69th OREGON LEGISLATIVE ASSEMBLY--1997 Regular Session
Enrolled
House Bill 2095
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Water Resources Department)
CHAPTER ................
AN ACT
Relating to reuse of water; creating new provisions; and amending
ORS 537.131, 537.141, 537.545, 540.510 and 540.610.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 537.131 is amended to read:
537.131. As used in ORS 537.132, 540.510 and 540.610, '
reclaimed water' means water that has been used for municipal
purposes and after such use has been treated in a
{ - sewage - } treatment { - system - } { + works as defined
in ORS 454.010, + } and that, as a result of treatment, is
suitable for a direct beneficial purpose or a controlled use that
could not otherwise occur.
SECTION 2. ORS 537.141 is amended to read:
537.141. (1) The following water uses do not require { + an
application under ORS 537.130 or 537.615, + } a water right
permit under ORS 537.211 or a water right certificate under ORS
537.250:
(a) Emergency fire-fighting uses;
(b) Water uses that divert water to water tanks or troughs from
a reservoir for a use allowed under an existing water right
permit or certificate for the reservoir;
(c) Fish screens, fishways and fish by-pass structures, as
exempted by rule of the Water Resources Commission;
(d) Land management practices intended to save soil and improve
water quality by temporarily impeding or changing the natural
flow of diffuse surface water across agricultural lands when
storage of public waters is not an intended purpose. Such
practices include but are not limited to:
(A) Terraces;
(B) Dikes;
(C) Retention dams and other temporary impoundments; and
(D) Agronomic practices designed to improve water quality and
control surface runoff to prevent erosion, such as ripping,
pitting, rough tillage and cross slope farming;
(e) Livestock watering operations that comply with the
requirements under subsections (2) and (3) of this section;
(f) Forest management activities that require the use of water
in conjunction with mixing pesticides as defined in ORS 634.006,
or in slash burning; { - and - }
(g) The collection of precipitation water from an artificial
impervious surface and the use of such water { + ; and
Enrolled House Bill 2095 (HB 2095-A) Page 1
(h) Land application of ground water so long as the ground
water:
(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right
issued for industrial purposes or a water right authorizing use
of water for confined animal feeding purposes;
(B) Is reused for irrigation purposes and the period of
irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality under either ORS 468B.050 to construct and
operate a disposal system or ORS 468B.215 to operate a confined
animal feeding operation + }.
(2) The use of surface water from a natural stream for
livestock watering may be exempted under subsection (1) of this
section if:
(a) The water is diverted from a stream to a trough or tank
through an enclosed water delivery system;
(b) The delivery system either is equipped with an automatic
shutoff or flow control mechanism or includes a means for
returning water to the stream source through an enclosed delivery
system; and
(c) The operation is located on land from which the livestock
would otherwise have access to the surface water source.
(3) If the diversion system described in subsection (2) of this
section is located within or above a scenic waterway, the amount
of water that may be used without a water right is limited to
one-tenth of one cubic foot per second per 1,000 head of
livestock. Nothing in this section shall prevent the Water
Resources Commission from approving an application for a water
right permit for a delivery system not qualifying under
subsection (2) of this section.
(4) The Water Resources Department, in conjunction with local
soil and water conservation districts, the State Department of
Agriculture and the State Department of Fish and Wildlife and any
other organization interested in participating, shall develop and
implement a voluntary educational program on livestock management
techniques designed to keep livestock away from streams and
riparian areas.
(5) To qualify for an exempt use under subsection (1)(f) of
this section, the user shall:
(a) Submit notice of the proposed use, including the
identification of the proposed water source, to the Water
Resources Department and to the State Department of Fish and
Wildlife at the time notice is provided to other affected
agencies pursuant to ORS 527.670; and
(b) Comply with any restrictions imposed by the department
pertaining to sources of water that may not be used in
conjunction with the proposed activity.
