690-077-0076 Application for an Instream Lease (1) A holder of any of the following types of water rights may enter into a lease to convert all or a portion of a water right to an instream water right for a specified time period not to exceed five years: (a) Surface water rights for beneficial use or storage established by a water right certificate or an adjudication under ORS Chapter 539 as evidenced by court decree; or (b) A surface water use permit for which a request for issuance of a water right certificate under ORS 537.250 has been received and approved by the Director under 537.250, or transfer application for which an order has been issued under 540.530 approving the change and for which proper proof of completion of the change has been filed with the Commission; (c) Secondary water rights for the use of stored water established by permit, certificate or court decree; or (d) The conserver's portion of conserved water allocated under ORS 537.445 to 537.500. (2) The parties to the lease application shall include but are not limited to: (a) The holder(s) of the subject water right(s) as the lessor(s); (b) Any irrigation district or similar organization as defined in ORS chapters 545, 547, 552, 553, or 554 which conveys water to the subject water right and the owner of any storage facility which is the source of the water, as co-lessor, if applicable; and (c) The lessee, if different than the Department. (3) At a minimum, the lease application shall include: (a) Names and signatures of the parties; (b) A description of the water right(s) to be leased. If only a portion of a water right will be leased, a clear description, including maps if necessary, of the portion to be leased; (c) Rate, total volume, timing and location of the instream right, including any necessary conditions to avoid enlargement of the original right or potential injury to other water right holders; (d) A description of how the lease will serve a public use or uses; (e) If an instream water right exists on the same reach(es) or lake, or on portions thereof, a statement of whether the proposed lease is intended to add to the amounts of the existing instream water rights or to replace a later priority instream right, or portion thereof, with an earlier priority right. (f) Provision insuring the original use will be suspended; (g) The term of the lease; (h) A statement by the lessors verifying that the water rights described in Subsection (3)(b) of this rule have been used under the terms and conditions of the rights during the last five years, or as an instream water right, or an explanation why the water right is not subject to forfeiture under ORS 540.610. As an alternative, an irrigation district or other water purveyor may provide evidence for owners, verifying delivery of water for the lands appurtenant to the rights to be leased; (i) If the lessor(s), as identified in Subsection (2)(a) of this rule, is not the deeded landowner to which the water right is appurtenant, sufficient documentation to demonstrate that the lessor(s) is authorized to pursue the instream lease. Such documentation shall include: (A) A notarized statement from the landowner consenting to the lease and a copy of the recorded deed; (B) A water right conveyance agreement(s) as defined in OAR chapter 690, division 380 and a copy of the recorded deed for the landowner at the time the water right was conveyed; or (C) Other documentation that demonstrates to the Department’s satisfaction that the lessor(s) is authorized to pursue the lease in the absence of the consent of the landowner. (j) The name and address of any water purveyor that conveys water to the water right(s) described in Subsection (3)(b) of this rule. (4) Lease applications shall conform with applicable provisions of OAR 690-077-0015. Statutory/Other Authority: ORS 536.025 & 536.027 Statutes/Other Implemented: ORS 537.332 – 537.360 & 537.455 – 537.500 History: WRD 4-2006, f. & cert .ef. 10-2-06