Usa Oregon

USA Statutes : oregon
Title : TITLE 44 FORESTRY AND FOREST PRODUCTS
Chapter : Chapter 540 Distribution of Water; Watermasters; Change in Use, Transfer or Forfeiture of Water Rights
The Water Resources
Commission shall divide the state into water districts, which shall be so
constituted as to secure the best protection to the claimants for water
and the most economical supervision on the part of the state. Water
districts shall not be created until necessary. [Amended by 1985 c.673
§82](1) The Water Resources
Director shall appoint one watermaster for each water district. The
watermaster shall hold office until removed by the director, and shall be
subject to any applicable provision of the State Personnel Relations Law.
The director shall fill all vacancies which occur in the office.

(2) The director, or any duly authorized assistant, shall have the
powers and authority of a watermaster in the distribution of water in any
water district. [Amended by 1985 c.421 §5]The Water Resources Director shall:

(1) Have general control over the watermasters.

(2) Execute the laws relative to the distribution of water and
perform other functions as may be assigned to the director. [Amended by
1953 c.395 §3; 1985 c.673 §82a]

(a) Regulate the distribution of water among the various users of
water from any natural surface or ground water supply in accordance with
the users’ existing water rights of record in the Water Resources
Department.

(b) Upon the request of the users, distribute water among the
various users under any partnership ditch, pipeline or well or from any
reservoir, in accordance with the users’ existing water rights of record
in the department.

(c) Divide the waters of the natural surface and ground water
sources and other sources of water supply among the canals, ditches,
pumps, pipelines and reservoirs taking water from the source for
beneficial use, by regulating, adjusting and fastening the headgates,
valves or other control works at the several points of diversion of
surface water or the several points of appropriation of ground water,
according to the users’ relative entitlements to water.

(d) Attach to the headgate, valve or other control works the
watermaster regulates under paragraph (c) of this subsection, a written
notice dated and signed by the watermaster, setting forth that the
headgate, valve or other control works has been properly regulated and is
wholly under the control of the watermaster.

(e) Perform any other duties the Water Resources Director may
require.

(2) When a watermaster must rely on a well log or other
documentation to regulate the use or distribution of ground water, the
regulation shall be in accordance with ORS 537.545 (3).

(3) For purposes of regulating the distribution or use of water,
any stored water released in excess of the needs of water rights calling
on that stored water shall be considered natural flow, unless the release
is part of a water exchange under the control of, and approved by, the
watermaster.

(4) As used in this section, “existing water rights of record”
includes all completed permits, certificates, licenses and ground water
registration statements filed under ORS 537.605 and related court
decrees. [1985 c.421 §3; 1989 c.691 §15; 1991 c.102 §11; 1993 c.157 §5;
1995 c.673 §3]
The district attorney shall appear on behalf of the Water Resources
Director or any watermaster in any case which may arise in the pursuance
of the official duties of the director or watermaster within the
jurisdiction of the district attorney. [Amended by 1985 c.421 §6] The
watermaster or an assistant appointed by the watermaster shall have power
to arrest any person violating a provision of the Water Rights Act (as
defined in ORS 537.010), ORS 537.120 to 537.360 or 537.505 to 537.795 and
537.992 and turn the person over to the sheriff or other competent police
officer within the county. At the time the watermaster delivers the
arrested person into the custody of the sheriff, the watermaster or
assistant watermaster making the arrest shall file a complaint, as
defined in ORS 131.005, against the person arrested. [Amended by 1957
c.341 §11; 1985 c.421 §7] (1) The county
court or board of county commissioners of each county in which the water
district of the watermaster is located shall furnish the watermaster a
suitable office and office equipment.

(2) If a water district includes all or parts of two or more
counties, the office of the watermaster for the water district shall be
in the county designated by the Water Resources Director and the county
court or board of county commissioners of that county shall provide a
suitable office with necessary office equipment for the watermaster.
[1985 c.421 §2](1) With the approval of the Water
Resources Director, a watermaster may employ assistants to aid in the
discharge of the watermaster’s duties. The assistants shall take the same
oath as the watermaster and shall obey the watermaster’s instructions.
Compensation and actual and necessary traveling expenses of an assistant
shall be paid by the county court or board of county commissioners upon
certificates of the watermaster by an order made at a regular term when
sitting for the transaction of county business. If no provision for such
payment is made, the assistant’s compensation and expenses shall be paid
by the water users concerned, as provided in ORS 540.100 to 540.130.

(2) The term of service of an assistant watermaster may be
terminated at any time by the director or the watermaster. [Amended by
1957 c.546 §3; 1961 c.636 §2; 1985 c.421 §8] (1) When water
users are unable to agree to the distribution or division of water, a
majority of them may request the watermaster of the district in which the
distribution or division is in dispute to make a just division or
distribution of water among the parties entitled to the use of the water.
The request shall be in writing and shall set forth the pertinent facts
of the dispute.

(2) If no provision has been made for payment of the necessary
assistant watermaster or expenses as provided by ORS 540.080, the
assistant shall be paid by the water users among whom the distribution or
division is made.

(3) The expense of any assistant watermaster shall be paid by the
water users in proportion to the area of land for which each water user
is entitled to the use of water, so that each one shall pay the same rate
per acre. [Amended by 1957 c.546 §5; 1961 c.636 §4; 1979 c.18 §2; 1985
c.421 §9]


(1) If one or more of the water users
concerned in a distribution or division under ORS 540.100 pay the wages
and expenses for another user who fails to contribute a just share or
proportion of the wages and expenses, the user paying the wages and
expenses shall be entitled to a lien upon the lands of the delinquent
user entitled to use of water, in the amount of the delinquent user’s
just share or proportion.

(2) The lien shall be made effective by filing written notice of
intent to claim a lien for payment of wages and expenses under subsection
(1) of this section with the county clerk of the county in which the
lands of the delinquent water user are situated.

(3) The notice of intent filed under subsection (2) of this section
shall:

(a) Be verified by the watermaster or assistant watermaster;

(b) Specify the particular items of wages and expenses for which
the lien is claimed;

(c) Describe the lands of each water user upon which the lien is
claimed; and

(d) State the name of the owner or reputed owner of the lands.

(4) The lien shall be filed within 60 days from the completion of
the distribution or division, and suit to foreclose the lien shall be
brought in the circuit court of the county in which the lands or any part
of the lands are situated, within six months from the date of filing the
notice of lien.

(5) The lien shall be foreclosed in the manner provided by law for
the foreclosure of liens against real property. Except as provided in
subsection (6) of this section, the court may award reasonable attorney
fees to the prevailing party in an action to foreclose a lien under this
section.

(6) The court may not award attorney fees to the state or a
political subdivision of the state if the state or political subdivision
prevails in an action to foreclose a lien under this section.

(7) A lien filed under this section shall not be considered an
exclusive remedy. [Amended by 1985 c.421 §10; 1995 c.696 §26] If no provision has been made for payment
of the assistant watermaster or expenses as provided in ORS 540.080,
before proceeding to make any distribution or division the Water
Resources Director may require the water users requesting the
distribution or division to pay in advance the estimated compensation and
expenses involved in the work. The director shall keep a true and full
account of all moneys paid in advance under this section. Upon the
expiration of the period for which the services are required, the
director shall refund to the water users any unexpended balance of the
moneys paid in advance. [Amended by 1957 c.546 §6; 1961 c.636 §5; 1979
c.18 §3; 1985 c.421 §11]Any moneys collected under ORS 540.100 to 540.130 and
540.220 shall be paid to the Water Resources Director and deposited by
the director in a revolving fund to be disbursed for the purpose for
which it was collected. [1961 c.636 §9; 1985 c.421 §12; 1993 c.18 §128]When the waters of any natural stream are not sufficient for the service
of all those desiring the use of the same, those using the water for
domestic purposes shall, subject to such limitations as may be prescribed
by law, have the preference over those claiming such water for any other
purpose, and those using the water for agricultural purposes shall have
the preference over those using the same for manufacturing purposes. The Water
Resources Commission may adopt rules to secure the equal and fair
distribution of water in accordance with the rights of the various users.
The rules shall apply to all water rights that have been established:

(1) By court decree;

(2) Under an order of the commission or the Water Resources
Director in proceedings for the determination of relative rights to the
use of water; or

(3) Through permits to appropriate water or certificates of water
rights issued by the commission. [1985 c.673 §81] To bring about a
more economical use of the available water supply, water users owning
lands to which are attached water rights may rotate in the use of the
supply to which they may be collectively entitled. Whenever two or more
water users notify the watermaster that they desire to use the water by
rotation, and present a written agreement as to the manner of rotation,
the watermaster shall distribute the water in accordance with the written
agreement.(1) Whenever any water users from any ditch or reservoir,
either among themselves or with the owner thereof, are unable to agree
relative to the distribution or division of water through or from the
ditch or reservoir, either the owner or any such water user may apply to
the watermaster of the district in which the ditch or reservoir is
located, by written notice, setting forth such facts, and asking the
watermaster to take charge of the ditch or reservoir for the purpose of
making a just division or distribution of water from it to the parties
entitled to the use thereof.

(2) The watermaster shall then take exclusive charge of the ditch
or reservoir, for the purpose of dividing or distributing the water
therefrom in accordance with the respective and relative rights of the
various users of water from the ditch or reservoir, and shall continue
the work until the necessity therefor shall cease to exist.

(3) The distribution and division of water shall be made according
to the relative and respective rights of the various users from the ditch
or reservoir, as determined by the Water Resources Director, by decree of
the circuit court, or by written contract between all of the users filed
with the watermaster.

(4) The circuit court having jurisdiction may request the
watermaster of the district to take charge of any such ditch or
reservoir, and to enforce any decree respecting such ditch or reservoir
made under the jurisdiction of the court. (1) A watermaster may
appoint an assistant to take charge of the ditch, pipeline or reservoir
involved in a distribution or division of water under ORS 540.210. The
assistant watermaster shall be paid by the water users from the ditch,
pipeline or reservoir for the cost of the distribution. The Water
Resources Commission may require the water users to pay in advance the
estimated compensation and expenses of the assistant involved in the
distribution or division of the water.

(2) In the case of partnership ditches, pipelines or mutual
irrigation corporations organized for the benefit of the members or
stockholders, the expense of the assistant shall be paid by the water
users in proportion to the area of land for which each water user is
entitled to the use of water from the ditch, pipeline or reservoir, so
that each shall pay the same rate per acre.

(3) In the case of ditches, pipelines and reservoirs constructed
and operated for sale or rental of water, the wages and expense of the
assistant shall be paid by the owner of the ditch, pipeline or reservoir,
unless otherwise provided in written contracts with water users using
water from the ditches, pipelines and reservoirs involved in the
distribution or division of water. [Amended by 1957 c.546 §7; 1961 c.636
§6; 1979 c.18 §4; 1985 c.421 §13; 1985 c.673 §83] Whenever a
watermaster is called upon, in accordance with the provisions of ORS
540.210, to distribute the waters of any ditch containing or carrying
waste or seepage water, the holder of the right to the use of such waste
or seepage water shall pay the total cost of the installation of
measuring devices for the measurement of the waste or seepage water and
the total expense of measuring and distributing it.In the case of a partnership ditch, pipeline or
reservoir, or a ditch, pipeline or reservoir owned in common or by a
mutual irrigation company incorporated under the laws of this state, the
wages of the assistant watermaster and expenses incurred by the assistant
in making the distribution provided for by ORS 540.210 to 540.240, and
the necessary and proper expense of installation and maintenance of
measuring devices and headgates to provide for the just distribution of
water among the several users in accordance with their respective and
relative rights, shall be a lien upon the ditch, pipeline or reservoir.
The lien shall attach to each tract of land entitled to the use of water
for irrigation from the ditch, pipeline or reservoir, and upon the crops
produced upon the lands during the irrigation season for which the
distribution is made. If a ditch, pipeline or reservoir is owned or
operated by a person engaged in the business of selling or renting water
from the ditch, pipeline or reservoir, the wages and expense shall be a
lien upon the ditch, pipeline or reservoir. The wages and expense shall
be paid monthly by the water users, the mutual irrigation company, or the
person engaged in the business of selling or renting water from a ditch,
pipeline or reservoir. [Amended by 1985 c.421 §14](1) If not paid, the lien under ORS 540.240 may be made effective
by the assistant filing a notice in writing of intention to claim a lien
for the assistant’s wages and expense with the county clerk of the county
in which the ditch, pipeline or reservoir and lands are situated.