(6) { - By rule - } { + Except for the use of water under
subsection (1)(h) of this section + }, the Water Resources
Commission { + by rule + } may require any person or public
agency diverting water as described in subsection (1) of this
section to furnish information with regard to such water and the
use thereof. { + For a use of water described in subsection
(1)(h) of this section, the Department of Environmental Quality
shall provide to the Water Resources Department a copy of the
permit issued under ORS 468B.050 or 468B.215 authorizing the land
application of ground water for reuse. The permit shall provide
Enrolled House Bill 2095 (HB 2095-A) Page 2
the information regarding the place of use of such water and the
nature of the beneficial reuse. + }
SECTION 3. ORS 537.545 is amended to read:
537.545. (1) Except as provided in subsection (4) of this
section, no registration, certificate of registration,
application for a permit, permit, certificate of completion or
ground water right certificate under ORS 537.505 to 537.795 and
537.992 is required for the use of ground water for:
(a) Stockwatering purposes;
(b) Watering any lawn or noncommercial garden not exceeding
one-half acre in area;
(c) Watering the lawns, grounds and fields not exceeding 10
acres in area of schools located within a critical ground water
area established pursuant to ORS 537.730 to 537.740;
(d) Single or group domestic purposes in an amount not
exceeding 15,000 gallons a day;
(e) Down-hole heat exchange purposes; { - or - }
(f) Any single industrial or commercial purpose in an amount
not exceeding 5,000 gallons a day { + ; or
(g) Land application, so long as the ground water:
(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right
issued for industrial purposes or a water right authorizing use
of water for confined animal feeding purposes;
(B) Is reused for irrigation purposes and the period of
irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality under either ORS 468B.050 to construct and
operate a disposal system or ORS 468B.215 to operate a confined
animal feeding operation + }.
(2) The use of ground water for a use exempt under subsection
(1) of this section, to the extent that it is beneficial,
constitutes a right to appropriate ground water equal to that
established by a ground water right certificate issued under ORS
537.700. { + Except for the use of water under subsection (1)(g)
of this section, + } the Water Resources Commission { + by
rule + } may require any person or public agency using ground
water for any such purpose to furnish information with regard to
such ground water and the use thereof. { + For a use of water
described in subsection (1)(g) of this section, the Department of
Environmental Quality shall provide to the Water Resources
Department a copy of the permit issued under ORS 468B.050 or
468B.215 authorizing the land application of ground water for
reuse. The permit shall provide the information regarding the
place of use of such water and the nature of the beneficial
reuse. + }
(3) If it is necessary for the Water Resources Department to
regulate the use or distribution of ground water, including uses
exempt under subsection (1) of this section, the department shall
use as a priority date for the exempt uses the date indicated in
the log for the well filed with the department under ORS 537.765
or other documentation provided by the well owner showing when
water use began.
(4) After declaration of a ground water management area, any
person intending to make a new use of ground water that is exempt
under subsection (1) of this section shall apply for a ground
water permit under ORS 537.505 to 537.795 and 537.992 to use the
water. Any person applying for a permit for an otherwise exempt
use shall not be required to pay a fee for the permit.
Enrolled House Bill 2095 (HB 2095-A) Page 3
SECTION 4. ORS 540.510 is amended to read:
540.510. (1) Except as provided in subsections (2) to
{ - (7) - } { + (8) + } of this section, all water used in
this state for any purpose shall remain appurtenant to the
premises upon which it is used and no change in use or place of
use of any water for any purpose may be made without compliance
with the provisions of ORS 540.520 and 540.530. However, the
holder of any water use subject to transfer may, upon compliance
with the provisions of ORS 540.520 and 540.530, change the use
and place of use, the point of diversion or the use theretofore
made of the water in all cases without losing priority of the
right theretofore established. A district may change the place of
use in the manner provided in ORS 540.572 to 540.580 in lieu of
the method provided in ORS 540.520 and 540.530. When an
application for change of the use or place of use for a primary
water right is submitted in accordance with this section, the
applicant also shall indicate whether the land described in the
application has an appurtenant supplemental water right or
permit. If the applicant also intends to transfer the
supplemental water right or permit, the applicant also shall
include the information required under ORS 540.520 (2) for the
supplemental water right or permit. If the applicant does not
include the supplemental water right or permit in the transfer
application, the Water Resources Department shall notify the
applicant that the supplemental water right or permit will be
canceled before the department issues the order approving the
transfer of the primary water right, unless within 30 days the
applicant modifies the application to include the supplemental
water right or permit or withdraws the application. The
department may approve the transfer of the supplemental water
right or permit in accordance with the provisions of ORS 540.520
and 540.530. The department shall not approve the transfer of a
supplemental water right or permit if the transfer would result
in enlargement of the original water right or injury to an
existing water right. If the department approves the transfer of
the primary water right but does not approve the transfer of the
supplemental water right or permit, the department shall notify
the applicant of the department's intent to cancel that portion
of the supplemental water right or permit described in the
transfer application before the department issues the primary
water right transfer order, unless the applicant withdraws the
transfer application within 90 days.
