other ecological values; and

(e) For a proposed storage project that is for municipal use, analysis of local and regional water demand and the proposed storage project’s relationship to existing and planned water supply projects. [2008 c.13 §2]

Note: See note under 541.561.

541.567 [1987 c.855 §10; renumbered 196.625 in 1989]

541.570 [1987 c.855 §12; renumbered 196.630 in 1989]

541.575 [1987 c.855 §13; renumbered 196.635 in 1989]

541.576 Water Conservation, Reuse and Storage Investment Fund. (1) The Water Conservation, Reuse and Storage Investment Fund is established in the State Treasury, separate and distinct from the General Fund. Interest earned by the Water Conservation, Reuse and Storage Investment Fund shall be credited to the General Fund. Moneys in the Water Conservation, Reuse and Storage Investment Fund are continuously appropriated to the Water Resources Department to award grants and to pay the cost of direct services provided under ORS 541.561.

(2) The Water Conservation, Reuse and Storage Investment Fund shall consist of:

(a) Moneys appropriated to the fund by the Legislative Assembly;

(b) Any moneys that may be transferred to the fund by the federal government, a state agency or a local government; and

Note: See note under 541.561.

541.577 [1987 c.855 §4; 1989 c.966 §60; renumbered 196.640 in 1989]

541.580 [1987 c.855 §6; renumbered 196.645 in 1989]

541.581 Rules for grant and direct service cost payment program. The Water Resources Commission shall adopt rules necessary to administer ORS 541.561 to 541.581, including rules that:

(1) Establish reporting requirements for grants awarded under ORS 541.561;

(2) Provide for public comment before the award of grants and payment for direct services under ORS 541.561; and

(3) Implement the priorities required by ORS 541.561. [2008 c.13 §4]

Note: See note under 541.561.

(Umatilla Basin Aquifer Assessment)

Note: Sections 5 to 7, chapter 13, Oregon Laws 2008, provide:

Sec. 5. (1) The Water Resources Department shall conduct a regional aquifer recovery assessment for the Umatilla Basin. The assessment conducted under this section must:

(a) Include an engineering and hydrogeologic study that evaluates the cost and feasibility of designing, constructing and expanding facilities to extract surface water during times that would avoid impacts on state or federally listed endangered or threatened fish species and on existing water rights.

(b) Evaluate the feasibility of:

(A) Recharging ground water pursuant to ORS 537.135 in the Ordnance and Echo Meadows aquifers; and

(B) Injecting water into the Ordnance, Butter Creek and Stage Gulch basalt aquifers pursuant to ORS 537.531, 537.532 and 537.534.

(2) The feasibility study required under this section must identify:

(a) Monitoring requirements to aid in the evaluation of potential impacts to stream flows, ground water quality and surface water quality.

(b) Options for the treatment of ground water and surface water that meet requirements under ORS 537.135, 537.531, 537.532 and 537.534.

(d) Opportunities to protect fish and fish habitat, and to improve streamflows, in the Lower Umatilla River based on existing information. [2008 c.13 §5]

Sec. 6. In completing the Umatilla Basin regional aquifer recovery assessment required by section 5 of this 2008 Act, the Water Resources Department shall request that the Bureau of Reclamation of the United States Department of the Interior:

(1) Consider the feasibility of using infrastructure from the bureau’s Umatilla Basin Project Phase II to deliver surface water from the Columbia River to the Stage Gulch critical ground water area; and

(2) Coordinate the Bureau of Reclamation study of the water supply in the Umatilla Basin with the department’s Umatilla Basin regional aquifer recovery assessment and determine whether the bureau may assist with the temporary or permanent replacement of water for designated critical ground water areas in the Umatilla Basin. [2008 c.13 §6]

Sec. 7. Sections 5 and 6 of this 2008 Act are repealed on January 2, 2014. [2008 c.13 §7]

541.585 [1987 c.855 §5; renumbered 196.650 in 1989]

541.587 [1987 c.855 §11; renumbered 196.655 in 1989]

541.590 [1987 c.855 §19; renumbered 196.660 in 1989]

541.595 [1987 c.855 §1a; renumbered 196.665 in 1989]

WATER DEVELOPMENT IN COLUMBIA RIVER BASIN

541.600 Definitions for ORS 541.600 to 541.641 and temporary provisions relating to loans for Columbia River Basin projects. As used in ORS 541.600 to 541.641 and sections 20, 25 and 26, chapter 907, Oregon Laws 2009:

(1) “Economic public benefit” means the improvement of economic conditions that relate to one or more of the following:

(a) Job creation;

(b) Encouragement of economic investments;

(d) Protection of public resource lands;

(e) Increases in the efficiency of state spending; and

(f) Other activities that enhance economic activity within the state.

(2) “Net environmental public benefit” means the improvement of ecological conditions, compared with a preproject baseline, that relate to one or more of the following:

(a) Water, velocity, temperature, stream flow levels and other stream flow conditions that provide for critical life history needs of state or federally listed sensitive, threatened or endangered fish species and that maintain or enhance population viability of those species.

(b) Stream flow conditions that support the life stages of native fish species or that will allow for the reintroduction of native fish species.

(c) Return flows to surface water bodies from aquifer recharge projects or from other underground water storage projects, and the in-stream protection for those return flows designed to have in-stream benefits.

(d) Protection of peak flows at above-ground and underground storage projects.

