2007 Oregon Code - Chapter 537 :: Chapter 537 - Appropriation of Water Generally
Chapter 537 —
Appropriation of Water Generally
2007 EDITION
APPROPRIATION OF WATER GENERALLY
WATER LAWS
GENERAL PROVISIONS
537.010Â Â Â Â Definition
of “Water Rights Act”
PUBLIC AGENCY WATER USE REGISTRATION
537.040Â Â Â Â Registration
of water for road construction, maintenance or reconstruction; fee; annual
renewal statement; limitations; rules
GEOTHERMAL WELLS
537.090Â Â Â Â Laws
applicable to geothermal wells
537.095Â Â Â Â Interference
between geothermal well and other water appropriation
WATER USE REPORTING
537.097Â Â Â Â Verification
of land ownership; time limits; exception
537.099Â Â Â Â Water
use report from governmental entity
APPROPRIATION UNDER 1909 ACT; LIMITED
LICENSES
537.110Â Â Â Â Public
ownership of waters
537.120Â Â Â Â Right
of appropriation; vested rights protected
537.130Â Â Â Â Permit
to appropriate water required; notification to owner of certain land
537.131Â Â Â Â Reclaimed
water
537.132Â Â Â Â Exemption
from permit requirement for use of reclaimed water; rules
537.133Â Â Â Â PermitteeÂ’s
right to enter on forestland; notice
537.135Â Â Â Â Permit
required to appropriate water for recharging ground water sources; minimum
perennial streamflow required for permit; exception
537.139Â Â Â Â Failure
to obtain authorization for access to certain land
537.140Â Â Â Â Application
for permit; contents; maps and drawings
537.141Â Â Â Â Uses
of water not requiring water right application, permit or certificate; rules
537.142Â Â Â Â Water
right permit or certificate not required for egg incubation project under
salmon and trout enhancement program
537.143Â Â Â Â Limited
license to use or store surface or ground water or to use stored water; rules
537.144Â Â Â Â Request
for right to use water under limited license; fee
537.145Â Â Â Â Notice
of filing of application to appropriate water for hydroelectric purposes
537.147Â Â Â Â Permit
to use stored water; fee
537.150Â Â Â Â Filing
of application; determination of completeness; initial review; preliminary
determination; notice; public comments; fees
537.153Â Â Â Â Review
of application; proposed final order; presumption that use will not impair or
be detrimental to public interest; standing; protest; final order; contested
case hearing
537.160Â Â Â Â Approval
for beneficial use; agreement authorizing use of ditch for waste or seepage
water
537.170Â Â Â Â Contested
case hearing on application; final order; appeal
537.173Â Â Â Â Exceptions
to final order; modified order
537.175Â Â Â Â Time
limit for issuing final order or scheduling contested case hearing; applicant
request for extension
537.190Â Â Â Â Terms
and conditions of approval; municipal water supplies; release of stored water
537.211Â Â Â Â Issuance
of permit if application approved; contents of permit; effect; rejection of
application; change in use allowed under permit
537.220Â Â Â Â Assignment
of application, permit or license
537.230Â Â Â Â Time
allowed for construction of irrigation or other work; extension; survey; map;
requirements for supplemental water right
537.240Â Â Â Â Federal
permit; time for obtaining; cancellation; time for beginning and completing
work
537.248Â Â Â Â Requirement
to include in reservoir permit date for beginning and completing construction
and for perfecting water right; extension
537.249Â Â Â Â Election
to have proposed reservation considered as application for permit or rulemaking
proceeding
537.250Â Â Â Â Water
right certificate; issuance; inclusion of land not described in permit;
recordation; duration of rights
537.252Â Â Â Â Certificate
issued for land not described in permit; notice
537.260Â Â Â Â Cancellation
of permit for failure of proof of completion of appropriation; issuance of
limited certificate; contest of issuance of certificate; exception for
municipalities
537.270Â Â Â Â Conclusiveness
of certificate
537.282Â Â Â Â Definition
of “municipal applicant”
537.283Â Â Â Â Procedure
for applications to appropriate water for hydroelectric power; rules
537.285Â Â Â Â Municipal
applicant may develop hydroelectric project jointly with private person;
restrictions
537.287Â Â Â Â Rules
for joint project of municipal applicant and private person
537.289Â Â Â Â Conditions
to be imposed on permit of municipal corporation or district
537.292Â Â Â Â Conditions
to be imposed on certificate of municipal corporation or district
537.295Â Â Â Â Cancellation
of permit when holder fails to continue to qualify as municipal applicant
537.297Â Â Â Â Cancellation
of water right certificate when holder fails to continue to qualify as
municipal applicant
537.299Â Â Â Â Consequences
of cancellation of permit or certificate if holder no longer municipal
applicant; conditions to protect public health and welfare
537.310Â Â Â Â Acquisition
of water rights for railway purposes; certificates
537.320Â Â Â Â Entry
on land for survey purposes, preliminary to appropriation and diversion of
waters
537.330Â Â Â Â Disclosure
required in real estate transaction involving water right; exception; delivery
of available permit, order or certificate; effect of failure to comply
IN-STREAM WATER RIGHTS
537.332Â Â Â Â Definitions
for ORS 537.332 to 537.360
537.334Â Â Â Â Findings
537.336Â Â Â Â State
agencies authorized to request in-stream water rights; agreement required when
supply is stored water
537.338Â Â Â Â Rules
for state agency request for in-stream water right
537.341Â Â Â Â Certificate
for in-stream water right
537.343Â Â Â Â Proposed
final order; conditions
537.346Â Â Â Â Conversion
of minimum perennial streamflows to in-stream water rights; special provisions
for
537.348Â Â Â Â Purchase,
lease or gift of water right for conversion to in-stream water right; priority
dates
537.349Â Â Â Â Processing
request for in-stream water right
537.350Â Â Â Â Legal
status of in-stream water right
537.352Â Â Â Â Precedence
of uses
537.354Â Â Â Â In-stream
water right subject to emergency water shortage provisions
537.356Â Â Â Â Request
for reservation of unappropriated water for future economic development;
priority date of reservation
537.358Â Â Â Â Rules
for reservation for future economic development; application for use of
reserved water
537.360Â Â Â Â Relationship
between application for in-stream water right and application for certain
hydroelectric permits
MISCELLANEOUS
537.385Â Â Â Â Extension
of irrigation season; rules; limitations
537.390Â Â Â Â Valuation
of water rights
537.395Â Â Â Â Public
recapture of water power rights and properties; no recapture of other rights
PONDS AND RESERVOIRS
537.400Â Â Â Â Reservoir
permits
537.405Â Â Â Â Exempt
reservoirs; written notification to department; injury to other users
537.407Â Â Â Â Water
right certificate for reservoirs existing before January 1, 1993; injury to
other users; conversion of prior application to notice of exemption
537.409Â Â Â Â Alternate
permit application process for qualifying reservoirs; injury to existing users
or fishery resources; public interest review; rules
CANCELLATION OF PERMIT FOR APPROPRIATION
537.410Â Â Â Â Failure
to commence or complete work, or to properly apply water, as grounds for
cancellation of permit; irrigation districts, municipalities and public
utilities excepted
537.420Â Â Â Â Notice
of hearing
537.440Â Â Â Â Cancellation
of permit; priorities of other permits
537.445Â Â Â Â Hearing
upon proposal to cancel permit or appropriation;
                 cancellation
suspended pending review
537.450Â Â Â Â Rules
for proof as to work and use of water under permits; noncompliance as evidence
in cancellation proceedings
CONSERVATION AND USE OF CONSERVED WATER
537.455Â Â Â Â Definitions
for ORS 537.455 to 537.500 and 540.510
537.460Â Â Â Â Legislative
findings; policy
537.463Â Â Â Â Applicability
of ORS 537.455 to 537.500
537.465Â Â Â Â Application
for allocation of conserved water; submission; required contents
537.470Â Â Â Â Allocation
of conserved water by commission; criteria; percentage to state; certificates
showing change in original water right
537.480Â Â Â Â Rules;
criteria for evaluating allocation and determining mitigation required
537.485Â Â Â Â Priority
of right to use conserved water; choice of priority
537.490Â Â Â Â Use
of conserved water; notice of dispensation of right to use
537.495Â Â Â Â Receipt
by state agency or political subdivision of right to use conserved water
537.500Â Â Â Â Legal
status of conserved water right
GROUND WATER
(Generally)
537.505Â Â Â Â Short
title
537.515Â Â Â Â Definitions
for ORS 537.505 to 537.795 and 537.992
537.525Â Â Â Â Policy
(Aquifer Storage and Recovery)
537.531Â Â Â Â Legislative
findings
537.532Â Â Â Â Injection
of ground water into aquifers; standards
537.534Â Â Â Â Rules
for permitting and administering aquifer storage and recovery projects; limited
license for test program; fees
(Appropriation of Ground Water)
537.535Â Â Â Â Unlawful
use or appropriation of ground water, including well construction and operation
537.545Â Â Â Â Exempt
uses
537.575Â Â Â Â Permits
granted, approved or pending under former law
537.585Â Â Â Â Beneficial
use of ground water prior to August 3, 1955, recognized as right to appropriate
water when registered
537.595Â Â Â Â Construction
or alteration of well commenced prior to August 3, 1955, recognized as right to
appropriate water when registered
537.605Â Â Â Â Registration
of right to appropriate ground water claimed under ORS 537.585 or 537.595;
registration statement
537.610Â Â Â Â Recording
registration statement; issuing certificate of registration; effect of
certificate; rules; fees
537.615Â Â Â Â Application
for permit to acquire new right or enlarge existing right to appropriate ground
water; fee
537.620Â Â Â Â Determination
of completeness of application; initial review; preliminary determination;
notice; public comments; fees
537.621Â Â Â Â Review
of application; proposed final order; presumption that use will ensure
preservation of public welfare, safety and health; flow rate and duty;
standing; protest; final order; contested case hearing
537.622Â Â Â Â Contested
case hearing; parties; issues
537.625Â Â Â Â Final
order; appeal; contents of permit
537.626Â Â Â Â Exceptions
to final order; modified order
537.627Â Â Â Â Time
limit for issuing final order or scheduling contested case hearing; extension;
writ of mandamus
537.628Â Â Â Â Terms;
conditions; time limit for issuing final order after contested case hearing
537.629Â Â Â Â Conditions
or limitations to prevent interference with other users
537.630Â Â Â Â Time
allowed for construction work under permit; certificate of completion; survey;
ground water right certificate; requirements for supplemental water right
537.635Â Â Â Â Assignment
of application, certificate of registration or permit
537.665Â Â Â Â Investigation
of ground water reservoirs; defining characteristics and assigning names and
numbers
537.670Â Â Â Â Determination
of rights to appropriate ground water of ground water reservoir
537.675Â Â Â Â Determination
of rights in several reservoirs or of critical ground water area in same
proceeding
537.680Â Â Â Â Taking
testimony; inspecting evidence; contesting claim
537.685Â Â Â Â Findings
of fact and order of determination
537.690Â Â Â Â Filing
evidence, findings and determinations; court proceedings
537.695Â Â Â Â Conclusive
adjudication
537.700Â Â Â Â Issuing
ground water right certificate
537.705Â Â Â Â Ground
water appurtenant; change in use, place of use or point of appropriation
537.720Â Â Â Â Violation
of terms of law or permit or certificate; action by Water Resources Commission
537.730Â Â Â Â Designation
of critical ground water area; rules; notice
537.735Â Â Â Â Rules
designating critical ground water area
537.740Â Â Â Â Filing
rules designating critical ground water area
537.742Â Â Â Â Contested
case proceeding to limit use of ground water in critical ground water area
537.745Â Â Â Â Voluntary
agreements among ground water users from same reservoir
537.746Â Â Â Â Mitigation
credits for projects in
(
(Temporary provisions relating to the
(Water Well Constructors)
537.747Â Â Â Â Water
well constructorÂ’s license; rules; fees
537.750Â Â Â Â Examination
for license
537.753Â Â Â Â Bond
or letter of credit; landownerÂ’s permit and bond
537.762Â Â Â Â Report
of constructor before beginning work on well; rules; fees
537.763Â Â Â Â Water
Resources Department Operating Fund
537.765Â Â Â Â Log
of constructing, altering, abandoning or converting well; furnishing samples to
Water Resources Commission
(Well Constructors Continuing Education
Committee)
(Temporary provisions relating to the Well Constructors Continuing
Education Committee are compiled as notes following ORS 537.765)
(Local Regulation)
537.769Â Â Â Â Local
regulation of wells and water well constructors
(Regulation of Ground Water Wells)
537.772Â Â Â Â Pump
tests; report; rules for waiver
537.775Â Â Â Â Wasteful
or defective wells; permanent abandonment of old well
537.777Â Â Â Â Regulation
of controlling works of wells and distribution of ground water
537.780Â Â Â Â Powers
of Water Resources Commission; rules; limitations on authority
537.783Â Â Â Â Reinjection
of geothermal fluids; rules and standards; water pollution control facilities
permit
537.785Â Â Â Â Fees
537.787Â Â Â Â Investigation
of violation of ground water laws; remedies for violation
537.789Â Â Â Â Well
identification number
537.791Â Â Â Â Request
for well identification number
537.793Â Â Â Â Effect
of failure to comply with ORS 537.789 or 537.791
537.795Â Â Â Â ORS
537.505 to 537.795 supplementary
537.796Â Â Â Â Rules
regarding low temperature geothermal appropriations
SURVEYORS, ENGINEERS AND GEOLOGISTS
537.797Â Â Â Â Rules
for certification of surveyors, engineers and geologists
537.798Â Â Â Â Examination
for certification of surveyors, engineers and geologists; fees; revocation
537.799Â Â Â Â Survey
for issuance of water right certificate
WASTE, SPRING AND SEEPAGE WATERS
537.800Â Â Â Â Waste,
spring and seepage waters; laws governing
DIVERSION OF WATERS FROM
537.801Â Â Â Â Definitions;
findings
537.803Â Â Â Â Application
proposing use of water outside of basin of origin; contents
537.805Â Â Â Â Processing
of application; hearing; action on application
537.809Â Â Â Â Reservation
of water in basin of origin
537.810Â Â Â Â Diversion
or appropriation of waters from basin of origin without legislative consent
prohibited; terms of consent; exceptions
537.820Â Â Â Â Application
of provisions to waters forming common boundary between states
537.830Â Â Â Â Condemnation
of waters for use outside basin of origin
537.835Â Â Â Â
537.840Â Â Â Â Legislative
consent; filing of certified copy; appropriation rights and procedure
537.850Â Â Â Â Suits
to protect state interests; right of redress to private persons
537.855Â Â Â Â Domestic
water supply district permitted to divert water out of state; conditions
537.860Â Â Â Â Vested
rights protected
537.870Â Â Â Â Out-of-state
municipalities; acquisition of land and water rights in
PENALTIES
537.990Â Â Â Â Criminal
penalties
537.992Â Â Â Â Civil
penalties; schedule of penalties; rules
GENERAL PROVISIONS
     537.010
Definition of “Water Rights Act.” As used in this chapter, “Water Rights Act” means and embraces ORS
536.050, 537.120, 537.130, 537.140 to 537.252, 537.390 to 537.400, 538.420,
540.010 to 540.120, 540.210 to 540.230, 540.310 to 540.430, 540.505 to 540.585
and 540.710 to 540.750. [Amended by 1985 c.673 §183]
PUBLIC AGENCY
WATER USE REGISTRATION
     537.015 [1993 c.654 §2; repealed by 2005 c.14 §4]
     537.017 [1993 c.654 §3; repealed by 2005 c.14 §4]
     537.020 [1993 c.654 §4; 1995 c.416 §43; 1999 c.664 §4;
2003 c.594 §8; repealed by 2005 c.14 §4]
     537.022 [1993 c.654 §5; repealed by 2005 c.14 §4]
     537.025 [1993 c.654 §6; repealed by 2005 c.14 §4]
     537.027 [1993 c.654 §7; repealed by 2005 c.14 §4]
     537.030 [1993 c.654 §8; repealed by 2005 c.14 §4]
     537.032 [1993 c.654 §9; repealed by 2005 c.14 §4]
     537.040
Registration of water for road construction, maintenance or reconstruction;
fee; annual renewal statement; limitations; rules. (1) In lieu of applying for a permit for a
water right under ORS 537.130, a public agency having jurisdiction over roads
or highways may register a water use for road and highway maintenance,
construction and reconstruction purposes.
     (2) A public agency applying to register a
water use under subsection (1) of this section shall:
     (a) Submit a completed application to
register the water use;
     (b) Pay a fee of $300 to be deposited in
the Water Resources Department Water Right Operating Fund;
     (c) Provide a map indicating the general
locations of points of diversion;
     (d) Identify the sources of surface water
or ground water to be used;
     (e) Specify the maximum amount of water to
be used during a calendar year and during any 24-hour period; and
     (f) If the public agency is withdrawing
water from a conveyance or storage facility that is a perfected or certificated
water right:
     (A) Identify the permit or certificate
number of the conveyance or storage right; and
     (B) Provide written authorization from the
owner of the perfected or certificated water right that allows the public
agency to use water from the conveyance or storage facility.
     (3) A use of water registered under
subsection (1) of this section shall continue until the public agency
voluntarily withdraws the registration. However, the public agency shall submit
an annual renewal statement accompanied by an annual fee of $50 to be deposited
in the Water Resources Department Water Right Operating Fund. The annual
renewal statement shall specify any change in the map, the sources of water to
be used or maximum amount of water to be used.
     (4) The use of water registered under
subsection (1) of this section:
     (a) Shall not have priority over any water
right exercised under a permit, water right certificate, certificate of
registration, order of the Water Resources Commission or the Water Resources
Director and related court decrees;
     (b) Shall be subordinate to all other
future permitted or certificated rights; and
     (c) Shall not exceed 50,000 gallons from a
single source during any 24-hour period.
     (5) The commission may require a public
agency to cease withdrawal or diversion of water at any time the director has
reason to believe the registered use is causing a significant adverse impact
upon:
     (a) The affected watershed;
     (b) Any other water user entitled to use
water under a permit issued under ORS 537.211 or 537.625 or a certificate
issued under ORS 537.250, 537.630 or 539.140; or
     (c) An in-stream water right established
under ORS 537.332 to 537.360.
     (6) The commission may adopt rules to
implement this section. The commission shall not require the map to be prepared
by a water right examiner certified under ORS 537.798.
     (7) As used in this section, “public
agency” means the State of Oregon, any agency of the State of Oregon, a county,
a special road district of a county, a city, town, incorporated municipality
and any federal agency that has jurisdiction over a roadway in this state. [1993
c.705 §2; 1995 c.416 §44; 1999 c.664 §5; 2003 c.594 §7]
GEOTHERMAL
WELLS
     537.090
Laws applicable to geothermal wells. (1) The provisions of this chapter relating to appropriation and water
rights do not apply to the production of fluid from a well with a bottom hole
temperature of at least 250 degrees Fahrenheit.
     (2) Production of fluids from a well with
a bottom hole temperature of at least 250 degrees Fahrenheit shall be regulated
as a geothermal resource under the applicable sections of ORS chapter 522.
     (3) If the bottom hole temperature of a
well that was initially less than 250 degrees Fahrenheit increases to at least
250 degrees Fahrenheit, the State Geologist and the Water Resources Commission,
after consulting with the well owner, shall determine the agency with
regulatory responsibility for that specific well. This determination shall be
documented in writing and shall supersede a determination made under subsection
(2) of this section. [1981 c.589 §3; 1985 c.673 §21]
     537.095
Interference between geothermal well and other water appropriation. If interference between an existing
geothermal well permitted under ORS chapter 522 and an existing water
appropriation permitted under this chapter is found by either the State
Geologist or the Water Resources Commission, the State Geologist and the Water
Resources Commission shall work cooperatively to resolve the conflict and
develop a cooperative management program for the area. In determining what
action should be taken, they shall consider the following goals:
     (1) Achieving the most beneficial use of
the water and heat resources;
     (2) Allowing all existing users of the
resources to continue to use those resources to the greatest extent possible;
and
     (3) Insuring that the public interest in
efficient use of water and heat resources is protected. [1981 c.589 §10; 1985
c.673 §22]
WATER USE
REPORTING
     537.097
Verification of land ownership; time limits; exception. (1) As the Water Resources Commission
updates its water right and permit records with current land ownership
information from county records or other sources, the commission shall request
the person shown in those updated records to verify that the person owns the
land to which a water right or permit is appurtenant.
     (2) Any person receiving a request under
subsection (1) of this section shall return the verification within 120 days.
     (3) Except as provided in subsection (4)
of this section, the commission shall request verification from all persons
shown in updated water right and permit records on or before July 1, 1992.
     (4) If the commission considers
verification unnecessary for any water right perfected, transferred or
adjudicated after July 16, 1987, the commission need not request verification
of that water right or permit. [1987 c.649 §2]
     537.099
Water use report from governmental entity. (1) Except as provided in subsection (3) of this section, any
governmental entity that holds a water right shall submit an annual water use
report to the Water Resources Department. The report shall include, but need
not be limited to the amount of water used by the governmental entity, the
period of use and the categories of beneficial use to which the water is
applied.
     (2) As used in this section, “governmental
entity” includes any state or federal agency, local government as defined in
ORS 294.004, irrigation district formed under ORS chapter 545 and a water
control district formed under ORS chapter 553.
     (3) A governmental entity that acquires
land because of default in repayment of loans or other debts owed to the state
is not required to file an annual water use report under this section. [1987
c.649 §3]
APPROPRIATION
UNDER 1909 ACT; LIMITED LICENSES
     537.110
Public ownership of waters.
All water within the state from all sources of water supply belongs to the
public.
     537.120
Right of appropriation; vested rights protected. Subject to existing rights, and except as
otherwise provided in ORS chapter 538, all waters within the state may be
appropriated for beneficial use, as provided in the Water Rights Act and not
otherwise; but nothing contained in the Water Rights Act shall be so construed
as to take away or impair the vested right of any person to any water or to the
use of any water.
     537.130
Permit to appropriate water required; notification to owner of certain land. (1) Except for a use exempted under ORS
537.040, 537.141, 537.142, 537.143 or 537.800 or under the registration system
set forth in ORS 537.132, any person intending to acquire the right to the
beneficial use of any of the surface waters of this state shall, before
beginning construction, enlargement or extension of any ditch, canal or other
distributing or controlling works, or performing any work in connection with
the construction, or proposed appropriation, make an application to the Water
Resources Department for a permit to make the appropriation.
     (2) Except for a use exempted under ORS
537.040, 537.141, 537.142, 537.143 or 537.800 or under the registration system
set forth in ORS 537.132, a person may not use, store or divert any waters
until after the department issues a permit to appropriate the waters.
     (3) The department may not issue a permit
without notifying the owner, as identified in the application, of any land to
be crossed by the proposed ditch, canal or other work as set forth in the
application filed pursuant to ORS 537.140. The department shall provide the
notice even if the applicant has obtained written authorization or an easement
from the owner.
     (4) If more than 25 persons are identified
in the application as required under subsection (3) of this section, the
department may provide the notice required under subsection (3) of this section
by publishing notice of the application in a newspaper having general
circulation in the area in which the proposed ditch, canal or other work is
located at least once each week for at least three successive weeks. The cost
of the publication shall be paid by the applicant in advance to the department.
[Amended by 1985 c.310 §3; 1985 c.673 §25; 1989 c.509 §3; 1991 c.370 §4; 1995
c.365 §1; 1995 c.416 §2a; 2005 c.14 §2]
     537.131
Reclaimed water. As used in
ORS 537.132, 540.510 and 540.610, “reclaimed water” means water that has been
used for municipal purposes and after such use has been treated in a treatment
works as defined in ORS 454.010, and that, as a result of treatment, is
suitable for a direct beneficial purpose or a controlled use that could not
otherwise occur. [1991 c.370 §2; 1997 c.244 §1]
     Note: 537.131 was added to and made a part of ORS
chapter 537 by legislative action but was not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.
     537.132
Exemption from permit requirement for use of reclaimed water; rules. (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 shall notify any persons who, according
to the 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. [1991 c.370 §3; 1997 c.286 §8]
     Note: 537.132 was added to and made a part of ORS
chapter 537 by legislative action but was not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.
     537.133
PermitteeÂ’s right to enter on forestland; notice. (1) A permittee may not enter upon
forestland adjacent to the point of diversion designated in the permit until
such person provides notice to the landowner of the permitteeÂ’s intention to
enter upon such property. The notice shall:
     (a) Be in writing;
     (b) Be mailed to the landowner 30 days
prior to the commencement of any construction, maintenance or repair work; and
     (c) Give a complete description of the
location and duration of the work project.
     (2) If a permittee fails to provide the
notice required in subsection (1) of this section, the permittee shall not
obtain any right to continued use of the land without the express written
consent of the landowner.
     (3) For purposes of determining whether a
prescriptive easement or way of necessity has been established under
     Note: 537.133 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 537 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     537.135
Permit required to appropriate water for recharging ground water sources;
minimum perennial streamflow required for permit; exception. (1) The appropriation of water for the
purpose of recharging ground water basins or reservoirs is declared to be for a
beneficial purpose. Permits for such appropriation may be granted by the Water
Resources Department on application made therefor. Any such application shall
substantially comply with ORS 537.140 and shall be subject to the provisions of
ORS 537.150 to 537.230, as are other applications and permits to appropriate
water.
     (2) Any person proposing to apply to a
beneficial use the water stored artificially in any such ground water basin or
reservoir shall file an application for permit, to be known as the secondary
permit, in compliance with the provisions of ORS 537.130, 537.140, 537.142 and
537.145 to 537.230. The application shall refer to the artificially recharged
ground water basin or reservoir as a supply of water and shall include the
written consent of the holder of the recharge permit or certificate to
appropriate the artificially recharged water.
     (3) The Water Resources Commission shall
develop standards that an applicant must meet before the department approves a
permit to appropriate water for the purpose of recharging ground water.
     (4) Before issuing a permit for the
purpose of recharging ground water, the department shall determine, under ORS
537.170, whether the proposed ground water recharge project would impair or be
detrimental to the public interest.
     (5) The department shall not issue a
ground water recharge permit unless the supplying stream has a minimum
perennial streamflow established for the protection of aquatic and fish life.
The State Department of Fish and Wildlife may waive this prerequisite if a
minimum perennial streamflow for protection of aquatic and fish life is not
required for the supplying stream. [1961 c.402 §1; 1985 c.673 §26; 1987 c.499 §1;
1995 c.416 §3]
     537.139
Failure to obtain authorization for access to certain land. (1) The failure of an applicant to obtain
written authorization, obtain an easement or acquire ownership of land if
required as a condition to issuance of a permit under ORS 537.211 (2) shall be
a ground for refusal to issue a permit.
     (2) If an applicant makes a statement
under ORS 537.140 (1)(a)(E) that falsely states that the applicant owns all
lands crossed by a proposed ditch, canal or other work or that the applicant
has obtained written authorization or an easement permitting access across such
lands, any permit issued in response to the application shall be subject to
cancellation.
     (3) Nothing in ORS 537.130, 537.133,
537.139, 537.140, 537.250, 772.305 and 772.310 requires the Water Resources
Department to mediate or arbitrate a dispute between a permittee and a
landowner with respect to the provisions of ORS 537.130, 537.133, 537.139,
537.140, 537.250, 772.305 and 772.310. [1989 c.509 §8; 1995 c.365 §2; 1995
c.416 §4]
     Note: 537.139 was added to and made a part of
537.110 to 537.330 by legislative action but was not added to any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
     537.140
Application for permit; contents; maps and drawings. (1)(a) Each application for a permit to
appropriate water shall be made to the Water Resources Department on a form
prescribed by the department and shall set forth:
     (A) The name and mailing address of the
applicant;
     (B) The source of water supply including
the name and mailing address of any owner of the land upon which the source of
the water supply is located;
     (C) The nature and amount of the proposed
use;
     (D) The location and description of the
proposed ditch, canal or other work, including the name and mailing address of
the owner of any lands that are not owned by the applicant and that are crossed
by the proposed ditch, canal or other work even if the applicant has obtained
written authorization or an easement from the owner;
     (E) A statement declaring whether the
applicant has written authorization or an easement permitting access to
nonowned land crossed by the proposed ditch, canal or other work;
     (F) The time within which it is proposed
to begin construction;
     (G) The time required for completion of
the construction;
     (H) The time for the complete application
of the water to the proposed use; and
     (I) Any other information required in the
application form that is necessary to evaluate the application as established
by statute and rule.
     (b) If for agricultural purposes, the
application shall give the legal subdivisions of the land and the acreage to be
irrigated, as near as may be.
     (c) Except as provided in subsection (2)
of this section, if for power purposes, the application shall give the nature
of the works by means of which the power is to be developed, the head and
amount of water to be utilized, and the uses to which the power is to be
applied.
     (d) If for construction of a reservoir,
the application shall give the height of dam, the capacity of the reservoir,
and the uses to be made of the impounded waters.
     (e) If for municipal water supply, the
application shall give the present population to be served, and, as near as may
be, the future requirements of the city.
     (f) If for mining purposes, the
application shall give the nature of the mines to be served, and the methods of
supplying and utilizing the water.
