Water Right Transfers - Enlargement & Injury Review – (OAR Chapter 690, Division 380) Lisa Jaramillo Transfer and Conservation Section Manager Kelly Starnes Transfer Program Coordinator

Transfer & Conservation Section (TACS) Transfers [Div. 380] Permit Amendments [ORS 537.211(4)] – Cannot change Use Ground Water Registration Modifications [Div. 382] Instream Transfers & Instream Leases [Div. 77] District Transfers [Div. 385] Allocations of Conservation Water [Div. 18] Water Management & Conservation Plans [Div. 86] Reclaimed Municipal Water Use [ORS 537.132]

The TACS Team

Transfers Transfer Program Coordinator – Kelly Starnes Transfer Caseworkers Joan Smith (Salem) Sarah Henderson (Salem) Arla Heard (Salem) Vacant Position (Salem) Ken Dowden (Pendleton) Marcy Osborn (Baker City)

Types of Transfers Permanent Water Right Transfer Permit Amendment Ground Water Registration Modification Instream Transfer Temporary Water Right Transfer Temporary Drought Transfer

Types of Permanent Transfers Place of Use (POU) Point of Diversion/Appropriation (POD/POA) or Additional POD/POA Change in POD or POA to reflect Historical Use Character of Use Surface Water POD to a Ground Water POA Supplemental Use to Primary Use Substitution of Supplemental GW for Primary SW Exchange of Water

Types of Temporary Transfers Temporary Transfer (1 to 5 years): Place of Use (…and, if necessary to convey water to temporary POU, may temporarily change POD or POA) Temporary Drought Transfer (Div. 19) (1 year or for the term of Governor-declared drought, whichever is shorter): Type of Use Point of Diversion Of course… We can only accept Temporary Drought Transfer applications from counties for which the Governor has declared a drought.

Criteria for Approval Water use subject to transfer Right beneficially used within past 5 years according to terms & conditions of permit and not subject to forfeiture Ready, willing & able to use full amount allowed No enlargement No injury Same Source Subject to transfer = Non-cancelled Certificated for a Div. 380 Transfer; or A permit with a valid (non-expired) “C” Date for a Permit Amendment.

What is Enlargement? “Enlargement” means an expansion of a water right and includes, but is not limited to: Using a greater rate or duty of water per acre than currently allowed under a right; Increasing the acreage irrigated under a right; Failing to keep the original POU from receiving water from the same source; or Diverting more water at the new POD or POA than is legally available to that right at the original POD or POA. Examples of Enlargement: Using a greater rate or duty of water than is allowed under the right Irrigating more acreage than is allowed under the right Failing to keep the “From” lands from receiving water from the source allowed under the right Diverting more water at new POD or POA than is available at the original POD/POA

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. “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. Examples: Loss of return flows; Intervening PODs between the authorized and proposed POD; and Upstream POD change into an instream water right reach.

Watermaster Review Form: Water Right Transfer Transfer Caseworker evaluates application for injury and enlargement potential Information provided by Watermaster in review form helps inform the caseworker’s evaluation Field Operations Guidance Manual 11.03 Watermaster Review Form Instructions

Watermaster Review Form: Water Right Transfer Things to consider: Forfeiture issues associated with the right History of regulation on the source Return flows benefiting downstream water rights Effect of transfer to upstream water rights Channel losses

Watermaster Review Form: Water Right Transfer More things to consider: Forfeiture issues associated with the right Increased regulation activity (i.e., a new call) would occur as a result of transfer POU – can “FROM” lands be dried up? USE – can it be used beneficially without waste? Are there alternatives to resolve identified issues? Forfeiture issues… all validity issues have to be hammered out before the Transfer Final order can be issued. If believe that a right is subject to transfer, the WM would have to be ready to file an affidavit asserting non-use to begin a cancellation procedure… absent this, we have to move forward with the transfer.

Recap of Enlargement “Enlargement” means an expansion of a water right and includes, but is not limited to: Greater rate or duty of water per acre Increasing acreage irrigated under a right Failing to keep the original place of use from receiving water from the same source Diverting more water at new POD/POA than is legally available at original POD/POA Examples of Enlargement: Using a greater rate or duty of water than is allowed under the right Irrigating more acreage than is allowed under the right Failing to keep the “From” lands from receiving water from the source allowed under the right Diverting more water at new POD or POA than is available at the original POD/POA

Enlargement - Case Study #1 POU change to increase irrigated acreage

Enlargement - Case Study #1 POU change to increase irrigated acreage Answer: Enlargement

Enlargement - Case Study #2 POU change to expand service area of a municipal water supplier

Enlargement - Case Study #2 POU change to expand service area of a municipal water supplier Answer: No Enlargement No enlargement …. Because the “rate” would remain the same. No additional water diversion allowed.

