Bill Text: OR SB425 | 2013 | Regular Session | Introduced
Bill Title: Relating to preventing habitat loss in streams.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB425 Detail]
Download: Oregon-2013-SB425-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 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 1002
Senate Bill 425
Sponsored by Senator PROZANSKI (at the request of WaterWatch of
Oregon) (Presession filed.)
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.
Requires that application to change place of use, point of
diversion or use made of water be evaluated to determine whether
granting of application would result in loss of in-stream habitat
for native fish or native wildlife in stream reach not protected
by existing in-stream water right. Prohibits granting application
that would result in loss. Allows revocation of approval if
change results in loss of habitat.
A BILL FOR AN ACT
Relating to preventing habitat loss in streams; creating new
provisions; and amending ORS 537.132, 537.211, 537.803,
540.510, 540.520, 540.523, 540.524, 540.530, 540.531, 540.570
and 540.585.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 537.211 is amended to read:
537.211. (1) The approval of an application referred to in ORS
537.140 or 537.400 shall be set forth in a water right permit
issued by the Water Resources Department. The permit shall
specify the details of the authorized use and shall set forth any
terms, limitations and conditions as the department considers
appropriate including but not limited to any applicable condition
required under ORS 537.289. A copy of the permit shall be filed
as a public record in the department. The permit shall be mailed
to the applicant, and upon receipt of the permit the permittee
may proceed with the construction of the necessary works and may
take all action required to apply the water to the designated
beneficial use and to perfect the proposed appropriation.
(2) Except as provided in subsection (6) of this section, if an
application under ORS 537.140 or 537.400 indicates that the
applicant does not have written authorization or an easement
permitting access to nonowned land crossed by the proposed ditch,
canal or other work, the department may issue a final order
approving the application if the approval includes a condition
requiring the applicant to obtain such written authorization, or
easement or ownership of such land and to provide the department
with a copy of the written authorization, easement or evidence of
ownership.
(3) If an application referred to in ORS 537.140 or 537.400 is
rejected, the department shall enter a written order setting
forth the reasons for the rejection. The applicant shall take no
action toward construction of the works or use of the water. The
department shall mail a copy of the order to the applicant.
(4) The holder of a water right permit may change the point of
diversion, change the point of appropriation, change the point of
diversion to allow the appropriation of ground water or use the
water on land to which the right is not appurtenant if:
(a) The { - use of water on land to which the right is not
appurtenant, the - } change of point of diversion or
{ - the - } change in point of appropriation { + , or the use
of water on land to which the right is not appurtenant:
(A) + } Does not result in injury to an existing water right;
{ + and
(B) Does not result in a loss of in-stream habitat for native
fish or native wildlife in a stream reach that is not protected
by an existing in-stream water right; + }
(b) For a proposed change in the place of use of the water, the
land on which the water is to be used is owned or controlled by
the holder of the permit and is contiguous to the land to which
the permit is appurtenant;
(c) All other terms of the permit remain the same, including
but not limited to the beneficial use for which the water is used
and the number of acres to which water is applied;
(d) Prior approval is obtained from the district if the water
is transported or conveyed by an irrigation district organized
under ORS chapter 545, a drainage district organized under ORS
chapter 547, a water improvement district organized under ORS
chapter 552, a water control district organized under ORS chapter
553 or a district improvement company or a corporation organized
under ORS chapter 554;
(e) The holder of the permit provides written notice to the
department at least 60 days before making any changes to the
lands, point of diversion or point of appropriation described in
the permit;
(f) The holder of the permit complies with the publication
requirements of ORS 540.520 (5), if applicable;
(g) Diversion is provided with a proper fish screen, if
requested by the State Department of Fish and Wildlife; and
(h) For a request to transfer the point of diversion to allow
the appropriation of ground water, the proposed change meets the
standards set forth in ORS 540.531 (2) or (3).
(5) Notwithstanding the requirements of subsection (4)(b) of
this section, the holder of a water right permit may change the
place of use of all or any portion of water under the permit to
land that is not contiguous to the land to which the permit is
appurtenant if:
(a) The change to noncontiguous land is in furtherance of
mitigation or conservation efforts undertaken for the purposes of
benefiting a species listed as sensitive, threatened or
endangered under ORS 496.171 to 496.192 or the federal Endangered
Species Act of 1973 (16 U.S.C. 1531 to 1544), as determined by
the listing agency; and
(b) All other requirements of subsection (4) of this section
are met.
