Chapter 540 — Chapter 540

ORS 540.458 Notice for owner corrective action to address safety issues. (1) If, as the result of an inspection or analysis of a dam that has a high hazard rating or significant hazard rating, the Water Resources Department concludes that corrective action is necessary to address a condition allegedly rendering the dam unsafe or potentially unsafe, the department shall notify the dam owner regarding

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ORS 540.461 Plan and time frame for corrective action; hearing; proposed and final orders. (1) If the Water Resources Department provides notification to a dam owner under ORS 540.458 stating that the department has concluded that a dam having a significant hazard rating or high hazard rating is unsafe or potentially unsafe, the department may cooperate with dam owner efforts to develop a plan and time frame for corrective action that is agreeable to the department. When determining whether a plan and time frame for corrective action developed by a dam owner is agreeable to the department, the department may consider any relevant information, including, but not limited to, information regarding

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ORS 540.464 Examinations, inspections and reports by specialists. The Water Resources Department may accept the reports of consulting engineers, geologists or other specialists employed by the dam owner. If the department concludes that the reports are insufficient, the department may employ consulting engineers, geologists or other specialists as agents or representatives of the department to make special examinations and inspections and to prepare reports for the department. The cost of such special examinations, inspections and reports shall be paid by the department or, upon mutual agreement, may be divided between the department and the dam owner. [2019 c.390 §9]

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ORS 540.467 Owner action to address maintenance issues; hearing; proposed and final orders; penalty. (1) If, as the result of an inspection under ORS 540.455 of a dam that has a significant hazard rating or high hazard rating, the Water Resources Department concludes that maintenance actions are needed, the department shall inform the dam owner of the need for maintenance actions. The department shall provide the information by inclusion in the inspection document and provide the dam owner with the opportunity to meet with the department concerning the information

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ORS 540.470 Contested case hearings. If the Water Resources Director issues a proposed final order under ORS 540.461, regarding a dam that the Water Resources Department has concluded is unsafe, and the director requests that the scheduling of any contested case hearing on the proposed final order be expedited, the Office of Administrative Hearings shall expedite the date of the contested case hearing to the extent that the office considers is practicable and will give the dam owner reasonable time to prepare. [2019 c.390 §11]

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ORS 540.473 Application for injunction. In addition to any other available remedies, if the Water Resources Department has information that a person is violating or intends to violate a final order issued under ORS 540.461, or concludes that a dam poses an imminent risk to life, property or public infrastructure, the department may apply to the circuit court for Marion County or to the circuit court for any county where all or part of the dam is located for a temporary or permanent injunction requiring the person to

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ORS 540.476 Action to declare dam public nuisance. In addition to any other available remedies, if an order issued under ORS 540.461 (4) becomes final by operation of law or on appeal, and the dam owner fails to comply with the order, the Water Resources Department may request that the Attorney General or the district attorney of any county where all or part of the dam is located bring an action to have the dam declared a public nuisance that must be removed at the dam owner’s expense. [2019 c.390 §13]

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ORS 540.479 Dam owner responsibilities. (1) The owner of record of a dam shall

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ORS 540.482 Emergency action plan for dam with high hazard rating. (1) The Water Resources Department shall require the owner of a dam that has a high hazard rating to develop an emergency action plan for the dam

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ORS 540.485 Actual or potential dam failure. (1) If an actual or potential dam failure creates an imminent risk to life, property or public infrastructure, and an emergency action plan exists for the dam, the dam owner shall immediately implement the actions specified in the plan

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ORS 540.488 Water Resources Commission duties and powers; rules. (1) The Water Resources Commission may adopt rules the commission deems necessary or convenient for the administration and enforcement of ORS 540.443 to 540.491

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ORS 540.491 Dam owner or operator liability. (1) Compliance with ORS 540.443 to 540.491 does not relieve the owner or operator of a dam or an individual in immediate charge of a dam from any duty, obligation or liability regarding the ownership, maintenance or operation of the dam

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ORS 540.505 Definitions. As used in ORS 540.505 to 540.586