Enlargement - Case Study #3 POD & POU changes to add industrial facilities

Enlargement - Case Study #3 POD & POU changes to add industrial facilities Answer: No Enlargement Combined, the diversion of water from the original POD & the additional POD could not exceed the original authorized quantity of water. Final Order would be conditioned in this manner to prevent enlargement, as well as to prevent injury to “ B” and “C.”

Other Enlargement Issues Potential for use of more water than could be used under existing right Expansion of season (i.e., outside original authorized season) Multiple changes in USE Can’t prevent “From” lands from receiving water from the same source Water from a different source – not enlargement Change from specific to general use Domestic to Quasi-Municipal Irrigation to Wildlife Purposes

Recap of 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. “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. Examples: Loss of return flows; Intervening PODs between the authorized and proposed POD; and Upstream POD change into an instream water right reach.

Maximization of Use Based on how water right could be used Under existing authorization Efficiently and intensively Maximum beneficial use, given most water-intensive crop typically grown (or could be grown) in the region Injury (and potential enlargement) if: Impacts greater than could occur with maximization Not necessarily injury if maximum beneficial use is greater than what’s been applied in the past

Scenarios with Injury Issues Depictions of several scenarios for WR changes Dotted lines/cross-hachured lands are “FROM” Solid lines/solid lands are “TO” Priority dates in letter order A is most senior B is next junior, etc. Injury or disadvantage? Legal entitlement to the water, or Past beneficiary of water for which user had no legal call

Injury - Case Study #1 Upstream movement of Point of Diversion Dotted line = “FROM” Solid line = “TO”

Injury - Case Study #1 Upstream movement of Point of Diversion Answer: “B” likely injured because of increased call on source stream

Injury - Case Study #2 Downstream movement of Point of Diversion Dotted line = “FROM” Solid line = “TO”

Injury - Case Study #2 Downstream movement of Point of Diversion Answer: No injury, but call will be to old POD, “C” cannot be subject to regulation for “A”

Injury - Case Study #3 Downstream movement of POD into a losing reach Dotted line = “FROM” Solid line = “TO”

Injury - Case Study #3 Downstream movement of POD into a losing reach Answer: “B” likely injured unless call limited to quantity available at old POD

Injury - Case Study #4 Upstream movement of POD in instream water right reach Dotted line = “FROM” Solid line = “TO” Pink line = instream water right

Injury - Case Study #4 Upstream movement of POD in instream water right reach Answer: Instream water right “D” not injured if flows met virtually all the time

Injury - Case Study #5 POA change into significantly greater hydraulic connection Pink dot = “FROM” POA Green dot = “TO” POA

Injury - Case Study #5 POA change into significantly greater hydraulic connection Answer: “B” likely injured because of increased impact on surface water

Potentially Injurious POD Changes (Summary of Injury Case Studies #3, #4, and #5) To a point downstream of a losing reach, unless conditioned To a point upstream of a junior, including any portion of an instream water right reach …if it results in a new call for regulation To a well in significantly closer hydraulic connection with surface water To a point upstream of a junior……… if it results in a new call for regulation. NOT injury if the ability to make a call has always been there (i.e., NOT a new call)

Injury - Case Study #6 POU change to location downstream of junior Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #6 POU change to location downstream of junior Answer: “B” potentially injured if relies on return flows

Injury - Case Study #7 POU change to source watershed Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #7 POU change to source watershed Answer: “D” not injured because return flows are from a different source

Injury - Case Study #8 POU change to another watershed Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #8 POU change to another watershed Answer: “B” potentially injured if relies on return flows

Injury - Case Study #9 POU change to another watershed for use of stored water Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #9 POU change to another watershed for use of stored water Answer: “D” not injured because return flows are from a different source (i.e., stored water)

Potentially Injurious Place of Use Changes (Summary of Injury Case Studies #6 - #9) Any change that results in a reduction in water to other rights calling on same source because of modification of return flows

Injury - Case Study #10 USE change from irrigation to industrial Dotted line to field = “FROM” Solid line to factory = “TO”

Injury - Case Study #10 USE change from irrigation to industrial Answer: “B” & “C” potentially injured if rely on return flows

Injury - Case Study #11 USE change from irrigation to nursery Irrigation season: March 1 to October 31 Water not available: November to February Solid green land = “FROM” and “TO” occurring on the same land

Injury - Case Study #11 USE change from irrigation to nursery Answer: “B” and “D” potentially injured due to “A” diverting water for nursery use during periods when water is not available.

Potentially Injurious Character of Use Changes (Summary of Injury Case Studies #10 and #11) Any change that results in a reduction in water to other rights calling on same source because of modification of return flows Any change that results in expansion of the season of use of a live flow surface water right into time period(s) when water is not available

Questions? Lisa Jaramillo Kelly Starnes Transfer and Conservation Section Manager Phone: 503-986-0880 E-Mail: Lisa.J.Jaramillo@wrd.state.or.us Kelly Starnes Transfer Program Coordinator Phone: 503-986-0886 E-Mail: Patrick.K.Starnes@wrd.state.or.us