Usa Oregon

USA Statutes : oregon
Title : TITLE 44 FORESTRY AND FOREST PRODUCTS
Chapter : Chapter 538 Withdrawal of Certain Waters From Appropriation; Special Municipal and County Water Rights
(1) The waters of Ditch
Creek which were diverted to and became a part of the waters of Willow
Creek, under the provisions of chapter 324, Oregon Laws 1939, are subject
to the same rights of use and appropriation as the original waters of
Willow Creek.

(2) The right of the county court of Morrow County to divert and
store the waters of Ditch Creek, acquired under the certificate issued by
the Water Resources Director licensing such diversion and storage, shall
date from the time the application to divert and store such waters was
filed. The waters shall be used for the purposes, in the manner and under
the conditions set forth in the certificate, for such time as the use is
for the public interest. If the waters are not used under the license for
a five-year period, the license shall expire.The county court of Morrow County may, for the purposes set
forth in chapter 324, Oregon Laws 1939, acquire, in the name of the
county and for the use of the public, by purchase, eminent domain
proceedings, lease, grant, gift, bequest, devise or any other legal
means, real and personal property, rights of way, easements and other
property rights or privileges necessary to effect the storage and
diversion of the waters referred to in that Act, and maintain and care
for such property and rights in the manner provided by statute for the
care and maintenance of other county property.WITHDRAWALS FROM APPROPRIATIONFor the purpose of maintaining and
perpetuating the recreational and scenic resources of Oregon, the waters
of that portion of Tumalo Creek, in Deschutes County, situated above a
point one-half mile above the intake of the Columbia Southern Canal in
section 2, township 18 south, range 10 east, Willamette Meridian, in
Deschutes County, shall not be diverted for any purposes whatsoever,
except for municipal, domestic and stock uses. Nothing in this section
shall be construed to impair any vested rights existing as of June 4,
1929, in the creek or its tributaries. This section shall not apply to
the waters of the south fork of Tumalo Creek. [Amended by 1959 c.223 §1]The waters of the north
and south forks of Silver Creek and of all tributaries thereof above the
confluence of the north and south forks of Silver Creek, all in Marion
County, also Brushes Creek and all its tributaries in township 33 south,
range 14 west, Willamette Meridian, in Curry County, are withdrawn from
appropriation or condemnation, and shall not be diverted or interrupted
for any purpose whatsoever, except for use in state parks and except as
set forth in ORS 538.130 and section 2 of chapter 480, Oregon Laws 1965.
[Amended by 1965 c.480 §1]
All appropriations made under the provisions of section 2, chapter 480,
Oregon Laws 1965, shall become vested when completed as provided by ORS
537.250. Any person having obtained a vested water right prior to April
19, 1967, under the provisions of section 2, chapter 480, Oregon Laws
1965, may apply to the Water Resources Commission for an increase of
vested water rights, as provided by ORS chapter 537. [1967 c.169 §1; 1985
c.673 §78]ORS 538.120 shall not prevent the condemnation for public
park purposes of any lands through which any of the streams flow, nor
affect vested rights or the rights of riparian proprietors of such lands
in or to the water of the creeks or streams.In order to maintain,
increase and perpetuate game fish and game fish propagation within
Oregon, the waters or use of the waters of Diamond Lake and its
tributaries situated in Douglas County shall not be diverted, interrupted
or appropriated for any purpose whatsoever, except for domestic use on
contiguous and surrounding land or other water uses necessary to
maintain, increase and perpetuate game fish and game fish propagation in
Diamond Lake and its tributaries. [Amended by 1999 c.252 §1]The waters of Hackett Creek, a tributary of the Sandy River located in
Clackamas County, and of the tributaries of Hackett Creek, are withdrawn
from appropriation or condemnation and shall not be diverted or
interrupted for any purpose whatsoever, except for protecting fish life
therein by the State Fish and Wildlife Commission.ORS 538.150 shall not affect vested water
rights or prevent condemnation for public park purposes of lands through
which Hackett Creek or its tributaries flow.(1) Except as provided in
subsection (2) of this section, the waters of Johnson Creek, a tributary
of the Willamette River and located in Multnomah and Clackamas Counties
and all tributaries thereof, except flows of Crystal Springs Creek and
its tributaries in excess of 10 cubic feet per second measured at the
mouth of Crystal Springs Creek:

(a) Are withdrawn from appropriation or condemnation; and

(b) Shall not be diverted or interrupted for any purpose
whatsoever, except for the purpose of protecting fish life therein by the
State Department of Fish and Wildlife or for the purpose of developing
hydroelectric power not to exceed 25 theoretical horsepower if such
hydroelectric development does not diminish perennial stream flow
required for the maintenance of fish life.

