Application for change of use, place of use or point of diversion
- public notice
(1)Intentionally left blank —Ed.
(a)Except when the application is made under ORS 541.327 (Failure or refusal of district to act) or when an application for a temporary transfer is made under ORS 540.523 (Temporary transfer of water right or permit), if the holder of a water use subject to transfer for irrigation, domestic use, manufacturing purposes, or other use, for any reason desires to change the place of use, the point of diversion, or the use made of the water, an application to make such change, as the case may be, shall be filed with the Water Resources Department.
(b)A holder of a water right certificate that authorizes the storage of water may change the type of use identified in the water right certificate, as described in this section.
(2)The application required under subsection (1) of this section shall include:
(a)The name of the owner;
(b)The previous use of the water;
(c)A description of the premises upon which the water is used;
(d)A description of the premises upon which it is proposed to use the water;
(e)The use that is proposed to be made of the water;
(f)The reasons for making the proposed change; and
(g)Evidence that the water has been used over the past five years according to the terms and conditions of the owner’s water right certificate or that the water right is not subject to forfeiture under ORS 540.610 (Use as measure of water right).
(3)If the application required under subsection (1) of this section is necessary to allow a change in a water right pursuant to ORS 537.348 (Purchase, lease or gift of water right for conversion to in-stream water right), is necessary to complete a project funded under ORS 541.932 (Watershed enhancement project assistance), or is approved by the State Department of Fish and Wildlife as a change that will result in a net benefit to fish and wildlife habitat, the department, at the discretion of the Water Resources Director, may waive or assist the applicant in satisfying the requirements of subsection (2)(c) and (d) of this section. The assistance provided by the department may include, but need not be limited to, development of an application map.
(4)If the application is to change the point of diversion, the transfer shall include a condition that the holder of the water right provide a proper fish screen at the new point of diversion, if requested by the State Department of Fish and Wildlife.
(5)Upon the filing of the application the department shall give notice by publication in a newspaper having general circulation in the area in which the water rights are located, for a period of at least two weeks and not less than one publication each week. The notice shall include the date on which the last notice by publication will occur. The cost of the publication shall be paid by the applicant in advance to the department. In applications for only a change in place of use or for a change in the point of diversion of less than one-fourth mile, and where there are no intervening diversions between the old diversion of the applicant and the proposed new diversion, no newspaper notice need be published. The department shall include notice of such applications in the weekly notice published by the department.
(6)Within 30 days after the last publication of a newspaper notice of the proposed transfer or the mailing of the department’s weekly notice, whichever is later, any person may file, jointly or severally, with the department, a protest against approval of the application.
(7)If a timely protest is filed, or in the opinion of the Water Resources Director a hearing is necessary to determine whether the proposed changes as described by the application would result in injury to existing water rights, the department shall hold a hearing on the matter. Notice and conduct of the hearing shall be under the provisions of ORS chapter 183, pertaining to contested cases, and shall be held in the area where the rights are located unless all parties and persons who filed a protest under this subsection stipulate otherwise.
(8)An application for a change of use under this section is not required if the beneficial use authorized by the water use subject to transfer is irrigation and the owner of the water right uses the water for incidental agricultural, stock watering and other uses related to irrigation use, so long as there is no increase in the rate, duty, total acreage benefited or season of use.
(9)A water right transfer under subsection (1) of this section is not required for a general industrial use that was not included in a water right certificate issued for a specific industrial use if:
(a)The quantity of water used for the general industrial use is not greater than the rate allowed in the original water right and not greater than the quantity of water diverted to satisfy the authorized specific use under the original water right;
(b)The location where the water is to be used for general industrial use was owned by the holder of the original water right at the time the water right permit was issued; and
(c)The person who makes the change in water use provides the following information to the Water Resources Department:
(A)The name and mailing address of the person using water under the water right;
(B)The water right certificate number;
(C)A description of the location of the industrial facility owned by the holder of the original water right at the time the water right permit was issued; and
(D)A description of the general industrial use to be made of the water after the change. [Amended by 1983 c.807 §1; 1985 c.673 §94; 1987 c.339 §3; 1989 c.1000 §7; 1995 c.274 §7; 1995 c.490 §2; 1997 c.42 §3; 1999 c.555 §4; 1999 c.664 §2; 2011 c.52 §6; 2021 c.633 §2]
Section 540.520 — Application for change of use, place of use or point of diversion; public notice; protest; hearing; exemptions,
Notes of Decisions
“Point of diversion” means place designated by permittee in application for water rights and in certificate. Vandehey v. Wheeler, 13 Or App 25, 507 P2d 831 (1973), Sup Ct review denied