Bill Text: OR HB2135 | 2011 | Regular Session | Enrolled
Bill Title: Relating to reductions in newspaper notice requirements.
Spectrum: Unknown
Status: (Passed) 2011-05-16 - Chapter 52, (2011 Laws): Effective date January 1, 2012. [HB2135 Detail]
Download: Oregon-2011-HB2135-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
House Bill 2135
Introduced and printed pursuant to House Rule 12.00. Presession
filed (at the request of Governor John A. Kitzhaber for Water
Resources Department)
CHAPTER ................
AN ACT
Relating to reductions in newspaper notice requirements; creating
new provisions; and amending ORS 536.340, 537.130, 537.145,
537.252, 537.805, 540.520, 540.535, 541.329 and 543.220.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 536.340 is amended to read:
536.340. (1) Subject at all times to existing rights and
priorities to use waters of this state, the Water Resources
Commission:
(a) May, by a water resources statement referred to in ORS
536.300 (2), classify and reclassify the lakes, streams,
underground reservoirs or other sources of water supply in this
state as to the highest and best use and quantities of use
thereof for the future in aid of an integrated and balanced
program for the benefit of the state as a whole. The commission
may so classify and reclassify portions of any such sources of
water supply separately. Classification or reclassification of
sources of water supply as provided in this subsection has the
effect of restricting the use and quantities of use thereof to
the uses and quantities of uses specified in the classification
or reclassification, and no other uses or quantities of uses
except as approved by the commission under ORS 536.370 to 536.390
or as accepted by the commission under ORS 536.295. Restrictions
on use and quantities of use of a source of water supply
resulting from a classification or reclassification under this
subsection shall apply to the use of all waters of this state
affected by the classification or reclassification, and shall
apply to uses listed in ORS 537.545 that are initiated after the
classification or reclassification that imposes the restriction.
(b) Shall diligently enforce laws concerning cancellation,
release and discharge of excessive unused claims to waters of
this state to the end that such excessive and unused amounts may
be made available for appropriation and beneficial use by the
public.
(c) May, by a water resources statement referred to in ORS
536.300 (2) and subject to the preferential uses named in ORS
536.310 (12), prescribe preferences for the future for particular
uses and quantities of uses of the waters of any lake, stream or
other source of water supply in this state in aid of the highest
and best beneficial use and quantities of use thereof. In
prescribing such preferences the commission shall give effect and
Enrolled House Bill 2135 (HB 2135-A) Page 1
due regard to the natural characteristics of such sources of
water supply, the adjacent topography, the economy of such
sources of water supply, the economy of the affected area,
seasonal requirements of various users of such waters, the type
of proposed use as between consumptive and nonconsumptive uses
and other pertinent data.
(2) In classifying or reclassifying a source of water supply or
prescribing preferences for the future uses of a source of water
supply under subsection (1) of this section, the commission
shall:
(a) Comply with the requirements set forth in the Water
Resources Department coordination program developed pursuant to
ORS 197.180; and
(b) Cause notice of the hearing held under ORS 536.300 (3) to
be published in a newspaper of general circulation once each week
for { - four - } { + two + } successive weeks in each county:
(A) In which waters affected by the action of the commission
under subsection (1) of this section are located; or
(B) That is located within the basin under consideration.
(3) Before beginning any action under subsection (2) of this
section that would limit new ground water uses that are exempt
under ORS 537.545 from the requirement to obtain a water right,
the commission shall:
(a) Review the proposed action to determine whether the
proposal is consistent with ORS 537.780;
(b) Provide an opportunity for review by:
(A) Any member of the Legislative Assembly who represents a
district where the proposed action would apply; and
(B) Any interim committee of the Legislative Assembly
responsible for water-related issues; and
(c) Receive and consider a recommendation on the proposal from
the ground water advisory committee appointed under ORS 536.090.