(2) The notice filed under subsection (1) of this section shall:

(a) Be verified and subscribed by the watermaster or assistant;

(b) Specify the particular items of wages and expense for which the
lien is claimed;

(c) Describe the lands of each water user upon which the lien is
claimed; and

(d) Set forth the name of the ditch, pipeline or reservoir and the
name of the owner or reputed owner of the lands and ditch, pipeline or
reservoir against which the lien is claimed.

(3) The lien shall be filed within 60 days from the completion of
distribution. Suit to foreclose the lien shall be brought in the circuit
court of the county in which all or part of the lands, ditch, pipeline or
reservoir, or any part, are situated, within six months from the date of
filing the notice.

(4) The lien shall be foreclosed in the manner provided by law for
the foreclosure of liens against real property. The court may award
reasonable attorney fees to the prevailing party in an action to
foreclose a lien under this section. [Amended by 1981 c.897 §59; 1985
c.421 §15; 1995 c.618 §81](1) One or more of the water users from any
partnership or mutual irrigation company ditch or pipeline may pay the
wages and expense of the assistant watermaster and, as against any other
user failing to contribute the user’s share or proportion of the wages
and expense, shall be entitled to a lien upon the lands of the delinquent
user entitled to the use of water from the ditch, pipeline and reservoir
and upon the share or interest of the owner in the ditch, pipeline or
reservoir, for the user’s just share or proportion.

(2) The lien shall be made effective by filing a similar notice to
that prescribed under ORS 540.250 within 60 days from the date of payment
of the wages and expense, with the county clerk. It may be enforced and
foreclosed, and the same procedure, including the allowance of reasonable
attorney fees, shall be followed in the foreclosure as in the case of a
lien claimed and foreclosed by the watermaster under ORS 540.250. The
lien shall not be considered an exclusive remedy. [Amended by 1985 c.421
§16]Nothing contained in ORS 540.210 to 540.260 shall be applicable
to the distribution of water from the irrigation systems or works of
irrigation districts or district improvement companies unless requested
by the district. Distribution of water from such irrigation systems or
works shall be under the exclusive control of the directors of the
irrigation districts and district improvement companies unless the
watermaster has been requested by the district to distribute the water.
[Amended by 1969 c.303 §1]HYDRAULIC WORKS AND STRUCTURES; MEASURING DEVICES; DITCH RIGHT OF WAY(1) The owner of any ditch or canal shall
maintain to the satisfaction of the Water Resources Commission a
substantial headgate at the point where the water is diverted. It shall
be of such construction that it can be locked and kept closed by the
watermaster.

(2) The owner shall construct and maintain, when required by the
commission, suitable measuring devices at such points along the ditch as
may be necessary to assist the watermaster in determining the amount of
water that is to be diverted into the ditch from the stream, or taken
from it by the various users.

(3) When necessary for the protection of other water users, the
commission may require flumes to be installed along the line of any
ditch. [Amended by 1985 c.673 §84] If any owner of
irrigation works refuses or neglects to construct and put in headgates,
flumes or measuring devices, as required under ORS 540.310, after 10
days’ notice, the watermaster may close the ditch, and it shall not be
opened or any water diverted from the source of supply, under the
penalties prescribed by law for the opening of headgates lawfully closed,
until the requirements of the Water Resources Commission as to such
headgates, flumes or measuring devices have been complied with. [Amended
by 1985 c.673 §85] (1)
Any owner or manager of a reservoir, located across or upon the bed of a
natural stream, shall construct and maintain, when required by the Water
Resources Commission, a measuring device below, and one above, the
reservoir on each stream or source of supply discharging into the
reservoir, to assist the watermaster in determining the amount of water
to which appropriators are entitled and thereafter diverting it for their
use.

(2) If any owner or manager of a reservoir located across the bed
of a natural stream neglects or refuses to put in a measuring device
after 10 days’ notice by the commission, the watermaster may open the
sluicegate or outlet of the reservoir, and it shall not be closed, under
penalties of the law for changing or interfering with headgates, until
the requirements of the commission as to such measuring devices are
complied with. [Amended by 1985 c.673 §86](1) Whenever it may be necessary for the protection of
other water users, the Water Resources Commission shall require every
owner or manager of a reservoir or diversion dam, located across or upon
the bed of a natural stream, to construct and maintain a suitable outlet
in the reservoir or diversion dam which will allow the free passage of
the natural flow of the stream. The commission shall determine what
constitutes a suitable outlet.

(2) If any owner or manager of a reservoir or diversion dam refuses
or neglects to construct or put in such outlet in the reservoir or
diversion dam after 10 days’ notice by the commission, the commission may
close the ditch carrying water from the reservoir or diversion dam and it
shall not be opened or any water diverted from the reservoir or diversion
dam, under the penalties prescribed by law for the opening of headgates
lawfully closed, until the requirements of the commission regarding such
outlet have been complied with. [Amended by 1985 c.673 §87](1) No person, firm or private or
municipal corporation shall construct any dam, dike, or other hydraulic
structure or works, the failure of which the Water Resources Commission
finds would result in damage to life or property, unless the commission
has made an examination of the site and of the plans and specifications
and other features involved in the construction of such works, and has
approved them in writing.

(2) When a person, firm or private or municipal corporation seeks
the written approval of the Water Resources Commission, of the site,
plans, specifications and features for a dam more than 25 feet high at a
site where there is an average annual flow exceeding two cubic feet a
second, that party must demonstrate that the dam includes measures that
make it readily adaptable to power generation in a manner meeting
statutory requirements for the safe passage of fish. These measures shall
include the installation of a pressure conduit, penstock, drain or
similar water diversion system at the time the dam is built.

(3) A person, firm or private or municipal corporation seeking
approval for a dam described in subsection (2) of this section need not
make the showing required by that subsection if that party demonstrates
to the commission’s satisfaction that:

(a) It is not likely the installation of hydroelectric generating
facilities at the proposed site would be feasible anytime during the life
of the proposed dam; or

(b) It would be more feasible to install hydroelectric facilities
after construction of the proposed dam.

(4) The commission’s approval of the site, plans and
specifications, or other features involved in the construction,
maintenance and operation of any hydraulic works whatsoever shall not
relieve the owners of their legal responsibilities.

(5) The commission may make inspections of any hydraulic structure,
the site thereof, and of the plans and specifications, and any other
features involved in the construction, maintenance and operation of the
works. If, as a result of the inspections, the commission considers any
modifications necessary to insure the safety of the works with reference
to possible damage to life or property, the commission shall notify the
legal owners by registered mail or by certified mail with return receipt,
stating why the works are unsafe. The notice shall set forth the
modifications necessary to insure the safety of the works in so far as it
affects possible damage to life or property. The notice also shall set a
hearing at a time and place as will give the owners a reasonable time to
prepare for the hearing. [Amended by 1981 c.210 §1; 1985 c.673 §88; 1991
c.249 §51] After the hearing the Water Resources
Commission may issue a written order to the owners to make such
modifications as the commission considers necessary to insure the safety
of the works with reference to possible damage to life or property and
shall fix the time within which work shall begin in good faith and the
time for completion. The owners, upon receipt of the order, shall make
the modifications ordered within the time limit prescribed or shall
initiate an appeal as above provided. [Amended by 1975 c.581 §26a; 1981
c.210 §2; 1985 c.673 §89] (1) If the
owners fail to make the modifications within the time limits set by the
Water Resources Commission, or to institute their appeal or to comply
with the decree of the appellate court in case an appeal is taken, the
commission shall issue an order in writing to the owners directing that
the gates be kept open, or an opening made in the dam if necessary, or
that the structure shall not be used for the storage, restraint or
conveyance of water until the modifications have been made.

(2) No owner shall refuse to comply with the orders of the
commission or the decree of an appellate court.

(3) In case of noncompliance, the commission shall direct the
watermaster or other authorized assistant to carry out the orders, or the
commission may file a copy of the commission’s order with the Attorney
General or with the district attorney of the county within which the
works are located. The Attorney General or district attorney shall bring
proceedings in the name of the state, in the circuit court of the county
within which the works or any part thereof are situated, to abate the
offending works. The court, after a full hearing on the matter, may
declare the works a nuisance and order their removal, or order any
repairs or alterations, and may enforce its orders in the manner provided
by law. [Amended by 1985 c.673 §90] The Water Resources
Commission may accept the reports of consulting engineers, geologists or
other specialists whom the owners of the works in question may have
employed. But if, for any reason, the commission considers the reports
insufficient, the commission may employ consulting engineers, geologists
or other specialists outside the Water Resources Department to make
special examinations and inspections and to prepare reports for the
commission’s guidance. The cost of such special examinations, inspections
and reports shall be paid by the commission from any funds at the
commission’s disposal, or it may be divided by mutual agreement between
the state and the owners. [Amended by 1985 c.673 §91]Should any person residing on or owning land in the
neighborhood of any dam, dike or other hydraulic structure after
completion, or in course of construction, apply to the Water Resources
Commission in writing desiring an inspection of the works, the commission
may order an inspection, or the commission may make such order on the
commission’s own motion. Before doing so the commission may require the
applicant for inspection to deposit a sum of money sufficient to pay the
expenses of an inspection. If the application appears to the commission
not to have been justified the commission may cause the whole or part of
the expenses to be paid out of the deposit. If the application appears to
have been justified, the commission may require the owner of the works to
pay the whole or any part of the expenses of the inspection, and it shall
constitute a valid lien against the works, which may be enforced in the
same manner as provided for the enforcement of mechanic’s liens. [Amended
by 1985 c.673 §92]ORS 540.350 to 540.390
shall not apply to:

(1) Any dam less than 10 feet in height or impounding less than
3,000,000 gallons of water.

(2) Splash dams used for driving logs.

(3) Farm dikes constructed by individuals on their own property.

(4) Ditches carrying less than five cubic feet of water per second.Whenever the owner, manager or lessee of a
reservoir constructed under the provisions of the Water Rights Act, as
defined in ORS 537.010, desires to use the bed of a stream, or other
watercourse, to carry stored or impounded water from the reservoir to the
consumer of the water, the owner, manager or lessee shall, in writing,
notify the watermaster of the district in which the stored or impounded
water from the reservoir is to be used, giving the date when it is
proposed to discharge water from the reservoir, its volume, and the names
of all persons and ditches entitled to its use. The watermaster shall
then close, or so adjust the headgates of all ditches from the stream or
watercourse, not entitled to the use of such stored water, as will enable
those having the right to secure the volume to which they are entitled.
The watermaster shall keep a true and just account of the time spent in
the discharge of the watermaster’s duties as defined in this section, and
the Water Resources Commission shall present a bill of one-half the
expense so incurred to the reservoir owner, manager or lessee. If the
owner, manager or lessee neglects for 30 days, after presentation of the
bill of costs, to pay it, the costs shall be made a charge upon the
reservoir and the state shall have a preference lien therefor. Upon
notice from the commission, the Attorney General shall foreclose the lien
and collect the amount due, as provided in this section, in the same
manner as other liens on real property are foreclosed. [Amended by 1955
c.39 §1; 1961 c.636 §7; 1985 c.673 §93]In all cases where
ditches are owned by two or more persons and one or more of such persons
fails or neglects to do a proportionate share of the work necessary for
the proper maintenance and operation of the ditch, or to construct
suitable headgates or measuring devices at the points where water is
diverted from the main ditch, the owner desiring the performance of such
work may, after having given 10 days’ written notice to the other owner
who has failed to perform a proportionate share of the work, perform such
share, and recover therefor from the person in default the reasonable
expense of the work.(1) Upon the failure of any
coowner to pay a proportionate share of the expense, as mentioned in ORS
540.420, within 30 days after receiving a statement of the same as
performed by the coowner, the latter may secure payment of the claim by
filing an itemized and sworn statement thereof, setting forth the date of
performance and the nature of the labor performed, with the county clerk
of the county wherein the ditch is situated. When so filed it shall
constitute a valid lien against the interest of the person in default,
which lien may be established and enforced in the same manner as provided
by law for the enforcement of mechanic’s liens.

(2) In lieu of proceeding to enforce the lien, the person
performing the labor may file an itemized and sworn statement with the
watermaster of the district within which the ditch is located, setting
forth the date of performance, the nature of the labor performed, the
total expense incurred by the person and the proportion of the expense
each owner should pay, together with a written request that the
watermaster take charge of the distribution of the water from the ditch
to the parties entitled to the use thereof. Thereupon the watermaster may
proceed to distribute the water in accordance with established rights.
However, if an owner or user has not paid the proportion of expenses of
the owner or user incurred for the proper maintenance and operation of
the ditch, the watermaster may serve such party with written notice,
personally, by registered mail or by certified mail with return receipt,
setting forth the proportion of expenses incurred for which the owner or
user is obligated to pay. If the party so served refuses or neglects to
pay that part of the expense within 10 days after the serving or mailing
of the notice, the watermaster may refuse to deliver water to be used
upon the lands of such person until after the expense has been paid.
[Amended by 1991 c.249 §52](1) In addition to any other
authority of the Water Resources Commission to order installation of a
measuring device, if the commission finds accurate water use information
necessary because of serious water management problems created by ground
water decline, unresolved user disputes or frequent water shortages, the
commission by rule may require a water right owner using any surface or
ground water source within the state to install a totalizing measuring
device and to submit annually a water use report.

(2) Before the commission implements any requirements under
subsection (1) of this section the commission shall:

(a) Cause a hearing to be conducted in the affected area to
determine whether a serious management problem exists; and

(b) Allow any affected person an opportunity to present alternative
methods or devices that could be used to provide the information
necessary to manage the water resource or to alleviate the water
management problem.

(3) The watermaster may prohibit the diversion or use of water by
anyone who has failed to comply with a commission rule or order requiring
installation of measuring devices or submission of a water use report.
[1987 c.649 §7] All persons
owning or controlling any water ditches shall keep their right of way
along the ditches clean and free from wild oats, mustard, thistles, or
any weeds or obnoxious grasses whatsoever.CHANGES IN USE OF WATER; TRANSFER OF WATER RIGHTS; EXCHANGEAs used in ORS 540.505 to 540.585:

(1) “District” means an irrigation district formed under ORS
chapter 545, a drainage district formed under ORS chapter 547, a water
improvement district formed under ORS chapter 552, a water control
district formed under ORS chapter 553 or a corporation organized under
ORS chapter 554.

(2) “Primary water right” means the water right designated by the
Water Resources Commission as the principal water supply for the
authorized use, or if no designation has been made, the water right
designated by the applicant as the principal water supply for the
authorized use.

(3) “Supplemental water right or permit” means an additional
appropriation of water to make up a deficiency in supply from an existing
water right. A supplemental water right or permit is used in conjunction
with a primary water right.

(4) “Water use subject to transfer” means a water use established
by:

(a) An adjudication under ORS chapter 539 as evidenced by a court
decree;

(b) A water right certificate;

(c) A water use permit for which a request for issuance of a water
right certificate under ORS 537.250 has been received and approved by the
Water Resources Commission under ORS 537.250; or

(d) A transfer application for which an order approving the change
has been issued under ORS 540.530 and for which proper proof of
completion of the change has been filed with the Water Resources
Commission. [1991 c.957 §2; 1995 c.274 §1; 1997 c.42 §2](1) Except as provided in subsections (2) to (8) of this
section, all 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 water for any purpose may be made without compliance
with the provisions of ORS 540.520 and 540.530. However, the holder of
any water use subject to transfer may, upon compliance with the
provisions of ORS 540.520 and 540.530, change the use and place of use,
the point of diversion or the use theretofore made of the water in all
cases without losing priority of the right theretofore established. A
district may change the place of use in the manner provided in ORS
540.572 to 540.580 in lieu of the method provided in ORS 540.520 and
540.530. When an application for change of the use or place of use for a
primary water right is submitted in accordance with this section, the
applicant also shall indicate whether the land described in the
application has an appurtenant supplemental water right or permit. If the
applicant also intends to transfer the supplemental water right or
permit, the applicant also shall include the information required under
ORS 540.520 (2) for the supplemental water right or permit. If the
applicant does not include the supplemental water right or permit in the
transfer application, the Water Resources Department shall notify the
applicant that the supplemental water right or permit will be canceled
before the department issues the order approving the transfer of the
primary water right, unless within 30 days the applicant modifies the
application to include the supplemental water right or permit or
withdraws the application. The department may approve the transfer of the
supplemental water right or permit in accordance with the provisions of
ORS 540.520 and 540.530. The department shall not approve the transfer of
a supplemental water right or permit if the transfer would result in
enlargement of the original water right or injury to an existing water
right. If the department approves the transfer of the primary water right
but does not approve the transfer of the supplemental water right or
permit, the department shall notify the applicant of the department’s
intent to cancel that portion of the supplemental water right or permit
described in the transfer application before the department issues the
primary water right transfer order, unless the applicant withdraws the
transfer application within 90 days.

(2) Subject to the limitations in ORS 537.490, any right to the use
of conserved water allocated by the Water Resources Commission under ORS
537.470 may be severed from the land and transferred or sold after notice
to the commission as required under ORS 537.490.

(3)(a) Any water used under a permit or certificate issued to a
municipality, or under rights conferred by ORS 538.410 to 538.450, or
under the registration system set forth in ORS 537.132, may be applied to
beneficial use on lands to which the right is not appurtenant if:

(A) The water is applied to lands which are acquired by annexation
or through merger, consolidation or formation of a water authority, so
long as the rate and use of water allowed in the original certificate is
not exceeded;

(B) The use continues to be for municipal purposes and would not
interfere with or impair prior vested water rights; or

(C) The use is authorized under a permit granted under ORS 468B.050
or 468B.053 and for which a reclaimed water registration form has been
filed under ORS 537.132.

(b) As used in this subsection, “municipality” means a city, a port
formed under ORS 777.005 to 777.725, 777.915 to 777.953 and 778.010, a
domestic water supply district formed under ORS chapter 264, a water
supplier as defined in ORS 448.115 or a water authority formed under ORS
chapter 450.

(4) Pursuant to the provisions of ORS 540.570 or 540.585, any water
used under a permit or certificate issued to a district may be applied to
beneficial use on lands within the district to which the right is not
appurtenant.

(5) The relocation of a point of diversion as necessary to follow
the movements of a naturally changing stream channel does not constitute
a change in point of diversion for purposes of ORS 540.520 if:

(a) The diversion point stays within 500 feet of the point of
diversion on record with the Water Resources Department;

(b) The change does not move the diversion point upstream or
downstream beyond the diversion point of another appropriator; and

(c) The diversion is provided with a proper fish screen, if
requested by the State Department of Fish and Wildlife.

(6) In the event that government action results in or creates a
reasonable expectation of a change in the surface level of a surface
water source that impairs or threatens to impair access to a point of
diversion authorized by a water right permit, certificate or decree, the
owner of the water right may change the point of diversion or add an
additional point of diversion in accordance with the provisions of this
section in lieu of complying with the requirements of ORS 540.520 and
540.530. Before changing the point of diversion, the water right owner
shall provide written notice of the proposed change to the Water
Resources Department. Within 15 days after receipt of such notice, the
department shall provide notice by publication in the department’s public
notice of water right applications. Within 60 days after the department
receives notice from the owner, the Water Resources Director, by order,
shall approve the change unless the director finds the changes will
result in injury to other existing water rights. All other terms and
conditions of the water right shall remain in effect.

(7) The sale or lease of the right to the use of conserved water
under ORS 537.490 does not constitute a change of use or a change in the
place of use of water for purposes of ORS 540.520.

(8) Ground water applied to an exempt use as set forth in ORS
537.141 or 537.545 may be subsequently applied to land for irrigation
purposes under ORS 537.141 (1)(i) or 537.545 (1)(g) without application
for a change in use or place of use under this section. [Amended by 1987
c.264 §11; 1989 c.7 §1; 1989 c.707 §3; 1991 c.370 §5; 1991 c.957 §7; 1993
c.577 §36; 1993 c.641 §9; 1995 c.168 §1; 1995 c.274 §2; 1995 c.359 §2;
1997 c.244 §4; 1997 c.286 §10; 1999 c.335 §2; 2003 c.705 §8](1)
Except when the application is made under ORS 541.327 or when an
application for a temporary transfer is made under ORS 540.523, whenever
the holder of a water use subject to transfer for irrigation, domestic
use, manufacturing purposes, or other use, for any reason desires to
change the place of use, the point of diversion, or the use made of the
water, an application to make such change, as the case may be, shall be
filed with the Water Resources Department.

(2) The application required under subsection (1) of this section
shall include:

(a) The name of the owner;

(b) The previous use of the water;

(c) A description of the premises upon which the water is used;

(d) A description of the premises upon which it is proposed to use
the water;

(e) The use which is proposed to be made of the water;

(f) The reasons for making the proposed change; and

(g) Evidence that the water has been used over the past five years
according to the terms and conditions of the owner’s water right
certificate or that the water right is not subject to forfeiture under
ORS 540.610.

(3) If the application required under subsection (1) of this
section is necessary to allow a change in a water right pursuant to ORS
537.348, is necessary to complete a project funded under ORS 541.375, or
is approved by the State Department of Fish and Wildlife as a change that
will result in a net benefit to fish and wildlife habitat, the
department, at the discretion of the Water Resources Director, may waive
or assist the applicant in satisfying the requirements of subsection
(2)(c) and (d) of this section. The assistance provided by the department
may include, but need not be limited to, development of an application
map.

(4) If the application is to change the point of diversion, the
transfer shall include a condition that the holder of the water right
provide a proper fish screen at the new point of diversion, if requested
by the State Department of Fish and Wildlife.

(5) Upon the filing of the application the department shall give
notice by publication in a newspaper having general circulation in the
area in which the water rights are located, for a period of at least
three weeks and not less than one publication each week. The notice shall
include the date on which the last notice by publication will occur. The
cost of the publication shall be paid by the applicant in advance to the
department. In applications for only a change in place of use or for a
change in the point of diversion of less than one-fourth mile, and where
there are no intervening diversions between the old diversion of the
applicant and the proposed new diversion, no newspaper notice need be
published. The department shall include notice of such applications in
the weekly notice published by the department.

(6) Within 30 days after the last publication of a newspaper notice
of the proposed transfer or the mailing of the department’s weekly
notice, whichever is later, any person may file, jointly or severally,
with the department, a protest against approval of the application.

