Oregon Administrative Rules › Chapter 690 - WATER RESOURCES DEPARTMENT › Division 77 - INSTREAM WATER RIGHTS › Section 690-077-0077 - Processing an Instream Lease Application

Current through Register Vol. 63, No. 7, July 1, 2024
(1) On receipt of a lease application, the
			 Department shall include notice of the application in its weekly public notice
			 mailing list and post it in the applicable watermaster office.
(2) A written assessment shall be prepared by
			 the watermaster or other Department field staff of whether the lease
			 application meets the requirements of these rules to suspend the original water
			 use and avoid injury or enlargement;
(3) When the Department initially reviews a
			 lease application, particular attention shall be given to potential sources of
			 enlargement or injury. Examples include but are not limited to: issues related
			 to rate and duty, or total volume being changed; the allotment of stored water
			 available to the owner of a storage right in the year leased; the role of
			 return flows; conveyance losses downstream of the original point of diversion;
			 potential issues related to junior users, especially, downstream of the
			 original point of diversion; potential issues related to the priority date of
			 instream water rights; whether a proposal to lease a permit for stored water
			 would result in converting undeveloped rights; and issues potentially arising
			 from water users that share a conveyance system. Any allegations of injury to
			 existing water rights or enlargement of the original water right that are
			 received within 21 days of the date of mailing of the weekly public notice
			 shall be reviewed by the parties to the lease before the Department issues an
			 order approving or denying the lease application. If no comments are received
			 the Department may presume that no injury or enlargement will result from the
			 proposed lease.
(4) If the
			 Department determines that the proposed lease may cause injury to existing
			 water rights or enlargement of the original right, considering issues raised
			 under Section (3) of this rule, the order approving the lease application shall
			 be conditioned to prevent the injury or enlargement. If injury or enlargement
			 cannot be prevented the Department shall deny the lease application. However,
			 if an order approving the lease application has already been issued, and the
			 Department later finds injury or enlargement, the Department shall issue an
			 order modifying or terminating the lease.
(5) If a lease is for more than one year the
			 parties shall review any allegations of injury or enlargement that are received
			 through December 31 of the preceding calendar year of the lease, to determine
			 whether modifications of the lease order are warranted for the remainder of the
			 term of the lease. If injury or enlargement claims are valid and cannot be
			 prevented the Department shall issue an order terminating the lease.
(6) In the event that the Department receives
			 a claim of injury or enlargement after issuing an order approving a lease, the
			 Department shall notify the parties. If the Department determines the claim is
			 valid, it shall not distribute water in a way that would cause the injury or
			 enlargement to continue.
(7) The
			 description of the reach or point of an instream water right provided in
			 response to OAR 690-077-0076(3)(c)  shall conform to the provisions of
			 690-077-0015(7) and (8)  and 690-077-0075(2).
(8) Except as provided in OAR 690-077-0079, a
			 lease involving a water right that is limited to a season of use or a duty of
			 water for a season or year shall only allow the use of the original water right
			 or the instream right, not both, during any one season unless the source is
			 from stored water.
(9) If the water
			 right being leased has an associated primary or supplemental water right, the
			 lessor(s) shall assure that neither right is being exercised under the original
			 right during the term of the lease unless the lease is for the use of water
			 legally stored under a supplemental water right. In the case of supplemental
			 stored water, an order approving a lease may be issued that does not restrict
			 the use of the primary source.
(10) Nothing in these rules shall be
			 interpreted to prevent the renewal of a lease application or to prevent outside
			 agreements for longer terms that will be activated by an order approving a
			 lease when needed to establish an instream water right in a particular season
			 or at a particular time. A renewal shall be subject to the provisions of this
			 rule.
(11) Water rights for which
			 an order has been issued approving a lease application under OAR 690-077-0077  are considered to be beneficially used for each year that the lease establishes
			 an instream water right.
(12) A
			 lessee has the same standing as the lessor for all purposes regarding
			 management and enforcement of the instream water right.
(13) Copies of orders approving a lease
			 application shall be distributed to all parties, filed with the appropriate
			 watermaster, and tracked on the Department's water rights information
			 system.
(14) Leases that are
			 executed under the provisions of ORS
			 536.720 to
			 536.780"Emergency Water
			 Shortage Powers" shall not be subject to provisions of these rules. Those
			 leases are covered by OAR chapter 690 division 19.
(15) Except as provided in Sections (4) and
			 (5) of this rule, orders approving lease applications shall only be terminated
			 by a superseding order or by specific provision of the originating order
			 approving the lease application.
Stat. Auth.: ORS
				  536.027 &
				  537.332 - 539.360
Stats. Implemented: