Water Right Transfers OAR Chapter 690, Division 380

Transfer = Change Place of use (including to instream) Character of use (Type) Move a point of Point of Diversion (POD) / Point of Appropriation (POA) Add POD’s and/or POA’s Self explanatory

Some things don’t Change Priority Dates The Amount of Water allowed to be beneficially used

Types of Transfers Permanent (many varieties) Temporary up to 5 years (25 yrs in Deschutes Basin) District Permanent District Temporary Substitution Water exchange Permit Amendment Groundwater Registration Modification Historic Point of Diversion Instream Permanent Transfers varieties include any combination of changes allowed, places of use, points of diversion, points of appropriation, character of use, exchanges, substitutions, etc…

Who can do a Transfer? Irrigation Districts Water right holders Any individual or entity with permission from the water right holder Anyone – a holder of a water right or someone who has permission from the holder of a water right subject to transfer

What’s Needed First? A “water right subject to transfer” Perfected or decreed right with a non-cancelled Certificate Approved previous transfer for which a Claim of Beneficial Use (COBU) has been received (however, the new transfer cannot be approved until the previous transfer’s COBU is approved, as evidenced by a confirming certificate) Permit (only if a supplemental is moving with its primary certificated right, or if request is a substitution or permit amendment) What is subject to transfer? What does that mean? A water use established by; an adjudication under ORS Chapter 539 as evidenced by a court decree A water right certificate A water use permit for which a request for issuance of a water right certificate under ORS 537.250 has been received and approved by the Water Resources Commission under ORS 537.250 –OR A transfer application for which an order approving the change has been issued under ORS 540.530 and for which proper proof of completion of the change has been filed with the Water Resources Commission.

Valid Water Right or Permit The right must be valid and not subject to forfeiture. Used within the last 5 years if it’s a certificated right, or It qualifies for an exception under ORS 540.610 Not past the Completion date (C-date) if a permit amendment

Must haves “attachments” Affidavit of Use Documentary evidence of use (to back up what’s asserted in the affidavit) Map or maps showing the “authorized, from or off” status, and the “proposed, to, or on” changes, A CWRE map required unless it is a temporary, historic POD, permit amendment or a district transfer) Land use form (unless ALL 4 exceptions are satisfied) Well log for each existing well and proposed construction info for each proposed well A CWRE map required unless it is a temporary, historic POD, permit amendment or a district transfer Instream transfers do not need a “to” map for the portion going to instream use. A map waiver may be requested from a Regional Manager for Instream transfers associated with OWEB projects. Must have all 4 Land Use exceptions include 1) place of use change only 2) no structural changes 3) they are for Irrigation use only AND 4) It’s located in a designated Farm Zone. Well logs are publically viewable on our website (if you need to locate one )

Application Review The next few slides we are going to look at what the Department looks at before issuing the Preliminary Determination.

Reasons an application may be returned Include Missing fees Not signed (need all landowners signatures) Incomplete application (missing attachments) Map doesn’t meet standards Right not subject to transfer (the permit expired, cancelled certificate, Claim of Beneficial Use (COBU) has not been approved, etc. We try our best to accept applications, I believe it is always better if possible to meet with Department Staff and go over your application if you have any questions in advance of submittal.

What is Injury? “Injury” or “Injury to an existing water right” means a proposed transfer would result in another, existing water right not receiving previously available water to which it is legally entitled.

Would there be injury? “Injury to an existing water right means a proposed transfer would result in another, existing water right not receiving previously available water to which it is legally entitled.” OAR 690-380-0100(3) Are return flows visibly coming from the place of use? Are return flows from the use available to downstream rights calling on the same source? If the full quantity of water were used, would there be return flows? If there were return flows, where would they go--back to the source, another stream, upstream/downstream of other PODs? The Injury review is made by Watermasters, Groundwater staff, with input from other Agencies as needed, and your caseworker who is responsible for the file. Conditions may be added to prevent injury.

