1. Water Right Transfers OAR Chapter 690 Divisions 380, 382, 385, 77 CWRE Workshops – October, 2012 Susan Douthit District Analyst

2. Transfers Topics Transfer Basics Transfer Basics Types of Transfers Types of Transfers Transfer Process Transfer Process

3. Transfer Basics

4. What is a Transfer? The legal way to make changes to a water right.

5. Basic Components of Water Rights Water source Water source Type of Beneficial Use Type of Beneficial Use Priority Date Priority Date Maximum rate of diversion (cfs or gpm) Maximum rate of diversion (cfs or gpm) Annual duty (volume of water, acre-foot) Annual duty (volume of water, acre-foot) Point of Diversion/Appropriation Point of Diversion/Appropriation Place of Use Place of Use

6. What CAN be changed Water source Water source Type of Beneficial Use Type of Beneficial Use Priority Date Priority Date Rate of diversion (cfs or gpm) Rate of diversion (cfs or gpm) Annual duty (volume of water, acre-foot) Annual duty (volume of water, acre-foot) Point of Diversion/Appropriation Point of Diversion/Appropriation Place of Use Place of Use

7. What Can NOT be Changed? Source Source Rate of diversion (can’t be increased) Rate of diversion (can’t be increased) Annual duty (can’t be increased beyond what could originally have been used beneficially ) Annual duty (can’t be increased beyond what could originally have been used beneficially ) Priority Date Priority Date Number of Acres (can’t be increased) Number of Acres (can’t be increased)

8. Kinds of Transfers

9. For Certificated Rights: “Regular Permanent Transfers” (OAR 690-380): (OAR 690-380): Permanent Transfers: POU, POD/POA, USE Permanent Transfers: POU, POD/POA, USE Temporary Transfers: POU for 1-5 years, (& POD/POA if needed to get water to the new POU) Temporary Transfers: POU for 1-5 years, (& POD/POA if needed to get water to the new POU) “Historic POD” to bring 10 yr+ unauthorized POD/POA change into compliance “Historic POD” to bring 10 yr+ unauthorized POD/POA change into compliance (OAR 690- 077): (OAR 690- 077): Instream Transfers: POU & USE, to protect water instream (permanent or time-limited) Instream Transfers: POU & USE, to protect water instream (permanent or time-limited)

10. For Permits: Permit Amendments (ORS 537.211) Change POU Change POU Move to contiguous land Move to contiguous land Land owned by permit holder Land owned by permit holder Change or add POD/POA Change or add POD/POA Cannot change character of use Cannot change character of use

11. For Groundwater Registrations (GR- Claims): GR Modifications OAR 690-382 Change or add POA Change or add POA Change POU Change POU Change USE Change USE

12. District Transfers – ORS 540.580 Division 690-385 POU only POU only Within the boundaries of a district Within the boundaries of a district No injury No injury No enlargement No enlargement Extended notice requirements Extended notice requirements

13. Transfer Process

14. Step 1 Submit Application Start with a water right subject to transfer. Start with a water right subject to transfer. Decide what changes to make. Decide what changes to make. Fill out application forms. Fill out application forms. Prepare all attachments. (map, evidence of use, land use form, Supp’l Form D, etc.) Prepare all attachments. (map, evidence of use, land use form, Supp’l Form D, etc.) Submit to Department with fees. Submit to Department with fees.

15. Step 2 Initial Public Notice Public notice of application – 30 day comment period Public notice of application – 30 day comment period

16. Step 3 Department Review Is the application complete? Is the application complete? Is the right not cancelled or has the Permit Completion Date (C-date) not expired? Is the right not cancelled or has the Permit Completion Date (C-date) not expired? Has the right been used in the last five years? Has the right been used in the last five years? Will the proposed POD or POA access the same source of water? Will the proposed POD or POA access the same source of water? Is the change consistent with land use? Is the change consistent with land use? Will ODFW require a fish screen? Will ODFW require a fish screen? Do the owners of the land where the water right is appurtenant agree to the change? Do the owners of the land where the water right is appurtenant agree to the change?

17. Step 3 Department Review Is an affected Irrigation District in agreement? Is an affected Irrigation District in agreement? Supp’l Form D is an application requirement if water right being transferred is in the name of OR within the boundaries of a district. Supp’l Form D is an application requirement if water right being transferred is in the name of OR within the boundaries of a district.

18. Would the change NOT enlarge the right? Would the change NOT enlarge the right? “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. Step 3 Department Review

19. Would the change NOT injure other rights? Would the change NOT injure other rights? “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.

20. Step 4 Draft Preliminary Determination For Permanent OAR 690-380 and 690-077 transfers only (“regular” and instream): For Permanent OAR 690-380 and 690-077 transfers only (“regular” and instream): Draft Preliminary Determination (DPD) sent to applicant, proposing approval or denial Draft Preliminary Determination (DPD) sent to applicant, proposing approval or denial Opportunity for applicant to comment on determination or modify proposal Opportunity for applicant to comment on determination or modify proposal Assure the intent of the change is reflected. Assure the intent of the change is reflected.

21. Step 5 Ownership Ownership report – requested at DPD Ownership report – requested at DPD Prepared by a title company Prepared by a title company w/in three months of the dpd, w/in three months of recording a conveyance agreement OR prepared at any time but showing ownership at the time a conveyance was recorded. w/in three months of the dpd, w/in three months of recording a conveyance agreement OR prepared at any time but showing ownership at the time a conveyance was recorded. Report must contain- Report must contain- Date report was prepared Date report was prepared List of owners List of owners Legal Description (Exhibit A) Legal Description (Exhibit A)

22. Step 6 Newspaper Notice Department will coordinate with applicant to select a newspaper and submission of funds. Department will coordinate with applicant to select a newspaper and submission of funds. Two consecutive weeks (three weeks if application submitted before Jan 2012) in a newspaper that has circulation in the area of the water right. Two consecutive weeks (three weeks if application submitted before Jan 2012) in a newspaper that has circulation in the area of the water right. Protest period ends 30 days after the last day of publication. Protest period ends 30 days after the last day of publication.

23. No newspaper publication if... Only changing POU Only changing POU POD/POA of less than quarter mile w/no intervening PODs/POAs POD/POA of less than quarter mile w/no intervening PODs/POAs

24. Step 7 Preliminary Determination Issued following agreement with DPD Issued following agreement with DPD Public Notice Public Notice Newspaper Notice (if required) Newspaper Notice (if required) Initiates Protest Period Initiates Protest Period

25. Step 8 Final Order Department issues Final Order approving or denying transfer proposal. Department issues Final Order approving or denying transfer proposal. Applicant is authorized to make the change. Applicant is authorized to make the change. Deadline is set for completion of change (C-date). Deadline is set for completion of change (C-date). CBU due one year after C-day CBU due one year after C-day Applicant usually responsible for submission of CBU. Applicant usually responsible for submission of CBU.

26. Step 9 Proving Up Applicant completes changes and puts water to beneficial use by completion date, or needs to apply for a “Transfer Extension of Time” Applicant completes changes and puts water to beneficial use by completion date, or needs to apply for a “Transfer Extension of Time” Applicant hires a CWRE to prepare a Claim of Beneficial Use (CBU) and map Applicant hires a CWRE to prepare a Claim of Beneficial Use (CBU) and map After Department reviews and approves CBU, a new certificate is issued for the changed right (confirming certificate). After Department reviews and approves CBU, a new certificate is issued for the changed right (confirming certificate).

27. Questions?