Water Right Water Right TransfersTransfers

OAR Chapter 690OAR Chapter 690Divisions 380, 382, 385, Divisions 380, 382, 385,

7777

CWRE Workshops – October, 2012CWRE Workshops – October, 2012

Susan DouthitDistrict Analyst

Transfers TopicsTransfers Topics

Transfer BasicsTransfer Basics

Types of TransfersTypes of Transfers

Transfer ProcessTransfer Process

Transfer Transfer BasicsBasics

What is a Transfer?What is a Transfer?

The legal way The legal way

to to make changesmake changes to to

a water right.a water right.

Basic Components of Water Basic Components of Water RightsRights

Water source Water source Type of Beneficial UseType of Beneficial Use Priority Date Priority Date Maximum rate of diversion (cfs or gpm) Maximum rate of diversion (cfs or gpm) Annual duty (volume of water, acre-foot)Annual duty (volume of water, acre-foot) Point of Diversion/AppropriationPoint of Diversion/Appropriation Place of UsePlace of Use

What CAN be changedWhat CAN be changed Water sourceWater source Type of Beneficial UseType of Beneficial Use Priority Date Priority Date Rate of diversion (cfs or gpm) Rate of diversion (cfs or gpm) Annual duty (volume of water, acre-Annual duty (volume of water, acre-

foot)foot) Point of Diversion/AppropriationPoint of Diversion/Appropriation Place of UsePlace of Use

What Can What Can NOTNOT be be Changed?Changed?

SourceSource Rate of diversion Rate of diversion (can’t be increased)(can’t be increased)

Annual duty Annual duty (can’t be increased beyond (can’t be increased beyond what could originally have been used what could originally have been used

beneficiallybeneficially)) Priority DatePriority Date Number of Acres Number of Acres (can’t be increased)(can’t be increased)

Kinds of Kinds of TransfersTransfers

For Certificated Rights: For Certificated Rights: “Regular Permanent “Regular Permanent

Transfers”Transfers” (OAR 690-380):(OAR 690-380):

Permanent Transfers: Permanent Transfers: POU, POD/POA, USEPOU, POD/POA, USE Temporary Transfers: Temporary Transfers: POU POU for 1-5 years, (& for 1-5 years, (&

POD/POA if needed to get water to the new POD/POA if needed to get water to the new POU)POU)

““Historic PODHistoric POD” to bring 10 yr+ unauthorized ” to bring 10 yr+ unauthorized POD/POA change into compliancePOD/POA change into compliance

(OAR 690- 077):(OAR 690- 077): Instream Transfers: Instream Transfers: POU & USE,POU & USE, to protect to protect

water instream (permanent or time-limited)water instream (permanent or time-limited)

For Permits: Permit For Permits: Permit AmendmentsAmendments

(ORS 537.211)(ORS 537.211)

Change POU Change POU Move to contiguous landMove to contiguous land Land owned by permit holderLand owned by permit holder

Change or add POD/POAChange or add POD/POA Cannot change character of useCannot change character of use

For Groundwater For Groundwater Registrations (GR- Claims): Registrations (GR- Claims):

GR ModificationsGR Modifications

OAR 690-382OAR 690-382

Change or add POAChange or add POA Change POUChange POU Change USEChange USE

District Transfers – ORS District Transfers – ORS 540.580540.580

Division 690-385Division 690-385 POU onlyPOU only

Within the boundaries of a districtWithin the boundaries of a district No injuryNo injury No enlargementNo enlargement

Extended notice requirementsExtended notice requirements

Transfer Transfer ProcessProcess

Step 1 Step 1 Submit ApplicationSubmit Application

Start with a water right Start with a water right subject to subject to transfer.transfer.

Decide what changes to make.Decide what changes to make. Fill out application forms.Fill out application forms. Prepare all attachments. (map, Prepare all attachments. (map,

evidence of use, land use form, evidence of use, land use form, Supp’l Form D, etc.)Supp’l Form D, etc.)

Submit to Department with fees.Submit to Department with fees.

Step 2 Step 2 Initial Public NoticeInitial Public Notice

Public notice of application – 30 day Public notice of application – 30 day comment periodcomment period

Step 3 Step 3 Department ReviewDepartment Review

Is the application complete?Is the application complete? Is the right not cancelled or has the Permit Is the right not cancelled or has the Permit

Completion Date (C-date) not expired?Completion Date (C-date) not expired? Has the right been used in the last five Has the right been used in the last five

years?years? Will the proposed POD or POA access the Will the proposed POD or POA access the

same source of water?same source of water? Is the change consistent with land use?Is the change consistent with land use? Will ODFW require a fish screen?Will ODFW require a fish screen? Do the owners of the land where the water Do the owners of the land where the water

right is appurtenant agree to the change?right is appurtenant agree to the change?

