OAR 690-077-0075: Processing an Instream Transfer Application

(1) A proposed instream transfer application, including a time-limited instream transfer application, shall be processed pursuant to the water right transfer rules in OAR 690-380-4000 through OAR 690-380-5000. (2) The Department shall provide notice of the proposed instream transfer pursuant to OAR 690-380-4005, and to affected Indian tribes. (3) In addition to the assessment described in OAR 690-380-4000, the Department’s initial review shall include an assessment of whether: (a) The amount and timing of the proposed instream flow is allowable within the limits and use, including return flows, of the existing water right; and (b) The proposed reach(es) is (are) appropriate considering: (A) Instream water rights shall begin at the recorded point of diversion; (B) Locations of return flow. Where return flows occur at a definite point, located a substantial distance below the point of diversion, an instream water right may be defined by more than one reach, for example one reach from the point of diversion to the location of the return flow and another from this point to the mouth of the stream; (C) The location of confluences with other streams downstream of the point of diversion, which shall be considered in accordance with OAR 690-077-0015(7); and (D) Any known areas of natural loss of streamflow to the riverbed. Where an instream water right passes through an area of known natural loss, several stream reaches may be required to incorporate the reduced flows available, in accordance with paragraph (3)(c)(B) of this rule; and (c) The proposed flow(s) is (are) consistent with OAR 690-077-0015(6) and (7) and appropriate considering: (A) Return flows which shall be subtracted from the instream water right at the point of diversion, unless the return flows occur at a definite point located a substantial distance below the point of diversion, in which case up to the entire amount of the diversion may be allowed between the point of diversion and the point(s) of return flow; (B) Where an instream water right passes through an area of known natural losses these losses shall be prorated between the instream water right and the balance of the available flow; and (C) For instream transfers of above-ground storage rights, the total volume or rate of the above-ground storage right that is allocated to secondary water right(s), combined with the total volume or rate of the above-ground storage right proposed for instream transfer, shall not exceed the total volume or rate authorized under the above-ground storage right. (4) The initial review described in section (3) of this rule shall also specify that if the instream application can be approved, then the approval shall include, but is not limited to, conditions specifying that the Department shall: (a) For permanent instream transfers: (A) Cancel the existing water right(s), or portion affected by the instream transfer application; (B) Issue a permanent instream water right certificate(s); and (C) Issue new remaining right certificate(s), if applicable, for the portion(s) of the existing water right(s) not involved in the instream transfer application; and (b) For time-limited instream transfers: (A) Specify the date of expiration or other conditions for termination of the instream water right; and (B) Suspend the use of the existing water right during the effective period of the instream water right. (5) In addition to the proposed final order requirements outlined in OAR 690-380-4010, for permanent instream transfer applications, the Department shall issue draft permanent instream water right certificate(s). (6) As part of the notice of the proposed final order required under OAR 690-380-4020, the Department shall, except for time-limited instream transfer applications, also send copies of the draft permanent instream water right certificate(s) to the applicant(s) by registered or certified mail in accordance with ORS 183.415. (7) Upon approval of an instream transfer application, the Department shall: (a) For a permanent instream transfer, mail a copy of the instream water right certificate and the final approval order to the applicant and as appropriate, to affected Indian Tribes, ODFW, DEQ, and Parks; or (b) For a time-limited instream transfer, mail a copy of the final approval order to the applicant and as appropriate, to affected Indian Tribes, ODFW, DEQ, and Parks.