Or. Admin. Code § 690-380-2120 - Change in Point of Diversion to Reflect Historical Use
(1) As provided in ORS
540.532, any individual who
holds a water right certificate or decree may request a change in point of
diversion or appropriation to reflect the historical use of water at a point of
diversion or appropriation other than that described in the water right
certificate or decree. The individual shall use the Department's water right
transfer application form, clearly marked "Historic Change in POD," and, except
as otherwise provided in section (2) of this rule, include the information
required in OAR 690-380-3000.
(2)
An individual requesting a change in the point of diversion or appropriation
under section (1) of this rule shall provide to the Department the following
additional information:
(a) Evidence that the
actual, current point of diversion or appropriation for the water right in
question has been in use for more than 10 years;
(b) A map meeting the requirements of OAR
690-380-3100, except that it need not be prepared by a certified water rights
examiner. The map shall be of sufficient detail and clarity to identify the
true point of diversion or appropriation 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
or appropriation as specified in the water right certificate or decree and the
actual, current point of diversion or appropriation;
(c) Evidence that there has been no claim of
injury prior to the request for the change in point of diversion or
appropriation. The evidence shall include a statement from the local
watermaster, based upon the watermaster's knowledge and Department records,
that no complaint of injury has been made due to the use of water at the
actual, current point of diversion or appropriation.
(3) On receipt of an application for a change
in point of diversion or appropriation under section (1) of this rule, the
Department shall:
(a) Provide the applicant a
list of the affected water rights. The list shall include, but is not limited
to:
(A) Any water right with an intervening
point of diversion or appropriation;
(B) Any water right for use of stored water
being delivered from an upstream reservoir to a downstream user;
(C) Any water right upstream from a
significant inflow of water if the request moves the proposed point of
diversion upstream, above the inflow, from the authorized point of
diversion;
(D) Any water right
downstream from a significant inflow of water if the request moves the proposed
point of diversion downstream, below the inflow, from the authorized point of
diversion;
(b) Provide
the applicant a copy of a notice to be mailed or hand-delivered to the affected
water right holders that:
(A) Describes the
locations of the authorized and actual points of diversion or
appropriation;
(B) States that the
recipient on the notice may provide comments to the Department on whether the
requested change in point of diversion or appropriation will cause injury;
and
(C) Establishes a comment
period of at least 30 days after the notice is mailed or hand-delivered to each
of the affected water right holders;
(c) Consult with ODFW in the manner provided
under OAR 690-380-5060; and
(d)
Provide notice of the application in the weekly notice published by the
Department.
(4) Upon
receipt from the Department of the list of affected water rights and a copy of
the notice, the individual shall determine the name and address of the current
holder of each affected water right identified by the Department and shall mail
or hand deliver the notice to all such holders. The individual shall provide to
the Department written proof of service upon the water right holders. A
transfer under section (1) of this rule shall not be approved by the Department
before the Department receives the written proof of service and before the
comment date specified in the notice, whichever is later.
(5) If, after considering any comments
received, the Department finds the individual requesting a change in point of
diversion or appropriation to reflect historical use satisfies the requirements
under section (2) to (4) of this rule and that the change does not cause
injury, the request shall be approved. The order approving the change in point
of diversion or appropriation shall establish a deadline for compliance with
any conditions needed to prevent injury and, where required, to provide fish
screening. If a certificate had previously been issued, the order shall cancel
the certificate. The director shall issue a new certificate confirming the
change in point of diversion or appropriation and preserving all other
conditions of the water right.
(6)
After the deadline for compliance with conditions of an approval established
pursuant to section (5) of this rule, the use of water from the point of
diversion or appropriation shall be subject to continued compliance with the
conditions.
(7) As used in this
rule, "individual" means a natural person and does not include a government
body, organization, business enterprise, or other such entity.
Notes
Stat. Auth.: ORS 536.025 & 536.027
Stats. Implemented: ORS 540.532
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