     (2) Any person who has applied to the
Federal Energy Regulatory Commission for a preliminary permit or an exemption
from licensing shall, at the same time, apply to the Water Resources Department
for a permit to appropriate water for a hydroelectric project. An applicant for
a permit to appropriate water for a new hydroelectric project shall submit to
the department a complete copy of any application for the project filed with
the Federal Energy Regulatory Commission or other federal agency. If the copy
of the federal application is filed with the department at the same time it is
filed with the federal agency, at the departmentÂ’s discretion such copy may
fulfill the requirements for an application under subsection (1) of this
section.
     (3) Each application shall be accompanied
by any map or drawing and all other data concerning the proposed project and
the applicantÂ’s ability and intention to construct the project, as may be
prescribed by the Water Resources Commission. The accompanying data shall be
considered a part of the application.
     (4) The map or drawing required to
accompany the application shall be of sufficient quality and scale to establish
the location of the proposed point of diversion and the proposed place of use
identified by tax lot, township, range, section and nearest quarter-quarter
section along with a notation of the acreage of the proposed place of use, if
appropriate. In addition, the department shall accept locational coordinate
information, including latitude and longitude as established by a global
positioning system. If the application is for a water right for a municipal
use, the map need not identify the proposed place of use by tax lot.
     (5) Each application for a permit to
appropriate water shall be accompanied by the examination fee set forth in ORS
536.050 (1).
     (6) If the proposed use of the water is
for operation of a chemical process mine as defined in ORS 517.953, the
applicant shall provide the information required under this section as part of
the consolidated application under ORS 517.952 to 517.989.
     (7) Notwithstanding any provision of ORS
chapter 183, an application for a permit to appropriate water shall be
processed in the manner set forth in ORS 537.120 to 537.360. Nothing in ORS
chapter 183 shall be construed to allow additional persons to participate in
the process. To the extent that any provision in ORS chapter 183 conflicts with
a provision set forth in ORS 537.120 to 537.360, the provisions in ORS 537.120
to 537.360 shall control. [Amended by 1985 c.673 §27; 1987 c.542 §5; 1989 c.509
§4; 1991 c.735 §32; 1991 c.869 §6; 1993 c.557 §1; 1993 c.591 §2; 1995 c.365 §3;
1995 c.416 §5; 1997 c.446 §1; 1997 c.587 §4]
     537.141
Uses of water not requiring water right application, permit or certificate;
rules. (1) The following
water uses do not require an application under ORS 537.130 or 537.615, a water
right permit under ORS 537.211 or a water right certificate under ORS 537.250:
     (a) Emergency fire-fighting uses;
     (b) Nonemergency fire-fighting training,
provided:
     (A) The source of the water is existing
storage and the use occurs with permission of the owner of the stored water; or
     (B) If the source of water is other than
existing storage, the use occurs with the prior written approval of the watermaster
in the district where the training will take place and subject to any
conditions the watermaster determines are necessary to prevent injury to
existing water rights and to protect in-stream resources;
     (c) Water uses that divert water to water
tanks or troughs from a reservoir for a use allowed under an existing water
right permit or certificate for the reservoir;
     (d) Fish screens, fishways and fish
by-pass structures, as exempted by rule of the Water Resources Commission;
     (e) Land management practices intended to
save soil and improve water quality by temporarily impeding or changing the
natural flow of diffuse surface water across agricultural lands when storage of
public waters is not an intended purpose. Such practices include but are not
limited to:
     (A) Terraces;
     (B) Dikes;
     (C) Retention dams and other temporary
impoundments; and
     (D) Agronomic practices designed to
improve water quality and control surface runoff to prevent erosion, such as
ripping, pitting, rough tillage and cross slope farming;
     (f) Livestock watering operations that
comply with the requirements under subsections (2) and (3) of this section;
     (g) Forest management activities that
require the use of water in conjunction with mixing pesticides as defined in
ORS 634.006, or in slash burning;
     (h) The collection of precipitation water
from an artificial impervious surface and the use of such water;
     (i) Land application of ground water so
long as the ground water:
     (A) Has first been appropriated and used
under a permit or certificate issued under ORS 537.625 or 537.630 for a water
right issued for industrial purposes or a water right authorizing use of water
for confined animal feeding purposes;
     (B) Is reused for irrigation purposes and
the period of irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
     (C) Is applied pursuant to a permit issued
by the Department of Environmental Quality or the State Department of
Agriculture under either ORS 468B.050 to construct and operate a disposal
system or ORS 468B.215 to operate a confined animal feeding operation; and
     (j) Surface mining practices that result
in the removal of water from a surface mine subject to an operating permit or
reclamation plan approved by the State Department of Geology and Mineral
Industries, unless the water is used for a subsequent beneficial use.
     (2) The use of surface water for livestock
watering may be exempted under subsection (1) of this section if:
     (a) The water is diverted from a stream or
other surface water source to a trough or tank through an enclosed water
delivery system;
     (b) The delivery system either is equipped
with an automatic shutoff or flow control mechanism or includes a means for
returning water to the surface water source through an enclosed delivery
system; and
     (c) The operation is located on land from
which the livestock would otherwise have legal access to both the use and
source of the surface water source.
     (3) If the diversion system described in
subsection (2) of this section is located within or above a scenic waterway,
the amount of water that may be used without a water right is limited to
one-tenth of one cubic foot per second per 1,000 head of livestock. Nothing in
this section shall prevent the Water Resources Commission from approving an
application for a water right permit for a delivery system not qualifying under
subsection (2) of this section.
     (4) The Water Resources Department, in
conjunction with local soil and water conservation districts, the Oregon State
University Extension Service, the State Department of Agriculture and the State
Department of Fish and Wildlife and any other organization interested in
participating, shall develop and implement a voluntary educational program on
livestock management techniques designed to keep livestock away from streams
and riparian areas.
     (5) To qualify for an exempt use under
subsection (1)(g) of this section, the user shall:
     (a) Submit notice of the proposed use,
including the identification of the proposed water source, to the Water
Resources Department and to the State Department of Fish and Wildlife at the
time notice is provided to other affected agencies pursuant to ORS 527.670; and
     (b) Comply with any restrictions imposed
by the department pertaining to sources of water that may not be used in
conjunction with the proposed activity.
     (6) Except for the use of water under
subsection (1)(i) of this section, the Water Resources Commission by rule may
require any person or public agency diverting water as described in subsection
(1) of this section to furnish information with regard to such water and the
use thereof. For a use of water described in subsection (1)(i) of this section,
the Department of Environmental Quality or the State Department of Agriculture
shall provide to the Water Resources Department a copy of the permit issued
under ORS 468B.050 or 468B.215 authorizing the land application of ground water
for reuse. The permit shall provide the information regarding the place of use
of such water and the nature of the beneficial reuse. [1993 c.595 §3; 1995
c.184 §1; 1995 c.274 §9a; 1995 c.537 §2; 1995 c.752 §7; 1997 c.199 §1; 1997
c.244 §2; 1999 c.335 §1; 2001 c.248 §11; 2003 c.470 §4; 2007 c.189 §1]
     Note: 537.141 was added to and made a part of ORS
chapter 537 by legislative action but was not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.
     537.142
Water right permit or certificate not required for egg incubation project under
salmon and trout enhancement program. (1) No water right certificate or permit is required for the use of
the surface waters of this state if
the water is
to be used for a salmon and trout enhancement project certified by the State
Department of Fish and Wildlife under ORS 496.430 to 496.460.
     (2) The use of water for a salmon and
trout enhancement project under subsection (1) of this section is a beneficial
use and such use shall be allowed on all the waters of this state, whether or
not the project is located on waters of this state for which the use is
restricted pursuant to any of the following:
     (a) A scenic waterway designation under
ORS 390.805 to 390.925.
     (b) A statutory withdrawal from
appropriation under ORS chapter 538.
     (c) A program adopted by the Water
Resources Commission under ORS 536.300 to 536.400.
     (d) An administrative withdrawal from
appropriation by the Water Resources Director or the Water Resources
Commission.
     (e) Any other statutory or administrative
restriction on the use of the waters.
     (3) If the use of the waters of this state
under subsection (1) of this section conflicts with the use of water under a
permit issued under ORS 537.240 or a use allowed under a water right
certificate issued under ORS 537.250, the use permitted under subsection (1) of
this section shall be subordinate. [1985 c.310 §2; 1989 c.587 §2]
     537.143
Limited license to use or store surface or ground water or to use stored water;
rules. (1) Notwithstanding
the provisions of ORS 537.130, the Water Resources Commission may establish by
rule a procedure to allow a person to obtain a limited license to use or store
ground water not otherwise exempt under ORS 537.545, to use or store surface
water, to use stored water or to use stored water for purposes for which the
stored water is authorized and in accordance with a contract with a local,
state or federal government after the person complies with the notice
provisions set forth in ORS 537.144. Uses eligible for a limited license shall
be for a short-term or fixed duration and may include but are not limited to
road construction and maintenance, general construction and forestland or
rangeland management. Except as provided in subsections (4) to (6) and (9) of
this section, the use of water for a purpose specifically prohibited by a basin
program or for irrigation is not eligible for a limited license.
     (2) The use of water under a limited
license under subsection (1) of this section shall not have priority over any
water right exercised according to a permit or certificate and shall be
subordinate to all other authorized uses that rely upon the same source. The
Water Resources Department may revoke the right to use of water acquired under
a limited license pursuant to subsection (1) of this section at any time if the
use causes injury to:
     (a) Any other water right; or
     (b) A minimum perennial streamflow.
     (3) Except as provided in subsections (4),
(5) and (11) of this section, the licensee shall give notice to the Water
Resources Department at least 15 days in advance of using the water under the
limited license and shall maintain a record of use. The record shall include
but need not be limited to an estimate of the amount of water used, the period
of use and the categories of beneficial use to which the water is applied.
During the period of the limited license, the record of use shall be available
for review by the department upon request.
     (4) The Water Resources Director may issue
a limited license in conjunction with an enforcement order to address an
illegal water use, including irrigation use or a use specifically prohibited by
a basin program. The director may issue a limited license for such a use upon a
finding that:
     (a) The person did not knowingly violate
state laws regarding a water use permit;
     (b) The immediate termination of the illegal
use would cause serious and undue hardship to the water user that could be
ameliorated by providing a period of time in which to achieve compliance with
the law; and
     (c) The continued use under a limited
license outweighs the public benefits of termination, including deterrence of
illegal uses and protection of the water source.
     (5) An enforcement order issued under
subsection (4) of this section shall specify an amount of time in which the
person using water illegally shall bring such use into compliance. The duration
of the limited license shall not exceed the duration of time allowed in the
enforcement order to achieve compliance. A licensee using water under a limited
license issued in conjunction with an enforcement order need not provide the department
with advance notice of water use, but shall comply with the other requirements
of this section.
     (6) The director may issue a limited
license for irrigation if the sole purpose of the use is:
     (a) To provide water necessary to
establish a crop for which no further irrigation will be required after the
crop is established;
     (b) To mitigate the impacts of drought
when additional water is needed beyond a prescribed irrigation season in order
to avoid irreparable damage to the userÂ’s crop; or
     (c) Under a limited license issued
pursuant to subsection (9) of this section.
     (7) Nothing in this section is intended to
prohibit any person from obtaining a water right certificate under ORS 537.250
or 537.630 for any use for which a limited license is obtained under this
section.
     (8) Except as provided in subsection (10)
of this section, the department may not issue a limited license for the same
use for more than five consecutive years.
     (9) Notwithstanding any other provision of
this section, if the use of water under the limited license is for the use of
stored water consistent with the purposes for which the stored water is
authorized and the use of water is authorized by a contract between the user
and a local, state or federal government:
     (a) The limited license may be issued for
a period of up to one year; and
     (b) The limited license shall be revoked
if the contract between the user and the local, state or federal government is
terminated for any reason.
     (10) At the end of the one-year limited
license period in subsection (9) of this section, the user may reapply for a
limited license under ORS 537.144 provided that there is an authorized contract
between the user and a local, state or federal government.
     (11) The director may issue a limited
license authorizing immediate use of water if the director finds that an
emergency exists and the water is needed to protect the public health, safety
and welfare. Notwithstanding subsection (8) of this section, the director may
issue a limited license for such a use for a period of 60 days. [1989 c.933 §2;
1993 c.595 §1; 1995 c.274 §8; 1997 c.38 §1; 1997 c.366 §1]
     537.144
Request for right to use water under limited license; fee. (1) Any person requesting the right to use
water under a limited license under ORS 537.143 shall notify the Water
Resources Department on a form provided by the department.
     (2) If the request submitted under
subsection (1) of this section is to use stored water for purposes for which
the stored water is authorized and pursuant to a contract between the user and
a local, state or federal government:
     (a) The person also shall submit:
     (A) A copy of the contract;
     (B) A map indicating the point of
diversion and the place of use; and
     (C) Any other information required by the
Water Resources Commission that is necessary to evaluate the request as
established by statute and the rules of the commission.
     (b) Upon the filing of the request under
this subsection, the department shall determine whether the request contains
the information listed under paragraph (a) of this subsection and is complete
and not defective, including the payment of any fee required by the commission.
If the department determines that the request is incomplete or defective or
that all fees have not been paid, the department shall return all fees and the
request. If the department determines that a request contains the information
listed under paragraph (a) of this subsection and is complete and not
defective, the department shall proceed with the review of the request and
issuance of the limited license if the use complies with the requirements of
ORS 537.143.
     (3) The notification required under
subsection (1) or (2) of this section shall be accompanied by the fee
established by rule by the Water Resources Commission.
     (4) The department shall notify the person
whether the department grants the limited license.
     (5) A request for the right to use stored
water under a limited license as described in subsection (2) of this section
may be made concurrently with an application for a permit to appropriate water
under ORS 537.140. [1989 c.933 §3; 1995 c.274 §11; 1997 c.366 §2]
     537.145
Notice of filing of application to appropriate water for hydroelectric
purposes. (1) Whenever an
application is made for a permit to appropriate water for hydroelectric
purposes, the Water Resources Department shall give written notice of the
filing of the application to the owner of any land that is:
     (a) Adjacent to any portion of the stream
in which the quantity of water will be decreased by the project; or
     (b) Adjacent to the site of the proposed
hydroelectric project.
     (2) The department shall also publish
notice of the application once each week for at least four successive weeks and
for such further time, if any, as the department shall determine, in a
newspaper of general circulation in each county in which the project covered by
the application is located. [1985 c.569 §22; 1995 c.416 §8]
     537.147
Permit to use stored water; fee. (1) Notwithstanding the process for applying for a water right permit
established in ORS 537.150 to 537.230, a person may, pursuant to this section,
apply to the Water Resources Department for a water right permit to use stored
water. A person applying under this section for a water right permit to use
stored water shall submit:
     (a) A fee, in the amount required by ORS
536.050 for applications to appropriate stored water.
     (b) A completed application for a
secondary permit, in a form determined by the department, that contains the
information required of applications under ORS 537.140 and 537.400 (1).
     (c) Evidence that the proposed use of the
stored water is one of the authorized uses under the water right permit,
certificate or decree that allows the storage of water.
     (2) If an applicant provides, to the
satisfaction of the department, the fee and the information required by
subsection (1) of this section, the department may, after public notice and a
30-day opportunity to submit comments on the application, issue a water right
permit upon determining that no public interest issues as identified in ORS
537.170 (8) have been raised through the comments submitted.
     (3) If the department determines that
public interest issues have been identified, then the department shall treat
the application under this section as an application under ORS 537.150 and
perform the public interest review required by ORS 537.153 (2).
     (4) At a minimum, a water right permit
issued by the department for use of stored water under this section shall be
conditioned to require:
     (a) Fish screens and by-pass devices and
fish passage as may be required by the State Department of Fish and Wildlife;
and
     (b) A measuring device at each point of
diversion authorized under the water right permit.
     (5) Within 10 days of issuing a water
right permit under this section, the department shall provide notice of the
permit issuance in the weekly notice published by the department and to persons
who have submitted comments pursuant to subsection (2) of this section. [2005
c.37 §2]
     537.150
Filing of application; determination of completeness; initial review;
preliminary determination; notice; public comments; fees. (1) Within 15 days after receiving an
application, the Water Resources Department shall determine whether the
application contains the information listed under ORS 537.140 (1) and is
complete and not defective, including the payment of all fees required under
ORS 537.140 (5). If the department determines that the application is
incomplete or defective or that not all fees have been paid, the department
shall return the fees paid and the application.
     (2) Upon determining that an application
contains the information listed under ORS 537.140 (1) and is complete and not
defective, the department shall indorse on the application the date upon which
the application was received at the department, which shall be the priority
date for any water right issued in response to the application. All
applications that comply with the provisions of law shall be recorded in a
suitable book kept for that purpose.
     (3) If an application is complete and not
defective, the department shall determine whether the proposed use is
prohibited by ORS chapter 538. If the proposed use is prohibited by ORS chapter
538, the department shall reject the application and return all fees to the
applicant with an explanation of the statutory prohibition.
     (4) If the proposed use is not prohibited
by ORS chapter 538, the department shall undertake an initial review of the
application and make a preliminary determination of:
     (a) Whether the proposed use is restricted
or limited by statute or rule;
     (b) The extent to which water is available
from the proposed source during the times and in the amounts requested; and
     (c) Any other issue the department
identifies as a result of the initial review that may preclude approval of or
restrict the proposed use.
     (5) Upon completion of the initial review
and no later than 30 days after determining an application to be complete and
not defective as described in subsection (1) of this section, the department
shall notify the applicant of its preliminary determinations and allow the
applicant 14 days from the date of mailing within which to notify the
department to stop processing the application or to proceed with the
application. If the applicant notifies the department to stop processing the
application, the department shall return the application and all fees paid in
excess of $150. If the department receives no timely response from the
applicant, the department shall proceed with the application.
     (6) Within seven days after proceeding
with the application under subsection (5) of this section, the department shall
give public notice of the application in the weekly notice published by the
department. The notice shall include a request for comments on the application
and information pertaining to how an interested person may obtain future
notices about the application and a copy of the proposed final order.
     (7) Within 30 days after the public notice
under subsection (6) of this section, any person interested in the application
shall submit written comments to the department. Any person who asks to receive
a copy of the departmentÂ’s proposed final order shall submit to the department
the fee required under ORS 536.050 (1). [Amended by 1985 c.673 §28; 1993 c.557 §2;
1995 c.416 §9; 2007 c.267 §2]
     537.153
Review of application; proposed final order; presumption that use will not
impair or be detrimental to public interest; standing; protest; final order;
contested case hearing. (1)
Within 60 days after the Water Resources Department proceeds with the
application under ORS 537.150 (5), the department shall complete application
review and issue a proposed final order approving or denying the application or
approving the application with modifications or conditions. The department may
request the applicant to provide additional information needed to complete the
review. If the department requests additional information, the request shall be
specific and shall be sent to the applicant by registered mail. The department
shall specify a date by which the information must be returned, which shall be
not less than 10 days after the department mails the request to the applicant.
If the department does not receive the information or a request for a time
extension under ORS 537.175 by the date specified in the request, the
department may reject the application and may refund fees in accordance with
ORS 536.050 (3)(a). The time period specified by the department in a request
for additional information shall allow the department to comply with the 60-day
time limit established by this subsection.
     (2) In reviewing the application under
subsection (1) of this section, the department shall presume that a proposed
use will not impair or be detrimental to the public interest if the proposed
use is allowed in the applicable basin program established pursuant to ORS
536.300 and 536.340 or given a preference under ORS 536.310 (12), if water is
available, if the proposed use will not injure other water rights and if the
proposed use complies with rules of the Water Resources Commission. This shall
be a rebuttable presumption and may be overcome by a preponderance of evidence
that either:
     (a) One or more of the criteria for
establishing the presumption are not satisfied; or
     (b) The proposed use will impair or be
detrimental to the public interest as demonstrated in comments, in a protest
under subsection (6) of this section or in a finding of the department that
shows:
     (A) The specific public interest under ORS
537.170 (8) that would be impaired or detrimentally affected; and
     (B) Specifically how the identified public
interest would be impaired or detrimentally affected.
     (3) The proposed final order shall cite
findings of fact and conclusions of law and shall include but need not be limited
to:
     (a) Confirmation or modification of the
preliminary determinations made in the initial review;
     (b) A brief statement that explains the
criteria considered relevant to the decision, including the applicable basin
program and the compatibility of the proposed use with applicable land use
plans;
     (c) An assessment of water availability
and the amount of water necessary for the proposed use;
     (d) An assessment of whether the proposed
use would result in injury to existing water rights;
     (e) An assessment of whether the proposed
use would impair or be detrimental to the public interest as provided in ORS
537.170;
     (f) A draft permit, including any proposed
conditions, or a recommendation to deny the application;
     (g) Whether the rebuttable presumption
that the proposed use will not impair or be detrimental to the public interest
has been established; and
     (h) The date by which protests to the
proposed final order must be received by the department.
     (4) The department shall mail copies of
the proposed final order to the applicant and to persons who have requested
copies and paid the fee required under ORS 536.050 (1)(p). The department also
shall publish notice of the proposed final order by publication in the weekly
notice published by the department.
     (5) Any person who supports a proposed
final order may request standing for purposes of participating in any contested
case proceeding on the proposed final order or for judicial review of a final
order. A request for standing shall be in writing and shall be accompanied by
the fee established under ORS 536.050 (1)(n).
     (6) Any person may submit a protest
against a proposed final order. A protest shall be in writing and shall
include:
     (a) The name, address and telephone number
of the protestant;
     (b) A description of the protestant’s
interest in the proposed final order and, if the protestant claims to represent
the public interest, a precise statement of the public interest represented;
     (c) A detailed description of how the
action proposed in the proposed final order would impair or be detrimental to
the protestantÂ’s interest;
     (d) A detailed description of how the
proposed final order is in error or deficient and how to correct the alleged
error or deficiency;
     (e) Any citation of legal authority supporting
the protest, if known; and
     (f) For persons other than the applicant,
the protest fee required under ORS 536.050.
     (7) Requests for standing and protests on
the proposed final order shall be submitted within 45 days after publication of
the notice of the proposed final order in the weekly notice published by the
department. Any person who asks to receive a copy of the departmentÂ’s final
order shall submit to the department the fee required under ORS 536.050 (1)(p),
unless the person has previously requested copies and paid the required fee
under ORS 537.150 (7), the person is a protestant and has paid the fee required
under ORS 536.050 (1)(j) or the person has standing and has paid the fee under
ORS 536.050 (1)(n).
     (8) Within 60 days after the close of the
period for receiving protests, the Water Resources Director shall:
     (a) Issue a final order as provided under
ORS 537.170 (6); or
     (b) Schedule a contested case hearing if a
protest has been submitted and if:
     (A) Upon review of the issues, the director
finds that there are significant disputes related to the proposed use of water;
or
     (B) Within 30 days after the close of the
period for submitting protests, the applicant requests a contested case
hearing. [1995 c.416 §11; 1997 c.446 §2; 1997 c.587 §5; 2007 c.188 §2]
     Note: 537.153, 537.173 and 537.175 were added to
and made a part of 537.145 to 537.240 by legislative action but were not added
to any smaller series therein. See Preface to Oregon Revised Statutes for
further explanation.
     537.160
Approval for beneficial use; agreement authorizing use of ditch for waste or
seepage water. (1) Subject
to the provisions of subsections (2) and (3) of this section, and of ORS
537.170 and 537.190, the Water Resources Department shall approve all
applications made in proper form which contemplate the application of water to
a beneficial use, unless the proposed use conflicts with existing rights.
     (2) The department may not approve an
application for a permit to appropriate waste or seepage water, which is to be
carried through an existing ditch or canal not owned wholly by the applicant
until the applicant files with the department an agreement between the
applicant and the owner of the ditch or canal, authorizing its use by the
applicant to carry the water.
     (3) The department shall reject every
application for a permit to appropriate water to develop hydroelectric power if
the department finds that the proposed project does not comply with the
standards set forth in ORS 543.017 or rules adopted by the Water Resources
Commission under ORS 543.017. [Amended by 1985 c.569 §18; 1985 c.673 §197; 1995
c.416 §12]
     537.170
Contested case hearing on application; final order; appeal. (1) Within 45 days after the Water Resources
Director schedules a contested case hearing under ORS 537.153 (8), the Water
Resources Department shall hold the contested case hearing. The issues to be
considered in the contested case hearing shall be limited to issues identified
by the administrative law judge.
     (2) Notwithstanding the provisions of ORS
chapter 183 pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be limited to:
     (a) The applicant;
     (b) Any person who timely filed a protest;
and
     (c) Any person who timely filed a request
for standing under ORS 537.153 (5) and who requests to intervene in the
contested case hearing prior to the start of the proceeding.
     (3) The contested case proceeding shall be
conducted in accordance with the applicable provisions of ORS chapter 183
except:
     (a) As provided in subsections (1) and (2)
of this section; and
     (b) An interlocutory appeal under ORS
183.480 (3) shall not be allowed.
     (4) If applicable, an application to
appropriate water for the generation of electricity submitted under ORS 537.140
shall be included in the consolidated review and hearings process under ORS
543.255.
     (5) Each person submitting a protest or a
request for standing shall raise all reasonably ascertainable issues and submit
all reasonably available arguments supporting the personÂ’s position by the
close of the protest period. Failure to raise a reasonably ascertainable issue
in a protest or in a hearing or failure to provide sufficient specificity to
afford the Water Resources Department an opportunity to respond to the issue
precludes judicial review based on that issue.
     (6) If, after the contested case hearing
or, if a hearing is not held, after the close of the period allowed to file a
protest, the director determines that the proposed use does not comply with the
standards set forth in ORS 543.017 or rules adopted by the Water Resources
Commission under ORS 543.017 or would otherwise impair or be detrimental to the
public interest, the director shall issue a final order rejecting the
application or modifying the proposed final order to conform to the public
interest. If, after the contested case hearing or, if a hearing is not held,
after the close of the period allowed to file a protest, the director
determines that the proposed use would not impair or be detrimental to the
public interest, the director shall issue a final order approving the
application or otherwise modifying the proposed final order. A final order may
set forth any of the provisions or restrictions to be included in the permit
concerning the use, control and management of the water to be appropriated for
the project, including, but not limited to, a specification of reservoir
operation and minimum releases to protect the public interest.
     (7) If a contested case hearing is not
held:
     (a) Where the final order modifies the
proposed final order, the applicant may request and the department shall
schedule a contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest under ORS 537.153
(6) within 14 days after the director issues the final order. However, the
issues on which a contested case hearing may be requested and conducted under
this paragraph shall be limited to issues based on the modifications to the
proposed final order.
     (b) Only the applicant or a protestant may
appeal the provisions of the final order in the manner established in ORS
chapter 183 for appeal of order other than contested cases.
     (8) If the presumption of public interest
under ORS 537.153 (2) is overcome, then before issuing a final order, the
director or the commission, if applicable, shall make the final determination
of whether the proposed use or the proposed use as modified in the proposed
final order would impair or be detrimental to the public interest by
considering:
     (a) Conserving the highest use of the
water for all purposes, including irrigation, domestic use, municipal water
supply, power development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial purposes, navigation,
scenic attraction or any other beneficial use to which the water may be applied
for which it may have a special value to the public.
     (b) The maximum economic development of
the waters involved.
     (c) The control of the waters of this
state for all beneficial purposes, including drainage, sanitation and flood
control.
     (d) The amount of waters available for
appropriation for beneficial use.
     (e) The prevention of wasteful,
uneconomic, impracticable or unreasonable use of the waters involved.
     (f) All vested and inchoate rights to the
waters of this state or to the use of the waters of this state, and the means
necessary to protect such rights.
     (g) The state water resources policy
formulated under ORS 536.295 to 536.350 and 537.505 to 537.534.
     (9) Upon issuing a final order, the
director shall notify the applicant and each person who submitted written
comments or protests or otherwise requested notice of the final order and send
a copy of the final order to any person who requested a copy and paid the fee
required under ORS 536.050 (1)(p). [Amended by 1955 c.707 §36; 1961 c.224 §12;
1963 c.378 §1; 1975 c.581 §26; 1985 c.569 §19; 1985 c.673 §30; 1995 c.416 §13;
1997 c.587 §6; 2003 c.75 §96]
     537.173
Exceptions to final order; modified order. (1) Within 20 days after the Water Resources Director issues a final
order under ORS 537.170 after the conclusion of a contested case hearing, any
party may file exceptions to the order with the Water Resources Commission.
     (2) The commission shall issue a modified
order, if allowed, or deny the exceptions within 60 days after the close of the
exception period under subsection (1) of this section. [1995 c.416 §14]
     Note: See note under 537.153.
     537.175
Time limit for issuing final order or scheduling contested case hearing;
applicant request for extension. (1) Except as provided in subsection (2) of this section, the Water
Resources Department shall issue a final order or schedule a contested case
hearing on an application for a water right referred to in ORS 537.140 or
537.400 within 180 days after the department proceeds with the application
under ORS 537.150 (5).
     (2) At the request of the applicant, the
department may extend the 180-day period set forth in subsection (1) of this
section for a reasonable period of time.