(7) Whenever a timely protest is filed, or in the opinion of the
Water Resources Director a hearing is necessary to determine whether the
proposed changes as described by the application would result in injury
to existing water rights, the department shall hold a hearing on the
matter. Notice and conduct of the hearing shall be under the provisions
of ORS chapter 183, pertaining to contested cases, and shall be held in
the area where the rights are located unless all parties and persons who
filed a protest under this subsection stipulate otherwise.

(8) An application for a change of use under this section is not
required if the beneficial use authorized by the water use subject to
transfer is irrigation and the owner of the water right uses the water
for incidental agricultural, stock watering and other uses related to
irrigation use, so long as there is no increase in the rate, duty, total
acreage benefited or season of use.

(9) A water right transfer under subsection (1) of this section is
not required for a general industrial use that was not included in a
water right certificate issued for a specific industrial use if:

(a) The quantity of water used for the general industrial use is
not greater than the rate allowed in the original water right and not
greater than the quantity of water diverted to satisfy the authorized
specific use under the original water right;

(b) The location where the water is to be used for general
industrial use was owned by the holder of the original water right at the
time the water right permit was issued; and

(c) The person who makes the change in water use provides the
following information to the Water Resources Department:

(A) The name and mailing address of the person using water under
the water right;

(B) The water right certificate number;

(C) A description of the location of the industrial facility owned
by the holder of the original water right at the time the water right
permit was issued; and

(D) A description of the general industrial use to be made of the
water after the change. [Amended by 1983 c.807 §1; 1985 c.673 §94; 1987
c.339 §3; 1989 c.1000 §7; 1995 c.274 §7; 1995 c.490 §2; 1997 c.42 §3;
1999 c.555 §4; 1999 c.664 §2](1) In
accordance with the provisions of this section, any person who holds a
water use subject to transfer may request that the Water Resources
Department approve the temporary transfer of place of use and, if
necessary to convey water to the new temporary place of use, temporarily
change the point of diversion or point of appropriation for a period not
to exceed five years. An application for a temporary transfer shall:

(a) Be submitted in writing to the Water Resources Department;

(b) Be accompanied by the appropriate fee for a change in the place
of use as set forth in ORS 536.050;

(c) Include the information required under ORS 540.520 (2); and

(d) Include any other information the Water Resources Commission by
rule may require.

(2) Notwithstanding the notice and waiting requirements under ORS
540.520, the department shall approve by order a request for a temporary
transfer under this section if the department determines that the
temporary transfer will not injure any existing water right.

(3) All uses of water for which a temporary transfer is allowed
under this section shall revert automatically to the terms and conditions
of the water use subject to transfer upon expiration of the temporary
transfer period.

(4) The time during which water is used under an approved temporary
transfer order does not apply toward a finding of forfeiture under ORS
540.610.

(5) The department may revoke a prior approval of the temporary
transfer at any time if the department finds that the transfer is causing
injury to any existing water right.

(6) Any map that may be required under subsection (1) of this
section need not be prepared by a certified water right examiner.

(7) The lands from which the water right is removed during the
period of a temporary transfer shall receive no water under the
transferred water right.

(8) When an application for a temporary change of the place of use
for a primary water right is submitted in accordance with this section,
the applicant also shall indicate whether the land described in the
application has an appurtenant supplemental water right or permit. If the
applicant also intends to temporarily transfer the supplemental water
right or permit, the applicant also shall include the information
required under ORS 540.520 (2) for the supplemental water right or
permit. If the applicant does not include the supplemental water right or
permit in the temporary transfer application, the Water Resources
Department shall notify the applicant that the supplemental water right
or permit will be canceled before the department issues the order
approving the temporary transfer of the primary water right, unless
within 30 days the applicant modifies the application to include the
supplemental water right or permit or withdraws the application. The
department may approve the temporary transfer of the supplemental water
right or permit in accordance with the provisions of this section. The
department may not approve the temporary transfer of a supplemental water
right or permit if the temporary transfer would result in enlargement of
the original water right or injury to an existing water right. If the
department approves the temporary transfer of the primary water right but
does not approve the temporary transfer of the supplemental water right
or permit, the department shall notify the applicant of the department’s
intent not to allow the temporary transfer of the supplemental water
right or permit before the department issues the order for the temporary
transfer of the primary water right. If the department does not allow the
temporary transfer of the supplemental right, the supplemental right
shall remain appurtenant to the land described in the application, but
may not be exercised until the primary right reverts to the original
water use. If the primary water right does not revert soon enough to
allow use of water under the supplemental right within five years, the
supplemental right shall become subject to cancellation for nonuse under
ORS 540.610.

(9) In issuing an order under subsection (2) of this section, the
department shall include any condition necessary to protect other water
rights. [1995 c.274 §6; 1997 c.42 §4; 1997 c.587 §12; 2001 c.788 §§3,9](1) Notwithstanding ORS 540.510 or 540.670, upon approval of an
application submitted to the Water Resources Department, the holder of
both a primary water right originating from a surface water source and a
supplemental water right permit or certificate originating from a ground
water source may substitute the use of the supplemental water right for
the primary water right. A substitution may not be made under this
subsection if the use of the supplemental water right results in an
enlargement or expansion of the primary water right. This subsection does
not authorize a change in place of use, type of use, point of diversion
or point of appropriation.

(2) An application required under subsection (1) of this section
shall be submitted on forms provided by the department. The department
may request additional information if necessary to assist with the injury
evaluation. Each application shall be submitted with the fee described in
ORS 536.050 (1)(s).

(3) Upon receiving an application under subsection (1) of this
section, the department shall provide notice, accept protests and conduct
hearings on protests in the manner described in ORS 540.520 (5), (6) and
(7).

(4) The Water Resources Director shall issue an order approving or
denying the substitution. If the proposed substitution will result in
injury to other water rights, the director shall prohibit or condition
the use to avoid or mitigate the injury. The director shall issue an
order approving or denying the substitution within 90 days after the
department receives an application under subsection (1) of this section.

(5) For the purpose of ORS 540.610, a substituted primary surface
water right shall be treated as a supplemental water right, and a
substituted supplemental ground water right shall be treated as a primary
water right.

(6) A completed and approved substitution of a supplemental ground
water right for a primary surface water right under this section may be
terminated upon a request by the water right holder or by an order of the
director if the director determines that the use of the ground water as
the primary water right causes injury to other water rights. Upon
termination, the substituted primary and supplemental water rights shall
revert back to their original status. [1999 c.555 §2]Note: 540.524 was added to and made a part of 540.505 to 540.585 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.(1) Upon receipt of an
application for a change in the point of diversion under ORS 540.520, the
Water Resources Department shall consult with the State Department of
Fish and Wildlife to determine whether the diversion is:

(a) Equipped with an appropriate fish screening or by-pass device;
or

(b) Included on the priority list of screening projects established
pursuant to section 8, chapter 933, Oregon Laws 1989.

(2) If the original point of diversion is included in the priority
list of screening projects established pursuant to section 8, chapter
933, Oregon Laws 1989, the department, after consulting with the State
Department of Fish and Wildlife, may require the installation of an
appropriate fish screening or by-pass device at the new point of
diversion.

(3) When consulting with the State Department of Fish and Wildlife,
the department shall determine whether the installation of an appropriate
fish screening or by-pass device is necessary to prevent fish from
leaving the body of water and entering the diversion.

(4) Any individual who is required to install a fish screening or
by-pass device under this section at a point of diversion for a diversion
of under 30 cubic feet per second may participate in the State Department
of Fish and Wildlife’s cost sharing program for the installation of
screening or by-pass devices. [1995 c.274 §6a](1)(a) If,
after hearing or examination, the Water Resources Commission finds that a
proposed change can be effected without injury to existing water rights,
the commission shall make an order approving the transfer and fixing a
time limit within which the approved changes may be completed.

(b) If, after hearing or examination, the commission finds that a
proposed change in point of diversion cannot be effected without injury
to existing water rights, upon receipt by the commission of an affidavit
consenting to the change from every holder of an affected water right,
the commission may make an order approving the transfer and fixing a time
limit within which the approved changes may be completed.

(c) If, after hearing or examination, the commission finds that a
proposed change in point of diversion cannot be effected without injury
to an in-stream water right granted pursuant to a request under ORS
537.336 or an in-stream water right created pursuant to ORS 537.346 (1),
the Water Resources Department may consent to the change only upon a
recommendation that the department do so from the agency that requested
the in-stream water right. The agency that requested the in-stream water
right may recommend that the department consent to the change only if the
change will result in a net benefit to the resource consistent with the
purposes of the in-stream water right.

(d)(A) If an in-stream water right would be injured by a proposed
change under paragraph (c) of this subsection, the department shall
obtain a recommendation from the agency that requested the in-stream
water right. If the recommendation of the agency is to consent to the
change, the department shall provide public notice of the recommendation
and, consistent with state laws regarding cooperation with Indian tribes
in the development and implementation of state agency programs that
affect tribes or rights and privileges of tribes, the department shall
consult with affected Indian tribes.

(B) The recommendation of an agency under this paragraph must be in
writing and, if the recommendation is to consent to the change, must
describe the extent of the injury to the in-stream water right, the
effect on the resource and the net benefit that will occur as a result of
the proposed change. The recommendation may include any proposed
conditions that are necessary to ensure that the proposed change will be
consistent with the recommendation.

(C) In determining whether a net benefit will result from the
proposed change, the recommendation of an agency must include an analysis
of the cumulative impact of any previous changes under paragraphs (b) and
(c) of this subsection that allow injury to the affected in-stream water
right.

(D) A person may comment on the recommendation of an agency. The
comment must be in writing and must be received by the department within
30 days after publication of notice under this paragraph. If a written
comment received by the department requests a meeting on the proposed
change, the department and the agency that requested the in-stream water
right shall hold a joint public meeting within 90 days of the receipt of
the comment requesting a meeting.

(e)(A) If, after review of public comments and consultation with
the agency that requested the in-stream water right, the agency that
requested the in-stream water right does not withdraw its recommendation
to consent to the change, the department may approve the change
consistent with the requirements of paragraphs (b) and (c) of this
subsection.

(B) An order approving a change under paragraph (c) of this
subsection shall include written findings on the extent of the injury to
the in-stream water right, the effect on the resource and the net benefit
that will occur as a result of the change. The order shall include any
conditions necessary to ensure that the change will be consistent with
the findings and ensure that the change will result in a continued net
benefit to the resource consistent with the purposes of the in-stream
water right.

(C) In determining whether a net benefit will result from the
change, the order of the department must include an analysis of the
cumulative impact of any previous changes approved under paragraphs (b)
and (c) of this subsection that allow injury to the affected in-stream
water right.

(f) The time allowed by the commission for completion of an
authorized change under paragraphs (a) to (e) of this subsection may not
be used when computing a five-year period of nonuse under the provisions
of ORS 540.610 (1).

(2)(a) If a certificate covering the water right has been
previously issued, the commission shall cancel the previous certificate
or, if for an irrigation district, the commission may modify the previous
certificate and, when proper proof of completion of the authorized
changes has been filed with the commission, issue a new certificate or,
if for an irrigation district, modify the previous certificate,
preserving the previously established priority of rights and covering the
authorized changes. If only a portion of the water right covered by the
previous certificate is affected by the changes, a separate new
certificate may be issued to cover the unaffected portion of the water
right.

