ORS 537.746
Mitigation credits for projects in Deschutes River Basin; relationship to water made available; rules; annual report


The Water Resources Commission may by rule establish a system of credits that may be used to offset the potential interference with hydraulically connected surface waters caused by ground water withdrawals within the Deschutes River Basin to account for projects performed in the basin that make water available for mitigation.


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 (Highest and best use of waters within scenic waterways), and may not result in injury to existing water rights.


(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.


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.


Mitigation credits shall remain valid until exercised by the holder.


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.


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, 2, 4 and 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 (Short title) to 537.795 (ORS 537.505 to 537.795 supplementary). [2005 c.669 §1]
Sec. 2. The Legislative Assembly declares that rules adopted by the Water Resources Commission for the Deschutes Basin ground water study area and certified effective by the Secretary of State on September 27, 2002, satisfy the requirements relating to mitigation under ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement), 537.332 (Definitions for ORS 537.332 to 537.360) to 537.360 (Relationship between application for in-stream water right and application for certain hydroelectric permits) and 537.505 (Short title) to 537.795 (ORS 537.505 to 537.795 supplementary). [2005 c.669 §2]
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, chapter 669, Oregon Laws 2005, on January 2, 2029.


Ground water permits and mitigation projects approved before the repeal remain valid and effective. [2005 c.669 §5; 2011 c.694 §1]
§§ 537.505 to 537.795

Notes of Decisions

Ground Water Act of 1955, construed together with ORS chapter 536, governing administration of water resources generally, cannot be read as expressly prohibiting local bodies from engaging in regulatory activity consistent with statute or agency regulations. Water Resources Dept. v. City of Klamath Falls, 68 Or App 148, 682 P2d 779 (1984), Sup Ct review denied

Atty. Gen. Opinions

Requirements for exploring for or production of geothermal or oil or gas resources, (1974) Vol 37, p 68

Law Review Citations

4 EL 333 (1974); 47 WLR 405 (2011)

Chapter 537

Notes of Decisions

Water control district, in applying for water appropriation permit for hydroelectric project, was exempt from licensing provisions of ORS 543.010 to 543.620 and needed only to comply with requirements of this chapter. Steamboaters v. Winchester Water Control Dist., 69 Or App 596, 688 P2d 92 (1984), Sup Ct review denied

Atty. Gen. Opinions

Reservation to state of “all coal and other minerals” in deed of land by state as reservation of geothermal resources, (1980) Vol 41, p 298

Law Review Citations

11 EL 387 (1981); 16 EL 583, 592 (1986); 28 WLR 285 (1992)

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May. 15, 2020