     (3) If a contested case hearing is held,
the department shall issue a final order:
     (a) Within 270 days after scheduling the
hearing for a contested case proceeding that involves three or more parties not
including the department; and
     (b) Within 180 days after scheduling the
hearing for all other contested case proceedings.
     (4) If the applicant does not request an
extension under subsection (2) of this section and the department fails to
issue a proposed final order or schedule a contested case hearing on an
application for a water right within 180 days after the department proceeds
with the application under ORS 537.150 (5), the applicant may apply in the
Circuit Court for Marion County for a writ of mandamus to compel the department
to issue a final order or schedule a contested case hearing on an application
for a water right. If the application is for an out-of-stream use, the writ of
mandamus shall compel the department to issue a water right permit, unless the department
shows by affidavit that to issue a permit may result in harm to an existing
water right holder. [1995 c.416 §17]
     Note: See note under 537.153.
     537.180 [Amended by 1971 c.734 §78; 1985 c.673 §31;
repealed by 1995 c.416 §50]
     537.185 [1971 c.734 §80; repealed by 1985 c.673 §185]
     537.190
Terms and conditions of approval; municipal water supplies; release of stored
water. (1) The Water
Resources Department may approve an application for less water than applied
for, or upon terms, limitations and conditions necessary for the protection of
the public interest, including terms, limitations and conditions relating to
the release of water from an impoundment or diversion structure necessary to
prevent rapid fluctuation in the stream level below the structure which may
create a hazard to life or property, if there exists substantial reason
therefor. In any event the department shall not approve an application for more
water than can be applied to a beneficial use.
     (2) The department may approve an application
for a municipal water supply to the exclusion of all subsequent appropriations,
if the exigencies of the case demand.
     (3) When conditions beyond the control of
the owner or operator of an impoundment or diversion structure, to which terms,
limitations and conditions made as provided in subsection (1) of this section
relate, threaten the safety of the structure and the release of water from the
structure contrary to such terms, limitations and conditions is or may be
necessary to remove the threat:
     (a) The terms, limitations and conditions
shall not apply to such release of water.
     (b) The owner, operator or person in
immediate charge of the structure shall immediately notify the department by
telegraph or telephone of the situation.
     (c) The owner, operator or person in
immediate charge of the structure shall immediately notify, to the best of the
personÂ’s ability, those persons whose life or property may be threatened by the
release of water. [Amended by 1959 c.624 §3; subsection (3) enacted as 1959
c.624 §5; 1985 c.673 §32; 1995 c.416 §15]
     537.200 [Amended by 1955 c.707 §37; repealed by 1971
c.734 §21]
     537.210 [Repealed by 1981 c.61 §1 (537.211 enacted
in lieu of 537.210)]
     537.211
Issuance of permit if application approved; contents of permit; effect;
rejection of application; change in use allowed under permit. (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), 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 departmentÂ’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 applicantÂ’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. [1981
c.61 §2 (enacted in lieu of 537.210); 1985 c.392 §10; 1985 c.673 §33; 1991
c.735 §33; 1995 c.365 §4; 1995 c.368 §1; 1995 c.416 §16a; 1997 c.42 §1; 1997
c.446 §3; 1999 c.611 §1; 1999 c.664 §6; 2003 c.705 §2]
     537.220
Assignment of application, permit or license. (1) Any application, permit or license to appropriate water may be
assigned, subject to the conditions of the application or permit, but no such
assignment shall be binding, except upon the parties to the assignment, unless
filed for record in the Water Resources Department.
     (2) An assignment of an application,
permit or license to appropriate water filed for record with the Water
Resources Department shall identify the current record owners of all property
described in the application, permit or license. The assignor shall furnish
proof acceptable to the department that notice of the assignment has been given
or attempted for each identified property owner not a party to the assignment. [Amended
by 1985 c.673 §34; 1995 c.367 §1]
     537.230
Time allowed for construction of irrigation or other work; extension; survey;
map; requirements for supplemental water right. (1) Except for a holder of a permit for
municipal use, the holder of a water right permit shall prosecute the
construction of any proposed irrigation or other work with reasonable diligence
and complete the construction within a reasonable time, as fixed in the permit
by the Water Resources Department, not to exceed five years from the date of
approval.
     (2) The holder of a permit for municipal
use shall commence and complete the construction of any proposed works within
20 years from the date on which a permit for municipal use is issued under ORS
537.211. The construction must proceed with reasonable diligence and be
completed within the time specified in the permit, not to exceed 20 years.
However, the department may order and allow an extension of time to complete
construction or to perfect a water right beyond the time specified in the
permit under the following conditions:
     (a) The holder shows good cause. In
determining the extension, the department shall give due weight to the
considerations described under ORS 539.010 (5) and to whether other
governmental requirements relating to the project have significantly delayed
completion of construction or perfection of the right;
     (b) The extension of time is conditioned
to provide that the holder may divert water beyond the maximum rate diverted
for beneficial use before the extension only upon approval by the department of
a water management and conservation plan; and
     (c) For the first extension issued after
June 29, 2005, for a permit for municipal use issued before November 2, 1998,
the department finds that the undeveloped portion of the permit is conditioned
to maintain, in the portions of waterways affected by water use under the
permit, the persistence of fish species listed as sensitive, threatened or
endangered under state or federal law. The department shall base its finding on
existing data and upon the advice of the State Department of Fish and Wildlife.
An existing fish protection agreement between the permit holder and a state or
federal agency that includes conditions to maintain the persistence of any
listed fish species in the affected portion of the waterway is conclusive for
purposes of the finding.
     (3) Except as provided in ORS 537.240 and
537.248 and subsection (2) of this section, the Water Resources Department, for
good cause shown, shall order and allow an extension of time, including an
extension beyond the five-year limit established in subsection (1) of this
section within which irrigation or other works shall be completed or the right
perfected. In determining the extension, the department shall give due weight to
the considerations described under ORS 539.010 (5) and to whether other
governmental requirements relating to the project have significantly delayed
completion of construction or perfection of the right.
     (4) Except as provided in subsection (5)
of this section and ORS 537.409, upon completion of beneficial use as required
under this section, the permittee shall hire a water right examiner certified
under ORS 537.798 to survey the appropriation. Within one year after
application of water to a beneficial use or the beneficial use date allowed in
the permit, the permittee shall submit a map of the survey as required by the
Water Resources Department, which shall accompany the request for a water right
certificate submitted to the department under ORS 537.250. If any property
described in the permit is not included in the request for a water right
certificate, the permittee shall state the identity of the record owner of that
property.
     (5) The Water Resources Director may waive
the requirement under subsection (4) of this section that a permittee hire a
water right examiner certified under ORS 537.798 if:
     (a) The permit is a supplemental water
right that shares the same distribution system and same place of use as the
primary water right; and
     (b) The department determines that there
is sufficient information in the records of the department to determine proof
of beneficial use.
     (6) Notwithstanding ORS 537.410, for
purposes of obtaining a water right certificate under ORS 537.250 for a
supplemental water right, the permittee shall have a facility capable of
handling the full rate and duty of water requested from the supplemental source
and be otherwise ready, willing and able to use the amount of water requested,
up to the amount of water approved in the water right permit. To obtain a
certificate for a supplemental water right, the permittee is not required to
have actually used water from the supplemental source if:
     (a) Water was available from the source of
the primary water right and the primary water right was used pursuant to the
terms of the primary water right; or
     (b) The nonuse of water from the
supplemental source occurred during a period of time within which the exercise
of the supplemental water right permit was not necessary due to climatic conditions.
[Amended by 1985 c.617 §1; 1985 c.673 §201; 1987 c.542 §4; 1995 c.367 §2; 1995
c.416 §35; 1995 c.473 §5; 1997 c.446 §4; 1997 c.502 §1; 1997 c.557 §1; 1999
c.453 §1; 1999 c.665 §2; 2005 c.410 §1]
     Note: Section 5, chapter 410, Oregon Laws 2005,
provides:
     Sec.
5. (1) The amendments to ORS
537.230 and 537.630 by sections 1 and 2 of this 2005 Act relating to the time
to commence and complete construction apply to permits issued by the Water
Resources Department on or after the effective date of this 2005 Act [June 29,
2005].
     (2) The amendments to ORS 537.230 and
537.630 by sections 1 and 2 of this 2005 Act apply to requests for extensions
of time to complete construction or to perfect a water right made before, on or
after the effective date of this 2005 Act, whether or not construction has
commenced under a permit prior to the request.
     (3) All final orders by the department
that resulted in the issuance of a water right permit, the issuance of a water
right certificate or the approval of an extension of time to complete
construction or to perfect a water right for a municipal use that were issued
before the effective date of this 2005 Act are not subject to challenge in an
administrative or judicial proceeding with respect to the requirement to commence
and complete construction within a specified period of time. [2005 c.410 §5]
     537.240
Federal permit; time for obtaining; cancellation; time for beginning and
completing work. (1) In any
case where a permit from the Federal Energy Regulatory Commission is or shall
be required in connection with the development of the applicantÂ’s proposed
project, the applicant shall make application for the necessary federal permit
or license within six months, or, if the applicant is a municipal corporation,
within 10 years, from the date of filing application for appropriation of water
with the Water Resources Department.
     (2) Upon failure of the applicant to file
with the department, within 30 days after the expiration of the period above
prescribed, satisfactory proof that application for the federal permit or
license has been duly made, the application to appropriate water shall be
terminated and become void.
     (3) Where the application for the
necessary permit or license from the Federal Energy Regulatory Commission is
finally rejected or disallowed, or if after being granted, the permit or
license is revoked or forfeited because of failure to begin or carry on the
construction work when and as required by the permit or license, then the
department shall, upon the filing in the Water Resources Department of
satisfactory proof of such fact, revoke and cancel any permit issued by the
department for appropriation of water for use in the project for which the
federal permit or license was required.
     (4) In case of any permit issued for the
appropriation of water for the utilization of which a permit or license from
the Federal Energy Regulatory Commission is necessary, the time to be allowed
for the beginning and completion of construction under the permit from the
department shall be made to conform to the time fixed for such beginning and
completion in the permit or license, and in any extension thereof, issued for
the project by the Federal Energy Regulatory Commission. [Amended by 1985 c.673
§36; 1995 c.416 §36]
     537.248
Requirement to include in reservoir permit date for beginning and completing
construction and for perfecting water right; extension. (1) When the Water Resources Department
issues a reservoir permit for a new storage project to a county, municipality
or district, the department shall include in the permit a date, not more than
10 years after the date the permit is issued, to begin and complete
construction of diversion or storage works and to perfect the water right. An
application for a reservoir permit under this section shall be subject to the
provisions of ORS 537.140 to 537.211, except that the applicant need not submit
engineering plans and specifications before the permit is issued. However, the
applicant may not begin construction of the reservoir until the department
approves the engineering plans and specifications.
     (2) By order, the Water Resources Director
may extend the date for beginning and completing construction and for
completing perfection of the use if the applicant shows reasonable diligence
and good cause. An extension allowed under this subsection shall not exceed 10
years, but the applicant may request additional extensions.
     (3) As used in this section, “district”
includes the entities set forth in ORS 198.010 and 198.180. [1995 c.473 §2;
1995 c.416 §35a]
     Note: 537.248 and 537.249 were added to and made a
part of 537.140 to 537.252 by legislative action but were not added to any
smaller series therein. See Preface to Oregon Revised Statutes for further
explanation.
     537.249
Election to have proposed reservation considered as application for permit or
rulemaking proceeding. (1)
In lieu of the procedure established pursuant to ORS 537.358, for any
reservation pending on July 5, 1995, the state agency that requested the
reservation may elect to have the proposed reservation considered:
     (a) As an application for a permit under
ORS 537.140 to 537.211 and 537.248; or
     (b) As a rulemaking proceeding under the
applicable provisions of ORS chapter 183 in which case the provisions of ORS
537.358 requiring a public interest review under ORS 537.170 shall not be
applicable.
     (2) A state agency making any election
under subsection (1) of this section shall submit a written request to the
Water Resources Commission within 90 days after July 5, 1995. The commission
shall proceed in accordance with the election made under subsection (1) of this
section or, if an election is not submitted, according to the procedure
established pursuant to ORS 537.358.
     (3) A reservation established under the
provisions of this section shall have as a priority date the date established
in rules of the commission in effect on July 5, 1995.
     (4) When issuing a reservoir permit for a
multipurpose storage project using water reserved or proposed to be reserved
under a request originally filed by the Water Resources Department before June
5, 1992, the department shall grant a preference for the project under ORS
537.352.
     (5) Notwithstanding ORS 537.356, the Water
Resources Commission may accept requests to reserve unappropriated water before
July 1, 1997, but shall not begin to process such requests before July 1, 1997.
Any request to reserve unappropriated water submitted by the State Department
of Agriculture before July 1, 1997, also shall consider municipal needs. The priority
date of a request received in proper form by the Water Resources Commission
after July 5, 1995, shall be the date of receipt. [1995 c.473 §3; 1995 c.416 §35b]
     Note: See note under 537.248.
     537.250
Water right certificate; issuance; inclusion of land not described in permit;
recordation; duration of rights. (1) After the Water Resources Department has received a request for
issuance of a water right certificate accompanied by the survey required under
ORS 537.230 (4) that shows, to the satisfaction of the department, that an
appropriation has been perfected in accordance with the provisions of the Water
Rights Act, the department shall issue to the applicant a certificate of the
same character as that described in ORS 539.140. The certificate shall be
recorded and transmitted to the applicant as provided in that section.
     (2) When issuing a water right certificate
under subsection (1) of this section in the name of a district as defined in
ORS 540.505, or in the name of a government agency for a district, the
department may issue the water right certificate for land not described in the
permit in accordance with ORS 537.252.
     (3) Rights to the use of water acquired
under the provisions of the Water Rights Act, as set forth in a certificate
issued under subsection (1) of this section, shall continue in the owner
thereof so long as the water shall be applied to a beneficial use under and in
accordance with the terms of the certificate, subject only to loss:
     (a) By nonuse as specified and provided in
ORS 540.610; or
     (b) As provided in ORS 537.297. [Amended
by 1985 c.392 §11; 1985 c.673 §191; 1987 c.542 §6; 1989 c.509 §6; 1995 c.218 §3;
1995 c.365 §5; 1995 c.416 §21a; 2005 c.410 §3]
     537.252
Certificate issued for land not described in permit; notice. (1) When issuing a water right certificate
under ORS 537.250 to a district, or to a government agency for a district, the
Water Resources Department may issue the water right certificate for land not
described in the permit if:
     (a) Water furnished by the district under
the permit has been applied beneficially to the land;
     (b) The land not described in the permit
that is proposed to be included in the certificate is included within the
legally established boundaries of the district and is subject to the charges,
assessments and liens of the district;
     (c) The certificate does not authorize a
greater rate, duty or acreage than is authorized by the terms of the permit,
and all other conditions of the permit are satisfied;
     (d) The inclusion of land not described in
the permit will not result in injury to other existing water rights or in
enlargement of the right authorized under the permit; and
     (e) The impact to the water source of
including land not described in the permit will not differ significantly from the
impact expected at the time the permit was issued for the lands described in
the permit.
     (2) If a district proposes to use water on
lands not described in the permit, the Water Resources Department may issue a
certificate that includes such additional lands if all of the conditions of
subsection (1) of this section are satisfied and if, no later than 60 days
before the district actually applies the water to the lands not described in
the permit, the district provides written notice to the department. The notice
shall include a copy of the original permit map modified to show the lands to
be added and lands to be removed from the description of the place of use of
the water. Upon receipt of the notice from the district, the department shall
provide public notice of the proposed change by means of publication in the
departmentÂ’s weekly notice and by publication once each week for three
successive weeks in a newspaper having general circulation in the county or
counties in which the affected lands are located. The cost of publication shall
be paid by the district.
     (3) If a district has issued an order of
inclusion or exclusion, the boundaries of the irrigation district shall be
deemed to have been legally changed in the absence of approval of the Secretary
of the Interior.
     (4) As used in this section:
     (a) “District” has the meaning given in
ORS 540.505.
     (b) “Legally established boundaries” means
the boundaries of a district as established at the time of creation of the
district and as the boundaries may have changed after creation of the district
by an inclusion, exclusion or merger proceeding according to state law. [1995
c.218 §2; 1995 c.416 §21b; 2003 c.14 §343]
     537.260
Cancellation of permit for failure of proof of completion of appropriation;
issuance of limited certificate; contest of issuance of certificate; exception
for municipalities. (1)
Except as provided under subsection (4) of this section for a permit issued to
a municipality, whenever the time within which any appropriation under a permit
should have been perfected has expired and the owner of the permit fails or
refuses within three months thereafter to submit to the Water Resources
Department proof of completion of the appropriation as required by ORS 537.230
and 537.250, the department may, after 60 daysÂ’ notice by registered mail or by
certified mail with return receipt, order the cancellation of the permit. The
cancellation shall have the same force and effect as cancellation of a permit
in the proceedings provided for in ORS 537.410 to 537.450.
     (2) The department may determine the
extent to which an appropriation has been perfected under any permit at the
time of submission of final proof provided for in ORS 537.250, and shall limit
the certificate provided for in that section to a description of such
appropriation as has been actually perfected to the extent that the water
applied for has been actually applied to the beneficial use contemplated in the
permit.
     (3) Any person owning an application,
permit or water right certificate subsequent in priority may jointly or
severally contest before the department the issuance of the water right
certificate at any time before it has issued, and after the time has expired
for the completion of the appropriation under the permit, or within three months
after issuance of the certificate. The contest shall be brought upon
application made, and hearing shall be had in the same manner and after notice
as provided in ORS 537.420 for proceedings for cancellation of permits. The
department, in a final order, may cancel the permit or determine the extent to
which the appropriation claimed thereunder has been perfected, and issue a
water right certificate accordingly, or if a certificate has been issued, in
the case of a contest within three months after its issuance, the department
may cancel the water right certificate, or affirm its issuance, and if the
water right certificate in such case is canceled, the permit upon which it is
based shall also be canceled.
     (4) A municipality may partially perfect
not less than 25 percent of the water authorized by its permit without loss of
priority or cancellation of the municipalityÂ’s permit under this section. If a
municipality defers perfection of its water right under this section, the
department shall issue a certificate under ORS 537.250 only for the amount
perfected. Upon perfection of the deferred amount, the municipality shall
request a water right certificate for the remaining portion of the water
applied for in the original permit application. As used in this section, “municipality”
includes a city, a port formed under ORS 777.005 to 777.725 and 777.915 to
777.953, a domestic water supply district formed under ORS chapter 264 or a
water authority formed under ORS chapter 450. [Amended by 1983 c.740 §211; 1985
c.673 §38; 1989 c.707 §2; 1991 c.249 §43; 1993 c.577 §35; 1995 c.416 §37]
     537.270
Conclusiveness of certificate.
A water right certificate issued in accordance with the provisions of ORS
537.250 which, after the expiration of three months from the date it is issued,
has not been contested and canceled in the manner provided in ORS 537.260, and
a water right certificate, when issued under ORS 539.140, shall be conclusive
evidence of the priority and extent of the appropriation therein described in
any proceeding in any court or tribunal of the state, except in those cases
where the rights of appropriation thereby described have been abandoned
subsequent to issuance of the certificate.
     537.280 [Renumbered 537.335]
     537.282
Definition of “municipal applicant.” As used in ORS 537.282 to 537.299, “municipal applicant” means any
municipal corporation or district as defined in ORS 543.655 that has applied
for a permit to appropriate water for the purpose of generating hydroelectric
power under the provisions of this chapter, or that has been accorded any right
or preference under ORS 543.260, 543.270 or 543.610. [1985 c.392 §2]
     537.283
Procedure for applications to appropriate water for hydroelectric power; rules. (1) Notwithstanding any other provision of
ORS 537.140 to 537.350, in accordance with the applicable provisions of ORS
chapter 183, the Water Resources Commission shall by rule establish a procedure
for processing applications to appropriate water for hydroelectric power under
ORS 537.140 to 537.320.
     (2) Rules adopted under subsection (1) of
this section:
     (a) To the extent possible, shall be
consistent with the process established for other applications to appropriate
water for other beneficial uses under ORS 537.140 to 537.252.
     (b) Shall not supersede any provision
pertaining to hydroelectric power established under this chapter or ORS chapter
543, to the extent such provisions are applicable to applications to
appropriate water for hydroelectric power purposes.
     (c) Need not comply with the mandatory
time limits or notice provisions established under ORS 537.140 to 537.350 if
such provisions are incompatible with the substantive requirements applicable
to applications to appropriate water for hydroelectric power purposes. [1995
c.416 §32a]
     Note: 537.283 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 537 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     537.285
Municipal applicant may develop hydroelectric project jointly with private
person; restrictions. A
municipal applicant may contract with a private person for the purpose of
generating hydroelectric power. The municipal applicant shall retain sufficient
benefit and interest in, and control of a joint project as necessary for the
project to be considered a municipal project. A municipal applicant and a
private person developing a joint project under this chapter must comply with
the rules adopted by the Water Resources Commission under ORS 537.287. [1985
c.392 §3]
     537.287
Rules for joint project of municipal applicant and private person. The Water Resources Commission shall
establish rules necessary to carry out the provisions of ORS 537.285. The rules
shall include the amount of control over and interest in a joint project a
municipal applicant must retain in order to receive the benefit of the
municipal preference and proceed under the municipal application process set
forth in this chapter. [1985 c.392 §4]
     537.289
Conditions to be imposed on permit of municipal corporation or district. (1) Whenever the Water Resources Department
issues a permit under ORS 537.211 allowing a municipal corporation or district,
as defined in ORS 543.655, to appropriate water for the purpose of generating
hydroelectric power, the department shall impose the following conditions on
the permit, in addition to any other term, limitation or condition imposed
under ORS 537.211:
     (a) That the permit may not be assigned to
any nonmunicipal entity so as to result in a loss of ownership of the permit by
a municipal corporation or district.
     (b) That the holder of the permit must
remain qualified as a municipal applicant under ORS 537.285 and 537.287. If the
municipal corporation or district proposes to generate hydroelectric power
jointly with a nonmunicipal entity, that any proposed changes in the agreement
between the municipal corporation and the nonmunicipal entity must be reviewed
by the department to determine whether the permittee remains qualified as a municipal
applicant.
     (2) If the department determines that a
permittee no longer qualifies as a municipal applicant, the department shall
notify the permittee and any nonmunicipal entity developing a project with the
permittee that the parties have 90 days to amend their joint relationship to
continue qualifying as a municipal corporation or district. [1985 c.392 §5;
1985 c.673 §186; 1995 c.416 §33]
     537.290 [Renumbered 537.340]
     537.292
Conditions to be imposed on certificate of municipal corporation or district. (1) Whenever the Water Resources Commission
issues a certificate under ORS 537.250 granting a municipal corporation or
district as defined in ORS 543.655 the right to appropriate water for the
purpose of generating hydroelectric power, the commission shall impose the
following conditions on the certificate, in addition to any other term,
limitation or condition imposed under ORS 537.250:
     (a) That the water right may not be
assigned to any nonmunicipal entity so as to result in a loss of ownership of
the certificate by the municipal corporation or district.
     (b) That the holder of the water right
certificate must remain qualified as a municipal applicant under ORS 537.285
and 537.287. If the municipal corporation or district is generating the hydroelectric
power jointly with a nonmunicipal entity, that any proposed changes in the
agreement between the municipal corporation and the nonmunicipal entity must be
reviewed by the Water Resources Commission to determine whether or not the
owner of the certificate remains qualified as a municipal applicant.
     (2) If the commission determines that an
owner of a certificate no longer qualifies as a municipal applicant, the
commission shall notify the owner of the certificate and any nonmunicipal
entity developing or operating the project jointly with the owner that the
parties have 90 days to amend their joint agreement in a manner that allows the
parties to continue to qualify as a municipal corporation or district. [1985
c.392 §6; 1985 c.673 §187]
     537.295
Cancellation of permit when holder fails to continue to qualify as municipal
applicant. (1) If the holder
of a permit to appropriate water for hydroelectric purposes under this chapter
fails, after receiving notice under ORS 537.289 (2), to amend the joint agreement
so the holder continues to qualify as a municipal applicant, or if the holder
of the permit has assigned ownership of the permit to an entity other than a
municipal corporation or district, the Water Resources Commission shall
initiate proceedings to cancel the permit.
     (2) A proceeding to cancel a permit under
subsection (1) of this section shall be conducted according to the provisions
under ORS chapter 183 for a contested case hearing. [1985 c.392 §7; 1985 c.673 §188]
     537.297
Cancellation of water right certificate when holder fails to continue to qualify
as municipal applicant. (1)
If the owner of a certificate to appropriate water for hydroelectric purposes
under this chapter fails, after receiving notice under ORS 537.289 (2), to
amend the joint agreement so the owner continues to qualify as a municipal
applicant, or if the holder of the certificate has assigned ownership of the
certificate to an entity other than a municipal corporation or district, the
Water Resources Commission shall initiate proceedings to cancel the
certificate.
     (2) A proceeding to cancel a certificate
under subsection (1) of this section shall be conducted according to the
provisions under ORS chapter 183 for a contested case hearing. [1985 c.392 §8;
1985 c.673 §189]
     537.299
Consequences of cancellation of permit or certificate if holder no longer
municipal applicant; conditions to protect public health and welfare. (1) If the Water Resources Commission
cancels a permit or certificate under ORS 537.295 or 537.297, the municipal
applicant may apply for a permit to appropriate water for hydroelectric
purposes under this chapter, or the private developer may apply for a
hydroelectric license under ORS chapter 543. However, the parties may not
jointly apply for a permit to appropriate water for hydroelectric purposes
pursuant to ORS 537.285.
     (2) When a permit or certificate is
canceled under ORS 537.295 or 537.297, the cancellation order may include such
conditions and requirements as the commission deems necessary for the public
safety and welfare, including but not limited to:
     (a) Delay of the effective date of
cancellation until such time as another entity is authorized to operate the
facility under this chapter or ORS chapter 543; or
     (b) Provision for operation of the facility
during the period between cancellation and issuance of a new permit,
certificate or license. [1985 c.392 §9; 1985 c.673 §190]
     537.300 [Subsection (2) enacted as 1961 c.187 §2;
1985 c.673 §39; renumbered 537.345 and then 537.400 in 1987]
     537.310
Acquisition of water rights for railway purposes; certificates. (1) Any corporation organized for the
construction, maintenance or operation of any railway may acquire, hold and
appropriate to its use for railway purposes any waters within the state. The appropriation
may be accomplished by the procedure provided by ORS 537.130 and 537.140 to
537.252. A railway corporation may acquire by purchase, gift or devise, or by
condemnation as provided in subsection (2) of this section, any water rights
owned by any person and the rights of other persons affected by change of place
or character of use of the water rights. Upon acquisition of the water rights
by the corporation the right shall be severed from the land of the grantor and
simultaneously transferred and become appurtenant to the operating property of
the railway corporation, without losing the priority of the water right as
originally established.
     (2) Any such corporation may condemn and
appropriate for railway operating purposes the rights of any private
appropriator of waters within the state. The right of condemnation shall be
exercised in the same manner as other property is condemned and appropriated
for railway purposes; provided, that no water right so condemned shall exceed
two cubic feet per second.
     (3) Upon satisfactory proof of the
acquisition of water rights by any such corporation through purchase, gift,
devise or condemnation, the Water Resources Commission shall issue to the
corporation a certificate of the same character as that described in ORS
539.140, which shall be recorded and transmitted to the corporation, as
provided in that section. All certificates of water rights issued before May
29, 1925, by the Board of Control or the Water Resources Director to any such
corporation shall be sufficient in law to convey to the corporation the water
rights described in the certificates, and such certificates shall be received
in evidence in all courts in this state. [Amended by 1985 c.673 §40]
     537.320
Entry on land for survey purposes, preliminary to appropriation and diversion
of waters. Any person may
enter upon any land for the purpose of locating a point of diversion of the
water intended to be appropriated, and upon any land lying between such point
and the lower terminus of the proposed ditch, canal or flume of the person, for
the purpose of examining the same and of locating and surveying the line of
such ditch, canal or flume, together with the lines of necessary distributing
ditches and feeders, and to locate and determine the site for reservoirs for
storing water.
     537.330
Disclosure required in real estate transaction involving water right;
exception; delivery of available permit, order or certificate; effect of
failure to comply. (1) In
any transaction for the conveyance of real estate that includes a water right,
the seller of the real estate shall, upon accepting an offer to purchase that
real estate, also inform the purchaser in writing whether any permit, transfer
approval order or certificate evidencing the water right is available and that
the seller will deliver any permit, transfer approval order or certificate to
the purchaser at closing, if the permit, transfer approval order or certificate
is available.
     (2) Upon closing and delivery of the
instrument of conveyance in a real estate transaction involving the transfer of
a water right, the seller shall also deliver to the purchaser evidence of any
permit, transfer approval order or certificate of water rights if the permit,
transfer approval order or certificate is available.
     (3) The failure of a seller to comply with
the provisions of this section does not invalidate an instrument of conveyance
executed in the transaction.
     (4) This section does not apply to any
transaction for the conveyance of real estate that includes a water right when
the permit, transfer approval order or certificate evidencing the water right
is held in the name of a district or corporation formed pursuant to ORS chapter
545, 547, 552, 553 or 554.