Step 3 Step 3 Department ReviewDepartment Review

Is an affected Irrigation District in Is an affected Irrigation District in agreement? agreement? Supp’l Form D is an application Supp’l Form D is an application

requirement if water right being requirement if water right being transferred is transferred is in the name ofin the name of OR OR within the boundaries of a district.within the boundaries of a district.

Would the change Would the change NOT NOT enlarge the enlarge the right?right?“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 place of use from receiving water from the same source; or(d) Diverting more water at the new point of diversion or appropriation than is legally available to that right at the original point of diversion or appropriation.

Step 3 Department Review

Step 3 Step 3 Department ReviewDepartment Review

Would the change Would the change NOT NOT injure other injure other rights?rights?

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

Step 4 Step 4 DraftDraft Preliminary Preliminary DeterminationDetermination

For Permanent OAR 690-380 and 690-For Permanent OAR 690-380 and 690-077 transfers only (“regular” and 077 transfers only (“regular” and instream):instream):

Draft Preliminary Determination (DPD) Draft Preliminary Determination (DPD) sent to applicant, proposing approval or sent to applicant, proposing approval or denialdenial Opportunity for applicant to comment on Opportunity for applicant to comment on

determination or modify proposaldetermination or modify proposal Assure the intent of the change is Assure the intent of the change is

reflected.reflected.

Step 5 Step 5 OwnershipOwnership

Ownership report – requested at DPDOwnership report – requested at DPD Prepared by a title companyPrepared by a title company w/in three months of the dpd, w/in three w/in three months of the dpd, w/in three

months of recording a conveyance agreement months of recording a conveyance agreement OR prepared at any time but showing OR prepared at any time but showing ownership at the time a conveyance was ownership at the time a conveyance was recorded.recorded.

Report must contain-Report must contain- Date report was preparedDate report was prepared List of ownersList of owners Legal Description (Exhibit A)Legal Description (Exhibit A)

Step 6Step 6Newspaper NoticeNewspaper Notice

Department will coordinate with Department will coordinate with applicant to select a newspaper and applicant to select a newspaper and submission of funds.submission of funds. Two consecutive weeks (three weeks if Two consecutive weeks (three weeks if

application submitted before Jan 2012) application submitted before Jan 2012) in a newspaper that has circulation in in a newspaper that has circulation in the area of the water right.the area of the water right.

Protest period ends 30 days after the Protest period ends 30 days after the last daylast day of publication. of publication.

No newspaper No newspaper publication if. . .publication if. . .

Only changing POUOnly changing POU POD/POA of less than quarter mile POD/POA of less than quarter mile

w/no intervening PODs/POAsw/no intervening PODs/POAs

Step 7Step 7Preliminary DeterminationPreliminary Determination

Issued following agreement with Issued following agreement with DPDDPD

Public NoticePublic Notice Newspaper Notice (if required)Newspaper Notice (if required) Initiates Protest PeriodInitiates Protest Period

Step 8 Step 8 Final OrderFinal Order

Department issues Final Order approving Department issues Final Order approving or denying transfer proposal.or denying transfer proposal.

Applicant is authorized to make the Applicant is authorized to make the change.change.

Deadline is set for completion of change Deadline is set for completion of change (C-date).(C-date).

CBU due one year after C-dayCBU due one year after C-day Applicant usually responsible for Applicant usually responsible for

submission of CBU.submission of CBU.

Step 9 Step 9 Proving UpProving Up

Applicant completes changes and puts Applicant completes changes and puts water to beneficial use by completion water to beneficial use by completion date, or needs to apply for a “Transfer date, or needs to apply for a “Transfer Extension of Time”Extension of Time”

Applicant hires a CWRE to prepare a Applicant hires a CWRE to prepare a Claim of Beneficial Use (CBU) and mapClaim of Beneficial Use (CBU) and map

After Department reviews and approves After Department reviews and approves CBU, a new certificate is issued for the CBU, a new certificate is issued for the changed right (confirming certificate). changed right (confirming certificate).

Questions?Questions?