Current through Register Vol. 63, No. 9, September 1, 2024
For the purposes of a notice of consideration for conversion to
an Instream Water Right, the Director shall make the following eligibility
determinations and preliminary findings of fact:
(1) The Director shall determine whether a
Hydroelectric Water Right associated with a Project is eligible for conversion
to an Instream Water Right. A Hydroelectric Water Right is eligible for
conversion if one of the following criteria is met:
(a) Use of water under the Hydroelectric
Water Right has ceased for a period of five years;
(b) A time-limited Hydroelectric Water Right
has expired and has not been extended or Reauthorized;
(c) The Hydroelectric Water Right was
transferred under ORS
540.520 and
540.530 and has expired; or
(d) The
Director has received written consent of the Holder;
(2) The Director shall determine the amount,
expressed in cfs, of the Hydroelectric Water Right associated with the Project
that is eligible for conversion to an Instream Water Right. The amount of a
Hydroelectric Water Right eligible for conversion is subject to the following
limitations:
(a) Any portion of a
Hydroelectric Water Right transferred under ORS
540.520 and
540.530 is not eligible for conversion to an Instream Water Right, except upon
expiration of that time-limited water right;
(b) Any portion of a Hydroelectric Water
Right for which hydroelectric production is not the sole beneficial use
authorized by the right is not eligible for conversion to an Instream Water
Right;
(c) Any portion of a
Hydroelectric Water Right authorized in conjunction with another water right
pursuant to ORS
543.765,
or that is part of a larger distribution system for municipal, irrigation, or
other beneficial purposes is not eligible for conversion to an Instream Water
Right; and
(d) Any portion of a
Hydroelectric Water Right authorized in conjunction with multi-purpose dam
releases including flood control, irrigation, municipal, or other beneficial
uses, is not eligible for conversion to an Instream Water Right. Conversion to
an Instream Water Right may not require release of water stored for other
beneficial purposes. An Instream Water Right resulting from conversion under
these rules shall not have priority over waters legally stored or legally
released from storage;
(3) The Director shall make a preliminary
finding on Injury. In making such finding, the Director shall consider:
(a) The Actual Use of the Project. To make a
preliminary finding on the Actual Use of the Project, the Director shall
consider available documentation including, but not limited to: meter records
of flow through a turbine, stream gage records, records of electricity
production, seasonal restrictions on use, records of water historically
supplied from storage, evidence that storage capacity has or has not been
decommissioned, and other evidence of use by the Project.
(b) The resulting impacts on Actual Use by
Other Existing Water Rights as of October 23, 1999. To make a preliminary
finding on the resulting impacts on Actual Use by Other Existing Water Rights
as of October 23, 1999, the Director may consider:
(A) Whether Other Existing Water Rights as of
October 23, 1999 are junior to and upstream of the Hydroelectric Water
Right;
(B) Whether new regulation
under Chapter 690, Division 250 would likely be required for the proposed
conversion to an Instream Water Right, based upon historic streamflow records,
regulation actions historically taken by the watermaster, or other
data;
(C) Whether the Hydroelectric
Water Right is Subordinated to Other Existing Water Rights as of October 23,
1999; or
(D) Any other available
evidence that may assist the Director to make a preliminary finding on
Injury.
Statutory/Other Authority: ORS
536.027
Statutes/Other Implemented: ORS
543A.305