(b) If the change authorized under subsection (1) of this section
is necessary to allow a change in a water right pursuant to ORS 537.348,
is necessary to complete a project funded under ORS 541.375, or is
approved by the State Department of Fish and Wildlife as a change that
will result in a net benefit to fish and wildlife habitat, the Water
Resources Department, at the discretion of the Water Resources Director,
may waive or assist the applicant in satisfying any of the proof of
completion requirements of paragraph (a) of this subsection. The
assistance provided by the department may include, but need not be
limited to, development of a final proof survey map and claim of
beneficial use.

(3) Upon receiving notification of the merger or consolidation of
municipal water supply entities, or the formation of a water authority
under ORS chapter 450, the commission shall cancel the previous
certificates of the entities replaced by the merger, consolidation or
formation and issue a new certificate to the newly formed municipality or
water authority. The new certificate shall preserve the previously
established priority of rights of the replaced entities and shall allow
beneficial use of the water on any lands acquired in the merger,
consolidation or formation. [Amended by 1975 c.581 §26b; 1983 c.807 §2;
1985 c.673 §95; 1989 c.707 §4; 1993 c.577 §37; 1999 c.664 §3; 1999 c.804
§1; 2001 c.299 §§1,2; 2005 c.614 §4](1) Notwithstanding ORS 537.515 and 537.535, an
owner of a surface water use subject to transfer may apply for a transfer
of the point of diversion to allow the appropriation of ground water if
the proposed transfer complies with the requirements of subsection (2) or
(3) of this section and with the requirements for a transfer in point of
diversion specified in ORS 540.520 and 540.530.

(2) The Water Resources Department may allow a transfer of the
point of diversion under subsection (1) of this section if:

(a)(A) The new point of diversion appropriates ground water from an
aquifer that is hydraulically connected to the authorized surface water
source;

(B) The proposed change in point of diversion will not result in
enlargement of the original water right or in injury to other water right
holders;

(C) The use of the new point of diversion will affect the surface
water source similarly to the authorized point of diversion specified in
the water use subject to transfer; and

(D) The withdrawal of ground water at the new point of diversion is
located within 500 feet of the surface water source and, when the surface
water source is a stream, is also located within 1,000 feet upstream or
downstream of the original point of diversion as specified in the water
use subject to transfer; or

(b) The new point of diversion is not located within the distance
requirements set forth in paragraph (a)(D) of this subsection, the holder
of the water use subject to transfer submits to the department evidence
prepared by a licensed geologist that demonstrates that the use of the
ground water at the new point of diversion will meet the criteria set
forth in paragraph (a)(A) to (C) of this subsection.

(3) Notwithstanding subsection (2) of this section, the department
shall allow a transfer of the point of diversion under subsection (1) of
this section in the Deschutes basin ground water study area if:

(a) The new point of diversion appropriates ground water from an
aquifer that is hydraulically connected to the authorized surface water
source;

(b) The proposed change in the point of diversion will not result
in enlargement of the original water right or in injury to other water
right holders; and

(c) The use of the new point of diversion will affect the surface
water source hydraulically connected to the authorized point of diversion
specified in the water use subject to transfer. The department may not
require that the use of the new point of diversion affect the surface
water source similarly to the authorized point of diversion specified in
the water use subject to transfer under this subsection.

(4) All applicable restrictions that existed at the original point
of diversion shall apply at the new point of diversion allowed under this
section.

(5) The new point of diversion shall retain the original date of
priority. However, if within five years after approving the transfer, the
department finds that the transfer results in substantial interference
with existing ground water rights that would not have occurred in the
absence of the transfer, the new point of diversion shall be subordinate
to any existing right injured by the transferred water right or permit.

(6)(a) The department shall approve an application to return to the
last authorized surface water point of diversion if a holder of a water
use subject to transfer submits an application to the department within
five years after the department approves a transfer under this section.

(b) The department shall approve an application to return to the
last authorized surface water point of diversion after five years of the
date the department allows a transfer under subsection (3) of this
section if a holder of a water use subject to transfer submits an
application to the department, and the return will not result in injury
to an existing water right.

(7) For transfers allowed under this section, the department shall
require mitigation measures to prevent depletion from any surface water
source not specified in the permit or certificated or decreed water
right, except that the department may not require mitigation measures if
the transfer complies with subsection (3) of this section.

(8) The Water Resources Commission shall adopt rules that prescribe:

(a) The process for reviewing applications submitted under this
section;

(b) The persons to whom the department shall provide notice of the
receipt of an application submitted under this section; and

(c) The persons who may participate in the process of reviewing
applications submitted under this section.

(9) As used in this section:

(a) “Deschutes basin ground water study area” means the part of the
Deschutes River Basin that is designated by the Water Resources
Commission by rule.

(b) “Similarly” means that the use of ground water at the new point
of diversion affects the surface water source specified in the permit or
certificated or decreed water right and would result in stream depletion
of at least 50 percent of the rate of appropriation within 10 days of
continuous pumping. [1995 c.274 §4; 1999 c.555 §5; 2003 c.705 §1;
subsection (9) of 2003 Edition enacted as 2003 c.705 §3; 2005 c.614 §2](1) Notwithstanding ORS 537.797, 540.510,
540.520 and 540.530, an individual may request a change in the point of
diversion to reflect the historical use of water at a point of diversion
other than that described in the water right certificate or decree if the
individual complies with the provisions of subsection (2) of this section.

(2) An individual may request a change in the point of diversion
under subsection (1) of this section if:

(a) The actual, current point of diversion has been in use for more
than 10 years;

(b) The Water Resources Department has received no claim of injury
as a result of the use of water from the current point of diversion prior
to the request for the change of diversion;

(c) The individual requesting the change provides written notice to
any other affected water right holder, as identified by the Water
Resources Department, and the Water Resources Department provides notice
of the request in the department’s public notice of water right
applications; and

(d) The individual provides a map of sufficient detail and clarity
to identify the true point of diversion including but not limited to:

(A) The 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; and

(B) The locations of the point of diversion as specified in the
water right certificate or decree and the actual, current point of
diversion.

(3) Upon receipt of a request for a change in the point of
diversion under subsection (1) of this section, the Water Resources
Department shall consult with the State Department of Fish and Wildlife
to determine whether the historical point of diversion is:

(a) Equipped with an appropriate fish screening or by-pass device;
or

(b) Included on the priority list of screening projects established
pursuant to section 8, chapter 933, Oregon Laws 1989.

(4) If the historical point of diversion is included in the
priority list of screening projects established pursuant to section 8,
chapter 933, Oregon Laws 1989, the Water Resources Department, after
consulting with the State Department of Fish and Wildlife, may require
the installation of an appropriate fish screening or by-pass device at
the point of diversion.

(5) When consulting with the State Department of Fish and Wildlife,
the Water Resources Department shall determine whether the installation
of an appropriate fish screening or by-pass device is necessary to
prevent fish from leaving the body of water and entering the diversion.

(6) Any individual who is required to install a fish screening or
by-pass device under this section at a point of diversion for a diversion
of under 30 cubic feet per second may participate in the State Department
of Fish and Wildlife’s cost-sharing program for the installation of
screening or by-pass devices. [1995 c.359 §3]Note: 540.532 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 540 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1) Any person
holding a water right established by court decree, a water right
certificate or a water right for which proof of beneficial use has been
approved by the Water Resources Director or Water Resources Commission or
any person applying for or holding a permit issued under ORS 537.211 for
use of water for an in-stream purpose may apply to the Water Resources
Commission for permission to use stored, surface or ground water from
another source in exchange for supplying replacement water in an equal
amount to satisfy prior appropriations from the other source, if:

(a) The source of the person’s appropriation is at times
insufficient to fully satisfy the appropriation;

(b) Better conservation and use of the waters of the state can be
accomplished; or

(c) The person can develop water for appropriation under the permit
for use of water for an in-stream purpose, but cannot economically convey
the water to its point of use.

(2) A person may apply for an exchange under this section among any
combination of surface, storage or ground water rights.

(3) An application for exchange shall be accompanied by:

(a) Any map, plan or other information required by the commission;
and

(b) The fee required under ORS 536.050. [1987 c.815 §2] After receipt of an
exchange application, the Water Resources Commission shall give notice of
the application by publishing notice of the application in a newspaper
having general circulation in the area in which the water uses are
located at least once each week for at least three successive weeks. The
cost of providing the notice by publication shall be paid in advance by
the applicant to the commission. [1987 c.815 §3] (1)
The Water Resources Commission shall issue an order allowing an exchange
unless the commission finds any of the following:

(a) The proposed exchange would adversely affect other
appropriators.

(b) The proposed exchanges would be too difficult to administer.

(c) The proposed exchange would adversely affect the public
interest as determined under ORS 537.170 (8).

(d) A sufficient quantity of water would not be available to
replace the water to be used under the exchange. In determining whether
replacement water will be equal to the water exchanged, the commission
may consider relative consumptive uses and transmission losses.

(2) The commission may include any condition the commission
considers necessary in an order allowing an exchange.

(3) The commission shall issue an order terminating the exchange:

(a) If water is not applied under the exchange within the time
fixed by the commission in the order approving the exchange;

(b) Upon written request signed by all parties to the exchange;

(c) Upon finding that any other termination condition specified in
the original order has occurred; or

(d) Upon attainment of a termination date specified in the original
exchange order.

(4) For purposes of subsection (3) of this section, the time fixed
for implementing the exchange shall include any extension granted by the
commission for good cause shown. [1987 c.815 §4; 1995 c.416 §38] An
exchange of water under ORS 540.533 to 540.537 is subject to the
requirements of beneficial use under ORS 540.610. [1987 c.815 §5] (1) Any water
made available to a person under an exchange shall be delivered in
accordance with the order allowing the exchange. The use of water under
an exchange is without prejudice to, but shall be considered use and
enjoyment of, the permitted, certificated or decreed right held by that
water user at the time the exchange was approved.

(2) The use of water under a permit may be perfected by application
of exchange water to the use specified in that permit. Upon receipt of
proof satisfactory to the Water Resources Commission that water has been
used under the exchange for the purposes of and within the limitations of
the permit, the commission shall issue a certificate of the same
character as that described in ORS 539.140. The certificate shall
incorporate the source, conditions and priority of the permit existing at
the time the exchange was approved.

(3) If regulation by the watermaster is required, after
implementation of the exchange, water shall be delivered in accordance
with the terms and conditions of the order allowing the exchange. [1987
c.815 §6] If
water for an in-stream use is provided by exchange, the watermaster shall
regulate headgates and other diversion points as necessary to assure that
the exchange water is not diverted from the channel at any point above
the most downstream point of use specified in the permit or certificate
that establishes the right to use of water for an in-stream purpose.
[1987 c.815 §7]Whenever the title to lands
within a district has been or is acquired by the county within which the
land is located, by foreclosure of tax liens or otherwise, the county
court or board of county commissioners, upon request of the district, may
make application under the provisions of ORS 540.505 to 540.585 to have
the water rights appurtenant to such lands transferred to other lands
within the district which are owned by the county or privately owned.
[Formerly 540.540; 1991 c.957 §8]All attempted transfers or sales, prior to March 6,
1931, to an irrigation district, of water rights which theretofore had
been appurtenant to lands located in the district and which lands at the
time of the attempted transfer or sale were owned by the county, shall be
considered to be legal and binding, and the water rights which were
appurtenant to such lands shall be considered to have become the property
of the district to which attempted to be conveyed, but appurtenant only
to lands within the boundaries of the district as they existed on March
6, 1931, if the irrigation district applied to the Water Resources
Director, within five years after March 6, 1931, under the provisions of
section 47-712, Oregon Code 1930, as amended by chapter 102, Oregon Laws
1931, to have the water rights made appurtenant to other lands within the
irrigation district. In that event, the county shall sell the lands
without any water rights being appurtenant thereto. If the irrigation
district failed within five years after March 6, 1931, to make such
application, then title to the water rights shall be considered to have
been forfeited.Note: 540.550 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 540 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) If
the Water Resources Commission considers that a certificate of water
right does not identify the lands to which the right is appurtenant with
sufficient specificity for management, delivery or transfer of that
right, the commission may issue an order clarifying and refining the
description of the land to which the water right is appurtenant.

