Bill Text: OR HB3459 | 2011 | Regular Session | Introduced
Bill Title: Relating to district water rights.
Sponsorship: Partisan Bill (Republican 1)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3459 Detail]
Download: Oregon-2011-HB3459-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2199
House Bill 3459
Sponsored by Representative JENSON
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows qualifying district holding water right to change place
of use for water to other lands within district without seeking
transfer of water right. Terminates pilot program temporarily
creating similar right in limited areas.
A BILL FOR AN ACT
Relating to district water rights; creating new provisions;
amending ORS 536.050 and 540.510; and repealing sections 23, 24
and 25, chapter 705, Oregon Laws 2003.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2011 Act is added to and made
a part of ORS 540.505 to 540.585. + }
SECTION 2. { + (1) Notwithstanding ORS 540.520, 540.530,
540.570 and 540.580, a district that qualifies under this
subsection and holds a water right subject to transfer may change
the place of use from the lands specified in the water right and
use the certificated water on any land within the legal
boundaries of the district without petitioning for or receiving
approval of the transfer by the Water Resources Department. To
qualify under this subsection, the district:
(a) Must have defined state district boundaries;
(b) Must have a management structure that can ensure that water
is applied only where the water use is authorized;
(c) May not irrigate an area in any one irrigation season that
exceeds the maximum number of acres allowed to be irrigated under
the original water right;
(d) Shall make full and accurate measurement of the water
appropriated;
(e)(A) Shall have an accurate map identifying the location of
authorized use by priority date;
(B) Shall make the map available for review upon request; and
(C) Shall provide a copy of the map to the watermaster;
(f) Shall have on file statements by any landowner affected by
the water use change indicating that the landowner agrees to the
change;
(g) Shall be implementing or have in effect an approved water
management and conservation plan; and
(h) Shall maintain records for all changes in the place of use
of the water right that are sufficient to document the beneficial
use of the water.
(2) The place of use for water may be changed under this
section only if the board of directors for the district approves
the change.
(3) The department may require that a change in water use
described in this section cease and that the use revert to the
use allowed under the water right of record if the department
determines at any time that:
(a) The district does not qualify under subsection (1) of this
section;
(b) The district has made a change in use of the water other
than a change in the place of use; or
(c) The change in the place of use injures the water rights of
other water users.
(4) A department determination or requirement under subsection
(3) of this section is subject to hearing as provided in ORS
chapter 183. Any requirement that a district cease a change in
the place of water use under this section must set forth any
actions that the district must take before a change in the place
of use by the district may qualify under this section.
(5) A change in the place of use of water under this section,
or a disqualification under subsection (3) of this section that
is due to a change of use, does not affect the ability of a
district to apply for any transfer of the water right under ORS
540.520 and 540.530 or under ORS 540.570 and 540.572 to
540.580. + }
SECTION 3. ORS 540.510 is amended to read:
540.510. (1) Except as provided in { - subsections (2) to (8)
of - } this section, all water used in this state for any
purpose shall remain appurtenant to the premises upon which it is
used and no change in use or place of use of any water for any
purpose may be made without compliance with the provisions of ORS
540.520 and 540.530. However, the holder of any water use subject
to transfer may, upon compliance with the provisions of ORS
540.520 and 540.530, change the use and place of use, the point
of diversion or the use { - theretofore - } { + to be + }
made of the water in all cases without losing { + the previously
established + } priority of the right
{ - theretofore established - } . A district may change the
place of use in the manner provided in ORS 540.572 to 540.580
{ + or section 2 of this 2011 Act + }in lieu of the method
provided in ORS 540.520 and 540.530. When an application for
change of the use or place of use for a primary water right is
submitted in accordance with this section, the applicant also
shall indicate whether the land described in the application has
an appurtenant supplemental water right or permit. If the
applicant also intends to transfer the supplemental water right
or permit, the applicant also shall include the information
required under ORS 540.520 (2) for the supplemental water right
or permit. If the applicant does not include the supplemental
water right or permit in the transfer application, the Water
Resources Department shall notify the applicant that the
supplemental water right or permit will be canceled before the
department issues the order approving the transfer of the primary
water right, unless within 30 days the applicant modifies the
application to include the supplemental water right or permit or
withdraws the application. The department may approve the
transfer of the supplemental water right or permit in accordance
with the provisions of ORS 540.520 and 540.530. The department
{ - shall - } { + may + } not approve the transfer of a
supplemental water right or permit if the transfer would result
in enlargement of the original water right or injury to an
existing water right. If the department approves the transfer of
the primary water right but does not approve the transfer of the
supplemental water right or permit, the department shall notify
the applicant of the department's intent to cancel that portion
of the supplemental water right or permit described in the
transfer application before the department issues the primary
water right transfer order, unless the applicant withdraws the
transfer application within 90 days.
