Bill Text: OR SB847 | 2011 | Regular Session | Introduced
Bill Title: Relating to water district transfers.
Spectrum: Partisan Bill (Republican 7-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB847 Detail]
Download: Oregon-2011-SB847-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 2604
Senate Bill 847
Sponsored by Senators NELSON, TELFER, Representative G SMITH;
Representatives CONGER, JENSON, MCLANE, WHISNANT
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.
Establishes conditions under which supplemental water right or
permit omitted from district petition to transfer primary water
right from same land is not subject to transfer, diminishment or
cancellation.
A BILL FOR AN ACT
Relating to water district transfers; creating new provisions;
and amending ORS 537.132 and 540.510.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 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. { + Except as provided in
subsections (2) and (3) of this section, + } 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 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. { + Except as provided in subsections (2)
and (3) of this section, + } 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)(a) A supplemental water right or permit that is
omitted from a transfer application filed by a district is not
subject to transfer, diminishment or cancellation if:
(A) The petition by the district is to transfer a primary water
right held by the district;
(B) The supplemental water right or permit is not held by the
district;
(C) The land to which the rights are appurtenant is within the
boundaries of the district;
(D) The supplemental water right or permit was appurtenant to
the land prior to the primary right becoming appurtenant to the
land; and
(E) The department did not provide the district with reasonable
opportunity to avoid making the primary right appurtenant to land
having a supplemental water right or permit.
(b) For purposes of this subsection, 'did not provide the
district with reasonable opportunity to avoid' means the
department did not provide the district with written notice of
the supplemental water right or permit before the primary right
became appurtenant to the land and did not allow the district
adequate time to withdraw or revise the application for making
the primary right appurtenant to the land.
(3) A supplemental water right or permit that is omitted from a
transfer application filed by a district is not subject to
transfer, diminishment or cancellation if:
(a) The petition by the district is to transfer a primary water
right held by the district;
(b) The supplemental water right or permit is not held by the
district;
(c) The land to which the rights are appurtenant is within the
boundaries of the district;
(d) The primary water right or permit was appurtenant to the
land prior to the supplemental water right or permit becoming
appurtenant to the land; and
(e) The district did not give written consent for the
supplemental water right or permit to become appurtenant to the
land. + }
{ - (2) - } { + (4) + } 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) - } { + (5)(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 long
as - } { + provided that + } 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) - } { + (6) + } 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) - } { + (7) + } 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) - } { + (8) + } { - 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) - } { + (9) + } 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) - } { + (10) + } 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 2. 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) - } { + (5) + } and this section, the
{ + Water Resources + } Director { - of the department - }
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 3. { + The amendments to ORS 540.510 by section 1 of
this 2011 Act apply to district water right transfer petitions
that are approved by the Water Resources Department on or after
the effective date of this 2011 Act. + }
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