68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
Enrolled
Senate Bill 1033
Sponsored by Senator BRYANT, Representatives NORRIS, MARKHAM;
Senators ADAMS, HANNON, JOHNSON, TIMMS, WALDEN, YIH,
Representatives BAUM, BEYER, CLARNO, CORCORAN, FISHER, HAYDEN,
JONES, JOSI, LUNDQUIST, MANNIX, MILNE, MONTGOMERY, PARKS,
REPINE, SCHOON, SOWA, TARNO (at the request of Oregon
Groundwater Association)
CHAPTER ................
AN ACT
Relating to water resources; creating new provisions; amending
ORS 390.835 and 536.028; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. ORS 390.835 is amended
to read:
390.835. (1) It is declared that the highest and best uses of
the waters within scenic waterways are recreation, fish and
wildlife uses. The free-flowing character of these waters shall
be maintained in quantities necessary for recreation, fish and
wildlife uses. No dam, or reservoir, or other water impoundment
facility shall be constructed or placer mining permitted on
waters within scenic waterways. No water diversion facility shall
be constructed or used except by right previously established or
as permitted by the Water Resources Commission, upon a finding
that such diversion is necessary to uses designated in ORS
536.310 (12), and in a manner consistent with the policies set
forth under ORS 390.805 to 390.925. The Water Resources
Commission shall administer and enforce the provisions of this
subsection.
(2) Filling of the beds or removal of material from or other
alteration of the beds or banks of scenic waterways shall be
prohibited, except as permitted by the Director of the Division
of State Lands upon a finding that such activity would be
consistent with the policies set forth under ORS 390.805 to
390.925 for scenic waterways, and approved by the State Land
Board and in a manner consistent with the policies set forth
under ORS 196.800 to 196.825 and 196.840 to 196.870 for removal
of material from the beds and banks and filling of any waters of
this state. The Director of the Division of State Lands shall
administer and enforce the provisions of this subsection.
(3)(a) Upon a finding of emergency circumstances, the Director
of the Division of State Lands may issue a temporary permit for
the removal, filling or alteration of the beds or banks within a
scenic waterway prior to approval by the State Land Board under
subsection (2) of this section. The temporary permit shall
include conditions developed after consultation with the State
Department of Fish and Wildlife and the State Parks and
Recreation Department. A temporary permit approved by the
Director of the Division of State Lands shall be reviewed by the
State Land Board at its next regularly scheduled meeting
following the emergency approval. Upon its review, the State Land
Board may approve, modify or revoke the permit.
(b) As used in this subsection, 'emergency circumstances '
exist if the activity is necessary to make repairs or to prevent
irreparable harm, injury or damage to persons or property.
(4) Nothing in ORS 390.805 to 390.925 affects the authority of
the State Fish and Wildlife Commission to construct facilities or
make improvements to facilitate the passage or propagation of
fish or to exercise other responsibilities in managing fish and
wildlife resources. Nothing in ORS 390.805 to 390.925 affects the
authority of the Water Resources Commission to construct and
maintain stream gauge stations and other facilities related to
the commission's duties in administration of the water laws.
(5) Upon a finding of necessity under subsection (1) of this
section, the Water Resources Commission may issue a water right
for human consumption not to exceed .005 cubic feet per second
per household, or livestock consumption uses not to exceed
one-tenth of one cubic foot per second per 1,000 head of
livestock, as designated in ORS 536.310 (12) within or above a
scenic waterway if the Water Resources Commission makes the
following findings:
(a) That issuing the water right does not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife.
(b) That issuing the water right is consistent with provisions
pertaining to water appropriation and water rights under ORS
chapters 536 and 537 and rules adopted thereunder.
(c) That construction, operation and maintenance of the
diversion system will be carried out in a manner consistent with
the purposes set forth in ORS 390.805 to 390.925.
(d) If the water right is for human consumption, an additional
finding that:
(A) The applicant cannot reasonably obtain water from any other
source;
(B) Denial of the water right would result in loss of
reasonable expectations for use of the property; and
(C) The system installed to divert water shall include
monitoring equipment to permit water use measurement and
reporting.
(e) If the water right is for livestock consumption, an
additional finding that:
(A) The right is necessary to prevent the livestock from
watering in or along the stream bed;
(B) The applicant cannot reasonably obtain water from any other
source; and
(C) The applicant has excluded livestock from the stream and
its adjacent riparian zone.
(6) In making the findings required under subsection (5) of
this section, the Water Resources Commission shall consider the
existing or potential cumulative impacts of issuing the water
right.
(7) The Water Resources Commission may not allow human
consumption and livestock uses authorized under subsection (5) of
this section in excess of a combined cumulative total of one
percent of the average daily flow or one cubic foot per second,
whichever is less, unless:
(a) The Water Resources Commission, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Division of State
Lands unanimously agree to exceed that amount; and
Enrolled Senate Bill 1033 Page 2
(b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
{ + (8)(a) The provisions of this section shall not apply to
a water right application for the use of ground water as defined
in ORS 537.515, except upon a finding by the Water Resources
Director based on a preponderance of evidence that the use of
ground water will measurably reduce the surface water flows
necessary to maintain the free-flowing character of a scenic
waterway in quantities necessary for recreation, fish and
wildlife.