More about Injury Diversion of water at the full rate and/or duty for the currently authorized use would be wasteful If so, may need to limit transfer amount May be less of an issue if character of use not changed Upstream movement of the POD would reduce flow in a reach where an instream water right will not be met Intervening PODs between authorized and proposed PODs Change in POD would be upstream within/into instream water right reach

Continued… Streamflows insufficient to meet all rights how frequently? Less water available to the transferred right at the new POD due to channel losses (this could lead to an increase in calls against upstream junior users) portion of flow lost? Significant inflow between authorized and proposed POD Checking for instream rights can be made in advance of submittal and conversations can begin with ODFW before application. This may give you an idea of what process your application will have to make.

Consent to Injury OAR 690-380-5030, 5040, 5050 Water right holder may consent to injurious POD change Out-of-stream users must sign affidavit consenting WRD may consent to injury of instream rights typically involves upstream movement of POD only on recommendation of ODFW/DEQ/Parks change must produce net benefits for the resource We request the recommendation of the Agency or Agencies who requested the instream protection.

What is Enlargement? “Enlargement” means an expansion of a water right and includes, but is not limited to: (a) Using a greater rate or duty of water per acre than currently allowed under a right; (b) Increasing the acreage irrigated under a right; (c) Failing to keep the original place of use from receiving water from the same source; or (d) Diverting more water at the new point of diversion or appropriation than is legally available to that right at the original point of diversion or appropriation.

Would there be enlargement?? If the Original place of use continues to receive water from the same source If there is More water available at new Point of Diversion (POD) than legally available at original If More water is available at new Point of Appropriation (POA) than legally available at original Any Increase in acreage irrigated Conditions can we added to prevent enlargement of the Right.

Review Criteria

Is the Right Valid? Available information indicates the right has been used during the past five years If we go to cancellation, we will need to develop the supporting information A presumption of forfeiture likely would be overcome One of the 20+ (and counting) exceptions under ORS 540.610 is present The 20 + include –1) the finding of forfeiture would impair the rights of such cities and towns to the use of water 2)the use of water or rights of use, are appurtenant to property obtained by the dept. of Veterans affairs 3)inability to use the water due to economic hardship 4)Land was withdrawn from use through an act of Congress 5)climate conditions made it unnecessary to use 6)water right holder was prohiblited by law 7) the nonuse period occurred at a time when the land was involved in a water right transfer 8) the nonuse of a supplemental occurred at a time when the primary was leased instream 9) water user required less water to accomplish beneficial use 10)period of nonuse occurred more than 15 years before the evidence of nonuse was submitted 11) use of water was discontinued under an order of the commission 12)Water was not available from the source as a few examples..see 540.610 for more

Ready, Willing, Able? System capacity to divert full quantity allowed under transferred portion of right If not now, then within last five years? Transmission and application capability to use water on all lands involved in the transfer

Changes in POD/POA Is this an additional POD/POA or a change in POD/POA (for the portion of the right involved in the transfer)? Is the movement upstream or downstream? Is the new POA/POD more than ¼ mile from the authorized point? Are there intervening points of diversion? Are there significant areas of inflow or losing reaches between proposed & authorized points? POD is a Point of Diversion and a POA is a Point of Appropriation

“From” Lands Ownership Application and map to existing right should be consistent with the water right of record If you intend to move the Place of Use- check plat card for other rights appurtenant to the “from” lands Plat card checks are a simple way to check for other rights in the area and underlying sometimes rights are assumed to be present and are not and sometimes people don’t even realize that water rights are where they think they are not (forgotten rights.) I have run into both and have worked with the applicants to cancel and diminish rights; http://apps.wrd.state.or.us/apps/wr/wrinfo/wr_platcard.aspx

Identifying the “To” Lands Checking for other rights –underlying rights may need to be diminished or cancelled. The Department will work with applicant to resolve conflicts Diminishment of right to supplemental Voluntary cancellation Amend transfer to change “to” lands to avoid overlap Plat card checks also come in handy when trying to identify underlying rights; We should have a plan together of what we are going to do with any underlying rights before we get to the Preliminary Determination step in the process.

