ORS 540.530
Order authorizing change of use, place of use or point of diversion

  • consent to injury
  • new or modified certificate

(1)

Intentionally left blank —Ed.

(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 (State agencies authorized to request in-stream water rights) or an in-stream water right created pursuant to ORS 537.346 (Conversion of minimum perennial streamflows to in-stream water rights) (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)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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 (Use as measure of water right) (1).

(2)

Intentionally left blank —Ed.

(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 (Purchase, lease or gift of water right for conversion to in-stream water right), is necessary to complete a project funded under ORS 541.932 (Watershed enhancement project assistance), 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]

Source: Section 540.530 — Order authorizing change of use, place of use or point of diversion; consent to injury; new or modified certificate, https://www.­oregonlegislature.­gov/bills_laws/ors/ors540.­html.

Attorney General Opinions

Storage rights to store water for later beneficial use are not subordinate to later priority direct use rights unless made so by explicit conditions imposed on storage right, (1989) Vol 46, p 290

540.010
Water districts
540.020
Watermasters
540.030
Water Resources Director
540.045
Watermaster duties
540.050
Appearance of district attorney
540.060
Arrest by watermaster
540.075
Office and equipment for watermaster
540.080
Assistant watermasters
540.100
Division of water among users
540.120
Lien for wages and expense
540.130
Advance payment
540.135
Disposition of funds collected under ORS 540.100 to 540.130 and 540.220
540.140
Insufficiency of water
540.145
Distribution of water
540.150
Rotation in water use
540.155
Periodic review and report regarding department program for Deschutes Basin ground water study area
540.210
Distribution from ditch or reservoir
540.220
Payment of assistant watermaster
540.230
Distribution of waste or seepage water
540.240
Lien for wages and expense
540.250
Lien, notice of intent to claim
540.260
Lien for wages and expense
540.270
Distribution from irrigation districts and improvement companies
540.310
Ditches and canals
540.320
Noncompliance with requirements
540.330
Reservoirs
540.340
Reservoir and diversion dam
540.355
Inspection, evaluation and assessment of hydraulic structures
540.410
Delivery of reservoir water
540.420
Jointly owned ditches
540.430
Nonpayment by ditch co-owner
540.435
Installation of totalizing measuring device
540.440
Owner to clear weeds from ditch right of way
540.443
Definitions for ORS 540.443 to 540.491
540.446
Dams not subject to ORS 540.443 to 540.491
540.449
Construction plan approval
540.452
Removal plan approval
540.455
Dam inspections and analysis
540.458
Notice for owner corrective action to address safety issues
540.461
Plan and time frame for corrective action
540.464
Examinations, inspections and reports by specialists
540.467
Owner action to address maintenance issues
540.470
Contested case hearings
540.473
Application for injunction
540.476
Action to declare dam public nuisance
540.479
Dam owner responsibilities
540.482
Emergency action plan for dam with high hazard rating
540.485
Actual or potential dam failure
540.488
Water Resources Commission duties and powers
540.491
Dam owner or operator liability
540.505
Definitions
540.510
Appurtenancy of water to premises
540.520
Application for change of use, place of use or point of diversion
540.523
Temporary transfer of water right or permit
540.524
Substitution of supplemental water right from ground water source for primary water right from surface water source
540.525
Installation of fish screening or by-pass device as prerequisite for transfer of point of diversion
540.530
Order authorizing change of use, place of use or point of diversion
540.531
Transfer of surface water point of diversion to ground water
540.532
Request for change in point of diversion to reflect historical use
540.533
Application for exchange of water
540.535
Notice of application for exchange
540.537
Order allowing exchange
540.539
Exchange subject to beneficial use requirements
540.541
Delivery and use of water under exchange
540.543
Regulation of headgates when water provided by exchange
540.545
Transfer of water rights following county acquisition of land
540.560
Order changing description of land to which water right is appurtenant
540.570
Temporary transfers within districts
540.572
Application of certificated water elsewhere within district
540.574
Petition for approval of transfer
540.576
Notice of petition
540.578
Filing of protest
540.580
Permanent transfer of place of use of water within district
540.585
Temporary transfers within Deschutes River Basin
540.587
Report on implementation of temporary transfer provisions
540.589
Ratification of prior transfer of water rights to irrigation district
540.610
Use as measure of water right
540.612
Exemption from forfeiture
540.621
Cancellation of abandoned water right upon request of owner
540.631
Cancellation of forfeited water right
540.641
Protest of cancellation
540.650
Issuance of new water right certificate for water rights not canceled
540.660
Affidavit of watermaster that circumstances prevent use of water right in accordance with terms of certificate
540.670
Effect of cancellation of primary water right on supplemental right
540.710
Interference with headgate, or use of water denied by watermaster or other authority
540.720
Unauthorized use or waste of water
540.730
Obstruction interfering with access to or use of works
540.740
Injunctive relief against action of watermaster
540.750
Injunction suits
540.990
Criminal penalties
540.995
Civil penalties
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