(2) Subject to the limitations in ORS 537.490, any right to the
use of conserved water allocated by the Water Resources
Commission under ORS 537.470 may be severed from the land and
transferred or sold after notice to the commission as required
under ORS 537.490.
(3)(a) Any water used under a permit or certificate issued to a
municipality, or under rights conferred by ORS 538.410 to
538.450, or under the registration system set forth in ORS
537.132, may be applied to beneficial use on lands to which the
right is not appurtenant if:
(A) The water is applied to lands which are acquired by
annexation or through merger, consolidation or formation of a
water authority, so long as the rate and use of water allowed in
the original certificate is not exceeded;
(B) The use continues to be for municipal purposes and would
not interfere with or impair prior vested water rights; or
(C) The use is authorized under a permit granted under ORS
468B.050 or 468B.053 and for which a reclaimed water registration
form has been filed under ORS 537.132.
(b) As used in this subsection, 'municipality' means a city, a
port formed under ORS 777.005 to 777.725, 777.915 to 777.953 and
778.010, a domestic water supply district formed under ORS
chapter 264, a water supplier as defined in ORS 448.115 or a
water authority formed under ORS chapter 450.
(4) Pursuant to the provisions of ORS 540.570 or 540.585 { +
or section 2 of this 2011 Act + }, any water used under a permit
or certificate issued to a district may be applied to beneficial
use on lands within the district to which the right is not
appurtenant.
(5) The relocation of a point of diversion as necessary to
follow the movements of a naturally changing stream channel does
not constitute a change in point of diversion for purposes of ORS
540.520 if:
(a) The diversion point stays within 500 feet of the point of
diversion on record with the Water Resources Department;
(b) The change does not move the diversion point upstream or
downstream beyond the diversion point of another appropriator;
and
(c) The diversion is provided with a proper fish screen, if
requested by the State Department of Fish and Wildlife.
(6) { - In the event that - } { + If + } government action
results in or creates a reasonable expectation of a change in the
surface level of a surface water source that impairs or threatens
to impair access to a point of diversion authorized by a water
right permit, certificate or decree, the owner of the water right
may change the point of diversion or add an additional point of
diversion in accordance with the provisions of this section in
lieu of complying with the requirements of ORS 540.520 and
540.530. Before changing the point of diversion, the water right
owner shall provide written notice of the proposed change to the
Water Resources Department. Within 15 days after receipt of such
notice, the department shall provide notice by publication in the
department's public notice of water right applications. Within 60
days after the department receives notice from the owner, the
Water Resources Director, by order, shall approve the change
unless the director finds the changes will result in injury to
other existing water rights. All other terms and conditions of
the water right shall remain in effect.
(7) The sale or lease of the right to the use of conserved
water under ORS 537.490 does not constitute a change of use or a
change in the place of use of water for purposes of ORS 540.520.
(8) Ground water applied to an exempt use as set forth in ORS
537.141 or 537.545 may be subsequently applied to land for
irrigation purposes under ORS 537.141 (1)(i) or 537.545 (1)(g)
without application for a change in use or place of use under
this section.