(e) Protection of ecological flows at above-ground and underground storage projects.

(f) Water temperature, dissolved oxygen content and other water quality conditions, and progress towards the attainment of water standards that are not being met in the relevant water body.

(g) Ground water quality or quantity.

(h) Aquatic or riparian habitat restoration or enhancement.

(i) Eliminating nonpoint source pollutant transport.

(3) “Secondary use” has the meaning given that term in ORS 541.700.

(4) “Social and cultural public benefit” means the improvement of conditions that relate to one or more of the following:

(a) Promoting public health and welfare;

(b) Recreational use;

(d) Hunting and fishing.

(5) “Water conservation” means an undertaking that results in:

(a) A decrease in the consumptive use of water;

(b) An increase in water use efficiency; or

(6) “Water development project” means:

(a) A water development project as defined in ORS 541.700.

(b) All or part of an undertaking in this state for the purpose of:

(A) Water management, measurement, conservation, efficiency, reuse or storage;

(B) Streamflow restoration; or

(C) Benefiting multiple purposes, such as agricultural, domestic, commercial, recreational, municipal or in-stream purposes.

541.605 [1967 c.567 §2; 1971 c.509 §4; 1971 c.754 §1; 1973 c.330 §1; 1973 c.674 §1; 1977 c.417 §2; 1977 c.418 §1; 1979 c.564 §1; 1989 c.837 §4; renumbered 196.670 and then 196.800 in 1989]

541.606 Water Investment Grant Fund. (1) The Water Investment Grant Fund is established in the State Treasury, separate and distinct from the General Fund. Interest earned by the Water Investment Grant Fund shall be credited to the Water Investment Grant Fund. Moneys in the Water Investment Grant Fund are continuously appropriated to the Water Resources Department to fund grants under ORS 541.631 and to pay the administrative costs of the department in operating a grant program under ORS 541.600 to 541.641 and sections 20, 25 and 26, chapter 907, Oregon Laws 2009.

(2) The Water Investment Grant Fund consists of the following:

(a) Moneys appropriated to the fund by the Legislative Assembly.

(b) Any moneys that may be transferred to the fund by the federal government, a state agency or a local government.

(d) Proceeds from grant application fees described in ORS 541.611.

(e) Gifts, grants or donations to the fund. Notwithstanding subsection (1) of this section, the department may use moneys received under this paragraph according to any terms and conditions of the gift, grant or donation.

(3)(a) Except as provided in paragraph (b) of this subsection, the department may make a grant for a qualifying project from the fund to:

(A) An Indian tribe as defined in ORS 391.802;

(B) A person as defined in ORS 536.007; or

(b) The department may not issue a grant from the fund to a municipality or a provider of water for municipal purposes. [2009 c.907 §16]

Note: 541.606 was added to and made a part of ORS chapter 541 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

541.610 [1967 c.567 §1; 1971 c.754 §2; 1973 c.330 §2; 1973 c.674 §2; 1977 c.418 §2; 1979 c.564 §2; renumbered 196.675 and then 196.805 in 1989]

541.611 Application for grant from Water Investment Grant Fund; fee. (1) Any person or entity described in ORS 541.606 may file an application with the Water Resources Department for a grant from the Water Investment Grant Fund to enable the construction of a water development project located in the Columbia River Basin.

(2) An application filed under this section must be in a form prescribed by the Water Resources Commission and include the following:

(a) A description of the nature and the primary and secondary purposes of the project.

(b) An analysis of the need for the project and for the water that the project is intended to deliver.

(c) Identification and description of the project components sufficient to meet the conditions for project funding approval under ORS 541.631.

(d) A description of the economic feasibility of the project, including but not limited to:

(A) The costs of the project; and

(B) Information about the financial and other aspects of the operation and maintenance plans for the project.

(e) Suggestions for interim and long-term project performance benchmarks.

(f) An analysis of the project impacts including, but not limited to, the:

(A) Expected economic public benefits.

(B) Expected social and cultural public benefits.

(g) An evaluation of the potential impact on water quality, based upon water quality standards.

(h) Proof that the applicant has acquired at least a final order or limited license for necessary water permits from the department.

(i) Letters of support for the proposed water resource development project.

(j) If the project has not previously received state funding, a statement regarding whether other moneys are available or have been sought or received for the implementation of the project.

(k) Information sufficient to demonstrate that the amount of the requested funding will be matched by the funding from another source that is not less than a dollar-for-dollar match.

(L) Any other information required by the department.

(3) If the project will receive surface water impounded from a perennial stream, water diverted from a stream that supports sensitive, threatened or endangered fish, or more than 500 acre-feet of diverted surface water annually, in addition to the other information required under this section the application shall include the following completed studies:

(a) An analysis of by-pass, optimum peak, flushing and other ecological flows of the affected stream and of the impact of the project on those flows, that conforms to standards set by the department in consultation with the State Department of Fish and Wildlife and other relevant agencies;

(b) An independent comparative analysis of alternative means of supplying the water intended to be generated by the project, including but not limited to the costs and benefits of conservation, reuse and alternatives and the extent to which long-term water supply needs may be met using those alternatives; and

(c) Evaluation of the need for and feasibility of using project-derived water to augment in-stream flows to conserve, maintain and enhance aquatic life, fish life and any other ecological values.

(4) If the applicant is an agricultural water supplier, the applicant must have an approved agriculture water management and conservation plan, have submitted a completed agricultural water management and conservation plan to the Water Resources Department for approval or be in the process of completing or updating a water management and conservation plan.

(5) The commission may establish fees for filing applications for a grant under this section. Moneys from the application fees established by the commission shall be deposited to the Water Investment Grant Fund.

(6) An analysis and evaluation conducted as part of a study performed pursuant to ORS 541.561 to 541.581 and sections 5 and 6, chapter 13, Oregon Laws 2008, is deemed to satisfy the requirements of subsection (3) of this section. [2009 c.907 §19]

541.615 [1967 c.567 §3; 1971 c.754 §3; 1989 c.837 §15; renumbered 196.680 and then 196.810 in 1989]

541.616 Incomplete applications; public notice of application; assessment of project. (1) If an application filed under ORS 541.611 or section 20, chapter 907, Oregon Laws 2009, lacks any required information, the Water Resources Department may reject the application or require the applicant to submit additional information.

(2) Upon receipt of a completed application filed under ORS 541.611 or section 20, chapter 907, Oregon Laws 2009, the department shall provide public notice by posting the application on the department’s website for a 60-day period prior to issuing a loan or grant to the applicant.

(3) The department shall provide for the receipt of public comment on the application during the 60-day period that the application is posted on the department website, as specified by the Water Resources Commission by rule.

(4) The department shall review the application information filed under ORS 541.611 or section 20, chapter 907, Oregon Laws 2009. The department shall commence the assessment no later than 60 days after receiving the application.

(5) The department shall assess each project in consultation with the State Department of Fish and Wildlife, the State Parks and Recreation Department, the Department of Environmental Quality and affected tribal governments, and with other interested parties as appropriate. If a project may affect agricultural use, the Water Resources Department shall also assess the project in consultation with the State Department of Agriculture.

(6) In assessing the net environmental public benefit of the project, the Water Resources Department shall weigh the project’s various environmental impacts on, and enhancements to, all of the forms of environmental benefit described in ORS 541.600 (2). [2009 c.907 §21]

Note: The amendments to 541.616 by section 42, chapter 907, Oregon Laws 2009, become operative January 2, 2024. See section 46 (3), chapter 907, Oregon Laws 2009. The text that is operative on and after January 2, 2024, is set forth for the user’s convenience.

541.616. (1) If an application filed under ORS 541.611 lacks any required information, the Water Resources Department may reject the application or require the applicant to submit additional information.

(2) Upon receipt of a completed application filed under ORS 541.611, the department shall provide public notice by posting the application on the department’s website for a 60-day period prior to issuing a grant to the applicant.

(4) The department shall review the application information filed under ORS 541.611. The department shall commence the assessment no later than 60 days after receiving the application.

541.620 [1967 c.567 §4; 1969 c.338 §4; 1971 c.754 §4; 1973 c.674 §3, 1977 c.418 §3; 1977 c.564 §6; 1989 c.1039 §1; renumbered 196.685 and then 196.815 in 1989]

541.621 Review of grant application; rules; project priority; mandatory considerations; net environmental public benefit. (1) The Water Resources Commission shall adopt rules establishing guidelines for the Water Resources Department’s review of applications for a grant filed under ORS 541.611 and for the assessment of projects for which grants are sought. The guidelines shall include:

(a) Evaluation of the awarding of grants as a financial incentive to accomplish the goals of the grant program;

(b) Consideration of the financial needs of applicants and other special circumstances; and

(c) Consideration of the economic public benefit, social and cultural public benefit and net environmental public benefit of the project.

(2) The guidelines shall give priority to projects that:

(a) Recharge aquifers in limited and critical ground water areas;

(b) Are designed to deliver the greatest net environmental public benefit;

(d) Conserve water; or

(e) Are water storage projects that provide for stored water to be used for restoring or augmenting streamflows in a manner that conserves, maintains and enhances water quality, aquatic life, fish life or other ecological values.

(3) The guidelines shall require that the department consider the following:

(a) Local support for the project;

(b) Oregon’s in-stream and out-of-stream water needs as influenced by existing and anticipated climate change;

(d) The projected impact of the project on public health matters relating to water; and

(e) Statewide water needs.

(4) The commission shall adopt rules for use by the Water Resources Department in assessing the net environmental public benefits of a project under ORS 541.616. The commission must consult with, and provide a 60-day period for the receipt of comment from, the State Department of Fish and Wildlife, the State Parks and Recreation Department, the State Department of Agriculture and the Department of Environmental Quality before the commission adopts a rule described in this subsection. [2009 c.907 §22]

541.622 [1977 c.120 §2; 1987 c.160 §1; renumbered 196.690 and then 196.820 in 1989]

541.625 [1967 c.567 §5; 1969 c.593 §49; 1971 c.754 §5; 1973 c.330 §3; 1973 c.674 §6; 1977 c.417 §1; 1979 c.200 §1; 1979 c.564 §3a; 1981 c.796 §1; 1987 c.70 §1; 1989 c.837 §16; 1989 c.904 §70; renumbered 196.695 and then 196.825 in 1989]

541.626 [1979 c.564 §5; 1981 c.796 §2; 1983 c.827 §56; 1989 c.837 §5; renumbered 196.700 and then 196.830 in 1989]

541.627 [1973 c.674 §5; 1979 c.564 §6; renumbered 196.705 and then 196.835 in 1989]