(6) For an application made by or on behalf of a public
corporation, the department may issue a permit approving the
application without requiring the applicant to obtain prior
written authorization or an easement permitting access to
nonowned lands affected by the proposed project. However,
{ - nothing in this subsection shall be construed to - } { +
this subsection does not + } allow any person to trespass on the
lands of another person.
(7) When the department receives notice under subsection (4)(e)
of this section, the department shall publish the notice in the
department's weekly public notice of water right applications.
(8) If the use of water under the permit is for operation of a
chemical process mine as defined in ORS 517.953:
(a) Review of the application and approval or denial of the
application shall be coordinated with the consolidated
application process under ORS 517.952 to 517.989. However, such
review and approval or denial shall take into consideration all
policy considerations for the appropriation of water as set forth
in this chapter and ORS chapter 536.
(b) The permit may be issued for exploration under ORS 517.702
to 517.740, but the permit shall be conditioned on the
applicant's compliance with the consolidated application process.
(c) The permit shall include a condition that additional
conditions may be added to the use of water when a water right
certificate is issued, or when the use of water is changed
pursuant to ORS 540.520 and 540.530 to use for a chemical process
mine operation.
(9) As used in this section, 'contiguous' includes land
separated from the land to which a water right is appurtenant by
roads, utility corridors, irrigation ditches or publicly owned
rights of way.
SECTION 2. ORS 537.803 is amended to read:
537.803. (1) When an application for appropriation of water
submitted under ORS 537.211, 537.400, 537.620, 543.210, 543.290
or for a change in the place of use of an existing water right
submitted under ORS 540.520 proposes use of water outside the
basin of origin, the application shall include, in addition to
any other information required, an analysis of the following:
(a) The amount of water in the basin of origin available for
future appropriation.
(b) Projected future needs for water in the basin of origin.
(c) Benefits presently and prospectively derived from the
return flow of water used within the basin of origin that will be
eliminated by the proposed out-of-basin use.
(d) The correlation between surface water and ground water in
the basin of origin, and whether the proposed use will be harmful
to the supply of either.
(e) Injury to existing water rights of other appropriators or
interference with planned uses or developments within the basin
of origin for which a permit has been issued or for which an
application is pending.
(f) Whether the proposed use will adversely affect the quantity
or quality of water available for domestic or municipal use
within the basin of origin.
(g) Whether the proposed use will adversely affect public uses,
as defined in ORS 537.332, in the basin of origin.
{ + (h) Whether the proposed use would result in a loss of
in-stream habitat for native fish or native wildlife in a stream
reach that is not protected by an existing in-stream water
right. + }
{ - (h) - } { + (i) + } Alternative sources of water for
the proposed use that would not rely on transfer of water out of
its basin of origin.
(2) This section { - shall apply - } { + applies + } only
to an application filed on and after October 3, 1989.
(3) This section { - shall - } { + does + } not apply to an
application for exchange of water under ORS 540.533 to 540.543.
(4) This section { - shall - } { + does + } not apply to an
application for the transfer of less than 0.5 cubic feet per
second of water.
(5) Subsection (1) of this section { - shall - } { +
does + } not apply to an appropriation or diversion by a city to
facilitate regional municipal water service if the city has
historically transported water between the basin of origin and
proposed receiving basins identified in the application.
SECTION 3. ORS 540.510 is amended to read:
540.510. (1) Except as provided in subsections { - (2) to
(8) - } { + (3) to (9) + } 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
made of the water in all cases without losing 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 in lieu of
the method provided in ORS 540.520 and 540.530.
{ + (2) + } 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 { + or result in a
loss of in-stream habitat for native fish or native wildlife in a
stream reach that is not protected by an existing in-stream 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) - } { + (3) + } 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) - } { + (4)(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 - } { +
that + } are acquired by annexation or through merger,
consolidation or formation of a water authority, { - so - }
{ + as + } 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 { + and would not result in a loss of in-stream
habitat for native fish or native wildlife in a stream reach that
is not protected by an existing in-stream water right + }; 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) - } { + (5) + } Pursuant to the provisions of ORS
540.570 or 540.585, 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) - } { + (6) + } 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) - } { + (7) + } { - 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) - } { + (8) + } 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) - } { + (9) + } 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 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, 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 that is proposed to be made of the water;
(f) The reasons for making the proposed change; and
(g) Evidence that the water has been used over the past five
years according to the terms and conditions of the owner's water
right certificate or that the water right is not subject to
forfeiture under ORS 540.610.
