Or. Admin. R. 690-380-2130 - Change from a Surface Water Point of Diversion to a Ground Water Appropriation
(1) As
provided in ORS 540.531, 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, subject to the
requirements for a transfer in point of diversion under this Division and the
requirements under section (2) or (3) of this rule.
(2) The Department may allow the transfer of
the point of diversion under section (1) of this rule if:
(a) The criteria in OAR 690-380-5000 are
met;
(b) The new point of diversion
appropriates ground water from an aquifer that is hydraulically connected to
the authorized surface source; and
(c) The proposed change in 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 groundwater 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 1000 feet
upstream or downstream of the original point of diversion as specified in the
water use subject to transfer; or
(e) If the distance requirements in
subsection (2)(d) of this rule are not met, the holder of a water use subject
to transfer shall submit to the Department evidence prepared by a licensed
geologist that demonstrates that the use of the groundwater at the new point of
diversion will meet the criteria set forth in subsections (2)(a) to (c) of this
rule.
(3)
Notwithstanding section (2) of this rule, the Department shall allow a transfer
of the point of diversion under section (1) of this rule in the Deschutes basin
ground water study area if:
(a) The proposed
transfer would not result in injury to an existing water right or enlargement
of the water right proposed for transfer;
(b) The criteria in OAR 690-380-5000 are
met;
(c) The new point of diversion
appropriates ground water from an aquifer that is hydraulically connected to
the authorized surface water source; and
(d) 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) A transfer application
requesting to change the point of diversion from a surface water diversion to a
groundwater appropriation for which evidence prepared by a licensed geologist
is required under subsection (2)(e) of this rule shall be evaluated by the
Department in the following manner:
(a) The
change in point of diversion request shall be examined to determine the
potential for injury as if the change is to be from the authorized point of
diversion to a point on the stream nearest the proposed well;
(b) If potential injury is not found, the
evidence prepared by a licensed geologist and submitted by the applicant shall
be evaluated to determine whether the application meets the other requirements
of subsection (2)(a) to (c) of this rule. The geologist's report shall examine
the effect on the surface water source in the vicinity of the point on the
stream nearest the proposed new point of diversion.
(5) The new point of diversion shall retain
the original date of priority and all other applicable conditions and
restrictions that existed at the original point of diversion shall apply at the
new point of diversion authorized under the transfer.
(6) If within five years after approving a
transfer under this rule, the Department finds that the transfer results in
substantial or undue interference with an existing ground water right that
would not have occurred in the absence of the transfer, the new point of
diversion shall be subordinate to the existing right injured by the transfer.
This section applies only to wells with rights existing at the time the
transfer was approved.
(7) The
original point of diversion of surface water shall not be retained as an
additional or supplemental point of diversion .
(8) The Department shall approve a transfer
application to return to the last authorized surface water point of diversion
if the required transfer application is received within five years after the
Department approves a transfer under this rule. It shall be presumed, for
transfers under this subsection, that there is no injury, including injury to
rights obtained or transferred after the approval of the first
transfer.
(9) 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 the transfer under
section (3) of this rule if the Department receives the required application,
and the return will not result in injury.
(10) For transfers allowed under this rule,
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 pursuant to ORS
540.531(6),
except that the Department may not require mitigation measures if the transfer
complies with section (3) of this rule.
(11) As used in this rule:
(a) "Existing ground water right" means a
right that existed at the time a transfer was approved under sections (1) to
(5) of this rule and does not include a right established after the transfer
whether by permit or a change in point of appropriation regardless of priority
date.
(b) "Similarly" means that
the use of groundwater 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.
(c) "Deschutes basin ground water study area"
means the Deschutes River Basin drainage area indicated in OAR 690, division
505, Exhibit 1.
(12) The
Department shall provide notice and review of transfer applications under
section (3) of this rule pursuant to OAR 690-380-4000 through
690-380-4200.
(13) Opportunities to
protest a transfer under section (3) of this rule shall be pursuant to OAR
690-380-4030.
(14) The Department
shall issue final orders on transfer applications under section (3) of this
rule pursuant to OAR 690-380-5000.
Notes
Stat. Auth.: ORS 536.025 & 536.027
Stats. Implemented: ORS 540.520, 540.530 & 540.531
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