(2) Subject to the limitations in ORS 537.490, any right to the
use of conserved water allocated by the Water Resources
Commission under ORS 537.470 may be severed from the land and
transferred or sold after notice to the commission as required
under ORS 537.490.
(3)(a) Any water used under a permit or certificate issued to a
municipality, or under rights conferred by ORS 538.410 to
538.450, or under the registration system set forth in ORS
537.132, may be applied to beneficial use on lands to which the
right is not appurtenant if:
(A) The water is applied to lands which are acquired by
annexation or through merger, consolidation or formation of a
water authority, so long as the rate and use of water allowed in
the original certificate is not exceeded;
(B) The use continues to be for municipal purposes and would
not interfere with or impair prior vested water rights; or
Enrolled House Bill 2095 (HB 2095-A) Page 4
(C) The use is authorized under a permit granted under ORS
468B.050 and for which a reclaimed water registration form has
been filed under ORS 537.132.
(b) As used in this subsection, 'municipality' means a city, a
port formed under ORS 777.005 to 777.725, 777.915 to 777.953 and
778.010, a domestic water supply district formed under ORS
chapter 264, a water supplier as defined in ORS 448.115 or a
water authority formed under ORS chapter 450.
(4) Pursuant to the provisions of ORS 540.570, any water used
under a permit or certificate issued to a district may be applied
to beneficial use on lands within the district to which the right
is not appurtenant.
(5) The relocation of a point of diversion as necessary to
follow the movements of a naturally changing stream channel does
not constitute a change in point of diversion for purposes of ORS
540.520 if:
(a) The diversion point stays within 500 feet of the point of
diversion on record with the Water Resources Department;
(b) The change does not move the diversion point upstream or
downstream beyond the diversion point of another appropriator;
and
(c) The diversion is provided with a proper fish screen, if
requested by the State Department of Fish and Wildlife.
(6) In the event that government action results in or creates a
reasonable expectation of a change in the surface level of a
surface water source that impairs or threatens to impair access
to a point of diversion authorized by a water right permit,
certificate or decree, the owner of the water right may change
the point of diversion or add an additional point of diversion in
accordance with the provisions of this section in lieu of
complying with the requirements of ORS 540.520 and 540.530.
Before changing the point of diversion, the water right owner
shall provide written notice of the proposed change to the Water
Resources Department. Within 15 days after receipt of such
notice, the department shall provide notice by publication in the
department's public notice of water right applications. Within 60
days after the department receives notice from the owner, the
Water Resources Director, by order, shall approve the change
unless the director finds the changes will result in injury to
other existing water rights. All other terms and conditions of
the water right shall remain in effect.
(7) The sale or lease of the right to the use of conserved
water under ORS 537.490 does not constitute a change of use or a
change in the place of use of water for purposes of ORS 540.520.
{ + (8) Ground water applied to an exempt use as set forth in
ORS 537.141 or 537.545 may be subsequently applied to land for
irrigation purposes under ORS 537.141 (1)(h) or 537.545 (1)(g)
without application for a change in use or place of use under
this section. + }
SECTION 5. ORS 540.610 is amended to read:
540.610. (1) Beneficial use shall be the basis, the measure and
the limit of all rights to the use of water in this state.
Whenever the owner of a perfected and developed water right
ceases or fails to use all or part of the water appropriated for
a period of five successive years, the failure to use shall
establish a rebuttable presumption of forfeiture of all or part
of the water right. Thereafter the water which was the subject of
use under such water right shall revert to the public and become
again the subject of appropriation in the manner provided by law,
subject to existing priorities.