SECTION 4. ORS 536.050 is amended to read:
536.050. (1) The Water Resources Department may collect the
following fees in advance:
(a) For examining an application for a permit:
(A) To appropriate water, except as provided under ORS 543.280
for an application for a hydroelectric project:
(i) A base fee of $700 for an appropriation of water through a
single use, point of diversion or point of appropriation;
(ii) $250 for the first second-foot or fraction thereof
appropriated under the permit;
(iii) $250 for each additional second-foot or fraction thereof
appropriated under the permit;
(iv) $250 for each additional use, point of diversion or point
of appropriation included in the application;
(v) If appropriating stored water, $25 for the first acre-foot
or fraction thereof up to 20 acre-feet, plus $1 for each
additional acre-foot or fraction thereof; and
(vi) If appropriating ground water, in addition to any other
fees, $300 for each application filed.
(B) To store water under ORS 537.400 or 537.534 (4):
(i) A base fee of $700;
(ii) $25 for the first acre-foot or fraction thereof up to 20
acre-feet, plus $1 for each additional acre-foot or fraction
thereof; and
(iii) $100 for each additional storage location.
(C) To exclusively appropriate stored water:
(i) A base fee of $400; and
(ii) $25 for the first acre-foot or fraction thereof up to 20
acre-feet, plus $1 for each additional acre-foot or fraction
thereof.
(b) For a permit issued under ORS 537.147, 537.211, 537.409 or
537.625 to appropriate or store water:
(A) A base fee of $400 for recording the permit; and
(B) An additional fee of $500 if the permit is issued pursuant
to a final order that contains provisions requested by the
applicant for mitigating impacts to the proposed water source.
(c) For filing and recording the assignment or partial
assignment of a water right application, permit or license under
ORS 537.220 or 537.635, $75.
(d) For copying records in the department, $2 for the first
page and 50 cents for each additional page.
(e) For certifying copies, documents, records or maps, $10 for
each certificate.
(f) For a blueprint copy of any map or drawing, the actual cost
of the work.
(g) For a computer-generated map, the actual cost of the work.
(h) For examining an application for approval of a change to an
existing water right or permit:
(A) A base fee of $900 for a change to a single water right or
permit;
(B) $700 for each additional type of change requested;
(C) For a request for a change in place of use or type of use
or for a water exchange under ORS 540.533, $250 for each
second-foot or fraction thereof requested beyond the first
second-foot;
(D) $400 for each additional water right or permit included in
the application; and
(E) An additional fee of $300 per application, if the
application is for an additional point of appropriation, a change
in a point of appropriation or a change from surface water to
ground water or for substitution as described in ORS 540.524.
(i) For examining an application for a temporary change in
place of use under ORS 540.523, for a temporary transfer under
ORS 540.585 or for a temporary change in place of use, a change
in the point of diversion to allow for the appropriation of
ground water or a change of a primary right to a supplemental
right under ORS 540.570 { + or a change of place under section 2
of this 2011 Act + }, a base fee of $600 for the first water
right or permit, plus $200 for each additional water right or
permit included in the application and:
(A) For nonirrigation uses, $150 for each second-foot or
fraction thereof requested beyond the first second-foot; or
(B) For irrigation uses, $2 per acre of land irrigated or, if
the application and required map are submitted to the department
in a department-approved digital format, 50 cents per acre of
land irrigated.
(j) For submitting a protest to the department:
(A) $600 if the protest is by a nonapplicant; and
(B) $300 if the protest is by an applicant.
(k) For filing an application for extension of time within
which irrigation or other works shall be completed or a water
right perfected, $500.
(L) For a limited license under ORS 537.143 or 537.534 (2), the
fee established by rule by the Water Resources Commission.
(m) For filing, examining and certifying a petition under ORS
541.329, $300 plus 10 cents per acre of water involved in the
application. For purposes of computing this fee, when any acreage
within a quarter quarter of a section is involved, the 10 cents
per acre shall apply to all acres in that quarter quarter of a
section. Notwithstanding the fee amount established in this
paragraph, a district notifying the department under ORS 541.327
(4) shall pay the actual cost of filing, examining and certifying
the petition.
(n) For requesting standing under ORS 537.153, 537.621 or
543A.120, $150.
(o) For participating in a contested case proceeding under ORS
537.170, 537.622 or 543A.130, $350.
(p) Except for an applicant, for obtaining a copy of both a
proposed final order and a final order for a water right
application under ORS 537.140 to 537.252, 537.505 to 537.795 or
543A.005 to 543A.300 or an extension issued under ORS 537.230,
537.248 or 537.630, $20.
(q) For examining an application to store water under ORS
537.409:
(A) A base fee of $300; and
(B) $25 for each acre-foot or fraction thereof.
(r) For submitting a notice of intent under ORS 543A.030 or
543A.075, the amount established by the Water Resources Director
under ORS 543A.410.
(s) For examining an application for a substitution made under
ORS 540.524:
(A) A base fee of $630 for the first well substitution; and
(B) A fee of $300 for each additional well substitution.
(t) For examining an application for an allocation of conserved
water under ORS 537.455 to 537.500:
(A) A base fee of $850 for the first water right that is part
of the allocation; and
(B) An additional fee of $300 for each water right that is part
of the allocation beyond the first water right.
(u) For submitting a water management and conservation plan
pursuant to rules of the commission:
(A) $400, if the plan is submitted by an agricultural water
supplier;
(B) $800, if the plan is submitted by a municipal water
supplier serving a population of 1,000 or fewer persons; or
(C) $1,600, if the plan is submitted by a municipal water
supplier serving a population of more than 1,000 persons.
(v) For examining a new application for an in-stream water
right lease under ORS 537.348:
(A) $400 for an application for a lease with four or more
landowners or four or more water rights; or
(B) $250 for all other applications.
(w) For examining an application for an in-stream water right
lease renewal, $100.
(x) For submitting a claim of beneficial use under a permit
having a priority date of July 9, 1987, or later, $150.
(y) For submitting a request no later than 60 days after
cancellation of a permit under ORS 537.260 to reinstate the
permit, $400.
(z) For submitting a request for a basin program exception
under ORS 536.295, $500.
(2)(a) The department may charge a dam owner an annual fee
based upon the dam's hazard rating as determined by the
department. The fees the department may charge the dam owner are:
(A) $75 for a dam with a low hazard rating.
(B) $150 for a dam with a significant hazard rating.
(C) $500 for a dam with a high hazard rating.
(D) If the dam owner fails to pay an annual fee on or before
six months after the billing date, a late fee of $100.
(b) If a dam owner fails to pay an annual fee or a late fee
charged by the department, the department may, after giving the
dam owner notice by certified mail, place a lien on the real
property where the dam is located for the fees owed by the dam
owner.
(3) Notwithstanding the fees established under subsection (1)
of this section, the commission may establish lower examination
and permit fees by rule for:
(a) The right to appropriate water for a storage project of
five acre-feet or less; or
(b) The right to appropriate water for the purpose of allowing
the applicant to water livestock outside of a riparian area, as
that term is defined in ORS 541.351.
(4)(a) The director may refund all or part of a fee paid to the
department under this section if the director determines that a
refund of the fee is appropriate in the interests of fairness to
the public or necessary to correct an error of the department.
(b) The director may refund all or part of the protest fee
described in subsection (1)(j) of this section to the legal owner
or occupant who filed a protest under ORS 540.641 if an order of
the Water Resources Commission establishes that all or part of a
water right has not been canceled or modified under ORS 540.610
to 540.650.
(5) The director may waive all or part of a fee for a change to
a water right permit under ORS 537.211 (4), a change to a water
right subject to transfer under ORS 540.520 or 540.523 or an
allocation of conserved water under ORS 537.470, if the change or
allocation of conserved water is:
(a) Made pursuant to ORS 537.348;
(b) Necessary to complete a project funded under ORS 541.375;
or
(c) Approved by the State Department of Fish and Wildlife as a
change or allocation of conserved water that will result in a net
benefit to fish and wildlife habitat.
(6) Notwithstanding the fees established pursuant to this
section, the commission may adopt by rule reduced fees for
persons submitting materials to the department in a digital
format approved by the department.