(2) The tributaries withdrawn from appropriation and condemnation,
but not the main channel, of Johnson Creek are open to appropriation and
storage from December 1 to June 1 of each year. Water stored during this
period may be used at any time. [Amended by 1953 c.221 §2; 1965 c.249 §1;
1973 c.50 §1; 1979 c.360 §1]ORS 538.170 shall not affect rights to the use of Johnson Creek
recognized or acquired pursuant to section 2, chapter 273, Oregon Laws
1935; nor shall anything contained in ORS 538.170 prevent condemnation
for public park purposes of lands through which Johnson Creek flows.In order to maintain, increase and perpetuate game fish and game
fish propagation within Oregon, the waters or use of the waters of Lake
of the Woods and its tributaries, situated in Klamath County, not already
appropriated, shall not be diverted, interrupted or appropriated for any
purpose whatsoever, except for domestic use on contiguous and surrounding
land.The following streams and waters thereof forming waterfalls
or cascades in view of, or near, the Columbia River Highway, from Sandy
River to Hood River, the first 17 of which are in Multnomah County and
the remainder of which are in Hood River County, are withdrawn from
appropriation or condemnation, and shall not be diverted or interrupted
for any purpose whatsoever, except as mentioned in ORS 538.210:

(1) Latourell Creek–forming Latourell Falls.

(2) An unnamed stream whose waterfall is approximately at the
southwest quarter of the southwest quarter of the northwest quarter of
section 28, township 1 north, range 5 east, at the northern edge of Tax
Lot 27/28. The fall is on the south side of the old Columbia River
Highway 0.7 mile west of the highway bridge at Young Creek.

(3) An unnamed stream whose waterfall is approximately at the
southeast quarter of the southwest quarter of the northwest quarter of
section 28, township 1 north, range 5 east, at the northern intersection
of Tax Lot 27/26. The falls are on the south side of the old Columbia
River Highway 0.6 mile west of the highway bridge at Young Creek.

(4) An unnamed stream whose waterfall is approximately at the
northeast quarter of the northeast quarter of the northwest quarter of
section 28, township 1 north, range 5 east, Tax Lot 3. The falls are on
the south side of the old Columbia River Highway 0.1 mile west of the
highway bridge at Young Creek.

(5) Young Creek–forming Shepperd Dell Falls.

(6) Bridal Veil Creek–forming Bridal Veil Falls.

(7) Coopey Falls Creek.

(8) Mist Falls Creek.

(9) Wahkeena Creek–forming Wahkeena Falls, formerly known as Gordon
Falls.

(10) Multnomah Creek–forming Multnomah Falls.

(11) Oneonta Creek–forming Oneonta Falls and Gorge.

(12) Horse Tail Creek–forming Horse Tail Falls.

(13) Tumalt Creek.

(14) McCord Creek, formerly known as Kelly Creek–forming Elowah
Falls.

(15) Moffatt Creek–forming Wahe Falls.

(16) Tanner Creek–forming Wahclella Falls.

(17) Eagle Creek–forming Metlako Falls.

(18) Ruckle Creek, formerly known as Deadman’s Creek.

(19) Herman Creek.

(20) Grays Creek.

(21) Gorton Creek–forming Gorton Creek Falls.

(22) Harphan Creek.

(23) Summit Creek–forming Camp Benson Falls.

(24) Lindsey Creek–forming Lindsey Falls.

(25) Spring Creek, also known as Wonder Creek–forming Lancaster
Falls.

(26) Warren Creek.

(27) Cabin Creek.

(28) Starvation Creek–forming Starvation Falls.

(29) Viento Creek.

(30) Perham Creek.

