OAR 690-380-2120: Change in Point of Diversion to Reflect Historical Use

(1) As provided in ORS 540.532, any individual who holds a water right certificate or decreed right may request a change in point of diversion to reflect the historical use of water at a point of diversion other than that described in the water right certificate or decree. The individual shall use the Department’s water right transfer application form, titled “Historic Change in Point of Diversion,” and, except as otherwise provided in section (2) of this rule, include the information required in OAR 690-380-3000. The provisions under OAR 690-380-2120 shall not be used to change the location of an on-channel dam for a water right certificate that authorizes the storage of water. (2) An individual requesting a change in the point of diversion under section (1) of this rule shall provide to the Department the following additional information: (a) Evidence that the actual, current point of diversion for the water right in question has been in use for more than 10 years; (b) A map meeting the requirements of OAR 690-380-3100, except that it need not be prepared by a certified water rights examiner. The map shall be of sufficient detail and clarity to identify the true point of diversion including but not limited to: (A) The county tax lot number, township, range and section, and to the nearest quarter-quarter section or latitude and longitude as established by a global positioning system; and (B) The locations of the point of diversion as specified in the water right certificate or decree and the actual, current point of diversion; (c) Evidence that there has been no claim of injury, including to any instream water right granted pursuant to a request under ORS 537.336, pursuant to ORS 537.346, ORS 537.348 or ORS 537.470, or converted pursuant to ORS 543A.305, and held in trust by the Department, prior to the request for the change in point of diversion. The evidence shall include a statement from the local watermaster, based upon the watermaster’s knowledge and Department records, that no validated complaint of injury has been made due to the use of water at the actual, current point of diversion. (3) On receipt of an application for a change in point of diversion under section (1) of this rule, the Department shall: (a) Provide the applicant a list of the affected water rights with, except as specified in section (3)(a)(E) of this rule, the name and address of the current holder(s) of each affected water right identified. The list shall include, but is not limited to: (A) Any water right with an intervening point of diversion; (B) Any water right for use of stored water being delivered from an upstream reservoir to a downstream user; (C) Any water right upstream from a significant inflow of water if the request moves the proposed point of diversion upstream, above the inflow, from the authorized point of diversion; (D) Any water right downstream from a significant inflow of water if the request moves the proposed point of diversion downstream, below the inflow, from the authorized point of diversion; (E) The list need not include any instream water right granted pursuant to a request under ORS 537.336, created pursuant to ORS 537.346, ORS 537.348 or ORS 537.470, or converted pursuant to ORS 543A.305, and held in trust by the Department, as the application to the Department shall be considered notification to the holder of these rights, and no further notice to the Department shall be required. (b) Provide the applicant with a copy of a notice that they must send by certified mail with return receipt service requested to all affected water right holders, except the Department pursuant to (3)(a)(E), that: (A) Describes the locations of the authorized and actual points of diversion; (B) States that the recipient on the notice may provide comments to the Department on whether the requested change in point of diversion will cause injury or enlargement, and that any timely comments received will be considered pursuant to the Department’s evaluation and determination made under section (5) of this rule; and (C) Establishes a comment period of at least 30 days after the date of delivery of the notice by certified mail to each of the affected water right holders; (c) Consult with ODFW in the manner provided under OAR 690-380-5060; and (d) Provide notice of the application in the weekly notice published by the Department. (4) Upon receipt from the Department of the list of affected water rights with the name and address of the current holder(s) of each affected water right identified and a copy of the notice, the individual requesting the change shall send the notice by certified mail with return receipt service requested to all such holders. If an instream water right granted pursuant to a request under ORS 537.336, created pursuant to ORS 537.346, ORS 537.348 or ORS 537.470, or converted pursuant to ORS 543A.305, and held in trust by the Department would be affected, the application to the Department shall be considered notification to the holder of these rights, and no further notice to the Department shall be required. The individual shall, within 14 days of the certified date of delivery of the notice, provide to the Department the signed and dated certified mail return receipts as proof of service upon the affected water right holders. A transfer under section (1) of this rule shall not be approved by the Department before the Department receives the signed and dated certified mail return receipts as proof of service or before the comment date specified in the notice, whichever is later. (5) If, after considering any timely comments received, the Department finds the individual requesting a change in point of diversion to reflect historical use satisfies the requirements under section (2) to (4) of this rule and that the change does not cause injury or enlargement, or can be conditioned to prevent injury or enlargement, the request shall be approved. The order approving the change in point of diversion: (a) Shall establish a deadline for compliance with any conditions needed to prevent injury or enlargement and, where required, to provide fish screening; (b) May, condition the transfer to prevent injury or enlargement resulting from the change; and (c) Shall cancel the certificate, if a certificate had previously been issued. (6) Concurrent with issuance of the approval order described in section (5) of this rule, the Director shall issue a new certificate confirming the change in point of diversion and preserving all other conditions of the water right. (7) After the deadline for compliance with conditions of an approval established pursuant to section (5) of this rule, the use of water from the point of diversion shall be subject to continued compliance with the conditions. (8) As used in this rule, “individual” means a natural person and does not include a government body, organization, business enterprise, or other such entity.