OAR 690-030-0085: Amendment or Alteration of Claim

(1) Except as provided in Sections (2) through (12) of this rule, the Water Resources Director (Director) may not permit any alteration or amendment of the original claim after the period for inspection has commenced; but any new matter that the claimant may wish to set forth must be set forth in the form of an affidavit, regularly verified before a proper officer and filed with the Director prior to the close of the period for public inspection. (2) A claimant may add to the claim additional point(s) of diversion or change the location of the point(s) of diversion as described in the claim, as long as the following conditions are satisfied: (a) The claimant must file the request for the proposed additional or relocated point(s) of diversion with the Director before diverting water from the additional or relocated point(s) of diversion. The request must include the number of the claim for which the requested additional or relocated point(s) of diversion is being made. The request must be set forth in a verified affidavit. For each point of diversion included in the requested amended claim, whether additional, relocated, or previously claimed, the request must also identify for each type of use claimed, the rate of diversion and the number of acres served within each quarter/quarter section. (b) At the time the claimant files a request as specified in Section (2)(a), the claimant must provide a map prepared by a Certified Water Rights Examiner showing the original point(s) of diversion and all additional or relocated point(s) of diversion proposed in the request. If the request proposes more than one point of diversion serving the claim, the map must identify which lands or uses are served by each diversion point. The map must conform to the standards set forth in OAR 690-014-0170. (c) The additional or relocated point(s) of diversion may not be upstream from the point(s) of diversion described in the claim. (d) Use of water from the additional or relocated point(s) diversion must not increase the total claimed rate, duty, acreage benefited, or season of use. (e) The amount of water to be diverted from all points of diversion included in the requested amended claim is limited to no more than the rate and duty of water that was previously claimed and is lawfully available for use by the claimant at the original point of diversion. (f) The additional or relocated point(s) of diversion may not be located on a different source than the source identified in the original claim. For the purposes of 690-030-0085, a downstream source does not constitute a different source, even where the source has a different name at the downstream location, if the source of the original diversion is on the mainstem of or a tributary to the source for the additional or relocated downstream point(s) of diversion. (3) If the claimant’s request meets the requirements in Section (2) and the claimant has prepaid the estimated cost of the notice in accordance with Section (4), the Director must give notice of the proposed additional or relocated point(s) of diversion as follows: (a) By regular mail to all those identified in the Department’s files whose points of diversion lie between the point of diversion as claimed and the proposed additional or relocated points of diversion furthest downstream from the point of diversion as claimed, specifically: (A) Claimants and contestants to any claim; (B) Holders of existing water use permits; (C) Holders of water rights under certificates; and (D) Holders of water rights established by court decree; and (b) By publication in a newspaper having general circulation in the area in which the claim is located, not less than once each week for three consecutive weeks; and (c) By publication in the Director’s weekly notice. (d) Each notice must include the date on which claims of injury under Section (5) must be filed with the Director. (4) If the claimant’s request meets the requirements under Section 2, the Director must provide the claimant an estimate of the actual cost of providing the notice described in Section (3). The actual cost is the total cost of publishing the notice in the newspaper, plus the paper, postage and staff time involved to prepare and mail the notice. The claimant must prepay the estimated cost before the Director provides notice of the proposed point of diversion changes. If the actual cost exceeds the estimated cost, the claimant must pay the difference by a date certain provided by the Director, or the Director or the Director’s delegated Adjudicator shall not consider the amendment in the Findings of Fact and Order of Determination. (5) Any adjudication claimant, holder of a water use permit, holder of a water use certificate, or holder of a water right established by court decree claiming injury as a result of the proposed additional or relocated point(s) of diversion must file a written claim of injury with the Director on or before the date specified in the Notice. An existing contestant to the claimant’s claim need not file a claim of injury, but must comply with the provisions of Section (8). For purposes of OAR 690-030-0085, an adjudication claimant, holder of a water use permit, holder of a water use certificate, or holder of a water right established by court decree filing a claim of injury pursuant to this Section is referred to as the “petitioner.” All claims of injury must be received in the office of the Director by the date specified. For claims of injury under this Section, the postmarked date will not be deemed the filing date. An injury claim must: (a) Provide a description of the claimed injury; and (b) Identify the number of the adjudication claim, permit, or certificate, or identify the water right established by court decree that would allegedly be injured. (6) If, based upon the information provided in Section (5), the Director determines that the petitioner has demonstrated a personal interest that could reasonably be affected by the outcome of the proceeding, the Director must name the petitioner to be a limited party to the contested case hearing for the sole purpose of contesting the proposed additional or relocated point(s) of diversion. (7) If the record in the contested case has closed, or due to informal disposition the case has been withdrawn from or not referred to the Office of Administrative Hearings, at the time of a ruling under Section (6) allowing participation, the Director must request the administrative law judge to re-open the record or refer the matter to the Office of Administrative Hearings, for the limited purpose of taking evidence and hearing argument on the issue of the proposed additional or relocated point(s) of diversion. (8) If an existing contestant to the claimant’s claim wishes to contest the proposed additional or relocated point(s) of diversion, the existing contestant must notify the Director in writing on or before the date specified in the Notice. The existing contestant’s notification must be received in the office of the Director by the date specified. If the record in the contested case has closed, or due to informal disposition the case has been withdrawn from or not referred to the Office of Administrative Hearings, upon timely receipt of the existing contestant’s notification the Director must request the administrative law judge to re-open the record or refer the matter to the Office of Administrative Hearings for the limited purpose of taking evidence and hearing argument on the issue of the proposed additional or relocated point(s) of diversion. (9) The Director’s ruling under Section (6) must be by written order and served promptly on the petitioner, all parties to the contested case, and the Office of Administrative Hearings or assigned administrative law judge. If participation in the contested case hearing is allowed, the agency must provide the participant with the notice of rights required by ORS 183.413(2) or request the administrative law judge to do so. (10) A petitioner or party to the contested case adversely affected by the Director’s ruling under Section (6) may file a notice of intent to oppose the ruling within 30 days of the date of the order. Such notice shall be filed with the Director and the Office of Administrative Hearings or assigned administrative law judge, and must be served upon the petitioner and all parties to the contested case hearing. Any opposition to the Director’s ruling under Section (6) must be heard by the Office of Administrative Hearings as part of the contested case hearing, and the administrative law judge’s findings must be incorporated into the administrative law judge’s proposed order in the contested case. If the record has closed in the contested case hearing, the Director must request the administrative law judge to re-open the record for the purpose of hearing opposition to the Director’s ruling. (11) The administrative law judge’s findings on the issue of the proposed additional or relocated point(s) of diversion must be incorporated into the administrative law judge’s proposed order in the contested case. (12) For purposes of the Klamath Basin Adjudication, the last day to request additional or relocated points of diversion pursuant to Sections (2) through (11) is December 1, 2006. For other general stream adjudications, any request by a claimant for additional or relocated point(s) of diversion pursuant to Sections (2) through (11) must be made on or before the date specified by the Director as adopted by rule. (13) Sections (2) through (12) create the process to amend claims under ORS Chapter 539 following the commencement of the period for inspection and have no effect on the permissibility of a change in point of diversion under other provisions of law.