(3) If the application required under subsection (1) of this
section is necessary to allow a change in a water right pursuant
to ORS 537.348, is necessary to complete a project funded under
ORS 541.932, 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 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) { + (a) The department shall hold a hearing on the proposed
changes + }if a timely protest is filed { - , - } or
{ + if, + } 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. - } { + :
(A) Injury to an existing water right; or
(B) A loss of in-stream habitat for native fish or native
wildlife in a stream reach that is not protected by an existing
in-stream water right.
(b) + } 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 - } { +
as + } 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:
(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 5. ORS 540.523 is amended to read:
540.523. (1) In accordance with the provisions of this section,
any person who holds a water use subject to transfer may request
that the Water Resources Department approve the temporary
transfer of place of use and, if necessary to convey water to the
new temporary place of use, temporarily change the point of
diversion or point of appropriation for a period not to exceed
five years. An application for a temporary transfer shall:
(a) Be submitted in writing to the Water Resources Department;
(b) Be accompanied by the appropriate fee for a change in the
place of use as set forth in ORS 536.050;
(c) Include the information required under ORS 540.520 (2); and
(d) Include any other information the Water Resources
Commission by rule may require.
(2) Notwithstanding the notice and waiting requirements under
ORS 540.520, the department shall approve by order a request for
a temporary transfer under this section if the department
determines that the temporary transfer will not { - injure any
existing water right. - } { + result in:
(a) Injury to any existing water right; or
(b) A loss of in-stream habitat for native fish or native
wildlife in any stream reach that is not protected by an existing
in-stream water right. + }
(3) All uses of water for which a temporary transfer is allowed
under this section shall revert automatically to the terms and
conditions of the water use subject to transfer upon expiration
of the temporary transfer period.
(4) The time during which water is used under an approved
temporary transfer order does not apply toward a finding of
forfeiture under ORS 540.610.
(5) The department may revoke a prior approval of the temporary
transfer at any time if the department finds that the transfer is
{ - causing - } { + resulting in:
(a) + } Injury to any existing water right { - . - } { + ; or
(b) A loss of in-stream habitat for native fish or native
wildlife in any stream reach that is not protected by an existing
in-stream water right. + }
(6) Any map that may be required under subsection (1) of this
section need not be prepared by a certified water right examiner.
(7) The lands from which the water right is removed during the
period of a temporary transfer shall receive no water under the
transferred water right.
(8) When an application for a temporary change of the 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
temporarily 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 temporary 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 temporary 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
temporary transfer of the supplemental water right or permit in
accordance with the provisions of this section. The department
may not approve the temporary transfer of a supplemental water
right or permit if the temporary transfer would result in { + :
(a) + } Enlargement of the original water right { - or - }
{ + ;
(b) + } Injury to an existing water right { - . - } { + ; or
(c) A loss of in-stream habitat for native fish or native
wildlife in a stream reach that is not protected by an existing
in-stream water right.
(9) + } If the department approves the temporary transfer of
the primary water right but does not approve the temporary
transfer of the supplemental water right or permit, the
department shall notify the applicant of the department's intent
not to allow the temporary transfer of the supplemental water
right or permit before the department issues the order for the
temporary transfer of the primary water right. If the department
does not allow the temporary transfer of the supplemental right,
the supplemental right shall remain appurtenant to the land
described in the application, but may not be exercised until the
primary right reverts to the original water use. If the primary
water right does not revert soon enough to allow use of water
under the supplemental right within five years, the supplemental
right shall become subject to cancellation for nonuse under ORS
540.610.
{ - (9) - } { + (10) + } In issuing an order under
subsection (2) of this section, the department shall include any
condition necessary to { + :
(a) + } Protect other water rights { - . - } { + ; or
(b) Avoid causing a loss of in-stream habitat for native fish
or native wildlife in a stream reach that is not protected by an
existing in-stream water right. + }
SECTION 6. ORS 540.524 is amended to read:
540.524. (1) Notwithstanding ORS 540.510 or 540.670, upon
approval of an application submitted to the Water Resources
Department, the holder of both a primary water right originating
from a surface water source and a supplemental water right permit
or certificate originating from a ground water source may
substitute the use of the supplemental water right for the
primary water right. A substitution may not be made under this
subsection if the use of the supplemental water right results in
an enlargement or expansion of the primary water right. This
subsection does not authorize a change in place of use, type of
use, point of diversion or point of appropriation.
(2) An application required under subsection (1) of this
section shall be submitted on forms provided by the department.
The department may request additional information if necessary to
assist with the injury evaluation. Each application shall be
submitted with the fee described in ORS 536.050 (1)(s).
