Chapter 537 — Appropriation of Water Generally

2011 EDITION

APPROPRIATION OF WATER GENERALLY

WATER LAWS

GENERAL PROVISIONS

537.010 Definition of “Water Rights Act”

PUBLIC AGENCY WATER USE REGISTRATION

537.040 Registration of water for road construction, maintenance or reconstruction; fee; annual renewal statement; limitations; rules

GEOTHERMAL WELLS

537.090 Laws applicable to geothermal wells

537.095 Interference between geothermal well and other water appropriation

WATER USE REPORTING

537.097 Verification of land ownership; time limits; exception

537.099 Water use report from governmental entity

APPROPRIATION UNDER 1909 ACT; LIMITED LICENSES

537.110 Public ownership of waters

537.120 Right of appropriation; vested rights protected

537.130 Permit to appropriate water required; notification to owner of certain land

537.131 Reclaimed water

537.132 Exemption from permit requirement for use of reclaimed water; rules

537.133 Permittee’s right to enter on forestland; notice

537.135 Permit required to appropriate water for recharging ground water sources; minimum perennial streamflow required for permit; exception

537.139 Failure to obtain authorization for access to certain land

537.140 Application for permit; contents; maps and drawings

537.141 Uses of water not requiring water right application, permit or certificate; rules

537.142 Water right permit or certificate not required for egg incubation project under salmon and trout enhancement program

537.143 Limited license to use or store surface or ground water or to use stored water; rules

537.144 Request for right to use water under limited license; fee

537.145 Notice of filing of application to appropriate water for hydroelectric purposes

537.147 Permit to use stored water; fee

537.150 Filing of application; determination of completeness; initial review; preliminary determination; notice; public comments; fees

537.153 Review of application; proposed final order; presumption that use will not impair or be detrimental to public interest; standing; protest; final order; contested case hearing

537.160 Approval for beneficial use; agreement authorizing use of ditch for waste or seepage water

537.170 Contested case hearing on application; final order; appeal

537.173 Exceptions to final order; modified order

537.175 Time limit for issuing final order or scheduling contested case hearing; applicant request for extension

537.190 Terms and conditions of approval; municipal water supplies; release of stored water

537.211 Issuance of permit if application approved; contents of permit; effect; rejection of application; change in use allowed under permit

537.220 Assignment of application, permit or license

537.230 Time allowed for construction of irrigation or other work; extension; survey; map; requirements for supplemental water right

537.240 Federal permit; time for obtaining; cancellation; time for beginning and completing work

537.248 Requirement to include in reservoir permit date for beginning and completing construction and for perfecting water right; extension

537.249 Election to have proposed reservation considered as application for permit or rulemaking proceeding

537.250 Water right certificate; issuance; inclusion of land not described in permit; recordation; duration of rights

537.252 Certificate issued for land not described in permit; notice

537.260 Cancellation of permit for failure of proof of completion of appropriation; issuance of limited certificate; contest of issuance of certificate; exception for municipalities

537.270 Conclusiveness of certificate

537.282 Definition of “municipal applicant”

537.283 Procedure for applications to appropriate water for hydroelectric power; rules

537.285 Municipal applicant may develop hydroelectric project jointly with private person; restrictions

537.287 Rules for joint project of municipal applicant and private person

537.289 Conditions to be imposed on permit of municipal corporation or district

537.292 Conditions to be imposed on certificate of municipal corporation or district

537.295 Cancellation of permit when holder fails to continue to qualify as municipal applicant

537.297 Cancellation of water right certificate when holder fails to continue to qualify as municipal applicant

537.299 Consequences of cancellation of permit or certificate if holder no longer municipal applicant; conditions to protect public health and welfare

537.310 Acquisition of water rights for railway purposes; certificates

537.320 Entry on land for survey purposes, preliminary to appropriation and diversion of waters

537.330 Disclosure required in real estate transaction involving water right; exception; delivery of available permit, order or certificate; effect of failure to comply

IN-STREAM WATER RIGHTS

537.332 Definitions for ORS 537.332 to 537.360

537.334 Findings

537.336 State agencies authorized to request in-stream water rights; agreement required when supply is stored water

537.338 Rules for state agency request for in-stream water right

537.341 Certificate for in-stream water right

537.343 Proposed final order; conditions

537.346 Conversion of minimum perennial streamflows to in-stream water rights; special provisions for Willamette Basin

537.348 Purchase, lease or gift of water right for conversion to in-stream water right; priority dates

537.349 Processing request for in-stream water right

537.350 Legal status of in-stream water right

537.352 Precedence of uses

537.354 In-stream water right subject to emergency water shortage provisions

537.356 Request for reservation of unappropriated water for future economic development; priority date of reservation

537.358 Rules for reservation for future economic development; application for use of reserved water

537.360 Relationship between application for in-stream water right and application for certain hydroelectric permits

MISCELLANEOUS

537.385 Extension of irrigation season; rules; limitations

537.390 Valuation of water rights

537.395 Public recapture of water power rights and properties; no recapture of other rights

PONDS AND RESERVOIRS

537.400 Reservoir permits

537.405 Exempt reservoirs; written notification to department; injury to other users

537.407 Water right certificate for reservoirs existing before January 1, 1993; injury to other users; conversion of prior application to notice of exemption

537.409 Alternate permit application process for qualifying reservoirs; injury to existing users or fishery resources; public interest review; rules

CANCELLATION OF PERMIT FOR APPROPRIATION

537.410 Failure to commence or complete work, or to properly apply water, as grounds for cancellation of permit; irrigation districts, municipalities and public utilities excepted

537.420 Notice of hearing

537.440 Cancellation of permit; priorities of other permits

537.445 Hearing upon proposal to cancel permit or appropriation; cancellation suspended pending review

537.450 Rules for proof as to work and use of water under permits; noncompliance as evidence in cancellation proceedings

CONSERVATION AND USE OF CONSERVED WATER

537.455 Definitions for ORS 537.455 to 537.500 and 540.510

537.460 Legislative findings; policy

537.463 Applicability of ORS 537.455 to 537.500

537.465 Application for allocation of conserved water; submission; required contents

537.470 Allocation of conserved water by commission; criteria; percentage to state; certificates showing change in original water right

