OAR 690-077-0077: Processing an Instream Lease Application

(1) On receipt of a complete instream lease application, the Department shall give notice of the application in its weekly public notice and accept written public comments for 21 days. (2) An assessment shall be prepared by the watermaster or other Department field staff of whether the lease application meets the requirements of these rules to suspend water use under the existing water right and avoid injury or enlargement; (3) The Department shall evaluate the instream lease application for injury and enlargement. The Department may consider, but is not limited to, the following factors to determine the existence of injury or enlargement as a result of the lease: (a) Rate and duty, or total volume proposed for instream lease; (b) Location of return flows; (c) Conveyance losses downstream of the original point of diversion; (d) Priority dates of instream water rights and other existing water rights; (e) If the existing water right proposed for instream lease is an above-ground storage right: (A) The total volume authorized under the above-ground storage right; and (B) The total volume of the above-ground storage right that is allocated to secondary water right(s) for use of the stored water; and (f) Issues potentially arising from water users that share a conveyance system. (4) If any comments are received in response to the notice under section (1) of this rule that allege injury to other existing water rights or enlargement of the existing water right proposed for instream lease, the Department shall provide the comments to the parties, and the Department shall review the comments prior to issuance of an order approving or denying the lease application. (5) If the Department determines that the proposed lease may cause injury to other existing water rights or enlargement of the existing water right proposed for instream lease, considering issues raised under section (3) of this rule, the order approving the lease application shall be conditioned to prevent the injury or enlargement. If injury or enlargement cannot be prevented, the Department shall deny the lease application. However, if an order approving the lease application has already been issued, and the Department later finds injury or enlargement, the Department shall issue an order modifying or terminating the lease. (6) If a lease is for more than one year, any allegations of injury or enlargement that are received through December 31 of the preceding calendar year of the lease shall be provided to the parties and reviewed by the Department to determine whether modifications of the lease order are warranted for the remainder of the term of the lease. (7) In the event that the Department receives a claim of injury or enlargement after issuing an order approving a lease, the Department shall notify the parties. If the Department determines the claim is valid, it shall not distribute water in a way that would cause the injury or enlargement to continue. If injury or enlargement claims are valid and cannot be prevented, the Department shall issue an order terminating the lease. (8) The description of the reach or point of an instream water right provided in response to OAR 690-077-0076(4)(d) shall conform to the provisions of OAR 690-077-0015(6) and (7) and 690-077-0075(3). (9) Except as provided in OAR 690-077-0079, a lease involving an existing water right that is limited to a season of use or a duty of water for a season or year shall only allow the use of the existing water right or the instream right, not both, during any one season unless the source is from stored water. (10) If the existing water right being leased has an associated primary or supplemental water right, the lessor(s) shall assure that neither right is being exercised under the existing water right during the term of the lease unless the lease is for the use of water legally stored under a supplemental water right. In the case of supplemental stored water, an order approving a lease may be issued that does not restrict the use of the primary source. (11) If the existing water right for an instream lease is an above-ground storage right, and the storage right will be used in tandem with a secondary right to shape storage releases for instream uses, the Department may include conditions to identify the amount and timing of the release of the stored water being protected instream. If the storage right will not be used in tandem with a secondary right to shape storage releases for instream uses, the lessor(s) shall not store the quantity of water being leased instream during the term of the lease. (12) Existing water rights for which an order has been issued approving a lease application under OAR 690-077-0077 are considered to be beneficially used for each year that the lease establishes an instream water right. (13) A lessee has the same standing as the lessor for all purposes regarding management and enforcement of the instream water right. (14) Copies of orders approving a lease application shall be distributed to all parties, filed with the appropriate watermaster, and tracked on the Department's water rights information system. (15) Leases that are executed under the provisions of ORS 536.720 to 536.780 "Emergency Water Shortage Powers" shall not be subject to provisions of these rules. Those leases are covered under OAR chapter 690 division 19. (16) Except as provided in Sections (5) and (6) of this rule, orders approving lease applications shall only be terminated by a superseding order or by specific provision of the originating order approving the lease application.