Current through Register Vol. 63, No. 9, September 1, 2024
(1) Pursuant to the provisions of ORS
390.835, and these rules the
Director is authorized to:
(a) Issue water
rights within or above the designated reach of a scenic waterway provided the
free-flowing character of the waterway is maintained in quantities necessary
for recreation, fish and wildlife uses;
(b) Issue water rights for limited human
consumption and livestock consumption uses within or above a designated reach
of a scenic waterway when flows are less than quantities necessary for
recreation, fish and wildlife.
(2) The Director may issue water rights under
subsection (1)(b) of this rule for human consumption and livestock consumption
uses upon the following findings:
(a) Issuing
the water right does not significantly impair the free-flowing character of
these waters in quantities necessary for recreation, fish and
wildlife;
(b) Appropriation of
water under the water right is consistent with the provisions of ORS Chapters
536 and 537 and OAR Chapter 690;
(c) Construction, operation and maintenance
of the diversion system will be carried out in a manner consistent with the
purposes set forth in ORS
390.805 to
390.925;
(d) Water rights for human consumption shall
not exceed .005 cubic feet per second per household; and
(e) Water rights for livestock consumption
uses shall not exceed one-tenth of one cubic foot per second per 1,000 head of
livestock.
(3) In
addition to the requirements under OAR 690-310-0040, an application to
appropriate water for human consumption or livestock consumption uses under
subsection (1)(b) of this rule shall include:
(a) Information which identifies all
potential alternate source(s) of water, if any, and describes why the applicant
cannot reasonably obtain water from such sources;
(b) If the application proposes to
appropriate water for human consumption, evidence that denial of the
application will result in loss of reasonable expectations for use of the
property; and
(c) If the
application proposes to appropriate water for livestock consumption use, a
description of how livestock will be excluded from the stream and its riparian
zone and information that the water right is necessary to prevent the livestock
from watering in or along the stream bed.
(4) In addition to the findings set out in
section (2) of this rule, before a water right permit may be issued for human
consumption or for livestock consumption uses under subsection (1)(b) of this
rule the Director must find:
(a) The water
right meets a need for a use which is given preference under ORS
536.310(12)
when available supplies of water are insufficient to meet all uses;
(b) No alternate sources of water are
reasonably available;
(c) For
applications for human consumption, denial of the application will result in
loss of reasonable expectations for use of the property;
(d) For applications for livestock
consumption uses, the water right is necessary to prevent livestock from
watering in or along the stream bed and the applicant has excluded livestock
from the stream and its adjacent riparian
zone; and
(e) Water is available within the combined
cumulative total limitation described in section (5) of this rule.
(5) The Director shall limit the
total water use authorized under subsection (1)(b) of this rule within or above
each scenic waterway to no more than a combined cumulative total of one percent
of the average daily flow or one cubic foot per second, whichever is less. Such
combined cumulative total may be exceeded if representatives of the Departments
of Water Resources, Parks and Recreation, Fish and Wildlife, Environmental
Quality and the Division of State Lands agree that exceeding the one percent or
one cubic foot per second limit will not significantly impair the free-flowing
character of the waters in quantities necessary for recreation, fish and
wildlife.
(6) Water rights issued
for human consumption shall contain measuring and reporting conditions which
require permittees to install meters or other suitable measuring devices, to
keep complete records of amounts of water used and to submit periodic reports
to the Department as specified in the permits.
(7) Water rights issued for livestock
consumption uses shall contain conditions that require permittees to exclude
livestock from the stream and its adjacent riparian zone.
(8) The Department's proposed final order
shall:
(a) Set forth a summary of the findings
required under sections (2) and (4) of this rule;
(b) State that the applicant has submitted
the information described in section (3) of this rule;
(c) Identify the maximum amount of water
available within or above the applicable scenic water way in accordance with
the limitations set out in section (5) of this rule; and
(d) State the residual amount of water
available from the source for the proposed human consumption or livestock
consumption use.
(9)
(a) The provisions of this rule shall not
apply to a water right application for the use of ground water except upon a
finding by the Director based on a preponderance of evidence that the use of
ground water will measurably reduce the surface water flows necessary to
maintain the free-flowing character of a scenic waterway in quantities
necessary for recreation, fish and wildlife;
(b) The Department shall review every
application for the use of ground water to determine whether to make the
finding specified in subsection (a) of this section. The finding shall be based
upon the application of generally accepted hydrogeologic methods using relevant
and available field information concerning the proposed use;
(c) In making the determination required by
subsection (a) of this section, the Department shall consider the timing of
projected impacts of the proposed use in relation to other factors, including
but not limited to: Changing climate, recharge, incidental precipitation,
out-of-stream appropriations and return flows;
(d) If the Director makes the finding
specified in subsection (a) of this section, the Director shall issue an order
denying the application unless:
(A) Mitigation
is provided in accordance with provisions of ORS
390.835(9);
or
(B) The applicant submits
evidence to overcome the finding under subsection (a) of this
section.
(e) Except as
provided under section (12) of this rule, if the Director does not make the
finding specified in subsection (a) of this section, the Director shall issue
an order approving the application if the application otherwise meets the
requirements of ORS 537.505 to
537.795 and rules adopted
thereunder;
(f) A protest of any
order issued under this subsection may be filed in the same manner as a protest
on any application for a right to appropriate ground water;
(g) Each water right permit and certificate
for appropriation of ground water issued after July 19, 1995, for which a
source of appropriation is within or above a scenic waterway shall be
conditioned to allow the regulation of the use if analysis of data available
after the permit or certificate is issued discloses that the appropriation will
measurably reduce the surface water flows necessary to maintain the
free-flowing character of a scenic waterway in quantities necessary for
recreation, fish and wildlife in effect as of the priority date of the right or
as those quantities may be subsequently reduced;
(h) Nothing in this section shall limit the
use of ground water for a use exempted under ORS
537.545.
(10) The Commission and the Director shall
consider mitigation measures and may include mitigation measures as conditions
in any water right permit or certificate to ensure the maintenance of the
free-flowing character of the scenic waterway in quantities necessary for
recreation, fish and wildlife.
(11)
As used in this rule 'measurably reduce' means that the use authorized under
section (9) of this rule will individually or cumulatively with other
groundwater uses, reduce surface water flows within the scenic waterway in
excess of a combined cumulative total of one percent of the average daily flow
by month or one cubic foot per second, whichever is less, unless:
(a) The Department, the State Parks and
Recreation Department, the State Department of Fish and Wildlife, the
Department of Environmental Quality and the Division of State Lands unanimously
agree to exceed that amount; and
(b) exceeding that amount will not
significantly impair the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife.
(12) Before authorizing an appropriation that
will reduce streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in section (11) of this rule, the Director
shall find:
(a) That the appropriation will
not significantly impair the free-flowing character of these waters in
quantities necessary for recreation, fish and wildlife.
(b) That the appropriation is consistent with
provisions pertaining to water appropriations and water rights under ORS
chapters 536 and 537 and the rules adopted thereunder.
(c) That construction, operation and
maintenance of the appropriation will be carried out in a manner consistent
with the purposes set forth in ORS
390.805 to
390.925.
Stat. Auth.: ORS
536.027 and ORS
390.835
Stats. Implemented: ORS
390.835