(31) Phelps Creek, except those creeks which are tributary to
Phelps Creek and which arise in the north one-half of section 5, township
2 north, range 10 east of the Willamette Meridian, subject to prior
rights. [Amended by 1953 c.48 §2; 1985 c.261 §1]ORS 538.200 shall not prevent the
condemnation for public park purposes of any lands through which any of
the streams flow; nor affect vested rights or the rights of riparian
proprietors of such lands in or to the waters of the creeks or streams;
nor prevent the condemnation of any lands through which any of the
streams flow, for the purpose of establishing, maintaining and operating
thereon salmon fish culture work, nor prevent the State Fish and Wildlife
Commission from appropriating any waters for fish culture work; nor
prevent the appropriation, for irrigation purposes, of waters between the
Union Pacific Railroad tracks and the Columbia River that flow from any
of the streams other than Herman Creek; provided, that no waters shall be
taken from above the falls in the streams mentioned in ORS 538.200.
[Amended by 1978 s.s. c.2 §1](1) The waters described as follows are withdrawn from
appropriation or condemnation, and shall not be diverted or interrupted
for any purpose whatsoever, except for domestic purposes and protecting
fish life therein by the State Fish and Wildlife Commission:

(a) The waters of Mill Creek, in Jackson County, beginning in
section 22, township 31 south, range 4 east, Willamette Meridian, running
thence southwesterly through township 31 south, range 3 east, Willamette
Meridian, and township 32 south, range 3 east, Willamette Meridian, to a
junction with the Rogue River in section 32, township 32 south, range 3
east, Willamette Meridian, together with the tributaries of said Mill
Creek; and

(b) Barr Creek, in Jackson County, beginning in section 1, township
32 south, range 3 east, Willamette Meridian, and in section 6 and section
7, township 32 south, range 4 east, Willamette Meridian, running thence
in a general southwesterly direction through township 32 south, range 3
east, Willamette Meridian, to a junction with the Rogue River in section
32, township 3 east, Willamette Meridian, together with the tributaries
of said Barr Creek.

(2) Subsection (1) of this section shall not prevent the
appropriation of the waters of Mill Creek, in Jackson County, for the
development of hydroelectric power not to exceed one megawatt if:

(a) The hydroelectric project is located on Mill Creek at a point
at least two miles above the confluence of Mill Creek and the Rogue River;

(b) All water appropriated from the stream is returned to the
stream at a point at least one-half mile above the confluence of Mill
Creek and the Rogue River; and

(c) The facility will be constructed and operated in compliance
with recommendations by the State Department of Fish and Wildlife
concerning fish conservation, including stream flow requirements based
upon biological criteria. [Amended by 1959 c.104 §1; 1983 c.650 §1]ORS 538.220 shall not affect vested water rights or prevent
condemnation for public park purposes of lands through which Mill and
Barr Creeks or their tributaries flow.Except as otherwise provided in this section, the following
waters, all being tributaries of the Columbia River, are withdrawn from
appropriation and shall not be diverted or interrupted for any purpose,
except for protecting fish life therein by the State Fish and Wildlife
Commission:

(1) Clatskanie River and its tributaries, except Fall Creek in
Columbia County, for purposes of hydroelectric generation if the facility
is constructed and operated in compliance with recommendations by the
State Department of Fish and Wildlife concerning fish conservation,
including stream flow requirements based upon biological criteria.

(2) Klaskanine River and its tributaries in Clatsop County except
an unnamed tributary of the South Fork Klaskanine River in Clatsop
County, on which there is located an existing fish culture project, for
purposes of hydroelectric generation if the facility is less than 100
horsepower and the electricity generated is for use in conjunction with
the existing fish culture project.

(3) Lewis and Clark River in Clatsop County.

(4) Sandy River and its tributaries in Multnomah and Clackamas
Counties, except:

(a) Beaver Creek and its tributaries.

(b) Buck Creek and its tributaries.

(c) The tributary of the Sandy River in Multnomah County which
empties into the Sandy River near the north quarter corner, section 10,
township 1 south, range 4 east, Willamette Meridian, and its tributaries,
and is locally known as Big Creek.

(d) All tributaries, but not the main channel, of the Sandy River
are open for appropriation and storage from December 1 to June 1 of each
year. Water stored during this period may be used at any time.

(e) Trout Creek in Multnomah County and its tributaries.

(5) Scappoose Creek in Columbia County.

