USA Statutes : oregon
Title : TITLE 44 FORESTRY AND FOREST PRODUCTS
Chapter : Chapter 537 Appropriation of Water Generally
” As used in this chapter,
“Water Rights Act” means and embraces ORS 536.050, 537.120, 537.130,
537.140 to 537.252, 537.390 to 537.400, 538.420, 540.010 to 540.120,
540.210 to 540.230, 540.310 to 540.430, 540.505 to 540.585 and 540.710 to
540.750. [Amended by 1985 c.673 §183]


(1) In
lieu of applying for a permit for a water right under ORS 537.130, a
public agency having jurisdiction over roads or highways may register a
water use for road and highway maintenance, construction and
reconstruction purposes.

(2) A public agency applying to register a water use under
subsection (1) of this section shall:

(a) Submit a completed application to register the water use;

(b) Pay a fee of $300 to be deposited in the Water Resources
Department Water Right Operating Fund;

(c) Provide a map indicating the general locations of points of
diversion;

(d) Identify the sources of surface water or ground water to be
used;

(e) Specify the maximum amount of water to be used during a
calendar year and during any 24-hour period; and

(f) If the public agency is withdrawing water from a conveyance or
storage facility that is a perfected or certificated water right:

(A) Identify the permit or certificate number of the conveyance or
storage right; and

(B) Provide written authorization from the owner of the perfected
or certificated water right that allows the public agency to use water
from the conveyance or storage facility.

(3) A use of water registered under subsection (1) of this section
shall continue until the public agency voluntarily withdraws the
registration. However, the public agency shall submit an annual renewal
statement accompanied by an annual fee of $50 to be deposited in the
Water Resources Department Water Right Operating Fund. The annual renewal
statement shall specify any change in the map, the sources of water to be
used or maximum amount of water to be used.

(4) The use of water registered under subsection (1) of this
section:

(a) Shall not have priority over any water right exercised under a
permit, water right certificate, certificate of registration, order of
the Water Resources Commission or the Water Resources Director and
related court decrees;

(b) Shall be subordinate to all other future permitted or
certificated rights; and

(c) Shall not exceed 50,000 gallons from a single source during any
24-hour period.

(5) The commission may require a public agency to cease withdrawal
or diversion of water at any time the director has reason to believe the
registered use is causing a significant adverse impact upon:

(a) The affected watershed;

(b) Any other water user entitled to use water under a permit
issued under ORS 537.211 or 537.625 or a certificate issued under ORS
537.250, 537.630 or 539.140; or

(c) An in-stream water right established under ORS 537.332 to
537.360.

(6) The commission may adopt rules to implement this section. The
commission shall not require the map to be prepared by a water right
examiner certified under ORS 537.798.

(7) As used in this section, “public agency” means the State of
Oregon, any agency of the State of Oregon, a county, a special road
district of a county, a city, town, incorporated municipality and any
federal agency that has jurisdiction over a roadway in this state. [1993
c.705 §2; 1995 c.416 §44; 1999 c.664 §5; 2003 c.594 §7]


(1) The provisions of
this chapter relating to appropriation and water rights do not apply to
the production of fluid from a well with a bottom hole temperature of at
least 250 degrees Fahrenheit.

(2) Production of fluids from a well with a bottom hole temperature
of at least 250 degrees Fahrenheit shall be regulated as a geothermal
resource under the applicable sections of ORS chapter 522.

(3) If the bottom hole temperature of a well that was initially
less than 250 degrees Fahrenheit increases to at least 250 degrees
Fahrenheit, the State Geologist and the Water Resources Commission, after
consulting with the well owner, shall determine the agency with
regulatory responsibility for that specific well. This determination
shall be documented in writing and shall supersede a determination made
under subsection (2) of this section. [1981 c.589 §3; 1985 c.673 §21]If interference between an existing geothermal well
permitted under ORS chapter 522 and an existing water appropriation
permitted under this chapter is found by either the State Geologist or
the Water Resources Commission, the State Geologist and the Water
Resources Commission shall work cooperatively to resolve the conflict and
develop a cooperative management program for the area. In determining
what action should be taken, they shall consider the following goals:

(1) Achieving the most beneficial use of the water and heat
resources;

(2) Allowing all existing users of the resources to continue to use
those resources to the greatest extent possible; and

(3) Insuring that the public interest in efficient use of water and
heat resources is protected. [1981 c.589 §10; 1985 c.673 §22] (1)
As the Water Resources Commission updates its water right and permit
records with current land ownership information from county records or
other sources, the commission shall request the person shown in those
updated records to verify that the person owns the land to which a water
right or permit is appurtenant.

(2) Any person receiving a request under subsection (1) of this
section shall return the verification within 120 days.

(3) Except as provided in subsection (4) of this section, the
commission shall request verification from all persons shown in updated
water right and permit records on or before July 1, 1992.

(4) If the commission considers verification unnecessary for any
water right perfected, transferred or adjudicated after July 16, 1987,
the commission need not request verification of that water right or
permit. [1987 c.649 §2] (1) Except as
provided in subsection (3) of this section, any governmental entity that
holds a water right shall submit an annual water use report to the Water
Resources Department. The report shall include, but need not be limited
to the amount of water used by the governmental entity, the period of use
and the categories of beneficial use to which the water is applied.

(2) As used in this section, “governmental entity” includes any
state or federal agency, local government as defined in ORS 294.004,
irrigation district formed under ORS chapter 545 and a water control
district formed under ORS chapter 553.

(3) A governmental entity that acquires land because of default in
repayment of loans or other debts owed to the state is not required to
file an annual water use report under this section. [1987 c.649 §3] All water within the state from
all sources of water supply belongs to the public. Subject to
existing rights, and except as otherwise provided in ORS chapter 538, all
waters within the state may be appropriated for beneficial use, as
provided in the Water Rights Act and not otherwise; but nothing contained
in the Water Rights Act shall be so construed as to take away or impair
the vested right of any person to any water or to the use of any water.(1) Except for a use exempted under ORS 537.040,
537.141, 537.142, 537.143 or 537.800 or under the registration system set
forth in ORS 537.132, any person intending to acquire the right to the
beneficial use of any of the surface waters of this state shall, before
beginning construction, enlargement or extension of any ditch, canal or
other distributing or controlling works, or performing any work in
connection with the construction, or proposed appropriation, make an
application to the Water Resources Department for a permit to make the
appropriation.

(2) Except for a use exempted under ORS 537.040, 537.141, 537.142,
537.143 or 537.800 or under the registration system set forth in ORS
537.132, a person may not use, store or divert any waters until after the
department issues a permit to appropriate the waters.

(3) The department may not issue a permit without notifying the
owner, as identified in the application, of any land to be crossed by the
proposed ditch, canal or other work as set forth in the application filed
pursuant to ORS 537.140. The department shall provide the notice even if
the applicant has obtained written authorization or an easement from the
owner.

(4) If more than 25 persons are identified in the application as
required under subsection (3) of this section, the department may provide
the notice required under subsection (3) of this section by publishing
notice of the application in a newspaper having general circulation in
the area in which the proposed ditch, canal or other work is located at
least once each week for at least three successive weeks. The cost of the
publication shall be paid by the applicant in advance to the department.
[Amended by 1985 c.310 §3; 1985 c.673 §25; 1989 c.509 §3; 1991 c.370 §4;
1995 c.365 §1; 1995 c.416 §2a; 2005 c.14 §2]As used in ORS 537.132, 540.510 and
540.610, “reclaimed water” means water that has been used for municipal
purposes and after such use has been treated in a treatment works as
defined in ORS 454.010, and that, as a result of treatment, is suitable
for a direct beneficial purpose or a controlled use that could not
otherwise occur. [1991 c.370 §2; 1997 c.244 §1]Note: 537.131 was added to and made a part of ORS chapter 537 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.(1) The provisions of ORS 537.130 requiring application for
a permit to appropriate water shall not apply to the use of reclaimed
water, if:

(a) The use of reclaimed water is authorized by the national
pollutant discharge elimination system or water pollution control
facilities permit issued pursuant to ORS 468B.050 or 468B.053;

(b) The Department of Environmental Quality, in reviewing an
application for a permit pursuant to ORS 468B.050 or 468B.053, has
consulted with the State Department of Fish and Wildlife on the impact to
fish and wildlife to determine that the application of reclaimed water
under ORS 537.130, 537.131, 537.132, 540.510 and 540.610 shall not have a
significant negative impact on fish and wildlife; and

(c) The Department of Environmental Quality has determined the use
of reclaimed water is intended to improve the water quality of the
receiving stream.

(2) Any person using or intending to use reclaimed water shall file
with the Water Resources Department a reclaimed water registration form
setting forth the following:

(a) Name and mailing address of the registrant;

(b) The date the use of reclaimed water is initiated;

(c) Source of reclaimed water supply, including a description of
the location of the reclaimed water treatment facility and the name and
mailing address of the owner and operator of the facility;

(d) Nature of the use of the reclaimed water;

(e) Amount of reclaimed water used or proposed to be used;

(f) Location and description of the ditch, canal, pipeline or any
other conduction facility used or to be used to transport the reclaimed
water from the treatment facility to the place of use;

(g) A statement declaring the existence of a written contract or
agreement to provide reclaimed water including the name and address of
the reclaimed water provider and the date and terms of such contract or
agreement;

(h) A description of the season of use and the place of use of the
reclaimed water, and any restrictions applicable to the use of the
reclaimed water; and

(i) If the reclaimed water is used in lieu of using water under an
existing water right, the application, permit and certificate number of
such right, or if the right is granted pursuant to a decree of circuit
court, the volume and page number setting forth the right.

(3) If a municipality has discharged waste water into a natural
watercourse for five or more years, and the discharge represents more
than 50 percent of the total average flow of the natural watercourse and
if such discharge would cease as a result of the use of reclaimed water
in accordance with the provisions of ORS 540.510 (3) and this section,
the director of the department shall notify any persons who, according to
the department records, have a water right that may be affected by the
cessation of the discharge by the municipality.

(4) If a person holding an affected water right demonstrates to the
department that the cessation of discharge by the municipality
substantially impairs the ability to satisfy a water right, the person
shall be entitled to a preference to the use of the reclaimed water.
However, the delivery of the reclaimed water to the person claiming such
preference shall be accomplished through a conveyance facility or channel
other than a natural watercourse.

(5) If a municipality has a less expensive alternative for the
disposal and distribution of the reclaimed water, the municipality shall
not be obligated to incur expenses or cost beyond the expenses or costs
of such alternative.

(6) The Water Resources Commission shall adopt rules to implement
the notice and preference provisions and impairment evaluation standards
of this section. [1991 c.370 §3; 1997 c.286 §8]Note: 537.132 was added to and made a part of ORS chapter 537 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation. (1) A
permittee may not enter upon forestland adjacent to the point of
diversion designated in the permit until such person provides notice to
the landowner of the permittee’s intention to enter upon such property.
The notice shall:

(a) Be in writing;

(b) Be mailed to the landowner 30 days prior to the commencement of
any construction, maintenance or repair work; and

(c) Give a complete description of the location and duration of the
work project.

(2) If a permittee fails to provide the notice required in
subsection (1) of this section, the permittee shall not obtain any right
to continued use of the land without the express written consent of the
landowner.

(3) For purposes of determining whether a prescriptive easement or
way of necessity has been established under Oregon common law, unimproved
or unenclosed forestlands shall include commercial forestland parcels
larger than 20 acres. [1989 c.509 §5]Note: 537.133 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 537 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) The appropriation of water for the purpose of recharging
ground water basins or reservoirs is declared to be for a beneficial
purpose. Permits for such appropriation may be granted by the Water
Resources Department on application made therefor. Any such application
shall substantially comply with ORS 537.140 and shall be subject to the
provisions of ORS 537.150 to 537.230, as are other applications and
permits to appropriate water.

(2) Any person proposing to apply to a beneficial use the water
stored artificially in any such ground water basin or reservoir shall
file an application for permit, to be known as the secondary permit, in
compliance with the provisions of ORS 537.130, 537.140, 537.142 and
537.145 to 537.230. The application shall refer to the artificially
recharged ground water basin or reservoir as a supply of water and shall
include the written consent of the holder of the recharge permit or
certificate to appropriate the artificially recharged water.

(3) The Water Resources Commission shall develop standards that an
applicant must meet before the department approves a permit to
appropriate water for the purpose of recharging ground water.

(4) Before issuing a permit for the purpose of recharging ground
water, the department shall determine, under ORS 537.170, whether the
proposed ground water recharge project would impair or be detrimental to
the public interest.

(5) The department shall not issue a ground water recharge permit
unless the supplying stream has a minimum perennial stream flow
established for the protection of aquatic and fish life. The State
Department of Fish and Wildlife may waive this prerequisite if a minimum
perennial stream flow for protection of aquatic and fish life is not
required for the supplying stream. [1961 c.402 §1; 1985 c.673 §26; 1987
c.499 §1; 1995 c.416 §3]
(1) The failure of an applicant to obtain written authorization, obtain
an easement or acquire ownership of land if required as a condition to
issuance of a permit under ORS 537.211 (2) shall be a ground for refusal
to issue a permit.

(2) If an applicant makes a statement under ORS 537.140 (1)(a)(E)
that falsely states that the applicant owns all lands crossed by a
proposed ditch, canal or other work or that the applicant has obtained
written authorization or an easement permitting access across such lands,
any permit issued in response to the application shall be subject to
cancellation.

(3) Nothing in ORS 537.130, 537.133, 537.139, 537.140, 537.250,
772.305 and 772.310 requires the Water Resources Department to mediate or
arbitrate a dispute between a permittee and a landowner with respect to
the provisions of ORS 537.130, 537.133, 537.139, 537.140, 537.250,
772.305 and 772.310. [1989 c.509 §8; 1995 c.365 §2; 1995 c.416 §4]Note: 537.139 was added to and made a part of 537.110 to 537.330 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation. (1)(a)
Each application for a permit to appropriate water shall be made to the
Water Resources Department on a form prescribed by the department and
shall set forth:

(A) The name and mailing address of the applicant;

(B) The source of water supply including the name and mailing
address of any owner of the land upon which the source of the water
supply is located;

(C) The nature and amount of the proposed use;

(D) The location and description of the proposed ditch, canal or
other work, including the name and mailing address of the owner of any
lands that are not owned by the applicant and that are crossed by the
proposed ditch, canal or other work even if the applicant has obtained
written authorization or an easement from the owner;

(E) A statement declaring whether the applicant has written
authorization or an easement permitting access to nonowned land crossed
by the proposed ditch, canal or other work;

(F) The time within which it is proposed to begin construction;

(G) The time required for completion of the construction;

(H) The time for the complete application of the water to the
proposed use; and

(I) Any other information required in the application form that is
necessary to evaluate the application as established by statute and rule.

(b) If for agricultural purposes, the application shall give the
legal subdivisions of the land and the acreage to be irrigated, as near
as may be.

(c) Except as provided in subsection (2) of this section, if for
power purposes, the application shall give the nature of the works by
means of which the power is to be developed, the head and amount of water
to be utilized, and the uses to which the power is to be applied.

(d) If for construction of a reservoir, the application shall give
the height of dam, the capacity of the reservoir, and the uses to be made
of the impounded waters.

(e) If for municipal water supply, the application shall give the
present population to be served, and, as near as may be, the future
requirements of the city.

(f) If for mining purposes, the application shall give the nature
of the mines to be served, and the methods of supplying and utilizing the
water.

(2) Any person who has applied to the Federal Energy Regulatory
Commission for a preliminary permit or an exemption from licensing shall,
at the same time, apply to the Water Resources Department for a permit to
appropriate water for a hydroelectric project. An applicant for a permit
to appropriate water for a new hydroelectric project shall submit to the
department a complete copy of any application for the project filed with
the Federal Energy Regulatory Commission or other federal agency. If the
copy of the federal application is filed with the department at the same
time it is filed with the federal agency, at the department’s discretion
such copy may fulfill the requirements for an application under
subsection (1) of this section.

(3) Each application shall be accompanied by any map or drawing and
all other data concerning the proposed project and the applicant’s
ability and intention to construct the project, as may be prescribed by
the Water Resources Commission. The accompanying data shall be considered
a part of the application.

(4) The map or drawing required to accompany the application shall
be of sufficient quality and scale to establish the location of the
proposed point of diversion and the proposed place of use identified by
tax lot, township, range, section and nearest quarter-quarter section
along with a notation of the acreage of the proposed place of use, if
appropriate. In addition, the department shall accept locational
coordinate information, including latitude and longitude as established
by a global positioning system. If the application is for a water right
for a municipal use, the map need not identify the proposed place of use
by tax lot.

(5) Each application for a permit to appropriate water shall be
accompanied by the examination fee set forth in ORS 536.050 (1).

(6) If the proposed use of the water is for operation of a chemical
process mine as defined in ORS 517.953, the applicant shall provide the
information required under this section as part of the consolidated
application under ORS 517.952 to 517.989.

(7) Notwithstanding any provision of ORS chapter 183, an
application for a permit to appropriate water shall be processed in the
manner set forth in ORS 537.120 to 537.360. Nothing in ORS chapter 183
shall be construed to allow additional persons to participate in the
process. To the extent that any provision in ORS chapter 183 conflicts
with a provision set forth in ORS 537.120 to 537.360, the provisions in
ORS 537.120 to 537.360 shall control. [Amended by 1985 c.673 §27; 1987
c.542 §5; 1989 c.509 §4; 1991 c.735 §32; 1991 c.869 §6; 1993 c.557 §1;
1993 c.591 §2; 1995 c.365 §3; 1995 c.416 §5; 1997 c.446 §1; 1997 c.587 §4](1) The following water uses do not require an
application under ORS 537.130 or 537.615, a water right permit under ORS
537.211 or a water right certificate under ORS 537.250:

(a) Emergency fire-fighting uses;

(b) Nonemergency fire-fighting training conducted by public fire
departments and rural fire protection districts, provided:

(A) The source of the water is existing storage and the use occurs
with permission of the owner of the stored water; or

(B) If the source of water is other than existing storage, the use
occurs with the prior written approval of the watermaster in the district
where the training will take place and subject to any conditions the
watermaster determines are necessary to prevent injury to existing water
rights and to protect in-stream resources;

(c) Water uses that divert water to water tanks or troughs from a
reservoir for a use allowed under an existing water right permit or
certificate for the reservoir;

(d) Fish screens, fishways and fish by-pass structures, as exempted
by rule of the Water Resources Commission;

(e) Land management practices intended to save soil and improve
water quality by temporarily impeding or changing the natural flow of
diffuse surface water across agricultural lands when storage of public
waters is not an intended purpose. Such practices include but are not
limited to:

(A) Terraces;

(B) Dikes;

(C) Retention dams and other temporary impoundments; and

(D) Agronomic practices designed to improve water quality and
control surface runoff to prevent erosion, such as ripping, pitting,
rough tillage and cross slope farming;

(f) Livestock watering operations that comply with the requirements
under subsections (2) and (3) of this section;

(g) Forest management activities that require the use of water in
conjunction with mixing pesticides as defined in ORS 634.006, or in slash
burning;

(h) The collection of precipitation water from an artificial
impervious surface and the use of such water;

(i) Land application of ground water so long as the ground water:

(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right issued
for industrial purposes or a water right authorizing use of water for
confined animal feeding purposes;

(B) Is reused for irrigation purposes and the period of irrigation
is a period during which the reused water has never been discharged to
the waters of the state; and

(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality or the State Department of Agriculture under either
ORS 468B.050 to construct and operate a disposal system or ORS 468B.215
to operate a confined animal feeding operation; and

(j) Surface mining practices that result in the removal of water
from a surface mine subject to an operating permit or reclamation plan
approved by the State Department of Geology and Mineral Industries,
unless the water is used for a subsequent beneficial use.

(2) The use of surface water for livestock watering may be exempted
under subsection (1) of this section if:

(a) The water is diverted from a stream or other surface water
source to a trough or tank through an enclosed water delivery system;

(b) The delivery system either is equipped with an automatic
shutoff or flow control mechanism or includes a means for returning water
to the surface water source through an enclosed delivery system; and

(c) The operation is located on land from which the livestock would
otherwise have legal access to both the use and source of the surface
water source.

(3) If the diversion system described in subsection (2) of this
section is located within or above a scenic waterway, the amount of water
that may be used without a water right is limited to one-tenth of one
cubic foot per second per 1,000 head of livestock. Nothing in this
section shall prevent the Water Resources Commission from approving an
application for a water right permit for a delivery system not qualifying
under subsection (2) of this section.

(4) The Water Resources Department, in conjunction with local soil
and water conservation districts, the Oregon State University Extension
Service, the State Department of Agriculture and the State Department of
Fish and Wildlife and any other organization interested in participating,
shall develop and implement a voluntary educational program on livestock
management techniques designed to keep livestock away from streams and
riparian areas.

(5) To qualify for an exempt use under subsection (1)(g) of this
section, the user shall:

(a) Submit notice of the proposed use, including the identification
of the proposed water source, to the Water Resources Department and to
the State Department of Fish and Wildlife at the time notice is provided
to other affected agencies pursuant to ORS 527.670; and

(b) Comply with any restrictions imposed by the department
pertaining to sources of water that may not be used in conjunction with
the proposed activity.

(6) Except for the use of water under subsection (1)(i) of this
section, the Water Resources Commission by rule may require any person or
public agency diverting water as described in subsection (1) of this
section to furnish information with regard to such water and the use
thereof. For a use of water described in subsection (1)(i) of this
section, the Department of Environmental Quality or the State Department
of Agriculture shall provide to the Water Resources Department a copy of
the permit issued under ORS 468B.050 or 468B.215 authorizing the land
application of ground water for reuse. The permit shall provide the
information regarding the place of use of such water and the nature of
the beneficial reuse. [1993 c.595 §3; 1995 c.184 §1; 1995 c.274 §9a; 1995
c.537 §2; 1995 c.752 §7; 1997 c.199 §1; 1997 c.244 §2; 1999 c.335 §1;
2001 c.248 §11; 2003 c.470 §4]Note: 537.141 was added to and made a part of ORS chapter 537 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.(1) No
water right certificate or permit is required for the use of the surface
waters of this state if

the water is to be used for a salmon and trout enhancement project
certified by the State Department of Fish and Wildlife under ORS 496.430
to 496.460.

(2) The use of water for a salmon and trout enhancement project
under subsection (1) of this section is a beneficial use and such use
shall be allowed on all the waters of this state, whether or not the
project is located on waters of this state for which the use is
restricted pursuant to any of the following:

(a) A scenic waterway designation under ORS 390.805 to 390.925.

(b) A statutory withdrawal from appropriation under ORS chapter 538.

(c) A program adopted by the Water Resources Commission under ORS
536.300 to 536.400.

(d) An administrative withdrawal from appropriation by the Water
Resources Director or the Water Resources Commission.

(e) Any other statutory or administrative restriction on the use of
the waters.

(3) If the use of the waters of this state under subsection (1) of
this section conflicts with the use of water under a permit issued under
ORS 537.240 or a use allowed under a water right certificate issued under
ORS 537.250, the use permitted under subsection (1) of this section shall
be subordinate. [1985 c.310 §2; 1989 c.587 §2](1) Notwithstanding the provisions of ORS
537.130, the Water Resources Commission may establish by rule a procedure
to allow a person to obtain a limited license to use or store ground
water not otherwise exempt under ORS 537.545, to use or store surface
water, to use stored water or to use stored water for purposes for which
the stored water is authorized and in accordance with a contract with a
local, state or federal government after the person complies with the
notice provisions set forth in ORS 537.144. Uses eligible for a limited
license shall be for a short-term or fixed duration and may include but
are not limited to road construction and maintenance, general
construction and forestland or rangeland management. Except as provided
in subsections (4) to (6) and (9) of this section, the use of water for a
purpose specifically prohibited by a basin program or for irrigation is
not eligible for a limited license.

(2) The use of water under a limited license under subsection (1)
of this section shall not have priority over any water right exercised
according to a permit or certificate and shall be subordinate to all
other authorized uses that rely upon the same source. The Water Resources
Department may revoke the right to use of water acquired under a limited
license pursuant to subsection (1) of this section at any time if the use
causes injury to:

(a) Any other water right; or

(b) A minimum perennial streamflow.

(3) Except as provided in subsections (4), (5) and (11) of this
section, the licensee shall give notice to the Water Resources Department
at least 15 days in advance of using the water under the limited license
and shall maintain a record of use. The record shall include but need not
be limited to an estimate of the amount of water used, the period of use
and the categories of beneficial use to which the water is applied.
During the period of the limited license, the record of use shall be
available for review by the department upon request.

(4) The Water Resources Director may issue a limited license in
conjunction with an enforcement order to address an illegal water use,
including irrigation use or a use specifically prohibited by a basin
program. The director may issue a limited license for such a use upon a
finding that:

(a) The person did not knowingly violate state laws regarding a
water use permit;

(b) The immediate termination of the illegal use would cause
serious and undue hardship to the water user that could be ameliorated by
providing a period of time in which to achieve compliance with the law;
and

(c) The continued use under a limited license outweighs the public
benefits of termination, including deterrence of illegal uses and
protection of the water source.

(5) An enforcement order issued under subsection (4) of this
section shall specify an amount of time in which the person using water
illegally shall bring such use into compliance. The duration of the
limited license shall not exceed the duration of time allowed in the
enforcement order to achieve compliance. A licensee using water under a
limited license issued in conjunction with an enforcement order need not
provide the department with advance notice of water use, but shall comply
with the other requirements of this section.

(6) The director may issue a limited license for irrigation if the
sole purpose of the use is:

(a) To provide water necessary to establish a crop for which no
further irrigation will be required after the crop is established;

(b) To mitigate the impacts of drought when additional water is
needed beyond a prescribed irrigation season in order to avoid
irreparable damage to the user’s crop; or

(c) Under a limited license issued pursuant to subsection (9) of
this section.

(7) Nothing in this section is intended to prohibit any person from
obtaining a water right certificate under ORS 537.250 or 537.630 for any
use for which a limited license is obtained under this section.

(8) Except as provided in subsection (10) of this section, the
department may not issue a limited license for the same use for more than
five consecutive years.

(9) Notwithstanding any other provision of this section, if the use
of water under the limited license is for the use of stored water
consistent with the purposes for which the stored water is authorized and
the use of water is authorized by a contract between the user and a
local, state or federal government:

(a) The limited license may be issued for a period of up to one
year; and

(b) The limited license shall be revoked if the contract between
the user and the local, state or federal government is terminated for any
reason.

(10) At the end of the one-year limited license period in
subsection (9) of this section, the user may reapply for a limited
license under ORS 537.144 provided that there is an authorized contract
between the user and a local, state or federal government.

(11) The director may issue a limited license authorizing immediate
use of water if the director finds that an emergency exists and the water
is needed to protect the public health, safety and welfare.
Notwithstanding subsection (8) of this section, the director may issue a
limited license for such a use for a period of 60 days. [1989 c.933 §2;
1993 c.595 §1; 1995 c.274 §8; 1997 c.38 §1; 1997 c.366 §1]
(1) Any person requesting the right to use water under a limited license
under ORS 537.143 shall notify the Water Resources Department on a form
provided by the department.