Enrolled House Bill 2095 (HB 2095-A) Page 5
(2) Upon a showing of failure to use beneficially for five
successive years, the appropriator has the burden of rebutting
the presumption of forfeiture by showing one or more of the
following:
(a) The water right is for use of water, or rights of use,
acquired by cities and towns in this state, by appropriation or
by purchase, for all reasonable and usual municipal purposes.
(b) A finding of forfeiture would impair the rights of such
cities and towns to the use of water, whether acquired by
appropriation or purchase, or heretofore recognized by act of the
legislature, or which may hereafter be acquired.
(c) The use of water, or rights of use, are appurtenant to
property obtained by the Department of Veterans' Affairs under
ORS 407.135 or 407.145 for three years after the expiration of
redemptions as provided in ORS 23.530 to 23.600 while the land is
held by the Director of Veterans' Affairs, even if during such
time the water is not used for a period of more than five
successive years.
(d) The use of water, or rights of use, under a water right, if
the owner of the property to which the right is appurtenant is
unable to use the water due to economic hardship as defined by
rule by the Water Resources Commission.
(e) The period of nonuse occurred during a period of time
within which land was withdrawn from use in accordance with the
Act of Congress of May 28, 1956, chapter 327 (7 U.S.C. 1801-1814;
1821-1824; 1831-1837), or the Federal Conservation Reserve
Program, Act of Congress of December 23, 1985, chapter 198 (16
U.S.C. 3831-3836, 3841-3845). If necessary, in a cancellation
proceeding under this section, the water right holder rebutting
the presumption under this paragraph shall provide documentation
that the water right holder's land was withdrawn from use under a
federal reserve program.
(f) The end of the alleged period of nonuse occurred more than
15 years before the date upon which evidence of nonuse was
submitted to the commission or the commission initiated
cancellation proceedings under ORS 540.631, whichever occurs
first.
(g) The owner of the property to which the water right was
appurtenant is unable to use the water because the use of water
under the right is discontinued under an order of the commission
under ORS 537.775.
(h) The nonuse occurred during a period of time within which
the water right holder was using reclaimed water in lieu of using
water under an existing water right.
{ + (i) The nonuse occurred during a period of time within
which the water right holder was reusing water through land
application as authorized by ORS 537.141 (1)(h) or 537.545 (1)(g)
in lieu of using water under an existing water right. + }
{ - (i) - } { + (j) + } The owner or occupant of the
property to which the water right is appurtenant was unable to
make full beneficial use of the water because water was not
available. A water right holder rebutting the presumption under
this paragraph shall provide evidence that the water right holder
was ready, willing and able to use the water had it been
available.
{ - (j) - } { + (k) + } The holder of a water right is
prohibited by law from using the water. If the prohibition is
subject to remedial action that would allow the use of the water,
the water right holder shall provide evidence that the water
Enrolled House Bill 2095 (HB 2095-A) Page 6
right holder is conducting the remedial action with reasonable
diligence.
{ - (k) - } { + (L) + } The nonuse occurred during a period
of time within which the exercise of all or part of the water
right was not necessary due to climatic conditions, so long as
the water right holder had a facility capable of handling the
full allowed rate and duty, and was otherwise ready, willing and
able to use the entire amount of water allowed under the water
right.
(3) The right of all cities and towns in this state to acquire
rights to the use of the water of natural streams and lakes, not
otherwise appropriated, and subject to existing rights, for all
reasonable and usual municipal purposes, and for such future
reasonable and usual municipal purposes as may reasonably be
anticipated by reason of growth of population, or to secure
sufficient water supply in cases of emergency, is expressly
confirmed.
SECTION 6. { + Nothing in the amendments to ORS 537.131,
537.141, 537.545, 540.510 and 540.610 by sections 1, 2, 3, 4 and
5 of this Act shall be construed to affect any right to reuse
industrial discharge water or to affect the right to use
municipal water rights or reclaimed water in existence on or
before the effective date of this Act. + }
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Passed by House April 28, 1997
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 14, 1997
...........................................................
President of Senate
Enrolled House Bill 2095 (HB 2095-A) Page 7
Received by Governor:
......M.,............., 1997
Approved:
......M.,............., 1997
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 1997
...........................................................
Secretary of State
Enrolled House Bill 2095 (HB 2095-A) Page 8