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. Statutory/Other Authority: ORS 536.025 & 536.027 Statutes/Other Implemented: ORS 540.520, 540.530 & 540.531 History: WRD 5-2006, f. & cert. ef. 10-6-06 WRD 1-2004, f. & cert. ef. 3-17-04 WRD 2-2003, f. & cert. ef. 5-1-03, Renumbered from 690-015-0210 WRD 5-1996, f. & cert. ef. 7-11-96