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

2. Transfer & Conservation Section (TACS)
Transfers [Div. 380]
Permit Amendments [ORS (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 ]

3. The TACS Team

4. 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)

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

6. 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

7. 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.

8. 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.

9. 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

10. 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.

11. 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

12. 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

13. 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.

14. 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

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

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

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

18. 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.

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

20. 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.”

21. 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

22. 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.

23. 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

24. 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

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

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

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

28. 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”

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

30. 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

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

32. 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

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

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

35. 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)

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

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

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

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

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

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

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

43. 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)

44. 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

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

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

47. 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

48. 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.

49. 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

50. Questions? Lisa Jaramillo Kelly Starnes
Transfer and Conservation Section Manager
Phone:
Kelly Starnes
Transfer Program Coordinator
Phone: