Water Right Transfers OAR Chapter 690, Division 380

1. Water Right TransfersOAR Chapter 690, Division 380

2. 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

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

4. 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

5. Who can do a Transfer? • Irrigation Districts • Water right holders • Any individual or entity with permission from the water right holder

6. 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)

7. 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

8. 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

9. Application Review

10. 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.

11. 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.

12. 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?

13. 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

14. 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

15. 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

16. 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.

17. Wouldtherebeenlargement?? • 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

18. Review Criteria

19. 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

20. 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 • If not now, then within last five years?

21. 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 ¼mile from the authorized point? • Are there intervening points of diversion? • Are there significant areas of inflow or losing reaches between proposed & authorized points?

22. “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

23. 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

24. Preliminary DeterminationsandFinal Orders

25. 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

26. 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

27. 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

28. 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

29. 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

30. Regular Transfer Application Accepted Noticed 30 day Comment Injury Review Temporary Draft Preliminary Determination Applicant Review of the Department’s Findings Final Order Public Notice-WRD & News paper Preliminary Determination

31. Questions?