541.630 [1967 c.567 §6; 1971 c.754 §6; 1973 c.330 §4; 1973 c.674 §7; 1981 c.796 §3; renumbered 196.710 and then 196.840 in 1989]

541.631 Conditions for approval of grant application; water storage project design requirements; protection of public benefit; waiver of conditions; rules. (1) Subject to any additional qualifications or restrictions under ORS 541.616, 541.621 or 541.636 or Water Resources Commission rules, the Water Resources Department may approve a grant application filed under ORS 541.611 if the department finds that:

(a) The plan for the construction of the proposed project complies with all applicable provisions related to water well constructors under ORS 537.747 to 537.765, reservoirs and diversion dams under ORS 540.340 and dams, dikes and hydraulic structures or works in ORS 540.350;

(b) Planned diversions of surface water include provision for fish screens and, if applicable, volitional fish passage;

(d) The applicant or beneficiaries of water from the project measure and report, or have scheduled and financed the measurement of, all existing water use at the point of diversion;

(e) There is a reasonable certainty that the project, considered in total, will deliver a measurable net environmental public benefit; and

(f) To the extent applicable, the project complies with subsection (2) or (3) of this section.

(2) A water storage project must be designed:

(a) To provide for no more than 75 percent of new stored water in the aquifer or above-ground storage location of the project to be withdrawn for agricultural purposes and for not less than 25 percent of the new water to be dedicated for the purpose of providing net environmental public benefits or in-stream benefits; and

(b) To the extent practicable, to return dedicated new stored water for stream augmentation at a time of year that the Water Resources Department, in consultation with the State Department of Fish and Wildlife and relevant tribal governments, determines will provide the maximum net environmental public benefit or in-stream benefit.

(3) If more than 25 percent of the funding for a water storage project is from grants of state moneys and is not subject to repayment, the project must be designed to dedicate for the purpose of providing net environmental public benefit or in-stream benefit a percentage of the new stored water created by the project that equals or exceeds the percentage of funding for the project that is from grants of state moneys. The Water Resources Department shall manage the dedicated increment of new stored water for net environmental public benefit or in-stream benefit.

(4) On or before the earlier of six years after the issuance of the ground water recharge permit or the date the water right certificate is issued, the department shall quantify and legally protect the increment of new water returned in stream from a project described in this section.

(5) The department shall require as a contractual condition for issuing the grant, and as a condition of any new water permit or water right certificate, that if the project receives grants or loans from state moneys other than a grant issued under this section, the project must be operated in a manner that actually dedicates the percentage of new stored water for net environmental public benefit or in-stream benefit that the project was designed to dedicate for those purposes.

(6) The department shall require that a project protect peak and ecological flows to the extent determined by the State Department of Fish and Wildlife to be necessary.

(7) The commission, by rule, may allow the Water Resources Department to waive any requirement of this section for the issuance of a grant, other than the requirement of a measurable net environmental public benefit, if:

(a) The grant application requests less than $20,000; or

(b) The project is a conservation, efficiency, restoration or reuse project that can be shown to the satisfaction of the department to cause no harm to the source, any receiving stream, fish or wildlife or existing water rights.

(8) This section and ORS 541.611, 541.616, 541.621, 541.636 and 541.641 do not limit the authority granted the Environmental Quality Commission or the Department of Environmental Quality under ORS chapter 468B. [2009 c.907 §23; 2009 c.907 §30]

Note: Section 33, chapter 907, Oregon Laws 2009, provides:

Sec. 33. (1) Notwithstanding sections 19 [541.611] and 21 to 23 [541.616 to 541.631] of this 2009 Act, but subject to section 24 of this 2009 Act [541.636], the Water Resources Department shall waive the grant application process described in sections 19 and 21 to 23 of this 2009 Act when issuing a grant for water development projects that:

(a) Are located in an area of the Umatilla Basin for which an assessment has been performed under chapter 13, Oregon Laws 2008 [541.561 to 541.581 and sections 5 and 6, chapter 13, Oregon Laws 2008]; and

(b) Except as provided in subsection (2) of this section, are designed:

(A) To provide for no more than 75 percent of new stored water to be withdrawn and for not less than 25 percent of the new water to be dedicated for the purpose of providing net environmental public benefits or in-stream benefits; and

(B) To the extent practicable, to return dedicated new stored water for stream augmentation at a time of year that the Water Resources Department, in consultation with the State Department of Fish and Wildlife and relevant tribal governments, determines will provide the maximum net environmental public benefit or in-stream benefit.

(2) If more than 25 percent of the funding for an aquifer storage and recovery project is from grants of state moneys and is not subject to repayment, the project must be designed to dedicate for the purpose of providing net environmental public benefit or in-stream benefit a percentage of the new stored water created by the project that equals or exceeds the percentage of funding for the project that is from grants of state moneys. The Water Resources Department shall manage the dedicated increment of new stored water for net environmental public benefit and in-stream benefit.

(3) This section does not limit the authority granted the Environmental Quality Commission or the Department of Environmental Quality under ORS chapter 468B.

