2013 Oregon Revised Statutes
Volume : 13 - Water Resources, Agriculture and Food
Chapter 541 - Water Distributors; Water Releases; Conservation and Storage; Water Development Projects; Watershed Management and Enhancement
Section 541.689 - Projects requiring determination of seasonally varying flows; methodology.

(1) The Water Resources Department shall make a determination as provided under subsection (2) of this section if an application for a loan or grant from the Water Supply Development Account is for a project that requires a new water storage or aquifer recharge permit or limited license for the storage of water outside of the official irrigation season and:

(a) Impounds surface water on a perennial stream;

(b) Diverts water from a stream that supports state or federally listed sensitive, threatened or endangered fish species; or

(c) Diverts more than 500 acre-feet of surface water annually.

(2) The department shall review a completed application for a project described in subsection (1) of this section to determine whether the applicable seasonally varying flows have been established under this section for the stream of interest. If the department determines that the applicable seasonally varying flows have not been established, the department shall establish the seasonally varying flows before issuing a loan or grant from the account. The department may use account moneys to pay the cost of establishing a seasonally varying flow and to pay other costs directly related to project development.

(3) The department shall establish any seasonally varying flows under subsection (2) of this section in consultation with the State Department of Fish and Wildlife and any affected Indian tribes. The department may rely upon existing scientific data and analysis or may fund new data and analysis. The department shall establish seasonally varying flows using a methodology established by Water Resources Commission rules. If seasonally varying flows are established for a stream, a subsequent water storage or aquifer recharge permit or limited license for the storage of water must be conditioned in accordance with the applicable seasonally varying flows if the license or permit:

(a) Is for a project receiving a loan or grant from the account;

(b) Is for the storage of water outside of the official irrigation season; and

(c) Has a diversion point that is subject to seasonally varying flows.

(4) The applicant for a permit or license described in subsection (3) of this section may request that seasonally varying flows be altered based upon new information. There is, however, a rebuttable presumption that existing applicable seasonally varying flows protect and maintain the biological, ecological and physical functions of the stream to the extent required by commission rules.

(5) The department shall condition the new water storage permit and resulting certificate, new aquifer recharge permit and resulting certificate or new limited license associated with a project that receives a grant or loan from the account to protect the seasonally varying flow in effect at the time the loan or grant is issued for the project.

(6) For purposes of any project that receives a loan or grant from the account and has the characteristics described in subsection (1) of this section, or any project described in subsection (3) of this section, the department shall use a seasonally varying flow methodology provided by commission rules in lieu of any other methodologies for determining seasonally varying flows or any methodologies for determining peak and ecological flows outside of the official irrigation season.

(7) Subsections (1) to (6) of this section do not eliminate or alter any applicable standard for department review of an application to determine whether water is available for purposes of reviewing an application for a new water storage or aquifer recharge permit or a limited license for the storage of water. [2013 c.784 §13]

Note: 541.689 becomes operative January 1, 2015. See section 21, chapter 784, Oregon Laws 2013.

Note: See note under 541.651.

Note: Sections 19, 20 and 23, chapter 784, Oregon Laws 2013, provide:

Sec. 19. (1) As used in this section:

(a) "Consensus" means that no more than one member of a subgroup or task force objects to the product of the subgroup or task force.

(b) "Seasonally varying flows" has the meaning given that term in section 1 of this 2013 Act [541.651].

(2) The Governor shall appoint a task force consisting, subject to subsection (3) of this section, of such members as the Governor deems to be appropriate and sufficient to act as an advisory body on the functional needs of watersheds for seasonally varying flows and the financial feasibility of new water storage projects. The Governor shall consult with the President of the Senate, the Speaker of the House of Representatives, the Minority Leader of the Senate, the Minority Leader of the House of Representatives and the Water Resources Commission prior to making appointments to the task force under this section.

(3) The task force membership shall include, but need not be limited to, a subgroup for addressing the functional needs of watersheds for seasonally varying flows and a subgroup to address the financial feasibility of new water storage projects. Each subgroup must have at least three members. Subgroup members must be persons with expertise in subjects relevant to the work of the subgroup. Task force members who are not subgroup members must be persons representing the interests of irrigated agriculture, municipal water suppliers, counties, the conservation community, Indian tribes, irrigation districts and industrial water users.

(4) When carrying out its functions, the subgroup on functional needs for seasonally varying flows shall consider the biological, ecological and physical functions in watersheds during periods that are outside of the official irrigation season, including but not limited to:

(a) Stream channel development and maintenance;

(b) Connectivity to floodplains;

(c) Sediment transport and deposition;

(d) Migration triggers for upstream movement of adult fish and downstream movement of fry and juvenile fish;

(e) Fish spawning and incubation;

(f) Juvenile fish rearing; and

(g) Adult fish passage.

(5) When carrying out its functions, the subgroup on the financial feasibility of new water storage projects shall consider the practical aspects of developing and operating new water development projects, including but not limited to:

(a) Practical engineering methods and applications;

(b) The costs and benefits of the methodology and alternatives;

(c) The economic feasibility of water storage development; and

(d) The cost of complying with environmental benefit standards.

(6)(a) The subgroups shall report their findings and recommendations to the full task force no later than February 1, 2014. The findings and recommendations of a subgroup must have a consensus of the subgroup. Any member of a subgroup who objects to the findings and recommendations of the subgroup may provide separate findings and recommendations to the task force.

(b) The task force shall meet at times and places specified by the Governor or a designee of the Governor. The task force shall consider the subgroup reports and by consensus develop a recommended methodology for determining seasonally varying flows that optimizes the functional benefits to watersheds while also recognizing that:

(A) Many of the functional benefits will not occur unless a new water storage project is financially feasible; and

(B) New water storage will not be appropriate or feasible in many locations.

(c) The recommended methodology developed by the task force must utilize the best available scientific knowledge. Any member of the task force who objects to the recommended methodology developed by the task force may provide a separate recommendation for a methodology to the parties receiving the report under subsection (7) of this section.

(7) The task force shall submit a report in the manner provided in ORS 192.245, including any recommendations for legislation, to the Governor, to an interim committee of the Legislative Assembly related to natural resources and to the Water Resources Commission no later than July 1, 2014.

(8) The Water Resources Department shall provide staff support to the task force.

(9) Members of the task force are not entitled to compensation, but may be reimbursed for actual and necessary travel and other expenses incurred by them in the performance of their official duties in the manner and amounts provided for in ORS 292.495. Claims for expenses shall be paid out of funds appropriated to the department for purposes of the task force. [2013 c.784 §19]

Sec. 20. (1) On or after the date that the Water Resources Commission receives a copy of the task force report required under section 19 of this 2013 Act, the commission shall adopt rules to establish a methodology for use in determining the seasonally varying flows for a stream of interest. In adopting the rules, the commission shall give consideration to adoption of the methodology described in the task force report. The commission shall complete adoption of the rule in time for the rule to take effect on January 1, 2015. As used in this subsection, "seasonally varying flow" has the meaning given that term in section 1 of this 2013 Act [541.651].

(2) The commission shall appoint the task force established in section 19 of this 2013 Act as provided in ORS 183.333 to act as an advisory committee to the commission for the consideration of rule adoption under this section. [2013 c.784 §20]

Sec. 23. Section 19 of this 2013 Act is repealed on the date of the convening of the 2016 regular session of the Legislative Assembly as specified in ORS 171.010 [February 1, 2016]. [2013 c.784 §23]