537.480 Rules; criteria for evaluating allocation and determining mitigation required

537.485 Priority of right to use conserved water; choice of priority

537.490 Use of conserved water; notice of dispensation of right to use

537.495 Receipt by state agency or political subdivision of right to use conserved water

537.500 Legal status of conserved water right

GROUND WATER

(Generally)

537.505 Short title

537.515 Definitions for ORS 537.505 to 537.795 and 537.992

537.525 Policy

(Aquifer Storage and Recovery)

537.531 Legislative findings

537.532 Injection of ground water into aquifers; standards

537.534 Rules for permitting and administering aquifer storage and recovery projects; limited license for test program; fees

(Appropriation of Ground Water)

537.535 Unlawful use or appropriation of ground water, including well construction and operation

537.545 Exempt uses; map; filing of use; fee; rules

537.575 Permits granted, approved or pending under former law

537.585 Beneficial use of ground water prior to August 3, 1955, recognized as right to appropriate water when registered

537.595 Construction or alteration of well commenced prior to August 3, 1955, recognized as right to appropriate water when registered

537.605 Registration of right to appropriate ground water claimed under ORS 537.585 or 537.595; registration statement

537.610 Recording registration statement; issuing certificate of registration; effect of certificate; rules; fees

537.615 Application for permit to acquire new right or enlarge existing right to appropriate ground water; fee

537.620 Determination of completeness of application; initial review; preliminary determination; notice; public comments; fees

537.621 Review of application; proposed final order; presumption that use will ensure preservation of public welfare, safety and health; flow rate and duty; standing; protest; final order; contested case hearing

537.622 Contested case hearing; parties; issues

537.625 Final order; appeal; contents of permit

537.626 Exceptions to final order; modified order

537.627 Time limit for issuing final order or scheduling contested case hearing; extension; writ of mandamus

537.628 Terms; conditions; time limit for issuing final order after contested case hearing

537.629 Conditions or limitations to prevent interference with other users

537.630 Time allowed for construction work under permit; certificate of completion; survey; ground water right certificate; requirements for supplemental water right

537.635 Assignment of application, certificate of registration or permit

537.665 Investigation of ground water reservoirs; defining characteristics and assigning names and numbers

537.670 Determination of rights to appropriate ground water of ground water reservoir

537.675 Determination of rights in several reservoirs or of critical ground water area in same proceeding

537.680 Taking testimony; inspecting evidence; contesting claim

537.685 Findings of fact and order of determination

537.690 Filing evidence, findings and determinations; court proceedings

537.695 Conclusive adjudication

537.700 Issuing ground water right certificate

537.705 Ground water appurtenant; change in use, place of use or point of appropriation

537.720 Violation of terms of law or permit or certificate; action by Water Resources Commission

537.730 Designation of critical ground water area; rules; notice

537.735 Rules designating critical ground water area

537.740 Filing rules designating critical ground water area

537.742 Contested case proceeding to limit use of ground water in critical ground water area

537.745 Voluntary agreements among ground water users from same reservoir

537.746 Mitigation credits for projects in Deschutes River Basin; relationship to water made available; rules; annual report

(Deschutes Basin Ground Water Study Area)

(Temporary provisions relating to the Deschutes Basin ground water study area are compiled as notes following ORS 537.746)

(Water Well Constructors)

537.747 Water well constructor’s license; rules; fees

537.750 Examination for license

537.753 Bond or letter of credit; landowner’s permit and bond

537.762 Report of constructor before beginning work on well; rules; fees

537.763 Water Resources Department Operating Fund

537.765 Log of constructing, altering, abandoning or converting well; furnishing samples to Water Resources Commission

(Well Constructors Continuing Education Committee)

(Temporary provisions relating to the Well Constructors Continuing Education Committee are compiled as notes following ORS 537.765)

(Local Regulation)

537.769 Local regulation of wells and water well constructors

(Regulation of Ground Water Wells)

537.772 Pump tests; report; rules for waiver

537.775 Wasteful or defective wells; permanent abandonment of old well

537.777 Regulation of controlling works of wells and distribution of ground water

537.780 Powers of Water Resources Commission; rules; limitations on authority

537.783 Reinjection of geothermal fluids; rules and standards; water pollution control facilities permit

537.785 Fees

537.787 Investigation of violation of ground water laws; remedies for violation

537.789 Well identification number

537.791 Request for well identification number

537.793 Effect of failure to comply with ORS 537.789 or 537.791

537.795 ORS 537.505 to 537.795 supplementary

537.796 Rules regarding low temperature geothermal appropriations

WATER RIGHT EXAMINERS; SURVEYS

537.797 Criteria for certification of land surveyors, engineers and geologists to determine work completion; rules

537.798 Water right examiner certificate; regulation of profession; rules; fees

537.799 Survey for issuance of water right certificate

WASTE, SPRING AND SEEPAGE WATERS

537.800 Waste, spring and seepage waters; laws governing

DIVERSION OF WATERS FROM BASIN OF ORIGIN

537.801 Definitions; findings

537.803 Application proposing use of water outside of basin of origin; contents

537.805 Processing of application; hearing; action on application

537.809 Reservation of water in basin of origin

537.810 Diversion or appropriation of waters from basin of origin without legislative consent prohibited; terms of consent; exceptions

537.820 Application of provisions to waters forming common boundary between states

537.830 Condemnation of waters for use outside basin of origin

537.835 City of Walla Walla, Washington, may appropriate, impound and divert certain waters from Mill Creek

537.840 Legislative consent; filing of certified copy; appropriation rights and procedure

537.850 Suits to protect state interests; right of redress to private persons

537.855 Domestic water supply district permitted to divert water out of state; conditions

537.860 Vested rights protected

537.870 Out-of-state municipalities; acquisition of land and water rights in Oregon

GEOTECHNICAL HOLES

537.880 Policy; log requirement; reporting

537.885 Licensing or registration required for drilling of geotechnical hole

537.890 Report form; rules; fees

537.895 Water Resources Department Geotechnical Fund

PENALTIES

537.990 Criminal penalties

537.992 Civil penalties; schedule of penalties; rules

GENERAL PROVISIONS

537.010 Definition of “Water Rights Act.” As used in this chapter, “Water Rights Act” means and embraces ORS 536.050, 537.120, 537.130, 537.140 to 537.252, 537.390 to 537.400, 538.420, 540.010 to 540.120, 540.210 to 540.230, 540.310 to 540.430, 540.505 to 540.585 and 540.710 to 540.750. [Amended by 1985 c.673 §183]