     (5) As used in this section:
     (a) “Certificate” means a certificate or
registration issued under ORS 537.250 (1), 537.585, 539.140 or 539.240.
     (b) “Permit” means a permit issued under
ORS 537.211, 537.240 or 537.625.
     (c) “Transfer approval order” means an
order of the Water Resources Commission issued under ORS 540.530. [1979 c.535 §4;
1981 c.448 §1; 1991 c.411 §1; 1995 c.274 §12; 2005 c.14 §1]
IN-STREAM
WATER RIGHTS
     537.332
Definitions for ORS 537.332 to 537.360. As used in ORS 537.332 to 537.360:
     (1) “In-stream” means within the natural
stream channel or lake bed or place where water naturally flows or occurs.
     (2) “In-stream flow” means the minimum
quantity of water necessary to support the public use requested by an agency.
     (3) “In-stream water right” means a water
right held in trust by the Water Resources Department for the benefit of the
people of the State of
     (4) “Public benefit” means a benefit that
accrues to the public at large rather than to a person, a small group of
persons or to a private enterprise.
     (5) “Public use” includes but is not
limited to:
     (a) Recreation;
     (b) Conservation, maintenance and
enhancement of aquatic and fish life, wildlife, fish and wildlife habitat and
any other ecological values;
     (c) Pollution abatement; or
     (d) Navigation. [1987 c.859 §2; 1995 c.416
§32]
     537.334
Findings. The people of the
State of
     (1) Public uses are beneficial uses.
     (2) The recognition of an in-stream water
right under ORS 537.336 to 537.348 shall not diminish the publicÂ’s rights in
the ownership and control of the waters of this state or the public trust
therein. The establishment of an in-stream water right under the provisions of
ORS 537.332 to 537.360 shall not take away or impair any permitted,
certificated or decreed right to any waters or to the use of any waters vested
prior to the date the in-stream water right is established pursuant to the
provisions of ORS 537.332 to 537.360. [1987 c.859 §3]
     537.335 [Formerly 537.280; renumbered 537.390 in
1987]
     537.336
State agencies authorized to request in-stream water rights; agreement required
when supply is stored water.
(1) The State Department of Fish and Wildlife may request the Water Resources
Commission to issue water right certificates for in-stream water rights on the
waters of this state in which there are public uses relating to the
conservation, maintenance and enhancement of aquatic and fish life, wildlife
and fish and wildlife habitat. The request shall be for the quantity of water
necessary to support those public uses as recommended by the State Department
of Fish and Wildlife.
     (2) The Department of Environmental
Quality may request the Water Resources Commission to issue water right
certificates for in-stream water rights on the waters of this state to protect
and maintain water quality standards established by the Environmental Quality
Commission under ORS 468B.048. The request shall be for the quantity of water
necessary for pollution abatement as recommended by the Department of
Environmental Quality.
     (3) The State Parks and Recreation
Department may request the Water Resources Commission to issue water right
certificates for in-stream water rights on the waters of this state in which
there are public uses relating to recreation and scenic attraction. The request
shall be for the quantity of water necessary to support those public uses as
recommended by the State Parks and Recreation Department.
     (4) Any request for an in-stream water
right to be supplied from stored water shall refer to the reservoir for a
supply of water and shall show by documentary evidence that an agreement has
been entered into with the owners of the reservoir for a sufficient interest in
the reservoir to impound enough water for the purposes set forth in the
request. [1987 c.859 §4; 1989 c.904 §68; 1995 c.673 §1]
     537.338
Rules for state agency request for in-stream water right. The Water Resources Commission by rule shall
establish standards, criteria and procedures by which a state agency included
under ORS 537.336 may request an in-stream water right to be issued under ORS
537.336. [1987 c.859 §5]
     537.340 [Formerly 537.290; renumbered 537.395 in
1987]
     537.341
Certificate for in-stream water right. Subject to the provisions of ORS 537.343, the Water Resources
Commission shall issue a certificate for an in-stream water right. The
in-stream water right shall date from the filing of the application with the
commission. The certificate shall be in the name of the Water Resources
Department as trustee for the people of the State of
     537.343
Proposed final order; conditions. (1) A proposed final order issued under ORS 537.170 (6) for an
in-stream water right certificate may include any condition the Water Resources
Director considers necessary, but which is consistent with the intent of ORS
537.332 to 537.360. The proposed final order may:
     (a) Approve the in-stream water right for
the quantity of water requested;
     (b) Approve the requested in-stream water
right for a lesser quantity of water; or
     (c) Reject the requested in-stream water
right.
     (2) If the director reduces or rejects the
in-stream water right as requested, or conditions the in-stream water right,
the director shall include a statement of findings that sets forth the basis
for the reduction, rejection or conditions. The director shall be the final
authority in determining the level of in-stream flow necessary to protect the
public use.
     (3) After the director issues a final
order approving an in-stream water right, the Water Resources Department shall
issue a certificate for an in-stream water right according to the provisions of
ORS 537.341. [1987 c.859 §7; 1995 c.416 §20]
     537.345 [Formerly 537.300; renumbered 537.400 in
1987]
     537.346
Conversion of minimum perennial streamflows to in-stream water rights; special
provisions for
     (2) The priority date for that portion of
an in-stream water right that uses the stored water component of a minimum
perennial streamflow in the
     (3) Notwithstanding the priority date
established under subsection (2) of this section, until the state enters into a
contract that meets the criteria set forth in subsection (4) of this section
with the owner of the storage facility to release the stored water for the
purpose of satisfying the in-stream water right, for that portion of an
in-stream water right in the Willamette Basin converted from the stored water
component of a minimum perennial streamflow, the department:
     (a) May not require the release of the
stored water; and
     (b) Shall not regulate the use of water to
provide water for the portion of the in-stream water right using stored water.
     (4) A contract for the release of stored
water to satisfy an in-stream water right shall:
     (a) Include as parties to the contract the
State of
     (b) Specifically allow the state to obtain
the release of stored water to satisfy an in-stream water right; and
     (c) Identify a method to determine the
specific quantity of water released from storage to satisfy the stored water
component of the in-stream water right.
     (5) If the federal government does not
release water to satisfy a stored water component of an in-stream water right
pursuant to a contract that satisfies the criteria set forth in subsection (4)
of this section, the department may not regulate the use of water by other
water right holders to satisfy the stored water component of an in-stream water
right or take any other action that impairs the rights of any person under a
valid contract for the use of the stored water. [1987 c.859 §8; 1995 c.72 §1;
1997 c.212 §3; 1999 c.59 §170; 2001 c.104 §227]
     537.348
Purchase, lease or gift of water right for conversion to in-stream water right;
priority dates. (1) Any
person may purchase or lease all or a portion of an existing water right or
accept a gift of all or a portion of an existing water right for conversion to
an in-stream water right. Any water right converted to an in-stream water right
under this section shall retain the priority date of the water right purchased,
leased or received as a gift. At the request of the person the Water Resources
Commission shall issue a new certificate for the in-stream water right showing
the original priority date of the purchased, gifted or leased water right. A
person who transfers a water right by purchase, lease or gift under this
subsection shall comply with the requirements for the transfer of a water right
under ORS 540.505 to 540.585.
     (2) Any person who has an existing water
right may lease all or a portion of the existing water right for use as an
in-stream water right for a specified period without the loss of the original
priority date. During the term of such lease, the use of the water right as an
in-stream water right shall be considered a beneficial use.
     (3) A lease of all or a portion of an
existing water right for use as an in-stream water right under subsection (2)
of this section may allow the split use of the water between the existing water
right and the in-stream right during the same water or calendar year provided:
     (a) The uses are not concurrent; and
     (b) The holders of the water rights
measure and report to the Water Resources Department the use of the existing
water right and the in-stream water right. [1987 c.859 §9; 2001 c.205 §1]
     Note: The amendments to 537.348 by section 2,
chapter 205,
     537.348. (1) Any person may purchase or lease all or
a portion of an existing water right or accept a gift of all or a portion of an
existing water right for conversion to an in-stream water right. Any water
right converted to an in-stream water right under this section shall retain the
priority date of the water right purchased, leased or received as a gift. At
the request of the person the Water Resources Commission shall issue a new
certificate for the in-stream water right showing the original priority date of
the purchased, gifted or leased water right. A person who transfers a water
right by purchase, lease or gift under this subsection shall comply with the
requirements for the transfer of a water right under ORS 540.505 to 540.585.
     (2) Any person who has an existing water
right may lease all or a portion of the existing water right for use as an
in-stream water right for a specified period without the loss of the original
priority date. During the term of such lease, the use of the water right as an
in-stream water right shall be considered a beneficial use.
     537.349
Processing request for in-stream water right. Except as provided in ORS 537.343, the Water Resources Department
shall process a request received under ORS 537.336 for a certificate for an
in-stream water right in accordance with the provisions for obtaining a permit
to appropriate water under ORS 537.140 to 537.252. [1995 c.416 §19]
     537.350
Legal status of in-stream water right. (1) After the Water Resources Commission issues a certificate for an
in-stream water right under ORS 537.341 to 537.348, the in-stream water right
shall have the same legal status as any other water right for which a
certificate has been issued.
     (2) An in-stream water right is not
subject to cancellation under ORS 537.260 or 537.410 to 537.450 but an
in-stream water right may be canceled under ORS 540.610 to 540.650. [1987 c.859
§10]
     537.352
Precedence of uses.
Notwithstanding any provision of ORS 537.332 to 537.343 and 537.350, the right
to the use of the waters of this state for a project for multipurpose storage
or municipal uses or by a municipal applicant, as defined in ORS 537.282, for a
hydroelectric project, shall take precedence over an in-stream water right when
the Water Resources Department conducts a review of the proposed project in
accordance with ORS 537.170. The precedence given under this section shall not
apply if the in-stream water right was established pursuant to ORS 537.346 or 537.348.
[1987 c.859 §11; 1995 c.416 §42]
     537.354
In-stream water right subject to emergency water shortage provisions. An in-stream water right established under
the provisions of ORS 537.332 to 537.360 shall be subject to the provisions of
ORS 536.700 to 536.780. [1987 c.859 §12]
     537.356
Request for reservation of unappropriated water for future economic
development; priority date of reservation. (1) Any local government, local watershed council or state agency or
any other individual cooperating jointly with a local government, local
watershed council or state agency may request the Water Resources Commission to
reserve unappropriated water for multipurpose storage for future economic
development.
     (2) A request under subsection (1) of this
section shall be in writing on a form provided by the Water Resources
Department. Before deciding whether to approve the request and initiate a
rulemaking process, the commission shall request comments from any local
government or watershed council within the geographic area or basin affected by
the request. The comment period shall be closed not later than 120 days after
the request is submitted.
     (3) The priority date for any reservation
established under this section shall be the date on which the commission takes
action to initiate the rulemaking process. [1987 c.859 §13; 1997 c.445 §1]
     537.358
Rules for reservation for future economic development; application for use of
reserved water. (1) In
adopting a rule under ORS 537.356 to reserve unappropriated water for multipurpose
storage for future economic development, the Water Resources Commission shall
include a public interest review that takes into consideration the factors
described under ORS 537.170.
     (2) A person requesting use of the
reserved water for new storage shall submit a water right application and
comply with the procedure set forth in ORS 537.140 to 537.252, except that the
priority date for a storage right approved for use of reserved water shall be
the date of the reservation. The commission by rule may describe a process for
ensuring that the proposed use is consistent with the requirements of the rule
establishing the reservation. [1987 c.859 §14; 1997 c.445 §2]
     537.360
Relationship between application for in-stream water right and application for
certain hydroelectric permits.
If an application is pending under this chapter for a water right permit to use
water for hydroelectric purposes or under ORS 543.010 to 543.610 for a
hydroelectric permit or license at the time the Water Resources Commission
receives an application for an in-stream water right under ORS 537.336 for the
same stream or reach of the stream, the commission shall not take any action on
the application for an in-stream water right until the commission issues a
final order approving or denying the pending hydroelectric application. [1987
c.859 §15]
MISCELLANEOUS
     537.385
Extension of irrigation season; rules; limitations. (1) Notwithstanding any condition or
limitation of a water right permit issued under ORS 537.211 or 537.625 or a
water right certificate issued under ORS 537.250, 537.630 or 539.140, upon
receipt of a request by the State Department of Agriculture, the Water
Resources Commission may, by rule, extend the irrigation season of a subbasin
beyond the period established by adjudication, by rule or by condition imposed
on a permit or certificate, if the commission finds:
     (a) Water is available during the period
of the extended irrigation season;
     (b) Water use during the extended season
would not impair in-stream flows that are necessary to protect aquatic
resources; and
     (c) Water diversion and use during the
period of the extended season would not impair the achievement or maintenance
of water quality standards as established for the water source by the
Department of Environmental Quality.
     (2) If the source of water identified in
the request is stored water and water is available from the storage source
during the period of the extended irrigation season, the commission may extend
the irrigation season as requested without making the findings required by
subsection (1) of this section. However, use of water during the extended
period shall be limited to the stored water.
     (3) In order to ensure that use of water
during an extended irrigation season does not injure existing and future water
rights, use of water during the extended period of the irrigation season shall
be subordinated to all existing and future water rights.
     (4) Use of water during the extended
irrigation season shall comply with all conditions and limitations of the
permit or certificate, including the rate, duty and place of use of the right.
     (5) Use of water shall be regulated among
irrigators for whom the season has been extended during the extended irrigation
season according to the priority date of the permit or certificate. [1995 c.356
§1; 2007 c.187 §1]
     Note: 537.385 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 537 or
any series therein by legislative action. See Preface to Oregon Revised Statutes
for further explanation.
     537.390
Valuation of water rights.
In any valuation for rate-making purposes, or in any proceeding for the
acquisition of rights to the use of water and the property used in connection
therewith, under any license or statute of the United States or under the laws
of Oregon, no value shall be recognized or allowed for such rights in excess of
the actual cost to the owner of perfecting them in accordance with the
provisions of the Water Rights Act. [Formerly 537.280; and then 537.335]
     537.395
Public recapture of water power rights and properties; no recapture of other
rights. (1) Any certificate
issued for power purposes to a person other than the United States, or the
State of Oregon or any municipality thereof, shall provide that after the
expiration of 50 years from the granting of the certificate or at the
expiration of any federal power license, and after not less than two yearsÂ’
notice in writing to the holder of the certificate, the State of Oregon, or any
municipality thereof, may take over the dams, plants and other structures, and
all appurtenances thereto, which have been constructed for the purpose of
devoting to beneficial use the water rights specified in the certificate. The
taking over shall be upon condition that before taking possession the state or
municipality shall pay not to exceed the fair value of the property taken, plus
such reasonable damages, if any, to valuable, serviceable and dependent
property of the holder of the certificate, not taken over, as may be caused by
the severance therefrom of the property taken.
     (2) The fair value of the property taken
and the severance damages, if any, shall be determined by agreement between the
holder of the certificate and the state or municipality, or, in case they
cannot agree, by proceedings in equity instituted by the state or municipality
in the circuit court of the county in which the largest portion of the property
is located.
     (3) The right of the state or any
municipality to take over, maintain and operate any property which has devoted
to beneficial use water rights specified in the certificate, by condemnation
proceedings upon payment of just compensation, is expressly reserved.
     (4) The provision for the recapture of any
rights other than for power purposes, as provided in this section, contained in
any certificate issued before June 14, 1939, shall be of no force and effect
and may be canceled from the records wherever recorded and a new certificate
issued with the recapture clause eliminated.
     (5) The owner of any certificate issued
before June 14, 1939, for such rights may, upon surrendering the certificate,
receive a new certificate therefor issued under and subject to the provisions
of this section. [Formerly 537.290; and then 537.340]
PONDS AND
RESERVOIRS
     537.400
Reservoir permits. (1) All
applications for reservoir permits shall be subject to the provisions of ORS
537.130, 537.140, 537.142 and 537.145 to 537.240, except that an enumeration of
any lands proposed to be irrigated under the Water Rights Act shall not be
required in the primary permit. But the party proposing to apply to a
beneficial use the water stored in any such reservoir shall file an application
for permit, to be known as the secondary permit, in compliance with the
provisions of ORS 537.130, 537.140, 537.142 and 537.145 to 537.240. The
application shall refer to the reservoir for a supply of water and shall show
by documentary evidence that an agreement has been entered into with the owners
of the reservoir for a sufficient interest in the reservoir to impound enough
water for the purposes set forth in the application, that the applicant has
provided notice of the application to the operator of the reservoir and, if
applicable, that an agreement has been entered into with the entity delivering
the stored water. When beneficial use has been completed and perfected under
the secondary permit, the Water Resources Department shall take the proof of
the water user under the permit. The final certificate of appropriation shall
refer to both the ditch described in the secondary permit and the reservoir
described in the primary permit.
     (2) Whenever application is made for
permit to store water in a reservoir or pond for any beneficial use which does
not contemplate future diversion of the stored water except by livestock
drinking from stock water ponds, the extent of utilization thereof may be
included in the reservoir permit and no secondary permit shall be required.
However, in cases where water from a stream is required to maintain a reservoir
or pond by replacing evaporation and seepage losses, or is required to maintain
suitable fresh water conditions for the proposed use and to prevent stagnation,
the applicant for permit to store water in such reservoir or pond shall also
file an application for permit to appropriate the waters of the stream.
     (3) An application submitted to construct
a reservoir storing less than 9.2 acre-feet of water or with a dam less than 10
feet in height need not be accompanied by a map prepared by a water right examiner
certified under ORS 537.798 as required by ORS 537.140 (4). The map submitted
with the application shall comply with standards established by the Water
Resources Commission. The survey required under ORS 537.230 shall be prepared
by a water right examiner certified under ORS 537.798 and shall be submitted to
the department before the department issues the water right certificate.
     (4) If a dam safety review is required
under ORS 540.350, the department may issue a final order approving an
application on the basis of preliminary plans, specifications and supporting
information if the approval includes a condition requiring the commissionÂ’s
approval of final plans, specifications and supporting information under ORS
540.350 before the permit is issued.
     (5) Notwithstanding the provisions of ORS
537.211 (2), the department may approve an application for a reservoir permit
for which a dam safety review is required under ORS 540.350 and issue a permit,
subject to the condition that before the reservoir may be filled, the permittee
shall submit to the department evidence that the permittee owns, or has written
authorization or an easement permitting access to, all lands to be inundated by
the reservoir. [Formerly 537.300; and then 537.345; 1993 c.557 §3; 1993 c.595 §9;
1995 c.365 §6; 2005 c.37 §3]
     537.405
Exempt reservoirs; written notification to department; injury to other users. (1) Reservoirs in existence on or before
January 1, 1995, that store less than 9.2 acre-feet of water or with a dam or
impoundment structure less than 10 feet in height, are found to be a beneficial
use of the water resources of this state. Except as provided in subsection (4)
of this section, such reservoirs are exempt from regulation by the Water
Resources Commission and the Water Resources Department and are not required to
obtain a permit or certificate under ORS 537.140 to 537.252.
     (2)(a) On or before January 31, 1997, an
owner of a reservoir constructed before January 1, 1995, shall provide written
notification to the department of the existence of the exempt reservoir. The
written notification shall include the quantity of water stored by the
reservoir, the source of the water used to fill the reservoir and a map or
drawing of sufficient quality and scale to establish the general location of
the reservoir by tax lot, township, range and section and to the nearest
quarter-quarter section.
     (b) Any person who submitted a notice of
exemption for a reservoir under ORS 537.141 and qualified for the exemption
shall be allowed an exemption.
     (3) Within 90 days after receiving written
notification under subsection (2) of this section, the department shall provide
notice of the exemption in the manner the department determines to be the most
appropriate.
     (4) Detailed, legally obtained information
demonstrating that a specific reservoir exempt under subsection (1) of this
section should not be exempt shall be submitted in writing to the department on
or before August 1, 1997:
     (a) By the State Department of Fish and
Wildlife if the reservoir should not be exempt because the existing reservoir,
including any impoundment structure, poses a significant detrimental impact to
existing fishery resources; or
     (b) By any person if the existing
reservoir should not be exempt because the existing reservoir, including the
storage or use of the water, results in injury to an existing water right.
     (5) Within 180 days after the department
receives information under subsection (4) of this section, the Water Resources
Director shall determine whether the reservoir results in injury to an existing
water right or poses a significant detrimental impact to existing fishery
resources. The determination of injury to an existing water right or impact to
existing fishery resources shall be based on verifiable evidence.
     (6) If the director determines that an
existing reservoir does not injure an existing water right or pose a
significant detrimental impact to existing fishery resources, the reservoir
shall be exempt under subsection (1) of this section.
     (7) If the director determines that an
existing reservoir results in injury to an existing water right or poses a
significant detrimental impact to existing fishery resources, the director
shall require the owner of the reservoir to take appropriate action to mitigate
injury to existing water rights or impact to the existing fishery resources.
     (8) If the director fails to act under
subsection (6) or (7) of this section within 180 days after receiving the
information under subsection (4) of this section, the reservoir shall be
considered exempt.
     (9) Nothing in this section shall be
construed to allow any owner of a reservoir exempt under this section to
increase the quantity of water stored in or diverted from such reservoir on or
before January 1, 1995. [1995 c.752 §2]
     537.407
Water right certificate for reservoirs existing before January 1, 1993; injury
to other users; conversion of prior application to notice of exemption. (1) The Water Resources Department shall
issue a water right certificate to any person who submitted an application for
a reservoir under section 4, chapter 595, Oregon Laws 1993.
     (2) Within 90 days after issuing a
certificate under subsection (1) of this section, the department shall provide
notice of the certificate in the manner the department determines to be the
most appropriate.
     (3) Detailed, legally obtained information
demonstrating that a specific reservoir granted a certificate under subsection
(1) of this section should not be certificated shall be submitted in writing to
the department on or before August 1, 1997:
     (a) By the State Department of Fish and
Wildlife if the reservoir should not be exempt because the existing reservoir,
including any impoundment structure, poses a significant detrimental impact to
existing fishery resources; or
     (b) By any person if the existing
reservoir should not be exempt because the existing reservoir, including the
storage or use of the water, results in injury to an existing water right.
     (4) Within 180 days after the department
receives information under subsection (3) of this section, the Water Resources
Director shall determine whether the reservoir results in injury to an existing
water right or poses a significant detrimental impact to existing fishery
resources. The determination of injury to an existing water right or impact to
existing fishery resources shall be based on verifiable evidence.
     (5) If the director determines that an
existing reservoir does not injure an existing water right or pose a
significant detrimental impact to existing fishery resources, the certificate
for the reservoir shall continue with the same terms and conditions included
with the certificate under subsection (1) of this section.
     (6) If the director determines that an
existing reservoir results in injury to an existing water right or poses a
significant detrimental impact to existing fishery resources, the director
shall require the owner of the reservoir to take appropriate action to mitigate
injury to existing water rights or impact to the existing fishery resources.
     (7) If the director fails to act under
subsection (5) or (6) of this section within 180 days after receiving the
information under subsection (3) of this section, the certificate shall
continue with the same terms and conditions included with the certificate.
     (8) Nothing in this section shall be
construed to allow any owner of a reservoir certificated under this section to
increase the quantity of water stored in or diverted from such reservoir on or
before January 1, 1995.
     (9) Any person who submitted an
application for a reservoir under section 4, chapter 595, Oregon Laws 1993, may
submit a written request to the department to convert the application to a
notice of exemption under ORS 537.405. Upon receipt of a request under this
subsection, the department shall refund all fees and convert the application to
a notice of exemption. [1995 c.752 §3]
     537.409
Alternate permit application process for qualifying reservoirs; injury to
existing users or fishery resources; public interest review; rules. (1) In lieu of the process set forth in ORS
537.140 to 537.211 for applying for a water right permit, an owner of a
reservoir may submit an application to the Water Resources Department to issue
a water right permit under ORS 537.211 or a certificate under ORS 537.250
according to the process set forth in this section if the reservoir:
     (a) Has a storage capacity of less than
9.2 acre-feet or a dam or impoundment structure less than 10 feet in height;
     (b) Does not injure any existing water
right;
     (c) Does not pose a significant
detrimental impact to existing fishery resources as determined on the basis of
information submitted by the State Department of Fish and Wildlife; and
     (d) Is not prohibited under ORS 390.835.
     (2) An application for a water right permit
for a reservoir under subsection (1) of this section shall provide sufficient
information to demonstrate compliance with the criteria set forth in subsection
(1) of this section. The application shall:
     (a) Include the quantity of water to be
stored by the reservoir, a map indicating the location of the reservoir and the
source of the water used to fill the reservoir; and
     (b) Be accompanied by the fee established
in ORS 536.050 (1)(q).
     (3) The map required under subsection (2)
of this section need not be prepared by a water right examiner certified under
ORS 537.798. The map submitted with the application shall comply with standards
established by the Water Resources Commission.
     (4) Within 60 days after receiving an
application under subsection (1) of this section, the Water Resources
Department shall provide public notice of the application in the manner the
department determines to be the most appropriate.
     (5) Within 60 days after the department
provides public notice under subsection (4) of this section, any person may
submit detailed, legally obtained information in writing, requesting the
department to deny the application for a permit on the basis that the
reservoir:
     (a) Would result in injury to an existing
water right; or
     (b) Would pose a significant detrimental
impact to existing fishery resources.
     (6) In accordance with rules established
by the Water Resources Commission for an expedited public interest review
process for applications submitted under this section or in response to a
request under subsection (5) of this section, the department shall conduct a
public interest review of the reservoir application. The review shall be
limited to issues pertaining to:
     (a) Water availability;
     (b) Potential detrimental impact to
existing fishery resources; and
     (c) Potential injury to existing water
rights.
     (7) Within 180 days after the department
receives an application for a permit under subsection (1) of this section, the
department shall issue a final order granting or denying the permit or granting
the permit with conditions.
     (8) If the department issues an order
under subsection (7) of this section denying the permit, the applicant may
request a contested case hearing, which shall be conducted in accordance with
applicable provisions of ORS chapter 183.
     (9) If the department does not find injury
or impact under subsection (6) of this section and the department issues a
final order under subsection (7) of this section allowing the issuance of a
permit, the order shall be subject to judicial review of orders in other than
contested cases as provided in ORS chapter 183.
     (10) Notwithstanding the requirement for a
survey under ORS 537.230 (4), a survey of the appropriation is not required for
a reservoir that has a storage capacity of less than 9.2 acre-feet of water.
For a reservoir qualifying under this subsection, a permittee shall submit to
the department a claim of beneficial use within one year after the date of
completion of construction. A claim of beneficial use for a reservoir qualifying
under this subsection shall require only a written affidavit signed by the
permittee that includes the following:
     (a) The dimensions of the reservoir.
     (b) The maximum capacity of the reservoir
in acre-feet.
     (c) A map identifying the location of the
reservoir. The map shall comply with standards established by the Water
Resources Commission. The map required under this subsection need not be
prepared by a water right examiner certified under ORS 537.798.
     (11) Any person applying for a secondary
permit for the use of stored water from a reservoir qualifying under subsection
(10) of this section shall submit a survey prepared by a water right examiner
certified under ORS 537.798. The survey required under this subsection shall
apply to the storage reservoir and to the secondary use of the water in the
reservoir. [1995 c.752 §4; 1997 c.446 §5; 1997 c.502 §2; 1997 c.587 §7; 2005
c.410 §4]
CANCELLATION
OF PERMIT FOR APPROPRIATION
     537.410
Failure to commence or complete work, or to properly apply water, as grounds
for cancellation of permit; irrigation districts, municipalities and public
utilities excepted. (1)
Whenever the owner of a permit to appropriate the public waters of Oregon fails
to commence actual construction work within the time required by law, or having
commenced construction work as required by law, fails or neglects to prosecute
the construction work with reasonable diligence, or fails to complete the
construction work within the time required by law, or as fixed in the permit,
or within such further time as may be allowed under ORS 537.230, or having
completed construction work, fails or neglects to apply the water to beneficial
use within the time fixed in the permit, the Water Resources Commission may
cancel the permit on the records in the Water Resources Department as provided
in ORS 537.410 to 537.450.
     (2) However, permits issued by the
commission to irrigation districts for reclamation purposes under the
irrigation district laws of this state, to municipal corporations for municipal
uses or purposes or to public utilities complying with subsection (3) of this
section for an energy facility granted a site certificate by the Energy
Facility Siting Council, are not subject to cancellation under the provisions
of ORS 537.410 to 537.450.
