OAR 690-310-0260: Water Rights Within or Above State Scenic Waterways

(1) Pursuant to the provisions of ORS 390.835, and these rules the Director is authorized to: (a) Issue water rights within or above the designated reach of a scenic waterway provided the free-flowing character of the waterway is maintained in quantities necessary for recreation, fish and wildlife uses; (b) Issue water rights for limited human consumption and livestock consumption uses within or above a designated reach of a scenic waterway when flows are less than quantities necessary for recreation, fish and wildlife. (2) The Director may issue water rights under subsection (1)(b) of this rule for human consumption and livestock consumption uses upon the following findings: (a) Issuing the water right does not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife; (b) Appropriation of water under the water right is consistent with the provisions of ORS Chapters 536 and 537 and OAR 690; (c) Construction, operation and maintenance of the diversion system will be carried out in a manner consistent with the purposes set forth in ORS 390.805 to 390.925; (d) Water rights for human consumption shall not exceed 0.005 cubic foot per second per household; and (e) Water rights for livestock consumption uses shall not exceed one-tenth of one cubic foot per second per 1,000 head of livestock. (3) In addition to the requirements under OAR 690-310-0040, an application to appropriate water for human consumption or livestock consumption uses under subsection (1)(b) of this rule shall include: (a) Information which identifies all potential alternate source(s) of water, if any, and describes why the applicant cannot reasonably obtain water from such sources; (b) If the application proposes to appropriate water for human consumption, evidence that denial of the application will result in loss of reasonable expectations for use of the property; and (c) If the application proposes to appropriate water for livestock consumption use, a description of how livestock will be excluded from the stream and its riparian zone and information that the water right is necessary to prevent the livestock from watering in or along the stream bed. (4) In addition to the findings set out in section (2) of this rule, before a water right permit may be issued for human consumption or for livestock consumption uses under subsection (1)(b) of this rule the Director must find: (a) The water right meets a need for a use which is given preference under ORS 536.310(12) when available supplies of water are insufficient to meet all uses; (b) No alternate sources of water are reasonably available; (c) For applications for human consumption, denial of the application will result in loss of reasonable expectations for use of the property; (d) For applications for livestock consumption uses, the water right is necessary to prevent livestock from watering in or along the stream bed and the applicant has excluded livestock from the stream and its adjacent riparian zone; and (e) Water is available within the combined cumulative total limitation described in section (5) of this rule. (5) The Director shall limit the total water use authorized under subsection (1)(b) of this rule within or above each scenic waterway to no more than a combined cumulative total of one percent of the average daily flow or one cubic foot per second, whichever is less. Such combined cumulative total may be exceeded if representatives of the Departments of Water Resources, Parks and Recreation, Fish and Wildlife, Environmental Quality and the Division of State Lands agree that exceeding the one percent or one cubic foot per second limit will not significantly impair the free-flowing character of the waters in quantities necessary for recreation, fish and wildlife. (6) Water rights issued for human consumption shall contain measuring and reporting conditions which require permittees to install meters or other suitable measuring devices, to keep complete records of amounts of water used and to submit periodic reports to the Department as specified in the permits. (7) Water rights issued for livestock consumption uses shall contain conditions that require permittees to exclude livestock from the stream and its adjacent riparian zone. (8) The Department’s proposed final order shall: (a) Set forth a summary of the findings required under sections (2) and (4) of this rule; (b) State that the applicant has submitted the information described in section (3) of this rule; (c) Identify the maximum amount of water available within or above the applicable scenic water way in accordance with the limitations set out in section (5) of this rule; and (d) State the residual amount of water available from the source for the proposed human consumption or livestock consumption use. (9)(a) The provisions of this rule shall not apply to a water right application for the use of ground water except upon a finding by the Director based on a preponderance of evidence that the use of ground water will measurably reduce the surface water flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife; (b) The Department shall review every application for the use of ground water to determine whether to make the finding specified in subsection (a) of this section. The finding shall be based upon the application of generally accepted hydrogeologic methods using relevant and available field information concerning the proposed use; (c) In making the determination required by subsection (a) of this section, the Department shall consider the timing of projected impacts of the proposed use in relation to other factors, including but not limited to: Changing climate, recharge, incidental precipitation, out-of-stream appropriations and return flows; (d) If the Director makes the finding specified in subsection (a) of this section, the Director shall issue an order denying the application unless: (A) Mitigation is provided in accordance with provisions of ORS 390.835(9); or (B) The applicant submits evidence to overcome the finding under subsection (a) of this section. (e) Except as provided under section (12) of this rule, if the Director does not make the finding specified in subsection (a) of this section, the Director shall issue an order approving the application if the application otherwise meets the requirements of ORS 537.505 to 537.795 and rules adopted thereunder; (f) A protest of any order issued under this subsection may be filed in the same manner as a protest on any application for a right to appropriate ground water; (g) Each water right permit and certificate for appropriation of ground water issued after July 19, 1995, for which a source of appropriation is within or above a scenic waterway shall be conditioned to allow the regulation of the use if analysis of data available after the permit or certificate is issued discloses that the appropriation will measurably reduce the surface water flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife in effect as of the priority date of the right or as those quantities may be subsequently reduced; (h) Nothing in this section shall limit the use of ground water for a use exempted under ORS 537.545. (10) The Commission and the Director shall consider mitigation measures and may include mitigation measures as conditions in any water right permit or certificate to ensure the maintenance of the free-flowing character of the scenic waterway in quantities necessary for recreation, fish and wildlife. (11) As used in this rule ‘measurably reduce’ means that the use authorized under section (9) of this rule will individually or cumulatively with other groundwater uses, reduce surface water flows within the scenic waterway in excess of a combined cumulative total of one percent of the average daily flow by month or one cubic foot per second, whichever is less, unless: (a) The Department, the State Parks and Recreation Department, the State Department of Fish and Wildlife, the Department of Environmental Quality and the Division of State Lands unanimously agree to exceed that amount; and (b) exceeding that amount will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife. (12) Before authorizing an appropriation that will reduce streamflows within a scenic waterway in amounts up to but not exceeding the amounts described in section (11) of this rule, the Director shall find: (a) That the appropriation will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife. (b) That the appropriation is consistent with provisions pertaining to water appropriations and water rights under ORS Chapters 536 and 537 and the rules adopted thereunder. (c) That construction, operation and maintenance of the appropriation will be carried out in a manner consistent with the purposes set forth in ORS 390.805 to 390.925.