SECTION 2. ORS 537.130 is amended to read:
537.130. (1) Except for a use exempted under ORS 537.040,
537.141, 537.142, 537.143 or 537.800 or under the registration
system set forth in ORS 537.132, any person intending to acquire
the right to the beneficial use of any of the surface waters of
this state shall, before beginning construction, enlargement or
extension of any ditch, canal or other distributing or
controlling works, or performing any work in connection with the
construction, or proposed appropriation, make an application to
the Water Resources Department for a permit to make the
appropriation.
(2) Except for a use exempted under ORS 537.040, 537.141,
537.142, 537.143 or 537.800 or under the registration system set
forth in ORS 537.132, a person may not use, store or divert any
waters until after the department issues a permit to appropriate
the waters.
(3) The department may not issue a permit without notifying the
owner, as identified in the application, of any land to be
crossed by the proposed ditch, canal or other work as set forth
in the application filed pursuant to ORS 537.140. The department
shall provide the notice even if the applicant has obtained
written authorization or an easement from the owner.
(4) If more than 25 persons are identified in the application
as required under subsection (3) of this section, the department
may provide the notice required under subsection (3) of this
section by publishing notice of the application in a newspaper
having general circulation in the area in which the proposed
ditch, canal or other work is located at least once each week for
Enrolled House Bill 2135 (HB 2135-A) Page 2
at least { - three - } { + two + } successive weeks. The cost
of the publication shall be paid by the applicant in advance to
the department.
SECTION 3. ORS 537.145 is amended to read:
537.145. (1) { - Whenever - } { + If + } an application is
made for a permit to appropriate water for hydroelectric
purposes, the Water Resources Department shall give written
notice of the filing of the application to the owner of any land
that is:
(a) Adjacent to any portion of the stream in which the quantity
of water will be decreased by the project; or
(b) Adjacent to the site of the proposed hydroelectric project.
(2) The department shall also publish notice of the application
once each week for at least { - four - } { + two + }
successive weeks and for such further time, if any, as the
department shall determine, in a newspaper of general circulation
in each county in which the project covered by the application is
located.
SECTION 4. ORS 537.252 is amended to read:
537.252. (1) When issuing a water right certificate under ORS
537.250 to a district, or to a government agency for a district,
the Water Resources Department may issue the water right
certificate for land not described in the permit if:
(a) Water furnished by the district under the permit has been
applied beneficially to the land;
(b) The land not described in the permit that is proposed to be
included in the certificate is included within the legally
established boundaries of the district and is subject to the
charges, assessments and liens of the district;
(c) The certificate does not authorize a greater rate, duty or
acreage than is authorized by the terms of the permit, and all
other conditions of the permit are satisfied;
(d) The inclusion of land not described in the permit will not
result in injury to other existing water rights or in enlargement
of the right authorized under the permit; and
(e) The impact to the water source of including land not
described in the permit will not differ significantly from the
impact expected at the time the permit was issued for the lands
described in the permit.
(2) If a district proposes to use water on lands not described
in the permit, the Water Resources Department may issue a
certificate that includes such additional lands if all of the
conditions of subsection (1) of this section are satisfied and
if, no later than 60 days before the district actually applies
the water to the lands not described in the permit, the district
provides written notice to the department. The notice shall
include a copy of the original permit map modified to show the
lands to be added and lands to be removed from the description of
the place of use of the water. Upon receipt of the notice from
the district, the department shall provide public notice of the
proposed change by means of publication in the department's
weekly notice and by publication once each week for
{ - three - } { + two + } successive weeks in a newspaper
having general circulation in the county or counties in which the
affected lands are located. The cost of publication shall be paid
by the district.
(3) If a district has issued an order of inclusion or
exclusion, the boundaries of the irrigation district shall be
deemed to have been legally changed in the absence of approval of
the Secretary of the Interior.
Enrolled House Bill 2135 (HB 2135-A) Page 3
(4) As used in this section:
(a) 'District' has the meaning given in ORS 540.505.
(b) 'Legally established boundaries' means the boundaries of a
district as established at the time of creation of the district
and as the boundaries may have changed after creation of the
district by an inclusion, exclusion or merger proceeding
according to state law.
SECTION 5. ORS 537.805 is amended to read:
537.805. Notwithstanding any other provision of ORS 537.801 to
537.809, an application governed by ORS 537.803 shall be
processed as follows:
(1) Upon determination that the application is acceptable, the
Water Resources Commission shall conduct a comprehensive review
of the application, at the applicant's expense.
(2) When the comprehensive review is complete, the commission
shall issue a preliminary analysis of the application that
addresses the factors under ORS 537.803 and any other information
the commission considers relevant. The preliminary analysis, or a
reasonable summary, shall be published at the applicant's expense
for { - three - } { + two + } consecutive weeks in a
newspaper of general circulation in the basin of origin of the
proposed appropriation, diversion or impoundment.
(3) Following publication, the commission shall conduct a
public hearing at the applicant's expense, in the basin of
origin. The hearing shall be for comment on the factors analyzed
under ORS 537.803 and standards that otherwise apply to the
proposed appropriation or transfer.
(4) After considering the application, the information
generated during the comprehensive review of the application, all
comments received at the hearing and written comments received
within 20 days after the date of the public hearing, the
commission shall:
(a) If the application requires legislative approval under ORS
537.810, submit a report to the Legislative Assembly that
addresses all factors analyzed under ORS 537.803 and recommends
whether to approve or deny the application for use of water
outside the basin of origin; or
(b) If the application does not require legislative approval
under ORS 537.810, approve or deny the application in accordance
with the procedures and standards that otherwise govern the
application, giving due consideration to factors set forth in ORS
537.803.
SECTION 6. ORS 540.520 is amended to read:
540.520. (1) Except when the application is made under ORS
541.327 or when an application for a temporary transfer is made
under ORS 540.523, { - whenever - } { + if + } the holder of
a water use subject to transfer for irrigation, domestic use,
manufacturing purposes, or other use, for any reason desires to
change the place of use, the point of diversion, or the use made
of the water, an application to make such change, as the case may
be, shall be filed with the Water Resources Department.
(2) The application required under subsection (1) of this
section shall include:
(a) The name of the owner;
(b) The previous use of the water;
(c) A description of the premises upon which the water is used;
(d) A description of the premises upon which it is proposed to
use the water;
(e) The use { - which - } { + that + } is proposed to be
made of the water;
Enrolled House Bill 2135 (HB 2135-A) Page 4
(f) The reasons for making the proposed change; and
(g) Evidence that the water has been used over the past five
years according to the terms and conditions of the owner's water
right certificate or that the water right is not subject to
forfeiture under ORS 540.610.
(3) If the application required under subsection (1) of this
section is necessary to allow a change in a water right pursuant
to ORS 537.348, is necessary to complete a project funded under
ORS 541.375, or is approved by the State Department of Fish and
Wildlife as a change that will result in a net benefit to fish
and wildlife habitat, the department, at the discretion of the
Water Resources Director, may waive or assist the applicant in
satisfying the requirements of subsection (2)(c) and (d) of this
section. The assistance provided by the department may include,
but need not be limited to, development of an application map.
(4) If the application is to change the point of diversion, the
transfer shall include a condition that the holder of the water
right provide a proper fish screen at the new point of diversion,
if requested by the State Department of Fish and Wildlife.
(5) Upon the filing of the application the department shall
give notice by publication in a newspaper having general
circulation in the area in which the water rights are located,
for a period of at least { - three - } { + two + } weeks and
not less than one publication each week. The notice shall include
the date on which the last notice by publication will occur. The
cost of the publication shall be paid by the applicant in advance
to the department. In applications for only a change in place of
use or for a change in the point of diversion of less than
one-fourth mile, and where there are no intervening diversions
between the old diversion of the applicant and the proposed new
diversion, no newspaper notice need be published. The department
shall include notice of such applications in the weekly notice
published by the department.
(6) Within 30 days after the last publication of a newspaper
notice of the proposed transfer or the mailing of the
department's weekly notice, whichever is later, any person may
file, jointly or severally, with the department, a protest
against approval of the application.