(2) If the request submitted under subsection (1) of this section
is to use stored water for purposes for which the stored water is
authorized and pursuant to a contract between the user and a local, state
or federal government:

(a) The person also shall submit:

(A) A copy of the contract;

(B) A map indicating the point of diversion and the place of use;
and

(C) Any other information required by the Water Resources
Commission that is necessary to evaluate the request as established by
statute and the rules of the commission.

(b) Upon the filing of the request under this subsection, the
department shall determine whether the request contains the information
listed under paragraph (a) of this subsection and is complete and not
defective, including the payment of any fee required by the commission.
If the department determines that the request is incomplete or defective
or that all fees have not been paid, the department shall return all fees
and the request. If the department determines that a request contains the
information listed under paragraph (a) of this subsection and is complete
and not defective, the department shall proceed with the review of the
request and issuance of the limited license if the use complies with the
requirements of ORS 537.143.

(3) The notification required under subsection (1) or (2) of this
section shall be accompanied by the fee established by rule by the Water
Resources Commission.

(4) The department shall notify the person whether the department
grants the limited license.

(5) A request for the right to use stored water under a limited
license as described in subsection (2) of this section may be made
concurrently with an application for a permit to appropriate water under
ORS 537.140. [1989 c.933 §3; 1995 c.274 §11; 1997 c.366 §2](1) Whenever an application is made for a permit
to appropriate water for hydroelectric purposes, the Water Resources
Department shall give written notice of the filing of the application to
the owner of any land that is:

(a) Adjacent to any portion of the stream in which the quantity of
water will be decreased by the project; or

(b) Adjacent to the site of the proposed hydroelectric project.

(2) The department shall also publish notice of the application
once each week for at least four successive weeks and for such further
time, if any, as the department shall determine, in a newspaper of
general circulation in each county in which the project covered by the
application is located. [1985 c.569 §22; 1995 c.416 §8] (1) Notwithstanding the
process for applying for a water right permit established in ORS 537.150
to 537.230, a person may, pursuant to this section, apply to the Water
Resources Department for a water right permit to use stored water. A
person applying under this section for a water right permit to use stored
water shall submit:

(a) A fee, in the amount required by ORS 536.050 for applications
to appropriate stored water.

(b) A completed application for a secondary permit, in a form
determined by the department, that contains the information required of
applications under ORS 537.140 and 537.400 (1).

(c) Evidence that the proposed use of the stored water is one of
the authorized uses under the water right permit, certificate or decree
that allows the storage of water.

(2) If an applicant provides, to the satisfaction of the
department, the fee and the information required by subsection (1) of
this section, the department may, after public notice and a 30-day
opportunity to submit comments on the application, issue a water right
permit upon determining that no public interest issues as identified in
ORS 537.170 (8) have been raised through the comments submitted.

(3) If the department determines that public interest issues have
been identified, then the department shall treat the application under
this section as an application under ORS 537.150 and perform the public
interest review required by ORS 537.153 (2).

(4) At a minimum, a water right permit issued by the department for
use of stored water under this section shall be conditioned to require:

(a) Fish screens and by-pass devices and fish passage as may be
required by the State Department of Fish and Wildlife; and

(b) A measuring device at each point of diversion authorized under
the water right permit.

(5) Within 10 days of issuing a water right permit under this
section, the department shall provide notice of the permit issuance in
the weekly notice published by the department and to persons who have
submitted comments pursuant to subsection (2) of this section. [2005 c.37
§2](1) Within 15 days after receiving an application, the Water Resources
Department shall determine whether the application contains the
information listed under ORS 537.140 (1) and is complete and not
defective, including the payment of all fees required under ORS 537.140
(5). If the department determines that the application is incomplete or
defective or that all fees have not been paid, the department shall
return all fees and the application.

(2) Upon determining that an application contains the information
listed under ORS 537.140 (1) and is complete and not defective, the
department shall indorse on the application the date upon which the
application was received at the department, which shall be the priority
date for any water right issued in response to the application. All
applications that comply with the provisions of law shall be recorded in
a suitable book kept for that purpose.

(3) If an application is complete and not defective, the department
shall determine whether the proposed use is prohibited by ORS chapter
538. If the proposed use is prohibited by ORS chapter 538, the department
shall reject the application and return all fees to the applicant with an
explanation of the statutory prohibition.

(4) If the proposed use is not prohibited by ORS chapter 538, the
department shall undertake an initial review of the application and make
a preliminary determination of:

(a) Whether the proposed use is restricted or limited by statute or
rule;

(b) The extent to which water is available from the proposed source
during the times and in the amounts requested; and

(c) Any other issue the department identifies as a result of the
initial review that may preclude approval of or restrict the proposed use.

(5) Upon completion of the initial review and no later than 30 days
after determining an application to be complete and not defective as
described in subsection (1) of this section, the department shall notify
the applicant of its preliminary determinations and allow the applicant
14 days from the date of mailing within which to notify the department to
stop processing the application or to proceed with the application. If
the applicant notifies the department to stop processing the application,
the department shall return the application and all except $50 of all
fees. If the department receives no timely response from the applicant,
the department shall proceed with the application.

(6) Within seven days after proceeding with the application under
subsection (5) of this section, the department shall give public notice
of the application in the weekly notice published by the department. The
notice shall include a request for comments on the application and
information pertaining to how an interested person may obtain future
notices about the application and a copy of the proposed final order.

(7) Within 30 days after the public notice under subsection (6) of
this section, any person interested in the application shall submit
written comments to the department. Any person who asks to receive a copy
of the department’s proposed final order shall submit to the department
the fee required under ORS 536.050 (1). [Amended by 1985 c.673 §28; 1993
c.557 §2; 1995 c.416 §9](1) Within 60 days after
the Water Resources Department proceeds with the application under ORS
537.150 (5), the department shall complete application review and issue a
proposed final order approving or denying the application or approving
the application with modifications or conditions. The department may
request the applicant to provide additional information needed to
complete the review. If the department requests additional information,
the request shall be specific and shall be sent to the applicant by
registered mail. The department shall specify a date by which the
information must be returned, which shall be not less than 10 days after
the department mails the request to the applicant. If the department does
not receive the information or a request for a time extension under ORS
537.175 by the date specified in the request, the department may reject
the application and may refund fees in accordance with ORS 536.050 (3).
The time period specified by the department in a request for additional
information shall allow the department to comply with the 60-day time
limit established by this subsection.

(2) In reviewing the application under subsection (1) of this
section, the department shall presume that a proposed use will not impair
or be detrimental to the public interest if the proposed use is allowed
in the applicable basin program established pursuant to ORS 536.300 and
536.340 or given a preference under ORS 536.310 (12), if water is
available, if the proposed use will not injure other water rights and if
the proposed use complies with rules of the Water Resources Commission.
This shall be a rebuttable presumption and may be overcome by a
preponderance of evidence that either:

(a) One or more of the criteria for establishing the presumption
are not satisfied; or

(b) The proposed use will impair or be detrimental to the public
interest as demonstrated in comments, in a protest under subsection (6)
of this section or in a finding of the department that shows:

(A) The specific public interest under ORS 537.170 (8) that would
be impaired or detrimentally affected; and

(B) Specifically how the identified public interest would be
impaired or detrimentally affected.

(3) The proposed final order shall cite findings of fact and
conclusions of law and shall include but need not be limited to:

(a) Confirmation or modification of the preliminary determinations
made in the initial review;

(b) A brief statement that explains the criteria considered
relevant to the decision, including the applicable basin program and the
compatibility of the proposed use with applicable land use plans;

(c) An assessment of water availability and the amount of water
necessary for the proposed use;

(d) An assessment of whether the proposed use would result in
injury to existing water rights;

(e) An assessment of whether the proposed use would impair or be
detrimental to the public interest as provided in ORS 537.170;

(f) A draft permit, including any proposed conditions, or a
recommendation to deny the application;

(g) Whether the rebuttable presumption that the proposed use will
not impair or be detrimental to the public interest has been established;
and

(h) The date by which protests to the proposed final order must be
received by the department.

(4) The department shall mail copies of the proposed final order to
the applicant and to persons who have requested copies and paid the fee
required under ORS 536.050 (1)(p). The department also shall publish
notice of the proposed final order by publication in the weekly notice
published by the department.

(5) Any person who supports a proposed final order may request
standing for purposes of participating in any contested case proceeding
on the proposed final order or for judicial review of a final order. A
request for standing shall be in writing and shall be accompanied by the
fee established under ORS 536.050 (1)(n).

(6) Any person may submit a protest against a proposed final order.
A protest shall be in writing and shall include:

(a) The name, address and telephone number of the protestant;

(b) A description of the protestant’s interest in the proposed
final order and, if the protestant claims to represent the public
interest, a precise statement of the public interest represented;

(c) A detailed description of how the action proposed in the
proposed final order would impair or be detrimental to the protestant’s
interest;

(d) A detailed description of how the proposed final order is in
error or deficient and how to correct the alleged error or deficiency;

(e) Any citation of legal authority supporting the protest, if
known; and

(f) For persons other than the applicant, the protest fee required
under ORS 536.050.

(7) Requests for standing and protests on the proposed final order
shall be submitted within 45 days after publication of the notice of the
proposed final order in the weekly notice published by the department.
Any person who asks to receive a copy of the department’s final order
shall submit to the department the fee required under ORS 536.050 (1)(p),
unless the person has previously requested copies and paid the required
fee under ORS 537.150 (7), the person is a protestant and has paid the
fee required under ORS 536.050 (1)(j) or the person has standing and has
paid the fee under ORS 536.050 (1)(n).

(8) Within 60 days after the close of the period for receiving
protests, the Water Resources Director shall:

(a) Issue a final order as provided under ORS 537.170 (6); or

(b) Schedule a contested case hearing if a protest has been
submitted and if:

(A) Upon review of the issues, the director finds that there are
significant disputes related to the proposed use of water; or

(B) Within 30 days after the close of the period for submitting
protests, the applicant requests a contested case hearing. [1995 c.416
§11; 1997 c.446 §2; 1997 c.587 §5]Note: 537.153, 537.173 and 537.175 were added to and made a part of
537.145 to 537.240 by legislative action but were not added to any
smaller series therein. See Preface to Oregon Revised Statutes for
further explanation.(1) Subject to the provisions of
subsections (2) and (3) of this section, and of ORS 537.170 and 537.190,
the Water Resources Department shall approve all applications made in
proper form which contemplate the application of water to a beneficial
use, unless the proposed use conflicts with existing rights.

(2) The department may not approve an application for a permit to
appropriate waste or seepage water, which is to be carried through an
existing ditch or canal not owned wholly by the applicant until the
applicant files with the department an agreement between the applicant
and the owner of the ditch or canal, authorizing its use by the applicant
to carry the water.

(3) The department shall reject every application for a permit to
appropriate water to develop hydroelectric power if the department finds
that the proposed project does not comply with the standards set forth in
ORS 543.017 or rules adopted by the Water Resources Commission under ORS
543.017. [Amended by 1985 c.569 §18; 1985 c.673 §197; 1995 c.416 §12]
(1) Within 45 days after the Water Resources Director schedules a
contested case hearing under ORS 537.153 (8), the Water Resources
Department shall hold the contested case hearing. The issues to be
considered in the contested case hearing shall be limited to issues
identified by the administrative law judge.

(2) Notwithstanding the provisions of ORS chapter 183 pertaining to
contested case proceedings, the parties to any contested case hearing
initiated under this section shall be limited to:

(a) The applicant;

(b) Any person who timely filed a protest; and

(c) Any person who timely filed a request for standing under ORS
537.153 (5) and who requests to intervene in the contested case hearing
prior to the start of the proceeding.

(3) The contested case proceeding shall be conducted in accordance
with the applicable provisions of ORS chapter 183 except:

(a) As provided in subsections (1) and (2) of this section; and

(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.

(4) If applicable, an application to appropriate water for the
generation of electricity submitted under ORS 537.140 shall be included
in the consolidated review and hearings process under ORS 543.255.

(5) Each person submitting a protest or a request for standing
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 in a hearing or failure to provide sufficient specificity to
afford the Water Resources Department an opportunity to respond to the
issue precludes judicial review based on that issue.

(6) If, after the contested case hearing or, if a hearing is not
held, after the close of the period allowed to file a protest, the
director determines that the proposed use does not comply with the
standards set forth in ORS 543.017 or rules adopted by the Water
Resources Commission under ORS 543.017 or would otherwise impair or be
detrimental to the public interest, the director shall issue a final
order rejecting the application or modifying the proposed final order to
conform to the public interest. If, after the contested case hearing or,
if a hearing is not held, after the close of the period allowed to file a
protest, the director determines that the proposed use would not impair
or be detrimental to the public interest, the director shall issue a
final order approving the application or otherwise modifying the proposed
final order. A final order may set forth any of the provisions or
restrictions to be included in the permit concerning the use, control and
management of the water to be appropriated for the project, including,
but not limited to, a specification of reservoir operation and minimum
releases to protect the public interest.

(7) If a contested case hearing is not held:

(a) Where the final order modifies the proposed final order, the
applicant may request and the department shall schedule a contested case
hearing as provided under subsection (3) of this section by submitting
the information required for a protest under ORS 537.153 (6) within 14
days after the director issues the final order. However, the issues on
which a contested case hearing may be requested and conducted under this
paragraph shall be limited to issues based on the modifications to the
proposed final order.

(b) Only the applicant or a protestant may appeal the provisions of
the final order in the manner established in ORS chapter 183 for appeal
of order other than contested cases.

(8) If the presumption of public interest under ORS 537.153 (2) is
overcome, then before issuing a final order, the director or the
commission, if applicable, shall make the final determination of whether
the proposed use or the proposed use as modified in the proposed final
order would impair or be detrimental to the public interest by
considering:

(a) Conserving the highest use of the water for all purposes,
including irrigation, domestic use, municipal water supply, power
development, public recreation, protection of commercial and game fishing
and wildlife, fire protection, mining, industrial purposes, navigation,
scenic attraction or any other beneficial use to which the water may be
applied for which it may have a special value to the public.

(b) The maximum economic development of the waters involved.

(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.

(d) The amount of waters available for appropriation for beneficial
use.

(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.

(f) All vested and inchoate rights to the waters of this state or
to the use of the waters of this state, and the means necessary to
protect such rights.

(g) The state water resources policy formulated under ORS 536.295
to 536.350 and 537.505 to 537.534.

(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or protests or
otherwise requested notice of the final order and send a copy of the
final order to any person who requested a copy and paid the fee required
under ORS 536.050 (1)(p). [Amended by 1955 c.707 §36; 1961 c.224 §12;
1963 c.378 §1; 1975 c.581 §26; 1985 c.569 §19; 1985 c.673 §30; 1995 c.416
§13; 1997 c.587 §6; 2003 c.75 §96] (1) Within 20
days after the Water Resources Director issues a final order under ORS
537.170 after the conclusion of a contested case hearing, any party may
file exceptions to the order with the Water Resources Commission.

(2) The commission shall issue a modified order, if allowed, or
deny the exceptions within 60 days after the close of the exception
period under subsection (1) of this section. [1995 c.416 §14]Note: See note under 537.153.(1) Except as provided in
subsection (2) of this section, the Water Resources Department shall
issue a final order or schedule a contested case hearing on an
application for a water right referred to in ORS 537.140 or 537.400
within 180 days after the department proceeds with the application under
ORS 537.150 (5).

(2) At the request of the applicant, the department may extend the
180-day period set forth in subsection (1) of this section for a
reasonable period of time.

(3) If a contested case hearing is held, the department shall issue
a final order:

(a) Within 270 days after scheduling the hearing for a contested
case proceeding that involves three or more parties not including the
department; and

(b) Within 180 days after scheduling the hearing for all other
contested case proceedings.

(4) If the applicant does not request an extension under subsection
(2) of this section and the department fails to issue a proposed final
order or schedule a contested case hearing on an application for a water
right within 180 days after the department proceeds with the application
under ORS 537.150 (5), the applicant may apply in the Circuit Court for
Marion County for a writ of mandamus to compel the department to issue a
final order or schedule a contested case hearing on an application for a
water right. If the application is for an out-of-stream use, the writ of
mandamus shall compel the department to issue a water right permit,
unless the department shows by affidavit that to issue a permit may
result in harm to an existing water right holder. [1995 c.416 §17]Note: See note under 537.153.(1) The Water Resources Department may approve
an application for less water than applied for, or upon terms,
limitations and conditions necessary for the protection of the public
interest, including terms, limitations and conditions relating to the
release of water from an impoundment or diversion structure necessary to
prevent rapid fluctuation in the stream level below the structure which
may create a hazard to life or property, if there exists substantial
reason therefor. In any event the department shall not approve an
application for more water than can be applied to a beneficial use.

(2) The department may approve an application for a municipal water
supply to the exclusion of all subsequent appropriations, if the
exigencies of the case demand.

(3) When conditions beyond the control of the owner or operator of
an impoundment or diversion structure, to which terms, limitations and
conditions made as provided in subsection (1) of this section relate,
threaten the safety of the structure and the release of water from the
structure contrary to such terms, limitations and conditions is or may be
necessary to remove the threat:

(a) The terms, limitations and conditions shall not apply to such
release of water.

(b) The owner, operator or person in immediate charge of the
structure shall immediately notify the department by telegraph or
telephone of the situation.

(c) The owner, operator or person in immediate charge of the
structure shall immediately notify, to the best of the person’s ability,
those persons whose life or property may be threatened by the release of
water. [Amended by 1959 c.624 §3; subsection (3) enacted as 1959 c.624
§5; 1985 c.673 §32; 1995 c.416 §15](1) The approval of an application referred to in ORS 537.140 or
537.400 shall be set forth in a water right permit issued by the Water
Resources Department. The permit shall specify the details of the
authorized use and shall set forth any terms, limitations and conditions
as the department considers appropriate including but not limited to any
applicable condition required under ORS 537.289. A copy of the permit
shall be filed as a public record in the department. The permit shall be
mailed to the applicant, and upon receipt of the permit the permittee may
proceed with the construction of the necessary works and may take all
action required to apply the water to the designated beneficial use and
to perfect the proposed appropriation.

(2) Except as provided in subsection (6) of this section, if an
application under ORS 537.140 or 537.400 indicates that the applicant
does not have written authorization or an easement permitting access to
nonowned land crossed by the proposed ditch, canal or other work, the
department may issue a final order approving the application if the
approval includes a condition requiring the applicant to obtain such
written authorization, or easement or ownership of such land and to
provide the department with a copy of the written authorization, easement
or evidence of ownership.

(3) If an application referred to in ORS 537.140 or 537.400 is
rejected, the department shall enter a written order setting forth the
reasons for the rejection. The applicant shall take no action towards
construction of the works or use of the water. The department shall mail
a copy of the order to the applicant.

(4) The holder of a water right permit may change the point of
diversion, change the point of appropriation, change the point of
diversion to allow the appropriation of ground water or use the water on
land to which the right is not appurtenant if:

(a) The use of water on land to which the right is not appurtenant,
the change of point of diversion or the change in point of appropriation
does not result in injury to an existing water right;

(b) For a proposed change in the place of use of the water, the
land on which the water is to be used is owned or controlled by the
holder of the permit and is contiguous to the land to which the permit is
appurtenant;

(c) All other terms of the permit remain the same, including but
not limited to the beneficial use for which the water is used and the
number of acres to which water is applied;

(d) Prior approval is obtained from the district if the water is
transported or conveyed by an irrigation district organized under ORS
chapter 545, a drainage district organized under ORS chapter 547, a water
improvement district organized under ORS chapter 552, a water control
district organized under ORS chapter 553 or a district improvement
company or a corporation organized under ORS chapter 554;

(e) The holder of the permit provides written notice to the
department at least 60 days before making any changes to the lands, point
of diversion or point of appropriation described in the permit;

(f) The holder of the permit complies with the publication
requirements of ORS 540.520 (5), if applicable;

(g) Diversion is provided with a proper fish screen, if requested
by the State Department of Fish and Wildlife; and

(h) For a request to transfer the point of diversion to allow the
appropriation of ground water, the proposed change meets the standards
set forth in ORS 540.531 (2) or (3).

(5) Notwithstanding the requirements of subsection (4)(b) of this
section, the holder of a water right permit may change the place of use
of all or any portion of water under the permit to land that is not
contiguous to the land to which the permit is appurtenant if:

(a) The change to noncontiguous land is in furtherance of
mitigation or conservation efforts undertaken for the purposes of
benefiting a species listed as sensitive, threatened or endangered under
ORS 496.171 to 496.192 or the federal Endangered Species Act of 1973 (16
U.S.C. 1531 to 1544), as determined by the listing agency; and

(b) All other requirements of subsection (4) of this section are
met.

(6) For an application made by or on behalf of a public
corporation, the department may issue a permit approving the application
without requiring the applicant to obtain prior written authorization or
an easement permitting access to nonowned lands affected by the proposed
project. However, nothing in this subsection shall be construed to allow
any person to trespass on the lands of another person.

(7) When the department receives notice under subsection (4)(e) of
this section, the department shall publish the notice in the department’s
weekly public notice of water right applications.

(8) If the use of water under the permit is for operation of a
chemical process mine as defined in ORS 517.953:

(a) Review of the application and approval or denial of the
application shall be coordinated with the consolidated application
process under ORS 517.952 to 517.989. However, such review and approval
or denial shall take into consideration all policy considerations for the
appropriation of water as set forth in this chapter and ORS chapter 536.

(b) The permit may be issued for exploration under ORS 517.702 to
517.740, but the permit shall be conditioned on the applicant’s
compliance with the consolidated application process.

(c) The permit shall include a condition that additional conditions
may be added to the use of water when a water right certificate is
issued, or when the use of water is changed pursuant to ORS 540.520 and
540.530 to use for a chemical process mine operation.

(9) As used in this section, “contiguous” includes land separated
from the land to which a water right is appurtenant by roads, utility
corridors, irrigation ditches or publicly owned rights of way. [1981 c.61
§2 (enacted in lieu of 537.210); 1985 c.392 §10; 1985 c.673 §33; 1991
c.735 §33; 1995 c.365 §4; 1995 c.368 §1; 1995 c.416 §16a; 1997 c.42 §1;
1997 c.446 §3; 1999 c.611 §1; 1999 c.664 §6; 2003 c.705 §2] (1) Any
application, permit or license to appropriate water may be assigned,
subject to the conditions of the application or permit, but no such
assignment shall be binding, except upon the parties to the assignment,
unless filed for record in the Water Resources Department.

(2) An assignment of an application, permit or license to
appropriate water filed for record with the Water Resources Department
shall identify the current record owners of all property described in the
application, permit or license. The assignor shall furnish proof
acceptable to the department that notice of the assignment has been given
or attempted for each identified property owner not a party to the
assignment. [Amended by 1985 c.673 §34; 1995 c.367 §1](1)
Except for a holder of a permit for municipal use, the holder of a water
right permit shall prosecute the construction of any proposed irrigation
or other work with reasonable diligence and complete the construction
within a reasonable time, as fixed in the permit by the Water Resources
Department, not to exceed five years from the date of approval.

(2) The holder of a permit for municipal use shall commence and
complete the construction of any proposed works within 20 years from the
date on which a permit for municipal use is issued under ORS 537.211. The
construction must proceed with reasonable diligence and be completed
within the time specified in the permit, not to exceed 20 years. However,
the department may order and allow an extension of time to complete
construction or to perfect a water right beyond the time specified in the
permit under the following conditions:

(a) The holder shows good cause. In determining the extension, the
department shall give due weight to the considerations described under
ORS 539.010 (5) and to whether other governmental requirements relating
to the project have significantly delayed completion of construction or
perfection of the right;

(b) The extension of time is conditioned to provide that the holder
may divert water beyond the maximum rate diverted for beneficial use
before the extension only upon approval by the department of a water
management and conservation plan; and

(c) For the first extension issued after June 29, 2005, for a
permit for municipal use issued before November 2, 1998, the department
finds that the undeveloped portion of the permit is conditioned to
maintain, in the portions of waterways affected by water use under the
permit, the persistence of fish species listed as sensitive, threatened
or endangered under state or federal law. The department shall base its
finding on existing data and upon the advice of the State Department of
Fish and Wildlife. An existing fish protection agreement between the
permit holder and a state or federal agency that includes conditions to
maintain the persistence of any listed fish species in the affected
portion of the waterway is conclusive for purposes of the finding.

(3) Except as provided in ORS 537.240 and 537.248 and subsection
(2) of this section, the Water Resources Department, for good cause
shown, shall order and allow an extension of time, including an extension
beyond the five-year limit established in subsection (1) of this section
within which irrigation or other works shall be completed or the right
perfected. In determining the extension, the department shall give due
weight to the considerations described under ORS 539.010 (5) and to
whether other governmental requirements relating to the project have
significantly delayed completion of construction or perfection of the
right.

(4) Except as provided in subsection (5) of this section and ORS
537.409, upon completion of beneficial use as required under this
section, the permittee shall hire a water right examiner certified under
ORS 537.798 to survey the appropriation. Within one year after
application of water to a beneficial use or the beneficial use date
allowed in the permit, the permittee shall submit a map of the survey as
required by the Water Resources Department, which shall accompany the
request for a water right certificate submitted to the department under
ORS 537.250. If any property described in the permit is not included in
the request for a water right certificate, the permittee shall state the
identity of the record owner of that property.

(5) The Water Resources Director may waive the requirement under
subsection (4) of this section that a permittee hire a water right
examiner certified under ORS 537.798 if:

(a) The permit is a supplemental water right that shares the same
distribution system and same place of use as the primary water right; and

(b) The department determines that there is sufficient information
in the records of the department to determine proof of beneficial use.

(6) Notwithstanding ORS 537.410, for purposes of obtaining a water
right certificate under ORS 537.250 for a supplemental water right, the
permittee shall have a facility capable of handling the full rate and
duty of water requested from the supplemental source and be otherwise
ready, willing and able to use the amount of water requested, up to the
amount of water approved in the water right permit. To obtain a
certificate for a supplemental water right, the permittee is not required
to have actually used water from the supplemental source if:

(a) Water was available from the source of the primary water right
and the primary water right was used pursuant to the terms of the primary
water right; or

(b) The nonuse of water from the supplemental source occurred
during a period of time within which the exercise of the supplemental
water right permit was not necessary due to climatic conditions. [Amended
by 1985 c.617 §1; 1985 c.673 §201; 1987 c.542 §4; 1995 c.367 §2; 1995
c.416 §35; 1995 c.473 §5; 1997 c.446 §4; 1997 c.502 §1; 1997 c.557 §1;
1999 c.453 §1; 1999 c.665 §2; 2005 c.410 §1]Note: Section 5, chapter 410, Oregon Laws 2005, provides:

Sec. 5. (1) The amendments to ORS 537.230 and 537.630 by sections 1
and 2 of this 2005 Act relating to the time to commence and complete
construction apply to permits issued by the Water Resources Department on
or after the effective date of this 2005 Act [June 29, 2005].

(2) The amendments to ORS 537.230 and 537.630 by sections 1 and 2
of this 2005 Act apply to requests for extensions of time to complete
construction or to perfect a water right made before, on or after the
effective date of this 2005 Act, whether or not construction has
commenced under a permit prior to the request.