(b) The Water Resources Department shall review every
application for the use of ground water to determine whether to
make the finding specified in paragraph (a) of this subsection.
The finding shall be based upon the application of generally
accepted hydrogeologic methods using relevant and available field
information concerning the proposed use.
(c) In making the determination required by paragraph (a) of
this subsection, the Water Resources Department shall consider
the timing of projected impacts of the proposed use in relation
to other factors, including but not limited to: Changing climate,
recharge, incidental precipitation, out-of-stream appropriations
and return flows.
(d) If the Water Resources Director makes the finding specified
in paragraph (a) of this subsection, the Water Resources Director
shall issue an order denying the application unless:
(A) Mitigation is provided in accordance with subsection (9) of
this section; or
(B) The applicant submits evidence to overcome the finding
under paragraph (a) of this subsection.
(e) Except as provided under subsection (12) of this section,
if the Water Resources Director does not make the finding
specified in paragraph (a) of this subsection, the Water
Resources Director shall issue an order approving the application
if the application otherwise meets the requirements of ORS
537.505 to 537.795.
(f) A protest of any order issued under this subsection may be
filed in the same manner as a protest on any application for a
right to appropriate ground water.
(g) Each water right permit and certificate for appropriation
of ground water issued after the effective date of this 1995 Act
for which a source of appropriation is within or above a scenic
waterway shall be conditioned to allow the regulation of the use
if analysis of data available after the permit or certificate is
issued discloses that the appropriation will measurably reduce
the surface water flows necessary to maintain the free-flowing
character of a scenic waterway in quantities necessary for
recreation, fish and wildlife in effect as of the priority date
of the right or as those quantities may be subsequently reduced.
(h) Nothing in this subsection shall limit the use of ground
water for a use exempted under ORS 537.545.
(9) The Water Resources Commission or Water Resources Director
shall consider mitigation measures and may include mitigation
measures as conditions in any water right permit or certificate
to ensure the maintenance of the free-flowing character of the
scenic waterway in quantities necessary for recreation, fish and
wildlife. + }
{ - (8) - } { + (10) + } The Water Resources Commission
{ + and the Water Resources Director + } shall carry out
{ - its - } { + their + } responsibilities under ORS 536.220
Enrolled Senate Bill 1033 Page 3
to 536.590 with respect to the waters within scenic waterways in
conformity with the provisions of this section.
{ + (11) As used in this section, 'measurably reduce' means
that the use authorized under subsection (8) of this section will
individually or cumulatively reduce surface water flows within
the scenic waterway in excess of a combined cumulative total of
one percent of the average daily flow or one cubic foot per
second, whichever is less, unless:
(a) The Water Resources Department, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Division of State
Lands unanimously agree to exceed that amount; and
(b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(12) Before authorizing an appropriation that will reduce
streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in subsection (11) of this
section, the Water Resources Director shall find:
(a) That the appropriation will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(b) That the appropriation is consistent with provisions
pertaining to water appropriations and water rights under ORS
chapters 536 and 537 and the rules adopted thereunder.
(c) That construction, operation and maintenance of the
appropriation will be carried out in a manner consistent with the
purposes set forth in ORS 390.805 to 390.925. + }
**************************** SECTION 2. ORS 536.028 is amended
to read:
536.028. In accordance with applicable provisions of ORS
183.310 to 183.550, the Water Resources Commission
{ - shall - } { + may + } adopt rules necessary to administer
the provisions of ORS 390.835 pertaining to the issuance of a
water right { - for human consumption or livestock consumption
uses - } within or above a scenic waterway.
**************************** SECTION 3. { + Any application
for a permit to appropriate ground water that is pending on the
effective date of this Act shall be processed in accordance with
the provisions of ORS 390.835 as amended by section 1 of this
Act, unless the applicant submits a request in writing to the
Water Resources Department asking that the department process the
application in accordance with the provisions of ORS 390.835 in
effect on the date the application was filed with the
department. + }
**************************** SECTION 4. { + This Act being
necessary for the immediate preservation of the public peace,
health and safety, an emergency is declared to exist, and this
Act takes effect on its passage. + }
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Enrolled Senate Bill 1033 Page 4
Passed by Senate May 1, 1995
Repassed by Senate June 7, 1995
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 22, 1995
Repassed by House June 9, 1995
...........................................................
Speaker of House
Enrolled Senate Bill 1033 Page 5
Received by Governor:
......M.,............., 1995
Approved:
......M.,............., 1995
...........................................................
Governor
Filed by Office of Secretary of State:
......M.,............., 1995
...........................................................
Secretary of State
Enrolled Senate Bill 1033 Page 6