PUBLIC AGENCY WATER USE REGISTRATION

537.015 [1993 c.654 §2; repealed by 2005 c.14 §4]

537.017 [1993 c.654 §3; repealed by 2005 c.14 §4]

537.020 [1993 c.654 §4; 1995 c.416 §43; 1999 c.664 §4; 2003 c.594 §8; repealed by 2005 c.14 §4]

537.022 [1993 c.654 §5; repealed by 2005 c.14 §4]

537.025 [1993 c.654 §6; repealed by 2005 c.14 §4]

537.027 [1993 c.654 §7; repealed by 2005 c.14 §4]

537.030 [1993 c.654 §8; repealed by 2005 c.14 §4]

537.032 [1993 c.654 §9; repealed by 2005 c.14 §4]

537.040 Registration of water for road construction, maintenance or reconstruction; fee; annual renewal statement; limitations; rules. (1) In lieu of applying for a permit for a water right under ORS 537.130, a public agency having jurisdiction over roads or highways may register a water use for road and highway maintenance, construction and reconstruction purposes.

(2) A public agency applying to register a water use under subsection (1) of this section shall:

(a) Submit a completed application to register the water use;

(b) Pay a fee of $300 to be deposited in the Water Resources Department Water Right Operating Fund;

(d) Identify the sources of surface water or ground water to be used;

(e) Specify the maximum amount of water to be used during a calendar year and during any 24-hour period; and

(f) If the public agency is withdrawing water from a conveyance or storage facility that is a perfected or certificated water right:

(A) Identify the permit or certificate number of the conveyance or storage right; and

(B) Provide written authorization from the owner of the perfected or certificated water right that allows the public agency to use water from the conveyance or storage facility.

(3) A use of water registered under subsection (1) of this section shall continue until the public agency voluntarily withdraws the registration. However, the public agency shall submit an annual renewal statement accompanied by an annual fee of $50 to be deposited in the Water Resources Department Water Right Operating Fund. The annual renewal statement shall specify any change in the map, the sources of water to be used or maximum amount of water to be used.

(4) The use of water registered under subsection (1) of this section:

(a) Shall not have priority over any water right exercised under a permit, water right certificate, certificate of registration, order of the Water Resources Commission or the Water Resources Director and related court decrees;

(b) Shall be subordinate to all other future permitted or certificated rights; and

(5) The commission may require a public agency to cease withdrawal or diversion of water at any time the director has reason to believe the registered use is causing a significant adverse impact upon:

(a) The affected watershed;

(b) Any other water user entitled to use water under a permit issued under ORS 537.211 or 537.625 or a certificate issued under ORS 537.250, 537.630 or 539.140; or

(6) The commission may adopt rules to implement this section. The commission shall not require the map to be prepared by a water right examiner certified under ORS 537.798.

(7) As used in this section, “public agency” means the State of Oregon, any agency of the State of Oregon, a county, a special road district of a county, a city, town, incorporated municipality and any federal agency that has jurisdiction over a roadway in this state. [1993 c.705 §2; 1995 c.416 §44; 1999 c.664 §5; 2003 c.594 §7]

GEOTHERMAL WELLS

537.090 Laws applicable to geothermal wells. (1) The provisions of this chapter relating to appropriation and water rights do not apply to the production of fluid from a well with a bottom hole temperature of at least 250 degrees Fahrenheit.

(2) Production of fluids from a well with a bottom hole temperature of at least 250 degrees Fahrenheit shall be regulated as a geothermal resource under the applicable sections of ORS chapter 522.

(3) If the bottom hole temperature of a well that was initially less than 250 degrees Fahrenheit increases to at least 250 degrees Fahrenheit, the State Geologist and the Water Resources Commission, after consulting with the well owner, shall determine the agency with regulatory responsibility for that specific well. This determination shall be documented in writing and shall supersede a determination made under subsection (2) of this section. [1981 c.589 §3; 1985 c.673 §21]

537.095 Interference between geothermal well and other water appropriation. If interference between an existing geothermal well permitted under ORS chapter 522 and an existing water appropriation permitted under this chapter is found by either the State Geologist or the Water Resources Commission, the State Geologist and the Water Resources Commission shall work cooperatively to resolve the conflict and develop a cooperative management program for the area. In determining what action should be taken, they shall consider the following goals:

(1) Achieving the most beneficial use of the water and heat resources;

(2) Allowing all existing users of the resources to continue to use those resources to the greatest extent possible; and

(3) Insuring that the public interest in efficient use of water and heat resources is protected. [1981 c.589 §10; 1985 c.673 §22]

WATER USE REPORTING

537.097 Verification of land ownership; time limits; exception. (1) As the Water Resources Commission updates its water right and permit records with current land ownership information from county records or other sources, the commission shall request the person shown in those updated records to verify that the person owns the land to which a water right or permit is appurtenant.

(2) Any person receiving a request under subsection (1) of this section shall return the verification within 120 days.

(3) Except as provided in subsection (4) of this section, the commission shall request verification from all persons shown in updated water right and permit records on or before July 1, 1992.

(4) If the commission considers verification unnecessary for any water right perfected, transferred or adjudicated after July 16, 1987, the commission need not request verification of that water right or permit. [1987 c.649 §2]

537.099 Water use report from governmental entity. (1) Except as provided in subsection (3) of this section, any governmental entity that holds a water right shall submit an annual water use report to the Water Resources Department. The report shall include, but need not be limited to the amount of water used by the governmental entity, the period of use and the categories of beneficial use to which the water is applied.

(2) As used in this section, “governmental entity” includes any state or federal agency, local government as defined in ORS 294.004, irrigation district formed under ORS chapter 545 and a water control district formed under ORS chapter 553.

(3) A governmental entity that acquires land because of default in repayment of loans or other debts owed to the state is not required to file an annual water use report under this section. [1987 c.649 §3]

APPROPRIATION UNDER 1909 ACT; LIMITED LICENSES

537.110 Public ownership of waters. All water within the state from all sources of water supply belongs to the public.

537.120 Right of appropriation; vested rights protected. Subject to existing rights, and except as otherwise provided in ORS chapter 538, all waters within the state may be appropriated for beneficial use, as provided in the Water Rights Act and not otherwise; but nothing contained in the Water Rights Act shall be so construed as to take away or impair the vested right of any person to any water or to the use of any water.

537.130 Permit to appropriate water required; notification to owner of certain land. (1) Except for a use exempted under ORS 537.040, 537.141, 537.142, 537.143 or 537.800 or under the registration system set forth in ORS 537.132, any person intending to acquire the right to the beneficial use of any of the surface waters of this state shall, before beginning construction, enlargement or extension of any ditch, canal or other distributing or controlling works, or performing any work in connection with the construction, or proposed appropriation, make an application to the Water Resources Department for a permit to make the appropriation.

(2) Except for a use exempted under ORS 537.040, 537.141, 537.142, 537.143 or 537.800 or under the registration system set forth in ORS 537.132, a person may not use, store or divert any waters until after the department issues a permit to appropriate the waters.

(3) The department may not issue a permit without notifying the owner, as identified in the application, of any land to be crossed by the proposed ditch, canal or other work as set forth in the application filed pursuant to ORS 537.140. The department shall provide the notice even if the applicant has obtained written authorization or an easement from the owner.

(4) If more than 25 persons are identified in the application as required under subsection (3) of this section, the department may provide the notice required under subsection (3) of this section by publishing notice of the application in a newspaper having general circulation in the area in which the proposed ditch, canal or other work is located at least once each week for at least two successive weeks. The cost of the publication shall be paid by the applicant in advance to the department. [Amended by 1985 c.310 §3; 1985 c.673 §25; 1989 c.509 §3; 1991 c.370 §4; 1995 c.365 §1; 1995 c.416 §2a; 2005 c.14 §2; 2011 c.52 §2]

537.131 Reclaimed water. 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 treatment 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. [1991 c.370 §2; 1997 c.244 §1]

Note: 537.131 was added to and made a part of ORS chapter 537 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

537.132 Exemption from permit requirement for use of reclaimed water; rules. (1) The provisions of ORS 537.130 requiring application for a permit to appropriate water shall not apply to the use of reclaimed water, if:

(a) The use of reclaimed water is authorized by the national pollutant discharge elimination system or water pollution control facilities permit issued pursuant to ORS 468B.050 or 468B.053;

(b) The Department of Environmental Quality, in reviewing an application for a permit pursuant to ORS 468B.050 or 468B.053, has consulted with the State Department of Fish and Wildlife on the impact to fish and wildlife to determine that the application of reclaimed water under ORS 537.130, 537.131, 537.132, 540.510 and 540.610 shall not have a significant negative impact on fish and wildlife; and

(c) The Department of Environmental Quality has determined the use of reclaimed water is intended to improve the water quality of the receiving stream.

(2) Any person using or intending to use reclaimed water shall file with the Water Resources Department a reclaimed water registration form setting forth the following:

(a) Name and mailing address of the registrant;

(b) The date the use of reclaimed water is initiated;

(c) Source of reclaimed water supply, including a description of the location of the reclaimed water treatment facility and the name and mailing address of the owner and operator of the facility;

(d) Nature of the use of the reclaimed water;

(e) Amount of reclaimed water used or proposed to be used;

(f) Location and description of the ditch, canal, pipeline or any other conduction facility used or to be used to transport the reclaimed water from the treatment facility to the place of use;

(g) A statement declaring the existence of a written contract or agreement to provide reclaimed water including the name and address of the reclaimed water provider and the date and terms of such contract or agreement;

(h) A description of the season of use and the place of use of the reclaimed water, and any restrictions applicable to the use of the reclaimed water; and

(i) If the reclaimed water is used in lieu of using water under an existing water right, the application, permit and certificate number of such right, or if the right is granted pursuant to a decree of circuit court, the volume and page number setting forth the right.

(3) If a municipality has discharged waste water into a natural watercourse for five or more years, and the discharge represents more than 50 percent of the total average flow of the natural watercourse and if such discharge would cease as a result of the use of reclaimed water in accordance with the provisions of ORS 540.510 (3) and this section, the director of the department shall notify any persons who, according to the department records, have a water right that may be affected by the cessation of the discharge by the municipality.

(4) If a person holding an affected water right demonstrates to the department that the cessation of discharge by the municipality substantially impairs the ability to satisfy a water right, the person shall be entitled to a preference to the use of the reclaimed water. However, the delivery of the reclaimed water to the person claiming such preference shall be accomplished through a conveyance facility or channel other than a natural watercourse.

(5) If a municipality has a less expensive alternative for the disposal and distribution of the reclaimed water, the municipality shall not be obligated to incur expenses or cost beyond the expenses or costs of such alternative.

(6) The Water Resources Commission shall adopt rules to implement the notice and preference provisions and impairment evaluation standards of this section. [1991 c.370 §3; 1997 c.286 §8]

Note: 537.132 was added to and made a part of ORS chapter 537 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

537.133 Permittee’s right to enter on forestland; notice. (1) A permittee may not enter upon forestland adjacent to the point of diversion designated in the permit until such person provides notice to the landowner of the permittee’s intention to enter upon such property. The notice shall:

(a) Be in writing;

(b) Be mailed to the landowner 30 days prior to the commencement of any construction, maintenance or repair work; and

(2) If a permittee fails to provide the notice required in subsection (1) of this section, the permittee shall not obtain any right to continued use of the land without the express written consent of the landowner.

(3) For purposes of determining whether a prescriptive easement or way of necessity has been established under Oregon common law, unimproved or unenclosed forestlands shall include commercial forestland parcels larger than 20 acres. [1989 c.509 §5]

Note: 537.133 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 537 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

537.135 Permit required to appropriate water for recharging ground water sources; minimum perennial streamflow required for permit; exception. (1) The appropriation of water for the purpose of recharging ground water basins or reservoirs is declared to be for a beneficial purpose. Permits for such appropriation may be granted by the Water Resources Department on application made therefor. Any such application shall substantially comply with ORS 537.140 and shall be subject to the provisions of ORS 537.150 to 537.230, as are other applications and permits to appropriate water.

(2) Any person proposing to apply to a beneficial use the water stored artificially in any such ground water basin or reservoir shall file an application for permit, to be known as the secondary permit, in compliance with the provisions of ORS 537.130, 537.140, 537.142 and 537.145 to 537.230. The application shall refer to the artificially recharged ground water basin or reservoir as a supply of water and shall include the written consent of the holder of the recharge permit or certificate to appropriate the artificially recharged water.

