Current through Register Vol. 63, No. 9, September 1, 2024
In order for an out-of-basin-diversion application to be
approved, the standards and requirements in sections (1) through (8) of this
rule shall be met to the Commission's satisfaction. The Commission shall decide
if each standard is met based on information provided in the application,
during the public hearing and in written comments received within 20 days after
the date of the final public hearing. Information required in the application
shall include, at a minimum, those items listed for each standard in sections
(1) through (8) of this rule. Except where the rules specify otherwise, this
information shall address conditions for the basin of origin as a whole and for
the specific surface or groundwater source proposed for diversion. Information
for the basin of origin as a whole may be general in content. Information for
the specific surface or groundwater source affected shall be detailed. In
applying the standards, the Commission may make allowances where existing
information is incomplete, does not exist, or is inadequate to clearly meet the
standard. The information required under this rule is in addition to any other
information required on applications under the Commission's rules on
Applications and Permits, OAR Chapter 690, Division 11 and Water Right
Transfers, OAR Chapter 690, Division 15.
(1) In order to be approved, an
out-of-basin-diversion application shall demonstrate to the Commission's
satisfaction, the amount of water in the basin of origin available for future
appropriation in the basin of origin and for the proposed use. In demonstrating
water availability, the application shall include an analysis of:
(a) Annual and monthly discharge for the
basin as a whole and for the specific surface or groundwater source proposed
for diversion. Analysis shall include at least the 80 percent frequency
discharges and reflect both natural (without storage or diversion) and
regulated conditions at the mouth and the point of diversion. Discharge shall
be expressed in units of cubic feet per second and acre feet;
(b) Groundwater in storage and amount of
annual recharge for the basin as a whole and for the specific groundwater
source proposed for diversion. The evaluation shall indicate whether the
recharge is natural or artificial. If groundwater recharge is artificial, the
source of the recharge water shall be identified. Volumes of water shall be
expressed in units of acre feet;
(c) Existing water rights for the basin as a
whole and for the specific surface or groundwater source proposed for
diversion. Separate summaries shall be prepared for surface water and
groundwater rights. Each summary shall provide a breakdown of water rights by
use category, quantity of rights in terms of cfs, and by season of use
(irrigation season). The summary shall include minimum streamflows, instream
water rights and reservations of water;
(d) Water use for the basin as a whole and
for the specific surface or groundwater source proposed for diversion. Analysis
shall include an evaluation of water use based on actual measurements, water
use reports and estimates. The evaluation shall cover all major water use
(beneficial use) categories, both consumptive and nonconsumptive. For each
water use category, the analysis shall indicate the amount of water used
annually and monthly. Water use shall be expressed in terms of cubic feet per
second and acre feet. If the evaluation of water use is based on measurements
or reported data, the analysis shall describe the measurement techniques and
cite the sources of the reported data. If water use is estimated, the analysis
shall describe the information used and all assumptions made in enough detail
to permit the Department to verify the accuracy of the estimate;
(e) Water availability for the basin as a
whole and for the specific surface or groundwater source proposed for
diversion. Water shall be considered available for any given period of time
only if the flow that occurs four out of five years (80% frequency) during the
period exceeds expected water use by all water rights. An analysis of water
availability shall be based on the information required in subsections (a)
through (d) of this section. The analysis shall include a statement of water
available on an annual and monthly basis. Available water shall be stated in
terms of cubic feet per second and acre feet;
(f) Legislative and administrative
restrictions on water use for the basin as a whole and for the specific surface
or groundwater source proposed for diversion. Analysis shall include
determinations of flow and water volume contributed by surface or groundwater
sources protected from appropriation by legislation or Gubernatorial
designation. Elements included in this analysis shall include:
(A) Legislative withdrawals and
grants;
(B) State scenic
waterways;
(C) State Engineer
withdrawals;
(D) Commission
withdrawals.
(2) In order to be approved, an
out-of-basin-diversion application shall demonstrate to the Commission's
satisfaction, that the proposed diversion will not use water necessary to meet
projected future water needs in the basin of origin. In describing projected
water needs, the application shall include an analysis of:
(a) Existing population, demographic trends
and growth projections. Growth projections shall extend at least 20 years into
the future. In providing this analysis, the applicant shall consult with the
Center for Population Research and Census at Portland State University and the
individual city and county planned departments for the counties included in the
basin of origin;
(b) Projected
water demand by major use category. This evaluation shall cover at least the
categories of municipal, industrial, agricultural and instream water demands.
For each major use category, the evaluation shall state the relative percent of
projected demand allocated to surface water and groundwater. At a minimum,
information supplied to meet this requirement shall reflect:
(A) Facilities plans applicable within an
urban growth boundary containing a population greater than 2,500;
(B) Economic Development Department economic
strategies, plans or prospects for individual cities, counties, or regions in
the basin of origin;
(C) Department
of Agriculture and Oregon State University Extension Service Inventories and
projections for irrigated agriculture in the basin or origin;
(D) The pertinent management plans for fish,
wildlife, habitat, water quality, recreation, or other area of responsibility
of the agencies listed in paragraphs (7)(a)(A) through (E) of this
rule.
(c) Economic
factors affecting water use in the basin of origin.