(3) Upon receiving an application under subsection (1) of this
section, the department shall provide notice, accept protests and
conduct hearings on protests in the manner described in ORS
540.520 (5), (6) and (7).
(4) The Water Resources Director shall issue an order approving
or denying the substitution. If the proposed substitution will
result in injury to other water rights, { + or will result in a
loss of in-stream habitat for native fish or native wildlife in a
stream reach that is not protected by an existing in-stream water
right, + } the director shall prohibit or condition the use to
avoid or mitigate the injury. The director shall issue an order
approving or denying the substitution within 90 days after the
department receives an application under subsection (1) of this
section.
(5) For the purpose of ORS 540.610, a substituted primary
surface water right shall be treated as a supplemental water
right, and a substituted supplemental ground water right shall be
treated as a primary water right.
(6) A completed and approved substitution of a supplemental
ground water right for a primary surface water right under this
section may be terminated upon a request by the water right
holder or by an order of the director if the director determines
that the use of the ground water as the primary water right
causes injury to other water rights { + or causes a loss of
in-stream habitat for native fish or native wildlife in a stream
reach that is protected by an existing in-stream water right + }.
Upon termination, the substituted primary and supplemental water
rights shall revert back to their original status.
SECTION 7. ORS 540.530 is amended to read:
540.530. (1)(a) If, after hearing or examination, the Water
Resources Commission finds that a proposed change can be effected
without injury to { - existing water rights - } { + an
existing water right, and without loss of in-stream habitat for
native fish or native wildlife in a stream reach that is not
protected by an existing in-stream water right + }, the
commission shall make an order approving the transfer and fixing
a time limit within which the approved changes may be completed.
(b) If, after hearing or examination, the commission finds that
a proposed change in point of diversion cannot be effected
without injury to { - existing water rights, - } { + an
existing water right, except as provided in paragraph (c) of this
subsection, + } upon receipt by the commission of an affidavit
consenting to the change from every holder of an affected water
right, the commission may make an order approving the transfer
and fixing a time limit within which the approved changes may be
completed.
{ + (c) If, after hearing or examination, the commission
finds that a proposed change in point of diversion cannot be
effected without a loss of in-stream habitat for native fish or
native wildlife in a stream reach that is not protected by an
existing in-stream water right, the commission shall make an
order:
(A) Denying the transfer;
(B) Conditioning the transfer to avoid the loss; or
(C) Conditioning the transfer in a manner that the State
Department of Fish and Wildlife recommends for producing a net
benefit. + }
{ - (c) - } { + (d) + } If, after hearing or examination,
the commission finds that a proposed change in point of diversion
cannot be effected without injury to an in-stream water right
granted pursuant to a request under ORS 537.336 or an in-stream
water right created pursuant to ORS 537.346 (1), the Water
Resources Department may consent to the change only upon a
recommendation that the department do so from the agency that
requested the in-stream water right. The agency that requested
the in-stream water right may recommend that the department
consent to the change only if the change will result in a net
benefit to the resource consistent with the purposes of the
in-stream water right.
{ - (d)(A) - } { + (e)(A) + } If an in-stream water right
would be injured by a proposed change under paragraph
{ - (c) - } { + (d) + } of this subsection, the department
shall obtain a recommendation from the agency that requested the
in-stream water right. If the recommendation of the agency is to
consent to the change, the department shall provide public notice
of the recommendation and, consistent with state laws regarding
cooperation with Indian tribes in the development and
implementation of state agency programs that affect tribes or
rights and privileges of tribes, the department shall consult
with affected Indian tribes.
(B) The recommendation of an agency under this paragraph must
be in writing and, if the recommendation is to consent to the
change, must describe the extent of the injury to the in-stream
water right, the effect on the resource and the net benefit that
will occur as a result of the proposed change. The recommendation
may include any proposed conditions that are necessary to ensure
that the proposed change will be consistent with the
recommendation.
(C) In determining whether a net benefit will result from the
proposed change, the recommendation of an agency must include an
analysis of the cumulative impact of any previous changes under
paragraphs (b) and { - (c) - } { + (d) + }of this subsection
that allow injury to the affected in-stream water right.
(D) A person may comment on the recommendation of an agency.
The comment must be in writing and must be received by the
department within 30 days after publication of notice under this
paragraph. If a written comment received by the department
requests a meeting on the proposed change, the department and the
agency that requested the in-stream water right shall hold a
joint public meeting within 90 days of the receipt of the comment
requesting a meeting.