(3) All final orders by the department that resulted in the
issuance of a water right permit, the issuance of a water right
certificate or the approval of an extension of time to complete
construction or to perfect a water right for a municipal use that were
issued before the effective date of this 2005 Act are not subject to
challenge in an administrative or judicial proceeding with respect to the
requirement to commence and complete construction within a specified
period of time. [2005 c.410 §5](1) In any case where a permit from the
Federal Energy Regulatory Commission is or shall be required in
connection with the development of the applicant’s proposed project, the
applicant shall make application for the necessary federal permit or
license within six months, or, if the applicant is a municipal
corporation, within 10 years, from the date of filing application for
appropriation of water with the Water Resources Department.

(2) Upon failure of the applicant to file with the department,
within 30 days after the expiration of the period above prescribed,
satisfactory proof that application for the federal permit or license has
been duly made, the application to appropriate water shall be terminated
and become void.

(3) Where the application for the necessary permit or license from
the Federal Energy Regulatory Commission is finally rejected or
disallowed, or if after being granted, the permit or license is revoked
or forfeited because of failure to begin or carry on the construction
work when and as required by the permit or license, then the department
shall, upon the filing in the Water Resources Department of satisfactory
proof of such fact, revoke and cancel any permit issued by the department
for appropriation of water for use in the project for which the federal
permit or license was required.

(4) In case of any permit issued for the appropriation of water for
the utilization of which a permit or license from the Federal Energy
Regulatory Commission is necessary, the time to be allowed for the
beginning and completion of construction under the permit from the
department shall be made to conform to the time fixed for such beginning
and completion in the permit or license, and in any extension thereof,
issued for the project by the Federal Energy Regulatory Commission.
[Amended by 1985 c.673 §36; 1995 c.416 §36](1) When the Water Resources Department issues a reservoir
permit for a new storage project to a county, municipality or district,
the department shall include in the permit a date, not more than 10 years
after the date the permit is issued, to begin and complete construction
of diversion or storage works and to perfect the water right. An
application for a reservoir permit under this section shall be subject to
the provisions of ORS 537.140 to 537.211, except that the applicant need
not submit engineering plans and specifications before the permit is
issued. However, the applicant may not begin construction of the
reservoir until the department approves the engineering plans and
specifications.

(2) By order, the Water Resources Director may extend the date for
beginning and completing construction and for completing perfection of
the use if the applicant shows reasonable diligence and good cause. An
extension allowed under this subsection shall not exceed 10 years, but
the applicant may request additional extensions.

(3) As used in this section, “district” includes the entities set
forth in ORS 198.010 and 198.180. [1995 c.473 §2; 1995 c.416 §35a]Note: 537.248 and 537.249 were added to and made a part of 537.140
to 537.252 by legislative action but were not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.(1) In lieu of the
procedure established pursuant to ORS 537.358, for any reservation
pending on July 5, 1995, the state agency that requested the reservation
may elect to have the proposed reservation considered:

(a) As an application for a permit under ORS 537.140 to 537.211 and
537.248; or

(b) As a rulemaking proceeding under the applicable provisions of
ORS chapter 183 in which case the provisions of ORS 537.358 requiring a
public interest review under ORS 537.170 shall not be applicable.

(2) A state agency making any election under subsection (1) of this
section shall submit a written request to the Water Resources Commission
within 90 days after July 5, 1995. The commission shall proceed in
accordance with the election made under subsection (1) of this section
or, if an election is not submitted, according to the procedure
established pursuant to ORS 537.358.

(3) A reservation established under the provisions of this section
shall have as a priority date the date established in rules of the
commission in effect on July 5, 1995.

(4) When issuing a reservoir permit for a multipurpose storage
project using water reserved or proposed to be reserved under a request
originally filed by the Water Resources Department before June 5, 1992,
the department shall grant a preference for the project under ORS 537.352.

(5) Notwithstanding ORS 537.356, the Water Resources Commission may
accept requests to reserve unappropriated water before July 1, 1997, but
shall not begin to process such requests before July 1, 1997. Any request
to reserve unappropriated water submitted by the State Department of
Agriculture before July 1, 1997, also shall consider municipal needs. The
priority date of a request received in proper form by the Water Resources
Commission after July 5, 1995, shall be the date of receipt. [1995 c.473
§3; 1995 c.416 §35b]Note: See note under 537.248.(1) After the Water
Resources Department has received a request for issuance of a water right
certificate accompanied by the survey required under ORS 537.230 (4) that
shows, to the satisfaction of the department, that an appropriation has
been perfected in accordance with the provisions of the Water Rights Act,
the department shall issue to the applicant a certificate of the same
character as that described in ORS 539.140. The certificate shall be
recorded and transmitted to the applicant as provided in that section.

(2) When issuing a water right certificate under subsection (1) of
this section in the name of a district as defined in ORS 540.505, or in
the name of a government agency for a district, the department may issue
the water right certificate for land not described in the permit in
accordance with ORS 537.252.

(3) Rights to the use of water acquired under the provisions of the
Water Rights Act, as set forth in a certificate issued under subsection
(1) of this section, shall continue in the owner thereof so long as the
water shall be applied to a beneficial use under and in accordance with
the terms of the certificate, subject only to loss:

(a) By nonuse as specified and provided in ORS 540.610; or

(b) As provided in ORS 537.297. [Amended by 1985 c.392 §11; 1985
c.673 §191; 1987 c.542 §6; 1989 c.509 §6; 1995 c.218 §3; 1995 c.365 §5;
1995 c.416 §21a; 2005 c.410 §3](1) When issuing a water right certificate under ORS 537.250 to a
district, or to a government agency for a district, the Water Resources
Department may issue the water right certificate for land not described
in the permit if:

(a) Water furnished by the district under the permit has been
applied beneficially to the land;

(b) The land not described in the permit that is proposed to be
included in the certificate is included within the legally established
boundaries of the district and is subject to the charges, assessments and
liens of the district;

(c) The certificate does not authorize a greater rate, duty or
acreage than is authorized by the terms of the permit, and all other
conditions of the permit are satisfied;

(d) The inclusion of land not described in the permit will not
result in injury to other existing water rights or in enlargement of the
right authorized under the permit; and

(e) The impact to the water source of including land not described
in the permit will not differ significantly from the impact expected at
the time the permit was issued for the lands described in the permit.

(2) If a district proposes to use water on lands not described in
the permit, the Water Resources Department may issue a certificate that
includes such additional lands if all of the conditions of subsection (1)
of this section are satisfied and if, no later than 60 days before the
district actually applies the water to the lands not described in the
permit, the district provides written notice to the department. The
notice shall include a copy of the original permit map modified to show
the lands to be added and lands to be removed from the description of the
place of use of the water. Upon receipt of the notice from the district,
the department shall provide public notice of the proposed change by
means of publication in the department’s weekly notice and by publication
once each week for three successive weeks in a newspaper having general
circulation in the county or counties in which the affected lands are
located. The cost of publication shall be paid by the district.

(3) If a district has issued an order of inclusion or exclusion,
the boundaries of the irrigation district shall be deemed to have been
legally changed in the absence of approval of the Secretary of the
Interior.

(4) As used in this section:

(a) “District” has the meaning given in ORS 540.505.

(b) “Legally established boundaries” means the boundaries of a
district as established at the time of creation of the district and as
the boundaries may have changed after creation of the district by an
inclusion, exclusion or merger proceeding according to state law. [1995
c.218 §2; 1995 c.416 §21b; 2003 c.14 §343](1) Except as provided under
subsection (4) of this section for a permit issued to a municipality,
whenever the time within which any appropriation under a permit should
have been perfected has expired and the owner of the permit fails or
refuses within three months thereafter to submit to the Water Resources
Department proof of completion of the appropriation as required by ORS
537.230 and 537.250, the department may, after 60 days’ notice by
registered mail or by certified mail with return receipt, order the
cancellation of the permit. The cancellation shall have the same force
and effect as cancellation of a permit in the proceedings provided for in
ORS 537.410 to 537.450.

(2) The department may determine the extent to which an
appropriation has been perfected under any permit at the time of
submission of final proof provided for in ORS 537.250, and shall limit
the certificate provided for in that section to a description of such
appropriation as has been actually perfected to the extent that the water
applied for has been actually applied to the beneficial use contemplated
in the permit.

(3) Any person owning an application, permit or water right
certificate subsequent in priority may jointly or severally contest
before the department the issuance of the water right certificate at any
time before it has issued, and after the time has expired for the
completion of the appropriation under the permit, or within three months
after issuance of the certificate. The contest shall be brought upon
application made, and hearing shall be had in the same manner and after
notice as provided in ORS 537.420 for proceedings for cancellation of
permits. The department, in a final order, may cancel the permit or
determine the extent to which the appropriation claimed thereunder has
been perfected, and issue a water right certificate accordingly, or if a
certificate has been issued, in the case of a contest within three months
after its issuance, the department may cancel the water right
certificate, or affirm its issuance, and if the water right certificate
in such case is canceled, the permit upon which it is based shall also be
canceled.

(4) A municipality may partially perfect not less than 25 percent
of the water authorized by its permit without loss of priority or
cancellation of the municipality’s permit under this section. If a
municipality defers perfection of its water right under this section, the
department shall issue a certificate under ORS 537.250 only for the
amount perfected. Upon perfection of the deferred amount, the
municipality shall request a water right certificate for the remaining
portion of the water applied for in the original permit application. As
used in this section, “municipality” includes a city, a port formed under
ORS 777.005 to 777.725 and 777.915 to 777.953, a domestic water supply
district formed under ORS chapter 264 or a water authority formed under
ORS chapter 450. [Amended by 1983 c.740 §211; 1985 c.673 §38; 1989 c.707
§2; 1991 c.249 §43; 1993 c.577 §35; 1995 c.416 §37] A water right certificate
issued in accordance with the provisions of ORS 537.250 which, after the
expiration of three months from the date it is issued, has not been
contested and canceled in the manner provided in ORS 537.260, and a water
right certificate, when issued under ORS 539.140, shall be conclusive
evidence of the priority and extent of the appropriation therein
described in any proceeding in any court or tribunal of the state, except
in those cases where the rights of appropriation thereby described have
been abandoned subsequent to issuance of the certificate. As used in ORS 537.282
to 537.299, “municipal applicant” means any municipal corporation or
district as defined in ORS 543.655 that has applied for a permit to
appropriate water for the purpose of generating hydroelectric power under
the provisions of this chapter, or that has been accorded any right or
preference under ORS 543.260, 543.270 or 543.610. [1985 c.392 §2](1) Notwithstanding any other provision of
ORS 537.140 to 537.350, in accordance with the applicable provisions of
ORS chapter 183, the Water Resources Commission shall by rule establish a
procedure for processing applications to appropriate water for
hydroelectric power under ORS 537.140 to 537.320.

(2) Rules adopted under subsection (1) of this section:

(a) To the extent possible, shall be consistent with the process
established for other applications to appropriate water for other
beneficial uses under ORS 537.140 to 537.252.

(b) Shall not supersede any provision pertaining to hydroelectric
power established under this chapter or ORS chapter 543, to the extent
such provisions are applicable to applications to appropriate water for
hydroelectric power purposes.

(c) Need not comply with the mandatory time limits or notice
provisions established under ORS 537.140 to 537.350 if such provisions
are incompatible with the substantive requirements applicable to
applications to appropriate water for hydroelectric power purposes. [1995
c.416 §32a]Note: 537.283 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 537 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.A municipal applicant may
contract with a private person for the purpose of generating
hydroelectric power. The municipal applicant shall retain sufficient
benefit and interest in, and control of a joint project as necessary for
the project to be considered a municipal project. A municipal applicant
and a private person developing a joint project under this chapter must
comply with the rules adopted by the Water Resources Commission under ORS
537.287. [1985 c.392 §3]The Water Resources Commission shall establish rules necessary to
carry out the provisions of ORS 537.285. The rules shall include the
amount of control over and interest in a joint project a municipal
applicant must retain in order to receive the benefit of the municipal
preference and proceed under the municipal application process set forth
in this chapter. [1985 c.392 §4](1) Whenever the Water Resources Department issues a permit
under ORS 537.211 allowing a municipal corporation or district, as
defined in ORS 543.655, to appropriate water for the purpose of
generating hydroelectric power, the department shall impose the following
conditions on the permit, in addition to any other term, limitation or
condition imposed under ORS 537.211:

(a) That the permit may not be assigned to any nonmunicipal entity
so as to result in a loss of ownership of the permit by a municipal
corporation or district.

(b) That the holder of the permit must remain qualified as a
municipal applicant under ORS 537.285 and 537.287. If the municipal
corporation or district proposes to generate hydroelectric power jointly
with a nonmunicipal entity, that any proposed changes in the agreement
between the municipal corporation and the nonmunicipal entity must be
reviewed by the department to determine whether the permittee remains
qualified as a municipal applicant.

(2) If the department determines that a permittee no longer
qualifies as a municipal applicant, the department shall notify the
permittee and any nonmunicipal entity developing a project with the
permittee that the parties have 90 days to amend their joint relationship
to continue qualifying as a municipal corporation or district. [1985
c.392 §5; 1985 c.673 §186; 1995 c.416 §33](1) Whenever the Water Resources Commission
issues a certificate under ORS 537.250 granting a municipal corporation
or district as defined in ORS 543.655 the right to appropriate water for
the purpose of generating hydroelectric power, the commission shall
impose the following conditions on the certificate, in addition to any
other term, limitation or condition imposed under ORS 537.250:

(a) That the water right may not be assigned to any nonmunicipal
entity so as to result in a loss of ownership of the certificate by the
municipal corporation or district.

(b) That the holder of the water right certificate must remain
qualified as a municipal applicant under ORS 537.285 and 537.287. If the
municipal corporation or district is generating the hydroelectric power
jointly with a nonmunicipal entity, that any proposed changes in the
agreement between the municipal corporation and the nonmunicipal entity
must be reviewed by the Water Resources Commission to determine whether
or not the owner of the certificate remains qualified as a municipal
applicant.

(2) If the commission determines that an owner of a certificate no
longer qualifies as a municipal applicant, the commission shall notify
the owner of the certificate and any nonmunicipal entity developing or
operating the project jointly with the owner that the parties have 90
days to amend their joint agreement in a manner that allows the parties
to continue to qualify as a municipal corporation or district. [1985
c.392 §6; 1985 c.673 §187](1) If the holder of a permit to
appropriate water for hydroelectric purposes under this chapter fails,
after receiving notice under ORS 537.289 (2), to amend the joint
agreement so the holder continues to qualify as a municipal applicant, or
if the holder of the permit has assigned ownership of the permit to an
entity other than a municipal corporation or district, the Water
Resources Commission shall initiate proceedings to cancel the permit.

(2) A proceeding to cancel a permit under subsection (1) of this
section shall be conducted according to the provisions under ORS chapter
183 for a contested case hearing. [1985 c.392 §7; 1985 c.673 §188](1) If the owner of a
certificate to appropriate water for hydroelectric purposes under this
chapter fails, after receiving notice under ORS 537.289 (2), to amend the
joint agreement so the owner continues to qualify as a municipal
applicant, or if the holder of the certificate has assigned ownership of
the certificate to an entity other than a municipal corporation or
district, the Water Resources Commission shall initiate proceedings to
cancel the certificate.

(2) A proceeding to cancel a certificate under subsection (1) of
this section shall be conducted according to the provisions under ORS
chapter 183 for a contested case hearing. [1985 c.392 §8; 1985 c.673 §189](1) If the Water Resources Commission cancels a permit or
certificate under ORS 537.295 or 537.297, the municipal applicant may
apply for a permit to appropriate water for hydroelectric purposes under
this chapter, or the private developer may apply for a hydroelectric
license under ORS chapter 543. However, the parties may not jointly apply
for a permit to appropriate water for hydroelectric purposes pursuant to
ORS 537.285.

(2) When a permit or certificate is canceled under ORS 537.295 or
537.297, the cancellation order may include such conditions and
requirements as the commission deems necessary for the public safety and
welfare, including but not limited to:

(a) Delay of the effective date of cancellation until such time as
another entity is authorized to operate the facility under this chapter
or ORS chapter 543; or

(b) Provision for operation of the facility during the period
between cancellation and issuance of a new permit, certificate or
license. [1985 c.392 §9; 1985 c.673 §190](1) Any corporation organized for the construction,
maintenance or operation of any railway may acquire, hold and appropriate
to its use for railway purposes any waters within the state. The
appropriation may be accomplished by the procedure provided by ORS
537.130 and 537.140 to 537.252. A railway corporation may acquire by
purchase, gift or devise, or by condemnation as provided in subsection
(2) of this section, any water rights owned by any person and the rights
of other persons affected by change of place or character of use of the
water rights. Upon acquisition of the water rights by the corporation the
right shall be severed from the land of the grantor and simultaneously
transferred and become appurtenant to the operating property of the
railway corporation, without losing the priority of the water right as
originally established.

(2) Any such corporation may condemn and appropriate for railway
operating purposes the rights of any private appropriator of waters
within the state. The right of condemnation shall be exercised in the
same manner as other property is condemned and appropriated for railway
purposes; provided, that no water right so condemned shall exceed two
cubic feet per second.

(3) Upon satisfactory proof of the acquisition of water rights by
any such corporation through purchase, gift, devise or condemnation, the
Water Resources Commission shall issue to the corporation a certificate
of the same character as that described in ORS 539.140, which shall be
recorded and transmitted to the corporation, as provided in that section.
All certificates of water rights issued before May 29, 1925, by the Board
of Control or the Water Resources Director to any such corporation shall
be sufficient in law to convey to the corporation the water rights
described in the certificates, and such certificates shall be received in
evidence in all courts in this state. [Amended by 1985 c.673 §40]Any person may enter upon any land
for the purpose of locating a point of diversion of the water intended to
be appropriated, and upon any land lying between such point and the lower
terminus of the proposed ditch, canal or flume of the person, for the
purpose of examining the same and of locating and surveying the line of
such ditch, canal or flume, together with the lines of necessary
distributing ditches and feeders, and to locate and determine the site
for reservoirs for storing water.(1) In any transaction for the
conveyance of real estate that includes a water right, the seller of the
real estate shall, upon accepting an offer to purchase that real estate,
also inform the purchaser in writing whether any permit, transfer
approval order or certificate evidencing the water right is available and
that the seller will deliver any permit, transfer approval order or
certificate to the purchaser at closing, if the permit, transfer approval
order or certificate is available.

(2) Upon closing and delivery of the instrument of conveyance in a
real estate transaction involving the transfer of a water right, the
seller shall also deliver to the purchaser evidence of any permit,
transfer approval order or certificate of water rights if the permit,
transfer approval order or certificate is available.

(3) The failure of a seller to comply with the provisions of this
section does not invalidate an instrument of conveyance executed in the
transaction.

(4) This section does not apply to any transaction for the
conveyance of real estate that includes a water right when the permit,
transfer approval order or certificate evidencing the water right is held
in the name of a district or corporation formed pursuant to ORS chapter
545, 547, 552, 553 or 554.

(5) As used in this section:

(a) “Certificate” means a certificate or registration issued under
ORS 537.250 (1), 537.585, 539.140 or 539.240.

(b) “Permit” means a permit issued under ORS 537.211, 537.240 or
537.625.

(c) “Transfer approval order” means an order of the Water Resources
Commission issued under ORS 540.530. [1979 c.535 §4; 1981 c.448 §1; 1991
c.411 §1; 1995 c.274 §12; 2005 c.14 §1]IN-STREAM WATER RIGHTS As used in ORS
537.332 to 537.360:

(1) “In-stream” means within the natural stream channel or lake bed
or place where water naturally flows or occurs.

(2) “In-stream flow” means the minimum quantity of water necessary
to support the public use requested by an agency.

(3) “In-stream water right” means a water right held in trust by
the Water Resources Department for the benefit of the people of the State
of Oregon to maintain water in-stream for public use. An in-stream water
right does not require a diversion or any other means of physical control
over the water.

(4) “Public benefit” means a benefit that accrues to the public at
large rather than to a person, a small group of persons or to a private
enterprise.

(5) “Public use” includes but is not limited to:

(a) Recreation;

(b) Conservation, maintenance and enhancement of aquatic and fish
life, wildlife, fish and wildlife habitat and any other ecological values;

(c) Pollution abatement; or

(d) Navigation. [1987 c.859 §2; 1995 c.416 §32] The people of the State of Oregon find and
declare that:

(1) Public uses are beneficial uses.

(2) The recognition of an in-stream water right under ORS 537.336
to 537.348 shall not diminish the public’s rights in the ownership and
control of the waters of this state or the public trust therein. The
establishment of an in-stream water right under the provisions of ORS
537.332 to 537.360 shall not take away or impair any permitted,
certificated or decreed right to any waters or to the use of any waters
vested prior to the date the in-stream water right is established
pursuant to the provisions of ORS 537.332 to 537.360. [1987 c.859 §3](1) The State
Department of Fish and Wildlife may request the Water Resources
Commission to issue water right certificates for in-stream water rights
on the waters of this state in which there are public uses relating to
the conservation, maintenance and enhancement of aquatic and fish life,
wildlife and fish and wildlife habitat. The request shall be for the
quantity of water necessary to support those public uses as recommended
by the State Department of Fish and Wildlife.

(2) The Department of Environmental Quality may request the Water
Resources Commission to issue water right certificates for in-stream
water rights on the waters of this state to protect and maintain water
quality standards established by the Environmental Quality Commission
under ORS 468B.048. The request shall be for the quantity of water
necessary for pollution abatement as recommended by the Department of
Environmental Quality.

(3) The State Parks and Recreation Department may request the Water
Resources Commission to issue water right certificates for in-stream
water rights on the waters of this state in which there are public uses
relating to recreation and scenic attraction. The request shall be for
the quantity of water necessary to support those public uses as
recommended by the State Parks and Recreation Department.

(4) Any request for an in-stream water right to be supplied from
stored water shall refer to the reservoir for a supply of water and shall
show by documentary evidence that an agreement has been entered into with
the owners of the reservoir for a sufficient interest in the reservoir to
impound enough water for the purposes set forth in the request. [1987
c.859 §4; 1989 c.904 §68; 1995 c.673 §1]
The Water Resources Commission by rule shall establish standards,
criteria and procedures by which a state agency included under ORS
537.336 may request an in-stream water right to be issued under ORS
537.336. [1987 c.859 §5] Subject to the
provisions of ORS 537.343, the Water Resources Commission shall issue a
certificate for an in-stream water right. The in-stream water right shall
date from the filing of the application with the commission. The
certificate shall be in the name of the Water Resources Department as
trustee for the people of the State of Oregon and shall be issued by the
commission according to the procedures established under ORS 537.338. The
commission shall forward a copy of each certificate issued under this
section to the state agency requesting the in-stream water right. A
certificate for an in-stream water right supplied by stored water shall
refer to the reservoir described in the request filed under ORS 537.336.
[1987 c.859 §6; 1995 c.673 §2] (1) A proposed final
order issued under ORS 537.170 (6) for an in-stream water right
certificate may include any condition the Water Resources Director
considers necessary, but which is consistent with the intent of ORS
537.332 to 537.360. The proposed final order may:

(a) Approve the in-stream water right for the quantity of water
requested;

(b) Approve the requested in-stream water right for a lesser
quantity of water; or

(c) Reject the requested in-stream water right.

(2) If the director reduces or rejects the in-stream water right as
requested, or conditions the in-stream water right, the director shall
include a statement of findings that sets forth the basis for the
reduction, rejection or conditions. The director shall be the final
authority in determining the level of in-stream flow necessary to protect
the public use.

(3) After the director issues a final order approving an in-stream
water right, the Water Resources Department shall issue a certificate for
an in-stream water right according to the provisions of ORS 537.341.
[1987 c.859 §7; 1995 c.416 §20](1) All minimum
perennial streamflows established on any waters of this state before June
25, 1988, shall be converted to in-stream water rights after the Water
Resources Commission reviews the streamflows and the Water Resources
Department issues a certificate for an in-stream water right in
accordance with ORS 537.343 with the same priority date as the minimum
perennial streamflow.

(2) The priority date for that portion of an in-stream water right
that uses the stored water component of a minimum perennial streamflow in
the Willamette Basin shall be the date the commission or its predecessor
adopted the minimum perennial streamflow containing the stored water
component.

(3) Notwithstanding the priority date established under subsection
(2) of this section, until the state enters into a contract that meets
the criteria set forth in subsection (4) of this section with the owner
of the storage facility to release the stored water for the purpose of
satisfying the in-stream water right, for that portion of an in-stream
water right in the Willamette Basin converted from the stored water
component of a minimum perennial streamflow, the department:

(a) May not require the release of the stored water; and

(b) Shall not regulate the use of water to provide water for the
portion of the in-stream water right using stored water.

(4) A contract for the release of stored water to satisfy an
in-stream water right shall:

(a) Include as parties to the contract the State of Oregon and the
owner of the storage facility;

(b) Specifically allow the state to obtain the release of stored
water to satisfy an in-stream water right; and

(c) Identify a method to determine the specific quantity of water
released from storage to satisfy the stored water component of the
in-stream water right.

(5) If the federal government does not release water to satisfy a
stored water component of an in-stream water right pursuant to a contract
that satisfies the criteria set forth in subsection (4) of this section,
the department may not regulate the use of water by other water right
holders to satisfy the stored water component of an in-stream water right
or take any other action that impairs the rights of any person under a
valid contract for the use of the stored water. [1987 c.859 §8; 1995 c.72
§1; 1997 c.212 §3; 1999 c.59 §170; 2001 c.104 §227](1) Any person may purchase or
lease all or a portion of an existing water right or accept a gift of all
or a portion of an existing water right for conversion to an in-stream
water right. Any water right converted to an in-stream water right under
this section shall retain the priority date of the water right purchased,
leased or received as a gift. At the request of the person the Water
Resources Commission shall issue a new certificate for the in-stream
water right showing the original priority date of the purchased, gifted
or leased water right. A person who transfers a water right by purchase,
lease or gift under this subsection shall comply with the requirements
for the transfer of a water right under ORS 540.505 to 540.585.

(2) Any person who has an existing water right may lease all or a
portion of the existing water right for use as an in-stream water right
for a specified period without the loss of the original priority date.
During the term of such lease, the use of the water right as an in-stream
water right shall be considered a beneficial use.

(3) A lease of all or a portion of an existing water right for use
as an in-stream water right under subsection (2) of this section may
allow the split use of the water between the existing water right and the
in-stream right during the same water or calendar year provided:

(a) The uses are not concurrent; and

(b) The holders of the water rights measure and report to the Water
Resources Department the use of the existing water right and the
in-stream water right. [1987 c.859 §9; 2001 c.205 §1]Note: The amendments to 537.348 by section 2, chapter 205, Oregon
Laws 2001, become operative January 2, 2008. See section 3, chapter 205,
Oregon Laws 2001. The text that is operative on and after January 2,
2008, is set forth for the user’s convenience.

537.348. (1) Any person may purchase or lease all or a portion of
an existing water right or accept a gift of all or a portion of an
existing water right for conversion to an in-stream water right. Any
water right converted to an in-stream water right under this section
shall retain the priority date of the water right purchased, leased or
received as a gift. At the request of the person the Water Resources
Commission shall issue a new certificate for the in-stream water right
showing the original priority date of the purchased, gifted or leased
water right. A person who transfers a water right by purchase, lease or
gift under this subsection shall comply with the requirements for the
transfer of a water right under ORS 540.505 to 540.585.

(2) Any person who has an existing water right may lease all or a
portion of the existing water right for use as an in-stream water right
for a specified period without the loss of the original priority date.
During the term of such lease, the use of the water right as an in-stream
water right shall be considered a beneficial use. Except as
provided in ORS 537.343, the Water Resources Department shall process a
request received under ORS 537.336 for a certificate for an in-stream
water right in accordance with the provisions for obtaining a permit to
appropriate water under ORS 537.140 to 537.252. [1995 c.416 §19] (1) After the Water
Resources Commission issues a certificate for an in-stream water right
under ORS 537.341 to 537.348, the in-stream water right shall have the
same legal status as any other water right for which a certificate has
been issued.

(2) An in-stream water right is not subject to cancellation under
ORS 537.260 or 537.410 to 537.450 but an in-stream water right may be
canceled under ORS 540.610 to 540.650. [1987 c.859 §10] Notwithstanding any provision of ORS
537.332 to 537.343 and 537.350, the right to the use of the waters of
this state for a project for multipurpose storage or municipal uses or by
a municipal applicant, as defined in ORS 537.282, for a hydroelectric
project, shall take precedence over an in-stream water right when the
Water Resources Department conducts a review of the proposed project in
accordance with ORS 537.170. The precedence given under this section
shall not apply if the in-stream water right was established pursuant to
ORS 537.346 or 537.348. [1987 c.859 §11; 1995 c.416 §42]An in-stream water right established under the provisions of
ORS 537.332 to 537.360 shall be subject to the provisions of ORS 536.700
to 536.780. [1987 c.859 §12](1) Any local
government, local watershed council or state agency or any other
individual cooperating jointly with a local government, local watershed
council or state agency may request the Water Resources Commission to
reserve unappropriated water for multipurpose storage for future economic
development.

(2) A request under subsection (1) of this section shall be in
writing on a form provided by the Water Resources Department. Before
deciding whether to approve the request and initiate a rulemaking
process, the commission shall request comments from any local government
or watershed council within the geographic area or basin affected by the
request. The comment period shall be closed not later than 120 days after
the request is submitted.

(3) The priority date for any reservation established under this
section shall be the date on which the commission takes action to
initiate the rulemaking process. [1987 c.859 §13; 1997 c.445 §1](1) In adopting a rule under ORS
537.356 to reserve unappropriated water for multipurpose storage for
future economic development, the Water Resources Commission shall include
a public interest review that takes into consideration the factors
described under ORS 537.170.

(2) A person requesting use of the reserved water for new storage
shall submit a water right application and comply with the procedure set
forth in ORS 537.140 to 537.252, except that the priority date for a
storage right approved for use of reserved water shall be the date of the
reservation. The commission by rule may describe a process for ensuring
that the proposed use is consistent with the requirements of the rule
establishing the reservation. [1987 c.859 §14; 1997 c.445 §2]If an application is
pending under this chapter for a water right permit to use water for
hydroelectric purposes or under ORS 543.010 to 543.610 for a
hydroelectric permit or license at the time the Water Resources
Commission receives an application for an in-stream water right under ORS
537.336 for the same stream or reach of the stream, the commission shall
not take any action on the application for an in-stream water right until
the commission issues a final order approving or denying the pending
hydroelectric application. [1987 c.859 §15]MISCELLANEOUS (1)
Notwithstanding any condition or limitation of a water right permit
issued under ORS 537.211 or 537.625 or a water right certificate issued
under ORS 537.250, 537.630 or 539.140, upon receipt of a request by the
State Department of Agriculture, the Water Resources Commission may, by
order, extend the irrigation season of a subbasin beyond the period
established by adjudication, administrative rule or by condition imposed
on a permit or certificate, if the commission finds:

(a) Water is available during the period of the extended irrigation
season;

(b) Water use during the extended season would not impair in-stream
flows that are necessary to protect aquatic resources; and

(c) Water diversion and use during the period of the extended
season would not impair the achievement or maintenance of water quality
standards as established for the water source by the Department of
Environmental Quality.

(2) If the source of water identified in the request is stored
water and water is available from the storage source during the period of
the extended irrigation season, the commission may extend the irrigation
season as requested without making the findings required by subsection
(1) of this section. However, use of water during the extended period
shall be limited to the stored water.

(3) In order to ensure that use of water during an extended
irrigation season does not injure existing and future water rights, use
of water during the extended period of the irrigation season shall be
subordinated to all existing and future water rights.

(4) Use of water during the extended irrigation season shall comply
with all conditions and limitations of the permit or certificate,
including the rate, duty and place of use of the right.

(5) Use of water shall be regulated among irrigators for whom the
season has been extended during the extended irrigation season according
to the priority date of the permit or certificate. [1995 c.356 §1]Note: 537.385 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 537 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. In any valuation for rate-making
purposes, or in any proceeding for the acquisition of rights to the use
of water and the property used in connection therewith, under any license
or statute of the United States or under the laws of Oregon, no value
shall be recognized or allowed for such rights in excess of the actual
cost to the owner of perfecting them in accordance with the provisions of
the Water Rights Act. [Formerly 537.280; and then 537.335](1) Any certificate issued for power purposes
to a person other than the United States, or the State of Oregon or any
municipality thereof, shall provide that after the expiration of 50 years
from the granting of the certificate or at the expiration of any federal
power license, and after not less than two years’ notice in writing to
the holder of the certificate, the State of Oregon, or any municipality
thereof, may take over the dams, plants and other structures, and all
appurtenances thereto, which have been constructed for the purpose of
devoting to beneficial use the water rights specified in the certificate.
The taking over shall be upon condition that before taking possession the
state or municipality shall pay not to exceed the fair value of the
property taken, plus such reasonable damages, if any, to valuable,
serviceable and dependent property of the holder of the certificate, not
taken over, as may be caused by the severance therefrom of the property
taken.

(2) The fair value of the property taken and the severance damages,
if any, shall be determined by agreement between the holder of the
certificate and the state or municipality, or, in case they cannot agree,
by proceedings in equity instituted by the state or municipality in the
circuit court of the county in which the largest portion of the property
is located.

(3) The right of the state or any municipality to take over,
maintain and operate any property which has devoted to beneficial use
water rights specified in the certificate, by condemnation proceedings
upon payment of just compensation, is expressly reserved.

(4) The provision for the recapture of any rights other than for
power purposes, as provided in this section, contained in any certificate
issued before June 14, 1939, shall be of no force and effect and may be
canceled from the records wherever recorded and a new certificate issued
with the recapture clause eliminated.

(5) The owner of any certificate issued before June 14, 1939, for
such rights may, upon surrendering the certificate, receive a new
certificate therefor issued under and subject to the provisions of this
section. [Formerly 537.290; and then 537.340]PONDS AND RESERVOIRS (1) All applications for reservoir
permits shall be subject to the provisions of ORS 537.130, 537.140,
537.142 and 537.145 to 537.240, except that an enumeration of any lands
proposed to be irrigated under the Water Rights Act shall not be required
in the primary permit. But the party proposing to apply to a beneficial
use the water stored in any such reservoir shall file an application for
permit, to be known as the secondary permit, in compliance with the
provisions of ORS 537.130, 537.140, 537.142 and 537.145 to 537.240. The
application shall refer to the reservoir for a supply of water and shall
show by documentary evidence that an agreement has been entered into with
the owners of the reservoir for a sufficient interest in the reservoir to
impound enough water for the purposes set forth in the application, that
the applicant has provided notice of the application to the operator of
the reservoir and, if applicable, that an agreement has been entered into
with the entity delivering the stored water. When beneficial use has been
completed and perfected under the secondary permit, the Water Resources
Department shall take the proof of the water user under the permit. The
final certificate of appropriation shall refer to both the ditch
described in the secondary permit and the reservoir described in the
primary permit.

(2) Whenever application is made for permit to store water in a
reservoir or pond for any beneficial use which does not contemplate
future diversion of the stored water except by livestock drinking from
stock water ponds, the extent of utilization thereof may be included in
the reservoir permit and no secondary permit shall be required. However,
in cases where water from a stream is required to maintain a reservoir or
pond by replacing evaporation and seepage losses, or is required to
maintain suitable fresh water conditions for the proposed use and to
prevent stagnation, the applicant for permit to store water in such
reservoir or pond shall also file an application for permit to
appropriate the waters of the stream.

(3) An application submitted to construct a reservoir storing less
than 9.2 acre-feet of water or with a dam less than 10 feet in height
need not be accompanied by a map prepared by a water right examiner
certified under ORS 537.798 as required by ORS 537.140 (4). The map
submitted with the application shall comply with standards established by
the Water Resources Commission. The survey required under ORS 537.230
shall be prepared by a water right examiner certified under ORS 537.798
and shall be submitted to the department before the department issues the
water right certificate.

(4) If a dam safety review is required under ORS 540.350, the
department may issue a final order approving an application on the basis
of preliminary plans, specifications and supporting information if the
approval includes a condition requiring the commission’s approval of
final plans, specifications and supporting information under ORS 540.350
before the permit is issued.

(5) Notwithstanding the provisions of ORS 537.211 (2), the
department may approve an application for a reservoir permit for which a
dam safety review is required under ORS 540.350 and issue a permit,
subject to the condition that before the reservoir may be filled, the
permittee shall submit to the department evidence that the permittee
owns, or has written authorization or an easement permitting access to,
all lands to be inundated by the reservoir. [Formerly 537.300; and then
537.345; 1993 c.557 §3; 1993 c.595 §9; 1995 c.365 §6; 2005 c.37 §3](1) Reservoirs in existence on or before January
1, 1995, that store less than 9.2 acre-feet of water or with a dam or
impoundment structure less than 10 feet in height, are found to be a
beneficial use of the water resources of this state. Except as provided
in subsection (4) of this section, such reservoirs are exempt from
regulation by the Water Resources Commission and the Water Resources
Department and are not required to obtain a permit or certificate under
ORS 537.140 to 537.252.

(2)(a) On or before January 31, 1997, an owner of a reservoir
constructed before January 1, 1995, shall provide written notification to
the department of the existence of the exempt reservoir. The written
notification shall include the quantity of water stored by the reservoir,
the source of the water used to fill the reservoir and a map or drawing
of sufficient quality and scale to establish the general location of the
reservoir by tax lot, township, range and section and to the nearest
quarter-quarter section.

(b) Any person who submitted a notice of exemption for a reservoir
under ORS 537.141 and qualified for the exemption shall be allowed an
exemption.

(3) Within 90 days after receiving written notification under
subsection (2) of this section, the department shall provide notice of
the exemption in the manner the department determines to be the most
appropriate.

(4) Detailed, legally obtained information demonstrating that a
specific reservoir exempt under subsection (1) of this section should not
be exempt shall be submitted in writing to the department on or before
August 1, 1997:

(a) By the State Department of Fish and Wildlife if the reservoir
should not be exempt because the existing reservoir, including any
impoundment structure, poses a significant detrimental impact to existing
fishery resources; or

(b) By any person if the existing reservoir should not be exempt
because the existing reservoir, including the storage or use of the
water, results in injury to an existing water right.

(5) Within 180 days after the department receives information under
subsection (4) of this section, the Water Resources Director shall
determine whether the reservoir results in injury to an existing water
right or poses a significant detrimental impact to existing fishery
resources. The determination of injury to an existing water right or
impact to existing fishery resources shall be based on verifiable
evidence.

(6) If the director determines that an existing reservoir does not
injure an existing water right or pose a significant detrimental impact
to existing fishery resources, the reservoir shall be exempt under
subsection (1) of this section.

(7) If the director determines that an existing reservoir results
in injury to an existing water right or poses a significant detrimental
impact to existing fishery resources, the director shall require the
owner of the reservoir to take appropriate action to mitigate injury to
existing water rights or impact to the existing fishery resources.

(8) If the director fails to act under subsection (6) or (7) of
this section within 180 days after receiving the information under
subsection (4) of this section, the reservoir shall be considered exempt.

(9) Nothing in this section shall be construed to allow any owner
of a reservoir exempt under this section to increase the quantity of
water stored in or diverted from such reservoir on or before January 1,
1995. [1995 c.752 §2](1) The Water Resources Department shall issue a
water right certificate to any person who submitted an application for a
reservoir under section 4, chapter 595, Oregon Laws 1993.

(2) Within 90 days after issuing a certificate under subsection (1)
of this section, the department shall provide notice of the certificate
in the manner the department determines to be the most appropriate.

(3) Detailed, legally obtained information demonstrating that a
specific reservoir granted a certificate under subsection (1) of this
section should not be certificated shall be submitted in writing to the
department on or before August 1, 1997:

(a) By the State Department of Fish and Wildlife if the reservoir
should not be exempt because the existing reservoir, including any
impoundment structure, poses a significant detrimental impact to existing
fishery resources; or

(b) By any person if the existing reservoir should not be exempt
because the existing reservoir, including the storage or use of the
water, results in injury to an existing water right.

(4) Within 180 days after the department receives information under
subsection (3) of this section, the Water Resources Director shall
determine whether the reservoir results in injury to an existing water
right or poses a significant detrimental impact to existing fishery
resources. The determination of injury to an existing water right or
impact to existing fishery resources shall be based on verifiable
evidence.

(5) If the director determines that an existing reservoir does not
injure an existing water right or pose a significant detrimental impact
to existing fishery resources, the certificate for the reservoir shall
continue with the same terms and conditions included with the certificate
under subsection (1) of this section.

(6) If the director determines that an existing reservoir results
in injury to an existing water right or poses a significant detrimental
impact to existing fishery resources, the director shall require the
owner of the reservoir to take appropriate action to mitigate injury to
existing water rights or impact to the existing fishery resources.

(7) If the director fails to act under subsection (5) or (6) of
this section within 180 days after receiving the information under
subsection (3) of this section, the certificate shall continue with the
same terms and conditions included with the certificate.

(8) Nothing in this section shall be construed to allow any owner
of a reservoir certificated under this section to increase the quantity
of water stored in or diverted from such reservoir on or before January
1, 1995.

(9) Any person who submitted an application for a reservoir under
section 4, chapter 595, Oregon Laws 1993, may submit a written request to
the department to convert the application to a notice of exemption under
ORS 537.405. Upon receipt of a request under this subsection, the
department shall refund all fees and convert the application to a notice
of exemption. [1995 c.752 §3](1) In lieu of the process set forth in ORS 537.140 to
537.211 for applying for a water right permit, an owner of a reservoir
may submit an application to the Water Resources Department to issue a
water right permit under ORS 537.211 or a certificate under ORS 537.250
according to the process set forth in this section if the reservoir:

(a) Has a storage capacity of less than 9.2 acre-feet or a dam or
impoundment structure less than 10 feet in height;

(b) Does not injure any existing water right;

(c) Does not pose a significant detrimental impact to existing
fishery resources as determined on the basis of information submitted by
the State Department of Fish and Wildlife; and

(d) Is not prohibited under ORS 390.835.

(2) An application for a water right permit for a reservoir under
subsection (1) of this section shall provide sufficient information to
demonstrate compliance with the criteria set forth in subsection (1) of
this section. The application shall:

(a) Include the quantity of water to be stored by the reservoir, a
map indicating the location of the reservoir and the source of the water
used to fill the reservoir; and

(b) Be accompanied by the fee established in ORS 536.050 (1)(q).

(3) The map required under subsection (2) of this section need not
be prepared by a water right examiner certified under ORS 537.798. The
map submitted with the application shall comply with standards
established by the Water Resources Commission.

(4) Within 60 days after receiving an application under subsection
(1) of this section, the Water Resources Department shall provide public
notice of the application in the manner the department determines to be
the most appropriate.

(5) Within 60 days after the department provides public notice
under subsection (4) of this section, any person may submit detailed,
legally obtained information in writing, requesting the department to
deny the application for a permit on the basis that the reservoir:

(a) Would result in injury to an existing water right; or

(b) Would pose a significant detrimental impact to existing fishery
resources.

(6) In accordance with rules established by the Water Resources
Commission for an expedited public interest review process for
applications submitted under this section or in response to a request
under subsection (5) of this section, the department shall conduct a
public interest review of the reservoir application. The review shall be
limited to issues pertaining to:

(a) Water availability;

(b) Potential detrimental impact to existing fishery resources; and

(c) Potential injury to existing water rights.

(7) Within 180 days after the department receives an application
for a permit under subsection (1) of this section, the department shall
issue a final order granting or denying the permit or granting the permit
with conditions.

(8) If the department issues an order under subsection (7) of this
section denying the permit, the applicant may request a contested case
hearing, which shall be conducted in accordance with applicable
provisions of ORS chapter 183.

(9) If the department does not find injury or impact under
subsection (6) of this section and the department issues a final order
under subsection (7) of this section allowing the issuance of a permit,
the order shall be subject to judicial review of orders in other than
contested cases as provided in ORS chapter 183.

(10) Notwithstanding the requirement for a survey under ORS 537.230
(4), a survey of the appropriation is not required for a reservoir that
has a storage capacity of less than 9.2 acre-feet of water. For a
reservoir qualifying under this subsection, a permittee shall submit to
the department a claim of beneficial use within one year after the date
of completion of construction. A claim of beneficial use for a reservoir
qualifying under this subsection shall require only a written affidavit
signed by the permittee that includes the following:

(a) The dimensions of the reservoir.

(b) The maximum capacity of the reservoir in acre-feet.

(c) A map identifying the location of the reservoir. The map shall
comply with standards established by the Water Resources Commission. The
map required under this subsection need not be prepared by a water right
examiner certified under ORS 537.798.

(11) Any person applying for a secondary permit for the use of
stored water from a reservoir qualifying under subsection (10) of this
section shall submit a survey prepared by a water right examiner
certified under ORS 537.798. The survey required under this subsection
shall apply to the storage reservoir and to the secondary use of the
water in the reservoir. [1995 c.752 §4; 1997 c.446 §5; 1997 c.502 §2;
1997 c.587 §7; 2005 c.410 §4]CANCELLATION OF PERMIT FOR APPROPRIATION(1) Whenever the owner of a
permit to appropriate the public waters of Oregon fails to commence
actual construction work within the time required by law, or having
commenced construction work as required by law, fails or neglects to
prosecute the construction work with reasonable diligence, or fails to
complete the construction work within the time required by law, or as
fixed in the permit, or within such further time as may be allowed under
ORS 537.230, or having completed construction work, fails or neglects to
apply the water to beneficial use within the time fixed in the permit,
the Water Resources Commission may cancel the permit on the records in
the Water Resources Department as provided in ORS 537.410 to 537.450.

(2) However, permits issued by the commission to irrigation
districts for reclamation purposes under the irrigation district laws of
this state, to municipal corporations for municipal uses or purposes or
to public utilities complying with subsection (3) of this section for an
energy facility granted a site certificate by the Energy Facility Siting
Council, are not subject to cancellation under the provisions of ORS
537.410 to 537.450.

(3) For a public utility to qualify under subsection (2) of this
section:

(a) The energy facility of the public utility must not be a
facility required to be licensed under ORS chapter 543; and

(b) The public utility must supply information every two years that
demonstrates to the satisfaction of the commission that the conditions in
the site certificate issued by the Energy Facility Siting Council
contemplate the future use of the remaining portion of the water applied
for in the original permit application. [Amended by 1985 c.673 §41; 1995
c.372 §1] Whenever a permit holder fails to comply
with the laws of the state and the requirements of the permit as to the
commencement of work with due diligence, completion of the work of
construction or the application of the water for a beneficial use, and
the permit is subject to cancellation as provided in ORS 537.410 to
537.450, the Water Resources Commission shall, not less than 30 nor more
than 60 days prior to the hearing provided for in ORS 537.445, notify
each person who, according to Water Resources Department records, is the
holder of a water right permit or certificate whose right may be injured
by the proposed cancellation. The notice shall require the holder of the
permit to appear before the commission at the time and place designated
in the notice, and show cause why the permit described in the notice
should not be canceled for the reasons therein specified. The notice
shall contain a brief statement of the grounds for cancellation and shall
be served in accordance with ORS 183.415. [Amended by 1983 c.740 §212;
1985 c.673 §42; 1991 c.103 §1] If the
decision of the Water Resources Commission requires the cancellation of a
permit, then the commission shall at once cancel, or have canceled, the
permit. Thereafter the permit shall be of no further force or effect, and
shall not be recognized or admitted as evidence of any right or interest
in or to the waters covered by it in any proceeding in the courts or
before other tribunals of the state. Permits having subsequent priority
shall upon such cancellation have priority in the order of the filing of
the applications upon which subsequent permits are based, as if the
canceled permit, or the application upon which it was based, had never
existed. [Amended by 1985 c.673 §43](1) If the Water Resources
Commission proposes to cancel a permit or appropriation under ORS 537.410
to 537.450, opportunity for hearing shall be accorded as provided in ORS
chapter 183.

(2) If a petition for review of an order canceling a permit or
appropriation is filed under ORS 536.075, the commission shall not cancel
the permit or appropriation under ORS 537.440 until the petitioner’s
right of review is exhausted and the order is finally approved. [1971
c.734 §82; 1985 c.673 §44]The Water
Resources Commission may by rule provide that the owners of permits shall
submit or furnish proofs of commencement of work, prosecution of work
with due diligence, completion of work, and of the application of water
to a beneficial use under the permits. Failure to comply with the
commission’s rules in respect to the proofs shall be considered prima
facie evidence of failure to commence work, prosecute work with due
diligence, complete work, or apply water to the beneficial use
contemplated by the permit in proceedings under ORS 537.410 to 537.440
for the cancellation of permits. [Amended by 1985 c.673 §45]CONSERVATION AND USE OF CONSERVED WATER As used
in ORS 537.455 to 537.500 and 540.510:

(1) “Conservation” means the reduction of the amount of water
diverted to satisfy an existing beneficial use achieved either by
improving the technology or method for diverting, transporting, applying
or recovering the water or by implementing other approved conservation
measures.

(2) “Conserved water” means that amount of water that results from
conservation measures, measured as the difference between:

(a) The smaller of the amount stated on the water right or the
maximum amount of water that can be diverted using the existing
facilities; and

(b) The amount of water needed after implementation of conservation
measures to meet the beneficial use under the water right certificate.
[1987 c.264 §1; 1993 c.641 §1]Note: 537.455 to 537.500 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 537 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. (1) The Legislative Assembly
finds and declares that conservation and efficient utilization of water
benefits all water users, provides water to satisfy current and future
needs through reduction of consumptive waste, improves water quality by
reducing contaminated return flow, prevents erosion and allows increased
in-stream flow.

(2) It is therefore declared to be the policy of the State of
Oregon to:

(a) Aggressively promote conservation;

(b) Encourage the highest and best use of water by allowing the
sale or lease of the right to the use of conserved water; and

(c) Encourage local cooperation and coordination in development of
conservation projects to provide incentives for increased efficiency and
to improve streamflows.

(3) As used in this section, “efficient utilization” means use
without waste, upgrading of irrigation equipment to comply with modern
practices within a reasonable time period or other methods used to meet
both current and future water needs at the least cost. [1987 c.264 §2;
1993 c.641 §2; 2003 c.93 §1; 2005 c.22 §379]Note: See note under 537.455. The provisions of
ORS 537.455 to 537.500 establish a voluntary program and apply only to
those persons who choose to apply for an allocation of conserved water
under ORS 537.465. [1993 c.641 §11; 2003 c.93 §2]Note: See note under 537.455.(1) Any person or group of persons holding a water use
subject to transfer as defined in ORS 540.505 may submit an application
to the Water Resources Commission for approval of an allocation of
conserved water for a measure that:

(a) The person or group of persons intends to implement; or

(b) Was implemented by the person or group of persons within five
years prior to the submission of the application.

(2) An application submitted under subsection (1)(a) of this
section shall include:

(a) A description of the proposed measures;

(b) A description of the existing diversion facilities and an
estimate of the amount of water that can be diverted at the facilities;

(c) The amount of water that will be needed to supply existing
rights after implementation of the conservation measures;

(d) The amount of conserved water expected from implementation of
the conservation measures;

(e) The proposed allocation and use of the conserved water if
different from the allocation specified in ORS 537.470;

(f) The intended use of any water allocated to the applicant;

(g) The applicant’s choice of priority date for the conserved
water; and

(h) Any other information the commission considers necessary to
evaluate the effectiveness of the proposal.

(3) An application under subsection (1)(b) of this section shall
include:

(a) A description of the measure as implemented and the date on
which the measure was implemented;

(b) A description of the diversion facilities before the
conservation measure was implemented and the amount of water that was
diverted at the facilities before the conservation measure was
implemented;

(c) The amount of water needed to supply existing rights after
implementation of the conservation measure;

(d) The amount of water conserved by implementing the conservation
measure;

(e) The proposed allocation and use of the conserved water if
different from the allocation specified in ORS 537.470;

(f) The intended use of any water allocated to the applicant;

(g) The applicant’s choice of priority date for the conserved water;

(h) Evidence that the measure was implemented within five years
prior to the date of filing the application; and

(i) Any other information the commission considers necessary to
evaluate the application.

(4) If a person proposes conservation measures within the
boundaries of an irrigation district organized under ORS chapter 545 or a
water control district organized under ORS chapter 553, at the time the
person submits the application, the person also must submit evidence that
the district has approved the conservation application. [1987 c.264 §3;
1993 c.641 §3; 1995 c.274 §10; 2003 c.93 §3]Note: See note under 537.455.(1) Upon receipt of an application for allocation of conserved water
under ORS 537.465, the Water Resources Commission shall give notice of
receipt of the application in accordance with ORS 540.520 (5).

(2) The commission shall allocate conserved water as provided in
subsection (3) of this section and approve modifications of water rights
as provided in subsection (6) of this section. The commission may not
allocate conserved water pursuant to an application under ORS 537.465 if
the application is filed more than five years after the conservation
measure was implemented.

(3) After determining the quantity of conserved water, if any,
required to mitigate the effects on other water rights, the commission
shall allocate 25 percent of the remaining conserved water to the state
and 75 percent to the applicant, unless the applicant proposes a higher
allocation to the state or more than 25 percent of the funds used to
finance the conservation measures comes from federal or state public
sources. If more than 25 percent of the funds used to finance the
conservation measures comes from federal or state public sources and is
not subject to repayment, the commission shall allocate to the state a
percentage equal to the percentage of public funds used to finance the
conservation measures and allocate to the applicant a percentage equal to
the percentage of other funds used to finance the conservation measures.
If the commission determines that the water allocated to the state is
necessary to support in-stream flow purposes in accordance with ORS
537.332 to 537.360, the water shall be converted to an in-stream water
right. If the water allocated to the state is not necessary to support
in-stream flow purposes, it shall revert to the public for appropriation
by the next user in priority. In no event, however, shall the applicant
receive less than 25 percent of the remaining conserved water unless the
applicant proposes a higher allocation to the state.

(4) The commission shall notify the applicant and any other person
requesting notice, of the action the commission intends to take under
subsection (3) of this section. Any person objecting to the proposed
allocation may file a protest requesting a contested case hearing before
the commission.

(5) The modification of water rights under an allocation of
conserved water may not require a separate request for transfer under ORS
540.520.

(6) After the commission completes the allocation of conserved
water under subsection (3) of this section, the commission shall issue
orders for proposed new certificates covering the changes in the original
water rights. Once the conservation project is completed, separate new
certificates preserving the previously established priority of rights
shall be issued to cover the unaffected portion of the water rights and
separate new certificates indicating the priority of rights as set forth
in ORS 537.485 shall be issued to cover the right to the use of the
allocated water. [1987 c.264 §4; 1989 c.62 §1; 1993 c.641 §4; 1995 c.274
§13; 1999 c.664 §7; 2003 c.93 §4]Note: See note under 537.455.The Water Resources Commission shall adopt rules and
standards necessary to carry out the provisions of ORS 537.455 to
537.500. The rules may include formulas or other criteria for evaluating
the effects of allocation of water on existing rights and for determining
whether, and to what extent, mitigation shall be required. [1987 c.264
§6; 1993 c.641 §5]Note: See note under 537.455.(1) Notwithstanding any other provision of ORS chapter 536,
537, 538, 539, 540, 541, 542 or 543, the priority of any right to the use
of conserved water, including an in-stream water right, under an
application submitted and approved by the Water Resources Commission
under ORS 537.465 and 537.470 shall be either the same as or one minute
after the priority of the water right held by the person implementing the
conservation measures.

(2) A person who implements a conservation measure may choose the
priority of the water right for the conserved water in accordance with
subsection (1) of this section. However, the priority date chosen must be
the same for the portion of water allocated to the applicant and the
portion of water allocated to the state. [1987 c.264 §7; 1993 c.641 §6;
2003 c.93 §5]Note: See note under 537.455.(1) Any person or agency allocated conserved water under ORS 537.470
may reserve the water in stream for future out-of-stream use or otherwise
use or dispose of the conserved water. Any person or agency to whom
conserved water is allocated shall notify the commission of the
dispensation of the right to the use of conserved water. The notice shall
include:

(a) The name and address of the person buying or leasing the right
to the use of conserved water;

(b) The use to which the conserved water is to be put; and

(c) The terms of any agreement between the appropriator and the
person using the conserved water.

(2) Notwithstanding any other provision of law, a person who holds
a water right permit or certificate having a subsequent priority to a
certificate issued under ORS 537.470 may not acquire a vested right to
any water or return flow of water that results from either the lease of
the right to the use of conserved water or the reservation of conserved
water in stream for future use under subsection (1) of this section.

(3) Any right to the use of conserved water sold under subsection
(1) of this section:

(a) Shall become appurtenant to the premises upon which the
purchaser uses the water; and

(b) Shall be subject to the provisions of ORS 540.505 to 540.585
and 540.610 to 540.650.

(4) When the commission receives notice of the sale of the right to
the use of conserved water under subsection (1) of this section, the
commission shall issue to the purchaser a new water right certificate
covering the right to the use of conserved water that was sold. The
certificate shall indicate the priority of the water right according to
the provisions of ORS 537.485. [1987 c.264 §8; 1993 c.641 §7]Note: See note under 537.455.Any agency or political subdivision of this state
may purchase a right to the use of conserved water, as defined under ORS
537.455, or accept a gift of a right to the use of conserved water as
defined under ORS 537.455. If an agency or political subdivision requests
that the conserved water remain in the stream, the commission shall
manage the water in a manner that results in the conserved water
remaining in the stream. [1987 c.264 §9; 1993 c.641 §8]Note: See note under 537.455. (1) A water right
for conserved water under ORS 537.455 to 537.500 and 540.510 shall have
the same legal status as any other water right for which a certificate
has been issued.

(2) A water right for conserved water that is reserved in stream
for future out-of-stream use under ORS 537.490 or that the commission
manages under ORS 537.495 is not subject to cancellation under ORS
537.260 or 537.410 to 537.450 or to abandonment or forfeiture under ORS
540.610 to 540.650. [1987 c.264 §10; 1989 c.699 §3]Note: See note under 537.455.GROUND WATER(Generally)ORS 537.505 to 537.795 and 537.992 shall be
known as the “Ground Water Act of 1955.” [1955 c.708 §1; 1963 c.293 §1] As used
in ORS 537.505 to 537.795 and 537.992, unless the context requires
otherwise:

(1) “Altering” a well means the deepening, recasing, perforating,
reperforating, the installation of packers or seals and other material
changes in the design of the well.

(2) “Constructing” a well includes boring, digging, drilling or
excavating and installing casing or well screens.

(3) “Converting” a well means changing the use of an existing well
or hole not previously used to withdraw water such that the well or hole
can be used to seek or withdraw water.

(4) “Geothermal fluid” means any ground water used for its thermal
characteristics that is encountered in a well with a bottom hole
temperature of less than 250 degrees Fahrenheit or any other fluid that
is circulated within a well with a bottom hole temperature of less than
250 degrees Fahrenheit and used for its acquired thermal characteristics.

(5) “Ground water” means any water, except capillary moisture,
beneath the land surface or beneath the bed of any stream, lake,
reservoir or other body of surface water within the boundaries of this
state, whatever may be the geological formation or structure in which
such water stands, flows, percolates or otherwise moves.

(6) “Ground water reservoir” means a designated body of standing or
moving ground water having exterior boundaries which may be ascertained
or reasonably inferred.

(7) “Pollution” of ground water means any impairment of the natural
quality of such ground water, however caused, including impairment by
salines, minerals, industrial wastes, domestic wastes or sewage, whether
indrafted directly or through infiltration into the ground water supply.

(8) “Public agency” means the United States or any agency thereof,
the State of Oregon or any agency thereof or any county, city, district
organized for public purposes or other public corporation or political
subdivision of this state.

(9) “Well” means any artificial opening or artificially altered
natural opening, however made, by which ground water is sought or through
which ground water flows under natural pressure or is artificially
withdrawn. “Well” does not include a temporary hole drilled for the
purpose of gathering geotechnical ground water quality or ground water
level information, a natural spring or a hole drilled for the purpose of:

(a) Prospecting, exploration or production of oil or gas;

(b) Prospecting or exploration for geothermal resources, as defined
in ORS 522.005;

(c) Production of geothermal resources, as defined in ORS 522.005,
derived from a depth of greater than 2,000 feet; or

(d) Exploration for minerals as defined in ORS 517.750 and 517.910.

(10) “Well drilling machine” means any power driven percussion,
rotary, boring, digging or augering machine used in the construction of
water wells. [1959 c.708 §3; 1961 c.334 §6; 1975 c.552 §35; 1989 c.201
§1; 1989 c.939 §1; 1991 c.200 §1; 1995 c.79 §302; 1999 c.293 §1] The Legislative Assembly recognizes, declares and
finds that the right to reasonable control of all water within this state
from all sources of water supply belongs to the public, and that in order
to insure the preservation of the public welfare, safety and health it is
necessary that:

(1) Provision be made for the final determination of relative
rights to appropriate ground water everywhere within this state and of
other matters with regard thereto through a system of registration,
permits and adjudication.

(2) Rights to appropriate ground water and priority thereof be
acknowledged and protected, except when, under certain conditions, the
public welfare, safety and health require otherwise.

(3) Beneficial use without waste, within the capacity of available
sources, be the basis, measure and extent of the right to appropriate
ground water.

(4) All claims to rights to appropriate ground water be made a
matter of public record.

(5) Adequate and safe supplies of ground water for human
consumption be assured, while conserving maximum supplies of ground water
for agricultural, commercial, industrial, thermal, recreational and other
beneficial uses.

(6) The location, extent, capacity, quality and other
characteristics of particular sources of ground water be determined.

(7) Reasonably stable ground water levels be determined and
maintained.

(8) Depletion of ground water supplies below economic levels,
impairment of natural quality of ground water by pollution and wasteful
practices in connection with ground water be prevented or controlled
within practicable limits.

(9) Whenever wasteful use of ground water, impairment of or
interference with existing rights to appropriate surface water, declining
ground water levels, alteration of ground water temperatures that may
adversely affect priorities or impair the long-term stability of the
thermal properties of the ground water, interference among wells, thermal
interference among wells, overdrawing of ground water supplies or
pollution of ground water exists or impends, controlled use of the ground
water concerned be authorized and imposed under voluntary joint action by
the Water Resources Commission and the ground water users concerned
whenever possible, but by the commission under the police power of the
state except as specified in ORS 537.796, when such voluntary joint
action is not taken or is ineffective.

(10) Location, construction, depth, capacity, yield and other
characteristics of and matters in connection with wells be controlled in
accordance with the purposes set forth in this section.

(11) All activities in the state that affect the quality or
quantity of ground water shall be consistent with the goal set forth in
ORS 468B.155. [1955 c.708 §2; 1985 c.673 §46; 1989 c.201 §2; 1989 c.833
§56](Aquifer Storage and Recovery) The Legislative Assembly declares
that aquifer storage and recovery is a beneficial use inherent in all
water rights for other beneficial uses. Aquifer storage and recovery is
the storage of water from a separate source that meets drinking water
standards in a suitable aquifer for later recovery and not having as one
of its primary purposes the restoration of an aquifer. [1995 c.487 §2] (1)
Notwithstanding any other provision of law, the injection into aquifers
of water that complies with drinking water standards established by the
Department of Human Services under ORS 448.273 under an aquifer storage
and recovery limited license or permit:

(a) Shall not be considered a waste, contaminant or pollutant;

(b) Shall be exempt from the requirement to obtain a discharge
permit under ORS 468B.050 or 468B.053 or a concentration limit variance
from the Department of Environmental Quality;

(c) Shall comply with all other applicable local, state or federal
laws; and

(d) May be located within or outside an urban growth boundary in
conformance with land use laws.

(2) In order to continue to protect the high quality of Oregon’s
aquifers for present and future uses, the Legislative Assembly recognizes
the need to minimize concentrations of constituents in the injection
source water that are not naturally present in the aquifer. Each aquifer
storage and recovery limited license or permit shall include conditions
to minimize, to the extent technically feasible, practical and
cost-effective, the concentration of constituents in the injection source
water that are not naturally present in the aquifer. In no case may an
aquifer storage and recovery limited license or permit establish
concentration limits for water to be injected in excess of the standards
established by the Department of Human Services under ORS 448.273 or the
maximum measurable levels established by the Environmental Quality
Commission under ORS 468B.165, whichever are more stringent.

(3) Except as otherwise provided, if the injection source water
contains constituents regulated under ORS 448.273 or 468B.165 that are
detected at greater than 50 percent of the established levels, the
aquifer storage and recovery limited license or permit may require the
permittee to employ, or continue the employment of, technically feasible,
practical and cost-effective methods to minimize concentrations of such
constituents in the injection source water. Constituents that have a
secondary maximum contaminant level or constituents that are associated
with disinfection of the water may be injected into the aquifer up to the
standards established under ORS 448.273.

(4) The Water Resources Department may, based upon valid scientific
data, further limit certain constituents in the injection source water if
the department finds the constituents will interfere with or pose a
threat to the maintenance of the water resources of the state for present
or future beneficial uses. [1995 c.487 §3; 1997 c.286 §9](1) In
accordance with this section, the Water Resources Commission shall
establish rules for the permitting and administration of aquifer storage
and recovery projects. The rules shall establish the Water Resources
Department as the sole permitting agency for the projects, but the
Department of Environmental Quality and the Department of Human Services
may comment on permits for a project and recommend conditions to be
included on the permit. When necessary, the applicant also shall obtain
land use and development approval from a local government.

(2) Notwithstanding the provisions of ORS 537.130, the Water
Resources Commission shall establish by rule a procedure to allow a
person to obtain a limited license to store and use water injected into
an underground aquifer for aquifer storage and recovery testing purposes
for a short term or fixed duration after the person complies with the
notice provision set forth in ORS 537.144. The rules shall provide a
30-day public comment period before issuance of a limited license. The
Water Resources Department may attach conditions to the limited license
regarding monitoring, sampling and rates of recovery up to 100 percent of
the injection quantity. Aquifer storage and recovery under a limited
license may be conditioned by the Water Resources Department to protect
existing ground water rights that rely upon the receiving aquifer and the
injection source water. The Water Resources Department may revoke or
modify the limited license to use the stored water acquired under a
limited license if that use causes injury to any other water right or to
a minimum perennial streamflow. The Water Resources Director may issue a
limited license for aquifer storage and recovery purposes for a term of
not more than five years. The license may be renewed if the applicant
demonstrates further testing is necessary.

(3) To obtain a limited license for aquifer storage and recovery,
the applicant shall provide to the Water Resources Department:

(a) Well construction information;

(b) Test results of the quality of the injection source water;

(c) Test results of the quality of the receiving aquifer water;

(d) The proposed injected water storage time, recovery rates and
recovery schedule;

(e) Preliminary hydrogeologic information including a description
of the aquifer, estimated flow direction and rate of movement, allocation
of surface water, springs or wells within the area affected by aquifer
storage and recovery wells;

(f) The fee established by rule by the commission pursuant to ORS
536.050 (1)(L); and

(g) Any other information required by rule of the commission.

(4) Only after completion of a test program under a limited license
issued under subsection (3) of this section may the applicant apply for a
permanent aquifer storage and recovery permit. Each application for an
aquifer storage and recovery permit shall be accompanied by the fee set
forth in ORS 536.050 for examination of an application for a permit to
store water. The Water Resources Department shall be the sole permitting
agency for the project and may place conditions on the permit consistent
with rules adopted by the commission, but the Department of Environmental
Quality and the Department of Human Services may review, comment on and
recommend conditions to be included on the permit. When necessary, the
applicant shall obtain land use and development approval from a local
government. Where existing water rights for the injection source water
have been issued, the Water Resources Department shall receive comments
from interested parties or agencies, but the public interest review
standards shall apply only to the matters raised by the aquifer storage
and recovery permit application in the same manner as any new water right
application, not to the underlying water rights. If new water rights for
injection source water and aquifer storage and recovery are necessary,
then the public interest review standards shall apply to the new permit
application in the same manner as any new water right application. The
Water Resources Director may refer policy matters to the commission for
decision.

(5) The commission shall adopt rules consistent with this section
to implement an aquifer storage and recovery program. The rules shall
include:

(a) Requirements for reporting and monitoring the aquifer storage
and recovery project aquifer impacts and for constituents reasonably
expected to be found in the injection source water.

(b) Provisions that allow any person operating an aquifer storage
and recovery project under a permit, upon approval by the Water Resources
Department, to recover up to 100 percent of the water stored in the
aquifer storage facility if valid scientific data gathered during
operations under the limited license or permit demonstrate that the
injected source water is not lost through migration or other means and
that ground water otherwise present in the aquifer has not been
irretrievably lost as a result of aquifer storage or retrieval. The Water
Resources Department may place such other conditions on withdrawal of
stored water necessary to protect the public health and environment,
including conditions allowing reconsideration of the permit to comply
with ORS 537.532.

(c) The procedure for allowing the Department of Environmental
Quality and the Department of Human Services to comment on and recommend
permit conditions.

(6) The use of water under a permit as injection source water for
an aquifer storage and recovery project up to the limits allowed in
subsection (5)(b) of this section shall not affect the priority date of
the water right permit or otherwise affect the right evidenced by the
permit.

(7) The holder of a permit for aquifer storage and recovery shall
apply for a transfer or change of use if the use of recovered water is
different from that which is allowed in the source water permit or
certificate. [1995 c.487 §4; 1997 c.587 §2; 1999 c.665 §3; 2003 c.594 §6](Appropriation of Ground Water)(1) No person or public agency shall use
or attempt to use any ground water, construct or attempt to construct any
well or other means of developing and securing ground water or operate or
permit the operation of any well owned or controlled by such person or
public agency except upon compliance with ORS 537.505 to 537.795 and
537.992 and any applicable order or rule adopted by the Water Resources
Commission under ORS 537.505 to 537.795 and 537.992.

(2) Except for those uses exempted under ORS 537.545, the use of
ground water for any purpose, without a permit issued under ORS 537.625
or registration under ORS 537.605, is an unlawful appropriation of ground
water. [1955 c.708 §4; 1957 c.341 §5; subsection (2) enacted as 1961
c.668 §2; 1985 c.673 §47] (1) No registration, certificate of
registration, application for a permit, permit, certificate of completion
or ground water right certificate under ORS 537.505 to 537.795 and
537.992 is required for the use of ground water for:

(a) Stockwatering purposes;

(b) Watering any lawn or noncommercial garden not exceeding
one-half acre in area;

(c) Watering the lawns, grounds and fields not exceeding 10 acres
in area of schools located within a critical ground water area
established pursuant to ORS 537.730 to 537.740;

(d) Single or group domestic purposes in an amount not exceeding
15,000 gallons a day;

(e) Down-hole heat exchange purposes;

(f) Any single industrial or commercial purpose in an amount not
exceeding 5,000 gallons a day; or

(g) Land application, so long as the ground water:

(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right issued
for industrial purposes or a water right authorizing use of water for
confined animal feeding purposes;

(B) Is reused for irrigation purposes and the period of irrigation
is a period during which the reused water has never been discharged to
the waters of the state; and

(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality or the State Department of Agriculture under either
ORS 468B.050 to construct and operate a disposal system or ORS 468B.215
to operate a confined animal feeding operation.

(2) The use of ground water for a use exempt under subsection (1)
of this section, to the extent that it is beneficial, constitutes a right
to appropriate ground water equal to that established by a ground water
right certificate issued under ORS 537.700. Except for the use of water
under subsection (1)(g) of this section, the Water Resources Commission
by rule may require any person or public agency using ground water for
any such purpose to furnish information with regard to such ground water
and the use thereof. For a use of water described in subsection (1)(g) of
this section, the Department of Environmental Quality or the State
Department of Agriculture shall provide to the Water Resources Department
a copy of the permit issued under ORS 468B.050 or 468B.215 authorizing
the land application of ground water for reuse. The permit shall provide
the information regarding the place of use of such water and the nature
of the beneficial reuse.

(3) If it is necessary for the Water Resources Department to
regulate the use or distribution of ground water, including uses exempt
under subsection (1) of this section, the department shall use as a
priority date for the exempt uses the date indicated in the log for the
well filed with the department under ORS 537.765 or other documentation
provided by the well owner showing when water use began. [1955 c.708 §5;
1983 c.372 §1; 1983 c.698 §1; 1985 c.673 §48; 1989 c.99 §1; 1989 c.833
§57; 1997 c.244 §3; 2001 c.248 §12; 2003 c.594 §2] Any
permit granted or application for a permit approved under ORS 537.510,
537.520, 537.530, 537.540, 537.550, 537.560, 537.570, 537.580, 537.590
and 537.600 prior to and still valid and in effect on August 3, 1955, is
considered to be a permit issued under ORS 537.625. Any application for a
permit under ORS 537.510, 537.520, 537.530, 537.540, 537.550, 537.560,
537.570, 537.580, 537.590 and 537.600 prior to, pending and not yet
approved on August 3, 1955, shall be governed as an application for a
permit under ORS 537.615, 537.620, 537.621, 537.622 and 537.625. [1955
c.708 §6(1); 1999 c.59 §171]Except as
otherwise provided in ORS 537.545 or 537.575 or 537.595 and subject to
determination under ORS 537.670 to 537.695, actual and lawful application
of ground water to beneficial use prior to August 3, 1955, by or under
the authority of any person or public agency or by or under the authority
of a predecessor in interest of such person or public agency, when
registered under ORS 537.605 and 537.610, is recognized as a right to
appropriate ground water to the extent of the maximum beneficial use
thereof at any time within two years prior to August 3, 1955. [1955 c.708
§6(2)]Except as otherwise provided in ORS 537.545 or 537.575 or 537.585 and
subject to determination under ORS 537.670 to 537.695, when any person or
public agency on August 3, 1955, is lawfully engaged in good faith in
such construction, alteration or extension of a well for the application
of ground water to beneficial use, the right to appropriate such ground
water, upon completion of such construction, alteration or extension and
application of the ground water to beneficial use within a reasonable
time fixed by the Water Resources Commission, when registered under ORS
537.605 and 537.610, is recognized to the extent of the beneficial use of
the ground water. [1955 c.708 §6(3); 1985 c.673 §49](1) Any person or
public agency claiming any right to appropriate ground water under ORS
537.585 or 537.595, except for any purpose exempt under ORS 537.545, is
entitled to receive from the Water Resources Commission within three
years after August 3, 1955, a certificate of registration as evidence of
a right to appropriate ground water as provided in ORS 537.585 or
537.595. Failure of such person or public agency to file a registration
statement within such period creates a presumption that any such claim
has been abandoned.

(2) Upon receipt of a request for registration by any person or
public agency referred to in subsection (1) of this section within the
period specified, the commission shall provide such person or public
agency with a separate registration statement for each well, which shall
be completed and returned to the commission.

(3) Each registration statement shall be in a form prescribed by
the commission, shall be under oath and shall contain:

(a) The name and post-office address of the registrant.

(b) The nature of the use by the registrant of the ground water
upon which the claim of the registrant is based.

(c) The dates when the ground water was or will be first applied to
beneficial use and the dates when construction of the well was begun and
completed.

(d) The amount of ground water claimed.

(e) If the ground water is used or is to be used for irrigation
purposes, a description of the lands irrigated or to be irrigated, giving
the number of acres irrigated or to be irrigated in each 40-acre legal
subdivision, the dates of reclamation of each such legal subdivision and
the date when the ground water was or will be completely applied.

(f) The depth to the water table.

(g) The location of the well with reference to government survey
corners or monuments or corners of recorded plats.

(h) The depth, diameter and type of the well, and the kind and
amount of the casing.

(i) The capacity of the well and well pump in gallons per minute,
and the horsepower of the well pump motor.

(j) If the ground water is artesian or other ground water not
requiring pumping, the rate of flow in gallons in such manner as the
commission may prescribe.

(k) The amount of ground water pumped or otherwise taken from the
well each year.

(L) A copy of the log of the completed well, if such log is
available.

(m) If the ground water supply is supplemental to an existing water
supply, identification of any application for a permit, permit,
certification or adjudicated right to appropriate water made or held by
the registrant.

(n) Such other information as the commission considers necessary.

(4) Each registration statement shall be accompanied by maps,
drawings and other data as the commission considers necessary.

(5) The commission may require that any registration statement be
supplemented after any well is fully completed by a statement containing
such additional information as the commission considers necessary.

(6) Any person or public agency who failed to file a registration
statement within the period set forth in subsection (1) of this section
may file within one year after May 29, 1961, a petition with the
commission requesting that the person be given an opportunity to rebut
the presumption that the person has abandoned the claim. Upon the filing
of such a petition the commission may schedule a hearing to take
testimony and evidence on the date of well construction and the use of
ground water or the commission may accept sworn statements in writing in
support of such petition. No petition shall be denied without a public
hearing. If it appears after hearing or from such sworn statements, that
the person or public agency has a use of ground water that would be
subject to determination under ORS 537.670 to 537.695 as defined in ORS
537.585 and 537.595, the commission shall issue an order authorizing the
petitioner to file a registration statement as described under subsection
(3) of this section. Upon receipt of the completed registration statement
the commission shall issue to the registrant a certificate of
registration, as provided in ORS 537.610. [1955 c.708 §7; 1957 c.341 §6;
1961 c.668 §3; 1985 c.673 §50](1) The Water Resources
Commission shall accept all registration statements referred to in ORS
537.605 completed and returned to the commission in proper form, endorse
on the registration statement the date of the return and record each
statement. Upon recording the statement, the commission shall issue to
the registrant a certificate as evidence that the registration is
completed.

(2) The issuance of the certificate of registration serves as prima
facie evidence that the registrant is entitled to a right to appropriate
ground water and apply it to beneficial use to the extent and in the
manner disclosed in the recorded registration statement and in the
certificate of registration.

(3) A certificate of registration issued under this section may not
be construed as a final determination of any matter stated in the
certificate of registration. The right of the registrant to appropriate
ground water under a certificate of registration is subject to
determination under ORS 537.670 to 537.695, and is not final or
conclusive until so determined and a ground water right certificate
issued. A right to appropriate ground water under a certificate of
registration has a tentative priority from the date when the construction
of the well was begun.

(4) The commission shall adopt by rule the process and standards by
which the commission will recognize changes in the place of use, type of
use or point of appropriation for claims to appropriate ground water
registered under this section. The commission shall adopt fees not to
exceed $500 for actions taken to modify a certificate of registration.
[1955 c.708 §8; 1985 c.673 §51; 2005 c.614 §1](1) Any person or public
agency intending to acquire a wholly new right to appropriate ground
water or to enlarge upon any existing right to appropriate ground water,
except for any purpose exempt under ORS 537.545, shall apply to the Water
Resources Department for and be issued a permit before withdrawing or
using the ground water.

(2) The application for a permit shall be in a form prescribed by
the department and shall contain:

(a) The name and post-office address of the applicant.

(b) The nature of the use by the applicant of the ground water for
which the application is made.

(c) The dates of the beginning and completion of the construction
of any well or other means of developing and securing the ground water.

(d) The date when the ground water will be completely applied to
the proposed beneficial use.

(e) The amount of ground water claimed.

(f) If the ground water is to be used for irrigation purposes, a
description of the lands to be irrigated, giving the number of acres to
be irrigated in each 40-acre legal subdivision.

(g) The depth to the water table, if known.

(h) The location of each well with reference to government survey
corners or monuments or corners of recorded plats.

(i) The proposed depth, diameter and type of each well, and the
kind and amount of the casing.

(j) The estimated capacity of each well and each well pump in
gallons per minute, and the horsepower of each well pump motor.

(k) If the ground water is artesian or other ground water not
requiring pumping, the rate of flow in gallons in such manner as the
Water Resources Commission may prescribe.

(L) If the ground water supply is supplemental to an existing water
supply, identification of any application for a permit, permit,
certificate or adjudicated right to appropriate water made or held by the
applicant.

(m) Any other information as the department considers necessary to
evaluate the application.

(3) Each application for a permit shall be accompanied by any maps
and drawings the department considers necessary.

(4) The map or drawing required to accompany the application shall
be of sufficient quality and scale to establish the location of the
proposed point of diversion and the proposed place of use identified by
tax lot, township, range, section and nearest quarter-quarter section
along with a notation of the acreage of the proposed place of use, if
appropriate. In addition, the department shall accept locational
coordinate information, including latitude and longitude as established
by a global positioning system. If the application is for a water right
for a municipal use, the map need not identify the proposed place of use
by tax lot.

(5) Each application for a permit to appropriate water shall be
accompanied by the examination fee set forth in ORS 536.050 (1).

(6) If the proposed use of the water is for the operation of a
chemical process mine as defined in ORS 517.953, the applicant shall
provide the information required under this section as part of the
consolidated application under ORS 517.952 to 517.989.

(7) Notwithstanding any provision of ORS chapter 183, an
application for a permit to appropriate ground water shall be processed
in the manner set forth in ORS 537.505 to 537.795. Nothing in ORS chapter
183 shall be construed to allow additional persons to participate in the
process. To the extent that any provision in ORS chapter 183 conflicts
with a provision set forth in ORS 537.505 to 537.795, the provisions in
ORS 537.505 to 537.795 shall control. [1955 c.708 §9; 1959 c.437 §3; 1985
c.673 §54; 1987 c.542 §7; 1991 c.735 §34; 1993 c.557 §4; 1995 c.416 §22;
1997 c.446 §6; 1997 c.587 §8](1) The Water
Resources Department shall accept all applications for permits submitted
under ORS 537.615 in proper form.

(2) Within 15 days after receiving the application, the department
shall determine whether the application contains the information listed
under ORS 537.615 (2) and is complete and not defective, including the
payment of all fees required under ORS 537.615 (5). If the department
determines that the application is incomplete or defective or that all
fees have not been paid, the department shall return all fees and the
application to the applicant to remedy the defect. If an application is
complete and not defective, the department shall indorse on the
application the date upon which the application was received at the
department, which shall be the priority date for any water right issued
in response to the application.