(6) Tillasqua Creek in Clatsop County. [1953 c.222 §2; 1961 c.366
§1; 1971 c.139 §1; 1983 c.807 §4; 1987 c.392 §1]ORS 538.251 shall not affect any existing
rights to appropriate or use water, or any renewals or extensions
thereof, or prevent appropriation and use of such water for domestic,
stock, municipal, fish culture, aesthetic, recreational, or public park
purposes. [Amended by 1971 c.139 §2]Subject to water rights existing on May 26, 1967, the
waters flowing in the main channel of the Rogue River from its
intersection with the south line of section 27, township 33 south, range
1 east of the Willamette Meridian in Jackson County, to its confluence
with the Pacific Ocean, are withdrawn from appropriation; except that
this section shall not prevent the appropriation and use of such waters
for domestic, stock, irrigation, municipal, fish, wildlife, recreation
and road maintenance purposes, nor prevent the appropriation, diversion
and use of the waters of any stream tributary to the river. [Amended by
1959 c.205 §1; 1967 c.310 §1; 1989 c.291 §1]
The waters of McNulty Creek, a tributary of Scappoose Bay, in Columbia
County, are withdrawn from appropriation except for storage during the
period beginning November 1 and ending on March 31 of each year in
reservoirs not constructed in the channel of McNulty Creek below a line
one mile west of the range line between ranges 1 and 2 west, Willamette
Meridian. [Amended by 1955 c.82 §1]ORS 538.280
shall not affect any existing rights to the waters of McNulty Creek that
have been acquired or are in the process of being acquired under the
water laws of this state. [Amended by 1955 c.82 §2]The unappropriated waters of
Milton Creek and its tributaries, in Columbia County, are withdrawn from
appropriation except for domestic use through the year and storage during
the period beginning November 1 and ending April 30 of each year. Nothing
contained in this section shall impair the existing rights of any person
to the use of such waters.MUNICIPAL WATER SUPPLYAll rights to the waters of the
lakes, rivers and streams of this state acquired before February 24,
1909, for the purposes of municipal water supply are confirmed, and no
rights acquired under the Water Rights Act (as defined in ORS 537.010)
shall impair the rights of any municipal corporation to waters taken
before February 24, 1909. The Water Resources Commission shall reject, or
grant subject to municipal use, all applications where, in the
commission’s judgment, the appropriation of the waters applied for
impairs a municipal water supply. Municipal corporations of the state, on
request of the Water Resources Commission, shall furnish a statement of
the amount and source of the municipal water supply, with probable
increase or extension of the same. [Amended by 1985 c.673 §79](1) Exclusive
right to the use of waters of Bull Run and Little Sandy Rivers is granted
to the City of Portland. However, the Water Rights Act (as defined in ORS
537.010) shall not impair the rights of any person who, on February 24,
1909, had any vested right to or valid appropriation or bona fide notice
of appropriation of the waters of either Bull Run River or Little Sandy
River, under laws theretofore in effect or under any valid contract or
deed of conveyance theretofore made with or by the City of Portland.

(2) ORS 541.010 to 541.080 shall not apply to Bull Run Creek or
River.(1) Subject to water rights existing on
May 29, 1925, the City of Medford, in Jackson County, is granted the
exclusive right to use for municipal purposes all the waters of Big Butte
Creek, a tributary of Rogue River situated in Jackson County, and of the
springs at the head which form the creek, and of its tributaries. The
City of Medford, any of its officers, and others on its behalf may
appropriate all the waters for these purposes and an application therefor
may be made for the benefit of the city, either by it in its own name, or
by any of its officers or by any other person on its behalf. No person
shall appropriate or be granted a permit to use any of the waters except
as provided in this section, and for the use and benefit of the city. But
the City of Medford may, under this grant, divert such waters from their
watershed and convey them to the city and elsewhere for use by it for
municipal purposes, either within or without the city limits. All of such
waters are withdrawn from future appropriation, except for such use and
benefit of the City of Medford; provided however, that the Eagle Point
Irrigation District may establish and use an additional point of
diversion below the diversion point in use on April 1, 1953, under its
permit number 6396 which authorizes the appropriation of not to exceed
100 cubic feet per second.

(2) Subject to rights existing on July 21, 1953, to the use of the
waters of Big Butte Creek, and of the springs at the head which form the
creek, and of its tributaries, including the rights granted in subsection
(1) of this section to the City of Medford to the use of such waters and
the right of future appropriation of such waters, the Eagle Point
Irrigation District is granted the right to appropriate and use up to and
including 100 cubic feet per second of the waters of Big Butte Creek,
using the diversion site of the Eagle Point Irrigation District existing
on April 1, 1953, for the purpose of generating electric energy;
provided, however, that not less than 10 cubic feet per second of said
waters shall be permitted to pass said diversion point and remain in the
channel of said stream at all times other than times when said waters are
diverted for irrigation purposes. The Eagle Point Irrigation District may:

(a) Enter into such contracts and perform such other acts as it
deems necessary or desirable for the generation of electric energy and
the construction and maintenance of facilities for the generation of
electric energy.

(b) Enter into such arrangements as it deems proper for the use,
sale or distribution of the electric energy which is generated.

