690-077-0075 Processing an Instream Transfer Application A proposed instream transfer, including a time-limited instream transfer, of a water use subject to transfer to an instream water right shall be processed pursuant to the water rights transfer rules in OAR chapter 690, division 380 and the following provisions: (1) The Department shall provide notice of the proposed instream transfer pursuant to OAR 690-380-4000, and to affected Indian tribes. (2) In addition to the assessment described in OAR 690-380-4010, the Department’s preliminary determination shall include an assessment of whether: (a) The amount and timing of the proposed instream flow is allowable within the limits and use, including return flows, of the original water right; and (b) The proposed reach(es) is (are) appropriate considering: (A) Instream water rights shall begin at the recorded point of diversion; (B) Locations of return flow. Where return flows occur at a definite point, a substantial distance below the point of diversion, an instream water right may be defined by more than one reach, for example one reach from the point of diversion to the location of the return flow and another from this point to the mouth of the stream; (C) The location of confluences with other streams downstream of the point of diversion, which shall be considered in accordance with OAR 690-077-0015(8); (D) Any known areas of natural loss of streamflow to the river bed. Where an instream water right passes through an area of known natural loss several reaches may be required to incorporate the reduced flows available, in accordance with paragraph (2)(c)(B) of this rule. (c) The proposed flow(s) is (are) consistent with OAR 690-077-0015(7), (8) and (11), shall provide a public benefit for an instream use, and be appropriate considering: (A) Return flows which shall be subtracted from the instream water right at the old point of diversion, unless the return flows occur at a definite point a substantial distance below the old point of diversion, in which case up to the entire amount of the diversion may be allowed between the point of diversion and the point(s) of return flow; and (B) Where an instream water right passes through an area of known natural losses these losses shall be prorated between the instream water right and the balance of the available flow. (3) An instream transfer shall be approved if the Department determines that the transfer is consistent with OAR 690-380-5000, and Section (2) of this rule. (4) The Department shall issue a final order consistent with the preliminary determination described in OAR 690-380-4010 and Section (2) of this rule if no protests are received under 690-380-4030. (5) Upon approval of an instream transfer, the Department shall issue a permanent instream water right certificate. However, upon approval of a time-limited instream transfer, the Department shall issue a final order with a specific date of expiration or other conditions for termination for the instream water right and suspend the use of the original right during the effective period of the instream water right. A copy of the certificate or final order shall be mailed to the applicant and as appropriate to affected Indian tribes, ODFW, DEQ and Parks. The Director shall also issue a new certificate for any remaining right for the existing use as appropriate. Statutory/Other Authority: ORS 197, 536.025, 536.027, 536.220, 536.300, 536.310, 537.338 & 537.356 - 537.358 Statutes/Other Implemented: ORS 197, 536.025, 536.027, 536.220, 536.300, 536.310, 537.338, 537.356 & 537.358 History: WRD 4-2006, f. & cert .ef. 10-2-06 WRD 8-2001, f. & cert. ef. 12-14-01 WRD 1-1995, f. & cert. ef. 2-14-95 WRD 9-1992, f. & cert. ef. 7-1-92 WRD 12-1990, f. & cert. ef. 8-8-90 WRD 20-1988, f. & cert. ef. 11-4-88