(3) The Water Resources Commission shall develop standards that an applicant must meet before the department approves a permit to appropriate water for the purpose of recharging ground water.

(4) Before issuing a permit for the purpose of recharging ground water, the department shall determine, under ORS 537.170, whether the proposed ground water recharge project would impair or be detrimental to the public interest.

(5) The department shall not issue a ground water recharge permit unless the supplying stream has a minimum perennial streamflow established for the protection of aquatic and fish life. The State Department of Fish and Wildlife may waive this prerequisite if a minimum perennial streamflow for protection of aquatic and fish life is not required for the supplying stream. [1961 c.402 §1; 1985 c.673 §26; 1987 c.499 §1; 1995 c.416 §3]

537.139 Failure to obtain authorization for access to certain land. (1) The failure of an applicant to obtain written authorization, obtain an easement or acquire ownership of land if required as a condition to issuance of a permit under ORS 537.211 (2) shall be a ground for refusal to issue a permit.

(2) If an applicant makes a statement under ORS 537.140 (1)(a)(E) that falsely states that the applicant owns all lands crossed by a proposed ditch, canal or other work or that the applicant has obtained written authorization or an easement permitting access across such lands, any permit issued in response to the application shall be subject to cancellation.

(3) Nothing in ORS 537.130, 537.133, 537.139, 537.140, 537.250, 772.305 and 772.310 requires the Water Resources Department to mediate or arbitrate a dispute between a permittee and a landowner with respect to the provisions of ORS 537.130, 537.133, 537.139, 537.140, 537.250, 772.305 and 772.310. [1989 c.509 §8; 1995 c.365 §2; 1995 c.416 §4]

Note: 537.139 was added to and made a part of 537.110 to 537.330 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

537.140 Application for permit; contents; maps and drawings. (1)(a) Each application for a permit to appropriate water shall be made to the Water Resources Department on a form prescribed by the department and shall set forth:

(A) The name and mailing address of the applicant;

(B) The source of water supply including the name and mailing address of any owner of the land upon which the source of the water supply is located;

(D) The location and description of the proposed ditch, canal or other work, including the name and mailing address of the owner of any lands that are not owned by the applicant and that are crossed by the proposed ditch, canal or other work even if the applicant has obtained written authorization or an easement from the owner;

(E) A statement declaring whether the applicant has written authorization or an easement permitting access to nonowned land crossed by the proposed ditch, canal or other work;

(F) The time within which it is proposed to begin construction;

(G) The time required for completion of the construction;

(H) The time for the complete application of the water to the proposed use; and

(I) Any other information required in the application form that is necessary to evaluate the application as established by statute and rule.

(b) If for agricultural purposes, the application shall give the legal subdivisions of the land and the acreage to be irrigated, as near as may be.

(c) Except as provided in subsection (2) of this section, if for power purposes, the application shall give the nature of the works by means of which the power is to be developed, the head and amount of water to be utilized, and the uses to which the power is to be applied.

(d) If for construction of a reservoir, the application shall give the height of dam, the capacity of the reservoir, and the uses to be made of the impounded waters.

(e) If for municipal water supply, the application shall give the present population to be served, and, as near as may be, the future requirements of the city.

(f) If for mining purposes, the application shall give the nature of the mines to be served, and the methods of supplying and utilizing the water.

(2) Any person who has applied to the Federal Energy Regulatory Commission for a preliminary permit or an exemption from licensing shall, at the same time, apply to the Water Resources Department for a permit to appropriate water for a hydroelectric project. An applicant for a permit to appropriate water for a new hydroelectric project shall submit to the department a complete copy of any application for the project filed with the Federal Energy Regulatory Commission or other federal agency. If the copy of the federal application is filed with the department at the same time it is filed with the federal agency, at the department’s discretion such copy may fulfill the requirements for an application under subsection (1) of this section.

(3) Each application shall be accompanied by any map or drawing and all other data concerning the proposed project and the applicant’s ability and intention to construct the project, as may be prescribed by the Water Resources Commission. The accompanying data shall be considered a part of the application.

(4) The map or drawing required to accompany the application shall be of sufficient quality and scale to establish the location of the proposed point of diversion and the proposed place of use identified by tax lot, township, range, section and nearest quarter-quarter section along with a notation of the acreage of the proposed place of use, if appropriate. In addition, the department shall accept locational coordinate information, including latitude and longitude as established by a global positioning system. If the application is for a water right for a municipal use, the map need not identify the proposed place of use by tax lot.

(5) Each application for a permit to appropriate water shall be accompanied by the examination fee set forth in ORS 536.050 (1).

(6) If the proposed use of the water is for operation of a chemical process mine as defined in ORS 517.953, the applicant shall provide the information required under this section as part of the consolidated application under ORS 517.952 to 517.989.

(7) Notwithstanding any provision of ORS chapter 183, an application for a permit to appropriate water shall be processed in the manner set forth in ORS 537.120 to 537.360. Nothing in ORS chapter 183 shall be construed to allow additional persons to participate in the process. To the extent that any provision in ORS chapter 183 conflicts with a provision set forth in ORS 537.120 to 537.360, the provisions in ORS 537.120 to 537.360 shall control. [Amended by 1985 c.673 §27; 1987 c.542 §5; 1989 c.509 §4; 1991 c.735 §32; 1991 c.869 §6; 1993 c.557 §1; 1993 c.591 §2; 1995 c.365 §3; 1995 c.416 §5; 1997 c.446 §1; 1997 c.587 §4]

537.141 Uses of water not requiring water right application, permit or certificate; rules. (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) Nonemergency fire-fighting training, provided:

(A) The source of the water is existing storage and the use occurs with permission of the owner of the stored water; or

(B) If the source of water is other than existing storage, the use occurs with the prior written approval of the watermaster in the district where the training will take place and subject to any conditions the watermaster determines are necessary to prevent injury to existing water rights and to protect in-stream resources;

(c) 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;

(d) Fish screens, fishways and fish by-pass structures, as exempted by rule of the Water Resources Commission;

(e) 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;

(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;

(f) Livestock watering operations that comply with the requirements under subsections (2) and (3) of this section;

(g) Forest management activities that require the use of water in conjunction with mixing pesticides as defined in ORS 634.006, or in slash burning;

(h) The collection of precipitation water from an artificial impervious surface and the use of such water;

(i) 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 or the State Department of Agriculture under either ORS 468B.050 to construct and operate a disposal system or ORS 468B.215 to operate a confined animal feeding operation; and

(j) Surface mining practices that result in the removal of water from a surface mine subject to an operating permit or reclamation plan approved by the State Department of Geology and Mineral Industries, unless the water is used for a subsequent beneficial use.

