Distribution and Storage of Water
Permanent transfer of place of use of water within district
(1)In accordance with this section, a district may by petition request that the Water Resources Department approve the permanent transfer of the place of use of water within a district as long as the proposed transfer complies with all of the following:
(a)The rate, duty and total number of acres to which water is to be applied under the water use subject to transfer are not exceeded;
(b)The use authorized under the water use subject to transfer remains the same;
(c)The change in place of use will not result in injury to any existing water right; and
(d)The land from which the water right is removed by the transfer shall receive no water under the transferred right.
(2)A district may submit a petition for a permanent transfer prior to or subsequent to the change in place of use, but no later than the end of the calendar year in which the change occurs. The petition submitted by the district may include an unlimited number of transfers within the same petition. A petition under this section shall:
(a)Include the information required under ORS 540.574 (Petition for approval of transfer) (3), except for the statement that a notice under ORS 540.572 (Application of certificated water elsewhere within district) (2) has been given;
(b)Be accompanied by a map in a form satisfactory to the department and certified by the district. If the water right is on a tract of land of five acres or less, the assessor’s tax map with a notation of the acres of water right shall be sufficient for identification of the tract and place of use;
(c)Include a statement that each landowner affected by a permanent transfer has authorized the transfer in a writing that is on file with the district;
(d)Include any other information required by rules of the Water Resources Commission; and
(e)Include the fee required under ORS 536.050 (Fees) (1)(h) for a change in the place of use.
(3)If a district allows a change in the place of use of water before obtaining the approval of the department, the district shall:
(a)Notify each affected landowner that the change is subject to the approval of the department and that the department may reject the transfer or may require mitigation to avoid injury to other water right holders; and
(b)Notify the department in advance of the change. The notice shall include:
(A)The name of the district and the certificate number of each water right that is the subject of the change;
(B)The names of the users within the district from whose lands and to whose lands water rights are to be transferred;
(C)A general description of the users’ lands by township, range, quarter quarter section and tax lot number, and of the water right, for each parcel from which and to which water rights are to be transferred; and
(D)A description of the use that is proposed to be made of the water on each parcel.
(4)Upon receipt of the notice required under subsection (3)(b) of this section, the department shall provide public notice in the weekly notice published by the department.
(5)If a district allows a change in the place of use of water before obtaining approval of the department under this section, the department may direct the district to cease delivery of water or mitigate injury where the change in place of use is causing injury to an existing water right.
(6)Within 15 days after the filing of a petition under subsection (2) of this section, the department shall include notice of the petition in the weekly notice published by the department. Within 30 days after the mailing of the department’s weekly notice, any potentially affected holder of an existing water right may file, jointly or severally, with the department, a protest against approval of the petition.
(7)Subject to the provisions of subsection (8) of this section, whenever a timely protest is filed, or in the opinion of the Water Resources Director a hearing is necessary to determine whether the proposed changes as described in the petition would result in injury to existing water rights, the department may hold a hearing on the petition. Notice and conduct of the hearing shall be according to the provisions of ORS chapter 183 pertaining to contested cases, shall be scheduled within 45 days after the filing of the petition, 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)If a water user within the district files a protest claiming injury to a water right delivery by the district, no contested case hearing shall be required, but the district shall resolve the matter directly with the water user.
(9)After examination or hearing, the department shall issue an order approving the transfer if the proposed change can be effected without injury to existing water rights. If no hearing is scheduled under subsection (7) of this section, the order of the department shall be issued within 90 days after the date of the filing of the petition. If the proposed change cannot be effected without injury to existing water rights, the department may condition approval, including requiring mitigation of the effects on other water rights, to the extent necessary to avoid injury. If a hearing is scheduled, the department shall issue a final order within 120 days after scheduling the hearing.
(10)Within 20 days after the director issues a final order under this section, the district or any protestant may file with the commission exceptions to the final order. The commission shall issue an order granting or denying the exceptions within 30 days after receiving the exceptions.
(11)If a certificate covering the water right has been previously issued, the department may amend the certificate or may cancel the certificate and issue a new certificate preserving the previously established priority of rights and covering the authorized changes. If only a portion of the water right covered by the previous certificate is affected by the changes, a separate new certificate may be issued to cover the unaffected portion of the water right. A certificate as amended or issued under this section has the evidentiary effect provided for in ORS 537.270 (Conclusiveness of certificate) as to the new lands except when the right to appropriate water described in the certificate is abandoned after the certificate is amended or issued.
(12)Notwithstanding the provisions of subsection (2) of this section, a petition filed on or before December 31, 1996, may include all changes in place of use allowed by a district after July 1, 1992, and before November 30, 1996. [1995 c.554 §2; 1997 c.587 §13; 1999 c.804 §2; 2001 c.788 §§5,11]
Law Review Citations
11 EL 390 (1981)