(2) An order issued under this section may not reduce the rate,
duty or number of acres stated in the certificate of water right. The
sole purpose of an addendum to a water right certificate is to better
define the location of acreage to which the water right is appurtenant,
where the certificate states only that the use is limited to a number of
acres within a larger tract.

(3) Any order issued under this section shall be served on the
legal owner of the land to which the water right is appurtenant and on
the occupant of the land, by certified mail, return receipt requested. If
the owner or occupant files a written request for a hearing within 30
days after service of the order, the commission shall conduct a hearing
of the matter under ORS 183.413 to 183.484.

(4) A final order under this section shall become an addendum to
and shall be filed with the certificate of water right that the order
clarifies. For all purposes, the final order shall constitute the
description of the land to which the water right is appurtenant. [1987
c.649 §9] (1)
Provided that the proposed transfer complies with all of the provisions
of this subsection and will not result in injury to any existing water
right, a district with a manager may, for one irrigation season,
temporarily transfer the place of use of water appurtenant to any land
within the legal boundaries of the district to an equal acreage elsewhere
within the legal boundaries of that district or temporarily transfer the
type of use identified in a right to store water. A temporary transfer of
the place of use may occur if:

(a) The rate and duty, and the total number of acres to which water
will be applied under the transfer, do not exceed existing limits on the
water use subject to transfer;

(b) The type of use authorized under the water use subject to
transfer remains the same; and

(c) The land from which the water use is being transferred does not
receive any water under the right being transferred during the irrigation
season in which the change is made.

(2) Provided that the proposed transfer complies with all the
provisions of this subsection and will not result in injury to or
enlargement of an existing water right, a district with a manager may,
for one irrigation season, temporarily change the point of diversion or
appropriation combined with a change in place of use, change the point of
diversion in the event that an emergency prevents the district from
diverting water from its authorized point of diversion, change the point
of diversion to allow for the appropriation of ground water or change a
primary right to a supplemental right if:

(a) The land on which the water is to be used is within the
district’s legal boundaries established pursuant to ORS chapter 545, 547,
552, 553 or 554;

(b) The other terms of the permit or certificate remain the same,
including the beneficial use for which the water is used and the number
of acres to which water is applied;

(c) The diversion is provided with a proper fish screen, if
required by the Water Resources Department; and

(d) For a proposal to transfer the point of diversion to allow for
the appropriation of ground water, the proposed change meets the
standards set forth in ORS 540.531 (2).

(3) When a district or an owner or an owner’s agent within a
district who is subject to the charges or assessments of the district
wishes to use water on alternate acreage within the district, if the
district has approved the owner’s request, the district shall submit to
the department a petition seeking a temporary transfer under this
section. The district shall submit the petition prior to making the
proposed change. The petition may contain changes to one or more tax lots
within the district and shall:

(a) Include the information required under ORS 540.574 (3);

(b) Be accompanied by a map in a form satisfactory to the
department and certified by the district. If the water right is on a
tract of land of five acres or less, the assessor’s tax map with a
notation of the acres of water right shall be sufficient for
identification of the tract and place of use;

(c) Include a statement that a written authorization for the
transfer from each landowner affected by the particular temporary
transfer is on file with the district;

(d) Include any other information required by rules of the Water
Resources Commission; and

(e) Include a fee in the amount required under ORS 536.050 (1)(i).

(4) The district shall notify each affected landowner that the
department may reject the transfer or may require mitigation to avoid
injury to other water rights. Upon receipt of a completed petition under
subsection (3) of this section, the department shall place a summary of
the petition in the weekly notice published by the department. The
department shall accept written public comments on the petition for 30
days following publication of the weekly notice. The department shall
consider comments that pertain to the potential for injury to an existing
water right or to the enlargement of the water use subject to transfer in
determining whether to condition, reject or revoke a temporary transfer.

(5) Use of water on lands from which the right is transferred and
in the new temporary location during the same irrigation season or
calendar year is prohibited and may subject the district and the
landowner to civil penalties.

(6) The department may condition, reject or revoke a temporary
transfer at any time to the extent necessary to avoid injury if the
department finds the transfer is causing injury to an existing water
right.

(7) Upon expiration of the temporary transfer period, all uses of
water for which a temporary transfer is allowed under this section shall
revert automatically to the terms and conditions of the original water
right permit, certificate or adjudication under ORS chapter 539 as
evidenced by a court decree.

(8) The time during which water is used under an approved temporary
transfer order does not apply toward a finding of forfeiture under ORS
540.610. [1987 c.649 §10; 1991 c.957 §9; 1995 c.554 §4; 2001 c.788
§§4,10; 2003 c.705 §§15,16; 2005 c.401 §1]Note: Sections 22 to 25, chapter 705, Oregon Laws 2003, provide:

Sec. 22. Section 23 of this 2003 Act is added to and made a part of
ORS 540.505 to 540.580. [2003 c.705 §22]

Sec. 23. (1) In order to increase district water management
flexibility, the Water Resources Department shall establish a pilot
project in which districts may temporarily allow, for water uses subject
to transfer, the use of water on any land within the legal boundaries of
the district established pursuant to ORS chapter 545, 547, 552, 553 or
554.

(2) The use of water on any land within the legal boundaries of the
district may be allowed if:

(a) The rate and duty, and the total number of acres to which water
will be applied under the transfer, do not exceed existing limits on the
water use subject to transfer;

(b) The type of use authorized under the water use subject to
transfer remains the same; and

(c) The land from which the water use is being transferred does not
receive any water under the right being transferred during the irrigation
season in which the change is made.

(3) The department shall allow the pilot project to be implemented
in the Talent Irrigation District, the Owyhee Irrigation District and the
Tualatin Valley Irrigation District or their successor irrigation
districts. However, any district participating in the project must:

(a) Have defined state irrigation district boundaries;

(b) Have a management structure that can ensure that water is
applied only where the water use is authorized;

(c) Not irrigate an area in any one irrigation season that exceeds
the maximum number of acres allowed to be irrigated under the original
water right;

(d) Have a full and accurate measurement of the water appropriated;

(e) Have an accurate map identifying the location of authorized
use, by priority date, for watermaster review upon request; and

(f) Have on file statements by any landowner affected by the water
use change indicating that the landowner agrees to the change.

(4) If any of the specified irrigation districts are unable to
participate in the project, the department may identify another district
for the project.

(5) The department may require that use of water under the pilot
project cease and that the use revert to the use allowed under the water
right of record if the department determines that:

(a) The district does not meet the qualifications established in
subsection (3) of this section;

(b) The water is being used in a manner that violates the
requirements in subsection (2) of this section; or

(c) The changes made to the use of water would result in injury to
existing water rights or an enlargement of the original water right.

(6) Use of water under the pilot project constitutes a beneficial
use of water and does not constitute nonuse for purposes of forfeiture
under ORS 540.610. [2003 c.705 §23]

Sec. 24. The Water Resources Department shall report to the
Seventy-fourth Legislative Assembly, no later than January 31, 2007, on
the operation of the pilot project established under section 23 of this
2003 Act. [2003 c.705 §24]

Sec. 25. Sections 22 and 23 of this 2003 Act are repealed on June
(1) Upon compliance with
this section and ORS 540.574 and 540.576, whenever land within the legal
boundaries of a district is no longer irrigated or susceptible of
irrigation, the district may apply the certificated water to which such
land is entitled to other irrigable lands within the legal boundaries of
the district if the district:

(a) Is managed by a full-time manager; and

(b) Is implementing a conservation plan approved by the Water
Resources Commission, and meets all other management responsibility
criteria for districts and conservation and efficiency criteria required
by the Water Resources Commission.

(2) If a water user of a district has not made beneficial use of
the water to which the user is entitled for a period of four successive
years, the district shall advise the user and any security interest
holder of record that if the user does not use the water for a fifth
successive year, the district may petition the Water Resources Commission
for a transfer of the water right under ORS 540.574.

(3) When a district wishes to transfer the use of water under this
section, the district shall provide notice of its intent to petition for
a transfer to the user and any security interest holder of record of the
land whose right of record would be transferred. The notice shall be sent
to the last-known address for the user with a return receipt requested.

(4) The notice required under subsection (3) of this section shall:

(a) Include:

(A) The number of acres for which the user is being charged or
assessed;

(B) A general description or tax lot of the land to which the water
is assigned;

(C) A description of the use; and

(D) A request for confirmation that the information in the notice
is correct.

(b) Advise the user that:

(A) The district has determined that the user’s land is no longer
irrigated or susceptible of irrigation and that the district intends to
petition the Water Resources Commission for approval to transfer the
user’s water right to other lands in the district.

(B) If the user disagrees with the determination of the district
that the user’s land is no longer irrigated or susceptible of irrigation
or if the user has some other objection to the proposed action of the
district, the user shall so advise the district in writing within 30 days
after the notice is mailed.

(C) The user shall advise the district in writing within the
foregoing time period if the user believes the presumption of forfeiture
under ORS 540.610 is rebuttable for a reason provided under ORS 540.610.

(5) If the district receives a written objection within 30 days
after the mailing of the notice under subsection (3) of this section, the
district manager shall attempt to resolve the matter with the user. If
the user’s objections cannot be resolved by the manager, a hearing shall
be held before the board of directors who shall make a determination
whether to proceed with the petition to the Water Resources Commission.

(6) If no written objections are received by the district within 30
days after the mailing of the notice under subsection (3) of this
section, or following resolution or hearing under subsection (5) of this
section, the district may petition the Water Resources Commission for
approval of the transfer under ORS 540.574.

(7) As used in this section:

(a) “Irrigable land” means land that is currently under irrigation
or susceptible of irrigation for agricultural, horticultural,
viticultural or grazing purposes.

(b) “No longer irrigated or susceptible of irrigation” means:

(A) Land on which water for irrigation has not been applied for a
period of five successive irrigation seasons; or

(B) Land that does not have reasonable access to the system of
irrigation works of the district, or that cannot be irrigated from or
that is not susceptible to or would not, by reason of being permanently
devoted to uses other than agricultural, horticultural, viticultural or
grazing, be directly benefited by actual irrigation from the district.

(c) “Owned” or “controlled” means ownership in fee, purchase on a
land sale contract, option to purchase or lease.

(d) “User” means an owner of land with an appurtenant water right
who is subject to the charges or assessments of a district and from whose
land the water right would be transferred by the petition and map filed
under ORS 540.574 and an owner of land to which the water right would be
transferred. [1991 c.957 §3] (1) In accordance with
the requirements of subsection (3) of this section, a district may
petition the Water Resources Commission for approval and acceptance of a
district map indicating the transfer of the location and use of the water
rights within the district or any part of the district. The map shall be
in a form satisfactory to the commission and shall be certified by the
district rather than a certified water right examiner. In no event shall
the petition and map expand a water right of the district or its users
beyond the total right of record for the district. If the district
complies with the requirements of ORS 540.572 to 540.580, and after the
opportunity for hearing under ORS 540.578, the commission shall issue an
order approving the transfer and proceed as provided in ORS 540.530 (1)
and (2).

(2) If the commission denies the petition under subsection (1) of
this section, the commission shall hold a hearing on the denial. Notice
and conduct of the hearing shall be according to the provisions of ORS
chapter 183 applicable to a contested case proceeding. The hearing shall
be conducted in the area of the state where the right is located unless
the parties and the persons who file the protest under this section
stipulate otherwise.

