Water Right Transfers OAR Chapter 690 Divisions 380, 382, 385, 77 CWRE Workshops – October, 2012

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

2. Transfers Topics • Transfer Basics • Types of Transfers • 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 • Type of Beneficial Use • Priority Date • Maximum rate of diversion (cfs or gpm) • Annual duty (volume of water, acre-foot) • Point of Diversion/Appropriation • Place of Use

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

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

8. Kinds of Transfers

9. For Certificated Rights: “Regular Permanent Transfers” • (OAR 690-380): • Permanent Transfers: POU, POD/POA, USE • 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 • (OAR 690- 077): • Instream Transfers: POU & USE, to protect water instream (permanent or time-limited)

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

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

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

13. Transfer Process

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

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

16. Step 3 Department Review • Is the application complete? • 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? • Will the proposed POD or POA access the same source of water? • Is the change consistent with land use? • Will ODFW require a fish screen? • 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? • Supp’l Form D is an application requirement if water right being transferred is in the name ofOR within the boundaries of a district.

18. Step 3 Department Review • 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.

19. Step 3 Department Review • 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): • Draft Preliminary Determination (DPD) sent to applicant, proposing approval or denial • Opportunity for applicant to comment on determination or modify proposal • Assure the intent of the change is reflected.

21. Step 5 Ownership • Ownership report – requested at DPD • 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. • Report must contain- • Date report was prepared • List of owners • Legal Description (Exhibit A)

22. Step 6Newspaper Notice • 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. • Protest period ends 30 days after the last day of publication.

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

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

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

27. Questions?