How to Participate in a Water Rights Proceeding

The City of Lincoln City and the Confederated Tribes of the Siletz Indians of Oregon made a presentation and answered questions related to the use of water from Devils Lake to irrigate the golf course at the June Devils Lake Water Improvement District board meeting.  The Board of Directors of DLWID passed a resolution by a vote of 4-1 indicating support for the proposal. Since that time, several residents have expressed their opinions on the matter; some support the proposal, some do not.  For the record, the Navigator has not taken a position on the proposal.

The proper place to express your opinion on this proposal is during the formal Oregon Water Resources Department (OWRD) application process.  In order for the City to meet the terms of their agreement with the Siletz Tribe they will apply for a change in the Point of Diversion (P.O.D.) of their existing Rock Creek water right. This process is described in OAR 690 Division 380 Water Rights Transfers.

In an attempt to simplify the process for interested parties we have summarized the required steps below.  The summary is necessarily general, and may not specifically address the facts in this specific application. Water rights can impact citizens in unexpected ways; that is why a formal process has been established.  If you feel, the City’s proposal will have an impact that is not being considered follow the steps below to provide public input into the process.

The best time to submit your comments is during Step 4, which is the 30-day period that follows the official publication of the City’s Application request.  Your comments should address your concerns as they relate to the criterion for review described in detail in Step 5 as the OWRD will limit consideration to these specific elements. There is no cost to file comments with the OWRD during this step; note that there are fees associated with intervening after the process has moved beyond Step 8; including protests, and requesting a contested case.  If after reviewing, the descriptions below you have additional questions email Dorothy Pedersen of OWRD or call at (503) 986-0890.

Step 1 – Application Received: The City will need to complete the Application for Water Right Transfer including an impressive list of attachments.  Once the Department has accepted the application it will be assigned a T-xxxx number that will appear on the Department’s public notice. The public may view the transfer application and map at Water Rights Information Query web page by entering the transfer number, clicking “Search”, then clicking on the “View All Scanned Documents” bar. Interested parties without web access can obtain a copy of the document at the OWRD office or from your local Watermaster for $2.00 for the first page and $.50 for each additional page.

Step 2 – Injury Review: Forms are sent to the local Watermaster, and Groundwater staff and ODFW as appropriate to report facts related to the status of the water right, potential impacts of the proposed changes on other water rights and recommend any conditions to be added to the water right to ensure that the change would not enlarge the right itself and/or to prevent injury to other water rights.

Step 3 – Notice of Application: OWRD gives notice of the transfer application in the OWRD Weekly Notice. Interested parties can subscribe to OWRD Public Notice by filling out the appropriate form on the OWRD list serve page. The application at this step will appear under the title “Transfer Applications: Regular” in the Weekly Notice. Note: The “Notice of Application” does not get published in the newspaper.

Step 4 – Public Comment Period: OWRD will not approve a transfer application sooner than 30 days after publication in the department’s weekly notice there will be no newspaper notice publication at this stage so we will try to monitor the weekly notices and let you know when the comment period has begun. In order to submit comments you should draft your thoughts specifically addressing the criteria outlined in Step 5 below.

Download the Public Notice of Water Use Requests for the date that the City’s application first appears, we’ll try to post a link to this document once available.  Include a completed copy of the last page of the public notice along with your comments.  Be sure to include your name address and reference the specific application on each page of your comments.  Mail your comments to Oregon Water Resources Department, 725 Summer Street NE Suite A, Salem OR  97301.

Any person who provides comments within the comment period will receive a copy of the Department’s preliminary determination of whether the application should be approved or rejected after the Department has completed a review of the application and will be provided an opportunity to protest the application and preliminary determination at that time.

Step 5 – Review: The OWRD will perform a review of the status of the right and the potential for enlargement or injury to other rights. In reviewing transfer applications under ORS 540.505 to 540.580, the Department will consider the following criteria:

  • Compliance with statewide planning goals and acknowledged comprehensive plans    [OAR 690-005-0010 through 690-380-5000] except for water right transfers.
  • Evidence that water has been used over the past 5 years in accordance with the terms and conditions of the water right [OAR 690-380-3000].
  • Injury to existing water rights [OAR 690-380-5000(1)] except for P.O.D. transfers where the holders of the injured water rights have consented to the proposed change.
  • Point of Diversion/Point of Appropriation Transfers: Proposed change in P.O.D. or P.O.A. must be from the same source of surface water or same aquifer as the original water right [OAR 690-380-2110].
  • Point of Diversion Transfers: Consultation with the Oregon Department of Fish and Wildlife (ODFW) regarding installation of fish screening or by-pass device for transfer applications for a change in P.O.D. [OAR 6690-380-5060].

Additional criteria that may apply to certain applications include:

  • Surface P.O.D. to Groundwater P.O.A. Transfers [OAR 690-380-2130]: Transfer applications for changes from a surface P.O.D. to a groundwater appropriation are subject to the following additional criteria:
    • Must be an unconfined aquifer hydraulically connected to the authorized surface source.
    • New groundwater withdrawal must affect surface water source similar to the original authorized point of diversion.
    • New groundwater withdrawal must be within 500 feet of the surface water source. When the surface water source is a stream, the new groundwater withdrawal must be located within 1000 feet upstream or downstream of the original P.O.D. unless the applicant submits evidence from a licensed geologist demonstrating the following:

1) Groundwater withdrawal from an unconfined aquifer hydraulically connected to the authorized surface source;

2) No enlargement of original water right and no injury to other water right holders; and

3) New groundwater withdrawal will have similar affect on surface water source to the original authorized point of diversion.

