690-507-0060 Birch and McKay Creeks Subbasin (1) Objectives: In developing a program for the management, use and control of the surface and groundwater resources of the Birch and McKay Creeks subbasin, the Commission has the following objectives: (a) Protect instream values by closing streams to future appropriations during the low-flow season and limiting future appropriations during the high-flow season to selected nonirrigation uses; (b) Preserve the opportunity for future upstream storage for all beneficial uses; (c) Permit artificial groundwater recharge to offset declining groundwater levels and supplement existing groundwater uses; (d) Protect municipal groundwater supplies; (e) Prevent new appropriations from causing groundwater/surface water interference. (2) Surface Water: Appropriation and use of surface water in the Birch and McKay Creeks subbasin shall comply with the following provisions: (a) Birch and McKay Creeks and their tributaries are withdrawn from further appropriation of unappropriated waters during the period June 1 through October 31 each year. The withdrawal does not apply to domestic, livestock, fish and wildlife uses or water released from storage. This action was taken by the Commission on December 2, 1985; (b) Classification: Permits to use surface water may be issued only for the following classified uses: (A) The surface waters of Birch and McKay Creeks and tributaries are classified for domestic, livestock, irrigation of noncommercial lawn and garden not to exceed 1/2 acre, municipal, industrial, power development (subject to the limitations of OAR Chapter 690, Division 51) mining (including sand and gravel mining), fish life, wildlife, recreation, pollution abatement, artificial groundwater recharge, and public instream uses during the period November 1 through May 31 each year. This classification rescinds the Commission's order of December 2, 1985, withdrawing the Umatilla River and tributaries from further appropriation from November 1 through May 31 each year until December 31, 1988; (B) Subject to the rights and priorities existing on June 24, 1988, the withdrawal of Birch Creek and tributaries from June 1 through October 31, Birch Creek and tributaries are further classified for all beneficial uses in conjunction with storage. All natural flow rights issued on Birch Creek and tributaries after this date shall be subordinate to this classification. Any storage project built under this classification shall include provisions for municipal, fish and wildlife, and recreation uses acceptable to the Commission. (c) Storage: Surface water legally stored during the period November 1 through May 31, and legally released may be used for any beneficial purpose; (d) Artificial groundwater recharge: Use of surface water for groundwater recharge shall be subject to the following conditions: (A) Recharged water used under a secondary permit for irrigation may only provide supplemental water to lands with existing irrigation rights or permits on June 24, 1988; (B) Diversion of surface water for recharge for irrigation under a secondary permit shall not exceed 2.25 acre feet per acre to be irrigated; and (C) If the recharged water is to be used for municipal or industrial purposes under a secondary permit, the applicant shall demonstrate to the satisfaction of the Commission that it has an active water conservation program. (e) Minimum perennial streamflows: Minimum streamflows may be established to support aquatic life, minimize pollution or maintain recreation values: (A) To support aquatic life in accordance with Section 3, Chapter 796, Oregon Laws 1983, no appropriation of water shall be made or granted by any state agency or public corporation of the state for waters of the Umatilla River and tributaries when flows are below the levels specified in Table 1. This limitation shall not apply to domestic and livestock use or to waters legally stored or released from storage; and (B) To support aquatic life, no appropriations of water except for domestic and livestock uses or waters legally stored or released from storage shall be made or granted by any state agency or public corporation of the state when flows are below the specified levels for the streams listed in Table 1 with priority dates of 3-31-88. (3) Groundwater: Appropriation and use of groundwater in the Birch and McKay Creeks subbasin shall comply with the following provisions: (a) Classification: Permits to use groundwater may be issued only for the following classified uses: (A) The groundwater resources of the Birch and McKay Creeks subbasin are classified for statutorily exempt groundwater uses (see definition), irrigation, municipal, industrial, power development, low temperature geothermal, mining, fish life, wildlife, recreation, pollution abatement, and artificial groundwater recharge; and (B) Groundwater from the basalt reservoir in a five-mile radius around any municipal well of the cities of Pendleton and Pilot Rock is classified for municipal, group domestic and statutorily exempt groundwater uses (see definition) only. Other uses may be permitted if it is documented that a barrier to groundwater movement separates a proposed well from municipal wells and there will be no interference with municipal wells. Applications for other uses of groundwater within a five-mile radius of a municipal well shall automatically be referred to the Commission for review and consideration of public interest unless the affected city affirms that it is in favor of the proposed appropriation. This classification applies only when the affected city(ies) have a full-time conservation program in effect. (b) Permits issued to appropriate groundwaters that may be hydraulically connected with surface water shall be specially conditioned. The condition shall specify that when exercise of the permit unduly interferes with surface water, the permit will be regulated in favor of the surface water source. [ED NOTE: Tables referenced are available from the agency.] Statutory/Other Authority: ORS 536 & 537 History: WRD 2-2017, f. & cert. ef. 5-22-17 1-1993, Renumbered from 690-080-0070 WRD 9-1990, f. & cert. ef. 6-25-90 WRD 8-1988, f. & cert. ef. 7-5-88 WRD 1-1987, f. & cert. ef. 2-27-87 WRD 1-1986, f. & cert. ef. 2-20-86 WRD 14-1985, f. & cert. ef. 12-20-85 WRD 13, f. & cert. ef. 12-18-85 WRD 10-1985, f. & cert. ef. 9-3-85 WRD 1-1981, f. & cert. ef. 4-20-81 WRB 26, f. & cert. ef. 3-2-64