(3) Upon determining that an application is complete and not
defective, the department shall determine whether the proposed use is
prohibited by statute. If the proposed use is prohibited by statute, the
department shall reject the application and return all fees to the
applicant with an explanation of the statutory prohibition.

(4) If the proposed use is not prohibited by statute, the
department shall undertake an initial review of the application and make
a preliminary determination of:

(a) Whether the proposed use is restricted or limited by statute or
rule or because the proposed use is located within a designated critical
ground water area;

(b) The extent to which water is available from the proposed source
during the times and in the amounts requested; and

(c) Any other issue the department identifies as a result of the
initial review that may preclude approval of or restrict the proposed use.

(5) Upon completion of the initial review and no later than 30 days
after determining an application to be complete and not defective as
described in subsection (2) of this section, the department shall notify
the applicant of its preliminary determinations and allow the applicant
14 days from the date of mailing within which to notify the department to
stop processing the application or to proceed with the application. If
the applicant notifies the department to stop processing the application,
the department shall return the application and all except $50 of all
fees. If the department receives no timely response from the applicant,
the department shall proceed with the application.

(6) Within seven days after proceeding with the application under
subsection (5) of this section, the department shall give public notice
of the application in the weekly notice published by the department. The
notice shall include a request for comments on the application and
information pertaining to how an interested person may obtain future
notices about the application and a copy of the proposed final order.

(7) Within 30 days after the public notice under subsection (6) of
this section, any person interested in the application shall submit
written comments to the department. Any person who asks to receive a copy
of the department’s proposed final order shall submit to the department
the fee required under ORS 536.050 (1)(p). [1955 c.708 §10; 1981 c.589
§4; 1985 c.673 §55; 1989 c.201 §3; 1991 c.102 §2; 1991 c.400 §3; 1991
c.735 §35; 1993 c.557 §5; 1995 c.416 §23; 1997 c.587 §9](1) Within 60 days after the Water Resources Department proceeds
with the application under ORS 537.620 (5), the department shall complete
application review and issue a proposed final order approving or denying
the application or approving the application with modifications or
conditions. The department may request the applicant to provide
additional information needed to complete the review. If the department
requests additional information, the request shall be specific and shall
be sent to the applicant by registered mail. The department shall specify
a date by which the information must be returned, which shall be not less
than 10 days after the department mails the request to the applicant. If
the department does not receive the information or a request for a time
extension under ORS 537.627 by the date specified in the request, the
department may reject the application and may refund fees in accordance
with ORS 536.050 (3). The time period specified by the department in a
request for additional information shall allow the department to comply
with the 60-day time limit established by this subsection.

(2) In reviewing the application under subsection (1) of this
section, the department shall determine whether the proposed use will
ensure the preservation of the public welfare, safety and health as
described in ORS 537.525. The department shall presume that a proposed
use will ensure the preservation of the public welfare, safety and health
if the proposed use is allowed in the applicable basin program
established pursuant to ORS 536.300 and 536.340 or given a preference
under ORS 536.310 (12), if water is available, if the proposed use will
not injure other water rights and if the proposed use complies with rules
of the Water Resources Commission. This shall be a rebuttable presumption
and may be overcome by a preponderance of evidence that either:

(a) One or more of the criteria for establishing the presumption
are not satisfied; or

(b) The proposed use would not ensure the preservation of the
public welfare, safety and health as demonstrated in comments, in a
protest under subsection (7) of this section or in a finding of the
department that shows:

(A) The specific aspect of the public welfare, safety and health
under ORS 537.525 that would be impaired or detrimentally affected; and

(B) Specifically how the identified aspect of the public welfare,
safety and health under ORS 537.525 would be impaired or be adversely
affected.

(3) The proposed final order shall cite findings of fact and
conclusions of law and shall include but need not be limited to:

(a) Confirmation or modification of the preliminary determinations
made in the initial review;

(b) A brief statement that explains the criteria considered
relevant to the decision, including the applicable basin program and the
compatibility of the proposed use with applicable land use plans;

(c) An assessment of water availability and the amount of water
necessary for the proposed use;

(d) An assessment of whether the proposed use would result in
injury to existing water rights;

(e) An assessment of whether the proposed use would ensure the
preservation of the public welfare, safety and health as described in ORS
537.525;

(f) A draft permit, including any proposed conditions, or a
recommendation to deny the application;

(g) Whether the rebuttable presumption under subsection (2) of this
section has been established;

(h) The date by which protests to the proposed final order must be
received by the department; and

(i) The flow rate and duty of water allowed.

(4) In establishing the flow rate and duty of water allowed, the
department may consider a general basin-wide standard, but first shall
evaluate information submitted by the applicant to demonstrate the need
for a flow rate and duty higher than the general standard. If the
applicant provides such information, the department shall authorize the
requested rate and duty except upon specific findings related to the
application to support a determination that a lesser amount is needed. If
the applicant does not provide information to demonstrate the need for a
flow rate and duty higher than the general basin-wide standard, the
department may apply the general standards without specific findings
related to the application.

(5) The department shall mail copies of the proposed final order to
the applicant and to persons who have requested copies and paid the fee
required under ORS 536.050 (1)(p). The department also shall publish
notice of the proposed final order by publication in the weekly notice
published by the department.

(6) Any person who supports a proposed final order may request
standing for purposes of participating in any contested case proceeding
on the proposed final order or for judicial review of a final order. A
request for standing shall be in writing and shall be accompanied by the
fee established under ORS 536.050 (1)(n).

(7) Any person may submit a protest against a proposed final order.
A protest shall be in writing and shall include:

(a) The name, address and telephone number of the protestant;

(b) A description of the protestant’s interest in the proposed
final order, and if the protestant claims to represent the public
interest, a precise statement of the public interest represented;

(c) A detailed description of how the action proposed in the
proposed final order would impair or be detrimental to the protestant’s
interest;

(d) A detailed description of how the proposed final order is in
error or deficient and how to correct the alleged error or deficiency;

(e) Any citation of legal authority supporting the protest, if
known; and

(f) For persons other than the applicant, the protest fee required
under ORS 536.050.

(8) Requests for standing and protests on the proposed final order
shall be submitted within 45 days after publication of the notice of the
proposed final order in the weekly notice published by the department.
Any person who asks to receive a copy of the department’s final order
shall submit to the department the fee required under ORS 536.050 (1)(p),
unless the person has previously requested copies and paid the required
fee under ORS 537.620 (7), the person is a protestant and has paid the
fee required under ORS 536.050 (1)(j) or the person has standing and has
paid the fee under ORS 536.050 (1)(n).

(9) Within 60 days after the close of the period for receiving
protests, the Water Resources Director shall:

(a) Issue a final order as provided under ORS 537.625 (1); or

(b) Schedule a contested case hearing if a protest has been
submitted and if:

(A) Upon review of the issues, the director finds that there are
significant disputes related to the proposed use of water; or

(B) Within 30 days after the close of the period for submitting
protests, the applicant requests a contested case hearing. [1995 c.416
§25; 1995 c.549 §1a; 1997 c.446 §7; 1997 c.587 §10] (1) Within 45 days
after the Water Resources Director schedules a contested case hearing
under ORS 537.621 (9), the Water Resources Department shall hold the
contested case hearing. The issues to be considered in the contested case
hearing shall be limited to issues identified by the administrative law
judge.

(2) Notwithstanding the provisions of ORS chapter 183 pertaining to
contested case proceedings, the parties to any contested case hearing
initiated under this section shall be limited to:

(a) The applicant;

(b) Any person who timely filed a protest; and

(c) Any person who timely filed a request for standing under ORS
537.621 (6) and who requests to intervene in the contested case hearing
prior to the start of the proceeding.

(3) The contested case proceeding shall be conducted in accordance
with the applicable provisions of ORS chapter 183 except:

(a) As provided in subsections (1) and (2) of this section; and

(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.

(4) Each person submitting a protest or a request for standing
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 in a hearing or failure to provide sufficient specificity to
afford the Water Resources Department an opportunity to respond to the
issue precludes judicial review based on that issue. [1957 c.341 §2; 1983
c.740 §213; 1985 c.673 §56; 1995 c.416 §27; 2003 c.75 §97] (1) If, after the
contested case hearing or, if a hearing is not held, after the close of
the period allowed to file a protest, the Water Resources Director
determines that the proposed use does not ensure the preservation of the
public welfare, safety and health as described in ORS 537.525, the
director shall issue a final order rejecting the application or modifying
the proposed final order as necessary to ensure the preservation of the
public welfare, safety and health as described in ORS 537.525. If, after
the contested case hearing or, if a hearing is not held, after the close
of the period allowed to file a protest, the director determines that the
proposed use would ensure the preservation of the public welfare, safety
and health as described in ORS 537.525, the director shall issue a final
order approving the application or otherwise modifying the proposed final
order. A final order may set forth any of the provisions or restrictions
to be included in the permit concerning the use, control and management
of the water to be appropriated for the project.

(2) If a contested case hearing is not held:

(a) Where the final order modifies the proposed final order, the
applicant may request and the Water Resources Department shall schedule a
contested case hearing as provided under ORS 537.622 (3) by submitting
the information required for a protest under ORS 537.621 (7) within 14
days after the director issues the final order. However, the issues on
which a contested case hearing may be requested and conducted under this
paragraph shall be limited to issues based on the modifications to the
proposed final order.

(b) Only the applicant or a protestant may appeal the provisions of
the final order in the manner established in ORS chapter 183 for appeal
of order other than contested cases.

(3) If the presumption of public welfare, safety and health under
ORS 537.621 (2) is overcome, then before issuing a final order, the
director or the Water Resources Commission, if applicable, shall make the
final determination of whether the proposed use or the proposed use as
modified in the proposed final order would preserve the public welfare,
safety and health as described in ORS 537.525 by considering:

(a) The conservation of the highest use of the water for all
purposes, including irrigation, domestic use, municipal water supply,
power development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial purposes,
navigation, scenic attraction or any other beneficial use to which the
water may be applied for which it may have a special value to the public.

(b) The maximum economic development of the waters involved.

(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.

(d) The amount of waters available for appropriation for beneficial
use.

(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.

(f) All vested and inchoate rights to the waters of this state or
to the use of the waters of this state, and the means necessary to
protect such rights.

(g) The state water resources policy.

(4) Upon issuing a final order, the Water Resources Department
shall notify the applicant and each person who submitted written comments
or protests or otherwise requested notice of the final order and send a
copy of the final order to any person who requested a copy and paid the
fee required under ORS 536.050 (1)(p).

(5) A right to appropriate ground water under a permit has a
priority from the date when the application was filed with the department.

(6) If the use of water under the permit is for operation of a
chemical process mine as defined in ORS 517.952:

(a) Review of the application and approval or denial of the
application shall be coordinated with the consolidated application
process under ORS 517.952 to 517.989. However, such review and approval
or denial shall take into consideration all policy considerations for the
appropriation of water as set forth in this chapter and ORS chapter 536.

(b) The permit may be issued for exploration under ORS 517.702 to
517.740, but the permit shall be conditioned on the applicant’s
compliance with the consolidated application process.

(c) The permit shall include a condition that additional conditions
may be added to the use of water when a water right certificate is
issued, or when the use of water is changed pursuant to ORS 540.520 and
540.530 to use for a chemical process mine operation. [1955 c.708 §11;
1959 c.437 §4; 1981 c.61 §3; 1985 c.673 §57; 1995 c.416 §28; 1997 c.587
§11] (1) Within 20
days after the Water Resources Director issues a final order under ORS
537.625 after the conclusion of a contested case hearing, any party may
file with the Water Resources Commission exceptions to the order.

(2) The commission shall issue a modified order, if allowed, or
deny the exceptions within 60 days after close of the exception period
under subsection (1) of this section. [1995 c.416 §29](1) Except as provided in
subsection (2) of this section, the Water Resources Department shall
issue a final order or schedule a contested case hearing on an
application for a water right referred to in ORS 537.615 within 180 days
after the department proceeds with the application under ORS 537.620 (5).

(2) At the request of the applicant, the department may extend the
180-day period set forth in subsection (1) of this section for a
reasonable period of time.

(3) If the applicant does not request an extension under subsection
(2) of this section and the department fails to issue a proposed final
order or schedule a contested case hearing on an application for a water
right within 180 days after the department proceeds with the application
under ORS 537.620 (5), the applicant may apply in the Circuit Court for
Marion County for a writ of mandamus to compel the department to issue a
final order or schedule a contested case hearing on an application for a
water right. The writ of mandamus shall compel the department to issue a
water right permit, unless the department shows by affidavit that to
issue a permit may result in harm to an existing water right holder.
[1995 c.416 §31](1) The Water Resources Department may approve an
application for less ground water than applied for or upon terms,
conditions and limitations necessary for the protection of the public
welfare, safety and health. In any event the department shall not approve
the application for more ground water than is applied for or than can be
applied to a beneficial use. No application shall be approved when the
same will deprive those having prior rights of appropriation for a
beneficial use of the amount of water to which they are lawfully entitled.

(2) If a contested case hearing is held, the department shall issue
a final order:

(a) Within 270 days after scheduling the hearing for a contested
case proceeding that involves three or more parties not including the
department; and

(b) Within 180 days after scheduling the hearing for all other
contested case proceedings. [1995 c.416 §30](1) When an application discloses the probability of
wasteful use or undue interference with existing wells or that any
proposed use or well will impair or substantially interfere with existing
rights to appropriate surface water by others, or that any proposed use
or well will impair or substantially interfere with existing rights to
appropriate ground water for the beneficial use of the water for its
thermal characteristics, the Water Resources Department may impose
conditions or limitations in the permit to prevent the same or reject the
same after hearing, or, in the department’s discretion, request the Water
Resources Commission to initiate a rulemaking proceeding to declare the
affected area a critical ground water area under ORS 537.730 to 537.740.

(2)(a) When an application discloses the probability that a
proposed use or well will impair or interfere with the ability to extract
heat from a well with a bottom hole temperature of at least 250 degrees
Fahrenheit, the department may:

(A) Approve the permit;

(B) Impose conditions or limitations in the permit to prevent the
probable interference or impairment;

(C) After a hearing under ORS 537.622, reject the application; or

(D) Request the commission to initiate a rulemaking proceeding to
declare the affected area a critical ground water area under ORS 537.730
to 537.740.

(b) In deciding whether to issue, deny or condition a permit under
this subsection, the department shall consider any orders or permits
applicable to the ground water reservoir issued by the State Geologist or
the governing board of the State Department of Geology and Mineral
Industries under ORS chapter 522. [1995 c.416 §26](1) Except for the holder of a
permit for municipal use, the holder of a permit issued pursuant to ORS
537.625 shall prosecute the construction of a well or other means of
developing and securing the ground water with reasonable diligence and
complete the construction within a reasonable time fixed in the permit by
the Water Resources Department, not to exceed five years after the date
of approval of the application. However, the department, for good cause
shown, shall order and allow an extension of time, including an extension
beyond the five-year period, for the completion of the well or other
means of developing and securing the ground water or for complete
application of water to beneficial use. In determining the extension, the
department shall give due weight to the considerations described under
ORS 539.010 (5) and to whether other governmental requirements relating
to the project have significantly delayed completion of construction or
perfection of the right.

(2) The holder of a permit for municipal use shall commence and
complete the construction of any proposed works within 20 years from the
date on which the permit for municipal use is issued under ORS 537.625.
The construction must proceed with reasonable diligence and be completed
within the time specified in the permit, not to exceed 20 years. However,
the department may order and allow an extension of time to complete
construction or to perfect a water right beyond the time specified in the
permit under the following conditions:

(a) The holder shows good cause. In determining the extension, the
department shall give due weight to the considerations described under
ORS 539.010 (5) and to whether other governmental requirements relating
to the project have significantly delayed completion of construction or
perfection of the right;

(b) The extension of time is conditioned to provide that the holder
may divert water beyond the maximum rate diverted for beneficial use
before the extension only upon approval by the department of a water
management and conservation plan; and

(c) For the first extension issued after June 29, 2005, for a
permit for municipal use issued before November 2, 1998, the department
finds that the undeveloped portion of the permit is conditioned to
maintain, in the portions of waterways affected by water use under the
permit, the persistence of fish species listed as sensitive, threatened
or endangered under state or federal law. The department shall base its
finding on existing data and upon the advice of the State Department of
Fish and Wildlife. An existing fish protection agreement between the
permit holder and a state or federal agency that includes conditions to
maintain the persistence of any listed fish species in the affected
portion of the waterway is conclusive for purposes of the finding.

(3) If the construction of any well or other means of developing
and securing the ground water is completed after the date of approval of
the application for a permit under ORS 537.625, within 30 days after the
completion, or if the construction is completed before the date of
approval, within 30 days after the date of approval, the permit holder
shall file a certificate of completion with the Water Resources
Department, disclosing:

(a) The depth to the water table;

(b) The depth, diameter and type of each well, and the kind and
amount of the casing;

(c) The capacity of the well pump in gallons per minute and the
drawdown thereof;

(d) The identity of the record owner of any property that was
described in the application for a permit under ORS 537.625 but is not
included in the certificate of completion; and

(e) Any other information the department considers necessary.

(4) Upon completion of beneficial use necessary to secure the
ground water as required under this section, the permit holder shall hire
a water right examiner certified under ORS 537.798 to survey the
appropriation. Within one year after applying the water to beneficial use
or the beneficial use date allowed in the permit, the permit holder shall
submit the survey as required by the Water Resources Department to the
department along with the certificate of completion required under
subsection (3) of this section. If any property described in the permit
is not included in the request for a water right certificate, the
permittee shall state the identity of the record owner of that property.

(5) After the department has received a certificate of completion
and a copy of the survey as required by subsections (3) and (4) of this
section that show, to the satisfaction of the department, that an
appropriation has been perfected in accordance with the provisions of ORS
537.505 to 537.795 and 537.992, the department shall issue a ground water
right certificate of the same character as that described in ORS 537.700.
The certificate shall be recorded and transmitted to the applicant as
provided in ORS 537.700.

(6) The procedure for cancellation of a permit shall be as provided
in ORS 537.260.

(7) Notwithstanding ORS 537.410, for purposes of obtaining a water
right certificate under subsection (5) of this section for a supplemental
water right, the permittee shall have a facility capable of handling the
full rate and duty of water requested from the supplemental source and be
otherwise ready, willing and able to use the amount of water requested,
up to the amount of water approved in the water right permit. To obtain a
certificate for a supplemental water right, the permittee is not required
to have actually used water from the supplemental source if:

(a) Water was available from the source of the primary water right
and the primary water right was used pursuant to the terms of the primary
water right; or

(b) The nonuse of water from the supplemental source occurred
during a period of time within which the exercise of the supplemental
water right permit was not necessary due to climatic conditions. [1955
c.708 §12; 1959 c.437 §5; 1985 c.617 §2; 1985 c.673 §202; 1987 c.542 §8;
1995 c.367 §3; 1995 c.416 §34; 1997 c.446 §8; 1999 c.453 §2; 2005 c.410
§2](1) Any certificate of registration issued under ORS 537.610 or
permit issued under ORS 537.625 may be assigned, subject to the
conditions of the certificate of registration or permit, but no such
assignment shall be binding, except upon the parties to the assignment,
unless filed for record in the Water Resources Department.

(2) An assignment of an application filed under ORS 537.615 or a
permit issued under ORS 537.625 and filed for record with the Water
Resources Department shall identify the current record owners of all
property described in the application or permit. The assignor shall
furnish proof acceptable to the department that notice of the assignment
has been given or attempted for each identified property owner not a
party to the assignment. [1955 c.708 §13; 1985 c.673 §59; 1995 c.367 §4](1) Upon its own motion,
or upon the request of another state agency or local government, the
Water Resources Commission, within the limitations of available
resources, shall proceed as rapidly as possible to identify and define
tentatively the location, extent, depth and other characteristics of each
ground water reservoir in this state, and shall assign to each a
distinctive name or number or both as a means of identification. The
commission may make any investigation and gather all data and information
essential to a proper understanding of the characteristics of each ground
water reservoir and the relative rights to appropriate ground water from
each ground water reservoir.

(2) In identifying the characteristics of each ground water
reservoir under subsection (1) of this section, the commission shall
coordinate its activities with activities of the Department of
Environmental Quality under ORS 468B.185 in order that the final
characterization may include an assessment of both ground water quality
and ground water quantity.

(3) Before the commission makes a final determination of boundaries
and depth of any ground water reservoir, the Water Resources Director
shall proceed to make a final determination of the rights to appropriate
the ground water of the ground water reservoir under ORS 537.670 to
537.695.

(4) The commission shall forward copies of all information acquired
from an assessment conducted under this section to the central repository
of information about Oregon’s ground water resource established pursuant
to ORS 468B.167. [1955 c.708 §14; 1985 c.673 §60; 1989 c.833 §58](1) The Water Resources Director upon the motion
of the director or, in the discretion of the director, upon receipt of a
petition therefor by any one or more appropriators of ground water from
such ground water reservoir, may proceed to make a final determination of
the rights to appropriate the ground water of any ground water reservoir
in this state.

(2) The director shall prepare a notice of intent to begin a
determination referred to in subsection (1) of this section. The notice
shall set forth a place and time when the director or the authorized
assistant of the director shall begin the taking of testimony as to the
rights of the various claimants to appropriate the ground water of the
ground water reservoir and as to the boundaries and depth thereof. A copy
of the notice shall be delivered to each person or public agency known to
the director from an examination of the records in the Water Resources
Department to be a claimant to a right to appropriate ground water of the
ground water reservoir or any surface water within the area in which the
ground water reservoir is located. The notice shall also be published in
at least one issue each week for at least two consecutive weeks in a
newspaper of general circulation published in each county in which the
ground water reservoir or any part thereof is located. If the ground
water reservoir is located in whole or in part within the limits of any
city, the notice shall be published in at least one issue each week for
at least two consecutive weeks in a newspaper of general circulation
published in the city, if any, and copies of the notice shall be
delivered to the mayor or chairperson of the governing body of the city.
Copies of the notice shall be delivered and the last publication date of
published notices shall be at least 30 days prior to the taking of any
testimony.

(3) The director shall enclose with each copy of the notice
referred to in subsection (2) of this section delivered to each person or
public agency known to be a claimant to a right to appropriate ground
water of the ground water reservoir a blank form on which such claimant
shall present in writing all the particulars necessary for determination
of the right of the claimant as may be prescribed by the director. The
director may require each claimant to certify to the statements of the
claimant under oath, and the director or the authorized assistant of the
director may administer such oaths. [1955 c.708 §15; 1991 c.102 §3](1) Whenever the Water
Resources Director has reason to believe that two or more ground water
reservoirs overlie one another wholly or in part, the director may
proceed to a final determination of the rights to appropriate the ground
water of each of such ground water reservoirs in the same proceeding
under ORS 537.670 to 537.695.

(2) The director may include in a determination proceeding under
ORS 537.670 to 537.695 a determination of a critical ground water area
under ORS 537.730 to 537.740. [1955 c.708 §16]
Testimony shall be taken, evidence shall be open to inspection and claims
shall be subject to contest in a proceeding to determine rights to
appropriate the ground water of any ground water reservoir initiated
under ORS 537.670 as nearly as possible in the same manner as provided in
ORS 539.070, 539.090, 539.100 and 539.110 for the determination of the
relative rights of the various claimants to the waters of any surface
stream. [1955 c.708 §17] As soon as
practicable after compilation of the evidence obtained in proceedings
under ORS 537.665 to 537.680, the Water Resources Director shall make and
cause to be entered of record in the Water Resources Department findings
of fact and an order of determination, determining and establishing the
several rights to appropriate the ground water of the ground water
reservoir. The findings of fact and order of determination shall also
include:

(1) The boundaries and depth of each ground water reservoir.

(2) The lowest permissible water level in each ground water
reservoir.

(3) The location, extent, quality and other pertinent
characteristics of the ground water supply.

(4) The serviceable methods of withdrawal of the ground water from
each ground water reservoir.

(5) Rules for controlling the use of the ground water from each
ground water reservoir.

(6) Such general or special rules or restrictions with respect to
the construction, operation and protection of wells and the withdrawal of
ground water thereby as in the judgment of the director the public
welfare, health and safety may require.

(7) The name and post-office address of each claimant.

(8) The nature of the use of the ground water allowed for each
well, together with the maximum permissible use of the ground water, the
place of use of the ground water and the date of priority of each use.

(9) If the ground water is used or is to be used for irrigation
purposes, a description of the lands irrigated or to be irrigated, giving
the number of acres irrigated or to be irrigated in each 40-acre legal
subdivision.

(10) The location of each well with reference to government survey
corners or monuments or corners of recorded plats.

(11) The depth, diameter and type of each well, the kind and amount
of the casing, the capacity of each well in gallons per minute and such
other information concerning each well as in the opinion of the director
may be pertinent. [1955 c.708 §18; 1991 c.102 §4]The evidence relied upon by the Water Resources Director in
the entry of the findings of fact and order of determination under ORS
537.685, together with a copy of such findings and order, shall be
certified to by the director and filed with the clerk of the circuit
court wherein the determination is to be heard, which shall be the
circuit court of any county in which the ground water reservoir or any
part thereof is located. A certified copy of the findings of fact and the
order of determination shall also be filed with the county clerk of every
other county in which the ground water reservoir or any part thereof is
located. Thereafter, proceedings shall be had as nearly as possible in
the same manner as provided in ORS 539.130 (2), (3) and (4), 539.150,
539.160, 539.170, 539.180, 539.190 and 539.210 for the final adjudication
of the relative rights of the various claimants to the waters of any
surface stream. [1955 c.708 §19] The determination of the Water
Resources Director under ORS 537.685, as confirmed or modified by the
circuit court or Supreme Court, shall be a conclusive adjudication as to
all claimants of rights to appropriate the ground water of each ground
water reservoir included within the order of determination. [1955 c.708
§20] Upon the final
determination under ORS 537.670 to 537.695 of the rights to appropriate
the ground water of any ground water reservoir, the Water Resources
Director shall issue to each person or public agency represented in the
determination proceedings and who is determined to have such a right a
ground water right certificate, setting forth the name and post-office
address of the owner of the right; the priority of the date, extent and
purpose of the right; and, if the ground water is for irrigation
purposes, a description of the legal subdivisions of land to which the
ground water is appurtenant. [1955 c.708 §21; 1957 c.341 §7; 1969 c.629
§2; 1971 c.621 §36; 1975 c.607 §39; 1979 c.67 §1]All ground water used in this state for any
purpose shall remain appurtenant to the premises upon which it is used
and no change in use or place of use of any ground water for any purpose
may be made without compliance with a procedure as nearly as possible
like that set forth in ORS 540.520 and 540.530. However, the owner of any
ground water right may, upon compliance with a procedure as nearly as
possible like that set forth in ORS 540.520 and 540.530, change the use
and place of use, the point of appropriation or the use theretofore made
of the ground water in all cases without losing priority of the right
theretofore established. [1955 c.708 §22]Whenever, after notice to and opportunity
to be heard by such holder, the Water Resources Commission finds that the
holder of any permit or certificate of registration issued under ORS
537.505 to 537.795 and 537.992 is willfully violating any provision of
the permit or certificate of registration or any provision of ORS 537.505
to 537.795 and 537.992, the commission may cancel or suspend the permit
or certificate of registration or impose conditions on the future use
thereof to prevent such violation. [1955 c.708 §24; 1985 c.673 §61]
(1) The Water Resources Commission by rule may designate an area of the
state a critical ground water area if:

(a) Ground water levels in the area in question are declining or
have declined excessively;

(b) The Water Resources Department finds a pattern of substantial
interference between wells within the area in question;

(c) The department finds a pattern of interference or potential
interference between wells of ground water claimants or appropriators
within the area in question with the production of geothermal resources
from an area regulated under ORS chapter 522;

(d) The department finds a pattern of substantial interference
between wells within the area in question and:

(A) An appropriator of surface water whose water right has an
earlier priority date; or

(B) A restriction imposed on surface water appropriation or a
minimum perennial stream flow that has an effective date earlier than the
priority date of the ground water appropriation;

(e) The available ground water supply in the area in question is
being or is about to be overdrawn;

(f) The purity of the ground water in the area in question has been
or reasonably may be expected to become polluted to an extent contrary to
the public welfare, health and safety; or

(g) Ground water temperatures in the area in question are expected
to be, are being or have been substantially altered except as specified
in ORS 537.796.