     (3) For a public utility to qualify under
subsection (2) of this section:
     (a) The energy facility of the public
utility must not be a facility required to be licensed under ORS chapter 543;
and
     (b) The public utility must supply
information every two years that demonstrates to the satisfaction of the
commission that the conditions in the site certificate issued by the Energy
Facility Siting Council contemplate the future use of the remaining portion of
the water applied for in the original permit application. [Amended by 1985
c.673 §41; 1995 c.372 §1]
     537.420
Notice of hearing. Whenever
a permit holder fails to comply with the laws of the state and the requirements
of the permit as to the commencement of work with due diligence, completion of
the work of construction or the application of the water for a beneficial use,
and the permit is subject to cancellation as provided in ORS 537.410 to
537.450, the Water Resources Commission shall, not less than 30 nor more than
60 days prior to the hearing provided for in ORS 537.445, notify each person
who, according to Water Resources Department records, is the holder of a water
right permit or certificate whose right may be injured by the proposed
cancellation. The notice shall require the holder of the permit to appear
before the commission at the time and place designated in the notice, and show
cause why the permit described in the notice should not be canceled for the
reasons therein specified. The notice shall contain a brief statement of the
grounds for cancellation and shall be served in accordance with ORS 183.415. [Amended
by 1983 c.740 §212; 1985 c.673 §42; 1991 c.103 §1]
     537.430 [Repealed by 1971 c.734 §21]
     537.440
Cancellation of permit; priorities of other permits. If the decision of the Water Resources
Commission requires the cancellation of a permit, then the commission shall at
once cancel, or have canceled, the permit. Thereafter the permit shall be of no
further force or effect, and shall not be recognized or admitted as evidence of
any right or interest in or to the waters covered by it in any proceeding in
the courts or before other tribunals of the state. Permits having subsequent
priority shall upon such cancellation have priority in the order of the filing
of the applications upon which subsequent permits are based, as if the canceled
permit, or the application upon which it was based, had never existed. [Amended
by 1985 c.673 §43]
     537.445
Hearing upon proposal to cancel permit or appropriation; cancellation suspended
pending review. (1) If the
Water Resources Commission proposes to cancel a permit or appropriation under
ORS 537.410 to 537.450, opportunity for hearing shall be accorded as provided
in ORS chapter 183.
     (2) If a petition for review of an order
canceling a permit or appropriation is filed under ORS 536.075, the commission
shall not cancel the permit or appropriation under ORS 537.440 until the
petitionerÂ’s right of review is exhausted and the order is finally approved. [1971
c.734 §82; 1985 c.673 §44]
     537.450
Rules for proof as to work and use of water under permits; noncompliance as
evidence in cancellation proceedings. The Water Resources Commission may by rule provide that the owners of
permits shall submit or furnish proofs of commencement of work, prosecution of
work with due diligence, completion of work, and of the application of water to
a beneficial use under the permits. Failure to comply with the commissionÂ’s
rules in respect to the proofs shall be considered prima facie evidence of
failure to commence work, prosecute work with due diligence, complete work, or
apply water to the beneficial use contemplated by the permit in proceedings
under ORS 537.410 to 537.440 for the cancellation of permits. [Amended by 1985
c.673 §45]
CONSERVATION
AND USE OF CONSERVED WATER
     537.455
Definitions for ORS 537.455 to 537.500 and 540.510. As used in ORS 537.455 to 537.500 and
540.510:
     (1) “Conservation” means the reduction of
the amount of water diverted to satisfy an existing beneficial use achieved
either by improving the technology or method for diverting, transporting,
applying or recovering the water or by implementing other approved conservation
measures.
     (2) “Conserved water” means that amount of
water that results from conservation measures, measured as the difference
between:
     (a) The smaller of the amount stated on
the water right or the maximum amount of water that can be diverted using the
existing facilities; and
     (b) The amount of water needed after
implementation of conservation measures to meet the beneficial use under the
water right certificate. [1987 c.264 §1; 1993 c.641 §1]
     Note: 537.455 to 537.500 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
537 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     537.460
Legislative findings; policy.
(1) The Legislative Assembly finds and declares that conservation and efficient
utilization of water benefits all water users, provides water to satisfy
current and future needs through reduction of consumptive waste, improves water
quality by reducing contaminated return flow, prevents erosion and allows
increased in-stream flow.
     (2) It is therefore declared to be the
policy of the State of
     (a) Aggressively promote conservation;
     (b) Encourage the highest and best use of
water by allowing the sale or lease of the right to the use of conserved water;
and
     (c) Encourage local cooperation and
coordination in development of conservation projects to provide incentives for
increased efficiency and to improve streamflows.
     (3) As used in this section, “efficient
utilization” means use without waste, upgrading of irrigation equipment to
comply with modern practices within a reasonable time period or other methods
used to meet both current and future water needs at the least cost. [1987 c.264
§2; 1993 c.641 §2; 2003 c.93 §1; 2005 c.22 §379]
     Note: See note under 537.455.
     537.463
Applicability of ORS 537.455 to 537.500. The provisions of ORS 537.455 to 537.500 establish a voluntary program
and apply only to those persons who choose to apply for an allocation of
conserved water under ORS 537.465. [1993 c.641 §11; 2003 c.93 §2]
     Note: See note under 537.455.
     537.465
Application for allocation of conserved water; submission; required contents. (1) Any person or group of persons holding a
water use subject to transfer as defined in ORS 540.505 may submit an
application to the Water Resources Commission for approval of an allocation of
conserved water for a measure that:
     (a) The person or group of persons intends
to implement; or
     (b) Was implemented by the person or group
of persons within five years prior to the submission of the application.
     (2) An application submitted under
subsection (1)(a) of this section shall include:
     (a) A description of the proposed
measures;
     (b) A description of the existing
diversion facilities and an estimate of the amount of water that can be
diverted at the facilities;
     (c) The amount of water that will be
needed to supply existing rights after implementation of the conservation
measures;
     (d) The amount of conserved water expected
from implementation of the conservation measures;
     (e) The proposed allocation and use of the
conserved water if different from the allocation specified in ORS 537.470;
     (f) The intended use of any water
allocated to the applicant;
     (g) The applicant’s choice of priority
date for the conserved water; and
     (h) Any other information the commission
considers necessary to evaluate the effectiveness of the proposal.
     (3) An application under subsection (1)(b)
of this section shall include:
     (a) A description of the measure as
implemented and the date on which the measure was implemented;
     (b) A description of the diversion
facilities before the conservation measure was implemented and the amount of
water that was diverted at the facilities before the conservation measure was
implemented;
     (c) The amount of water needed to supply
existing rights after implementation of the conservation measure;
     (d) The amount of water conserved by
implementing the conservation measure;
     (e) The proposed allocation and use of the
conserved water if different from the allocation specified in ORS 537.470;
     (f) The intended use of any water
allocated to the applicant;
     (g) The applicant’s choice of priority
date for the conserved water;
     (h) Evidence that the measure was
implemented within five years prior to the date of filing the application; and
     (i) Any other information the commission
considers necessary to evaluate the application.
     (4) If a person proposes conservation
measures within the boundaries of an irrigation district organized under ORS
chapter 545 or a water control district organized under ORS chapter 553, at the
time the person submits the application, the person also must submit evidence
that the district has approved the conservation application. [1987 c.264 §3;
1993 c.641 §3; 1995 c.274 §10; 2003 c.93 §3]
     Note: See note under 537.455.
     537.470
Allocation of conserved water by commission; criteria; percentage to state;
certificates showing change in original water right. (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).
     (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. [1987 c.264 §4; 1989 c.62 §1; 1993 c.641 §4; 1995 c.274 §13;
1999 c.664 §7; 2003 c.93 §4]
     Note: See note under 537.455.
     537.475 [1987 c.264 §5; repealed by 1993 c.641 §13]
     537.480
Rules; criteria for evaluating allocation and determining mitigation required. The Water Resources Commission shall adopt
rules and standards necessary to carry out the provisions of ORS 537.455 to
537.500. The rules may include formulas or other criteria for evaluating the
effects of allocation of water on existing rights and for determining whether,
and to what extent, mitigation shall be required. [1987 c.264 §6; 1993 c.641 §5]
     Note: See note under 537.455.
     537.485
Priority of right to use conserved water; choice of priority. (1) Notwithstanding any other provision of
ORS chapter 536, 537, 538, 539, 540, 541, 542 or 543, the priority of any right
to the use of conserved water, including an in-stream water right, under an
application submitted and approved by the Water Resources Commission under ORS
537.465 and 537.470 shall be either the same as or one minute after the
priority of the water right held by the person implementing the conservation
measures.
     (2) A person who implements a conservation
measure may choose the priority of the water right for the conserved water in
accordance with subsection (1) of this section. However, the priority date
chosen must be the same for the portion of water allocated to the applicant and
the portion of water allocated to the state. [1987 c.264 §7; 1993 c.641 §6;
2003 c.93 §5]
     Note: See note under 537.455.
     537.490
Use of conserved water; notice of dispensation of right to use. (1) Any person or agency allocated conserved
water under ORS 537.470 may reserve the water in stream for future
out-of-stream use or otherwise use or dispose of the conserved water. Any person
or agency to whom conserved water is allocated shall notify the commission of
the dispensation of the right to the use of conserved water. The notice shall
include:
     (a) The name and address of the person
buying or leasing the right to the use of conserved water;
     (b) The use to which the conserved water
is to be put; and
     (c) The terms of any agreement between the
appropriator and the person using the conserved water.
     (2) Notwithstanding any other provision of
law, a person who holds a water right permit or certificate having a subsequent
priority to a certificate issued under ORS 537.470 may not acquire a vested
right to any water or return flow of water that results from either the lease
of the right to the use of conserved water or the reservation of conserved
water in stream for future use under subsection (1) of this section.
     (3) Any right to the use of conserved
water sold under subsection (1) of this section:
     (a) Shall become appurtenant to the
premises upon which the purchaser uses the water; and
     (b) Shall be subject to the provisions of
ORS 540.505 to 540.585 and 540.610 to 540.650.
     (4) When the commission receives notice of
the sale of the right to the use of conserved water under subsection (1) of
this section, the commission shall issue to the purchaser a new water right
certificate covering the right to the use of conserved water that was sold. The
certificate shall indicate the priority of the water right according to the
provisions of ORS 537.485. [1987 c.264 §8; 1993 c.641 §7]
     Note: See note under 537.455.
     537.495
Receipt by state agency or political subdivision of right to use conserved
water. Any agency or
political subdivision of this state may purchase a right to the use of
conserved water, as defined under ORS 537.455, or accept a gift of a right to
the use of conserved water as defined under ORS 537.455. If an agency or
political subdivision requests that the conserved water remain in the stream,
the commission shall manage the water in a manner that results in the conserved
water remaining in the stream. [1987 c.264 §9; 1993 c.641 §8]
     Note: See note under 537.455.
     537.500
Legal status of conserved water right. (1) A water right for conserved water under ORS 537.455 to 537.500 and
540.510 shall have the same legal status as any other water right for which a
certificate has been issued.
     (2) A water right for conserved water that
is reserved in stream for future out-of-stream use under ORS 537.490 or that
the commission manages under ORS 537.495 is not subject to cancellation under
ORS 537.260 or 537.410 to 537.450 or to abandonment or forfeiture under ORS
540.610 to 540.650. [1987 c.264 §10; 1989 c.699 §3]
     Note: See note under 537.455.
GROUND WATER
(Generally)
     537.505
Short title. ORS 537.505 to
537.795 and 537.992 shall be known as the “Ground Water Act of 1955.” [1955
c.708 §1; 1963 c.293 §1]
     537.510 [Repealed by 1955 c.708 §38]
     537.515
Definitions for ORS 537.505 to 537.795 and 537.992. As used in ORS 537.505 to 537.795 and
537.992, unless the context requires otherwise:
     (1) “Altering” a well means the deepening,
recasing, perforating, reperforating, the installation of packers or seals and
other material changes in the design of the well.
     (2) “Constructing” a well includes boring,
digging, drilling or excavating and installing casing or well screens.
     (3) “Converting” a well means changing the
use of an existing well or hole not previously used to withdraw water such that
the well or hole can be used to seek or withdraw water.
     (4) “Geothermal fluid” means any ground
water used for its thermal characteristics that is encountered in a well with a
bottom hole temperature of less than 250 degrees Fahrenheit or any other fluid
that is circulated within a well with a bottom hole temperature of less than
250 degrees Fahrenheit and used for its acquired thermal characteristics.
     (5) “Ground water” means any water, except
capillary moisture, beneath the land surface or beneath the bed of any stream,
lake, reservoir or other body of surface water within the boundaries of this
state, whatever may be the geological formation or structure in which such
water stands, flows, percolates or otherwise moves.
     (6) “Ground water reservoir” means a
designated body of standing or moving ground water having exterior boundaries
which may be ascertained or reasonably inferred.
     (7) “Pollution” of ground water means any
impairment of the natural quality of such ground water, however caused,
including impairment by salines, minerals, industrial wastes, domestic wastes
or sewage, whether indrafted directly or through infiltration into the ground
water supply.
     (8) “Public agency” means the United
States or any agency thereof, the State of Oregon or any agency thereof or any
county, city, district organized for public purposes or other public corporation
or political subdivision of this state.
     (9) “Well” means any artificial opening or
artificially altered natural opening, however made, by which ground water is
sought or through which ground water flows under natural pressure or is
artificially withdrawn. “Well” does not include a temporary hole drilled for
the purpose of gathering geotechnical ground water quality or ground water
level information, a natural spring or a hole drilled for the purpose of:
     (a) Prospecting, exploration or production
of oil or gas;
     (b) Prospecting or exploration for
geothermal resources, as defined in ORS 522.005;
     (c) Production of geothermal resources, as
defined in ORS 522.005, derived from a depth of greater than 2,000 feet; or
     (d) Exploration for minerals as defined in
ORS 517.750 and 517.910.
     (10) “Well drilling machine” means any
power driven percussion, rotary, boring, digging or augering machine used in
the construction of water wells. [1959 c.708 §3; 1961 c.334 §6; 1975 c.552 §35;
1989 c.201 §1; 1989 c.939 §1; 1991 c.200 §1; 1995 c.79 §302; 1999 c.293 §1]
     537.520 [Repealed by 1955 c.708 §38]
     537.525
Policy. The Legislative
Assembly recognizes, declares and finds that the right to reasonable control of
all water within this state from all sources of water supply belongs to the
public, and that in order to insure the preservation of the public welfare,
safety and health it is necessary that:
     (1) Provision be made for the final
determination of relative rights to appropriate ground water everywhere within
this state and of other matters with regard thereto through a system of
registration, permits and adjudication.
     (2) Rights to appropriate ground water and
priority thereof be acknowledged and protected, except when, under certain
conditions, the public welfare, safety and health require otherwise.
     (3) Beneficial use without waste, within
the capacity of available sources, be the basis, measure and extent of the
right to appropriate ground water.
     (4) All claims to rights to appropriate
ground water be made a matter of public record.
     (5) Adequate and safe supplies of ground
water for human consumption be assured, while conserving maximum supplies of
ground water for agricultural, commercial, industrial, thermal, recreational
and other beneficial uses.
     (6) The location, extent, capacity,
quality and other characteristics of particular sources of ground water be
determined.
     (7) Reasonably stable ground water levels
be determined and maintained.
     (8) Depletion of ground water supplies
below economic levels, impairment of natural quality of ground water by
pollution and wasteful practices in connection with ground water be prevented
or controlled within practicable limits.
     (9) Whenever wasteful use of ground water,
impairment of or interference with existing rights to appropriate surface
water, declining ground water levels, alteration of ground water temperatures
that may adversely affect priorities or impair the long-term stability of the
thermal properties of the ground water, interference among wells, thermal
interference among wells, overdrawing of ground water supplies or pollution of
ground water exists or impends, controlled use of the ground water concerned be
authorized and imposed under voluntary joint action by the Water Resources
Commission and the ground water users concerned whenever possible, but by the
commission under the police power of the state except as specified in ORS
537.796, when such voluntary joint action is not taken or is ineffective.
     (10) Location, construction, depth,
capacity, yield and other characteristics of and matters in connection with
wells be controlled in accordance with the purposes set forth in this section.
     (11) All activities in the state that
affect the quality or quantity of ground water shall be consistent with the
goal set forth in ORS 468B.155. [1955 c.708 §2; 1985 c.673 §46; 1989 c.201 §2;
1989 c.833 §56]
     537.530 [Repealed by 1955 c.708 §38]
(Aquifer
Storage and Recovery)
     537.531
Legislative findings. The
Legislative Assembly declares that aquifer storage and recovery is a beneficial
use inherent in all water rights for other beneficial uses. Aquifer storage and
recovery is the storage of water from a separate source that meets drinking
water standards in a suitable aquifer for later recovery and not having as one
of its primary purposes the restoration of an aquifer. [1995 c.487 §2]
     537.532
Injection of ground water into aquifers; standards. (1) Notwithstanding any other provision of
law, the injection into aquifers of water that complies with drinking water
standards established by the Department of Human Services under ORS 448.273
under an aquifer storage and recovery limited license or permit:
     (a) Shall not be considered a waste,
contaminant or pollutant;
     (b) Shall be exempt from the requirement
to obtain a discharge permit under ORS 468B.050 or 468B.053 or a concentration
limit variance from the Department of Environmental Quality;
     (c) Shall comply with all other applicable
local, state or federal laws; and
     (d) May be located within or outside an urban
growth boundary in conformance with land use laws.
     (2) In order to continue to protect the
high quality of
     (3) Except as otherwise provided, if the
injection source water contains constituents regulated under ORS 448.273 or
468B.165 that are detected at greater than 50 percent of the established
levels, the aquifer storage and recovery limited license or permit may require
the permittee to employ, or continue the employment of, technically feasible,
practical and cost-effective methods to minimize concentrations of such
constituents in the injection source water. Constituents that have a secondary
maximum contaminant level or constituents that are associated with disinfection
of the water may be injected into the aquifer up to the standards established
under ORS 448.273.
     (4) The Water Resources Department may,
based upon valid scientific data, further limit certain constituents in the
injection source water if the department finds the constituents will interfere
with or pose a threat to the maintenance of the water resources of the state
for present or future beneficial uses. [1995 c.487 §3; 1997 c.286 §9]
     537.534
Rules for permitting and administering aquifer storage and recovery projects;
limited license for test program; fees. (1) In accordance with this section, the Water Resources Commission
shall establish rules for the permitting and administration of aquifer storage
and recovery projects. The rules shall establish the Water Resources Department
as the sole permitting agency for the projects, but the Department of
Environmental Quality and the Department of Human Services may comment on
permits for a project and recommend conditions to be included on the permit.
When necessary, the applicant also shall obtain land use and development
approval from a local government.
     (2) Notwithstanding the provisions of ORS
537.130, the Water Resources Commission shall establish by rule a procedure to
allow a person to obtain a limited license to store and use water injected into
an underground aquifer for aquifer storage and recovery testing purposes for a
short term or fixed duration after the person complies with the notice
provision set forth in ORS 537.144. The rules shall provide a 30-day public
comment period before issuance of a limited license. The Water Resources
Department may attach conditions to the limited license regarding monitoring,
sampling and rates of recovery up to 100 percent of the injection quantity.
Aquifer storage and recovery under a limited license may be conditioned by the
Water Resources Department to protect existing ground water rights that rely
upon the receiving aquifer and the injection source water. The Water Resources
Department may revoke or modify the limited license to use the stored water
acquired under a limited license if that use causes injury to any other water
right or to a minimum perennial streamflow. The Water Resources Director may
issue a limited license for aquifer storage and recovery purposes for a term of
not more than five years. The license may be renewed if the applicant
demonstrates further testing is necessary.
     (3) To obtain a limited license for
aquifer storage and recovery, the applicant shall provide to the Water
Resources Department:
     (a) Well construction information;
     (b) Test results of the quality of the
injection source water;
     (c) Test results of the quality of the
receiving aquifer water;
     (d) The proposed injected water storage
time, recovery rates and recovery schedule;
     (e) Preliminary hydrogeologic information
including a description of the aquifer, estimated flow direction and rate of
movement, allocation of surface water, springs or wells within the area
affected by aquifer storage and recovery wells;
     (f) The fee established by rule by the
commission pursuant to ORS 536.050 (1)(L); and
     (g) Any other information required by rule
of the commission.
     (4) Only after completion of a test
program under a limited license issued under subsection (3) of this section may
the applicant apply for a permanent aquifer storage and recovery permit. Each
application for an aquifer storage and recovery permit shall be accompanied by
the fee set forth in ORS 536.050 for examination of an application for a permit
to store water. The Water Resources Department shall be the sole permitting
agency for the project and may place conditions on the permit consistent with
rules adopted by the commission, but the Department of Environmental Quality
and the Department of Human Services may review, comment on and recommend
conditions to be included on the permit. When necessary, the applicant shall
obtain land use and development approval from a local government. Where
existing water rights for the injection source water have been issued, the Water
Resources Department shall receive comments from interested parties or
agencies, but the public interest review standards shall apply only to the
matters raised by the aquifer storage and recovery permit application in the
same manner as any new water right application, not to the underlying water
rights. If new water rights for injection source water and aquifer storage and
recovery are necessary, then the public interest review standards shall apply
to the new permit application in the same manner as any new water right
application. The Water Resources Director may refer policy matters to the
commission for decision.
     (5) The commission shall adopt rules
consistent with this section to implement an aquifer storage and recovery
program. The rules shall include:
     (a) Requirements for reporting and
monitoring the aquifer storage and recovery project aquifer impacts and for
constituents reasonably expected to be found in the injection source water.
     (b) Provisions that allow any person
operating an aquifer storage and recovery project under a permit, upon approval
by the Water Resources Department, to recover up to 100 percent of the water
stored in the aquifer storage facility if valid scientific data gathered during
operations under the limited license or permit demonstrate that the injected
source water is not lost through migration or other means and that ground water
otherwise present in the aquifer has not been irretrievably lost as a result of
aquifer storage or retrieval. The Water Resources Department may place such
other conditions on withdrawal of stored water necessary to protect the public
health and environment, including conditions allowing reconsideration of the
permit to comply with ORS 537.532.
     (c) The procedure for allowing the
Department of Environmental Quality and the Department of Human Services to
comment on and recommend permit conditions.
     (6) The use of water under a permit as
injection source water for an aquifer storage and recovery project up to the
limits allowed in subsection (5)(b) of this section shall not affect the
priority date of the water right permit or otherwise affect the right evidenced
by the permit.
     (7) The holder of a permit for aquifer
storage and recovery shall apply for a transfer or change of use if the use of
recovered water is different from that which is allowed in the source water
permit or certificate. [1995 c.487 §4; 1997 c.587 §2; 1999 c.665 §3; 2003 c.594
§6]
(Appropriation
of Ground Water)
     537.535
Unlawful use or appropriation of ground water, including well construction and
operation. (1) No person or
public agency shall use or attempt to use any ground water, construct or
attempt to construct any well or other means of developing and securing ground
water or operate or permit the operation of any well owned or controlled by
such person or public agency except upon compliance with ORS 537.505 to 537.795
and 537.992 and any applicable order or rule adopted by the Water Resources
Commission under ORS 537.505 to 537.795 and 537.992.
     (2) Except for those uses exempted under
ORS 537.545, the use of ground water for any purpose, without a permit issued
under ORS 537.625 or registration under ORS 537.605, is an unlawful
appropriation of ground water. [1955 c.708 §4; 1957 c.341 §5; subsection (2)
enacted as 1961 c.668 §2; 1985 c.673 §47]
     537.540 [Repealed by 1955 c.708 §38]
     537.545
Exempt uses. (1) No
registration, certificate of registration, application for a permit, permit,
certificate of completion or ground water right certificate under ORS 537.505
to 537.795 and 537.992 is required for the use of ground water for:
     (a) Stockwatering purposes;
     (b) Watering any lawn or noncommercial
garden not exceeding one-half acre in area;
     (c) Watering the lawns, grounds and fields
not exceeding 10 acres in area of schools located within a critical ground
water area established pursuant to ORS 537.730 to 537.740;
     (d) Single or group domestic purposes in
an amount not exceeding 15,000 gallons a day;
     (e) Down-hole heat exchange purposes;
     (f) Any single industrial or commercial
purpose in an amount not exceeding 5,000 gallons a day; or
     (g) Land application, so long as the
ground water:
     (A) Has first been appropriated and used
under a permit or certificate issued under ORS 537.625 or 537.630 for a water
right issued for industrial purposes or a water right authorizing use of water
for confined animal feeding purposes;
     (B) Is reused for irrigation purposes and
the period of irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
     (C) Is applied pursuant to a permit issued
by the Department of Environmental Quality or the State Department of
Agriculture under either ORS 468B.050 to construct and operate a disposal
system or ORS 468B.215 to operate a confined animal feeding operation.
     (2) The use of ground water for a use
exempt under subsection (1) of this section, to the extent that it is
beneficial, constitutes a right to appropriate ground water equal to that
established by a ground water right certificate issued under ORS 537.700.
Except for the use of water under subsection (1)(g) of this section, the Water
Resources Commission by rule may require any person or public agency using
ground water for any such purpose to furnish information with regard to such
ground water and the use thereof. For a use of water described in subsection
(1)(g) of this section, the Department of Environmental Quality or the State
Department of Agriculture shall provide to the Water Resources Department a
copy of the permit issued under ORS 468B.050 or 468B.215 authorizing the land
application of ground water for reuse. The permit shall provide the information
regarding the place of use of such water and the nature of the beneficial
reuse.
     (3) If it is necessary for the Water
Resources Department to regulate the use or distribution of ground water,
including uses exempt under subsection (1) of this section, the department
shall use as a priority date for the exempt uses the date indicated in the log
for the well filed with the department under ORS 537.765 or other documentation
provided by the well owner showing when water use began. [1955 c.708 §5; 1983
c.372 §1; 1983 c.698 §1; 1985 c.673 §48; 1989 c.99 §1; 1989 c.833 §57; 1997
c.244 §3; 2001 c.248 §12; 2003 c.594 §2]
     537.550 [Repealed by 1955 c.708 §38]
     537.560 [Repealed by 1955 c.708 §38]
     537.570 [Repealed by 1955 c.708 §38]
     537.575
Permits granted, approved or pending under former law. Any permit granted or application for a
permit approved under ORS 537.510, 537.520, 537.530, 537.540, 537.550, 537.560,
537.570, 537.580, 537.590 and 537.600 prior to and still valid and in effect on
August 3, 1955, is considered to be a permit issued under ORS 537.625. Any
application for a permit under ORS 537.510, 537.520, 537.530, 537.540, 537.550,
537.560, 537.570, 537.580, 537.590 and 537.600 prior to, pending and not yet
approved on August 3, 1955, shall be governed as an application for a permit
under ORS 537.615, 537.620, 537.621, 537.622 and 537.625. [1955 c.708 §6(1);
1999 c.59 §171]
     537.580 [Repealed by 1955 c.708 §38]
     537.585
Beneficial use of ground water prior to August 3, 1955, recognized as right to
appropriate water when registered. Except as otherwise provided in ORS 537.545 or 537.575 or 537.595 and
subject to determination under ORS 537.670 to 537.695, actual and lawful
application of ground water to beneficial use prior to August 3, 1955, by or
under the authority of any person or public agency or by or under the authority
of a predecessor in interest of such person or public agency, when registered
under ORS 537.605 and 537.610, is recognized as a right to appropriate ground
water to the extent of the maximum beneficial use thereof at any time within
two years prior to August 3, 1955. [1955 c.708 §6(2)]
     537.590 [Repealed by 1955 c.708 §38]
     537.595
Construction or alteration of well commenced prior to August 3, 1955,
recognized as right to appropriate water when registered. Except as otherwise provided in ORS 537.545
or 537.575 or 537.585 and subject to determination under ORS 537.670 to
537.695, when any person or public agency on August 3, 1955, is lawfully
engaged in good faith in such construction, alteration or extension of a well
for the application of ground water to beneficial use, the right to appropriate
such ground water, upon completion of such construction, alteration or
extension and application of the ground water to beneficial use within a
reasonable time fixed by the Water Resources Commission, when registered under
ORS 537.605 and 537.610, is recognized to the extent of the beneficial use of
the ground water. [1955 c.708 §6(3); 1985 c.673 §49]
     537.597 [1989 c.939 §4; repealed by 1991 c.200 §3]
     537.599 [1989 c.939 §5; repealed by 1991 c.200 §3]
     537.600 [Repealed by 1955 c.708 §38]
     537.605
Registration of right to appropriate ground water claimed under ORS 537.585 or
537.595; registration statement. (1) Any person or public agency claiming any right to appropriate
ground water under ORS 537.585 or 537.595, except for any purpose exempt under
ORS 537.545, is entitled to receive from the Water Resources Commission within
three years after August 3, 1955, a certificate of registration as evidence of
a right to appropriate ground water as provided in ORS 537.585 or 537.595.
Failure of such person or public agency to file a registration statement within
such period creates a presumption that any such claim has been abandoned.
     (2) Upon receipt of a request for
registration by any person or public agency referred to in subsection (1) of
this section within the period specified, the commission shall provide such
person or public agency with a separate registration statement for each well,
which shall be completed and returned to the commission.
     (3) Each registration statement shall be
in a form prescribed by the commission, shall be under oath and shall contain:
     (a) The name and post-office address of
the registrant.
     (b) The nature of the use by the
registrant of the ground water upon which the claim of the registrant is based.
     (c) The dates when the ground water was or
will be first applied to beneficial use and the dates when construction of the
well was begun and completed.
     (d) The amount of ground water claimed.
     (e) If the ground water is used or is to
be used for irrigation purposes, a description of the lands irrigated or to be
irrigated, giving the number of acres irrigated or to be irrigated in each
40-acre legal subdivision, the dates of reclamation of each such legal
subdivision and the date when the ground water was or will be completely
applied.
     (f) The depth to the water table.
     (g) The location of the well with
reference to government survey corners or monuments or corners of recorded
plats.