{ - (e)(A) - } { + (f)(A) + } If, after review of public
comments and consultation with the agency that requested the
in-stream water right, the agency that requested the in-stream
water right does not withdraw its recommendation to consent to
the change, the department may approve the change consistent with
the requirements of paragraphs (b) and { - (c) - } { +
(d) + } of this subsection.
(B) An order approving a change under paragraph { - (c) - }
{ + (d) + } of this subsection shall include written findings
on the extent of the injury to the in-stream water right, the
effect on the resource and the net benefit that will occur as a
result of the change. The order shall include any conditions
necessary to ensure that the change will be consistent with the
findings and ensure that the change will result in a continued
net benefit to the resource consistent with the purposes of the
in-stream water right.
(C) In determining whether a net benefit will result from the
change, the order of the department must include an analysis of
the cumulative impact of any previous changes approved under
paragraphs (b) and { - (c) - } { + (d) + } of this subsection
that allow injury to the affected in-stream water right.
{ - (f) - } { + (g) + } The time allowed by the commission
for completion of an authorized change under { - paragraphs (a)
to (e) of - } this subsection may not be used when computing a
five-year period of nonuse under the provisions of ORS 540.610
(1).
(2)(a) If a certificate covering the water right has been
previously issued, the commission shall cancel the previous
certificate or, if for an irrigation district, the commission may
modify the previous certificate and, when proper proof of
completion of the authorized changes has been filed with the
commission, issue a new certificate or, if for an irrigation
district, modify the previous certificate, preserving the
previously established priority of rights and covering the
authorized changes. If only a portion of the water right covered
by the previous certificate is affected by the changes, a
separate new certificate may be issued to cover the unaffected
portion of the water right.
(b) If { - the - } { + a + } change authorized under
subsection (1) of this section is necessary to allow a change in
a water right pursuant to ORS 537.348, is necessary to complete a
project funded under ORS 541.932, or is approved by the State
Department of Fish and Wildlife as a change that will result in a
net benefit to fish and wildlife habitat, the Water Resources
Department, at the discretion of the Water Resources Director,
may waive or assist the applicant in satisfying any of the proof
of completion requirements of paragraph (a) of this subsection.
The assistance provided by the department may include, but need
not be limited to, development of a final proof survey map and
claim of beneficial use.
(3) Upon receiving notification of the merger or consolidation
of municipal water supply entities, or the formation of a water
authority under ORS chapter 450, the commission shall cancel the
previous certificates of the entities replaced by the merger,
consolidation or formation and issue a new certificate to the
newly formed municipality or water authority. The new certificate
shall preserve the previously established priority of rights of
the replaced entities and shall allow beneficial use of the water
on any lands acquired in the merger, consolidation or formation.
SECTION 8. ORS 540.531 is amended to read:
540.531. (1) Notwithstanding ORS 537.515 and 537.535, an owner
of a surface water use subject to transfer may apply for a
transfer of the point of diversion to allow the appropriation of
ground water if the proposed transfer complies with the
requirements of subsection (2) or (3) of this section and with
the requirements for a transfer in point of diversion specified
in ORS 540.520 and 540.530.
(2) The Water Resources Department may allow a transfer of the
point of diversion under subsection (1) of this section if:
(a)(A) The new point of diversion appropriates ground water
from an aquifer that is hydraulically connected to the authorized
surface water source;
(B) The proposed change in point of diversion will not result
in enlargement of the original water right or in injury to other
water right holders;
{ + (C) The proposed change in point of diversion will not
result in a loss of in-stream habitat for native fish or native
wildlife in a stream reach that is not protected by an existing
in-stream water right; + }
{ - (C) - } { + (D) + } The use of the new point of
diversion will affect the surface water source similarly to the
authorized point of diversion specified in the water use subject
to transfer; and
{ - (D) - } { + (E) + } The withdrawal of ground water at
the new point of diversion is located within 500 feet of the
surface water source and, when the surface water source is a
stream, is also located within 1,000 feet upstream or downstream
of the original point of diversion as specified in the water use
subject to transfer; or
(b) The new point of diversion is not located within the
distance requirements set forth in paragraph { - (a)(D) - }
{ + (a)(E) + } of this subsection, the holder of the water use
subject to transfer submits to the department evidence prepared
by a licensed geologist that demonstrates that the use of the
ground water at the new point of diversion will meet the criteria
set forth in paragraph (a)(A) to { - (C) - } { + (D) + } of
this subsection.
