OAR 690-410-0070: Water Allocation

(1) Policy. The waters of the state shall be allocated within the capacity of the resource and consistent with the principle that water belongs to the public to be used beneficially without waste. Water shall be allocated among a broad range of beneficial uses to provide environmental, economic, and social benefits. The waters of the state shall be protected from over-appropriation by new out-of-stream uses of surface water or new uses of groundwater. (2) Principles. Programs to achieve the policy in section (1) of this rule shall be guided by the following principles: (a) The surface waters of the state shall be allocated to new out-of-stream uses only during months or half-month periods when the allocations will not contribute to over-appropriation. However, when a stream is over-appropriated, some additional uses may be allowed where public interest in those uses is high and uses are conditioned to protect instream values; (b) The groundwater of the state shall be allocated to new beneficial uses only when the Department makes a finding that water is available for a proposed use as defined in OAR 690-300-0010(57). Restrictions on allocations of water for exempt groundwater uses may be considered when a groundwater source is over-appropriated; (c) New allocations of water for the purpose of filling storage facilities may be allowed notwithstanding subsection (a) of this section. Protection may be afforded to all water rights and instream uses by establishing storage filling seasons in basin rules, by considering the need for minimum pass-through flows on water rights, or establishing by rule other conditions consistent with the state policy on water storage as a prerequisite for allocation. In setting a storage season, consideration shall be given to avoiding periods of the year when flows are low and seldom exceed the needs of water rights and when additional flows are needed to support public uses; (d) A determination that a stream is over-appropriated does not affect the allocation of legally stored water from existing or future facilities; (e) When surface water or groundwater is known to be contaminated, it may be allocated to new uses only if the Commission determines, after consultation with the Department of Environmental Quality (DEQ) or the Oregon State Health Division (OSHD), that the use does not pose a significant hazard to human health or the environment. Groundwater allocation may be restricted if the Department determines that use would likely result in the spread of existing groundwater contamination; (f) Water shall not be allocated if the proposed use would injure the exercise of existing water rights or permits; (g) The Scenic Waterways Act declares that the highest and best uses of the waters within State Scenic Waterways are fish, wildlife, and recreation. Allocations to new out-of-stream uses in State Scenic Waterways shall be consistent with the Scenic Waterways Act. Allocations to new out-of-stream uses in and above State Scenic Waterways shall not interfere with the maintenance of flow levels necessary for the purposes of Scenic Waterways; (h) When instream flow needs are not protected by instream water rights, new out-of-stream allocations may be limited or conditioned to protect public uses; (i) When allocating water for new uses, the Commission shall assure compliance with the Statewide Planning Goals and compatibility with local comprehensive plans in accordance with the Department’s certified State Agency Coordination Program; (j) When classifying allowable new uses of water or establishing reservations, the Commission shall seek consistency with management plans for public lands and resources, and with state, regional, and local resource management and economic plans; (k) Conservation, storage development, water right transfers, and leases are means to maximize beneficial uses and to meet the changing needs of society and shall be encouraged and facilitated; (l) Future allocation of water for out-of-basin diversions shall be allowed only if consistent with this policy and the conditions specified in existing statute and rule.