(7) { - Whenever - } { + If + } a timely protest is filed,
or in the opinion of the Water Resources Director a hearing is
necessary to determine whether the proposed changes as described
by the application would result in injury to existing water
rights, the department shall hold a hearing on the matter. Notice
and conduct of the hearing shall be under the provisions of ORS
chapter 183, pertaining to contested cases, and shall be held in
the area where the rights are located unless all parties and
persons who filed a protest under this subsection stipulate
otherwise.
(8) An application for a change of use under this section is
not required if the beneficial use authorized by the water use
subject to transfer is irrigation and the owner of the water
right uses the water for incidental agricultural, stock watering
and other uses related to irrigation use, so long as there is no
increase in the rate, duty, total acreage benefited or season of
use.
(9) A water right transfer under subsection (1) of this section
is not required for a general industrial use that was not
included in a water right certificate issued for a specific
industrial use if:
Enrolled House Bill 2135 (HB 2135-A) Page 5
(a) The quantity of water used for the general industrial use
is not greater than the rate allowed in the original water right
and not greater than the quantity of water diverted to satisfy
the authorized specific use under the original water right;
(b) The location where the water is to be used for general
industrial use was owned by the holder of the original water
right at the time the water right permit was issued; and
(c) The person who makes the change in water use provides the
following information to the Water Resources Department:
(A) The name and mailing address of the person using water
under the water right;
(B) The water right certificate number;
(C) A description of the location of the industrial facility
owned by the holder of the original water right at the time the
water right permit was issued; and
(D) A description of the general industrial use to be made of
the water after the change.
SECTION 7. ORS 540.535 is amended to read:
540.535. After receipt of an exchange application, the Water
Resources Commission shall give notice of the application by
publishing notice of the application in a newspaper having
general circulation in the area in which the water uses are
located at least once each week for at least { - three - }
{ + two + } successive weeks. The cost of providing the notice
by publication shall be paid in advance by the applicant to the
commission.
SECTION 8. ORS 541.329 is amended to read:
541.329. (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.
(c) A general description of the district boundaries.
Enrolled House Bill 2135 (HB 2135-A) Page 6
(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 { - which - } { + 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 { - three - } { + 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
Enrolled House Bill 2135 (HB 2135-A) Page 7
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.
SECTION 9. ORS 543.220 is amended to read:
543.220. (1) { - Whenever - } { + If + } an application is
made for a preliminary permit { + , + } { - and - } after said
application has been referred to hearing { - , - } the Water
Resources Commission shall give written notice of the filing of
the application to:
(a) Any municipality or other person or corporation
{ - which - } { + that + }, in the judgment of the commission,
is likely to be interested in or affected by the proposed
project; and
(b) The owner of any land that is:
(A) Adjacent to any portion of the stream in which the quantity
of water will be decreased by the project; or
(B) Adjacent to the site of the proposed project.
(2) The commission shall also publish notice of the application
once each week for at least { - four - } { + two + }
successive weeks and for such further time, if any, as the
commission shall determine, in a newspaper of general circulation
in each county in which the project covered by the application is
located.
(3) No application for the appropriation or use of water for
the development of 1,000 theoretical horsepower or more shall be
granted until at least six months after the application for a
preliminary permit has been filed.
SECTION 10. { + (1) The amendments to ORS 536.340 by section 1
of this 2011 Act apply to hearings that the Water Resources
Commission holds 30 or more days after the effective date of this
2011 Act.
(2) The amendments to ORS 537.130, 537.145, 537.805, 540.520,
540.535 and 543.220 by sections 2, 3, 5, 6, 7 and 9 of this 2011
Act apply to applications filed on or after the effective date of
this 2011 Act.
(3) The amendments to ORS 537.252 by section 4 of this 2011 Act
apply to proposed changes for which a district gives the Water
Resources Department notice on or after the effective date of
this 2011 Act.
(4) The amendments to ORS 541.329 by section 8 of this 2011 Act
apply to proposed orders that the Water Resources Commission
issues 30 or more days after the effective date of this 2011
Act. + }
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Enrolled House Bill 2135 (HB 2135-A) Page 8
Passed by House February 21, 2011
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate May 2, 2011
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 2135 (HB 2135-A) Page 9
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 2135 (HB 2135-A) Page 10