(3) The petition required under subsection (1) of this section
shall include:

(a) The name of the district and the certificate number of each
water right contained in the petition.

(b) The names of all users within the district from whose lands
water rights are to be transferred.

(c) The names of all users within the district to whose lands water
rights are to be transferred.

(d) A general description of the district boundaries.

(e) A general description of the users’ land and the water right
for each parcel from which and to which water rights are to be
transferred. If the water right is on a tract of land of five acres or
less, a notation of the acres of water right on the assessor’s tax map
shall be sufficient for identification of the place of use and the extent
of use.

(f) A description of the use that is proposed to be made of the
water on each parcel.

(g) An affirmation by the petitioner that the map and petition are
accurate to the best of the petitioner’s knowledge.

(h) A statement by the petitioner that notice has been given as
required under ORS 540.572 (2), and that the water right has not
previously been forfeited under ORS 540.610 due to an earlier or longer
period of nonuse. [1991 c.957 §4] After filing a
petition under ORS 540.572, the district shall send a copy of the
petition and map and a notice to the users of the district whose right of
record is to be transferred and who are to receive the transferred right.
The copy of the petition and the notice shall be sent to the last-known
address of the user with a return receipt requested. The notice
accompanying the petition shall advise the user that:

(1) Sixty days after the date of mailing of the notice, the Water
Resources Commission shall accept the petition and the water right shall
be transferred unless a protest is filed or the petition does not meet
the requirements of ORS 540.572 to 540.580; and

(2) The user has the right to protest the petition and transfer in
the manner described in ORS 540.578. [1991 c.957 §5] (1) Any
user may file with the Water Resources Commission, within 60 days after
the date of mailing the notice under ORS 540.576, a protest against
approval of the petition, map and transfer. Whenever a timely protest is
filed, or in the opinion of the commission a hearing is necessary to
determine whether the district has complied with the requirements of ORS
540.572 to 540.580, or the proposed transfers described in the petition
would result in injury to existing water rights, the commission shall
hold a hearing on the matter. The hearing shall be conducted according to
the provisions of ORS chapter 183 applicable to contested case
proceedings. The hearing shall be held in the area of the state where the
rights are located unless the parties and the persons who filed the
protest under this section stipulate otherwise.

(2) If, after examination or hearing, the commission finds that the
petition complies with the requirements of ORS 540.572 to 540.580, and
that the proposed changes described in the petition would not result in
injury to existing water rights, the commission shall issue an order
approving the transfer and proceed as provided in ORS 540.530 (1) and (2).

(3) A certificate issued under this section for the transferred
water right shall have the evidentiary effect provided for in ORS 537.270
unless the right to appropriate water described in the certificate is
forfeited after the certificate is issued. [1991 c.957 §6](1) In accordance with this section, a district
may by petition request that the Water Resources Department approve the
permanent transfer of the place of use of water within a district as long
as the proposed transfer complies with all of the following:

(a) The rate, duty and total number of acres to which water is to
be applied under the water use subject to transfer are not exceeded;

(b) The use authorized under the water use subject to transfer
remains the same;

(c) The change in place of use will not result in injury to any
existing water right; and

(d) The land from which the water right is removed by the transfer
shall receive no water under the transferred right.

(2) A district may submit a petition for a permanent transfer prior
to or subsequent to the change in place of use, but no later than the end
of the calendar year in which the change occurs. The petition submitted
by the district may include an unlimited number of transfers within the
same petition. A petition under this section shall:

(a) Include the information required under ORS 540.574 (3), except
for the statement that a notice under ORS 540.572 (2) has been given;

(b) Be accompanied by a map in a form satisfactory to the
department and certified by the district. If the water right is on a
tract of land of five acres or less, the assessor’s tax map with a
notation of the acres of water right shall be sufficient for
identification of the tract and place of use;

(c) Include a statement that each landowner affected by a permanent
transfer has authorized the transfer in a writing that is on file with
the district;

(d) Include any other information required by rules of the Water
Resources Commission; and

(e) Include the fee required under ORS 536.050 (1)(h) for a change
in the place of use.

(3) If a district allows a change in the place of use of water
before obtaining the approval of the department, the district shall:

(a) Notify each affected landowner that the change is subject to
the approval of the department and that the department may reject the
transfer or may require mitigation to avoid injury to other water right
holders; and

(b) Notify the department in advance of the change. The notice
shall include:

(A) The name of the district and the certificate number of each
water right that is the subject of the change;

(B) The names of the users within the district from whose lands and
to whose lands water rights are to be transferred;

(C) A general description of the users’ lands by township, range,
quarter quarter section and tax lot number, and of the water right, for
each parcel from which and to which water rights are to be transferred;
and

(D) A description of the use that is proposed to be made of the
water on each parcel.

(4) Upon receipt of the notice required under subsection (3)(b) of
this section, the department shall provide public notice in the weekly
notice published by the department.

(5) If a district allows a change in the place of use of water
before obtaining approval of the department under this section, the
department may direct the district to cease delivery of water or mitigate
injury where the change in place of use is causing injury to an existing
water right.

(6) Within 15 days after the filing of a petition under subsection
(2) of this section, the department shall include notice of the petition
in the weekly notice published by the department. Within 30 days after
the mailing of the department’s weekly notice, any potentially affected
holder of an existing water right may file, jointly or severally, with
the department, a protest against approval of the petition.

(7) Subject to the provisions of subsection (8) of this section,
whenever a timely protest is filed, or in the opinion of the Water
Resources Director a hearing is necessary to determine whether the
proposed changes as described in the petition would result in injury to
existing water rights, the department may hold a hearing on the petition.
Notice and conduct of the hearing shall be according to the provisions of
ORS chapter 183 pertaining to contested cases, shall be scheduled within
45 days after the filing of the petition, and shall be held in the area
where the rights are located unless all parties and persons who filed a
protest under this subsection stipulate otherwise.

(8) If a water user within the district files a protest claiming
injury to a water right delivery by the district, no contested case
hearing shall be required, but the district shall resolve the matter
directly with the water user.

(9) After examination or hearing, the department shall issue an
order approving the transfer if the proposed change can be effected
without injury to existing water rights. If no hearing is scheduled under
subsection (7) of this section, the order of the department shall be
issued within 90 days after the date of the filing of the petition. If
the proposed change cannot be effected without injury to existing water
rights, the department may condition approval, including requiring
mitigation of the effects on other water rights, to the extent necessary
to avoid injury. If a hearing is scheduled, the department shall issue a
final order within 120 days after scheduling the hearing.

(10) Within 20 days after the director issues a final order under
this section, the district or any protestant may file with the commission
exceptions to the final order. The commission shall issue an order
granting or denying the exceptions within 30 days after receiving the
exceptions.

(11) If a certificate covering the water right has been previously
issued, the department may amend the certificate or may cancel the
certificate and issue a new certificate preserving the previously
established priority of rights and covering the authorized changes. If
only a portion of the water right covered by the previous certificate is
affected by the changes, a separate new certificate may be issued to
cover the unaffected portion of the water right. A certificate as amended
or issued under this section has the evidentiary effect provided for in
ORS 537.270 as to the new lands except when the right to appropriate
water described in the certificate is abandoned after the certificate is
amended or issued.

(12) Notwithstanding the provisions of subsection (2) of this
section, a petition filed on or before December 31, 1996, may include all
changes in place of use allowed by a district after July 1, 1992, and
before November 30, 1996. [1995 c.554 §2; 1997 c.587 §13; 1999 c.804 §2;
2001 c.788 §§5,11](1) In accordance with the provisions of this
section, a person may request that the Water Resources Department approve
the temporary transfer of the place of use and type of use and
temporarily change the point of diversion if necessary to convey water to
the new temporary place of use, of all or a portion of a water right, for
a period not to exceed 25 years if:

(a) The person holds a water use subject to transfer;

(b) The type of use specified in the original water use subject to
transfer is irrigation;

(c) The person to whom the right is transferred is:

(A) Located within the Deschutes River Basin; and

(B) A city, a quasi-municipal corporation, a domestic water supply
district formed under ORS chapter 264, a water supplier as defined in ORS
448.115 or a water authority formed under ORS chapter 450;

(d) The proposed use is municipal use; and

(e) The proposed temporary transfer will not result in injury to
any existing water right.

(2) An application for a temporary transfer under this section
shall:

(a) Be submitted in writing to the Water Resources Department;

(b) Be accompanied by the appropriate fee for a change in the place
of use and type of use as set forth in ORS 536.050;

(c) Include the information required under ORS 540.520 (2); and

(d) Include any other information the Water Resources Commission by
rule may require.

(3)(a) Any portion of the use of a water right that is not
temporarily transferred under this section may be used on the designated
part of the lands described in the original water right permit,
certificate or adjudication under ORS chapter 539 as evidenced by a court
decree, if the use does not encompass more than the remaining portion of
the lands, enlarge the water right or increase the rate, duty, total
acreage benefited or season of use.

(b) The Water Resources Department shall designate the lands on
which water may be applied under this subsection and shall prescribe
mapping, measurement and recording requirements under this subsection.

(4) Upon expiration of a temporary transfer period, all uses of
water for which a temporary transfer is allowed under this section shall
revert automatically to the terms and conditions of the original water
right permit, certificate or adjudication under ORS chapter 539 as
evidenced by a court decree.

(5) The time during which water is used under an approved temporary
transfer order does not apply toward a finding of forfeiture under ORS
540.610.

(6) The department may revoke a prior approval of a temporary
transfer at any time if:

(a) The department finds that the transfer is causing injury to any
existing water right; or

(b) The person fails to comply with the requirements prescribed by
the department pursuant to subsection (3) of this section.

(7) The department shall provide notice, in the manner provided in
ORS 540.520 (5), that the department received an application for a
temporary transfer under this section.

(8) The department may:

(a) Prescribe the duration of the temporary transfer period allowed
under this section, up to 25 years;

(b) Impose conditions in the terms of the temporary transfer,
including revocation of the transfer for noncompliance with applicable
state, local or federal laws; and

(c) Determine the parties that may participate in the review of
applications submitted under this section. [2003 c.705 §6]Note: Section 11, chapter 705, Oregon Laws 2003, provides:

Sec. 11. The Water Resources Department shall submit a report, in
the manner provided in ORS 192.245, that shall include a detailed
description of the features of the process employed by the Water
Resources Commission to implement section 6 of this 2003 Act [540.585],
including any recommendation for further legislation. The report shall be
submitted to the Legislative Assembly no later than January 31, 2009.
[2003 c.705 §11]
The Water Resources Department shall submit a report, in the manner
provided in ORS 192.245, that shall include a summary of the features of
the process employed by the Water Resources Commission to implement ORS
540.585. The report shall be submitted no later than January 31 of each
year to the Legislative Assembly or to an interim committee related to
natural resources, as appropriate. [2003 c.705 §10]Note: 540.587 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 540 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.FORFEITURE OF WATER RIGHTS(1) Beneficial use shall be the basis, the measure and
the limit of all rights to the use of water in this state. Whenever the
owner of a perfected and developed water right ceases or fails to use all
or part of the water appropriated for a period of five successive years,
the failure to use shall establish a rebuttable presumption of forfeiture
of all or part of the water right.

(2) Upon a showing of failure to use beneficially for five
successive years, the appropriator has the burden of rebutting the
presumption of forfeiture by showing one or more of the following:

(a) The water right is for use of water, or rights of use, acquired
by cities and towns in this state, by appropriation or by purchase, for
all reasonable and usual municipal purposes.