(4) This section is repealed January 2, 2030. [2009 c.907 §33]

541.635 [1967 c.567 §7; 1971 c.754 §7; renumbered 196.715 and then 196.845 in 1989]

541.636 Conditions for issuance of grant; fees. (1) The Water Resources Department shall ensure that any necessary federal and state environmental impact approval processes have been completed, and that agencies have issued any relevant approvals and permits, before the advancement of any grant moneys for a project described in ORS 541.631. The department shall determine the amount of a grant from the Water Investment Grant Fund on a case-by-case basis. The department may not issue a grant under ORS 541.631 to provide assistance for operational or maintenance expenses of a water development project other than project startup costs.

(2) The department may issue a grant from the fund only if the applicant agrees to periodic review of the project, including but not limited to:

(a) Review of interim and long-term performance benchmarks set by the department; and

(b) Program and fiscal audits to ensure that performance benchmarks are achieved on project development, project benefits and return on investment.

(3) The department may issue a grant from the fund only if the applicant agrees to report to the department no later than two years after receiving the grant moneys regarding the progress of the project and the economic public benefit, social and cultural public benefit and net environmental public benefit realized from the project. The department shall provide copies of the applicant reports received by the department during the biennium to an interim committee of the Legislative Assembly dealing with natural resources.

(4) The Water Resources Commission may establish reasonable fees for management, oversight or review services that the department provides for a water development project. The fees shall be deposited to the Water Investment Grant Fund.

(5) For a project described in ORS 541.631 (2), the commission may require compliance with the conditions described in ORS 541.631 (2) as a condition of any new water permits issued for the project and may monitor operation of the project to ensure compliance. [2009 c.907 §24]

541.640 [1967 c.567 §8; 1971 c.754 §8; 1973 c.330 §5; 1973 c.674 §8; 1981 c.796 §4; repealed by 1989 c.837 §8 (196.718 enacted in lieu of 541.640)]

541.641 Exception to water measurement requirement. Notwithstanding ORS 541.631 and section 25, chapter 907, Oregon Laws 2009, the Water Resources Department may issue a grant under ORS 541.631 or a loan under section 25, chapter 907, Oregon Laws 2009, to an agricultural water supplier that fails to adequately demonstrate water measurement if:

(1) The water development project otherwise qualifies for that grant or loan as provided under ORS 541.631 or section 25, chapter 907, Oregon Laws 2009; and

(2) The department finds that:

(a) The applicant is seeking the grant or loan for the purpose of implementing water measurement and the department has approved an implementation plan to ensure that the water measurement requirement is met; or

(b) The applicant has secured funding from a source other than the state that will ensure implementation of water measurement. [2009 c.907 §27]

Note: The amendments to 541.641 by section 43, chapter 907, Oregon Laws 2009, become operative January 2, 2024. See section 46 (3), chapter 907, Oregon Laws 2009. The text that is operative on and after January 2, 2024, is set forth for the user’s convenience.

541.641. Notwithstanding ORS 541.631, the Water Resources Department may issue a grant under ORS 541.631 to an agricultural water supplier that fails to adequately demonstrate water measurement if:

(1) The water development project otherwise qualifies for that grant as provided under ORS 541.631; and

(2) The department finds that:

(a) The applicant is seeking the grant for the purpose of implementing water measurement and the department has approved an implementation plan to ensure that the water measurement requirement is met; or

(b) The applicant has secured funding from a source other than the state that will ensure implementation of water measurement.

541.645 [1967 c.567 §9; 1971 c.754 §9; 1989 c.837 §17; renumbered 196.720 and then 196.855 in 1989]

541.646 Rules for grant and loan programs. The Water Resources Commission may adopt rules the commission considers reasonable for the administration and enforcement of ORS 541.600 to 541.641 and sections 20, 25 and 26, chapter 907, Oregon Laws 2009. [2009 c.907 §28]

Note: 541.646 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 541 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

(Temporary provisions relating to loans for Columbia River Basin projects)

Note: Sections 20, 25 and 26, chapter 907, Oregon Laws 2009, provide:

Sec. 20. (1) A water developer, as defined in ORS 541.700, shall file an application for a loan from the Water Development Fund as provided in this section instead of under ORS 541.705 if:

(a) The applicant is not a municipality or a provider of water for municipal purposes;

(b) The loan is for the purpose of enabling the construction of a water development project in the Columbia River Basin; and

(c) The moneys from which the loan is to be funded were provided under an appropriation that dedicates the moneys for use under this section or for loans of a type described in this subsection made to applicants of a type described in this subsection.

(2) An application filed under this section must be in a form prescribed by the Water Resources Commission and include the following:

(a) A description of the nature and the primary and secondary purposes of the project.

(b) An analysis of the need for the project and for the water that the project is intended to deliver.

(c) Identification and description of the project components sufficient to meet the conditions for project funding approval under section 25 of this 2009 Act.

(d) A description of the economic feasibility of the project, including but not limited to:

(A) The costs of the project; and

(B) Information about the financial and other aspects of the operation and maintenance plans for the project.

(e) Suggestions for interim and long-term project performance benchmarks.

(f) An analysis of the project impacts including, but not limited to, the:

(A) Expected economic public benefits.

(B) Expected social and cultural public benefits.

(g) An evaluation of the potential impact on water quality, based upon water quality standards.

(h) Proof that the applicant has acquired at least a final order or limited license for necessary water permits from the department.

(i) Letters of support for the proposed water resource development project.

(j) If the project has not previously received state funding, a statement regarding whether other moneys are available or have been sought or received for the implementation of the water resource development project.

(k) A description of a loan repayment plan.