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ORS 540.510 Appurtenancy of water to premises; restrictions on change of use, place of use or point of diversion; application for transfer of primary and supplemental water rights; right to use conserved water. (1)(a) Except as provided in subsections (2) to (8) of this section, all water used in this state for any purpose shall remain appurtenant to the premises upon which it is used and no change in use or place of use of any water for any purpose may be made without compliance with the provisions of ORS 540.520 and 540.530. However, the holder of any water use subject to transfer may, upon compliance with the provisions of ORS 540.520 and 540.530, change the use and place of use, the point of diversion or the use of the water without losing priority of the right. A district may change the place of use in the manner provided in ORS 540.572 to 540.580 in lieu of the method provided in ORS 540.520 and 540.530. When an application for change of the use or place of use for a primary water right is submitted in accordance with this section, the applicant also shall indicate whether the land described in the application has an appurtenant supplemental water right or permit. If the applicant also intends to transfer the supplemental water right or permit, the applicant also shall include the information required under ORS 540.520 (2) for the supplemental water right or permit. If the applicant does not include the supplemental water right or permit in the transfer application, the Water Resources Department shall notify the applicant that the supplemental water right or permit will be canceled before the department issues the order approving the transfer of the primary water right, unless within 30 days the applicant modifies the application to include the supplemental water right or permit or withdraws the application. The department may approve the transfer of the supplemental water right or permit in accordance with the provisions of ORS 540.520 and 540.530. The department shall not approve the transfer of a supplemental water right or permit if the transfer would result in enlargement of the original water right or injury to an existing water right. If the department approves the transfer of the primary water right but does not approve the transfer of the supplemental water right or permit, the department shall notify the applicant of the department’s intent to cancel that portion of the supplemental water right or permit described in the transfer application before the department issues the primary water right transfer order, unless the applicant withdraws the transfer application within 90 days

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ORS 540.520 (1)(a) Except when the application is made under ORS 541.327 or when an application for a temporary transfer is made under ORS 540.523, if the holder of a water use subject to transfer for irrigation, domestic use, manufacturing purposes, or other use, for any reason desires to change the place of use, the point of diversion, or the use made of the water, an application to make such change, as the case may be, shall be filed with the Water Resources Department

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ORS 540.523 Temporary transfer of water right or permit; terms; revocation; status of supplemental water right or permit. (1) In accordance with the provisions of this section, any person who holds a water use subject to transfer may request that the Water Resources Department approve the temporary transfer of place of use and, if necessary to convey water to the new temporary place of use, temporarily change the point of diversion or point of appropriation for a period not to exceed five years. An application for a temporary transfer shall

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ORS 540.524 Substitution of supplemental water right from ground water source for primary water right from surface water source; application; fee; proposed final order. (1) Notwithstanding ORS 540.510 or 540.670, upon approval of an application submitted to the Water Resources Department, the holder of both a primary water right originating from a surface water source and a supplemental water right permit or certificate originating from a ground water source may substitute the use of the supplemental water right for the primary water right. A substitution may not be made under this subsection if the use of the supplemental water right results in an enlargement or expansion of the primary water right. This subsection does not authorize a change in place of use, type of use, point of diversion or point of appropriation

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ORS 540.525 Installation of fish screening or by-pass device as prerequisite for transfer of point of diversion. (1) Upon receipt of an application for a change in the point of diversion under ORS 540.520, the Water Resources Department shall consult with the State Department of Fish and Wildlife to determine whether the diversion is

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ORS 540.530 Order authorizing change of use, place of use or point of diversion; consent to injury; new or modified certificate. (1)(a) If, after hearing or examination, the Water Resources Commission finds that a proposed change can be effected without injury to existing water rights, the commission shall make an order approving the transfer and fixing a time limit within which the approved changes may be completed

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ORS 540.531 Transfer of surface water point of diversion to ground water; requirements; priority; mitigation measures; return to surface water diversion; rules. (1) Notwithstanding ORS 537.515 and 537.535, an owner of a surface water use subject to transfer may apply for a transfer of the point of diversion to allow the appropriation of ground water if the proposed transfer complies with the requirements of subsection (2) or (3) of this section and with the requirements for a transfer in point of diversion specified in ORS 540.520 and 540.530

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ORS 540.532 Request for change in point of diversion to reflect historical use; requirements. (1) Notwithstanding ORS 537.797, 540.510, 540.520 and 540.530, an individual may request a change in the 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 if the individual complies with the provisions of subsection (2) of this section

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ORS 540.533 Application for exchange of water. (1) As used in this section, “person holding a water right, certificate or permit” means a person that

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ORS 540.535 After receipt of an exchange application, the Water Resources Commission shall give notice of the application by publishing notice of the application in a newspaper having general circulation in the area in which the water uses are located at least once each week for at least two successive weeks. The cost of providing the notice by publication shall be paid in advance by the applicant to the commission

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ORS 540.537 Order allowing exchange; order terminating exchange. (1) The Water Resources Commission shall issue an order allowing an exchange unless the commission finds any of the following

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ORS 540.539 Exchange subject to beneficial use requirements. An exchange of water under ORS 540.533 to 540.537 is subject to the requirements of beneficial use under ORS 540.610. [1987 c.815 §5]