(b) A finding of forfeiture would impair the rights of such cities
and towns to the use of water, whether acquired by appropriation or
purchase, or heretofore recognized by act of the legislature, or which
may hereafter be acquired.

(c) The use of water, or rights of use, are appurtenant to property
obtained by the Department of Veterans’ Affairs under ORS 407.135 or
407.145 for three years after the expiration of the period of redemption
provided for in ORS 18.964 while the land is held by the Department of
Veterans’ Affairs, even if during such time the water is not used for a
period of more than five successive years.

(d) The use of water, or rights of use, under a water right, if the
owner of the property to which the right is appurtenant is unable to use
the water due to economic hardship as defined by rule by the Water
Resources Commission.

(e) The period of nonuse occurred during a period of time within
which land was withdrawn from use in accordance with the Act of Congress
of May 28, 1956, chapter 327 (7 U.S.C. 1801-1814; 1821-1824; 1831-1837),
or the Federal Conservation Reserve Program, Act of Congress of December
23, 1985, chapter 198 (16 U.S.C. 3831-3836, 3841-3845). If necessary, in
a cancellation proceeding under this section, the water right holder
rebutting the presumption under this paragraph shall provide
documentation that the water right holder’s land was withdrawn from use
under a federal reserve program.

(f) The end of the alleged period of nonuse occurred more than 15
years before the date upon which evidence of nonuse was submitted to the
commission or the commission initiated cancellation proceedings under ORS
540.631, whichever occurs first.

(g) The owner of the property to which the water right was
appurtenant is unable to use the water because the use of water under the
right is discontinued under an order of the commission under ORS 537.775.

(h) The nonuse occurred during a period of time within which the
water right holder was using reclaimed water in lieu of using water under
an existing water right.

(i) The nonuse occurred during a period of time within which the
water right holder was reusing water through land application as
authorized by ORS 537.141 (1)(i) or 537.545 (1)(g) in lieu of using water
under an existing water right.

(j) The owner or occupant of the property to which the water right
is appurtenant was unable to make full beneficial use of the water
because water was not available. A water right holder rebutting the
presumption under this paragraph shall provide evidence that the water
right holder was ready, willing and able to use the water had it been
available.

(k) The holder of a water right is prohibited by law from using the
water. If the prohibition is subject to remedial action that would allow
the use of the water, the water right holder shall provide evidence that
the water right holder is conducting the remedial action with reasonable
diligence.

(L) The nonuse occurred during a period of time within which the
exercise of all or part of the water right was not necessary due to
climatic conditions, so long as the water right holder had a facility
capable of handling the full allowed rate and duty, and was otherwise
ready, willing and able to use the entire amount of water allowed under
the water right.

(m) The nonuse occurred during a period of time within which the
water was included in a transfer application pending before the Water
Resources Department.

(n) The nonuse of a supplemental water right occurred during a
period of time when the primary water right used in conjunction with that
supplemental water right was leased as an in-stream water right pursuant
to ORS 537.348.

(3) Notwithstanding subsection (1) of this section, if the owner of
a perfected and developed water right uses less water to accomplish the
beneficial use allowed by the right, the right is not subject to
forfeiture so long as:

(a) The user has a facility capable of handling the entire rate and
duty authorized under the right; and

(b) The user is otherwise ready, willing and able to make full use
of the right.

(4) The right of all cities and towns in this state to acquire
rights to the use of the water of natural streams and lakes, not
otherwise appropriated, and subject to existing rights, for all
reasonable and usual municipal purposes, and for such future reasonable
and usual municipal purposes as may reasonably be anticipated by reason
of growth of population, or to secure sufficient water supply in cases of
emergency, is expressly confirmed.

(5) After a water right is forfeited under subsection (1) of this
section, the water that was the subject of use shall revert to the public
and become again the subject of appropriation in the manner provided by
law, subject to existing priorities. [Amended by 1985 c.689 §5; 1987
c.339 §4; 1989 c.699 §1; 1989 c.833 §61a; 1991 c.370 §6; 1995 c.356 §2;
1995 c.366 §1; 1997 c.42 §5; 1997 c.244 §5; 1997 c.283 §1; 1999 c.335 §3;
1999 c.804 §§3,4; 2005 c.222 §1; 2005 c.542 §70; 2005 c.625 §70]If a district, as defined in ORS 540.505,
petitions for a transfer as provided in ORS 540.574 no later than the end
of the calendar year of the fifth year of nonuse under ORS 540.610 (1),
the forfeiture provisions of ORS 540.610 shall not apply to the lands
from which the water right is sought to be transferred pending approval
of the district’s petition. The time required for the processing of the
petition, including any time required for hearings, appeals and
completion of an authorized change, shall not be included when computing
a five-year period of nonuse under the provisions of ORS 540.610 (1).
[1991 c.957 §11]Whenever the owner of a perfected and developed water right
certifies under oath to the Water Resources Commission that the water
right has been abandoned by the owner and that the owner desires
cancellation thereof, the commission shall enter an order canceling the
water right. Effective upon the date of the entering of such order, the
water which was the subject of use under the water right shall revert to
the public and become again the subject of appropriation in the manner
provided by law, subject to existing priorities. [1955 c.670 §1; 1979
c.67 §5; 1985 c.673 §96]Whenever it appears to the
satisfaction of the Water Resources Commission upon the commission’s own
determination or upon evidence submitted to the commission by any person
that a perfected and developed water right has been forfeited as provided
in ORS 540.610 (1), and would not be rebutted under ORS 540.610 (2), the
commission shall initiate proceedings for the cancellation of such water
right by causing written notice of such initiation of proceedings to be
given by registered or certified mail, return receipt requested, to the
legal owner of the lands to which the water right is appurtenant and to
the occupant of such lands. The notice to the legal owner shall be
addressed to the legal owner at the owner’s last address of record in the
office of the county assessor of the county in which the lands are
located. The notice shall contain a complete description of the water
right and of the lands to which the water right is appurtenant. The
notice shall state that the legal owner or the occupant has a period of
60 days from the date of the mailing of the notice within which to
protest the proposed cancellation of the water right. [1955 c.670 §2;
1985 c.673 §97; 1989 c.699 §2; 1991 c.249 §53](1) If the legal owner or the occupant
receiving notice as provided in ORS 540.631 fails to protest the proposed
cancellation of the water right within the 60-day period prescribed in
the notice, the Water Resources Commission may enter an order canceling
the water right.

(2) If the legal owner or the occupant receiving notice as provided
in ORS 540.631 files a protest against the proposed cancellation of the
water right with the commission within the 60-day period prescribed in
the notice, the commission shall fix a time and place for a hearing on
the protest. The commission shall cause written notice of the hearing to
be given at least 10 days prior to the hearing to the person protesting
the cancellation of the water right and to any other person who in the
opinion of the commission is an interested party to the proceeding. The
hearing shall be held by the commission and shall be conducted under the
provisions of ORS chapter 183 pertaining to contested cases. After the
hearing the commission shall enter an order canceling the water right,
canceling in part or modifying the water right, or declaring that the
water right shall not be canceled or modified. [1955 c.670 §3; 1975 c.581
§26c; 1983 c.807 §3; 1985 c.673 §98]If the order of the Water Resources Commission or the final
decree on the appeal therefrom under ORS 540.641 cancels in part or
modifies the water right, that portion of the water right not canceled or
continued as modified shall be reaffirmed by a new water right
certificate issued by the commission. Such certificate shall be of the
same character as that described in ORS 539.140. The certificate shall be
recorded and transmitted to the owner of the water right as provided in
ORS 539.140. [1955 c.670 §4; 1979 c.67 §6; 1985 c.673 §99](1) If a watermaster has reason to believe that
circumstances exist that prevent a water right from being exercised
according to the terms and conditions of the water right certificate
issued under ORS 537.250 or 539.140, such as the land to which the water
right is appurtenant is covered by an impermeable surface, or the
diversion mechanism used to appropriate water under a water right is no
longer operable, the watermaster shall file an affidavit with the Water
Resources Director. The affidavit shall state that to the best of the
watermaster’s knowledge, there is no physical way the water may be
applied to a beneficial use in accordance with the terms and conditions
of the water right certificate.

(2) If the watermaster files an affidavit under subsection (1) of
this section each year for five consecutive years, the affidavits shall
constitute prima facie evidence that the water has not been applied to a
beneficial use for five years and the Water Resources Commission shall
initiate proceedings under ORS 540.631 to cancel the water right.

(3) The Water Resources Department shall provide notice of the
affidavit filed with the Water Resources Director under subsection (1) of
this section. The department shall provide such notice in the following
manner:

(a) If there are 25 or fewer record owners of the land, the
department shall mail a copy of the affidavit to each record owner.

(b) If there are more than 25 record owners, the department shall
provide general notice by publication according to the procedures
established in ORS 193.010 to 193.100.

(c) If the land is within the boundaries of an irrigation district,
the department shall mail a copy of the affidavit to the irrigation
district.

(4) As used in this section, “record owner” means the person shown
as the owner of the land in the county deed records established under ORS
chapter 93. [1987 c.339 §1](1) The cancellation of a primary water right for nonuse under ORS
540.641 shall not also cancel a supplemental water right unless the
supplemental water right also has not been used beneficially for five or
more years.

(2) If the Water Resources Commission cancels a primary water right
under ORS 540.641 the commission may issue a new water right certificate
changing the supplemental water right to a primary right if the
commission finds that the change would not result in injury to existing
water rights.

(3) A supplemental right changed to a primary right under
subsection (2) of this section shall retain the priority date of the
supplemental right. [1987 c.339 §2]PROHIBITED ACTS; INJUNCTIONSNo person shall
willfully open, close, change or interfere with any lawfully established
headgate or water box without authority, or willfully use water or
conduct water into or through the ditch of the person which has been
lawfully denied the person by the watermaster or other competent
authority. The possession or use of water when the same shall have been
lawfully denied by the watermaster or other competent authority shall be
prima facie evidence of the guilt of the person using it.No person shall use without authorization water to which another
person is entitled, or willfully waste water to the detriment of another.
The possession or use of such water without legal right shall be prima
facie evidence of the guilt of the person using it.Whenever any appropriator of water has the lawful right of
way for the storage, diversion, or carriage of water, no person shall
place or maintain any obstruction that shall interfere with the use of
the works, or prevent convenient access thereto. Any person
who may be injured by the action of any watermaster may appeal to the
circuit court for an injunction. The injunction shall only be issued in
case it can be shown at the hearing that the watermaster has failed to
carry into effect the order of the Water Resources Commission or decrees
of the court determining the existing rights to the use of water.
[Amended by 1985 c.673 §100]In suits for injunction affecting the
use of water from streams upon which the rights to water have been
determined, no restraining order shall be granted before hearing had
after at least three days’ notice thereof, served upon all parties
defendant. All suits for injunction involving the use of water shall be
heard, either in term time or during vacation, not later than 15 days
after issues joined, unless for good cause shown further time be allowed.PENALTIES(1) Violation of any provision of ORS 540.440 is
punishable, upon conviction, by a fine of not less than $25 nor more than
$150, together with the costs and disbursements of the action, and in
default of the payment of the fine and costs, by confinement in the
county jail one day for each $2 thereof. Justice courts shall have
concurrent jurisdiction with the circuit courts in the trial of all
proceedings under this subsection.

(2) Violation of any provision of ORS 540.370 (2), 540.570 (5),
540.710, 540.720 or 540.730 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. Justice courts shall have
concurrent jurisdiction with the circuit courts in the trial of all
violations under this subsection. [Amended by 2001 c.788 §§7,13; 2003
c.14 §§344,345; 2003 c.705 §§19,21]

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USA Statutes : oregon