(L) Any other information required by the department.

(3) Any relevant information described in ORS 541.705 (2)(c) or (e) or (3).

(4) If the project will receive surface water impounded from a perennial stream, water diverted from a stream that supports sensitive, threatened or endangered fish, or more than 500 acre-feet of diverted surface water annually, in addition to the other information required under this section the application shall include the following completed studies:

(c) Evaluation of the need for and feasibility of using project-derived water to augment in-stream flows to conserve, maintain and enhance aquatic life, fish life and any other ecological values.

(5) If the applicant is an agricultural water supplier, the applicant must have an approved agriculture water management and conservation plan, have submitted a completed agricultural water management and conservation plan to the Water Resources Department for approval or be in the process of completing or updating a water management and conservation plan.

(6) An application under this section is subject to application fees and additional processing costs as described in ORS 541.710 and loan processing fees under ORS 541.730.

(7) An analysis and evaluation conducted as part of a study performed pursuant to chapter 13, Oregon Laws 2008 [541.561 to 541.581 and sections 5 and 6, chapter 13, Oregon Laws 2008], is deemed to satisfy the requirements of subsection (4) of this section. [2009 c.907 §20]

Sec. 25. (1) The Water Resources Department, acting as agent for the Water Resources Commission, may approve a loan for which an application is filed under section 20 of this 2009 Act, if the department finds that:

(a) The loan meets any applicable qualifications or restrictions under Article XI-I(1) of the Oregon Constitution, ORS 541.700 to 541.855, section 26 of this 2009 Act, Water Resources Commission rules and bondholder agreements;

(b) The plan for the construction of the proposed project complies with all applicable provisions related to water well constructors under ORS 537.747 to 537.765, reservoirs and diversion dams under ORS 540.340 and dams, dikes and hydraulic structures or works in ORS 540.350;

(d) The use of surface water or ground water from the project will be measured and reported;

(e) The applicant or beneficiaries of water from the project measure and report, or have scheduled and financed the measurement of, all existing water use at the point of diversion;

(f) There is a reasonable certainty that the project will deliver a measurable net environmental public benefit; and

(g) The project is designed to deliver in-stream benefits.

(2) The department shall require that a project protect peak and ecological flows to the extent determined by the State Department of Fish and Wildlife to be necessary.

(3) This section and sections 20 and 26 of this 2009 Act do not limit the authority granted the Environmental Quality Commission or the Department of Environmental Quality under ORS chapter 468B. [2009 c.907 §25; 2009 c.907 §31]

Sec. 26. (1) The Water Resources Department shall ensure that any necessary federal and state environmental impact approval processes have been completed, and that agencies have issued any relevant approvals and permits, before the advancement of any loan moneys for a project described in section 25 of this 2009 Act. The department shall determine the amount of a loan for a project described in section 25 of this 2009 Act on a case-by-case basis. The department shall determine the maximum amount of a loan based in part upon a reasonable and prudent expectation of the ability of the borrower to repay the loan. The department may not issue a loan to provide assistance for operational or maintenance expenses of a water development project other than project startup costs.

(2) Notwithstanding ORS 541.730, if the Water Resources Commission, in consultation with the State Treasurer, believes that the project is unlikely to produce a net profit for the borrower or for any for-profit entity, the commission may set the loan interest rate at a level that reduces or waives the amount of the interest rate set under ORS 541.730 that is in excess of the interest to be paid to bondholders on the underlying bonds.

(3) The department may issue a loan only if the applicant agrees to periodic review of the project, including but not limited to:

(a) Review of interim and long-term performance benchmarks set by the department; and

(b) Program and fiscal audits to ensure that performance benchmarks are achieved on project development, project benefits and return on investment.

(4) The department may issue a loan only if the applicant agrees to report to the department no later than two years after receiving the loan moneys regarding the progress of the project and the economic public benefit, social and cultural public benefit and net environmental public benefit realized from the project. The department shall provide copies of the applicant reports received by the department during the biennium to an interim committee of the Legislative Assembly dealing with natural resources.

(5) The commission may establish reasonable fees for management, oversight or review services that the department provides for a water development project. The fees shall be deposited to the Water Development Administration and Bond Sinking Fund. [2009 c.907 §26]

Note: Section 34, chapter 907, Oregon Laws 2009, provides:

Sec. 34. Sections 20, 25 and 26 of this 2009 Act are repealed January 2, 2024. The repeal of sections 20, 25 and 26 of this 2009 Act by this section does not alter the terms of any loan, contract or other agreement issued under section 20, 25 or 26 of this 2009 Act or alter the conditions of any water permit or water right certificate that contains conditions that are based upon sections 20, 25 or 26 of this 2009 Act. [2009 c.907 §34]

Note: Section 29, chapter 907, Oregon Laws 2009, provides:

Sec. 29. The Water Resources Department shall report to the Seventy-sixth Legislative Assembly in the manner provided by ORS 192.245 no later than October 1, 2012, regarding the operation of the loan and grant programs described in sections 18 to 27 of this 2009 Act [541.600 to 541.641 and sections 20, 25 and 26, chapter 907, Oregon Laws 2009], including but not limited to:

(1) The number and types of jobs created by water development projects receiving loans or grants from the department;

(2) Any studies conducted by the department or loan or grant recipients during the 2009-2011 biennium regarding peak and ecological flows in streams;