(2) The use of surface water for livestock watering may be exempted under subsection (1) of this section if:

(a) The water is diverted from a stream or other surface water source 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 surface water source through an enclosed delivery system; and

(c) The operation is located on land from which the livestock would otherwise have legal access to both the use and source of 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 Oregon State University Extension Service, 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)(g) 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) Except for the use of water under subsection (1)(i) 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)(i) of this section, the Department of Environmental Quality or the State Department of Agriculture 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. [1993 c.595 §3; 1995 c.184 §1; 1995 c.274 §9a; 1995 c.537 §2; 1995 c.752 §7; 1997 c.199 §1; 1997 c.244 §2; 1999 c.335 §1; 2001 c.248 §11; 2003 c.470 §4; 2007 c.189 §1]

Note: 537.141 was added to and made a part of ORS chapter 537 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

537.142 Water right permit or certificate not required for egg incubation project under salmon and trout enhancement program. (1) No water right certificate or permit is required for the use of the surface waters of this state if

the water is to be used for a salmon and trout enhancement project certified by the State Department of Fish and Wildlife under ORS 496.430 to 496.460.

(2) The use of water for a salmon and trout enhancement project under subsection (1) of this section is a beneficial use and such use shall be allowed on all the waters of this state, whether or not the project is located on waters of this state for which the use is restricted pursuant to any of the following:

(a) A scenic waterway designation under ORS 390.805 to 390.925.

(b) A statutory withdrawal from appropriation under ORS chapter 538.

(d) An administrative withdrawal from appropriation by the Water Resources Director or the Water Resources Commission.

(e) Any other statutory or administrative restriction on the use of the waters.

(3) If the use of the waters of this state under subsection (1) of this section conflicts with the use of water under a permit issued under ORS 537.240 or a use allowed under a water right certificate issued under ORS 537.250, the use permitted under subsection (1) of this section shall be subordinate. [1985 c.310 §2; 1989 c.587 §2]

537.143 Limited license to use or store surface or ground water or to use stored water; rules. (1) Notwithstanding the provisions of ORS 537.130, the Water Resources Commission may establish by rule a procedure to allow a person to obtain a limited license to use or store ground water not otherwise exempt under ORS 537.545, to use or store surface water, to use stored water or to use stored water for purposes for which the stored water is authorized and in accordance with a contract with a local, state or federal government after the person complies with the notice provisions set forth in ORS 537.144. Uses eligible for a limited license shall be for a short-term or fixed duration and may include but are not limited to road construction and maintenance, general construction and forestland or rangeland management. Except as provided in subsections (4) to (6) and (9) of this section, the use of water for a purpose specifically prohibited by a basin program or for irrigation is not eligible for a limited license.

(2) The use of water under a limited license under subsection (1) of this section shall not have priority over any water right exercised according to a permit or certificate and shall be subordinate to all other authorized uses that rely upon the same source. The Water Resources Department may revoke the right to use of water acquired under a limited license pursuant to subsection (1) of this section at any time if the use causes injury to:

(a) Any other water right; or

(b) A minimum perennial streamflow.

(3) Except as provided in subsections (4), (5) and (11) of this section, the licensee shall give notice to the Water Resources Department at least 15 days in advance of using the water under the limited license and shall maintain a record of use. The record shall include but need not be limited to an estimate of the amount of water used, the period of use and the categories of beneficial use to which the water is applied. During the period of the limited license, the record of use shall be available for review by the department upon request.

(4) The Water Resources Director may issue a limited license in conjunction with an enforcement order to address an illegal water use, including irrigation use or a use specifically prohibited by a basin program. The director may issue a limited license for such a use upon a finding that:

(a) The person did not knowingly violate state laws regarding a water use permit;

(b) The immediate termination of the illegal use would cause serious and undue hardship to the water user that could be ameliorated by providing a period of time in which to achieve compliance with the law; and

(c) The continued use under a limited license outweighs the public benefits of termination, including deterrence of illegal uses and protection of the water source.

(5) An enforcement order issued under subsection (4) of this section shall specify an amount of time in which the person using water illegally shall bring such use into compliance. The duration of the limited license shall not exceed the duration of time allowed in the enforcement order to achieve compliance. A licensee using water under a limited license issued in conjunction with an enforcement order need not provide the department with advance notice of water use, but shall comply with the other requirements of this section.

(6) The director may issue a limited license for irrigation if the sole purpose of the use is:

(a) To provide water necessary to establish a crop for which no further irrigation will be required after the crop is established;

(b) To mitigate the impacts of drought when additional water is needed beyond a prescribed irrigation season in order to avoid irreparable damage to the user’s crop; or

(7) Nothing in this section is intended to prohibit any person from obtaining a water right certificate under ORS 537.250 or 537.630 for any use for which a limited license is obtained under this section.

(8) Except as provided in subsection (10) of this section, the department may not issue a limited license for the same use for more than five consecutive years.

(9) Notwithstanding any other provision of this section, if the use of water under the limited license is for the use of stored water consistent with the purposes for which the stored water is authorized and the use of water is authorized by a contract between the user and a local, state or federal government:

(a) The limited license may be issued for a period of up to one year; and

(b) The limited license shall be revoked if the contract between the user and the local, state or federal government is terminated for any reason.

(10) At the end of the one-year limited license period in subsection (9) of this section, the user may reapply for a limited license under ORS 537.144 provided that there is an authorized contract between the user and a local, state or federal government.

(11) The director may issue a limited license authorizing immediate use of water if the director finds that an emergency exists and the water is needed to protect the public health, safety and welfare. Notwithstanding subsection (8) of this section, the director may issue a limited license for such a use for a period of 60 days. [1989 c.933 §2; 1993 c.595 §1; 1995 c.274 §8; 1997 c.38 §1; 1997 c.366 §1]

537.144 Request for right to use water under limited license; fee. (1) Any person requesting the right to use water under a limited license under ORS 537.143 shall notify the Water Resources Department on a form provided by the department.

