Water Right Transfers Enlargement Injury Review OAR Chapter

Water Right Transfers - Enlargement & Injury Review – (OAR Chapter 690, Division 380) Lisa Jaramillo Transfer and Conservation Section Manager Kelly Starnes Transfer Program Coordinator

Transfer & Conservation Section (TACS) �Transfers [Div. 380] �Permit Amendments [ORS 537. 211(4)] – Cannot change Use �Ground Water Registration Modifications [Div. 382] �Instream Transfers & Instream Leases [Div. 77] �District Transfers [Div. 385] �Allocations of Conservation Water [Div. 18] �Water Management & Conservation Plans [Div. 86] �Reclaimed Municipal Water Use [ORS 537. 132]

The TACS Team

Transfers �Transfer Program Coordinator – Kelly Starnes �Transfer Caseworkers �Joan Smith (Salem) �Sarah Henderson (Salem) �Arla Heard (Salem) �Vacant Position (Salem) �Ken Dowden (Pendleton) �Marcy Osborn (Baker City)

Types of Transfers �Permanent Water Right Transfer �Permit Amendment �Ground Water Registration Modification �Instream Transfer �Temporary Water Right Transfer �Temporary Drought Transfer

Types of Permanent Transfers �Place of Use (POU) �Point of Diversion/Appropriation (POD/POA) or Additional POD/POA �Change in POD or POA to reflect Historical Use �Character of Use �Surface Water POD to a Ground Water POA �Supplemental Use to Primary Use �Substitution of Supplemental GW for Primary SW �Exchange of Water

Types of Temporary Transfers Temporary Transfer (1 to 5 years): �Place of Use �(…and, if necessary to convey water to temporary POU, may temporarily change POD or POA) Temporary Drought Transfer (Div. 19) (1 year or for the term of Governor-declared drought, whichever is shorter): �Type of Use �Place of Use �Point of Diversion

Criteria for Approval �Water use subject to transfer �Right beneficially used within past 5 years according to terms & conditions of permit and not subject to forfeiture �Ready, willing & able to use full amount allowed �No enlargement �No injury �Same Source

What is Enlargement? �“Enlargement” means an expansion of a water right and includes, but is not limited to: a) Using a greater rate or duty of water per acre than currently allowed under a right; b) Increasing the acreage irrigated under a right; c) Failing to keep the original POU from receiving water from the same source; or d) Diverting more water at the new POD or POA than is legally available to that right at the original POD or POA.

What is Injury? �“Injury” or “Injury to an existing water right” means… … a proposed transfer would result in another, existing water right not receiving previously available water to which it is legally entitled.

Watermaster Review Form: Water Right Transfer �Transfer Caseworker evaluates application for injury and enlargement potential �Information provided by Watermaster in review form helps inform the caseworker’s evaluation �Field Operations Guidance Manual � 11. 03 Watermaster Review Form Instructions

Watermaster Review Form: Water Right Transfer �Things to consider: �Forfeiture issues associated with the right �History of regulation on the source �Return flows benefiting downstream water rights �Effect of transfer to upstream water rights �Channel losses

Watermaster Review Form: Water Right Transfer �More things to consider: �Forfeiture issues associated with the right �Increased regulation activity (i. e. , a new call) would occur as a result of transfer �POU – can “FROM” lands be dried up? �USE – can it be used beneficially without waste? �Are there alternatives to resolve identified issues?

Recap of Enlargement �“Enlargement” means an expansion of a water right and includes, but is not limited to: �Greater rate or duty of water per acre �Increasing acreage irrigated under a right �Failing to keep the original place of use from receiving water from the same source �Diverting more water at new POD/POA than is legally available at original POD/POA

Enlargement - Case Study #1 �POU change to increase irrigated acreage

Enlargement - Case Study #1 �POU change to increase irrigated acreage �Answer: Enlargement

Enlargement - Case Study #2 �POU change to expand service area of a municipal water supplier

Enlargement - Case Study #2 �POU change to expand service area of a municipal water supplier �Answer: No Enlargement

Enlargement - Case Study #3 �POD & POU changes to add industrial facilities

Enlargement - Case Study #3 �POD & POU changes to add industrial facilities �Answer: No Enlargement

Other Enlargement Issues �Potential for use of more water than could be used under existing right �Expansion of season (i. e. , outside original authorized season) �Multiple changes in USE �Can’t prevent “From” lands from receiving water from the same source �Water from a different source – not enlargement �Change from specific to general use �Domestic to Quasi-Municipal �Irrigation to Wildlife Purposes

Recap of Injury �“Injury” or “Injury to an existing water right” means… … a proposed transfer would result in another, existing water right not receiving previously available water to which it is legally entitled.