     (h) The depth, diameter and type of the
well, and the kind and amount of the casing.
     (i) The capacity of the well and well pump
in gallons per minute, and the horsepower of the well pump motor.
     (j) If the ground water is artesian or
other ground water not requiring pumping, the rate of flow in gallons in such
manner as the commission may prescribe.
     (k) The amount of ground water pumped or
otherwise taken from the well each year.
     (L) A copy of the log of the completed
well, if such log is available.
     (m) If the ground water supply is
supplemental to an existing water supply, identification of any application for
a permit, permit, certification or adjudicated right to appropriate water made
or held by the registrant.
     (n) Such other information as the
commission considers necessary.
     (4) Each registration statement shall be
accompanied by maps, drawings and other data as the commission considers
necessary.
     (5) The commission may require that any
registration statement be supplemented after any well is fully completed by a
statement containing such additional information as the commission considers
necessary.
     (6) Any person or public agency who failed
to file a registration statement within the period set forth in subsection (1)
of this section may file within one year after May 29, 1961, a petition with
the commission requesting that the person be given an opportunity to rebut the
presumption that the person has abandoned the claim. Upon the filing of such a
petition the commission may schedule a hearing to take testimony and evidence
on the date of well construction and the use of ground water or the commission
may accept sworn statements in writing in support of such petition. No petition
shall be denied without a public hearing. If it appears after hearing or from
such sworn statements, that the person or public agency has a use of ground
water that would be subject to determination under ORS 537.670 to 537.695 as
defined in ORS 537.585 and 537.595, the commission shall issue an order
authorizing the petitioner to file a registration statement as described under
subsection (3) of this section. Upon receipt of the completed registration
statement the commission shall issue to the registrant a certificate of
registration, as provided in ORS 537.610. [1955 c.708 §7; 1957 c.341 §6; 1961
c.668 §3; 1985 c.673 §50]
     537.610
Recording registration statement; issuing certificate of registration; effect
of certificate; rules; fees.
(1) The Water Resources Commission shall accept all registration statements
referred to in ORS 537.605 completed and returned to the commission in proper
form, endorse on the registration statement the date of the return and record
each statement. Upon recording the statement, the commission shall issue to the
registrant a certificate as evidence that the registration is completed.
     (2) The issuance of the certificate of
registration serves as prima facie evidence that the registrant is entitled to
a right to appropriate ground water and apply it to beneficial use to the
extent and in the manner disclosed in the recorded registration statement and
in the certificate of registration.
     (3) A certificate of registration issued
under this section may not be construed as a final determination of any matter
stated in the certificate of registration. The right of the registrant to
appropriate ground water under a certificate of registration is subject to
determination under ORS 537.670 to 537.695, and is not final or conclusive
until so determined and a ground water right certificate issued. A right to
appropriate ground water under a certificate of registration has a tentative
priority from the date when the construction of the well was begun.
     (4) The commission shall adopt by rule the
process and standards by which the commission will recognize changes in the
place of use, type of use or point of appropriation for claims to appropriate
ground water registered under this section. The commission shall adopt fees not
to exceed $500 for actions taken to modify a certificate of registration. [1955
c.708 §8; 1985 c.673 §51; 2005 c.614 §1]
     537.615
Application for permit to acquire new right or enlarge existing right to appropriate
ground water; fee. (1) Any
person or public agency intending to acquire a wholly new right to appropriate
ground water or to enlarge upon any existing right to appropriate ground water,
except for any purpose exempt under ORS 537.545, shall apply to the Water
Resources Department for and be issued a permit before withdrawing or using the
ground water.
     (2) The application for a permit shall be
in a form prescribed by the department and shall contain:
     (a) The name and post-office address of
the applicant.
     (b) The nature of the use by the applicant
of the ground water for which the application is made.
     (c) The dates of the beginning and
completion of the construction of any well or other means of developing and
securing the ground water.
     (d) The date when the ground water will be
completely applied to the proposed beneficial use.
     (e) The amount of ground water claimed.
     (f) If the ground water is to be used for
irrigation purposes, a description of the lands to be irrigated, giving the
number of acres to be irrigated in each 40-acre legal subdivision.
     (g) The depth to the water table, if
known.
     (h) The location of each well with
reference to government survey corners or monuments or corners of recorded
plats.
     (i) The proposed depth, diameter and type
of each well, and the kind and amount of the casing.
     (j) The estimated capacity of each well
and each well pump in gallons per minute, and the horsepower of each well pump
motor.
     (k) If the ground water is artesian or
other ground water not requiring pumping, the rate of flow in gallons in such
manner as the Water Resources Commission may prescribe.
     (L) If the ground water supply is
supplemental to an existing water supply, identification of any application for
a permit, permit, certificate or adjudicated right to appropriate water made or
held by the applicant.
     (m) Any other information as the
department considers necessary to evaluate the application.
     (3) Each application for a permit shall be
accompanied by any maps and drawings the department considers necessary.
     (4) The map or drawing required to
accompany the application shall be of sufficient quality and scale to establish
the location of the proposed point of diversion and the proposed place of use
identified by tax lot, township, range, section and nearest quarter-quarter
section along with a notation of the acreage of the proposed place of use, if
appropriate. In addition, the department shall accept locational coordinate
information, including latitude and longitude as established by a global
positioning system. If the application is for a water right for a municipal
use, the map need not identify the proposed place of use by tax lot.
     (5) Each application for a permit to
appropriate water shall be accompanied by the examination fee set forth in ORS
536.050 (1).
     (6) If the proposed use of the water is
for the operation of a chemical process mine as defined in ORS 517.953, the
applicant shall provide the information required under this section as part of
the consolidated application under ORS 517.952 to 517.989.
     (7) Notwithstanding any provision of ORS
chapter 183, an application for a permit to appropriate ground water shall be
processed in the manner set forth in ORS 537.505 to 537.795. Nothing in ORS
chapter 183 shall be construed to allow additional persons to participate in
the process. To the extent that any provision in ORS chapter 183 conflicts with
a provision set forth in ORS 537.505 to 537.795, the provisions in ORS 537.505
to 537.795 shall control. [1955 c.708 §9; 1959 c.437 §3; 1985 c.673 §54; 1987
c.542 §7; 1991 c.735 §34; 1993 c.557 §4; 1995 c.416 §22; 1997 c.446 §6; 1997
c.587 §8]
     537.620
Determination of completeness of application; initial review; preliminary
determination; notice; public comments; fees. (1) The Water Resources Department shall accept all applications for
permits submitted under ORS 537.615 in proper form.
     (2) Within 15 days after receiving the
application, the department shall determine whether the application contains
the information listed under ORS 537.615 (2) and is complete and not defective,
including the payment of all fees required under ORS 537.615 (5). If the
department determines that the application is incomplete or defective or that
not all fees have been paid, the department shall return the fees paid and the
application to the applicant to remedy the defect. If an application is
complete and not defective, the department shall indorse on the application the
date upon which the application was received at the department, which shall be
the priority date for any water right issued in response to the application.
     (3) Upon determining that an application
is complete and not defective, the department shall determine whether the
proposed use is prohibited by statute. If the proposed use is prohibited by
statute, the department shall reject the application and return all fees to the
applicant with an explanation of the statutory prohibition.
     (4) If the proposed use is not prohibited
by statute, the department shall undertake an initial review of the application
and make a preliminary determination of:
     (a) Whether the proposed use is restricted
or limited by statute or rule or because the proposed use is located within a
designated critical ground water area;
     (b) The extent to which water is available
from the proposed source during the times and in the amounts requested; and
     (c) Any other issue the department
identifies as a result of the initial review that may preclude approval of or
restrict the proposed use.
     (5) Upon completion of the initial review
and no later than 30 days after determining an application to be complete and
not defective as described in subsection (2) of this section, the department
shall notify the applicant of its preliminary determinations and allow the applicant
14 days from the date of mailing within which to notify the department to stop
processing the application or to proceed with the application. If the applicant
notifies the department to stop processing the application, the department
shall return the application and all fees paid in excess of $150. If the
department receives no timely response from the applicant, the department shall
proceed with the application.
     (6) Within seven days after proceeding
with the application under subsection (5) of this section, the department shall
give public notice of the application in the weekly notice published by the
department. The notice shall include a request for comments on the application
and information pertaining to how an interested person may obtain future
notices about the application and a copy of the proposed final order.
     (7) Within 30 days after the public notice
under subsection (6) of this section, any person interested in the application
shall submit written comments to the department. Any person who asks to receive
a copy of the departmentÂ’s proposed final order shall submit to the department
the fee required under ORS 536.050 (1)(p). [1955 c.708 §10; 1981 c.589 §4; 1985
c.673 §55; 1989 c.201 §3; 1991 c.102 §2; 1991 c.400 §3; 1991 c.735 §35; 1993 c.557
§5; 1995 c.416 §23; 1997 c.587 §9; 2007 c.267 §3]
     537.621
Review of application; proposed final order; presumption that use will ensure
preservation of public welfare, safety and health; flow rate and duty;
standing; protest; final order; contested case hearing. (1) Within 60 days after the Water Resources
Department proceeds with the application under ORS 537.620 (5), the department
shall complete application review and issue a proposed final order approving or
denying the application or approving the application with modifications or
conditions. The department may request the applicant to provide additional
information needed to complete the review. If the department requests
additional information, the request shall be specific and shall be sent to the
applicant by registered mail. The department shall specify a date by which the
information must be returned, which shall be not less than 10 days after the
department mails the request to the applicant. If the department does not
receive the information or a request for a time extension under ORS 537.627 by
the date specified in the request, the department may reject the application
and may refund fees in accordance with ORS 536.050 (3)(a). The time period
specified by the department in a request for additional information shall allow
the department to comply with the 60-day time limit established by this
subsection.
     (2) In reviewing the application under
subsection (1) of this section, the department shall determine whether the
proposed use will ensure the preservation of the public welfare, safety and
health as described in ORS 537.525. The department shall presume that a
proposed use will ensure the preservation of the public welfare, safety and
health if the proposed use is allowed in the applicable basin program
established pursuant to ORS 536.300 and 536.340 or given a preference under ORS
536.310 (12), if water is available, if the proposed use will not injure other
water rights and if the proposed use complies with rules of the Water Resources
Commission. This shall be a rebuttable presumption and may be overcome by a
preponderance of evidence that either:
     (a) One or more of the criteria for
establishing the presumption are not satisfied; or
     (b) The proposed use would not ensure the
preservation of the public welfare, safety and health as demonstrated in
comments, in a protest under subsection (7) of this section or in a finding of
the department that shows:
     (A) The specific aspect of the public
welfare, safety and health under ORS 537.525 that would be impaired or
detrimentally affected; and
     (B) Specifically how the identified aspect
of the public welfare, safety and health under ORS 537.525 would be impaired or
be adversely affected.
     (3) The proposed final order shall cite
findings of fact and conclusions of law and shall include but need not be
limited to:
     (a) Confirmation or modification of the
preliminary determinations made in the initial review;
     (b) A brief statement that explains the
criteria considered relevant to the decision, including the applicable basin
program and the compatibility of the proposed use with applicable land use
plans;
     (c) An assessment of water availability
and the amount of water necessary for the proposed use;
     (d) An assessment of whether the proposed
use would result in injury to existing water rights;
     (e) An assessment of whether the proposed
use would ensure the preservation of the public welfare, safety and health as
described in ORS 537.525;
     (f) A draft permit, including any proposed
conditions, or a recommendation to deny the application;
     (g) Whether the rebuttable presumption
under subsection (2) of this section has been established;
     (h) The date by which protests to the
proposed final order must be received by the department; and
     (i) The flow rate and duty of water
allowed.
     (4) In establishing the flow rate and duty
of water allowed, the department may consider a general basin-wide standard,
but first shall evaluate information submitted by the applicant to demonstrate
the need for a flow rate and duty higher than the general standard. If the
applicant provides such information, the department shall authorize the
requested rate and duty except upon specific findings related to the
application to support a determination that a lesser amount is needed. If the
applicant does not provide information to demonstrate the need for a flow rate
and duty higher than the general basin-wide standard, the department may apply
the general standards without specific findings related to the application.
     (5) The department shall mail copies of
the proposed final order to the applicant and to persons who have requested
copies and paid the fee required under ORS 536.050 (1)(p). The department also
shall publish notice of the proposed final order by publication in the weekly
notice published by the department.
     (6) Any person who supports a proposed
final order may request standing for purposes of participating in any contested
case proceeding on the proposed final order or for judicial review of a final
order. A request for standing shall be in writing and shall be accompanied by
the fee established under ORS 536.050 (1)(n).
     (7) Any person may submit a protest
against a proposed final order. A protest shall be in writing and shall
include:
     (a) The name, address and telephone number
of the protestant;
     (b) A description of the protestant’s
interest in the proposed final order, and if the protestant claims to represent
the public interest, a precise statement of the public interest represented;
     (c) A detailed description of how the
action proposed in the proposed final order would impair or be detrimental to
the protestantÂ’s interest;
     (d) A detailed description of how the
proposed final order is in error or deficient and how to correct the alleged
error or deficiency;
     (e) Any citation of legal authority
supporting the protest, if known; and
     (f) For persons other than the applicant,
the protest fee required under ORS 536.050.
     (8) Requests for standing and protests on
the proposed final order shall be submitted within 45 days after publication of
the notice of the proposed final order in the weekly notice published by the
department. Any person who asks to receive a copy of the departmentÂ’s final
order shall submit to the department the fee required under ORS 536.050 (1)(p),
unless the person has previously requested copies and paid the required fee
under ORS 537.620 (7), the person is a protestant and has paid the fee required
under ORS 536.050 (1)(j) or the person has standing and has paid the fee under
ORS 536.050 (1)(n).
     (9) Within 60 days after the close of the
period for receiving protests, the Water Resources Director shall:
     (a) Issue a final order as provided under
ORS 537.625 (1); or
     (b) Schedule a contested case hearing if a
protest has been submitted and if:
     (A) Upon review of the issues, the
director finds that there are significant disputes related to the proposed use
of water; or
     (B) Within 30 days after the close of the
period for submitting protests, the applicant requests a contested case
hearing. [1995 c.416 §25; 1995 c.549 §1a; 1997 c.446 §7; 1997 c.587 §10; 2007
c.188 §3]
     537.622
Contested case hearing; parties; issues. (1) Within 45 days after the Water Resources Director schedules a
contested case hearing under ORS 537.621 (9), the Water Resources Department
shall hold the contested case hearing. The issues to be considered in the
contested case hearing shall be limited to issues identified by the
administrative law judge.
     (2) Notwithstanding the provisions of ORS
chapter 183 pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be limited to:
     (a) The applicant;
     (b) Any person who timely filed a protest;
and
     (c) Any person who timely filed a request
for standing under ORS 537.621 (6) and who requests to intervene in the
contested case hearing prior to the start of the proceeding.
     (3) The contested case proceeding shall be
conducted in accordance with the applicable provisions of ORS chapter 183
except:
     (a) As provided in subsections (1) and (2)
of this section; and
     (b) An interlocutory appeal under ORS
183.480 (3) shall not be allowed.
     (4) Each person submitting a protest or a
request for standing shall raise all reasonably ascertainable issues and submit
all reasonably available arguments supporting the personÂ’s position by the
close of the protest period. Failure to raise a reasonably ascertainable issue
in a protest or in a hearing or failure to provide sufficient specificity to
afford the Water Resources Department an opportunity to respond to the issue
precludes judicial review based on that issue. [1957 c.341 §2; 1983 c.740 §213;
1985 c.673 §56; 1995 c.416 §27; 2003 c.75 §97]
     537.625
Final order; appeal; contents of permit. (1) If, after the contested case hearing or, if a hearing is not held,
after the close of the period allowed to file a protest, the Water Resources
Director determines that the proposed use does not ensure the preservation of
the public welfare, safety and health as described in ORS 537.525, the director
shall issue a final order rejecting the application or modifying the proposed
final order as necessary to ensure the preservation of the public welfare,
safety and health as described in ORS 537.525. If, after the contested case
hearing or, if a hearing is not held, after the close of the period allowed to
file a protest, the director determines that the proposed use would ensure the
preservation of the public welfare, safety and health as described in ORS
537.525, the director shall issue a final order approving the application or
otherwise modifying the proposed final order. A final order may set forth any
of the provisions or restrictions to be included in the permit concerning the
use, control and management of the water to be appropriated for the project.
     (2) If a contested case hearing is not
held:
     (a) Where the final order modifies the
proposed final order, the applicant may request and the Water Resources
Department shall schedule a contested case hearing as provided under ORS
537.622 (3) by submitting the information required for a protest under ORS
537.621 (7) within 14 days after the director issues the final order. However,
the issues on which a contested case hearing may be requested and conducted
under this paragraph shall be limited to issues based on the modifications to
the proposed final order.
     (b) Only the applicant or a protestant may
appeal the provisions of the final order in the manner established in ORS
chapter 183 for appeal of order other than contested cases.
     (3) If the presumption of public welfare,
safety and health under ORS 537.621 (2) is overcome, then before issuing a
final order, the director or the Water Resources Commission, if applicable,
shall make the final determination of whether the proposed use or the proposed
use as modified in the proposed final order would preserve the public welfare,
safety and health as described in ORS 537.525 by considering:
     (a) The conservation of the highest use of
the water for all purposes, including irrigation, domestic use, municipal water
supply, power development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial purposes, navigation,
scenic attraction or any other beneficial use to which the water may be applied
for which it may have a special value to the public.
     (b) The maximum economic development of
the waters involved.
     (c) The control of the waters of this
state for all beneficial purposes, including drainage, sanitation and flood
control.
     (d) The amount of waters available for
appropriation for beneficial use.
     (e) The prevention of wasteful,
uneconomic, impracticable or unreasonable use of the waters involved.
     (f) All vested and inchoate rights to the
waters of this state or to the use of the waters of this state, and the means
necessary to protect such rights.
     (g) The state water resources policy.
     (4) Upon issuing a final order, the Water
Resources Department shall notify the applicant and each person who submitted
written comments or protests or otherwise requested notice of the final order
and send a copy of the final order to any person who requested a copy and paid
the fee required under ORS 536.050 (1)(p).
     (5) A right to appropriate ground water
under a permit has a priority from the date when the application was filed with
the department.
     (6) If the use of water under the permit
is for operation of a chemical process mine as defined in ORS 517.952:
     (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 applicantÂ’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. [1955 c.708 §11;
1959 c.437 §4; 1981 c.61 §3; 1985 c.673 §57; 1995 c.416 §28; 1997 c.587 §11]
     537.626
Exceptions to final order; modified order. (1) Within 20 days after the Water Resources Director issues a final
order under ORS 537.625 after the conclusion of a contested case hearing, any
party may file with the Water Resources Commission exceptions to the order.
     (2) The commission shall issue a modified
order, if allowed, or deny the exceptions within 60 days after close of the
exception period under subsection (1) of this section. [1995 c.416 §29]
     537.627
Time limit for issuing final order or scheduling contested case hearing; extension;
writ of mandamus. (1) Except
as provided in subsection (2) of this section, the Water Resources Department
shall issue a final order or schedule a contested case hearing on an
application for a water right referred to in ORS 537.615 within 180 days after
the department proceeds with the application under ORS 537.620 (5).
     (2) At the request of the applicant, the
department may extend the 180-day period set forth in subsection (1) of this
section for a reasonable period of time.
     (3) If the applicant does not request an
extension under subsection (2) of this section and the department fails to
issue a proposed final order or schedule a contested case hearing on an
application for a water right within 180 days after the department proceeds
with the application under ORS 537.620 (5), the applicant may apply in the
Circuit Court for Marion County for a writ of mandamus to compel the department
to issue a final order or schedule a contested case hearing on an application
for a water right. The writ of mandamus shall compel the department to issue a
water right permit, unless the department shows by affidavit that to issue a
permit may result in harm to an existing water right holder. [1995 c.416 §31]
     537.628
Terms; conditions; time limit for issuing final order after contested case
hearing. (1) The Water
Resources Department may approve an application for less ground water than
applied for or upon terms, conditions and limitations necessary for the
protection of the public welfare, safety and health. In any event the
department shall not approve the application for more ground water than is
applied for or than can be applied to a beneficial use. No application shall be
approved when the same will deprive those having prior rights of appropriation
for a beneficial use of the amount of water to which they are lawfully
entitled.
     (2) If a contested case hearing is held,
the department shall issue a final order:
     (a) Within 270 days after scheduling the
hearing for a contested case proceeding that involves three or more parties not
including the department; and
     (b) Within 180 days after scheduling the
hearing for all other contested case proceedings. [1995 c.416 §30]
     537.629
Conditions or limitations to prevent interference with other users. (1) When an application discloses the
probability of wasteful use or undue interference with existing wells or that
any proposed use or well will impair or substantially interfere with existing
rights to appropriate surface water by others, or that any proposed use or well
will impair or substantially interfere with existing rights to appropriate
ground water for the beneficial use of the water for its thermal
characteristics, the Water Resources Department may impose conditions or
limitations in the permit to prevent the same or reject the same after hearing,
or, in the departmentÂ’s discretion, request the Water Resources Commission to
initiate a rulemaking proceeding to declare the affected area a critical ground
water area under ORS 537.730 to 537.740.
     (2)(a) When an application discloses the
probability that a proposed use or well will impair or interfere with the
ability to extract heat from a well with a bottom hole temperature of at least
250 degrees Fahrenheit, the department may:
     (A) Approve the permit;
     (B) Impose conditions or limitations in
the permit to prevent the probable interference or impairment;
     (C) After a hearing under ORS 537.622,
reject the application; or
     (D) Request the commission to initiate a
rulemaking proceeding to declare the affected area a critical ground water area
under ORS 537.730 to 537.740.
     (b) In deciding whether to issue, deny or
condition a permit under this subsection, the department shall consider any
orders or permits applicable to the ground water reservoir issued by the State
Geologist or the governing board of the State Department of Geology and Mineral
Industries under ORS chapter 522. [1995 c.416 §26]
     537.630
Time allowed for construction work under permit; certificate of completion;
survey; ground water right certificate; requirements for supplemental water
right. (1) Except for the
holder of a permit for municipal use, the holder of a permit issued pursuant to
ORS 537.625 shall prosecute the construction of a well or other means of
developing and securing the ground water with reasonable diligence and complete
the construction within a reasonable time fixed in the permit by the Water
Resources Department, not to exceed five years after the date of approval of
the application. However, the department, for good cause shown, shall order and
allow an extension of time, including an extension beyond the five-year period,
for the completion of the well or other means of developing and securing the
ground water or for complete application of water to beneficial use. In
determining the extension, the department shall give due weight to the
considerations described under ORS 539.010 (5) and to whether other
governmental requirements relating to the project have significantly delayed
completion of construction or perfection of the right.
     (2) The holder of a permit for municipal
use shall commence and complete the construction of any proposed works within
20 years from the date on which the permit for municipal use is issued under
ORS 537.625. The construction must proceed with reasonable diligence and be
completed within the time specified in the permit, not to exceed 20 years.
However, the department may order and allow an extension of time to complete
construction or to perfect a water right beyond the time specified in the
permit under the following conditions:
     (a) The holder shows good cause. In
determining the extension, the department shall give due weight to the
considerations described under ORS 539.010 (5) and to whether other governmental
requirements relating to the project have significantly delayed completion of
construction or perfection of the right;
     (b) The extension of time is conditioned
to provide that the holder may divert water beyond the maximum rate diverted
for beneficial use before the extension only upon approval by the department of
a water management and conservation plan; and
     (c) For the first extension issued after
June 29, 2005, for a permit for municipal use issued before November 2, 1998,
the department finds that the undeveloped portion of the permit is conditioned
to maintain, in the portions of waterways affected by water use under the
permit, the persistence of fish species listed as sensitive, threatened or
endangered under state or federal law. The department shall base its finding on
existing data and upon the advice of the State Department of Fish and Wildlife.
An existing fish protection agreement between the permit holder and a state or
federal agency that includes conditions to maintain the persistence of any
listed fish species in the affected portion of the waterway is conclusive for
purposes of the finding.
     (3) If the construction of any well or
other means of developing and securing the ground water is completed after the
date of approval of the application for a permit under ORS 537.625, within 30
days after the completion, or if the construction is completed before the date
of approval, within 30 days after the date of approval, the permit holder shall
file a certificate of completion with the Water Resources Department,
disclosing:
     (a) The depth to the water table;
     (b) The depth, diameter and type of each
well, and the kind and amount of the casing;
     (c) The capacity of the well pump in
gallons per minute and the drawdown thereof;
     (d) The identity of the record owner of
any property that was described in the application for a permit under ORS
537.625 but is not included in the certificate of completion; and
     (e) Any other information the department
considers necessary.
     (4) Upon completion of beneficial use
necessary to secure the ground water as required under this section, the permit
holder shall hire a water right examiner certified under ORS 537.798 to survey
the appropriation. Within one year after applying the water to beneficial use or
the beneficial use date allowed in the permit, the permit holder shall submit
the survey as required by the Water Resources Department to the department
along with the certificate of completion required under subsection (3) of this
section. If any property described in the permit is not included in the request
for a water right certificate, the permittee shall state the identity of the
record owner of that property.
     (5) After the department has received a
certificate of completion and a copy of the survey as required by subsections
(3) and (4) of this section that show, to the satisfaction of the department,
that an appropriation has been perfected in accordance with the provisions of
ORS 537.505 to 537.795 and 537.992, the department shall issue a ground water
right certificate of the same character as that described in ORS 537.700. The
certificate shall be recorded and transmitted to the applicant as provided in
ORS 537.700.
     (6) The procedure for cancellation of a
permit shall be as provided in ORS 537.260.
     (7) Notwithstanding ORS 537.410, for
purposes of obtaining a water right certificate under subsection (5) of this
section for a supplemental water right, the permittee shall have a facility
capable of handling the full rate and duty of water requested from the
supplemental source and be otherwise ready, willing and able to use the amount
of water requested, up to the amount of water approved in the water right
permit. To obtain a certificate for a supplemental water right, the permittee
is not required to have actually used water from the supplemental source if:
     (a) Water was available from the source of
the primary water right and the primary water right was used pursuant to the
terms of the primary water right; or
     (b) The nonuse of water from the supplemental
source occurred during a period of time within which the exercise of the
supplemental water right permit was not necessary due to climatic conditions. [1955
c.708 §12; 1959 c.437 §5; 1985 c.617 §2; 1985 c.673 §202; 1987 c.542 §8; 1995
c.367 §3; 1995 c.416 §34; 1997 c.446 §8; 1999 c.453 §2; 2005 c.410 §2]
     Note: See note under 537.230.
     537.632 [1959 c.437 §2; 1961 c.334 §10; renumbered
537.762]
     537.635
Assignment of application, certificate of registration or permit. (1) Any certificate of registration issued
under ORS 537.610 or permit issued under ORS 537.625 may be assigned, subject
to the conditions of the certificate of registration or permit, but no such
assignment shall be binding, except upon the parties to the assignment, unless
filed for record in the Water Resources Department.
     (2) An assignment of an application filed
under ORS 537.615 or a permit issued under ORS 537.625 and filed for record
with the Water Resources Department shall identify the current record owners of
all property described in the application or permit. The assignor shall furnish
proof acceptable to the department that notice of the assignment has been given
or attempted for each identified property owner not a party to the assignment. [1955
c.708 §13; 1985 c.673 §59; 1995 c.367 §4]
     537.665
Investigation of ground water reservoirs; defining characteristics and assigning
names and numbers. (1) Upon
its own motion, or upon the request of another state agency or local
government, the Water Resources Commission, within the limitations of available
resources, shall proceed as rapidly as possible to identify and define
tentatively the location, extent, depth and other characteristics of each
ground water reservoir in this state, and shall assign to each a distinctive name
or number or both as a means of identification. The commission may make any
investigation and gather all data and information essential to a proper
understanding of the characteristics of each ground water reservoir and the
relative rights to appropriate ground water from each ground water reservoir.
     (2) In identifying the characteristics of
each ground water reservoir under subsection (1) of this section, the
commission shall coordinate its activities with activities of the Department of
Environmental Quality under ORS 468B.185 in order that the final
characterization may include an assessment of both ground water quality and
ground water quantity.
     (3) Before the commission makes a final
determination of boundaries and depth of any ground water reservoir, the Water
Resources Director shall proceed to make a final determination of the rights to
appropriate the ground water of the ground water reservoir under ORS 537.670 to
537.695.
     (4) The commission shall forward copies of
all information acquired from an assessment conducted under this section to the
central repository of information about OregonÂ’s ground water resource
established pursuant to ORS 468B.167. [1955 c.708 §14; 1985 c.673 §60; 1989
c.833 §58]
     537.670
Determination of rights to appropriate ground water of ground water reservoir. (1) The Water Resources Director upon the
motion of the director or, in the discretion of the director, upon receipt of a
petition therefor by any one or more appropriators of ground water from such
ground water reservoir, may proceed to make a final determination of the rights
to appropriate the ground water of any ground water reservoir in this state.
     (2) The director shall prepare a notice of
intent to begin a determination referred to in subsection (1) of this section.