(3) Any recommendations by the department for legislative changes to improve the operation of the loan and grant programs;

(4) Any recommendations for changes to Article XI-I(1) of the Oregon Constitution to be referred to the people;

(5) The total economic public benefit, social and cultural public benefit and net environmental public benefit created as a result of loans and grants issued under sections 23 [541.631] and 25 of this 2009 Act;

(6) An analysis of the effect of the requirement imposed under section 23 (2) of this 2009 Act;

(7) Estimated increases in state tax revenues generated by projects receiving grants or loans;

(8) The gross dollar value of issued loans, the amount of loan reserves and the increase the Water Development Fund attributable to the interest rate amount described in ORS 541.730 (3)(e); and

(9) Moneys generated from fees under sections 19 [541.611], 20, 24 [541.636] and 26 of this 2009 Act. [2009 c.907 §29]

541.650 [1967 c.567 §10; 1971 c.754 §10; 1973 c.330 §6; 1973 c.674 §9; 1985 c.414 §1; 1989 c.837 §18; renumbered 196.725 and then 196.860 in 1989]

541.655 [1967 c.567 §11; 1971 c.754 §11; 1973 c.330 §7; 1973 c.674 §10; 1985 c.414 §2; renumbered 196.730 and then 196.865 in 1989]

541.660 [1967 c.567 §12; 1973 c.330 §8; 1973 c.674 §11; 1979 c.284 §166; 1985 c.414 §3; renumbered 196.735 and then 196.870 in 1989]

541.662 [Enacted by 1973 c.330 §10 and 1973 c.674 §13; 1985 c.545 §7; renumbered 196.740 and then 196.875 in 1989]

541.665 [1971 c.754 §14; renumbered 196.745 and then 196.880 in 1989]

541.670 [1985 c.545 §6; 1987 c.855 §16; 1989 c.837 §22; renumbered 196.750 and then 196.885 in 1989]

541.675 [1985 c.545 §3; renumbered 196.755 and then 196.890 in 1989]

541.680 [1985 c.545 §4; renumbered 196.760 and then 196.895 in 1989]

541.685 [1985 c.545 §5; renumbered 196.765 and then 196.900 in 1989]

541.695 [1971 c.754 §12; 1977 c.417 §3; 1989 c.837 §19; renumbered 196.770 and then 196.905 in 1989]

WATER DEVELOPMENT PROJECTS

(Definitions)

541.700 Definitions for ORS 541.700 to 541.855. As used in ORS 541.700 to 541.855, unless the context requires otherwise:

(1) “Commission” means the Water Resources Commission appointed under ORS 536.022.

(2) “Construction” means the construction, or improvement or rehabilitation, in whole or in part, of a water development project, including planning and engineering work, purchasing or refinancing directly related to such construction or improvement or rehabilitation, or any combination of such construction or improvement or rehabilitation. As used in this subsection:

(a) “Purchasing” means the purchasing of materials, land or existing facilities necessary to complete a water development project.

(b) “Refinancing” includes refinancing existing debt of a water developer, as defined in subsection (7)(f) to (m) and (o) of this section, in order to complete a water development project or to provide adequate security for a water development loan, but does not include refinancing existing debt only to reduce interest rates or costs to the borrower or to pay off existing debt.

(3) “Director” means the Water Resources Director appointed pursuant to ORS 536.032.

(4) “Federal water development project” means any water development project that receives funding from the federal government, or any agency or instrumentality of the United States.

(5)(a) “Secondary use” means:

(A) Any water-related recreational use.

(B) Any flood control use.

(D) Any water supply system utilized as a domestic water system for the benefit of an individual residence related to the operation of the water development project.

(b) “Secondary use” does not include any use that is incompatible with a water development project.

(6) “Water development project” means:

(a) An undertaking, in whole or in part, in this state for the purpose of irrigation, including structures for the application of water for agricultural harvest activities, dams, storage reservoirs, wells or well systems, pumping plants, pipelines, canals, ditches, revetments, water supply systems used for the purpose of agricultural temperature control and any other structure, facility and property necessary or convenient for supplying lands with water for irrigation purposes.

(b) An undertaking, in whole or in part, in this state for the purpose of drainage, including ditching, tiling, piping, channel improvement, pumping plants or other agronomically approved methods of land drainage that will increase soil versatility and productivity.

(c) An undertaking, in whole or in part, in this state for the purpose of providing water for municipal use, which may include safe drinking water for communities with population less than 30,000, including dams, storage reservoirs, wells or well systems, pumping plants, treatment facilities, pipelines, canals, ditches, revetments and all other structures and facilities necessary or convenient for supplying water. An undertaking may provide water to two or more communities with a combined population of more than 30,000. An undertaking may be part of a project that provides water to a community with a population of more than 30,000, but loans of moneys from the Water Development Fund, including moneys in ORS 285B.563 (11) may be made only to communities served by the project that have a population of less than 30,000.

(d) An undertaking, in whole or in part, in this state for the purpose of fish protection, including fish screening or by-pass devices, fishways and all other structures and facilities necessary or convenient for providing fish protection.

(e) An undertaking, in whole or in part, in this state for the purpose of enhancing watershed health or improving fish habitat, including methods and materials to restore, maintain and enhance water quality, streamflows and the biological, chemical and physical integrity of the riparian zones and associated uplands of the state’s rivers, lakes and estuaries systems and recommended by the Oregon Watershed Enhancement Board established under ORS 541.900.

