Reauthorizing and Decommissioning Hydroelectric Projects
Conversion of hydroelectric water right to in-stream water right
(1)As used in this section:
(a)“Holder” has the meaning given that term in ORS 543.075 (Definitions for ORS 543).
(b)“In-stream water right” has the meaning given that term in ORS 537.332 (Definitions for ORS 537).
(c)“Reauthorize” has the meaning given that term in ORS 543.075 (Definitions for ORS 543).
(2)An in-stream water right shall be subject to the limitations of ORS 537.350 (Legal status of in-stream water right) and shall be maintained in perpetuity, in trust for the people of the State of Oregon. The priority date of the in-stream water right shall be the same as that of the converted hydroelectric water right. The location of the in-stream water right shall be the same as the point of diversion identified in the hydroelectric water right.
(3)Five years after the use of water under a hydroelectric water right ceases, or upon expiration of a hydroelectric water right not otherwise extended or reauthorized, or at any time earlier with the written consent of the holder of the hydroelectric water right, up to the full amount of the water right associated with the hydroelectric project shall be converted to an in-stream water right, upon a finding by the Water Resources Director that the conversion will not result in injury to other existing water rights. In making the evaluation, the director shall consider the actual use of the hydroelectric project and the resulting impacts on actual use by other existing water rights as of October 23, 1999. The director may include mitigation measures as conditions of the in-stream water right to avoid injury and to ensure the continuation of authorized water uses by other existing water rights.
(4)If the hydroelectric project is authorized by a pre-1909 unadjudicated claim of registration, the determination of injury shall be based upon an evaluation of the actual use as measured during the five years preceding the conversion action, and shall not constitute a determination under ORS 537.670 (Determination of rights to appropriate ground water of ground water reservoir) to 537.695 (Conclusive adjudication) as to the underlying claim of registration of the pre-1909 use. Judicial review of a final order relating to such a conversion shall be limited to review of the conversion action.
(5)This section shall not apply to projects on boundary waters that operate with water rights issued by the State of Oregon and by any other state except upon the written request of the water right holder.
(6)If hydroelectric production is not the sole beneficial use authorized by a water right, this section shall apply only to conversion of that portion of the water right used exclusively for hydroelectric purposes.
(7)This section shall not apply if the holder, at any time prior to conversion under subsection (3) of this section, transfers the hydroelectric water right under ORS 540.520 (Application for change of use, place of use or point of diversion) and 540.530 (Order authorizing change of use, place of use or point of diversion), except that if a time-limited hydroelectric water right is transferred under ORS 540.520 (Application for change of use, place of use or point of diversion) and 540.530 (Order authorizing change of use, place of use or point of diversion), the provisions of this section shall apply at the time of expiration of the time-limited water right. [1999 c.873 §2]
Notes of Decisions
Where water was used at least once every five years for in-stream purposes but not solely for hydroelectric purposes in more than five years, hydroelectric use has ceased and this section is triggered, because “use of water under a hydroelectric water right” means use of water solely for hydroelectric purposes. WaterWatch of Oregon v. Water Resources Dept., 369 Or 71, 501 P3d 507 (2021)