(7) All moneys received under this section, less any amounts
refunded under subsection (4) of this section, shall be deposited
in the Water Resources Department Water Right Operating Fund.
(8) Notwithstanding subsection (7) of this section, all fees
received by the department for power purposes under ORS 543.280
shall be deposited in the Water Resources Department
Hydroelectric Fund established by ORS 536.015.
SECTION 5. ORS 536.050, as amended by section 12, chapter 819,
Oregon Laws 2009, is amended to read:
536.050. (1) The Water Resources Department may collect the
following fees in advance:
(a) For examining an application for a permit:
(A) To appropriate water, except as provided under ORS 543.280
for an application for a hydroelectric project:
(i) A base fee of $500 for an appropriation of water through a
single use, point of diversion or point of appropriation;
(ii) $200 for the first second-foot or fraction thereof
appropriated under the permit;
(iii) $100 for each additional second-foot or fraction thereof
appropriated under the permit;
(iv) $200 for each additional use, point of diversion or point
of appropriation included in the application; and
(v) If appropriating stored water, $20 for the first acre-foot
or fraction thereof up to 20 acre-feet, plus $1 for each
additional acre-foot or fraction thereof.
(B) To store water under ORS 537.400 or 537.534 (4):
(i) A base fee of $500; and
(ii) $20 for the first acre-foot or fraction thereof up to 20
acre-feet, plus $1 for each additional acre-foot or fraction
thereof.
(C) To exclusively appropriate stored water:
(i) A base fee of $250; and
(ii) $15 for the first acre-foot or fraction thereof up to 10
acre-feet, plus $1 for each additional acre-foot or fraction
thereof.
(b) For recording a permit to appropriate or store water, $300.
(c) For filing and recording the assignment or partial
assignment of a water right application, permit or license under
ORS 537.220 or 537.635, $50.
(d) For copying records in the department, $2 for the first
page and 50 cents for each additional page.
(e) For certifying copies, documents, records or maps, $10 for
each certificate.
(f) For a blueprint copy of any map or drawing, the actual cost
of the work.
(g) For a computer-generated map, the actual cost of the work.
(h) For examining an application for approval of a change to an
existing water right or permit:
(A) A base fee of $400 for a change to a single water right or
permit;
(B) $400 for each additional type of change requested;
(C) For a request for a change in place of use or type of use
or for a water exchange under ORS 540.533, $200 for each
second-foot or fraction thereof requested beyond the first
second-foot; and
(D) $200 for each additional water right or permit included in
the application.
(i) For examining an application for a temporary change in
place of use under ORS 540.523, for a temporary transfer under
ORS 540.585 or for a temporary change in place of use, a change
in the point of diversion to allow for the appropriation of
ground water or a change of a primary right to a supplemental
right under ORS 540.570 { + or a change of place under section 2
of this 2011 Act + }, a base fee of $200 for the first water
right or permit, plus $50 for each additional water right or
permit included in the application and:
(A) For nonirrigation uses, $80 for each second-foot or
fraction thereof requested beyond the first second-foot; or
(B) For irrigation uses, $1 per acre of land irrigated or, if
the application and required map are submitted to the department
in a department-approved digital format, 25 cents per acre of
land irrigated.
(j) For submitting a protest to the department, $350.
(k) For filing an application for extension of time within
which irrigation or other works shall be completed or a water
right perfected, $350.
(L) For a limited license under ORS 537.143 or 537.534 (2), the
fee established by rule by the Water Resources Commission.
(m) For filing, examining and certifying a petition under ORS
541.329, $250 plus 10 cents per acre of water involved in the
application. For purposes of computing this fee, when any acreage
within a quarter quarter of a section is involved, the 10 cents
per acre shall apply to all acres in that quarter quarter of a
section. Notwithstanding the fee amount established in this
paragraph, a district notifying the department under ORS 541.327
(4) shall pay the actual cost of filing, examining and certifying
the petition.
(n) For requesting standing under ORS 537.153, 537.621 or
543A.120, $100.