Preliminary Determinations and Final Orders

Sequence of communication Deficiency letter sent to applicant if application needs major revisions Draft Preliminary Determination (DPD) & Cover Letter to applicant, with copy to Watermaster, Agent, and CWRE can be used to identify deficiencies allow modification of application within 30 days request is made now for Ownership Documentation establish path to issue final PD absent response

Process continued Signed Preliminary Determination (PD) issued with copies to Watermaster, CWRE, commenters Public notice on WRD website Publication in newspaper for 2 consecutive weeks (applicant responsible for fees) Protest period ends 30 days after WRD public notice or last date of newspaper publication, whichever is later A letter is sent to the applicant requesting the newspaper fees (if necessary) Newspaper notices are not always necessary. 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 diversion between the old diversion of the applicant and the proposed new diversion.

Protests, etc. If protests filed, negotiate agreement or hold contested case hearing Applicant may protest negative PD, or after Final Order is issued may petition for judicial review or reconsideration by the Director 690-380-4030 Protests and Requests for Hearings (1) Within 30 days after the date of last publication of the newspaper notice or the Department's weekly notice as prescribed by OAR 690-380-4020, whichever is later: (a) Any person may file, jointly or severally, with the Department, a protest or standing statement; and (b) If the Department's preliminary determination is that a proposed change in point of diversion or appropriation would result in injury, the applicant may file a notification of intent to pursue approval of the transfer under OAR 690-380-5030 to 690-380-5050. (2) A person filing a protest under this rule must comply with the provisions of OAR 690-002-0030 and include the fee required under ORS 536.050. (3) An applicant filing a protest under this rule must provide the affidavit required under OAR 690-380-4020(3) to the Department prior to or concurrent with the filing of the protest. (4) Each person submitting a protest shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting the person's position by the close of the protest period. Failure to raise a reasonably ascertainable issue in a protest or failure to provide sufficient specificity to afford the Department an opportunity to respond to the issue may preclude consideration of the issue during the hearing. (5) The Department shall provide to persons who have filed standing statements as defined in OAR 690-380-0100(11) notice of any differences between the Department's preliminary determination and the final order, notice of a hearing on the application under OAR 137-003-0535, and an opportunity to request limited party status or party status in the hearing. Stat. Auth.: ORS 536.025 & 536.027 Stats. Implemented: ORS 183.310 - 183.550, 536.050 & 540.530

Final Order Issued consistent with PD if no protests Approves or denies changes Certificates are cancelled in most cases, & remaining right certificate issued for unaffected portion of the right Applicant can begin to implement changes Permanent changes must be completed by a specified date, or an extension is needed Changes need to be proved up on, with submittal of a Claim of Beneficial Use The Final Order will be issued (if not protested) consistent with the Preliminary Determination . Upon issuance of the Final Order the applicant can implement the changes consistent with the order approving. The applicant is usually given a year to complete however this can vary if the applicant asks for additional time in advance of the PD otherwise an application for an extension of time will be necessary to complete the changes and prove up on them.

Proving Up For Permanent OAR 690-380 transfers and Permit Amendments only: Applicant completes changes and puts water to beneficial use by the Completion date (C-date), or applies for a “Transfer Extension of Time” Applicant hires a CWRE to prepare a Claim of Beneficial Use (COBU) and Map Then the Department reviews and approves COBU, and issues a new certificate for the changed right If the Transfer changed only a portion of the right the Department will issue a Remaining Right (for the portion that remained unchanged) You will not have to prove up on the portion of the right that remained.

Regular Transfer Final Order Temporary Application Accepted Noticed 30 day Comment Injury Review Temporary Draft Preliminary Determination Applicant Review of the Department’s Findings This is the Regular Transfer process simplified; there may be all kinds of issues that may need resolved to get the application to the Preliminary Determination stage; conditions may be included to ensure injury and or enlargement does not occur. Final Order Public Notice-WRD & News paper Preliminary Determination

Questions?