  • Temporary Transfers in Place of Use: Transfer cannot exceed 5 years [OAR 690-380-8000 (1)].
  • Transfers of an existing water right to an instream right: Amount and timing of instream flow is allowable within the limits and use, including return flows, of the original water right and the proposed reach is appropriate [OAR 690-077-0075(2)].
  • Transfer of an existing water right to an instream right: Public purpose served [OAR 690-077-0075(2)],

Step 6 – Draft Preliminary Determination: The OWRD will provide a copy of the Draft Preliminary Determination to the applicant and provide the applicant a period of at least 30 days to amend the application to address any issues identified by the Department in the preliminary determination, including the quantity of water to be transferred, or to withdraw the application

Step 7 – Applicant Review: The applicant may review the Draft Preliminary Determination and modify or withdraw the proposed transfer during this 30-day period.

Step 8 – Preliminary Determination Issued: Notice of Preliminary Determination will be published in the OWRD Weekly Notice and, if statutorily required, in newspaper once a week for three consecutive weeks. The application at this step will appear under the title “Transfer Preliminary Determinations” in the Weekly Notice.

Any person may protest the application and preliminary determination or may file a standing statement. Each person submitting a protest shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting the person’s position by the close of the protest period. Failure to raise a reasonably ascertainable issue in a protest or failure to provide sufficient specificity to afford the Department an opportunity to respond to the issue may preclude consideration of the issue during the hearing.

A $600 protest fee must accompany all protests to the OWRD Preliminary Determination.  Applicants must pay a $300.00 protest fee.  A completed Water Right Transfer Protest Form must accompany each protest or a request for standing.  The protest period ends 30 days after OWRD provides notice, or 30 days after last date of newspaper publication, whichever is later.

Generally, there are three paths for the proceeding to take after this step.

  1. If protests are received, the OWRD will begin a Contested Case Hearing.
  2. If no protests are received, the OWRD will publish a Final Order.
  3. If Applicant seeks consent to an Injury, the ISWR Agency will recommend a cure.

Step 9 – Contested Case Hearing: OWRD will hold a contested case hearing if a protest is received within the time allowed or if, in the Director’s opinion, a hearing is necessary. Notice of the hearing will be under the provisions of ORS 183.310 to 183.550, pertaining to contested cases. A contested case hearing will include the applicant as well as all parties who filed a protest and those who were granted standing. A contested case hearing is held in the area where the proposed transfer is located unless all parties who filed a protest stipulate otherwise.

Step 10 – Applicant Seeks Consent to Injury: Instream water rights (ISWR) are certificated water rights that are intended to maintain flows in-stream for aquatic and fish life, wildlife and their habitats, recreation, and water quality. If the Department determines that a change in point of diversion would result in injury to an instream water right between the current and proposed point of diversion, the Department may not approve the change unless the Agency benefitting from the instream water right approves the injury.

Step 11 – Final Order: This is the OWRD document approving or denying the application. The transfer final order is not put on public notice. It is mailed to the applicant and entered into the Department’s records and can be accessed by the public through the Water Rights Information Query web page.

Step 12 – Period for Developing Authorized Changes: The period identified in the Preliminary Determination for developing the authorized changes begins as soon as an order is issued approving the changes. This period is typically one year from the order issue date rounded up to the next October 1st.  For municipal rights, the usual “completion period” is 5 years, rounded up to the next October 1st. If the certificate has been cancelled, the right goes into an inchoate state.

Step 13 – Deadline for Completion of the Changes: The applicant must make full beneficial use under terms and conditions of the order by the deadline or request an extension of time, or inform the department that he does not intend to complete the change.

If the applicant decides not to complete a change in P.O.D/P.O.A, the OWRD will issue an  order reverting the right to the original P.O.D/P.O.A. and issue a new certificate. However, if any other type of change is not completed, the transferred portion of the right is forfeited.

An order may be issued, granting an extension of time for completing the changes.

Applicant must submit a Claim of Beneficial Use prepared by a CWRE within one year after the completion deadline or the date of complete beneficial use. There is no provision for extending the deadline for submission of the Claim.

Water Rights Division reviews the Claim, determines whether proof has been made and if so, issues a new certificate. Right is no longer inchoate, but perfected and subject to being transferred.

Step 14 – Transfer of Water Right: Upon satisfactory proof of completing the change or changes authorized by a transfer approval order, OWRD issues a proposed certificate of water right describing the right determined complete under the provisions of the transfer approval order. Satisfactory proof must include one of the following:

  1. determination that appropriation of water to beneficial use under the terms of the transfer approval order was completed to the extent authorized,
  2. determination that appropriation of water to beneficial use under terms of the transfer approval order was completed to an extent less than authorized. Such determination shall constitute proof for that portion of the appropriation.

OWRD mails the proposed certificate first class to the transferee with a notice that the transferee or landowner has 60 days from the date of mailing to request the Department to reconsider the contents of the proposed certificate of water right.

If no request for reconsideration is received, the department issues a water right certificate pursuant to ORS 540.530(2) and the transfer approval order.

If the department determines that proof has been made to the full extent granted by the approval order, a certificate is issued without the necessity of a proposed certificate.

If the department receives a petition for reconsideration of the content of a proposed certificate, the Director can

  1. approve the petition without certification and issue a certificate with the changes included, or
  2. schedule a field verification of the requested changes and, based on that field verification, approve or deny the request, or
  3. deny the request by letter to the requesting party.

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Filed under DLWID, Lake Level, Lakeside, Rulings

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