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ORS 540.540 [Renumbered 540.545 in 1987]

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ORS 540.541 Delivery and use of water under exchange. (1) Any water made available to a person under an exchange shall be delivered in accordance with the order allowing the exchange. The use of water under an exchange is without prejudice to, but shall be considered use and enjoyment of, the permitted, certificated or decreed right held by that water user at the time the exchange was approved

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ORS 540.543 Regulation of headgates when water provided by exchange. If water for an in-stream use is provided by exchange, the watermaster shall regulate headgates and other diversion points as necessary to assure that the exchange water is not diverted from the channel at any point above the most downstream point of use specified in the permit or certificate that establishes the right to use of water for an in-stream purpose. [1987 c.815 §7]

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ORS 540.545 Transfer of water rights following county acquisition of land. Whenever the title to lands within a district has been or is acquired by the county within which the land is located, by foreclosure of tax liens or otherwise, the county court or board of county commissioners, upon request of the district, may make application under the provisions of ORS 540.505 to 540.586 to have the water rights appurtenant to such lands transferred to other lands within the district which are owned by the county or privately owned. [Formerly 540.540; 1991 c.957 §8]

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ORS 540.550 [Renumbered 540.589 in 2017]

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ORS 540.560 Proposed final order changing description of land to which water right is appurtenant; limitation; purpose; hearing; effect of final order. (1) If the Water Resources Commission considers that a certificate of water right does not identify the lands to which the right is appurtenant with sufficient specificity for management, delivery or transfer of that right, the commission may issue a proposed final order clarifying and refining the description of the land to which the water right is appurtenant

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ORS 540.570 (1) Provided that the proposed transfer complies with all of the provisions of this subsection and will not result in injury to any existing water right, a district with a manager may, for one irrigation season, temporarily transfer the place of use of water appurtenant to any land within the legal boundaries of the district to an equal acreage elsewhere within the legal boundaries of that district or temporarily transfer the type of use identified in a right to store water. A temporary transfer of the place of use may occur if

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ORS 540.572 Application of certificated water elsewhere within district; notice. (1) Upon compliance with this section and ORS 540.574 and 540.576, whenever land within the legal boundaries of a district is no longer irrigated or susceptible of irrigation, the district may apply the certificated water to which such land is entitled to other irrigable lands within the legal boundaries of the district if the district

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ORS 540.574 Petition for approval of transfer. (1) In accordance with the requirements of subsection (3) of this section, a district may petition the Water Resources Commission for approval and acceptance of a district map indicating the transfer of the location and use of the water rights within the district or any part of the district. The map shall be in a form satisfactory to the commission and shall be certified by the district rather than a certified water right examiner. In no event shall the petition and map expand a water right of the district or its users beyond the total right of record for the district. If the district complies with the requirements of ORS 540.572 to 540.580, and after the opportunity for hearing under ORS 540.578, the commission shall issue an order approving the transfer and proceed as provided in ORS 540.530 (1) and (2)

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ORS 540.576 Notice of petition; protest; user rights. After filing a petition under ORS 540.572, the district shall send a copy of the petition and map and a notice to the users of the district whose right of record is to be transferred and who are to receive the transferred right. The copy of the petition and the notice shall be sent to the last-known address of the user with a return receipt requested. The notice accompanying the petition shall advise the user that

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ORS 540.578 Filing of protest; hearing on proposed transfer. (1) Any user may file with the Water Resources Commission, within 60 days after the date of mailing the notice under ORS 540.576, a protest against approval of the petition, map and transfer. Whenever a timely protest is filed, or in the opinion of the commission a hearing is necessary to determine whether the district has complied with the requirements of ORS 540.572 to 540.580, or the proposed transfers described in the petition would result in injury to existing water rights, the commission shall hold a hearing on the matter. The hearing shall be conducted according to the provisions of ORS chapter 183 applicable to contested case proceedings. The hearing shall be held in the area of the state where the rights are located unless the parties and the persons who filed the protest under this section stipulate otherwise

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ORS 540.580 (1) In accordance with this section, a district may by petition request that the Water Resources Department approve the permanent transfer of the place of use of water within a district as long as the proposed transfer complies with all of the following

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ORS 540.585 (1) In accordance with the provisions of this section, a person may request that the Water Resources Department approve the temporary transfer of the place of use and type of use and temporarily change the point of diversion if necessary to convey water to the new temporary place of use, of all or a portion of a water right, for a period not to exceed 25 years if

