A proposed instream transfer, including a time-limited instream
transfer, of a water use subject to transfer to an instream water right shall
be processed pursuant to the water rights transfer rules in OAR chapter 690,
division 380 and the following provisions:
(1) The Department shall provide notice of
the proposed instream transfer pursuant to OAR
690-380-4000, and to affected
Indian tribes.
(2) In addition to
the assessment described in OAR
690-380-4010, the Department's preliminary
determination 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 original 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, 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(8);
(D) Any known areas of natural loss of
streamflow to the river bed. Where an instream water right passes through an
area of known natural loss several reaches may be required to incorporate the
reduced flows available, in accordance with paragraph (2)(c)(B) of this
rule.
(c) The proposed
flow(s) is (are) consistent with OAR
690-077-0015(7), (8) and (11), shall
provide a public benefit for an instream use, and be appropriate considering:
(A) Return flows which shall be subtracted
from the instream water right at the old point of diversion, unless the return
flows occur at a definite point a substantial distance below the old 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;
and
(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.
(3) An
instream transfer shall be approved if the Department determines that the
transfer is consistent with OAR
690-380-5000, and Section (2) of this
rule.
(4) The Department shall
issue a final order consistent with the preliminary determination described in
OAR
690-380-4010 and Section (2) of this rule if no protests are received under
690-380-4030.
(5) Upon approval of
an instream transfer, the Department shall issue a permanent instream water
right certificate. However, upon approval of a time-limited instream transfer,
the Department shall issue a final order with a specific date of expiration or
other conditions for termination for the instream water right and suspend the
use of the original right during the effective period of the instream water
right. A copy of the certificate or final order shall be mailed to the
applicant and as appropriate to affected Indian tribes, ODFW, DEQ and Parks.
The Director shall also issue a new certificate for any remaining right for the
existing use as appropriate.
Notes
Or. Admin. Code §
690-077-0075
WRD 20-1988, f. & cert.
ef. 11-4-88; WRD 12-1990, f. & cert. ef. 8-8-90; WRD 9-1992, f. & cert.
ef. 7-1-92; WRD 1-1995, f. & cert. ef. 2-14-95; WRD 8-2001, f. & cert.
ef. 12-14-01; WRD 4-2006, f. & cert .ef.
10-2-06
Stat. Auth.: ORS 197,
536.025,
536.027,
536.220,
536.300,
536.310,
537.338 &
537.356 -
537.358
Stats. Implemented: ORS 197,
536.025,
536.027,
536.220,
536.300,
536.310,
537.338,
537.356 &
537.358