(3) In order to be approved, an
out-of-basin-diversion application shall demonstrate to the Commission's
satisfaction, that the proposed diversion will not harm return flows that
benefit water users in the basin of origin. At a minimum, the analysis shall
include:
(a) An evaluation of existing and
prospective water use by major use category on the proposed diversion source
upstream from the proposed point of diversion;
(b) An estimate of the existing and
prospective amounts of water that return to the proposed source of diversion
upstream from the proposed point of diversion;
(c) An evaluation of existing water rights
issued specifically on return flows, effluent discharge, wasteways or recycled
water originating upstream and passing the point of diversion for use
downstream.
(4) In order
to be approved, an out-of-basin-diversion application shall demonstrate to the
Commission's satisfaction, that the proposed diversion will not harm supplies
of surface or groundwater in the basin of origin. The application shall
describe the relationship between surface and groundwater and, at a minimum,
shall include:
(a) An identification and
discussion of groundwater recharge and discharge zones and how surface water
and groundwater affect each other in these zones;
(b) An identification of areas where
groundwater and surface water are or may be hydraulically interconnected and a
discussion of annual and seasonal exchange between these resources;
(c) An evaluation of the relationship between
water quantity and quality for both surface water and groundwater and how
conditions present in one resource affect conditions in the other;
(d) An evaluation of whether the proposed
project will occur in an area of groundwater-surface water hydraulic
interconnection and if so, a discussion of the potential and expected impacts
of the proposed project on the quantity or quality of either;
(e) In responding to subsections (a) through
(d) of this section, any assumptions relied upon or modeling conducted by the
applicant shall first be reviewed and approved by the Department.
(5) In order to be approved, an
out-of-basin diversion application shall demonstrate to the Commission's
satisfaction, that it will not injure or interfere with existing water rights
or planned uses or developments within the basin or origin. At a minimum, the
analysis shall include:
(a) A summary of the
water rights by type of use, quantity of diversion and characteristics of use,
that occur on the stream or in the stream system from which the proposed
project will divert water The same information shall be supplied for each
aquifer affected if groundwater is proposed as the source of
diversion;
(b) A description of all
proposed diversion and transmission works and their physical and geographical
proximity to existing diversion and transmission facilities. The description
shall include a discussion of potential impacts of the proposed project works
on existing facilities and the means and methods of avoiding such
impacts;
(c) A description of
planned uses and development covering the same points as in subsection (b) of
this section;
(d) A description of
the type, frequency, period and extent of water rights regulation on the
proposed surface or groundwater source of diversion. The description shall
include an explanation of the resource problem(s) requiring regulatory
measures.
(6) In order
to be approved, an out-of-basin-diversion application shall demonstrate to the
Commission's satisfaction, that the proposed diversion will not adversely
affect the quantity or quality of water available for municipal or domestic use
in the basin or origin. The analysis shall include:
(a) A description of existing municipal and
domestic water rights relying on the same stream or aquifer proposed for the
out-of-basin diversion. The description shall include estimated or reported
water use by individual municipalities;
(b) A description of any municipal or
domestic water storage facilities or reservations of water for municipal or
domestic use affecting the proposed source of diversion;
(c) An evaluation of ambient water quality in
the stream or stream system affected by the proposed diversion. This evaluation
shall be based either on data and analysis by the Department of Environmental
Quality (DEQ) or water quality data gathered and analyzed in accordance with
DEQ specifications;
(d) A
description of construction and operation practices proposed to prevent water
quality standards violations or impacts to designated beneficial
uses.
(7) In order to be
approved, an out-of-basin-diversion application shall demonstrate to the
Commission's satisfaction, that public uses in the basin of origin will not be
harmed. An analysis of the proposed project impacts on public uses shall
include:
(a) A statement of public uses
existing in the basin and on the proposed source of diversion. This statement
shall include public uses covered by existing water rights as well as those
public uses which derive from the presence of live flow. In determining the
presence of public uses, the applicant shall consult with the state agencies
listed in paragraphs (A) through (E) of this subsection. Evidence of
consultation with these agencies shall be included with the application:
(A) Water Resources Department;
(B) Department of Fish and
Wildlife;
(C) Department of
Environmental Quality;
(D)
Department of Parks and Recreation;
(E) Division of State Lands.
(b) A statement of flows or
quantities of water needed to maintain public uses. This statement shall
reflect existing water rights for such purposes or projected water needs as
recommended for such purposes by the agencies listed in paragraphs (7)(a)(A)
through (E) of this rule. If water rights do not exist for public uses, the
agencies recommendations shall specify flow levels by month necessary for
public uses. If no flow information is available, the applicant shall determine
the necessary flows based on methods of determining instream water rights
approved by administrative rules prepared by the Departments of Fish and
Wildlife, Environmental Quality and Parks and Recreation as required in OAR
690-077-0020(3);
(c) A statement of how the size, placement,
design, shape, color and other physical features of the proposed diversion will
affect public uses. This statement shall include comments from the agencies
listed in subsection (a) of this section.
(8) In order to be approved, an out-of-basin
transfer application shall demonstrate to the Commission's satisfaction, that
suitable alternative sources of water, including conservation, within the
proposed basin of use are not available for the proposed use.
Stat. Auth.: ORS 537
Stats. Implemented: ORS 537
