OAR 690-077-0015: General Statements

(1) Instream water rights shall not take away or impair any permitted, certificated or decreed right to any waters or to the use of any rights vested prior to the date of the instream water right. (2) The implementation of the instream water rights law is a means of achieving an equitable allocation of water between instream public uses and other water uses. When instream water rights are set at levels that exceed current unappropriated water available the water right not only protects remaining supplies from future appropriation but establishes a management objective for achieving the amounts of instream flows necessary to support the identified public uses. (3) The amount of appropriation for out-of-stream purposes shall not be a factor in determining the amount of an instream water right. (4) For state agency instream water right applications only, if natural streamflow or natural lake levels are the source for meeting instream water rights, the amount allowed during any identified time period for the water right shall not exceed the estimated average natural flow or level occurring from the drainage system, except where periodic flows that exceed the natural flow or level are significant for the applied public use. An example of such an exception would be high flow events that allow for fish passage or migration over obstacles. (5) If the source of water for an instream water right is other than natural flow such as storage releases or inter-basin transfer, the source shall be developed or a permit for development approved prior to or coincident in priority with the instream water right. The development of environmentally sound multipurpose storage projects that will provide instream water use along with other beneficial uses shall be supported. (6) Instream water rights in rivers and streams shall, insofar as practical, be defined by reaches of the river rather than points on the river. (7) When instream water rights are established through instream transfers, leases, or allocations of conserved water of existing water rights, the order, and, where appropriate, the certificate shall define the appropriate point, reach or reaches to which the new instream water right shall apply. Normally, a new instream water right shall be maintained downstream to the mouth of the affected stream; however, it may be maintained farther downstream if the amount of the instream water right is a measurable portion of the flow in the receiving stream or for a point or shorter distance if needed to account for return flow or to prevent injury. (8) Instream water right applications shall conform with state statutes and basin programs. All natural lakes and streams in the state shall be considered classified to allow all instream public uses. Any withdrawal rule or order does not withdraw a natural lake or stream for instream public uses unless: (a) The rule or order specifically states that it is prohibiting instream public uses, or (b) The withdrawal is for the exclusive use of a municipality. (9) State agency instream water right applications shall be approved only if the amount, timing and location serve a public use or uses. (10) The combination of state agency requested instream water rights, for the same reach or lake, shall not exceed the amount needed to provide increased public benefits and shall be consistent with Sections (4) and (5) of this rule. (11) An instream water right created through the conversion of a minimum perennial streamflow shall not take precedence over any rights having an earlier priority date, including storage rights except where an individual permit or water right specifies that it shall be subordinate to future uses or appropriations. The priority date of an instream water right created through conversion of a minimum perennial streamflow is as specified in ORS 547.346(1) and (2). (12) An instream water right created through the conversion of a minimum perennial streamflow, which consists in whole or part of waters released from storage, is enforceable only as to the waters released to satisfy the instream water right. (13) Instream water rights created through the conversion of minimum perennial streamflows shall carry with them any and all conditions, exceptions or exemptions attached to the minimum perennial streamflow, unless modified through hearing.