(3) Notwithstanding subsection (2) of this section, the
department shall allow a transfer of the point of diversion under
subsection (1) of this section in the Deschutes Basin ground
water study area if:
(a) The new point of diversion appropriates ground water from
an aquifer that is hydraulically connected to the authorized
surface water source;
(b) The proposed change in the point of diversion will not
result in enlargement of the original water right or in injury to
other water right holders; { - and - }
{ + (c) The proposed change in the point of diversion will
not result in a loss of in-stream habitat for native fish or
native wildlife in a stream reach that is not protected by an
existing in-stream water right; and + }
{ - (c) - } { + (d) + } The use of the new point of
diversion will affect the surface water source hydraulically
connected to the authorized point of diversion specified in the
water use subject to transfer. The department may not require
that the use of the new point of diversion affect the surface
water source similarly to the authorized point of diversion
specified in the water use subject to transfer under this
subsection.
(4) All applicable restrictions that existed at the original
point of diversion shall apply at the new point of diversion
allowed under this section.
(5) The new point of diversion shall retain the original date
of priority. However, if within five years after approving the
transfer, the department finds that the transfer results in
substantial interference with existing ground water rights that
would not have occurred in the absence of the transfer, the new
point of diversion shall be subordinate to any existing right
injured by the transferred water right or permit.
(6)(a) The department shall approve an application to return to
the last authorized surface water point of diversion if a holder
of a water use subject to transfer submits an application to the
department within five years after the department approves a
transfer under this section.
(b) The department shall approve an application to return to
the last authorized surface water point of diversion after five
years of the date the department allows a transfer under
subsection (3) of this section if a holder of a water use subject
to transfer submits an application to the department, and the
return will not result in injury to an existing water right
{ + or result in a loss of in-stream habitat for native fish or
native wildlife in a stream reach that is not protected by an
existing in-stream water right + }.
(7) For transfers allowed under this section, the department
shall require mitigation measures to prevent depletion from any
surface water source not specified in the permit or certificated
or decreed water right, except that the department may not
require mitigation measures if the transfer complies with
subsection (3) of this section.
(8) The Water Resources Commission shall adopt rules that
prescribe:
(a) The process for reviewing applications submitted under this
section;
(b) The persons to whom the department shall provide notice of
the receipt of an application submitted under this section; and
(c) The persons who may participate in the process of reviewing
applications submitted under this section.
(9) As used in this section:
(a) 'Deschutes Basin ground water study area' means the part of
the Deschutes River Basin that is designated by the Water
Resources Commission by rule.
(b) 'Similarly' means that the use of ground water at the new
point of diversion affects the surface water source specified in
the permit or certificated or decreed water right and would
result in stream depletion of at least 50 percent of the rate of
appropriation within 10 days of continuous pumping.
SECTION 9. ORS 540.570 is amended to read:
540.570. (1) { - Provided that - } { + If + } the proposed
transfer complies with all of the provisions of this
subsection { + , + } and will not result in injury to any
existing water right { + or result in a loss of in-stream
habitat for native fish or native wildlife in any stream reach
that is not protected by an existing in-stream water right + }, a
district with a manager may, for one irrigation season,
temporarily transfer the place of use of water appurtenant to any
land within the legal boundaries of the district to an equal
acreage elsewhere within the legal boundaries of that district or
temporarily transfer the type of use identified in a right to
store water. A temporary transfer of the place of use may occur
if:
(a) The rate and duty, and the total number of acres to which
water will be applied under the transfer, do not exceed existing
limits on the water use subject to transfer;
(b) The type of use authorized under the water use subject to
transfer remains the same; and
(c) The land from which the water use is being transferred does
not receive any water under the right being transferred during
the irrigation season in which the change is made.
(2) { - Provided that - } { + If + } the proposed transfer
complies with all the provisions of this subsection and will not
result in injury to or enlargement of an existing water
right { + or result in a loss of in-stream habitat for native
fish or native wildlife in a stream reach that is not protected
by an existing in-stream water right + }, a district with a
manager may, for one irrigation season, temporarily change the
point of diversion or appropriation combined with a change in
place of use, change the point of diversion { - in the event
that - } { + if + } an emergency prevents the district from
diverting water from its authorized point of diversion, change
the point of diversion to allow for the appropriation of ground
water or change a primary right to a supplemental right if:
(a) The land on which the water is to be used is within the
district's legal boundaries established pursuant to ORS chapter
545, 547, 552, 553 or 554;
(b) The other terms of the permit or certificate remain the
same, including the beneficial use for which the water is used
and the number of acres to which water is applied;
(c) The diversion is provided with a proper fish screen, if
required by the Water Resources Department; and
(d) For a proposal to transfer the point of diversion to allow
for the appropriation of ground water, the proposed change meets
the standards set forth in ORS 540.531 (2).
(3) When a district or an owner or an owner's agent within a
district who is subject to the charges or assessments of the
district wishes to use water on alternate acreage within the
district, if the district has approved the owner's request, the
district shall submit to the department a petition seeking a
temporary transfer under this section. The district shall submit
the petition prior to making the proposed change. The petition
may contain changes to one or more tax lots within the district
and shall:
(a) Include the information required under ORS 540.574 (3);
(b) Be accompanied by a map in a form satisfactory to the
department and certified by the district. 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;
(c) Include a statement that a written authorization for the
transfer from each landowner affected by the particular temporary
transfer is on file with the district;
(d) Include any other information required by rules of the
Water Resources Commission; and
(e) Include a fee in the amount required under ORS 536.050
(1)(i).
(4) The district shall notify each affected landowner that the
department may reject the transfer or may require mitigation to
avoid injury to other water rights. Upon receipt of a completed
petition under subsection (3) of this section, the department
shall place a summary of the petition in the weekly notice
published by the department. The department shall accept written
public comments on the petition for 30 days following publication
of the weekly notice. { + In determining whether to condition,
reject or revoke a temporary transfer, + } the department shall
consider comments that pertain to the potential for { + :
(a) + } Injury to an existing water right { - or to - }
{ + ;
(b) + } The enlargement of the water use subject to transfer
{ - in determining whether to condition, reject or revoke a
temporary transfer. - } { + ; or
(c) A loss of in-stream habitat for native fish or native
wildlife in a stream reach that is not protected by an existing
in-stream water right. + }
(5) Use of water on lands from which the right is transferred
and in the new temporary location during the same irrigation
season or calendar year is prohibited and may subject the
district and the landowner to civil penalties.
(6) The department may condition, reject or revoke a temporary
transfer at any time to the extent necessary to avoid injury if
the department finds the transfer is causing injury to an
existing water right { + or resulting in a loss of in-stream
habitat for native fish or native wildlife in a stream reach that
is not protected by an existing in-stream water right + }.
(7) Upon expiration of the temporary transfer period, all uses
of water for which a temporary transfer is allowed under this
section shall revert automatically to the terms and conditions of
the original water right permit, certificate or adjudication
under ORS chapter 539 as evidenced by a court decree.
(8) The time during which water is used under an approved
temporary transfer order does not apply toward a finding of
forfeiture under ORS 540.610.
SECTION 10. ORS 540.585 is amended to read:
540.585. (1) In accordance with the provisions of this section,
a person may request that the Water Resources Department approve
the temporary transfer of the place of use and type of use and
temporarily change the point of diversion if necessary to convey
water to the new temporary place of use, of all or a portion of a
water right, for a period not to exceed 25 years if:
(a) The person holds a water use subject to transfer;
(b) The type of use specified in the original water use subject
to transfer is irrigation;
(c) The person to whom the right is transferred is:
(A) Located within the Deschutes River Basin; and
(B) A city, a quasi-municipal corporation, 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;
(d) The proposed use is municipal use; and
(e) The proposed temporary transfer will not result in injury
to any existing water right { + or result in a loss of in-stream
habitat for native fish or native wildlife in any stream reach
that is not protected by an existing in-stream water right + }.
(2) An application for a temporary transfer under this section
shall:
(a) Be submitted in writing to the Water Resources Department;
(b) Be accompanied by the appropriate fee for a change in the
place of use and type of use as set forth in ORS 536.050;
(c) Include the information required under ORS 540.520 (2); and
(d) Include any other information the Water Resources
Commission by rule may require.
(3)(a) Any portion of the use of a water right that is not
temporarily transferred under this section may be used on the
designated part of the lands described in the original water
right permit, certificate or adjudication under ORS chapter 539
as evidenced by a court decree, if the use does not encompass
more than the remaining portion of the lands, enlarge the water
right or increase the rate, duty, total acreage benefited or
season of use.
(b) The Water Resources Department shall designate the lands on
which water may be applied under this subsection and shall
prescribe mapping, measurement and recording requirements under
this subsection.
(4) Upon expiration of a temporary transfer period, all uses of
water for which a temporary transfer is allowed under this
section shall revert automatically to the terms and conditions of
the original water right permit, certificate or adjudication
under ORS chapter 539 as evidenced by a court decree.