(2) The proceeding to designate a critical ground water area shall
be conducted according to the provisions under ORS chapter 183 applicable
to the adoption of rules by an agency, except that a hearing on a
critical ground water declaration shall occur at least 60 days after
notice has been given.

(3) In addition to the notice requirements under ORS 183.335, the
department shall give notice by regular mail to:

(a) The owners of record of all ground water registrations, permits
and certificates for water use within the affected area; and

(b) Each water well constructor licensed under ORS 537.747.

(4) If the department satisfies the notice requirements under ORS
183.335 and subsection (3) of this section, a person shall not contest a
critical ground water area designation on grounds of failure to receive
notice by regular mail. [1955 c.708 §26; 1957 c.341 §8; 1981 c.589 §5;
1985 c.673 §62; 1987 c.442 §1; 1989 c.201 §4; 1991 c.400 §4] (1) A rule
adopted by the Water Resources Commission under ORS 537.730 shall:

(a) Define the boundaries of the critical ground water area and
shall indicate which of the ground water reservoirs located either in
whole or in part within the area in question are included within the
critical ground water area. Any number of ground water reservoirs which
either wholly or partially overlie one another may be included within the
same critical ground water area.

(b) Contain a provision requiring a periodic review of conditions
in the critical ground water area. The review shall be in sufficient
detail to evaluate the continuing need for the critical ground water area
designation and shall occur no less frequently than once every 10 years.

(2) In adopting the rule, the commission shall consider any orders
or permits applicable to the reservoir issued by the governing board or
State Geologist of the State Department of Geology and Mineral Industries
under ORS chapter 522.

(3) A rule by the commission under subsection (1) of this section
may include any one or more of the following corrective control
provisions:

(a) A provision closing the critical ground water area to any
further appropriation of ground water, in which event the commission
shall thereafter refuse to accept any application for a permit to
appropriate ground water located within such critical area.

(b) A provision determining the permissible total withdrawal of
ground water in the critical area each day, month or year.

(c) The disposition of any application for a water right permit for
the use of water in the area that is pending at the time the commission
initiates the rulemaking process or that is received during the
rulemaking process.

(d) Any one or more provisions making such additional requirements
as are necessary to protect the public welfare, health and safety in
accordance with the intent, purposes and requirements of ORS 537.505 to
537.795 and 537.992.

(e) A provision closing all or part of the critical ground water
area to further appropriation of ground water for its thermal
characteristics.

(f) A provision determining the permissible change in thermal
characteristics of ground water in all or part of the critical ground
water area each day, month or year. Insofar as may be reasonably done,
the Water Resources Director shall apportion the permissible total
temperature impact among those appropriators whose exercise of valid
rights in the critical area affect the thermal characteristics of the
ground water, in accordance with the relative dates of priority of such
rights. [1955 c.708 §27; 1981 c.589 §6; 1981 c.919 §1; 1985 c.673 §63;
1989 c.201 §5; 1991 c.400 §5] In
addition to any applicable requirements under ORS chapter 183, the Water
Resources Commission shall file a copy of any rules designating a
critical ground water area under ORS 537.730 to 537.740 with the county
clerk of each county within which any part of the critical ground water
area lies, and the county clerk shall record the designation in the deed
records of the county. [1955 c.708 §28; 1985 c.673 §64; 1991 c.400 §6](1) Any time after the Water Resources
Commission adopts a rule under ORS 537.730 designating a critical ground
water area, the commission may initiate a contested case proceeding to
limit the use of ground water in the area if the commission has reason to
believe that any of the qualifying criteria of ORS 537.730 (1) exists.

(2) Upon the conclusion of a contested case proceeding initiated
under subsection (1) of this section and upon finding that the problems
that resulted in the designation of a critical ground water area under
ORS 537.730 can be resolved by implementing one or more of the corrective
control provisions of this section, the commission shall issue a final
order establishing any one or more of the following corrective control
provisions:

(a) A provision apportioning the permissible total withdrawal as
established by rule under ORS 537.730, among the appropriators holding
valid rights to ground water in the critical area in accordance with the
relative dates of priority of such rights.

(b) A provision according preference, without reference to relative
priorities, to withdrawals of ground water in the critical area for
residential and livestock watering purposes first. Thereafter, the
commission may authorize withdrawals of ground water in the critical area
for other beneficial purposes, including agricultural, industrial,
municipal other than residential, and recreational purposes, in such
order as the commission considers advisable under the circumstances, so
long as such withdrawal will not materially affect a properly designed
and operating well with prior rights that penetrates the aquifer.

(c) A provision reducing the permissible withdrawal of ground water
by any one or more appropriators or wells in the critical area.

(d) Where two or more wells in the critical area are used by the
same appropriator, a provision adjusting the total permissible withdrawal
of ground water by such appropriator, or a provision forbidding the use
of one or more of such wells completely.

(e) A provision requiring the abatement, in whole or part, or the
sealing of any well in the critical area responsible for the admission of
polluting materials into the ground water supply or responsible for the
progressive impairment of the quality of the ground water supply by
dispersing polluting materials that have entered the ground water supply
previously.

(f) A provision requiring and specifying a system of rotation of
use of ground water in the critical area.

(3) The commission shall conduct the proceeding under this section
according to the provisions of ORS chapter 183 applicable to contested
case proceedings. [1991 c.400 §2](1) In the administration of ORS 537.505 to 537.795 and
537.992, the Water Resources Commission may encourage, promote and
recognize voluntary agreements among ground water users from the same
ground water reservoir. When the commission finds that any such
agreement, executed in writing and filed with the commission, is
consistent with the intent, purposes and requirements of ORS 537.505 to
537.795 and 537.992, and in particular ORS 537.525, 537.730 to 537.740
and 537.780, the commission shall approve the agreement. Thereafter the
agreement, until terminated as provided in this subsection, shall control
in lieu of a formal order or rule of the commission under ORS 537.505 to
537.795 and 537.992. Any agreement approved by the commission may be
terminated by the lapse of time as provided in the agreement, by consent
of the parties to the agreement or by order of the commission if the
commission finds, after investigation and a public hearing upon adequate
notice, that the agreement is not being substantially complied with by
the parties thereto or that changed conditions have made the continuance
of the agreement a detriment to the public welfare, safety and health or
contrary in any particular to the intent, purposes and requirements of
ORS 537.505 to 537.795 and 537.992.

(2) When any irrigation district, drainage district, other district
organized for public purposes or other public corporation or political
subdivision of this state is authorized by law to enter into agreements
of the kind referred to in subsection (1) of this section, the commission
may approve such agreements as provided in subsection (1) of this
section. Any such agreement approved by the commission shall have the
same effect and shall be subject to termination in the same manner and
for the same reasons set forth in subsection (1) of this section. [1955
c.708 §31; 1985 c.673 §65](1) The Water
Resources Commission may by rule establish a system of credits that may
be used to offset the potential interference with hydraulically connected
surface waters caused by ground water withdrawals within the Deschutes
River Basin to account for projects performed in the basin that make
water available for mitigation.

(2) A person proposing a project that makes water available for
mitigation may apply to the Water Resources Department for approval of
the project and a preliminary finding as to the amount of mitigation
credits available, based on the amount of water made available by the
project. Projects approved by the department shall comply with all other
applicable provisions of law, including relevant portions of ORS 390.835,
and may not result in injury to existing water rights.

(3)(a) The amount of mitigation credits awarded for a completed
project, or any completed phase of the project, shall be equal to the
amount of water made available by the project as determined and approved
by the department.

(b) A final award of mitigation credits by the department shall be
made upon completion of the approved project by the applicant and
verification by the department that the project is complete. The
department may provide for a partial award of mitigation credits to
correspond with completion of approved phases of project implementation.

(c) Mitigation credits shall remain valid until exercised by the
holder.

(4) The commission may by rule provide for the recognition or
establishment of mitigation banks to facilitate transactions among the
holders of mitigation credits and persons who desire to acquire
mitigation credits. The mitigation credits may be assigned by the person
creating the project to another person or a mitigation bank.

(5) The Water Resources Department shall prepare an annual report
on the implementation and management of the system of mitigation credits
established by subsections (1) to (4) of this section. [2001 c.659 §§2,3](Deschutes Basin Ground Water Study Area)Note: Sections 1 to 5, chapter 669, Oregon Laws 2005, provide:

Sec. 1. Section 2 of this 2005 Act is added to and made a part of
ORS 537.505 to 537.795. [2005 c.669 §1]

Sec. 2. The Legislative Assembly declares that rules adopted by the
Water Resources Commission for the Deschutes basin ground water study
area and certified effective by the Secretary of State on September 27,
2002, satisfy the requirements relating to mitigation under ORS 390.805
to 390.925, 537.332 to 537.360 and 537.505 to 537.795. [2005 c.669 §2]

Sec. 3. (1) The Water Resources Department shall report to the
Seventy-fifth Legislative Assembly, no later than January 31, 2009, on
the implementation and operation of the Deschutes River Basin ground
water mitigation and mitigation bank programs. The report may include
information on the progress on restoring stream flows in the Deschutes
River Basin to a point sufficient to support anadromous fish and
information on any statutory changes necessary to accomplish the needed
stream flow restoration. In formulating the report, the department shall
consult with Deschutes River Basin water users and organizations with an
interest in water use in the basin. The department shall work with basin
water users and organizations with an interest in water use in the basin
to seek funding for a facilitated process to develop the report required
by this section and to evaluate the ground water mitigation and
mitigation bank programs.

(2) The report prepared pursuant to this section shall include a
summary of:

(a) The cumulative rate of water appropriated under all ground
water permits approved in the Deschutes River Basin after the effective
date of this 2005 Act [July 29, 2005];

(b) The volume of water, in acre-feet, provided for mitigation; and

(c) The measured stream flow of the Deschutes River and its major
tributaries. [2005 c.669 §3]

Sec. 4. Section 2 of this 2005 Act applies to all ground water
permits containing a ground water mitigation requirement, all final
orders approving water right applications containing a ground water
mitigation requirement, all mitigation credits, all ground water
mitigation projects and all mitigation banks issued or approved in the
Deschutes River Basin by the Water Resources Department or the Water
Resources Commission before, on or after the effective date of this 2005
Act [July 29, 2005]. [2005 c.669 §4]

Sec. 5. (1) The Water Resources Commission shall repeal the rules
referred to in section 2 of this 2005 Act on January 2, 2014.

(2) Ground water permits and mitigation projects approved before
the repeal remain valid and effective. [2005 c.669 §5](Water Well Constructors) (1) No person shall
advertise services to construct, alter, abandon or convert wells, offer
to enter or enter into a contract with another person or public agency to
construct, alter, abandon or convert a well for such other person, cause
any well construction, alteration, abandonment or conversion to be
performed under such a contract or operate well drilling machinery
without possessing a water well constructor’s license therefor in good
standing issued by the Water Resources Department. The department shall
adopt a single water well constructor’s license that may specify the type
of well, type of well alteration or construction or type of well drilling
machine operation for which the water well constructor is qualified.

(2) Notwithstanding subsection (1) of this section, a person may
operate a well drilling machine without a water well constructor’s
license if supervised by one who possesses such a license.

(3) A person shall be qualified to receive a water well
constructor’s license if the person:

(a) Is at least 18 years of age.

(b) Has passed a written examination conducted by the department to
determine fitness to operate as a water well constructor.

(c) Has paid a license fee and an examination fee according to the
fee schedule set forth under subsection (6) of this section.

(d) Has one year or more experience in the operation of well
drilling machinery.

(4) Upon fulfillment of all the requirements set out in subsection
(3) of this section, the department shall issue the applicant a water
well constructor’s license in a form prescribed by the department. The
license may be issued for a period of two years.

(5) A water well constructor’s license shall expire on June 30. A
person may renew a license by submitting an application and the
appropriate fees any time before the license expires but not later than
one year after the license expires. At the time of application, the
person shall provide the department with evidence of compliance with the
continuing education requirements established pursuant to section 4,
chapter 496, Oregon Laws 2001. A person who renews a license within the
12 months after the license expires may either pay a penalty fee set
forth under subsection (6)(d) of this section or requalify for a water
well constructor’s license in accordance with subsection (3) of this
section. If a person fails to renew a license within 12 months after
expiration the person must comply with the requirements of subsection (3)
of this section for a new water well constructor’s license.

(6) The department shall collect in advance the following fees:

(a) An examination fee of $20.

(b) A license fee of $150.

(c) A renewal fee of $150.

(d) Unless a person requalifies for a water well constructor’s
license in accordance with subsection (3) of this section, a water well
constructor shall pay a renewal fee of $250 if the license is renewed
within 12 months after expiration.

(e) If a person requalifies for a water well constructor’s license
under subsection (3) of this section, the person shall pay the renewal
fee established under paragraph (c) of this subsection.

(7) The department may revoke, suspend or refuse to renew any water
well constructor’s license when it appears to the satisfaction of the
department, after notice and opportunity to be heard by the licensee,
that the licensee has failed to comply with the provisions of ORS 537.505
to 537.795 and 537.992 applicable to such licensee or any order or rule
adopted thereunder applicable to such licensee, or has made a material
misstatement of fact on an application for a license or well log or
established a pattern of conduct that willfully or negligently violates
any provision of ORS 537.505 to 537.795 and 537.992, or any rule adopted
pursuant thereto, applicable to such licensee.

(8) The provisions of subsection (3) of this section requiring one
year or more experience in the operation of well drilling machinery do
not apply to any person who, on July 1, 1981, holds the license required
by this section and who continues thereafter to maintain the license in
good standing.

(9) The fees collected under subsection (6) of this section shall
be paid into the Water Resources Department Water Right Operating Fund.
Such moneys are continuously appropriated to the Water Resources
Department to pay the department’s expenses in administering and
enforcing the water well constructor’s licensing program. [1961 c.334 §2;
1971 c.591 §1; 1973 c.827 §58; 1981 c.416 §2; 1985 c.615 §2; 1985 c.673
§66; 1987 c.109 §1; 1989 c.758 §2; 1999 c.293 §2; 2001 c.496 §5; 2003
c.594 §9]Note: The amendments to 537.747 by section 8, chapter 496, Oregon
Laws 2001, become operative January 2, 2008. See section 9, chapter 496,
Oregon Laws 2001. The text that is operative on and after January 2,
2008, including amendments by section 10, chapter 594, Oregon Laws 2003,
is set forth for the user’s convenience.

537.747. (1) No person shall advertise services to construct,
alter, abandon or convert wells, offer to enter or enter into a contract
with another person or public agency to construct, alter, abandon or
convert a well for such other person, cause any well construction,
alteration, abandonment or conversion to be performed under such a
contract or operate well drilling machinery without possessing a water
well constructor’s license therefor in good standing issued by the Water
Resources Department.

(2) Notwithstanding subsection (1) of this section, a person may
operate a well drilling machine without a water well constructor’s
license if supervised by one who possesses such a license.

(3) A person shall be qualified to receive a water well
constructor’s license if the person:

(a) Is at least 18 years of age.

(b) Has passed a written examination conducted by the department to
determine fitness to operate as a water well constructor.

(c) Has paid a license fee and an examination fee according to the
fee schedule set forth under subsection (6) of this section.

(d) Has one year or more experience in the operation of well
drilling machinery.

(4) Upon fulfillment of all the requirements set out in subsection
(3) of this section, the department shall issue the applicant a water
well constructor’s license in a form prescribed by the department. The
license may be issued for a period of either one year or five years.

(5) A water well constructor’s license shall expire on June 30. A
person may renew a license by submitting an application and the
appropriate fees any time before the license expires but not later than
one year after the license expires. A person who renews a license within
the 12 months after the license expires may either pay a penalty fee set
forth under subsection (6)(d) of this section or requalify for a water
well constructor’s license in accordance with subsection (3) of this
section. If a person fails to renew a license within 12 months after
expiration the person must comply with the requirements of subsection (3)
of this section for a new water well constructor’s license.

(6) The department shall collect in advance the following fees:

(a) An examination fee of $20.

(b) A license fee of $50 for a license issued for one year, or $200
for a license issued for a period of five years.

(c) A renewal fee of $50 for a one-year license renewed before the
license expires or $200 for a five-year license renewed before the
license expires.

(d) Unless a person requalifies for a water well constructor’s
license in accordance with subsection (3) of this section, a water well
constructor shall pay a renewal fee of $100 for a one-year license if the
license is renewed within 12 months after expiration or $250 for a
five-year license if the license is renewed within 12 months after
expiration.

(e) If a person requalifies for a water well constructor’s license
under subsection (3) of this section, the person shall pay the renewal
fee established under paragraph (c) of this subsection.

(7) The department may revoke, suspend or refuse to renew any water
well constructor’s license when it appears to the satisfaction of the
department, after notice and opportunity to be heard by the licensee,
that the licensee has failed to comply with the provisions of ORS 537.505
to 537.795 and 537.992 applicable to such licensee or any order or rule
adopted thereunder applicable to such licensee, or has made a material
misstatement of fact on an application for a license or well log or
established a pattern of conduct that willfully or negligently violates
any provision of ORS 537.505 to 537.795 and 537.992, or any rule adopted
pursuant thereto, applicable to such licensee.

(8) The provisions of subsection (3) of this section requiring one
year or more experience in the operation of well drilling machinery do
not apply to any person who, on July 1, 1981, holds the license required
by this section and who continues thereafter to maintain the license in
good standing.

(9) The fees collected under subsection (6) of this section shall
be paid into the Water Resources Department Water Right Operating Fund.
Such moneys are continuously appropriated to the Water Resources
Department to pay the department’s expenses in administering and
enforcing the water well constructor’s licensing program. (1) The written examination
required under ORS 537.747 (3)(b) shall be prepared to test the
applicant’s knowledge and understanding of the following subjects:

(a) Laws of the state pertaining to the appropriation and use of
ground water, the licensing requirements of ORS 537.747 to 537.765, the
construction of wells and the preparation and filing of well logs.

(b) Rules of the Water Resources Commission pertaining to the
appropriation and use of ground water, the construction of wells and the
preparation and filing of well logs.

(c) Basic information on ground water geology, the occurrence and
movement of ground water, and the design, construction and development of
wells.

(d) Types, uses and maintenance of drilling tools and equipment,
drilling problems and corrective procedures, repair of faulty wells,
sealing of wells and safety rules and practices.

(2) Examinations shall be given during the months of January,
April, July and October. The date, time and place of the examination are
to be established by the commission. The examination shall be given only
to those applicants who have met the requirement set out in ORS 537.747
(3)(a) and have paid the $20 examination fee. An applicant who fails to
pass the examination by not attaining a grade of 70 or better may retake
the examination after three months and the payment of another $20
examination fee. [1961 c.334 §3; 1981 c.416 §3; 1985 c.673 §67] (1)
Any person who contracts or offers services to contract to construct,
alter, abandon or convert wells shall have in effect a surety bond or an
irrevocable letter of credit issued by an insured institution, as defined
in ORS 706.008, running to the State of Oregon in the sum of $10,000,
ensuring that in the construction, alteration, abandonment or conversion
of wells, the principal shall comply with all the provisions of ORS
537.505 to 537.795 and 537.992 that are applicable to such construction,
alteration, abandonment or conversion and to the rules and standards of
well construction, alteration, abandonment and conversion that have been
prescribed by the Water Resources Commission. The bond or letter of
credit shall be filed with the Water Resources Commission.

(2) The Water Resources Commission or any person injured by failure
of a water well constructor to comply with the provisions of the bond or
letter of credit has a right of action on the bond or letter of credit in
the name of the injured person. However, the aggregate liability of the
surety or letter of credit issuer to all such persons may not exceed the
sum of the bond or letter of credit.

(3) A proceeding against the bond or letter of credit under
subsection (2) of this section may not be commenced unless the commission
notifies the water well constructor of the alleged violation within three
years after the date the water well report is filed with the commission.

(4) If a well is to be constructed, altered, abandoned or converted
by a person on property owned by that person, by means of a well drilling
machine, the person shall obtain a permit from the commission before
beginning work. Application for the permit shall be in the form
prescribed by the commission and must be accompanied by a fee of $25. At
the time the permit is obtained, the applicant also shall file with the
commission a bond or an irrevocable letter of credit issued by an insured
institution as defined in ORS 706.008 running to the State of Oregon in
the sum of $5,000, ensuring that in the construction, alteration,
abandonment or conversion of the well the landowner shall comply with all
the provisions of ORS 537.505 to 537.795 and 537.992 that are applicable
to the construction, alteration, abandonment or conversion of wells and
to the rules and standards of well construction, alteration, abandonment
and conversion that have been prescribed by the commission. Before the
person who constructs, alters, abandons or converts a well referred to in
this subsection seals the well, the person must give 10 days’ written
notice of the construction, alteration, abandonment or conversion to the
commission. After expiration of the notice period, the well may be sealed
even if the commission has not caused the well to be inspected. [1961
c.334 §4; 1971 c.591 §2; 1981 c.416 §4; 1985 c.615 §1; 1985 c.673 §198;
1991 c.331 §78; 1997 c.631 §485; 1999 c.293 §3; 2003 c.144 §1](1) Each person required to possess a license under ORS 537.747 who
has entered into a contract to construct, alter, abandon or convert a
well or cause a well to be constructed, altered, abandoned or converted
shall, before beginning work on the well, make a report to the Water
Resources Commission containing:

(a) The name and post-office address of the owner of the well.

(b) The approximate location of the well.

(c) The proposed depth and diameter of the well.

(d) The proposed purpose or use of the ground water from the well.

(2) The commission shall furnish a convenient means for reports
referred to in subsection (1) of this section to each person who
possesses a license under ORS 537.747.

(3) A separate report shall be furnished under subsection (1) of
this section for each well that is constructed, altered, abandoned or
converted.

(4) The report furnished under subsection (1) of this section shall
be confidential and maintained as such for one year or until the well log
required under ORS 537.765 is received by the commission, whichever is
earlier. Nothing in this subsection prohibits the commission from using
the report for enforcement actions during the period the report is
considered confidential.

(5) Each report form submitted under subsection (1) of this section
for the construction of a new well, deepening of an existing well, or
conversion of a well shall be accompanied by a fee of $125.
Notwithstanding the fee established pursuant to this subsection, the
commission may adopt by rule a reduced fee for persons submitting
materials to the Water Resources Department in a digital format approved
by the department.

(6) The moneys paid to the commission under subsection (5) of this
section shall be paid into the Water Resources Department Operating Fund.
All interest, if any, from moneys received under subsection (5) of this
section shall inure to the benefit of the Water Resources Department.
Such moneys and interest earned on such moneys are continuously
appropriated to the department to be used to pay the costs of the
department to employ personnel to inspect wells and well construction.
[Formerly 537.632; 1981 c.416 §5; 1985 c.615 §7; 1985 c.673 §69; 1987
c.109 §2; 1989 c.129 §1; 1999 c.293 §4; 2003 c.594 §3; 2005 c.156 §2] (1) There is
established in the State Treasury the Water Resources Department
Operating Fund to provide for the payment of the administrative expenses
of the Water Resources Commission in carrying out the provisions of ORS
537.762.

(2) The Water Resources Department Operating Fund shall consist of:

(a) Fees received pursuant to ORS 537.762.

(b) All moneys received on behalf of the fund by gift, grant or
appropriation, from whatever source.

(3) The Water Resources Department Operating Fund shall be separate
and distinct from the General Fund. All interest, if any, shall inure to
the benefit of the Water Resources Department Operating Fund.

(4) In expending moneys in the Water Resources Department Operating
Fund received from fees pursuant to ORS 537.762, the biennial limitations
on expenditures of the Water Resources Department shall be:

(a) No more than five percent for well inspection administrative
support;

(b) No more than 20 percent for well inspection technical and
information services; and

(c) No less than 75 percent for well inspection field investigation
and enforcement. [1989 c.129 §4; 2003 c.594 §4]Note: 537.763 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 537 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) The business
or activity of constructing new wells or altering, abandoning or
converting existing wells is declared to be a business or activity
affecting the public welfare, health and safety. In order to enable the
state to protect the welfare, health and safety of its citizens, any
person licensed under ORS 537.747, or any person or public agency
constructing, altering, abandoning or converting a well, shall keep a log
of each well constructed, altered, abandoned or converted and shall
furnish a certified copy of the log to the Water Resources Commission
within 30 days after the completion of the construction, alteration,
abandonment or conversion.

(2) The commission shall provide acknowledgment to the constructor
of receipt of a well log submitted under subsection (1) of this section
within 120 days of receipt.

(3) Each log required under subsection (1) of this section shall be
in a form prescribed by the commission and shall show:

(a) The name and post-office address of the owner of the well and
the person or public agency performing or causing the performance of the
work of constructing, altering, abandoning or converting the well.

(b) The location of the well by county tax lot number, township,
range and section, and to the nearest quarter-quarter section or latitude
and longitude as established by a global positioning system, or with
reference to government survey corners or monuments or corners of
recorded plats.

(c) The dates of commencement and completion of the work of
constructing, altering, abandoning or converting the well.

(d) The depth, diameter and type of the well.

(e) The kind and amount of the casing and where placed in the well,
including the number and location of perforations or screens.

(f) The flow in cubic feet per second or gallons per minute of a
flowing well, and the shut-in pressure in pounds per square inch.

(g) The static water level with reference to the land surface, and
the drawdown with respect to the amount of water pumped per minute, when
a pump test is made.

(h) The kind and nature of the material in each stratum penetrated,
with at least one entry for each change of formation, and the thickness
of aquifers.

(i) The temperature of the ground water encountered and other
characteristics of the ground water in detail as required by the
commission.

(4) If required by the commission, the person, public agency or
licensee referred to in subsection (1) of this section shall furnish to
the commission samples of the ground water and of each change of
formation in containers furnished and transportation expense paid by the
commission. [1955 c.708 §29; 1961 c.334 §11; 1981 c.416 §6; 1985 c.673
§70; 1993 c.774 §5; 1995 c.77 §1; 1999 c.293 §5]Note: Sections 2, 4 and 7, chapter 496, Oregon Laws 2001, provide:

Sec. 2. (1) There is established a Well Constructors Continuing
Education Committee consisting of four members appointed by the Water
Resources Director as follows:

(a) Three persons from the well drilling industry licensed pursuant
to ORS 537.747; and

(b) One person from the regulatory community.