Maximization of Use �Based on how water right could be used �Under existing authorization �Efficiently and intensively �Maximum beneficial use, given most water-intensive crop typically grown (or could be grown) in the region �Injury (and potential enlargement) if: �Impacts greater than could occur with maximization � Not necessarily injury if maximum beneficial use is greater than what’s been applied in the past

Scenarios with Injury Issues �Depictions of several scenarios for WR changes �Dotted lines/cross-hachured lands are “FROM” �Solid lines/solid lands are “TO” �Priority dates in letter order �A is most senior �B is next junior, etc. �Injury or disadvantage? �Legal entitlement to the water, or �Past beneficiary of water for which user had no legal call

Injury - Case Study #1 �Upstream movement of Point of Diversion Dotted line = “FROM” Solid line = “TO”

Injury - Case Study #1 �Upstream movement of Point of Diversion �Answer: “B” likely injured because of increased call on source stream

Injury - Case Study #2 �Downstream movement of Point of Diversion Dotted line = “FROM” Solid line = “TO”

Injury - Case Study #2 �Downstream movement of Point of Diversion �Answer: No injury, but call will be to old POD, “C” cannot be subject to regulation for “A”

Injury - Case Study #3 �Downstream movement of POD into a losing reach Dotted line = “FROM” Solid line = “TO”

Injury - Case Study #3 �Downstream movement of POD into a losing reach �Answer: “B” likely injured unless call limited to quantity available at old POD

Injury - Case Study #4 �Upstream movement of POD in instream water right reach Dotted line = “FROM” Solid line = “TO” Pink line = instream water right

Injury - Case Study #4 �Upstream movement of POD in instream water right reach �Answer: Instream water right “D” not injured if flows met virtually all the time

Injury - Case Study #5 �POA change into significantly greater hydraulic connection Pink dot = “FROM” POA Green dot = “TO” POA

Injury - Case Study #5 �POA change into significantly greater hydraulic connection �Answer: “B” likely injured because of increased impact on surface water

Potentially Injurious POD Changes (Summary of Injury Case Studies #3, #4, and #5) �To a point downstream of a losing reach, unless conditioned �To a point upstream of a junior, including any portion of an instream water right reach �…if it results in a new call for regulation �To a well in significantly closer hydraulic connection with surface water

Injury - Case Study #6 �POU change to location downstream of junior Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #6 �POU change to location downstream of junior �Answer: “B” potentially injured if relies on return flows

Injury - Case Study #7 �POU change to source watershed Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #7 �POU change to source watershed �Answer: “D” not injured because return flows are from a different source

Injury - Case Study #8 �POU change to another watershed Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #8 �POU change to another watershed �Answer: “B” potentially injured if relies on return flows

Injury - Case Study #9 �POU change to another watershed for use of stored water Cross-hachured land = “FROM” Solid land = “TO”

Injury - Case Study #9 �POU change to another watershed for use of stored water �Answer: “D” not injured because return flows are from a different source (i. e. , stored water)

Potentially Injurious Place of Use Changes (Summary of Injury Case Studies #6 - #9) �Any change that results in a reduction in water to other rights calling on same source because of modification of return flows

Injury - Case Study #10 �USE change from irrigation to industrial Dotted line to field = “FROM” Solid line to factory = “TO”

Injury - Case Study #10 �USE change from irrigation to industrial �Answer: “B” & “C” potentially injured if rely on return flows

Injury - Case Study #11 �USE change from irrigation to nursery • Irrigation season: March 1 to October 31 • Water not available: November to February Solid green land = “FROM” and “TO” occurring on the same land

Injury - Case Study #11 �USE change from irrigation to nursery �Answer: “B” and “D” potentially injured due to “A” diverting water for nursery use during periods when water is not available.

Potentially Injurious Character of Use Changes (Summary of Injury Case Studies #10 and #11) �Any change that results in a reduction in water to other rights calling on same source because of modification of return flows �Any change that results in expansion of the season of use of a live flow surface water right into time period(s) when water is not available

Questions? Lisa Jaramillo Transfer and Conservation Section Manager Phone: 503 -986 -0880 E-Mail: Lisa. J. Jaramillo@wrd. state. or. us Kelly Starnes Transfer Program Coordinator Phone: 503 -986 -0886 E-Mail: Patrick. K. Starnes@wrd. state. or. us