(3) In performing any of the acts under subsection (2) of this
section, the Eagle Point Irrigation District shall not be deemed a public
utility as defined in ORS 757.005.

(4) Subsections (1) and (2) of this section shall not prevent the
appropriation of the waters of Clark Creek, in Jackson County, for the
development of hydroelectric power not to exceed two megawatts if the
facility will be constructed and operated in compliance with
recommendations by the State Department of Fish and Wildlife concerning
fish conservation, including stream flow requirements based upon
biological criteria. [Amended by 1953 c.572 §2; 1963 c.231 §1; 1983 c.650
§2] Whenever the City of
Bend, Deschutes County, shall have acquired the right to appropriate or
use from the Deschutes River at least 11 cubic feet per second of water
for delivery into the feed canal belonging to Deschutes County Municipal
Improvement District, which feed canal is now supplied from the Deschutes
River at a diversion located in or near Bend, then the city may take from
the direct flow of Tumalo Creek, in Deschutes County, not to exceed 11
cubic feet per second of water for providing a supply of water for
domestic and municipal purposes; provided, however, that should the
waters of the Deschutes River so acquired for the purpose of the exchange
be appurtenant to lands calling for a different point of diversion, the
place of use and point of diversion of the water may be changed to meet
the requirements of this section.(1) Subject to water rights existing on
March 8, 1941, there is granted to the City of Pendleton, Umatilla
County, and its water commission, the exclusive right to use for public
or municipal purposes or use, or for the general use and benefit of
people within or without the city, all waters of the north fork of the
Umatilla River, the springs at the head which form the stream, and its
tributaries to the confluence of the north fork with the main stream of
the Umatilla River in the northwest quarter of section 22, township 3
north of range 37 east of the Willamette Meridian, which north fork is a
tributary of the Umatilla River situated in Umatilla County.

(2) The City of Pendleton, its water commission, any of the city’s
agents, agencies and officers, and others on its behalf, may appropriate
all such waters for these purposes and uses for the benefit and use of
the city, as above set forth, either by the city in its own name, or by
any of its agents, agencies or officers or by any other persons on its
behalf.

(3) No person shall appropriate or be granted a permit to the use
of any of such waters, except as provided in this section. But the City
of Pendleton may, under this grant, divert such waters from their
watershed and convey them to the city and elsewhere for use by it for
public or municipal purposes or use or for the general use and benefit of
people within or without the city. All of such waters are withdrawn from
future appropriation, except for use and benefit of the city as set forth
in this section.

(4) The point of diversion of a water right granted under this
section may be exercised at the main stem of the Umatilla River situated
in Umatilla County to a point not below the westerly city limit of the
City of Pendleton.

(5) Prior to exercising the right granted under this section, the
City of Pendleton shall submit to the Water Resources Department a notice
of intent to exercise the right. The notice of intent shall be made on a
form prescribed by the department and shall set forth:

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

(b) The source of the 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 the amount of the proposed use;

(d) The time within which construction of the right is proposed to
begin;

(e) The time required to complete construction of the right;

(f) The time required for the complete application of the water to
the proposed beneficial use;

(g) The point of diversion of the exercise of the right; and

(h) Any other information required by the department that is
necessary to understand the nature of the proposed project.

(6) Prior to submitting a notice of intent pursuant to subsection
(5) of this section, the City of Pendleton shall hold a public meeting in
the water basin in which the right is located to discuss the proposed
project and receive comments from the public.

(7) Within 14 days after receiving a notice of intent submitted
pursuant to subsection (5) of this section, the department shall, in the
weekly notice published by the department, give public notice of the
submission of the notice of intent.

(8) The Confederated Tribes of the Umatilla Indian Reservation and
the City of Pendleton have entered into an agreement addressing the
development and use of the City of Pendleton’s water rights in the
Umatilla River and the impact on tribal interests from such development.
The agreement includes implementation of the minimum stream flow in the
main stem of the Umatilla River resulting from the exercise by the City
of Pendleton of its surface water right of the north fork of the Umatilla
River under this section. The City of Pendleton shall exercise such right
consistent with the agreement or successor agreements between the City of
Pendleton and the tribes provided in this subsection. In no event will
the City of Pendleton exercise the right granted under this section so as
to reduce stream flows in the Umatilla River to be less than state
in-stream water rights for the Umatilla River existing as of January 1,
2002. [Amended by 1995 c.359 §1; 2001 c.298 §1]

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USA Statutes : oregon