(f) Secondary uses in conjunction with projects described in paragraphs (a) to (e) of this subsection.

(7) “Water developer” means:

(a) Any individual resident of this state;

(b) Any partnership for profit subject to the provisions of ORS chapter 67 or 70, whose principal income is from farming in Oregon;

(c) Any corporation for profit subject to the provisions of ORS chapter 60, whose principal income is from farming in Oregon;

(d) Any nonprofit corporation subject to the provisions of ORS chapter 65, whose principal income is from farming in Oregon;

(e) Any cooperative subject to the provisions of ORS chapter 62, whose principal income is from farming in Oregon;

(f) Any irrigation district organized under or subject to ORS chapter 545;

(g) Any water improvement district organized under ORS chapter 552;

(h) Any water control district organized under ORS chapter 553;

(i) Any irrigation or drainage corporation organized under or subject to ORS chapter 554;

(j) Any drainage district organized under ORS chapter 547 or subject to all or part of ORS chapter 545;

(k) Any corporation, cooperative, company or other association formed prior to 1917 for the purpose of distributing water for irrigation purposes;

(L) Any port district organized under ORS 777.005 to 777.725, 777.915 to 777.953 and 777.990;

(m) Any city or county;

(n) Any organization formed for the purpose of distributing water for community water supply; or

(o) Any local soil and water conservation district organized under ORS 568.210 to 568.808 and 568.900 to 568.933. [1977 c.246 §1; 1981 c.166 §1; 1981 c.592 §1; 1985 c.673 §184; 1985 c.677 §65; 1987 c.94 §103; 1987 c.636 §§1, 5; 1989 c.1010 §177; 1991 c.944 §5; 1993 c.765 §89; 1995 c.42 §180; 1997 c.775 §90; 1999 c.212 §1; 1999 c.509 §46; 2009 c.907 §3]

(Loan Applications)

541.703 Project applications; preference for approval. Of the applications filed under ORS 541.705 for assistance in constructing a water development project for municipal use, the Water Resources Commission shall give preference for approval to those projects required to be undertaken as a result of a proceeding under ORS 222.840 to 222.915 or 431.705 to 431.760 to alleviate conditions constituting a danger to public health. [1983 c.407 §13; 1985 c.673 §112]

541.705 Project applications; contents. (1) Except as provided in section 20, chapter 907, Oregon Laws 2009, for a water development project in the Columbia River Basin, any water developer may file with the Water Resources Commission an application to enable the construction of a water development project as provided in ORS 541.700 to 541.855. The application shall be filed in the manner, be in the form and contain or be accompanied by any information prescribed by the commission. The commission, in considering applications, shall encourage the largest number of users of the Water Development Fund and shall consider the impact on the family farm units of the state.

(2) In addition to other requirements prescribed by the commission, an application filed under subsection (1) of this section shall:

(a) Describe the nature and purposes of the proposed water development project, including the need for the project and reason why the project would be in the public interest.

(b) State whether any purposes other than improvement of a drinking water system, irrigation, drainage, fish protection, watershed enhancement or municipal use, but consistent therewith, will be served by the proposed water development project, and the nature of the other purposes, if any.

(c) Set forth or be accompanied by a feasibility study for the construction, operation and maintenance of the proposed water development project, an estimate of the costs of construction and if the project includes as a primary purpose irrigation or drainage, an evaluation of the agricultural potential of the land from any competent public agency.

(d) State whether any moneys other than those in the Water Development Fund are proposed to be used for the construction of the proposed water development project, and whether any other moneys are available or have been sought for the construction.

(e) Show that the applicant holds or can acquire all lands, other than public lands, and interests therein and water rights necessary for the construction, operation and maintenance of the proposed water development project.

(3) If the application is for a safe drinking water project, the applicant also shall demonstrate that:

(a) The applicant is a city, county, district, water authority or other political subdivision of the state or an organization operated on a not-for-profit basis that makes drinking water available to members of the general public;

(b) The primary use of the loan will be to improve a drinking water system for the purpose of complying with applicable state or federal drinking water quality regulations; and

(A) Developed a water system master plan; and

(B) Either has a coordination agreement in place as defined in ORS 195.020, 195.025 and 197.712 or can demonstrate that options to find a coordinated solution to the system’s drinking water problems have been fully explored. [1977 c.246 §2; 1981 c.592 §2; 1985 c.673 §113; 1987 c.636 §2; 1991 c.944 §6; 1993 c.577 §38; 2009 c.907 §4]

Note: The amendments to 541.705 by section 35, chapter 907, Oregon Laws 2009, become operative January 2, 2024. See section 46 (3), chapter 907, Oregon Laws 2009. The text that is operative on and after January 2, 2024, is set forth for the user’s convenience.

541.705. (1) Any water developer may file with the Water Resources Commission an application to enable the construction of a water development project as provided in ORS 541.700 to 541.855. The application shall be filed in the manner, be in the form and contain or be accompanied by any information prescribed by the commission. The commission, in considering applications, shall encourage the largest number of users of the Water Development Fund and shall consider the impact on the family farm units of the state.

(2) In addition to other requirements prescribed by the commission, an application filed under subsection (1) of this section shall:

(a) Describe the nature and purposes of the proposed water development project, including the need for the project and reason why the project would be in the public interest.

(e) Show that the applican