(2) If the request submitted under subsection (1) of this section is to use stored water for purposes for which the stored water is authorized and pursuant to a contract between the user and a local, state or federal government:

(a) The person also shall submit:

(A) A copy of the contract;

(B) A map indicating the point of diversion and the place of use; and

(C) Any other information required by the Water Resources Commission that is necessary to evaluate the request as established by statute and the rules of the commission.

(b) Upon the filing of the request under this subsection, the department shall determine whether the request contains the information listed under paragraph (a) of this subsection and is complete and not defective, including the payment of any fee required by the commission. If the department determines that the request is incomplete or defective or that all fees have not been paid, the department shall return all fees and the request. If the department determines that a request contains the information listed under paragraph (a) of this subsection and is complete and not defective, the department shall proceed with the review of the request and issuance of the limited license if the use complies with the requirements of ORS 537.143.

(3) The notification required under subsection (1) or (2) of this section shall be accompanied by the fee established by rule by the Water Resources Commission.

(4) The department shall notify the person whether the department grants the limited license.

(5) A request for the right to use stored water under a limited license as described in subsection (2) of this section may be made concurrently with an application for a permit to appropriate water under ORS 537.140. [1989 c.933 §3; 1995 c.274 §11; 1997 c.366 §2]

537.145 Notice of filing of application to appropriate water for hydroelectric purposes. (1) If an application is made for a permit to appropriate water for hydroelectric purposes, the Water Resources Department shall give written notice of the filing of the application to the owner of any land that is:

(a) Adjacent to any portion of the stream in which the quantity of water will be decreased by the project; or

(b) Adjacent to the site of the proposed hydroelectric project.

(2) The department shall also publish notice of the application once each week for at least two successive weeks and for such further time, if any, as the department shall determine, in a newspaper of general circulation in each county in which the project covered by the application is located. [1985 c.569 §22; 1995 c.416 §8; 2011 c.52 §3]

537.147 Permit to use stored water; fee. (1) Notwithstanding the process for applying for a water right permit established in ORS 537.150 to 537.230, a person may, pursuant to this section, apply to the Water Resources Department for a water right permit to use stored water. A person applying under this section for a water right permit to use stored water shall submit:

(a) A fee, in the amount required by ORS 536.050 for applications to appropriate stored water.

(b) A completed application for a secondary permit, in a form determined by the department, that contains the information required of applications under ORS 537.140 and 537.400 (1).

(c) Evidence that the proposed use of the stored water is one of the authorized uses under the water right permit, certificate or decree that allows the storage of water.

(2) If an applicant provides, to the satisfaction of the department, the fee and the information required by subsection (1) of this section, the department may, after public notice and a 30-day opportunity to submit comments on the application, issue a water right permit upon determining that no public interest issues as identified in ORS 537.170 (8) have been raised through the comments submitted.

(3) If the department determines that public interest issues have been identified, then the department shall treat the application under this section as an application under ORS 537.150 and perform the public interest review required by ORS 537.153 (2).

(4) At a minimum, a water right permit issued by the department for use of stored water under this section shall be conditioned to require:

(a) Fish screens and by-pass devices and fish passage as may be required by the State Department of Fish and Wildlife; and

(b) A measuring device at each point of diversion authorized under the water right permit.

(5) Within 10 days of issuing a water right permit under this section, the department shall provide notice of the permit issuance in the weekly notice published by the department and to persons who have submitted comments pursuant to subsection (2) of this section. [2005 c.37 §2]

537.150 Filing of application; determination of completeness; initial review; preliminary determination; notice; public comments; fees. (1) Within 15 days after receiving an application, the Water Resources Department shall determine whether the application contains the information listed under ORS 537.140 (1) and is complete and not defective, including the payment of all fees required under ORS 537.140 (5). If the department determines that the application is incomplete or defective or that not all fees have been paid, the department shall return the fees paid and the application.

(2) Upon determining that an application contains the information listed under ORS 537.140 (1) and is complete and not defective, the department shall indorse on the application the date upon which the application was received at the department, which shall be the priority date for any water right issued in response to the application. All applications that comply with the provisions of law shall be recorded in a suitable book kept for that purpose.

(3) If an application is complete and not defective, the department shall determine whether the proposed use is prohibited by ORS chapter 538. If the proposed use is prohibited by ORS chapter 538, the department shall reject the application and return all fees to the applicant with an explanation of the statutory prohibition.

(4) If the proposed use is not prohibited by ORS chapter 538, the department shall undertake an initial review of the application and make a preliminary determination of:

(a) Whether the proposed use is restricted or limited by statute or rule;

(b) The extent to which water is available from the proposed source during the times and in the amounts requested; and

(c) Any other issue the department identifies as a result of the initial review that may preclude approval of or restrict the proposed use.

(5) Upon completion of the initial review and no later than 30 days after determining an application to be complete and not defective as described in subsection (1) of this section, the department shall notify the applicant of its preliminary determinations and allow the applicant 14 days from the date of mailing within which to notify the department to stop processing the application or to proceed with the application. If the applicant notifies the department to stop processing the application, the department shall return the application and all fees paid in excess of $200. If the department receives no timely response from the applicant, the department shall proceed with the application.

(6) Within seven days after proceeding with the application under subsection (5) of this section, the department shall give public notice of the application in the weekly notice published by the department. The notice shall include a request for comments on the application and information pertaining to how an interested person may obtain future notices about the application and a copy of the proposed final order.

(7) Within 30 days after the public notice under subsection (6) of this section, any person interested in the application shall submit written comments to the department. Any person who asks to receive a copy of the department’s proposed final order shall submit to the department the fee required under ORS 536.050 (1). [Amended by 1985 c.673 §28; 1993 c.557 §2; 1995 c.416 §9; 2007 c.267 §2; 2009 c.819 §6]

Note: The amendments to 537.150 by section 13, chapter 819, Oregon Laws 2009, become operative July 1, 2013. See section 18, chapter 819, Oregon Laws 2009. The text that is operative on and after July 1, 2013, is set forth for the user’s convenience.

537.150. (1) Within 15 days after receiving an application, the Water Resources Department shall determine whether the application contains the information listed under ORS 537.140 (1) and is complete and not defective, including the payment of all fees required under ORS 537.140 (5). If the department determines that the application is incomplete or defective or that not all fees have been paid, the department shall return the fees paid and the application.