The notice shall set forth a place and time when the director or the authorized
assistant of the director shall begin the taking of testimony as to the rights
of the various claimants to appropriate the ground water of the ground water
reservoir and as to the boundaries and depth thereof. A copy of the notice
shall be delivered to each person or public agency known to the director from
an examination of the records in the Water Resources Department to be a
claimant to a right to appropriate ground water of the ground water reservoir
or any surface water within the area in which the ground water reservoir is
located. The notice shall also be published in at least one issue each week for
at least two consecutive weeks in a newspaper of general circulation published
in each county in which the ground water reservoir or any part thereof is
located. If the ground water reservoir is located in whole or in part within
the limits of any city, the notice shall be published in at least one issue
each week for at least two consecutive weeks in a newspaper of general
circulation published in the city, if any, and copies of the notice shall be
delivered to the mayor or chairperson of the governing body of the city. Copies
of the notice shall be delivered and the last publication date of published
notices shall be at least 30 days prior to the taking of any testimony.
     (3) The director shall enclose with each
copy of the notice referred to in subsection (2) of this section delivered to
each person or public agency known to be a claimant to a right to appropriate
ground water of the ground water reservoir a blank form on which such claimant
shall present in writing all the particulars necessary for determination of the
right of the claimant as may be prescribed by the director. The director may
require each claimant to certify to the statements of the claimant under oath,
and the director or the authorized assistant of the director may administer
such oaths. [1955 c.708 §15; 1991 c.102 §3]
     537.675
Determination of rights in several reservoirs or of critical ground water area
in same proceeding. (1)
Whenever the Water Resources Director has reason to believe that two or more
ground water reservoirs overlie one another wholly or in part, the director may
proceed to a final determination of the rights to appropriate the ground water
of each of such ground water reservoirs in the same proceeding under ORS
537.670 to 537.695.
     (2) The director may include in a
determination proceeding under ORS 537.670 to 537.695 a determination of a
critical ground water area under ORS 537.730 to 537.740. [1955 c.708 §16]
     537.680
Taking testimony; inspecting evidence; contesting claim. Testimony shall be taken, evidence shall be
open to inspection and claims shall be subject to contest in a proceeding to
determine rights to appropriate the ground water of any ground water reservoir
initiated under ORS 537.670 as nearly as possible in the same manner as
provided in ORS 539.070, 539.090, 539.100 and 539.110 for the determination of
the relative rights of the various claimants to the waters of any surface
stream. [1955 c.708 §17]
     537.685
Findings of fact and order of determination. As soon as practicable after compilation of the evidence obtained in
proceedings under ORS 537.665 to 537.680, the Water Resources Director shall
make and cause to be entered of record in the Water Resources Department
findings of fact and an order of determination, determining and establishing
the several rights to appropriate the ground water of the ground water reservoir.
The findings of fact and order of determination shall also include:
     (1) The boundaries and depth of each
ground water reservoir.
     (2) The lowest permissible water level in
each ground water reservoir.
     (3) The location, extent, quality and other
pertinent characteristics of the ground water supply.
     (4) The serviceable methods of withdrawal
of the ground water from each ground water reservoir.
     (5) Rules for controlling the use of the
ground water from each ground water reservoir.
     (6) Such general or special rules or
restrictions with respect to the construction, operation and protection of
wells and the withdrawal of ground water thereby as in the judgment of the
director the public welfare, health and safety may require.
     (7) The name and post-office address of
each claimant.
     (8) The nature of the use of the ground
water allowed for each well, together with the maximum permissible use of the
ground water, the place of use of the ground water and the date of priority of
each use.
     (9) If the ground water is used or is to
be used for irrigation purposes, a description of the lands irrigated or to be
irrigated, giving the number of acres irrigated or to be irrigated in each
40-acre legal subdivision.
     (10) The location of each well with
reference to government survey corners or monuments or corners of recorded
plats.
     (11) The depth, diameter and type of each
well, the kind and amount of the casing, the capacity of each well in gallons
per minute and such other information concerning each well as in the opinion of
the director may be pertinent. [1955 c.708 §18; 1991 c.102 §4]
     537.690
Filing evidence, findings and determinations; court proceedings. The evidence relied upon by the Water
Resources Director in the entry of the findings of fact and order of
determination under ORS 537.685, together with a copy of such findings and
order, shall be certified to by the director and filed with the clerk of the
circuit court wherein the determination is to be heard, which shall be the
circuit court of any county in which the ground water reservoir or any part
thereof is located. A certified copy of the findings of fact and the order of
determination shall also be filed with the county clerk of every other county
in which the ground water reservoir or any part thereof is located. Thereafter,
proceedings shall be had as nearly as possible in the same manner as provided
in ORS 539.130 (2), (3) and (4), 539.150, 539.160, 539.170, 539.180, 539.190
and 539.210 for the final adjudication of the relative rights of the various
claimants to the waters of any surface stream. [1955 c.708 §19]
     537.695
Conclusive adjudication. The
determination of the Water Resources Director under ORS 537.685, as confirmed
or modified by the circuit court or Supreme Court, shall be a conclusive
adjudication as to all claimants of rights to appropriate the ground water of
each ground water reservoir included within the order of determination. [1955
c.708 §20]
     537.700
Issuing ground water right certificate. Upon the final determination under ORS 537.670 to 537.695 of the
rights to appropriate the ground water of any ground water reservoir, the Water
Resources Director shall issue to each person or public agency represented in
the determination proceedings and who is determined to have such a right a
ground water right certificate, setting forth the name and post-office address
of the owner of the right; the priority of the date, extent and purpose of the
right; and, if the ground water is for irrigation purposes, a description of
the legal subdivisions of land to which the ground water is appurtenant. [1955
c.708 §21; 1957 c.341 §7; 1969 c.629 §2; 1971 c.621 §36; 1975 c.607 §39; 1979
c.67 §1]
     537.705
Ground water appurtenant; change in use, place of use or point of
appropriation. All ground
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
ground water for any purpose may be made without compliance with a procedure as
nearly as possible like that set forth in ORS 540.520 and 540.530. However, the
owner of any ground water right may, upon compliance with a procedure as nearly
as possible like that set forth in ORS 540.520 and 540.530, change the use and
place of use, the point of appropriation or the use theretofore made of the
ground water in all cases without losing priority of the right theretofore
established. [1955 c.708 §22]
     537.710 [Renumbered 537.800]
     537.715 [1955 c.708 §23; repealed by 1957 c.341 §12]
     537.720
Violation of terms of law or permit or certificate; action by Water Resources
Commission. Whenever, after
notice to and opportunity to be heard by such holder, the Water Resources
Commission finds that the holder of any permit or certificate of registration
issued under ORS 537.505 to 537.795 and 537.992 is willfully violating any
provision of the permit or certificate of registration or any provision of ORS
537.505 to 537.795 and 537.992, the commission may cancel or suspend the permit
or certificate of registration or impose conditions on the future use thereof
to prevent such violation. [1955 c.708 §24; 1985 c.673 §61]
     537.730
Designation of critical ground water area; rules; notice. (1) The Water Resources Commission by rule
may designate an area of the state a critical ground water area if:
     (a) Ground water levels in the area in
question are declining or have declined excessively;
     (b) The Water Resources Department finds a
pattern of substantial interference between wells within the area in question;
     (c) The department finds a pattern of
interference or potential interference between wells of ground water claimants
or appropriators within the area in question with the production of geothermal
resources from an area regulated under ORS chapter 522;
     (d) The department finds a pattern of
substantial interference between wells within the area in question and:
     (A) An appropriator of surface water whose
water right has an earlier priority date; or
     (B) A restriction imposed on surface water
appropriation or a minimum perennial streamflow that has an effective date
earlier than the priority date of the ground water appropriation;
     (e) The available ground water supply in
the area in question is being or is about to be overdrawn;
     (f) The purity of the ground water in the
area in question has been or reasonably may be expected to become polluted to
an extent contrary to the public welfare, health and safety; or
     (g) Ground water temperatures in the area
in question are expected to be, are being or have been substantially altered except
as specified in ORS 537.796.
     (2) The proceeding to designate a critical
ground water area shall be conducted according to the provisions under ORS
chapter 183 applicable to the adoption of rules by an agency, except that a
hearing on a critical ground water declaration shall occur at least 60 days
after notice has been given.
     (3) In addition to the notice requirements
under ORS 183.335, the department shall give notice by regular mail to:
     (a) The owners of record of all ground
water registrations, permits and certificates for water use within the affected
area; and
     (b) Each water well constructor licensed
under ORS 537.747.
     (4) If the department satisfies the notice
requirements under ORS 183.335 and subsection (3) of this section, a person
shall not contest a critical ground water area designation on grounds of
failure to receive notice by regular mail. [1955 c.708 §26; 1957 c.341 §8; 1981
c.589 §5; 1985 c.673 §62; 1987 c.442 §1; 1989 c.201 §4; 1991 c.400 §4]
     537.735
Rules designating critical ground water area. (1) A rule adopted by the Water Resources Commission under ORS 537.730
shall:
     (a) Define the boundaries of the critical
ground water area and shall indicate which of the ground water reservoirs
located either in whole or in part within the area in question are included
within the critical ground water area. Any number of ground water reservoirs
which either wholly or partially overlie one another may be included within the
same critical ground water area.
     (b) Contain a provision requiring a
periodic review of conditions in the critical ground water area. The review
shall be in sufficient detail to evaluate the continuing need for the critical
ground water area designation and shall occur no less frequently than once
every 10 years.
     (2) In adopting the rule, the commission
shall consider any orders or permits applicable to the reservoir issued by the
governing board or State Geologist of the State Department of Geology and
Mineral Industries under ORS chapter 522.
     (3) A rule by the commission under
subsection (1) of this section may include any one or more of the following
corrective control provisions:
     (a) A provision closing the critical
ground water area to any further appropriation of ground water, in which event
the commission shall thereafter refuse to accept any application for a permit
to appropriate ground water located within such critical area.
     (b) A provision determining the
permissible total withdrawal of ground water in the critical area each day,
month or year.
     (c) The disposition of any application for
a water right permit for the use of water in the area that is pending at the
time the commission initiates the rulemaking process or that is received during
the rulemaking process.
     (d) Any one or more provisions making such
additional requirements as are necessary to protect the public welfare, health
and safety in accordance with the intent, purposes and requirements of ORS
537.505 to 537.795 and 537.992.
     (e) A provision closing all or part of the
critical ground water area to further appropriation of ground water for its
thermal characteristics.
     (f) A provision determining the
permissible change in thermal characteristics of ground water in all or part of
the critical ground water area each day, month or year. Insofar as may be
reasonably done, the Water Resources Director shall apportion the permissible
total temperature impact among those appropriators whose exercise of valid
rights in the critical area affect the thermal characteristics of the ground
water, in accordance with the relative dates of priority of such rights. [1955
c.708 §27; 1981 c.589 §6; 1981 c.919 §1; 1985 c.673 §63; 1989 c.201 §5; 1991
c.400 §5]
     537.740
Filing rules designating critical ground water area. In addition to any applicable requirements
under ORS chapter 183, the Water Resources Commission shall file a copy of any
rules designating a critical ground water area under ORS 537.730 to 537.740
with the county clerk of each county within which any part of the critical
ground water area lies, and the county clerk shall record the designation in
the deed records of the county. [1955 c.708 §28; 1985 c.673 §64; 1991 c.400 §6]
     537.742
Contested case proceeding to limit use of ground water in critical ground water
area. (1) Any time after the
Water Resources Commission adopts a rule under ORS 537.730 designating a
critical ground water area, the commission may initiate a contested case
proceeding to limit the use of ground water in the area if the commission has
reason to believe that any of the qualifying criteria of ORS 537.730 (1)
exists.
     (2) Upon the conclusion of a contested
case proceeding initiated under subsection (1) of this section and upon finding
that the problems that resulted in the designation of a critical ground water
area under ORS 537.730 can be resolved by implementing one or more of the
corrective control provisions of this section, the commission shall issue a
final order establishing any one or more of the following corrective control
provisions:
     (a) A provision apportioning the permissible
total withdrawal as established by rule under ORS 537.730, among the
appropriators holding valid rights to ground water in the critical area in
accordance with the relative dates of priority of such rights.
     (b) A provision according preference, without
reference to relative priorities, to withdrawals of ground water in the
critical area for residential and livestock watering purposes first.
Thereafter, the commission may authorize withdrawals of ground water in the
critical area for other beneficial purposes, including agricultural,
industrial, municipal other than residential, and recreational purposes, in
such order as the commission considers advisable under the circumstances, so
long as such withdrawal will not materially affect a properly designed and
operating well with prior rights that penetrates the aquifer.
     (c) A provision reducing the permissible
withdrawal of ground water by any one or more appropriators or wells in the
critical area.
     (d) Where two or more wells in the
critical area are used by the same appropriator, a provision adjusting the
total permissible withdrawal of ground water by such appropriator, or a
provision forbidding the use of one or more of such wells completely.
     (e) A provision requiring the abatement,
in whole or part, or the sealing of any well in the critical area responsible
for the admission of polluting materials into the ground water supply or
responsible for the progressive impairment of the quality of the ground water
supply by dispersing polluting materials that have entered the ground water
supply previously.
     (f) A provision requiring and specifying a
system of rotation of use of ground water in the critical area.
     (3) The commission shall conduct the
proceeding under this section according to the provisions of ORS chapter 183
applicable to contested case proceedings. [1991 c.400 §2]
     537.745
Voluntary agreements among ground water users from same reservoir. (1) In the administration of ORS 537.505 to
537.795 and 537.992, the Water Resources Commission may encourage, promote and
recognize voluntary agreements among ground water users from the same ground
water reservoir. When the commission finds that any such agreement, executed in
writing and filed with the commission, is consistent with the intent, purposes
and requirements of ORS 537.505 to 537.795 and 537.992, and in particular ORS
537.525, 537.730 to 537.740 and 537.780, the commission shall approve the
agreement. Thereafter the agreement, until terminated as provided in this
subsection, shall control in lieu of a formal order or rule of the commission
under ORS 537.505 to 537.795 and 537.992. Any agreement approved by the
commission may be terminated by the lapse of time as provided in the agreement,
by consent of the parties to the agreement or by order of the commission if the
commission finds, after investigation and a public hearing upon adequate
notice, that the agreement is not being substantially complied with by the
parties thereto or that changed conditions have made the continuance of the agreement
a detriment to the public welfare, safety and health or contrary in any
particular to the intent, purposes and requirements of ORS 537.505 to 537.795
and 537.992.
     (2) When any irrigation district, drainage
district, other district organized for public purposes or other public
corporation or political subdivision of this state is authorized by law to
enter into agreements of the kind referred to in subsection (1) of this
section, the commission may approve such agreements as provided in subsection (1)
of this section. Any such agreement approved by the commission shall have the
same effect and shall be subject to termination in the same manner and for the
same reasons set forth in subsection (1) of this section. [1955 c.708 §31; 1985
c.673 §65]
     537.746
Mitigation credits for projects in
     (2) A person proposing a project that
makes water available for mitigation may apply to the Water Resources
Department for approval of the project and a preliminary finding as to the
amount of mitigation credits available, based on the amount of water made
available by the project. Projects approved by the department shall comply with
all other applicable provisions of law, including relevant portions of ORS
390.835, and may not result in injury to existing water rights.
     (3)(a) The amount of mitigation credits
awarded for a completed project, or any completed phase of the project, shall
be equal to the amount of water made available by the project as determined and
approved by the department.
     (b) A final award of mitigation credits by
the department shall be made upon completion of the approved project by the applicant
and verification by the department that the project is complete. The department
may provide for a partial award of mitigation credits to correspond with
completion of approved phases of project implementation.
     (c) Mitigation credits shall remain valid
until exercised by the holder.
     (4) The commission may by rule provide for
the recognition or establishment of mitigation banks to facilitate transactions
among the holders of mitigation credits and persons who desire to acquire
mitigation credits. The mitigation credits may be assigned by the person
creating the project to another person or a mitigation bank.
     (5) The Water Resources Department shall
prepare an annual report on the implementation and management of the system of
mitigation credits established by subsections (1) to (4) of this section. [2001
c.659 §§2,3]
(
     Note: Sections 1 to 5, chapter 669, Oregon Laws
2005, provide:
     Sec.
1. Section 2 of this 2005
Act is added to and made a part of ORS 537.505 to 537.795. [2005 c.669 §1]
     Sec.
2. The Legislative Assembly
declares that rules adopted by the Water Resources Commission for the
     Sec.
3. (1) The Water Resources
Department shall report to the Seventy-fifth Legislative Assembly, no later
than January 31, 2009, on the implementation and operation of the
     (2) The report prepared pursuant to this
section shall include a summary of:
     (a) The cumulative rate of water
appropriated under all ground water permits approved in the Deschutes River
Basin after the effective date of this 2005 Act [July 29, 2005];
     (b) The volume of water, in acre-feet,
provided for mitigation; and
     (c) The measured streamflow of the
     Sec.
4. Section 2 of this 2005
Act applies to all ground water permits containing a ground water mitigation
requirement, all final orders approving water right applications containing a
ground water mitigation requirement, all mitigation credits, all ground water
mitigation projects and all mitigation banks issued or approved in the
Deschutes River Basin by the Water Resources Department or the Water Resources
Commission before, on or after the effective date of this 2005 Act [July 29,
2005]. [2005 c.669 §4]
     Sec.
5. (1) The Water Resources
Commission shall repeal the rules referred to in section 2 of this 2005 Act on
January 2, 2014.
     (2) Ground water permits and mitigation
projects approved before the repeal remain valid and effective. [2005 c.669 §5]
(Water Well
Constructors)
     537.747
Water well constructorÂ’s license; rules; fees. (1) No person shall advertise services to
construct, alter, abandon or convert wells, offer to enter or enter into a
contract with another person or public agency to construct, alter, abandon or
convert a well for such other person, cause any well construction, alteration,
abandonment or conversion to be performed under such a contract or operate well
drilling machinery without possessing a water well constructorÂ’s license
therefor in good standing issued by the Water Resources Department. The
department shall adopt a single water well constructorÂ’s license that may
specify the type of well, type of well alteration or construction or type of
well drilling machine operation for which the water well constructor is
qualified.
     (2) Notwithstanding subsection (1) of this
section, a person may operate a well drilling machine without a water well
constructorÂ’s license if supervised by one who possesses such a license.
     (3) A person shall be qualified to receive
a water well constructorÂ’s license if the person:
     (a) Is at least 18 years of age.
     (b) Has passed a written examination
conducted by the department to determine fitness to operate as a water well
constructor.
     (c) Has paid a license fee and an
examination fee according to the fee schedule set forth under subsection (6) of
this section.
     (d) Has one year or more experience in the
operation of well drilling machinery.
     (4) Upon fulfillment of all the
requirements set out in subsection (3) of this section, the department shall
issue the applicant a water well constructorÂ’s license in a form prescribed by
the department. The license may be issued for a period of two years.
     (5) A water well constructor’s license
shall expire on June 30 or on such date as may be specified by department rule.
A person may renew a license by submitting an application and the appropriate
fees any time before the license expires but not later than one year after the
license expires. A person who renews a license within the 12 months after the
license expires may either pay a penalty fee set forth under subsection (6)(d)
of this section or requalify for a water well constructorÂ’s license in
accordance with subsection (3) of this section. If a person fails to renew a
license within 12 months after expiration, the person must comply with the
requirements of subsection (3) of this section for a new water well constructorÂ’s
license.
     (6) The department shall collect in
advance the following fees:
     (a) An examination fee of $20.
     (b) A license fee of $150.
     (c) A renewal fee of $150.
     (d) Unless a person requalifies for a
water well constructorÂ’s license in accordance with subsection (3) of this
section, a water well constructor shall pay a renewal fee of $250 if the
license is renewed within 12 months after expiration.
     (e) If a person requalifies for a water
well constructorÂ’s license under subsection (3) of this section, the person
shall pay the renewal fee established under paragraph (c) of this subsection.
     (7) The department may revoke, suspend or
refuse to renew any water well constructorÂ’s license when it appears to the
satisfaction of the department, after notice and opportunity to be heard by the
licensee, that the licensee has failed to comply with the provisions of ORS
537.505 to 537.795 and 537.992 applicable to such licensee or any order or rule
adopted thereunder applicable to such licensee, or has made a material
misstatement of fact on an application for a license or well log or established
a pattern of conduct that willfully or negligently violates any provision of
ORS 537.505 to 537.795 and 537.992, or any rule adopted pursuant thereto,
applicable to such licensee.
     (8) The provisions of subsection (3) of
this section requiring one year or more experience in the operation of well
drilling machinery do not apply to any person who, on July 1, 1981, holds the
license required by this section and who continues thereafter to maintain the
license in good standing.
     (9) The fees collected under subsection
(6) of this section shall be paid into the Water Resources Department Water
Right Operating Fund. Such moneys are continuously appropriated to the Water
Resources Department to pay the departmentÂ’s expenses in administering and
enforcing the water well constructor’s licensing program. [1961 c.334 §2; 1971
c.591 §1; 1973 c.827 §58; 1981 c.416 §2; 1985 c.615 §2; 1985 c.673 §66; 1987
c.109 §1; 1989 c.758 §2; 1999 c.293 §2; 2001 c.496 §§5,8; 2003 c.594 §§9,10;
2007 c.221 §1; 2007 c.768 §§11,12]
     537.750
Examination for license. (1)
The written examination required under ORS 537.747 (3)(b) shall be prepared to
test the applicantÂ’s knowledge and understanding of the following subjects:
     (a) Laws of the state pertaining to the
appropriation and use of ground water, the licensing requirements of ORS
537.747 to 537.765, the construction of wells and the preparation and filing of
well logs.
     (b) Rules of the Water Resources
Commission pertaining to the appropriation and use of ground water, the
construction of wells and the preparation and filing of well logs.
     (c) Basic information on ground water
geology, the occurrence and movement of ground water, and the design,
construction and development of wells.
     (d) Types, uses and maintenance of
drilling tools and equipment, drilling problems and corrective procedures,
repair of faulty wells, sealing of wells and safety rules and practices.
     (2) Examinations shall be given during the
months of January, April, July and October. The date, time and place of the
examination are to be established by the commission. The examination shall be
given only to those applicants who have met the requirement set out in ORS
537.747 (3)(a) and have paid the $20 examination fee. An applicant who fails to
pass the examination by not attaining a grade of 70 or better may retake the
examination after three months and the payment of another $20 examination fee. [1961
c.334 §3; 1981 c.416 §3; 1985 c.673 §67]
     537.753
Bond or letter of credit; landownerÂ’s permit and bond. (1) Any person who contracts or offers
services to contract to construct, alter, abandon or convert wells shall have
in effect a surety bond or an irrevocable letter of credit issued by an insured
institution, as defined in ORS 706.008, running to the State of Oregon in the
sum of $10,000, ensuring that in the construction, alteration, abandonment or
conversion of wells, the principal shall comply with all the provisions of ORS
537.505 to 537.795 and 537.992 that are applicable to such construction,
alteration, abandonment or conversion and to the rules and standards of well
construction, alteration, abandonment and conversion that have been prescribed
by the Water Resources Commission. The bond or letter of credit shall be filed
with the Water Resources Commission.
     (2) The Water Resources Commission or any
person injured by failure of a water well constructor to comply with the
provisions of the bond or letter of credit has a right of action on the bond or
letter of credit in the name of the injured person. However, the aggregate
liability of the surety or letter of credit issuer to all such persons may not
exceed the sum of the bond or letter of credit.
     (3) A proceeding against the bond or
letter of credit under subsection (2) of this section may not be commenced
unless the commission notifies the water well constructor of the alleged violation
within three years after the date the water well report is filed with the
commission.
     (4) If a well is to be constructed,
altered, abandoned or converted by a person on property owned by that person,
by means of a well drilling machine, the person shall obtain a permit from the
commission before beginning work. Application for the permit shall be in the
form prescribed by the commission and must be accompanied by a fee of $25. At
the time the permit is obtained, the applicant also shall file with the commission
a bond or an irrevocable letter of credit issued by an insured institution as
defined in ORS 706.008 running to the State of Oregon in the sum of $5,000,
ensuring that in the construction, alteration, abandonment or conversion of the
well the landowner shall comply with all the provisions of ORS 537.505 to
537.795 and 537.992 that are applicable to the construction, alteration,
abandonment or conversion of wells and to the rules and standards of well
construction, alteration, abandonment and conversion that have been prescribed
by the commission. Before the person who constructs, alters, abandons or
converts a well referred to in this subsection seals the well, the person must
give 10 daysÂ’ written notice of the construction, alteration, abandonment or
conversion to the commission. After expiration of the notice period, the well
may be sealed even if the commission has not caused the well to be inspected. [1961
c.334 §4; 1971 c.591 §2; 1981 c.416 §4; 1985 c.615 §1; 1985 c.673 §198; 1991
c.331 §78; 1997 c.631 §485; 1999 c.293 §3; 2003 c.144 §1]
     537.756 [1961 c.334 §7; 1971 c.591 §3; repealed by
1981 c.416 §10]
     537.759 [1961 c.334 §8; repealed by 1981 c.416 §10]
     537.762
Report of constructor before beginning work on well; rules; fees. (1) Each person required to possess a
license under ORS 537.747 who has entered into a contract to construct, alter,
abandon or convert a well or cause a well to be constructed, altered, abandoned
or converted shall, before beginning work on the well, make a report to the
Water Resources Commission containing:
     (a) The name and post-office address of
the owner of the well.
     (b) The approximate location of the well.
     (c) The proposed depth and diameter of the
well.
     (d) The proposed purpose or use of the
ground water from the well.
     (2) The commission shall furnish a
convenient means for reports referred to in subsection (1) of this section to
each person who possesses a license under ORS 537.747.
     (3) A separate report shall be furnished
under subsection (1) of this section for each well that is constructed,
altered, abandoned or converted.
     (4) The report furnished under subsection
(1) of this section shall be confidential and maintained as such for one year
or until the well log required under ORS 537.765 is received by the commission,
whichever is earlier. Nothing in this subsection prohibits the commission from
using the report for enforcement actions during the period the report is
considered confidential.
     (5) Each report form submitted under
subsection (1) of this section for the construction of a new well, deepening of
an existing well, or conversion of a well shall be accompanied by a fee of
$125. Notwithstanding the fee established pursuant to this subsection, the
commission may adopt by rule a reduced fee for persons submitting materials to
the Water Resources Department in a digital format approved by the department.
     (6) The moneys paid to the commission
under subsection (5) of this section shall be paid into the Water Resources
Department Operating Fund. All interest, if any, from moneys received under
subsection (5) of this section shall inure to the benefit of the Water
Resources Department. Such moneys and interest earned on such moneys are
continuously appropriated to the department to be used to pay the costs of the
department to employ personnel to inspect wells and well construction. [Formerly
537.632; 1981 c.416 §5; 1985 c.615 §7; 1985 c.673 §69; 1987 c.109 §2; 1989
c.129 §1; 1999 c.293 §4; 2003 c.594 §3; 2005 c.156 §2]
     537.763
Water Resources Department Operating Fund. (1) There is established in the State Treasury the Water Resources
Department Operating Fund to provide for the payment of the administrative
expenses of the Water Resources Commission in carrying out the provisions of
ORS 537.762.
     (2) The Water Resources Department
Operating Fund shall consist of:
     (a) Fees received pursuant to ORS 537.762.
     (b) All moneys received on behalf of the
fund by gift, grant or appropriation, from whatever source.
     (3) The Water Resources Department
Operating Fund shall be separate and distinct from the General Fund. All
interest, if any, shall inure to the benefit of the Water Resources Department
Operating Fund.
     (4) In expending moneys in the Water
Resources Department Operating Fund received from fees pursuant to ORS 537.762,
the biennial limitations on expenditures of the Water Resources Department
shall be:
     (a) No more than five percent for well
inspection administrative support;
     (b) No more than 20 percent for well
inspection technical and information services; and
     (c) No less than 75 percent for well
inspection field investigation and enforcement. [1989 c.129 §4; 2003 c.594 §4]
     Note: 537.763 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 537 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     537.765
Log of constructing, altering, abandoning or converting well; furnishing
samples to Water Resources Commission. (1) The business or activity of constructing new wells or altering,
abandoning or converting existing wells is declared to be a business or
activity affecting the public welfare, health and safety. In order to enable
the state to protect the welfare, health and safety of its citizens, any person
licensed under ORS 537.747, or any person or public agency constructing,
altering, abandoning or converting a well, shall keep a log of each well
constructed, altered, abandoned or converted and shall furnish a certified copy
of the log to the Water Resources Commission within 30 days after the
completion of the construction, alteration, abandonment or conversion.
     (2) The commission shall provide
acknowledgment to the constructor of receipt of a well log submitted under
subsection (1) of this section within 120 days of receipt.
     (3) Each log required under subsection (1)
of this section shall be in a form prescribed by the commission and shall show:
     (a) The name and post-office address of
the owner of the well and the person or public agency performing or causing the
performance of the work of constructing, altering, abandoning or converting the
well.
     (b) The location of the well by county tax
lot number, township, range and section, and to the nearest quarter-quarter
section or latitude and longitude as established by a global positioning
system, or with reference to government survey corners or monuments or corners
of recorded plats.
     (c) The dates of commencement and
completion of the work of constructing, altering, abandoning or converting the
well.
