Bill Text: OR HB3165 | 2011 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to water right transfers for water stored in Willamette Basin federal storage projects; declaring an emergency.

Spectrum: Bipartisan Bill

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3165 Detail]

Download: Oregon-2011-HB3165-Introduced.html

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     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 1965

                         House Bill 3165

Sponsored by Representative GILLIAM; Representative CLEM (at the
  request of Oregon Water Utility Council)

                             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.

  Imposes conditions on change of use for water in excess of
specified amount if water right authorizes storage of water in
federal storage project located in Willamette Basin.

                        A BILL FOR AN ACT
Relating to water right transfers for water stored in Willamette
  Basin federal storage projects; creating new provisions; and
  amending ORS 537.211, 537.470, 540.520, 540.524 and 540.585.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 540.520 is amended to read:
  540.520. (1) Except when the application is made under ORS
541.327 or when an application for a temporary transfer is made
under ORS 540.523, whenever the holder of a water use subject to
transfer for irrigation, domestic use, manufacturing purposes, or
other use, for any reason desires to change the place of use, the
point of diversion, or the use made of the water, an application
to make such change, as the case may be, shall be filed with the
Water Resources Department.
  (2) The application required under subsection (1) of this
section shall include:
  (a) The name of the owner;
  (b) The previous use of the water;
  (c) A description of the premises upon which the water is used;
  (d) A description of the premises upon which it is proposed to
use the water;
  (e) The use which 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 541.375, or is approved by the State Department of Fish and
Wildlife as a change that will result in a net benefit to fish
and wildlife habitat, the department, at the discretion of the
Water Resources Director, may waive or assist the applicant in
satisfying the requirements of subsection (2)(c) and (d) of this

section. The assistance provided by the department may include,
but need not be limited to, development of an application map.
  (4) If the application is to change the point of diversion, the
transfer shall include a condition that the holder of the water
right provide a proper fish screen at the new point of diversion,
if requested by the State Department of Fish and Wildlife.
   { +  (5) If the application is to change the use made of water
having a cumulative total of at least 500 acre-feet under one or
more water rights that authorize the storage of water in federal
storage projects located in the Willamette Basin, the director
may not approve the application unless:
  (a) The applicant demonstrates that the requested change will
not reduce the amount of water to which holders of existing
surface water rights have been historically entitled; and
  (b) The Water Resources Department convenes a work group of
affected stakeholders and the director determines after
consultation with the work group that the transfer will provide
an equitable allocation of the stored water to authorized
uses. + }
    { - (5) - }  { +  (6) + } Upon the filing of the application
the department shall give notice by publication in a newspaper
having general circulation in the area in which the water rights
are located, for a period of at least three 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) - }  { +  (7) + } 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) - }  { +  (8) + } Whenever a timely protest is filed,
or in the opinion of the   { - Water Resources - }  director a
hearing is necessary to determine whether the proposed changes as
described by the application would result in injury to existing
water rights, the department shall hold a hearing on the matter.
Notice and conduct of the hearing shall be under the provisions
of ORS chapter 183, pertaining to contested cases, and shall be
held in the area where the rights are located unless all parties
and persons who filed a protest under this subsection stipulate
otherwise.
    { - (8) - }  { +  (9) + } An application for a change of use
under this section is not required if the beneficial use
authorized by the water use subject to transfer is irrigation and
the owner of the water right uses the water for incidental
agricultural, stock watering and other uses related to irrigation
use, so long as there is no increase in the rate, duty, total
acreage benefited or season of use.
    { - (9) - }  { +  (10) + } 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 2. 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 towards 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 does not result in injury to an existing
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) - }   { + (6) + }, 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 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 3. ORS 537.470 is amended to read:
  537.470. (1) Upon receipt of an application for allocation of
conserved water under ORS 537.465, the Water Resources Commission
shall give notice of receipt of the application in accordance
with ORS 540.520   { - (5) - }  { +  (6) + }.
  (2) The commission shall allocate conserved water as provided
in subsection (3) of this section and approve modifications of
water rights as provided in subsection (6) of this section. The
commission may not allocate conserved water pursuant to an
application under ORS 537.465 if the application is filed more
than five years after the conservation measure was implemented.
  (3) After determining the quantity of conserved water, if any,
required to mitigate the effects on other water rights, the
commission shall allocate 25 percent of the remaining conserved
water to the state and 75 percent to the applicant, unless the
applicant proposes a higher allocation to the state or more than
25 percent of the funds used to finance the conservation measures
comes from federal or state public sources. If more than 25
percent of the funds used to finance the conservation measures
comes from federal or state public sources and is not subject to
repayment, the commission shall allocate to the state a
percentage equal to the percentage of public funds used to
finance the conservation measures and allocate to the applicant a
percentage equal to the percentage of other funds used to finance
the conservation measures. If the commission determines that the
water allocated to the state is necessary to support in-stream
flow purposes in accordance with ORS 537.332 to 537.360, the
water shall be converted to an in-stream water right. If the
water allocated to the state is not necessary to support
in-stream flow purposes, it shall revert to the public for
appropriation by the next user in priority. In no event, however,
shall the applicant receive less than 25 percent of the remaining
conserved water unless the applicant proposes a higher allocation
to the state.
  (4) The commission shall notify the applicant and any other
person requesting notice, of the action the commission intends to
take under subsection (3) of this section. Any person objecting
to the proposed allocation may file a protest requesting a
contested case hearing before the commission.
  (5) The modification of water rights under an allocation of
conserved water may not require a separate request for transfer
under ORS 540.520.
  (6) After the commission completes the allocation of conserved
water under subsection (3) of this section, the commission shall
issue orders for proposed new certificates covering the changes
in the original water rights. Once the conservation project is
completed, separate new certificates preserving the previously
established priority of rights shall be issued to cover the
unaffected portion of the water rights and separate new
certificates indicating the priority of rights as set forth in
ORS 537.485 shall be issued to cover the right to the use of the
allocated water.
  SECTION 4. 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) - }  { +  (6), (7) and (8) + }.
  (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, 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. Upon termination, the
substituted primary and supplemental water rights shall revert
back to their original status.
  SECTION 5. 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.
  (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 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) - }  { +  (6) + }, 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 6.  { + The amendments to ORS 540.520 by section 1 of
this 2011 Act apply to change of use applications that are
approved or denied by the Water Resources Director on or after
the effective date of this 2011 Act. + }
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