(5) The time during which water is used under an approved
temporary transfer order does not apply toward a finding of
forfeiture under ORS 540.610.
(6) The department may revoke a prior approval of a temporary
transfer at any time if:
(a) The department finds that the transfer is causing injury to
any existing water right; { - or - }
{ + (b) The department finds that the transfer is causing a
loss of in-stream habitat for native fish or native wildlife in
any stream reach that is not protected by an existing in-stream
water right; or + }
{ - (b) - } { + (c) + } The person fails to comply with the
requirements prescribed by the department pursuant to subsection
(3) of this section.
(7) The department shall provide notice, in the manner provided
in ORS 540.520 (5), that the department received an application
for a temporary transfer under this section.
(8) The department may:
(a) Prescribe the duration of the temporary transfer period
allowed under this section, up to 25 years;
(b) Impose conditions in the terms of the temporary transfer,
including revocation of the transfer for noncompliance with
applicable state, local or federal laws; and
(c) Determine the parties that may participate in the review of
applications submitted under this section.
SECTION 11. ORS 537.132 is amended to read:
537.132. (1) The provisions of ORS 537.130 requiring
application for a permit to appropriate water shall not apply to
the use of reclaimed water, if:
(a) The use of reclaimed water is authorized by the national
pollutant discharge elimination system or water pollution control
facilities permit issued pursuant to ORS 468B.050 or 468B.053;
(b) The Department of Environmental Quality, in reviewing an
application for a permit pursuant to ORS 468B.050 or 468B.053,
has consulted with the State Department of Fish and Wildlife on
the impact to fish and wildlife to determine that the application
of reclaimed water under ORS 537.130, 537.131, 537.132, 540.510
and 540.610 shall not have a significant negative impact on fish
and wildlife; and
(c) The Department of Environmental Quality has determined the
use of reclaimed water is intended to improve the water quality
of the receiving stream.
(2) Any person using or intending to use reclaimed water shall
file with the Water Resources Department a reclaimed water
registration form setting forth the following:
(a) Name and mailing address of the registrant;
(b) The date the use of reclaimed water is initiated;
(c) Source of reclaimed water supply, including a description
of the location of the reclaimed water treatment facility and the
name and mailing address of the owner and operator of the
facility;
(d) Nature of the use of the reclaimed water;
(e) Amount of reclaimed water used or proposed to be used;
(f) Location and description of the ditch, canal, pipeline or
any other conduction facility used or to be used to transport the
reclaimed water from the treatment facility to the place of use;
(g) A statement declaring the existence of a written contract
or agreement to provide reclaimed water including the name and
address of the reclaimed water provider and the date and terms of
such contract or agreement;
(h) A description of the season of use and the place of use of
the reclaimed water, and any restrictions applicable to the use
of the reclaimed water; and
(i) If the reclaimed water is used in lieu of using water under
an existing water right, the application, permit and certificate
number of such right, or if the right is granted pursuant to a
decree of circuit court, the volume and page number setting forth
the right.
(3) If a municipality has discharged waste water into a natural
watercourse for five or more years, and the discharge represents
more than 50 percent of the total average flow of the natural
watercourse and if such discharge would cease as a result of the
use of reclaimed water in accordance with the provisions of
{ - ORS 540.510 (3) and this section, the director of the
department - } { + this section and ORS 540.510 (4), the Water
Resources Director + } shall notify any persons who, according to
the { + Water Resources + } Department records, have a water
right that may be affected by the cessation of the discharge by
the municipality.
(4) If a person holding an affected water right demonstrates to
the department that the cessation of discharge by the
municipality substantially impairs the ability to satisfy a water
right, the person shall be entitled to a preference to the use of
the reclaimed water. However, the delivery of the reclaimed water
to the person claiming such preference shall be accomplished
through a conveyance facility or channel other than a natural
watercourse.
(5) If a municipality has a less expensive alternative for the
disposal and distribution of the reclaimed water, the
municipality shall not be obligated to incur expenses or cost
beyond the expenses or costs of such alternative.
(6) The Water Resources Commission shall adopt rules to
implement the notice and preference provisions and impairment
evaluation standards of this section.
SECTION 12. { + The amendments to ORS 537.132, 537.211,
537.803, 540.510, 540.520, 540.523, 540.524, 540.530, 540.531,
540.570 and 540.585 by sections 1 to 11 of this 2013 Act apply to
applications filed on or after the effective date of this 2013
Act. + }
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