(4) If the proposed use is not prohibited by ORS chapter 538, the department shall undertake an initial review of the application and make a preliminary determination of:

(a) Whether the proposed use is restricted or limited by statute or rule;

(b) The extent to which water is available from the proposed source during the times and in the amounts requested; and

(c) Any other issue the department identifies as a result of the initial review that may preclude approval of or restrict the proposed use.

(5) Upon completion of the initial review and no later than 30 days after determining an application to be complete and not defective as described in subsection (1) of this section, the department shall notify the applicant of its preliminary determinations and allow the applicant 14 days from the date of mailing within which to notify the department to stop processing the application or to proceed with the application. If the applicant notifies the department to stop processing the application, the department shall return the application and all fees paid in excess of $150. If the department receives no timely response from the applicant, the department shall proceed with the application.

537.153 Review of application; proposed final order; presumption that use will not impair or be detrimental to public interest; standing; protest; final order; contested case hearing. (1) Within 60 days after the Water Resources Department proceeds with the application under ORS 537.150 (5), the department shall complete application review and issue a proposed final order approving or denying the application or approving the application with modifications or conditions. The department may request the applicant to provide additional information needed to complete the review. If the department requests additional information, the request shall be specific and shall be sent to the applicant by registered mail. The department shall specify a date by which the information must be returned, which shall be not less than 10 days after the department mails the request to the applicant. If the department does not receive the information or a request for a time extension under ORS 537.175 by the date specified in the request, the department may reject the application and may refund fees in accordance with ORS 536.050 (4)(a). The time period specified by the department in a request for additional information shall allow the department to comply with the 60-day time limit established by this subsection.

(2) In reviewing the application under subsection (1) of this section, the department shall presume that a proposed use will not impair or be detrimental to the public interest if the proposed use is allowed in the applicable basin program established pursuant to ORS 536.300 and 536.340 or given a preference under ORS 536.310 (12), if water is available, if the proposed use will not injure other water rights and if the proposed use complies with rules of the Water Resources Commission. This shall be a rebuttable presumption and may be overcome by a preponderance of evidence that either:

(a) One or more of the criteria for establishing the presumption are not satisfied; or

(b) The proposed use will impair or be detrimental to the public interest as demonstrated in comments, in a protest under subsection (6) of this section or in a finding of the department that shows:

(A) The specific public interest under ORS 537.170 (8) that would be impaired or detrimentally affected; and

(B) Specifically how the identified public interest would be impaired or detrimentally affected.

(3) The proposed final order shall cite findings of fact and conclusions of law and shall include but need not be limited to:

(a) Confirmation or modification of the preliminary determinations made in the initial review;

(b) A brief statement that explains the criteria considered relevant to the decision, including the applicable basin program and the compatibility of the proposed use with applicable land use plans;

(d) An assessment of whether the proposed use would result in injury to existing water rights;

(e) An assessment of whether the proposed use would impair or be detrimental to the public interest as provided in ORS 537.170;

(f) A draft permit, including any proposed conditions, or a recommendation to deny the application;

(g) Whether the rebuttable presumption that the proposed use will not impair or be detrimental to the public interest has been established; and

(h) The date by which protests to the proposed final order must be received by the department.

(4) The department shall mail copies of the proposed final order to the applicant and to persons who have requested copies and paid the fee required under ORS 536.050 (1)(p). The department also shall publish notice of the proposed final order by publication in the weekly notice published by the department.

(5) Any person who supports a proposed final order may request standing for purposes of participating in any contested case proceeding on the proposed final order or for judicial review of a final order. A request for standing shall be in writing and shall be accompanied by the fee established under ORS 536.050 (1)(n).

(6) Any person may submit a protest against a proposed final order. A protest shall be in writing and shall include:

(a) The name, address and telephone number of the protestant;

(b) A description of the protestant’s interest in the proposed final order and, if the protestant claims to represent the public interest, a precise statement of the public interest represented;

(c) A detailed description of how the action proposed in the proposed final order would impair or be detrimental to the protestant’s interest;

(d) A detailed description of how the proposed final order is in error or deficient and how to correct the alleged error or deficiency;

(e) Any citation of legal authority supporting the protest, if known; and

(f) The protest fee required under ORS 536.050.

(7) Requests for standing and protests on the proposed final order shall be submitted within 45 days after publication of the notice of the proposed final order in the weekly notice published by the department. Any person who asks to receive a copy of the department’s final order shall submit to the department the fee required under ORS 536.050 (1)(p), unless the person has previously requested copies and paid the required fee under ORS 537.150 (7), the person is a protestant and has paid the fee required under ORS 536.050 (1)(j) or the person has standing and has paid the fee under ORS 536.050 (1)(n).

(8) Within 60 days after the close of the period for receiving protests, the Water Resources Director shall:

(a) Issue a final order as provided under ORS 537.170 (6); or

(b) Schedule a contested case hearing if a protest has been submitted and if:

(A) Upon review of the issues, the director finds that there are significant disputes related to the proposed use of water; or

(B) Within 30 days after the close of the period for submitting protests, the applicant requests a contested case hearing. [1995 c.416 §11; 1997 c.446 §2; 1997 c.587 §5; 2007 c.188 §2; 2009 c.819 §7]

Note: The amendments to 537.153 by section 14, chapter 819, Oregon Laws 2009, become operative July 1, 2013. See section 18, chapter 819, Oregon Laws 2009. The text that is operative on and after July 1, 2013, is set forth for the user’s convenience.

537.153. (1) Within 60 days after the Water Resources Department proceeds with the application under ORS 537.150 (5), the department shall complete application review and issue a proposed final order approving or denying the application or approving the application with modifications or conditions. The department may request the applicant to provide additional information needed to complete the review. If the department requests additional information, the request shall be specific and shall be sent to the applicant by registered mail. The department shall specify a date by which the information must be returned, which shall be not less than 10 days after the department mails the request to the applicant. If the department does not receive the information or a request for a time extension under ORS 537.175 by the date specified in the request, the department may reject the application and may refund fees in accordance with ORS 536.050 (3)(a). The time period specified by the department in a request for additional information shall allow the department to comply with the 60-day time limit established by this subsection.