     (d) The depth, diameter and type of the
well.
     (e) The kind and amount of the casing and
where placed in the well, including the number and location of perforations or
screens.
     (f) The flow in cubic feet per second or
gallons per minute of a flowing well, and the shut-in pressure in pounds per
square inch.
     (g) The static water level with reference
to the land surface, and the drawdown with respect to the amount of water
pumped per minute, when a pump test is made.
     (h) The kind and nature of the material in
each stratum penetrated, with at least one entry for each change of formation,
and the thickness of aquifers.
     (i) The temperature of the ground water
encountered and other characteristics of the ground water in detail as required
by the commission.
     (4) If required by the commission, the
person, public agency or licensee referred to in subsection (1) of this section
shall furnish to the commission samples of the ground water and of each change
of formation in containers furnished and transportation expense paid by the
commission. [1955 c.708 §29; 1961 c.334 §11; 1981 c.416 §6; 1985 c.673 §70;
1993 c.774 §5; 1995 c.77 §1; 1999 c.293 §5]
(Well
Constructors Continuing Education Committee)
     Note: Sections 2, 4 and 7, chapter 496, Oregon
Laws 2001, provide:
     Sec.
2. (1) There is established
a Well Constructors Continuing Education Committee consisting of four members
appointed by the Water Resources Director as follows:
     (a) Three persons from the well drilling
industry licensed pursuant to ORS 537.747; and
     (b) One person from the regulatory
community.
     (2) The term of office of each member is
three years, but a member serves at the pleasure of the director. Before the
expiration of the term of a member, the director shall appoint a successor
whose term begins on July 1 next following. A member is eligible for
reappointment. If there is a vacancy for any cause, the director shall make an
appointment to become effective immediately for the unexpired term.
     (3) A member of the committee is entitled
to travel expenses as provided in ORS 292.495.
     (4) Members of the committee must be
residents of this state who are knowledgeable about the principles of well
construction.
     (5) The committee shall select one of its
members as chairperson and another as vice chairperson, for such terms and with
the duties and powers necessary for the performance of the functions of such
offices as the committee determines.
     (6) Three members of the committee
constitute a quorum for the transaction of business. At least three members of
the committee must approve all official actions or decisions of the committee.
[2001 c.496 §2]
     Sec.
4. (1) The Well Constructors
Continuing Education Committee shall recommend to the Water Resources
Commission a process for reviewing and approving continuing education
requirements for licensed water well constructors established by rule pursuant
to subsection (2) of this section.
     (2) The commission shall adopt rules
necessary for the administration of a continuing education program for licensed
water well constructors consistent with the recommendations of the committee.
     (3) The rules adopted by the commission
under this section for the continuing education program shall:
     (a) Authorize the committee to review and
approve continuing education courses and to assign continuing education
credits.
     (b) At a minimum require, for renewal of a
license issued under ORS 537.747, that an applicant:
     (A) Through clinics, schools, professional
organizations or seminars, lectures or other courses of study that relate to
the practice of well construction and that are approved by the committee,
obtain continuing education credits during each licensing period in an amount
designated by the commission, but not to exceed 14 credits; and
     (B) Furnish proof on a form approved by
the committee that the applicant has complied with the continuing education
requirements during the preceding licensing period unless the applicant is
exempt under subsection (4) of this section.
     (4) The commission may waive the
continuing education requirements established by rule pursuant to subsection
(2) of this section for a licensed water well constructor if the constructor
submits satisfactory evidence of inability to attend continuing education
courses because of health, military duty or other circumstances beyond the
control of the constructor.
     (5) For courses sponsored by the Water
Resources Department, the fee for one continuing education credit is $40, and
the total fees per day may not exceed $250.
     (6) The fees collected under this section
for continuing education courses sponsored by the department shall be paid into
the Water Resources Department Water Right Operating Fund. Notwithstanding ORS
536.009, such moneys shall be used to pay the departmentÂ’s expenses associated
with conducting continuing education courses.
     (7) At the time of application to renew a
water well constructorÂ’s license pursuant to ORS 537.747 (5), a person shall
provide the department with evidence of compliance with the continuing
education requirements established pursuant to this section. [2001 c.496 §4;
2007 c.221 §2]
     Sec.
7. Sections 2 to 4, chapter
496, Oregon Laws 2001, are repealed January 2, 2014. [2001 c.496 §7; 2007 c.221
§3]
(Local
Regulation)
     537.769
Local regulation of wells and water well constructors. The Legislative Assembly finds that ground
water protection is a matter of statewide concern. No ordinance, order or
regulation shall be adopted by a local government to regulate the inspection of
wells, construction of wells or water well constructors subject to regulation
by the Water Resources Commission or the Water Resources Department under ORS
537.747 to 537.795 and 537.992. [1989 c.129 §3]
     537.770 [1955 c.708 §30; 1957 c.341 §9; repealed by
1961 c.334 §12]
(Regulation
of Ground Water Wells)
     537.772
Pump tests; report; rules for waiver. (1) The owner or operator of any well, except wells used for purposes
listed in ORS 537.545, shall conduct a pump test at least once every 10 years
and report the results of that test to the Water Resources Commission. The
owner or operator may conduct the test in conjunction with normal pump service
and testing or at any time more convenient to the owner or operator of the
well.
     (2) The owner or operator shall report the
results of the pump test on a form provided by the commission. The form shall
include but need not be limited to the duration of the test, rate of pumping,
total water level decrease and time required for 90 percent recovery of water
level.
     (3) The commission may establish by rule criteria
for waiver of the pump test requirement. [1987 c.649 §5]
     537.775
Wasteful or defective wells; permanent abandonment of old well. (1) Whenever the Water Resources Commission
finds that any well, including any well exempt under ORS 537.545, is by the
nature of its construction, operation or otherwise causing wasteful use of
ground water, is unduly interfering with other wells or surface water supply,
is a threat to health, is polluting ground water or surface water supplies, is
causing substantial alteration of ground water temperatures or is causing
substantial thermal interference with other wells contrary to ORS 537.505 to
537.795 and 537.992, the commission may order discontinuance of the use of the
well, impose conditions upon the use of such well to such extent as may be
necessary to remedy the defect or order permanent abandonment of the well
according to specifications of the commission.
     (2) In the absence of a determination of a
critical ground water area, any order issued under this section imposing
conditions upon interfering wells shall provide to each party all water to
which the party is entitled, in accordance with the date of priority of the
water right.
     (3) A landowner who replaces an old well
by drilling a new well shall permanently abandon the old well if the old well
is within a setback as defined in well construction rules adopted by the
commission. Permanent abandonment of a well located within a setback shall
occur within one year after the function of the well is replaced or within one
year after the water right, if applicable, is transferred to the new well,
whichever is later. [1955 c.708 §25; 1981 c.919 §2; 1985 c.673 §71; 1987 c.442 §2;
1989 c.201 §6; 1989 c.833 §59; 1993 c.774 §12]
     537.777
Regulation of controlling works of wells and distribution of ground water. (1) The Water Resources Commission shall
regulate or cause to be regulated the controlling works of wells and distribute
ground water to secure compliance or equal and fair distribution if the
commission finds that:
     (a) Any person or public agency is using
or attempting to use any ground water or is operating or permitting the
operation of any well owned or controlled by such person or public agency
except upon compliance with ORS 537.505 to 537.795 and 537.992 and any
applicable order or rule of the commission under ORS 537.505 to 537.795 and
537.992; or
     (b) It is necessary in order to secure the
equal and fair distribution of ground water in accordance with the rights of
the various ground water users.
     (2) The regulation of controlling works
and distribution of ground water under subsection (1) of this section shall be
as nearly as possible in the same manner as provided in ORS 540.010 to 540.130.
[1957 c.341 §4; 1985 c.673 §72]
     537.780
Powers of Water Resources Commission; rules; limitations on authority. (1) In the administration of ORS 537.505 to
537.795 and 537.992, the Water Resources Commission may:
     (a) Require that all flowing wells be
capped or equipped with valves so that the flow of ground water may be
completely stopped when the ground water is not actually being applied to a
beneficial use.
     (b) Enforce:
     (A) General standards for the construction
and maintenance of wells and their casings, fittings, valves, pumps and
back-siphoning prevention devices; and
     (B) Special standards for the construction
and maintenance of particular wells and their casings, fittings, valves and
pumps.
     (c)(A) Adopt by rule and enforce when
necessary to protect the ground water resource, standards for the construction,
maintenance, abandonment or use of any hole through which ground water may be
contaminated; or
     (B) Enter into an agreement with, or
advise, other state agencies that are responsible for holes other than wells
through which ground water may be contaminated in order to protect the ground
water resource from contamination.
     (d) Enforce uniform standards for the
scientific measurement of water levels and of ground water flowing or withdrawn
from wells.
     (e) Enter upon any lands for the purpose
of inspecting wells, including wells exempt under ORS 537.545, casings,
fittings, valves, pipes, pumps, measuring devices and back-siphoning prevention
devices.
     (f) Prosecute actions and suits to enjoin
violations of ORS 537.505 to 537.795 and 537.992, and appear and become a party
to any action, suit or proceeding in any court or before any administrative
body when it appears to the satisfaction of the commission that the
determination of the action, suit or proceeding might be in conflict with the
public policy expressed in ORS 537.525.
     (g) Call upon and receive advice and
assistance from the Environmental Quality Commission or any other public agency
or any person, and enter into cooperative agreements with a public agency or
person.
     (h) Adopt and enforce rules necessary to
carry out the provisions of ORS 537.505 to 537.795 and 537.992 including but
not limited to rules governing:
     (A) The form and content of registration
statements, certificates of registration, applications for permits, permits,
certificates of completion, ground water right certificates, notices, proofs,
maps, drawings, logs and licenses;
     (B) Procedure in hearings held by the
commission; and
     (C) The circumstances under which the
helpers of persons operating well drilling machinery may be exempt from the
requirement of direct supervision by a licensed water well constructor.
     (i) In accordance with applicable law
regarding search and seizure, apply to any court of competent jurisdiction for
a warrant to seize any well drilling machine used in violation of ORS 537.747
or 537.753.
     (2) Notwithstanding any provision of
subsection (1) of this section, in administering the provisions of ORS 537.505
to 537.795 and 537.992, the commission may not:
     (a) Adopt any rule restricting ground
water use in an area unless the rule is based on substantial evidence in the
record of the Water Resources Department to justify the imposition of
restrictions.
     (b) Make any determination that a ground
water use will impair, substantially interfere or unduly interfere with a surface
water source unless the determination is based on substantial evidence. Such
evidence may include reports or studies prepared with relation to the specific
use or may be based on the application of generally accepted hydrogeological
principles to the specific use.
     (3) At least once every three years, the
commission shall review any rule adopted under subsection (2) of this section
that restricts ground water use in an area. The review process shall include
public notice and an opportunity to comment on the rule. [1955 c.708 §32; 1981
c.416 §7; 1985 c.673 §73; 1989 c.833 §60; 1995 c.549 §2]
     537.783
Reinjection of geothermal fluids; rules and standards; water pollution control
facilities permit. (1) The
Water Resources Commission shall adopt rules which govern the disposal by
reinjection or other means of geothermal fluids derived from:
     (a) Geothermal or hot water wells less
than 2,000 feet deep producing fluids of less than 250 degrees Fahrenheit
bottom hole temperature; or
     (b) Geothermal or hot water wells less
than 2,000 feet deep producing fluids that have been appropriated pursuant to
ORS 537.505 to 537.795 and 537.992.
     (2) The rules adopted under subsection (1)
of this section shall include standards whereby contamination may be
determined, construction standards for reinjection wells, testing procedures
for identifying aquifers, standards and procedures for determining whether
adjacent aquifers are being degraded by the reinjection process, guidelines for
conservation of the resource, criteria for evaluating reservoirs or zones for
geothermal fluid disposal and requirements for prior approval of all geothermal
fluid reinjection proposals.
     (3) A water pollution control facilities
permit shall be obtained from the Department of Environmental Quality under ORS
468B.050 before reinjection is commenced. The Department of Environmental
Quality may, by agreement with the Water Resources Commission, waive this
requirement for reinjection into the reservoir from which the fluid came where
adequate standards and tests have been adopted to insure the fluid and its
residues are uncontaminated. [1979 c.547 §3; 1985 c.673 §74]
     537.785
Fees. (1) In the
administration of ORS 537.505 to 537.795 and 537.992, the Water Resources
Commission shall collect in advance, the fees set forth in ORS 536.050 and
539.081 for any service similar to any of those referred to in ORS 536.050 or
539.081.
     (2) All fees collected by the commission
under subsection (1) of this section shall be paid into the General Fund of the
State Treasury. [1955 c.708 §33; 1969 c.629 §1; 1979 c.67 §2; 1985 c.673 §75]
     537.786 [1957 c.341 §3; repealed by 1969 c.629 §3]
     537.787
Investigation of violation of ground water laws; remedies for violation. (1) The Water Resources Commission, upon the
commissionÂ’s own initiative, or upon complaint alleging violation of any
provision of ORS 537.505 to 537.795 and 537.992, or any rule adopted pursuant
thereto, may investigate to determine whether a violation has occurred. If the
investigation indicates that a violation has occurred, the commission shall
notify the persons responsible for the violation, including:
     (a) Any well constructor involved; and
     (b) The landowner, if the violation
involves construction, alteration, operation, abandonment or conversion of a
well.
     (2) If, after notice and opportunity for
hearing under ORS chapter 183 the commission determines that one or more
violations have occurred, the commission may:
     (a) Provide additional time for remedy of
the violation if the commission has reason to believe adequate repair or other
remedy will be carried out within the specified period.
     (b) If one or more persons responsible for
the violation hold a water well constructorÂ’s license, suspend, revoke or
refuse to renew the license.
     (c) Assess a civil penalty under ORS
537.992, on the well constructor or other responsible party, including the
landowner if the landowner was involved in the well construction.
     (d) If an involved constructor or
landowner has a surety bond required by ORS 537.753 (1) or (4) in effect, make
demand on the bond in an amount not to exceed the cost of remedying the
violation.
     (e) Impose any reasonable condition on the
water well constructorÂ’s license to insure compliance with applicable laws and
provide protection to the ground water of the State of
     (f) Any other action authorized by law.
     (3) The commission may terminate
proceedings against a person if:
     (a) The landowner does not permit the
person involved in proceedings to be present at any inspection made by the
commission; or
     (b) The commission determines that the
person involved in proceedings is capable of complying with recommendations made
by the commission, but the landowner does not permit the person to comply with
the recommendations. [1985 c.615 §5; 1985 c.673 §199; 1999 c.293 §6]
     537.788 [1993 c.774 §8; repealed by 2005 c.14 §4]
     537.789
Well identification number.
(1) The well identification number provided by the Water Resources Department
when the reporting requirement of ORS 537.762 is satisfied shall be recorded on
the well by a person licensed under ORS 537.747 within 30 days after the
associated well work is completed.
     (2) If a well does not have an
identification number recorded on it at the time the property upon which the
well is located is transferred, the owner of the property shall record on the
well the identification number obtained from the Water Resources Department
under ORS 537.791 within 30 days.
     (3) The identification number on the well
shall be clearly visible to a person looking for the number and shall meet
minimum standards as recommended by the ground water advisory committee
appointed under ORS 536.090 and adopted by the Water Resources Commission. [1993
c.774 §9]
     537.790 [1955 c.708 §34; 1973 c.612 §15; repealed by
1985 c.673 §185]
     537.791
Request for well identification number. (1) A landowner may apply to the Water Resources Department for a
number to identify a well on the landownerÂ’s property.
     (2) The Water Resources Department shall
issue a number to identify a well that has not received a number through the
reporting process required for wells under ORS 537.762 within 10 days after
receipt of the application. [1993 c.774 §10]
     537.792 [1985 c.615 §6; 1985 c.673 §200; 1991 c.734 §52;
renumbered 537.992 in 1993]
     537.793
Effect of failure to comply with ORS 537.789 or 537.791. Failure of a seller to comply with the
provisions of ORS 537.789 or 537.791 does not invalidate an instrument of
conveyance of real estate. [1993 c.774 §11; 2005 c.14 §3]
     537.795
ORS 537.505 to 537.795 supplementary. ORS 537.505 to 537.795 and 537.992 are intended to be supplementary
and in addition to and are not intended to repeal any law relating to the
surface waters of this state. [1955 c.708 §35]
     537.796
Rules regarding low temperature geothermal appropriations. The Water Resources Commission shall adopt
by rule an initial temperature below which low temperature geothermal
appropriations shall not be protected from thermal interference caused by
ground water appropriations for other purposes. [1989 c.201 §§7,8]
     Note: 537.796 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 537 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
SURVEYORS,
ENGINEERS AND GEOLOGISTS
     537.797
Rules for certification of surveyors, engineers and geologists. The Water Resources Commission by rule shall
establish criteria for the certification of registered, professional surveyors
and engineers and geologists practicing as defined in ORS 672.005 and 672.505,
respectively, to conduct surveys to determine whether a permittee has completed
all work necessary to perfect an appropriation of water under ORS 537.230,
537.630 and 540.530. [1987 c.542 §1; 1989 c.171 §70; 1995 c.7 §1]
     Note: 537.797, 537.798 and 537.799 were enacted
into law by the Legislative Assembly but were not added to or made a part of
ORS chapter 537 or any series therein by legislative action. See Preface to
Oregon Revised Statutes for further explanation.
     537.798
Examination for certification of surveyors, engineers and geologists; fees;
revocation. (1) In
accordance with criteria established by the Water Resources Commission, the
State Board of Examiners for Engineering and Land Surveying shall:
     (a) Conduct examinations for certification
of registered, professional surveyors, engineers and geologists to conduct
surveys to determine whether or not a permittee has completed all work
necessary to perfect an appropriation of water under ORS 537.230, 537.630 and
540.530.
     (b) Issue certificates to any land
surveyor, engineer or geologist qualifying for certification under paragraph
(a) of this subsection.
     (c) Collect fees for the examination and
certification of water right examiners under this subsection.
     (2) In accordance with the provisions of
ORS chapter 183 relating to contested cases, the State Board of Examiners for
Engineering and Land Surveying may revoke, suspend or modify certificates
issued under subsection (1) of this section.
     (3) The State Board of Examiners for
Engineering and Land Surveying shall establish fees for the examination,
certification and renewal of certification of water right examiners. The fees
shall be based upon the expenses of the board in conducting a program to
certify water right examiners and the expenses of the Water Resources
Department in providing for examination of water right appropriations by water
right examiners.
     (4) The board shall pay into the State
Treasury all moneys received as fees under subsection (1) of this section. The
State Treasurer shall credit such money to the State Board of Examiners for
Engineering and Land Surveying. The moneys are continuously appropriated to the
board to be used by the board in conjunction with the Water Resources
Department for any expenses incurred by the board and, if approved by the
Governor, any expenses incurred by the Water Resources Department in the
certification, examination and review of activities of water right examiners. [1987
c.542 §2; 1995 c.7 §2]
     Note: See note under 537.797.
     537.799
Survey for issuance of water right certificate. Any person who has applied for or received a
permit or a transfer to appropriate water under ORS 537.211, 537.625 or 540.530
on or before July 9, 1987, shall notify the Water Resources Department that the
work has been completed and either:
     (1) Hire a water right examiner certified
under ORS 537.798 to conduct a survey, the original to be submitted as required
by the Water Resources Department, for issuance of a water right certificate;
or
     (2) Continue to appropriate water under
the water right permit or transfer issued under ORS 537.211, 537.625 or 540.530
until the Water Resources Department conducts a survey and the commission
issues a water right certificate under ORS 537.250 or 537.625. [1987 c.542 §3]
     Note: See note under 537.797.
WASTE, SPRING
AND SEEPAGE WATERS
     537.800
Waste, spring and seepage waters; laws governing. (1) All ditches now or hereafter
constructed, for the purpose of utilizing waste, spring or seepage waters,
shall be governed by the same laws relating to priority of right as those
ditches constructed for the purpose of utilizing the waters of running streams.
However, the person upon whose lands the seepage or spring waters first arise
shall have the right to the use of such waters.
     (2) As used in this section, “spring”
means a point where water emerges naturally from the earth as a result of
gravity flow or artesian pressure. [Formerly 537.710; 1989 c.939 §2; 1991 c.200
§2; 1995 c.79 §303]
DIVERSION OF
WATERS FROM
     537.801
Definitions; findings. (1)
As used in ORS chapters 537 and 540:
     (a) “Basin” means one of the river basins
within this state, as defined by Water Resources Department Map No. 0.2, dated
1987, and entitled “Oregon Drainage Basins,” unless the context requires
otherwise.
     (b) “Basin of origin” means the basin in
which surface or ground water that is the subject of an application under ORS
537.211, 537.400, 537.620, 540.520, 543.210 or 543.290 is located.
     (2) The Legislative Assembly finds that
the transport of significant quantities of water outside the boundaries of the
basin of origin may have a significant impact on the water and other resources
of the basin of origin.
     (3) Therefore, the Legislative Assembly
declares that the waters of the state may not be appropriated, stored or
diverted for use outside the basin of origin except in compliance with the
provisions of ORS 537.801 to 537.860, including, if applicable, the prior
approval of the Legislative Assembly under ORS 537.810. [1989 c.936 §§2,3]
     537.803
Application proposing use of water outside of basin of origin; contents. (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) 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 only to an
application filed on and after October 3, 1989.
     (3) This section shall not apply to an
application for exchange of water under ORS 540.533 to 540.543.
     (4) This section shall 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
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. [1989 c.936 §4]
     537.805
Processing of application; hearing; action on application. Notwithstanding any other provision of ORS
537.801 to 537.809, an application governed by ORS 537.803 shall be processed
as follows:
     (1) Upon determination that the
application is acceptable, the Water Resources Commission shall conduct a
comprehensive review of the application, at the applicantÂ’s expense.
     (2) When the comprehensive review is
complete, the commission shall issue a preliminary analysis of the application
that addresses the factors under ORS 537.803 and any other information the
commission considers relevant. The preliminary analysis, or a reasonable
summary, shall be published at the applicantÂ’s expense for three consecutive
weeks in a newspaper of general circulation in the basin of origin of the
proposed appropriation, diversion or impoundment.
     (3) Following publication, the commission
shall conduct a public hearing at the applicantÂ’s expense, in the basin of
origin. The hearing shall be for comment on the factors analyzed under ORS
537.803 and standards that otherwise apply to the proposed appropriation or
transfer.
     (4) After considering the application, the
information generated during the comprehensive review of the application, all
comments received at the hearing and written comments received within 20 days
after the date of the public hearing, the commission shall:
     (a) If the application requires
legislative approval under ORS 537.810, submit a report to the Legislative
Assembly that addresses all factors analyzed under ORS 537.803 and recommends
whether to approve or deny the application for use of water outside the basin
of origin; or
     (b) If the application does not require
legislative approval under ORS 537.810, approve or deny the application in
accordance with the procedures and standards that otherwise govern the
application, giving due consideration to factors set forth in ORS 537.803. [1989
c.936 §5]
     537.807 [1989 c.939 §6; repealed by 1991 c.200 §3]
     537.809
Reservation of water in basin of origin. Before approving or recommending approval of an application subject to
ORS 537.803, the Water Resources Commission shall reserve an amount of water
adequate for future needs in the basin of origin, including an amount
sufficient to protect public uses, and subordinate the out-of-basin use to that
reservation. [1989 c.936 §6]
     537.810
Diversion or appropriation of waters from basin of origin without legislative
consent prohibited; terms of consent; exceptions. (1) No waters located or arising within a
basin shall be diverted, impounded or in any manner appropriated for diversion
or use beyond the boundaries of that basin except upon the express consent of
the Legislative Assembly. In the event the Legislative Assembly shall give its
consent to any such request it may attach thereto such terms, conditions,
exceptions, reservations, restrictions and provisions as it may care to make in
the protection of the natural resources of the basin and the health and welfare
of the present and future inhabitants of the basin within which the water
arises or is located.
     (2) Subsection (1) of this section shall
not apply to appropriations or diversions of less than 50 cubic feet per second
out of the basin of origin.
     (3) Subsection (1) of this section shall
not apply to appropriations or diversions within the
     (4) This section shall 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. [Amended by
1989 c.936 §7]
     537.820
Application of provisions to waters forming common boundary between states. ORS 537.801 to 537.860 shall also apply to
the waters located within the boundaries of this state of any river, stream,
lake or other body of water serving as part of the common boundary of this
state and any other state and over which this state has concurrent
jurisdiction, except that said sections shall not apply to the diversion,
impoundment or appropriation of waters for the development of hydroelectric
energy, flood control, irrigation or other uses in waters forming a boundary of
the state in cases where such waters are not to be diverted from the drainage
basin wherein such waters are located.
     537.830
Condemnation of waters for use outside basin of origin. No person, or agency of any state or of the
     537.835
     (a) The City of
     (b) The City of
     (2) The Water Resources Commission may
from time to time direct that a designated portion of the impounded waters
shall be held in the State of
     (3) Prior to commencing construction, the
City of Walla Walla shall make application for such appropriation, impoundment
and diversion to the Water Resources Commission and such appropriation,
impoundment and diversion shall be allowed upon such additional terms,
conditions, reservations, restrictions and provisions, including minimum
streamflow, as the Water Resources Commission shall impose for the protection
and benefit of the State of Oregon. [1975 c.732 §2; 1985 c.673 §76]
     537.840
Legislative consent; filing of certified copy; appropriation rights and
procedure. Upon receiving
legislative permission to appropriate waters under ORS 537.801 to 537.860, the
permittee, upon filing in the Water Resources Department a certified copy of
the Act, certified to by the Secretary of State, may proceed to obtain an
appropriation of waters in the manner provided by the laws of this state for
the appropriation of waters for beneficial use, subject to all existing rights
and valid prior appropriations and subject to the terms, conditions,
exceptions, reservations, restrictions and provisions of such legislative
consent. [Amended by 1985 c.673 §77]
     537.850
Suits to protect state interests; right of redress to private persons. In the event of any violation or attempt to
violate any of the provisions of ORS 537.801 to 537.860, the Governor shall
cause to be instituted such suits and actions as may be necessary to protect
and defend the sovereign rights and interests of the state in the premises.
Persons are given right of redress against such violator at private suit or
action under any appropriate remedy at law or in equity.
     537.855
Domestic water supply district permitted to divert water out of state;
conditions. (1) Pursuant to
the provisions of ORS 537.810, consent is hereby given to any domestic water
supply district formed under ORS chapter 264 to permit the diversion of water
for use on property a portion of which is within a state adjoining
     (a) The majority of the property is within
     (b) The property is developed with
economic benefit to
     (c) The costs of the diversion are borne
by the developer or owner of the property.
     (d) The developer employs only residents
of
     (2) The diversion of water under this
section shall be subject to additional terms, conditions, reservations,
restrictions and provisions as the Water Resources Commission shall impose for
the protection and benefit of the State of
     537.860
Vested rights protected. ORS
537.810 to 537.850 shall not affect any valid prior appropriation or water
right existing on May 12, 1951.
     537.870
Out-of-state municipalities; acquisition of land and water rights in
PENALTIES
     537.990
Criminal penalties. (1)
Violation of ORS 537.130 (2) is punishable, upon conviction, by a fine of not
less than $10 nor more than $250, or by imprisonment in the county jail for not
more than six months, or both.
     (2) Any person who willfully diverts or
uses water to the detriment of others without compliance with law shall be
punished as provided in subsection (1) of this section. The possession or use
of water, except when a right of use is acquired in accordance with law, shall
be prima facie evidence of the guilt of the person using it.
     (3) Violation of ORS 537.535 (1) is
punishable, upon conviction, by a fine of not less than $10 nor more than $250,
or by imprisonment in the county jail for not more than six months, or both.
Violation of ORS 537.747 is a Class B misdemeanor.
     (4) Justice courts shall have concurrent
jurisdiction with the circuit courts in the trial of all violations under this
section. [Subsection (3) enacted as 1955 c.708 §36; 1963 c.293 §3; 1981 c.416 §8]
     537.992
Civil penalties; schedule of penalties; rules. (1) In addition to any other remedy provided
by law, the Water Resources Commission may impose a civil penalty against any
person who, in the construction of a well, violates any provision of ORS 537.747
to 537.795 and 537.992, or any rule promulgated pursuant thereto. A civil
penalty shall be in an amount determined by the commission in accordance with
the rules adopted under subsection (2) of this section. However, the commission
shall not impose a civil penalty under this section if the commission, by
exercising other authority granted under ORS 537.505 to 537.795 and 537.992,
causes the person to comply with the provisions of ORS 537.747 to 537.795 and
537.992 or rules adopted thereunder.
     (2) The commission shall adopt by rule a
schedule of penalties for violation of ORS 537.747 to 537.795 and 537.992, not
to exceed $1,000 for each occurrence defined in the rules as a major violation,
and not to exceed $250 for each occurrence defined in the rules as a minor
violation. Under no circumstances may a penalty for a violation of ORS 537.762
or 537.765 exceed $250.
     (3) Civil penalties under this section
shall be imposed as provided in ORS 183.745.
     (4) All amounts recovered under this
section shall be deposited in the General Fund. [Formerly 537.792]
_______________
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