(o) For participating in a contested case proceeding under ORS
537.170, 537.622 or 543A.130, $250.
(p) Except for an applicant, for obtaining a copy of both a
proposed final order and a final order for a water right
application under ORS 537.140 to 537.252, 537.505 to 537.795 or
543A.005 to 543A.300 or an extension issued under ORS 537.230,
537.248 or 537.630, $10.
(q) For examining an application to store water under ORS
537.409:
(A) A base fee of $80; and
(B) $20 for each acre-foot or fraction thereof.
(r) For submitting a notice of intent under ORS 543A.030 or
543A.075, the amount established by the Water Resources Director
under ORS 543A.410.
(s) For examining an application for a substitution made under
ORS 540.524, $280.
(t) For examining an application for an allocation of conserved
water under ORS 537.455 to 537.500, $700.
(u) For submitting a water management and conservation plan
pursuant to rules of the commission:
(A) $250, if the plan is submitted by an agricultural water
supplier;
(B) $500, if the plan is submitted by a municipal water
supplier serving a population of 1,000 or fewer persons; or
(C) $1,000, if the plan is submitted by a municipal water
supplier serving a population of more than 1,000 persons.
(v) For examining a new application for an in-stream water
right lease under ORS 537.348:
(A) $200 for an application for a lease with four or more
landowners or four or more water rights; or
(B) $100 for all other applications.
(w) For examining an application for an in-stream water right
lease renewal, $50.
(2) Notwithstanding the fees established under subsection (1)
of this section, the commission may establish lower examination
and permit fees by rule for:
(a) The right to appropriate water for a storage project of
five acre-feet or less; or
(b) The right to appropriate water for the purpose of allowing
the applicant to water livestock outside of a riparian area, as
that term is defined in ORS 541.351.
(3)(a) The director may refund all or part of a fee paid to the
department under this section if the director determines that a
refund of the fee is appropriate in the interests of fairness to
the public or necessary to correct an error of the department.
(b) The director may refund all or part of the protest fee
described in subsection (1)(j) of this section to the legal owner
or occupant who filed a protest under ORS 540.641 if an order of
the Water Resources Commission establishes that all or part of a
water right has not been canceled or modified under ORS 540.610
to 540.650.
(4) The director may waive all or part of a fee for a change to
a water right permit under ORS 537.211 (4), a change to a water
right subject to transfer under ORS 540.520 or 540.523 or an
allocation of conserved water under ORS 537.470, if the change or
allocation of conserved water is:
(a) Made pursuant to ORS 537.348;
(b) Necessary to complete a project funded under ORS 541.375;
or
(c) Approved by the State Department of Fish and Wildlife as a
change or allocation of conserved water that will result in a net
benefit to fish and wildlife habitat.
(5) Notwithstanding the fees established pursuant to this
section, the commission may adopt by rule reduced fees for
persons submitting materials to the department in a digital
format approved by the department.
(6) All moneys received under this section, less any amounts
refunded under subsection (3) of this section, shall be deposited
in the Water Resources Department Water Right Operating Fund.
(7) Notwithstanding subsection (6) of this section, all fees
received by the department for power purposes under ORS 543.280
shall be deposited in the Water Resources Department
Hydroelectric Fund established by ORS 536.015.
SECTION 6. { + Sections 23, 24 and 25, chapter 705, Oregon
Laws 2003, are repealed. + }
SECTION 7. { + The repeal of section 23, chapter 705, Oregon
Laws 2003, by section 6 of this 2011 Act does not affect the
validity of any change in the place of use by a water district
undertaken in conformance with section 23, chapter 705, Oregon
Laws 2003, before the effective date of this 2011 Act. However,
if a district that changed a place of use under section 23,
chapter 705, Oregon Laws 2003, does not qualify under section 2
of this 2011 Act on the effective date of this 2011 Act, the
district must qualify under section 2 of this 2011 Act or apply
for a transfer of right on or before one year after the effective
date of this 2011 Act to avoid reversion of the place of use to
the right of record. + }
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