(2) The term of office of each member is three years, but a member
serves at the pleasure of the director. Before the expiration of the term
of a member, the director shall appoint a successor whose term begins on
July 1 next following. A member is eligible for reappointment. If there
is a vacancy for any cause, the director shall make an appointment to
become effective immediately for the unexpired term.

(3) A member of the committee is entitled to travel expenses as
provided in ORS 292.495.

(4) Members of the committee must be residents of this state who
are knowledgeable about the principles of well construction.

(5) The committee shall select one of its members as chairperson
and another as vice chairperson, for such terms and with the duties and
powers necessary for the performance of the functions of such offices as
the committee determines.

(6) Three members of the committee constitute a quorum for the
transaction of business. At least three members of the committee must
approve all official actions or decisions of the committee. [2001 c.496
§2]

Sec. 4. (1) The Well Constructors Continuing Education Committee
shall recommend to the Water Resources Commission a process for reviewing
and approving continuing education requirements for licensed water well
constructors established by rule pursuant to subsection (2) of this
section.

(2) The commission shall adopt rules necessary for the
administration of a continuing education program for licensed water well
constructors consistent with the recommendations of the committee.

(3) The rules adopted by the commission under this section for the
continuing education program shall:

(a) Authorize the committee to review and approve continuing
education courses and to assign continuing education credits.

(b) At a minimum require, for renewal of a license issued under ORS
537.747, that an applicant:

(A) Through clinics, schools, professional organizations or
seminars, lectures or other courses of study that relate to the practice
of well construction and that are approved by the committee, obtain
continuing education credits during each licensing period in an amount
designated by the commission, but not to exceed 14 credits; and

(B) Furnish proof on a form approved by the committee that the
applicant has complied with the continuing education requirements during
the preceding licensing period unless the applicant is exempt under
subsection (4) of this section.

(4) The commission may waive the continuing education requirements
established by rule pursuant to subsection (2) of this section for a
licensed water well constructor if the constructor submits satisfactory
evidence of inability to attend continuing education courses because of
health, military duty or other circumstances beyond the control of the
constructor. [2001 c.496 §4]

Sec. 7. Sections 2 to 4 of this 2001 Act are repealed January 2,
(Local Regulation) The
Legislative Assembly finds that ground water protection is a matter of
statewide concern. No ordinance, order or regulation shall be adopted by
a local government to regulate the inspection of wells, construction of
wells or water well constructors subject to regulation by the Water
Resources Commission or the Water Resources Department under ORS 537.747
to 537.795 and 537.992. [1989 c.129 §3](Regulation of Ground Water Wells) (1) The owner or
operator of any well, except wells used for purposes listed in ORS
537.545, shall conduct a pump test at least once every 10 years and
report the results of that test to the Water Resources Commission. The
owner or operator may conduct the test in conjunction with normal pump
service and testing or at any time more convenient to the owner or
operator of the well.

(2) The owner or operator shall report the results of the pump test
on a form provided by the commission. The form shall include but need not
be limited to the duration of the test, rate of pumping, total water
level decrease and time required for 90 percent recovery of water level.

(3) The commission may establish by rule criteria for waiver of the
pump test requirement. [1987 c.649 §5](1) Whenever the Water Resources Commission finds that any well,
including any well exempt under ORS 537.545, is by the nature of its
construction, operation or otherwise causing wasteful use of ground
water, is unduly interfering with other wells or surface water supply, is
a threat to health, is polluting ground water or surface water supplies,
is causing substantial alteration of ground water temperatures or is
causing substantial thermal interference with other wells contrary to ORS
537.505 to 537.795 and 537.992, the commission may order discontinuance
of the use of the well, impose conditions upon the use of such well to
such extent as may be necessary to remedy the defect or order permanent
abandonment of the well according to specifications of the commission.

(2) In the absence of a determination of a critical ground water
area, any order issued under this section imposing conditions upon
interfering wells shall provide to each party all water to which the
party is entitled, in accordance with the date of priority of the water
right.

(3) A landowner who replaces an old well by drilling a new well
shall permanently abandon the old well if the old well is within a
setback as defined in well construction rules adopted by the commission.
Permanent abandonment of a well located within a setback shall occur
within one year after the function of the well is replaced or within one
year after the water right, if applicable, is transferred to the new
well, whichever is later. [1955 c.708 §25; 1981 c.919 §2; 1985 c.673 §71;
1987 c.442 §2; 1989 c.201 §6; 1989 c.833 §59; 1993 c.774 §12](1) The Water Resources Commission shall regulate or
cause to be regulated the controlling works of wells and distribute
ground water to secure compliance or equal and fair distribution if the
commission finds that:

(a) Any person or public agency is using or attempting to use any
ground water or is operating or permitting the operation of any well
owned or controlled by such person or public agency except upon
compliance with ORS 537.505 to 537.795 and 537.992 and any applicable
order or rule of the commission under ORS 537.505 to 537.795 and 537.992;
or

(b) It is necessary in order to secure the equal and fair
distribution of ground water in accordance with the rights of the various
ground water users.

(2) The regulation of controlling works and distribution of ground
water under subsection (1) of this section shall be as nearly as possible
in the same manner as provided in ORS 540.010 to 540.130. [1957 c.341 §4;
1985 c.673 §72](1) In the administration of ORS 537.505 to 537.795 and
537.992, the Water Resources Commission may:

(a) Require that all flowing wells be capped or equipped with
valves so that the flow of ground water may be completely stopped when
the ground water is not actually being applied to a beneficial use.

(b) Enforce:

(A) General standards for the construction and maintenance of wells
and their casings, fittings, valves, pumps and back-siphoning prevention
devices; and

(B) Special standards for the construction and maintenance of
particular wells and their casings, fittings, valves and pumps.

(c)(A) Adopt by rule and enforce when necessary to protect the
ground water resource, standards for the construction, maintenance,
abandonment or use of any hole through which ground water may be
contaminated; or

(B) Enter into an agreement with, or advise, other state agencies
that are responsible for holes other than wells through which ground
water may be contaminated in order to protect the ground water resource
from contamination.

(d) Enforce uniform standards for the scientific measurement of
water levels and of ground water flowing or withdrawn from wells.

(e) Enter upon any lands for the purpose of inspecting wells,
including wells exempt under ORS 537.545, casings, fittings, valves,
pipes, pumps, measuring devices and back-siphoning prevention devices.

(f) Prosecute actions and suits to enjoin violations of ORS 537.505
to 537.795 and 537.992, and appear and become a party to any action, suit
or proceeding in any court or before any administrative body when it
appears to the satisfaction of the commission that the determination of
the action, suit or proceeding might be in conflict with the public
policy expressed in ORS 537.525.

(g) Call upon and receive advice and assistance from the
Environmental Quality Commission or any other public agency or any
person, and enter into cooperative agreements with a public agency or
person.

(h) Adopt and enforce rules necessary to carry out the provisions
of ORS 537.505 to 537.795 and 537.992 including but not limited to rules
governing:

(A) The form and content of registration statements, certificates
of registration, applications for permits, permits, certificates of
completion, ground water right certificates, notices, proofs, maps,
drawings, logs and licenses;

(B) Procedure in hearings held by the commission; and

(C) The circumstances under which the helpers of persons operating
well drilling machinery may be exempt from the requirement of direct
supervision by a licensed water well constructor.

(i) In accordance with applicable law regarding search and seizure,
apply to any court of competent jurisdiction for a warrant to seize any
well drilling machine used in violation of ORS 537.747 or 537.753.

(2) Notwithstanding any provision of subsection (1) of this
section, in administering the provisions of ORS 537.505 to 537.795 and
537.992, the commission may not:

(a) Adopt any rule restricting ground water use in an area unless
the rule is based on substantial evidence in the record of the Water
Resources Department to justify the imposition of restrictions.

(b) Make any determination that a ground water use will impair,
substantially interfere or unduly interfere with a surface water source
unless the determination is based on substantial evidence. Such evidence
may include reports or studies prepared with relation to the specific use
or may be based on the application of generally accepted hydrogeological
principles to the specific use.

(3) At least once every three years, the commission shall review
any rule adopted under subsection (2) of this section that restricts
ground water use in an area. The review process shall include public
notice and an opportunity to comment on the rule. [1955 c.708 §32; 1981
c.416 §7; 1985 c.673 §73; 1989 c.833 §60; 1995 c.549 §2](1) The Water Resources
Commission shall adopt rules which govern the disposal by reinjection or
other means of geothermal fluids derived from:

(a) Geothermal or hot water wells less than 2,000 feet deep
producing fluids of less than 250 degrees Fahrenheit bottom hole
temperature; or

(b) Geothermal or hot water wells less than 2,000 feet deep
producing fluids that have been appropriated pursuant to ORS 537.505 to
537.795 and 537.992.

(2) The rules adopted under subsection (1) of this section shall
include standards whereby contamination may be determined, construction
standards for reinjection wells, testing procedures for identifying
aquifers, standards and procedures for determining whether adjacent
aquifers are being degraded by the reinjection process, guidelines for
conservation of the resource, criteria for evaluating reservoirs or zones
for geothermal fluid disposal and requirements for prior approval of all
geothermal fluid reinjection proposals.

(3) A water pollution control facilities permit shall be obtained
from the Department of Environmental Quality under ORS 468B.050 before
reinjection is commenced. The Department of Environmental Quality may, by
agreement with the Water Resources Commission, waive this requirement for
reinjection into the reservoir from which the fluid came where adequate
standards and tests have been adopted to insure the fluid and its
residues are uncontaminated. [1979 c.547 §3; 1985 c.673 §74](1) In the administration of ORS 537.505 to 537.795
and 537.992, the Water Resources Commission shall collect in advance, the
fees set forth in ORS 536.050 and 539.081 for any service similar to any
of those referred to in ORS 536.050 or 539.081.

(2) All fees collected by the commission under subsection (1) of
this section shall be paid into the General Fund of the State Treasury.
[1955 c.708 §33; 1969 c.629 §1; 1979 c.67 §2; 1985 c.673 §75](1) The Water Resources Commission, upon the commission’s
own initiative, or upon complaint alleging violation of any provision of
ORS 537.505 to 537.795 and 537.992, or any rule adopted pursuant thereto,
may investigate to determine whether a violation has occurred. If the
investigation indicates that a violation has occurred, the commission
shall notify the persons responsible for the violation, including:

(a) Any well constructor involved; and

(b) The landowner, if the violation involves construction,
alteration, operation, abandonment or conversion of a well.

(2) If, after notice and opportunity for hearing under ORS chapter
183 the commission determines that one or more violations have occurred,
the commission may:

(a) Provide additional time for remedy of the violation if the
commission has reason to believe adequate repair or other remedy will be
carried out within the specified period.

(b) If one or more persons responsible for the violation hold a
water well constructor’s license, suspend, revoke or refuse to renew the
license.

(c) Assess a civil penalty under ORS 537.992, on the well
constructor or other responsible party, including the landowner if the
landowner was involved in the well construction.

(d) If an involved constructor or landowner has a surety bond
required by ORS 537.753 (1) or (4) in effect, make demand on the bond in
an amount not to exceed the cost of remedying the violation.

(e) Impose any reasonable condition on the water well constructor’s
license to insure compliance with applicable laws and provide protection
to the ground water of the State of Oregon. Such action shall be
conducted as a contested case proceeding according to the applicable
provisions of ORS chapter 183.

(f) Any other action authorized by law.

(3) The commission may terminate proceedings against a person if:

(a) The landowner does not permit the person involved in
proceedings to be present at any inspection made by the commission; or

(b) The commission determines that the person involved in
proceedings is capable of complying with recommendations made by the
commission, but the landowner does not permit the person to comply with
the recommendations. [1985 c.615 §5; 1985 c.673 §199; 1999 c.293 §6] (1) The well identification
number provided by the Water Resources Department when the reporting
requirement of ORS 537.762 is satisfied shall be recorded on the well by
a person licensed under ORS 537.747 within 30 days after the associated
well work is completed.

(2) If a well does not have an identification number recorded on it
at the time the property upon which the well is located is transferred,
the owner of the property shall record on the well the identification
number obtained from the Water Resources Department under ORS 537.791
within 30 days.

(3) The identification number on the well shall be clearly visible
to a person looking for the number and shall meet minimum standards as
recommended by the ground water advisory committee appointed under ORS
536.090 and adopted by the Water Resources Commission. [1993 c.774 §9] (1) A landowner may
apply to the Water Resources Department for a number to identify a well
on the landowner’s property.

(2) The Water Resources Department shall issue a number to identify
a well that has not received a number through the reporting process
required for wells under ORS 537.762 within 10 days after receipt of the
application. [1993 c.774 §10]
Failure of a seller to comply with the provisions of ORS 537.789 or
537.791 does not invalidate an instrument of conveyance of real estate.
[1993 c.774 §11; 2005 c.14 §3]
The Water Resources Commission shall adopt by rule an initial temperature
below which low temperature geothermal appropriations shall not be
protected from thermal interference caused by ground water appropriations
for other purposes. [1989 c.201 §§7,8]Note: 537.796 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 537 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.SURVEYORS, ENGINEERS AND GEOLOGISTSThe Water Resources Commission by rule shall establish
criteria for the certification of registered, professional surveyors and
engineers and geologists practicing as defined in ORS 672.005 and
672.505, respectively, to conduct surveys to determine whether a
permittee has completed all work necessary to perfect an appropriation of
water under ORS 537.230, 537.630 and 540.530. [1987 c.542 §1; 1989 c.171
§70; 1995 c.7 §1]Note: 537.797, 537.798 and 537.799 were enacted into law by the
Legislative Assembly but were not added to or made a part of ORS chapter
537 or any series therein by legislative action. See Preface to Oregon
Revised Statutes for further explanation.(1) In accordance with criteria established
by the Water Resources Commission, the State Board of Examiners for
Engineering and Land Surveying shall:

(a) Conduct examinations for certification of registered,
professional surveyors, engineers and geologists to conduct surveys to
determine whether or not a permittee has completed all work necessary to
perfect an appropriation of water under ORS 537.230, 537.630 and 540.530.

(b) Issue certificates to any land surveyor, engineer or geologist
qualifying for certification under paragraph (a) of this subsection.

(c) Collect fees for the examination and certification of water
right examiners under this subsection.

(2) In accordance with the provisions of ORS chapter 183 relating
to contested cases, the State Board of Examiners for Engineering and Land
Surveying may revoke, suspend or modify certificates issued under
subsection (1) of this section.

(3) The State Board of Examiners for Engineering and Land Surveying
shall establish fees for the examination, certification and renewal of
certification of water right examiners. The fees shall be based upon the
expenses of the board in conducting a program to certify water right
examiners and the expenses of the Water Resources Department in providing
for examination of water right appropriations by water right examiners.

(4) The board shall pay into the State Treasury all moneys received
as fees under subsection (1) of this section. The State Treasurer shall
credit such money to the State Board of Examiners for Engineering and
Land Surveying. The moneys are continuously appropriated to the board to
be used by the board in conjunction with the Water Resources Department
for any expenses incurred by the board and, if approved by the Governor,
any expenses incurred by the Water Resources Department in the
certification, examination and review of activities of water right
examiners. [1987 c.542 §2; 1995 c.7 §2]Note: See note under 537.797. Any person
who has applied for or received a permit or a transfer to appropriate
water under ORS 537.211, 537.625 or 540.530 on or before July 9, 1987,
shall notify the Water Resources Department that the work has been
completed and either:

(1) Hire a water right examiner certified under ORS 537.798 to
conduct a survey, the original to be submitted as required by the Water
Resources Department, for issuance of a water right certificate; or

(2) Continue to appropriate water under the water right permit or
transfer issued under ORS 537.211, 537.625 or 540.530 until the Water
Resources Department conducts a survey and the commission issues a water
right certificate under ORS 537.250 or 537.625. [1987 c.542 §3]Note: See note under 537.797.WASTE, SPRING AND SEEPAGE WATERS (1) All
ditches now or hereafter constructed, for the purpose of utilizing waste,
spring or seepage waters, shall be governed by the same laws relating to
priority of right as those ditches constructed for the purpose of
utilizing the waters of running streams. However, the person upon whose
lands the seepage or spring waters first arise shall have the right to
the use of such waters.

(2) As used in this section, “spring” means a point where water
emerges naturally from the earth as a result of gravity flow or artesian
pressure. [Formerly 537.710; 1989 c.939 §2; 1991 c.200 §2; 1995 c.79 §303]DIVERSION OF WATERS FROM BASIN OF ORIGIN (1) As used in ORS chapters 537 and
540:

(a) “Basin” means one of the river basins within this state, as
defined by Water Resources Department Map No. 0.2, dated 1987, and
entitled “Oregon Drainage Basins,” unless the context requires otherwise.

(b) “Basin of origin” means the basin in which surface or ground
water that is the subject of an application under ORS 537.211, 537.400,
537.620, 540.520, 543.210 or 543.290 is located.

(2) The Legislative Assembly finds that the transport of
significant quantities of water outside the boundaries of the basin of
origin may have a significant impact on the water and other resources of
the basin of origin.

(3) Therefore, the Legislative Assembly declares that the waters of
the state may not be appropriated, stored or diverted for use outside the
basin of origin except in compliance with the provisions of ORS 537.801
to 537.860, including, if applicable, the prior approval of the
Legislative Assembly under ORS 537.810. [1989 c.936 §§2,3](1) When an application for appropriation of water
submitted under ORS 537.211, 537.400, 537.620, 543.210, 543.290 or for a
change in the place of use of an existing water right submitted under ORS
540.520 proposes use of water outside the basin of origin, the
application shall include, in addition to any other information required,
an analysis of the following:

(a) The amount of water in the basin of origin available for future
appropriation.

(b) Projected future needs for water in the basin of origin.

(c) Benefits presently and prospectively derived from the return
flow of water used within the basin of origin that will be eliminated by
the proposed out-of-basin use.

(d) The correlation between surface water and ground water in the
basin of origin, and whether the proposed use will be harmful to the
supply of either.

(e) Injury to existing water rights of other appropriators or
interference with planned uses or developments within the basin of origin
for which a permit has been issued or for which an application is pending.

(f) Whether the proposed use will adversely affect the quantity or
quality of water available for domestic or municipal use within the basin
of origin.

(g) Whether the proposed use will adversely affect public uses, as
defined in ORS 537.332, in the basin of origin.

(h) Alternative sources of water for the proposed use that would
not rely on transfer of water out of its basin of origin.

(2) This section shall apply only to an application filed on and
after October 3, 1989.

(3) This section shall not apply to an application for exchange of
water under ORS 540.533 to 540.543.

(4) This section shall not apply to an application for the transfer
of less than 0.5 cubic feet per second of water.

(5) Subsection (1) of this section shall not apply to an
appropriation or diversion by a city to facilitate regional municipal
water service if the city has historically transported water between the
basin of origin and proposed receiving basins identified in the
application. [1989 c.936 §4]
Notwithstanding any other provision of ORS 537.801 to 537.809, an
application governed by ORS 537.803 shall be processed as follows:

(1) Upon determination that the application is acceptable, the
Water Resources Commission shall conduct a comprehensive review of the
application, at the applicant’s expense.

(2) When the comprehensive review is complete, the commission shall
issue a preliminary analysis of the application that addresses the
factors under ORS 537.803 and any other information the commission
considers relevant. The preliminary analysis, or a reasonable summary,
shall be published at the applicant’s expense for three consecutive weeks
in a newspaper of general circulation in the basin of origin of the
proposed appropriation, diversion or impoundment.

(3) Following publication, the commission shall conduct a public
hearing at the applicant’s expense, in the basin of origin. The hearing
shall be for comment on the factors analyzed under ORS 537.803 and
standards that otherwise apply to the proposed appropriation or transfer.

(4) After considering the application, the information generated
during the comprehensive review of the application, all comments received
at the hearing and written comments received within 20 days after the
date of the public hearing, the commission shall:

(a) If the application requires legislative approval under ORS
537.810, submit a report to the Legislative Assembly that addresses all
factors analyzed under ORS 537.803 and recommends whether to approve or
deny the application for use of water outside the basin of origin; or

(b) If the application does not require legislative approval under
ORS 537.810, approve or deny the application in accordance with the
procedures and standards that otherwise govern the application, giving
due consideration to factors set forth in ORS 537.803. [1989 c.936 §5] Before approving
or recommending approval of an application subject to ORS 537.803, the
Water Resources Commission shall reserve an amount of water adequate for
future needs in the basin of origin, including an amount sufficient to
protect public uses, and subordinate the out-of-basin use to that
reservation. [1989 c.936 §6](1)
No waters located or arising within a basin shall be diverted, impounded
or in any manner appropriated for diversion or use beyond the boundaries
of that basin except upon the express consent of the Legislative
Assembly. In the event the Legislative Assembly shall give its consent to
any such request it may attach thereto such terms, conditions,
exceptions, reservations, restrictions and provisions as it may care to
make in the protection of the natural resources of the basin and the
health and welfare of the present and future inhabitants of the basin
within which the water arises or is located.

(2) Subsection (1) of this section shall not apply to
appropriations or diversions of less than 50 cubic feet per second out of
the basin of origin.

(3) Subsection (1) of this section shall not apply to
appropriations or diversions within the Klamath River Basin as defined in
ORS 542.620 or within the Goose Lake Basin as defined in ORS 542.520, so
long as those statutes remain in effect.

(4) This section shall not apply to an appropriation or diversion
by a city to facilitate regional municipal water service if the city has
historically transported water between the basin of origin and proposed
receiving basins identified in the application. [Amended by 1989 c.936 §7]ORS 537.801 to 537.860 shall also apply to the waters
located within the boundaries of this state of any river, stream, lake or
other body of water serving as part of the common boundary of this state
and any other state and over which this state has concurrent
jurisdiction, except that said sections shall not apply to the diversion,
impoundment or appropriation of waters for the development of
hydroelectric energy, flood control, irrigation or other uses in waters
forming a boundary of the state in cases where such waters are not to be
diverted from the drainage basin wherein such waters are located. No
person, or agency of any state or of the United States, shall attempt to
condemn any waters within the boundaries of this state for use outside
the basin of origin without first complying with the requirements of ORS
537.801 to 537.810 and this section. [Amended by 1989 c.936 §8](1) Pursuant to the provisions
of ORS 537.810, consent is hereby given to the City of Walla Walla, a
municipal corporation of the State of Washington, to appropriate, impound
and divert certain waters from Mill Creek, a tributary of the Walla Walla
River, located in Township 6 North, Range 38, E.W.M., Umatilla County,
Oregon, for the beneficial use of both the State of Oregon and within the
City of Walla Walla, State of Washington, subject to the following terms
and conditions:

(a) The City of Walla Walla shall pay the entire cost of
constructing and maintaining this project; and

(b) The City of Walla Walla shall employ only residents and
inhabitants of the State of Oregon in the construction and maintenance of
the project.

(2) The Water Resources Commission may from time to time direct
that a designated portion of the impounded waters shall be held in the
State of Oregon for fire protection, for use by Oregon residents, for
wildlife habitat needs, and to maintain proper stream flow during the
summer months.

(3) Prior to commencing construction, the City of Walla Walla shall
make application for such appropriation, impoundment and diversion to the
Water Resources Commission and such appropriation, impoundment and
diversion shall be allowed upon such additional terms, conditions,
reservations, restrictions and provisions, including minimum stream flow,
as the Water Resources Commission shall impose for the protection and
benefit of the State of Oregon. [1975 c.732 §2; 1985 c.673 §76]Upon receiving legislative permission
to appropriate waters under ORS 537.801 to 537.860, the permittee, upon
filing in the Water Resources Department a certified copy of the Act,
certified to by the Secretary of State, may proceed to obtain an
appropriation of waters in the manner provided by the laws of this state
for the appropriation of waters for beneficial use, subject to all
existing rights and valid prior appropriations and subject to the terms,
conditions, exceptions, reservations, restrictions and provisions of such
legislative consent. [Amended by 1985 c.673 §77]In the event of any violation or attempt to violate any
of the provisions of ORS 537.801 to 537.860, the Governor shall cause to
be instituted such suits and actions as may be necessary to protect and
defend the sovereign rights and interests of the state in the premises.
Persons are given right of redress against such violator at private suit
or action under any appropriate remedy at law or in equity.(1) Pursuant to the provisions of ORS 537.810,
consent is hereby given to any domestic water supply district formed
under ORS chapter 264 to permit the diversion of water for use on
property a portion of which is within a state adjoining Oregon, subject
to the following conditions:

(a) The majority of the property is within Oregon.

(b) The property is developed with economic benefit to Oregon as
well as to the adjoining state, in the judgment of the domestic water
supply district.

(c) The costs of the diversion are borne by the developer or owner
of the property.

(d) The developer employs only residents of Oregon in the
construction necessary for the diversion of water.

(2) The diversion of water under this section shall be subject to
additional terms, conditions, reservations, restrictions and provisions
as the Water Resources Commission shall impose for the protection and
benefit of the State of Oregon. [1985 c.572 §2; 1987 c.158 §115]ORS 537.810 to 537.850 shall not
affect any valid prior appropriation or water right existing on May 12,
1951.Subject to the limitations imposed by ORS 537.801 to
537.860, any municipal corporation of any state adjoining Oregon may
acquire title to any land or water right within Oregon, by purchase or
condemnation, which lies within any watershed from which the municipal
corporation obtains or desires to obtain its water supply.PENALTIES(1) Violation of ORS 537.130 (2) is
punishable, upon conviction, by a fine of not less than $10 nor more than
$250, or by imprisonment in the county jail for not more than six months,
or both.

(2) Any person who willfully diverts or uses water to the detriment
of others without compliance with law shall be punished as provided in
subsection (1) of this section. The possession or use of water, except
when a right of use is acquired in accordance with law, shall be prima
facie evidence of the guilt of the person using it.

(3) Violation of ORS 537.535 (1) is punishable, upon conviction, by
a fine of not less than $10 nor more than $250, or by imprisonment in the
county jail for not more than six months, or both. Violation of ORS
537.747 is a Class B misdemeanor.

(4) Justice courts shall have concurrent jurisdiction with the
circuit courts in the trial of all violations under this section.
[Subsection (3) enacted as 1955 c.708 §36; 1963 c.293 §3; 1981 c.416 §8] (1) In
addition to any other remedy provided by law, the Water Resources
Commission may impose a civil penalty against any person who, in the
construction of a well, violates any provision of ORS 537.747 to 537.795
and 537.992, or any rule promulgated pursuant thereto. A civil penalty
shall be in an amount determined by the commission in accordance with the
rules adopted under subsection (2) of this section. However, the
commission shall not impose a civil penalty under this section if the
commission, by exercising other authority granted under ORS 537.505 to
537.795 and 537.992, causes the person to comply with the provisions of
ORS 537.747 to 537.795 and 537.992 or rules adopted thereunder.

(2) The commission shall adopt by rule a schedule of penalties for
violation of ORS 537.747 to 537.795 and 537.992, not to exceed $1,000 for
each occurrence defined in the rules as a major violation, and not to
exceed $250 for each occurrence defined in the rules as a minor
violation. Under no circumstances may a penalty for a violation of ORS
537.762 or 537.765 exceed $250.

(3) Civil penalties under this section shall be imposed as provided
in ORS 183.745.

(4) All amounts recovered under this section shall be deposited in
the General Fund. [Formerly 537.792]

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