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ORS 540.586 Denial of change in point of appropriation; exceptions. The Water Resources Department may deny a change in the point of appropriation under ORS 540.505 to 540.586 for a ground water right if the proposed point of appropriation is for a source of ground water restricted under ORS 536.415 and the proposed use is subject to the restrictions, unless the proposed point of appropriation is

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ORS 540.587 Report on implementation of temporary transfer provisions. The Water Resources Department shall submit a report, in the manner provided in ORS 192.245, that shall include a summary of the features of the process employed by the Water Resources Commission to implement ORS 540.585. The report shall be submitted no later than January 31 of each year to the Legislative Assembly or to an interim committee related to natural resources, as appropriate. [2003 c.705 §10]

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ORS 540.589 Ratification of prior transfer of water rights to irrigation district. All attempted transfers or sales, prior to March 6, 1931, to an irrigation district, of water rights which theretofore had been appurtenant to lands located in the district and which lands at the time of the attempted transfer or sale were owned by the county, shall be considered to be legal and binding, and the water rights which were appurtenant to such lands shall be considered to have become the property of the district to which attempted to be conveyed, but appurtenant only to lands within the boundaries of the district as they existed on March 6, 1931, if the irrigation district applied to the Water Resources Director, within five years after March 6, 1931, under the provisions of section 47-712, Oregon Code 1930, as amended by chapter 102, Oregon Laws 1931, to have the water rights made appurtenant to other lands within the irrigation district. In that event, the county shall sell the lands without any water rights being appurtenant thereto. If the irrigation district failed within five years after March 6, 1931, to make such application, then title to the water rights shall be considered to have been forfeited. [Formerly 540.550]

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ORS 540.610 Use as measure of water right; forfeiture for nonuse; confirmation of rights of municipalities. (1) Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state. Whenever the holder of a perfected and developed water right ceases or fails to use all or part of the water appropriated for a period of five successive years, or for a period of five years that is calculated in whole or in part as described in subsection (4) of this section, the failure to use shall establish a rebuttable presumption of forfeiture of all or part of the water right

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ORS 540.612 Exemption from forfeiture. If a district, as defined in ORS 540.505, petitions for a transfer as provided in ORS 540.574 no later than the end of the calendar year of the fifth year of nonuse under ORS 540.610 (1), the forfeiture provisions of ORS 540.610 shall not apply to the lands from which the water right is sought to be transferred pending approval of the district’s petition. The time required for the processing of the petition, including any time required for hearings, appeals and completion of an authorized change, shall not be included when computing a five-year period of nonuse under the provisions of ORS 540.610 (1). [1991 c.957 §11]

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ORS 540.615 [1961 c.140 §1; 1987 c.339 §5; repealed by 1989 c.699 §4]

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ORS 540.620 [Repealed by 1955 c.671 §1]

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ORS 540.621 Cancellation of abandoned water right upon request of owner. Whenever the owner of a perfected and developed water right certifies under oath to the Water Resources Commission that the water right has been abandoned by the owner and that the owner desires cancellation thereof, the commission shall enter an order canceling the water right. Effective upon the date of the entering of such order, the water which was the subject of use under the water right shall revert to the public and become again the subject of appropriation in the manner provided by law, subject to existing priorities. [1955 c.670 §1; 1979 c.67 §5; 1985 c.673 §96]

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ORS 540.630 [Repealed by 1955 c.671 §1]

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ORS 540.631 Cancellation of forfeited water right; notice. Whenever it appears to the satisfaction of the Water Resources Commission upon the commission’s own determination or upon evidence submitted to the commission by any person that a perfected and developed water right has been forfeited as provided in ORS 540.610 (1), and would not be rebutted under ORS 540.610 (2), the commission shall initiate proceedings for the cancellation of such water right by causing written notice of such initiation of proceedings to be given by registered or certified mail, return receipt requested, to the legal owner of the lands to which the water right is appurtenant and to the occupant of such lands. The notice to the legal owner shall be addressed to the legal owner at the owner’s last address of record in the office of the county assessor of the county in which the lands are located. The notice shall contain a complete description of the water right and of the lands to which the water right is appurtenant. The notice shall state that the legal owner or the occupant has a period of 60 days from the date of the mailing of the notice within which to protest the proposed cancellation of the water right. [1955 c.670 §2; 1985 c.673 §97; 1989 c.699 §2; 1991 c.249 §53]

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ORS 540.640 [Repealed by 1955 c.671 §1]

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ORS 540.641 Protest of cancellation; procedure. (1) If the legal owner or the occupant receiving notice as provided in ORS 540.631 fails to protest the proposed cancellation of the water right within the 60-day period prescribed in the notice, the Water Resources Commission may enter an order canceling the water right

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