Loading (50 kb)...'

State
Oregon
ORS 541.010 Watersheds and Water

Chapter 541 — Watershed Enhancement and Protection; Water

Development Projects; Miscellaneous Provisions on Water Rights;

Stewardship Agreements



2003 EDITION



WATERSHED ENHANCEMENT AND PROTECTION



WATER LAWS



WATER COMPANIES ORGANIZED UNDER 1891 ACT



541.010 Furnishing of water for certain purposes declared to be a public use; rates; amendment of law



541.020 Construction of ditches and canals by corporation; route across lands



541.030 Ditches and canals across state lands; grant of right of way



541.040 Headgate; mode of construction



541.050 Leakage or overflow; liability; exception



541.055 District liability for seepage and leakage from water or flood control works; limitation on commencement of action



541.060 Waste of water; flooding premises; unnecessary diversion



541.070 Ditches, canals and flumes as real estate



541.080 Suits involving water rights; parties; decree as to priorities



APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER UNDER 1899 ACT



541.110 Use of water to develop mineral resources and furnish power



541.120 Ditches and canals through lands; two or more prohibited; use of existing ditch by others than owner; joint liability



541.130 Right of way for ditches across state lands granted



APPROPRIATION OF WATER BY THE UNITED STATES



541.220 Survey of stream system; delivery of data to Attorney General; suits for determination of water rights



541.230 State lands within irrigated area; restrictions on sale; conveyance of lands needed by United States



541.240 Right of way for ditches and canals; reservation in conveyances



541.250 Cession to United States not rescinded



SUITS FOR DETERMINATION OF WATER RIGHTS UNDER 1905 ACT



541.310 Suits for determination of rights; parties; survey of stream; disbursements



541.320 Decrees adjudicating rights; filing; statement as to matters adjudicated



DISTRICT WATER RIGHTS MAPPING



541.325 Definitions for ORS 541.327 to 541.333



541.327 Failure or refusal of district to act; joint applications; eligible participants



541.329 Petition for approval of district map; contents; notice to users; corrections



541.331 Protest against approval of petition; hearing; issuance of water right certificate; land subject to inclusion



541.333 Application for change of place of use, point of diversion or use; contents; form of map



WATERSHED MANAGEMENT AND ENHANCEMENT



(Generally)



541.351 Definitions for ORS 541.351 to 541.415



541.353 Legislative findings; principles of Oregon Plan; policy



541.360 Oregon Watershed Enhancement Board; officers; qualifications



541.362 Executive director of Oregon Watershed Enhancement Board; appointment



541.363 Authority of executive director to enter into interagency agreements



541.365 Board to conduct watershed enhancement program; integration of geographic information



541.368 Board to facilitate implementation of grant programs



541.370 Duties of board; advisory committees



541.371 Duties of board related to integrated watershed planning and management; allocation of funds to local soil and water conservation districts and watershed councils



541.372 Authority of board to accept moneys; disposition



541.373 Authority of Governor to accept moneys; disposition



541.375 Watershed enhancement projects; grant program; criteria for approval; acquisition of interest in land or water



541.376 Title restrictions on land purchased through grant agreement



541.377 Parks and Natural Resources Fund; sources; subaccounts; uses of subaccounts



541.378 Restoration and Protection Research Fund; creation; sources; uses



541.379 Watershed Improvement Operating Fund; creation; sources; uses



541.381 Flexible Incentives Account; creation; sources; uses



541.384 Watershed management program; project funding; high priority watersheds



541.388 Voluntary local watershed councils; protection against liability



541.390 Duties of Natural Resources Division



541.392 Report to Legislative Assembly



541.395 State agency reports to be provided to board



541.396 Rules



(Watershed Improvement Grant Fund)



541.397 Watershed Improvement Grant Fund; creation; sources; uses



541.399 Purpose of grants from Watershed Improvement Grant Fund



541.401 Criteria for project receiving moneys from Watershed Improvement Grant Fund



(The Oregon Plan)



541.405 Oregon Plan described; goals; elements; Governor to negotiate with federal government



541.407 Healthy Streams Partnership; members; duties



541.409 Independent Multidisciplinary Science Team; duties; agency response to science team recommendations



541.411 Responsibilities of state agency participating in Oregon Plan



541.413 Agency report to legislative committee prior to adjustment of expenditure limitation or additional funding related to Oregon Plan



541.415 Oregon Plan for Salmon and Watersheds Legal Fund; creation; sources; uses



541.420 Oregon Watershed Enhancement Board reports to Governor and Legislative Assembly on Oregon Plan



(Stewardship Agreements)



541.423 Stewardship agreements; contents; procedures for adoption; rules

WATER COMPANIES ORGANIZED UNDER 1891 ACT



541.010 Furnishing of water for certain purposes declared to be a public use; rates; amendment of law. (1) The use of the water of the lakes and running streams of Oregon, for general rental, sale or distribution, for purposes of irrigation, and supplying water for household and domestic consumption, and watering livestock upon dry lands of the state, is a public use, and the right to collect rates or compensation for such use of water is a franchise. A use shall be deemed general within the purview of this section when the water appropriated is supplied to all persons whose lands lie adjacent to or within reach of the line of the ditch, canal or flume in which the water is conveyed, without discrimination other than priority of contract, upon payment of charges therefor, as long as there may be water to supply.

(2) Rates for the uses of water mentioned in this section may be fixed by the Legislative Assembly or by such officer as may be given that authority by the Legislative Assembly, but rates shall not be fixed lower than will allow the net profits of any ditch, canal, flume or system thereof to equal the prevailing legal rate of interest on the amount of money actually paid in and employed in the construction and operation of the ditch, canal, flume or system.

(3) This section and ORS 541.020 to 541.080 may at any time be amended by the Legislative Assembly, and commissioners for the management of water rights and the use of water may be appointed.



541.020 Construction of ditches and canals by corporation; route across lands. Whenever any corporation organized under the Act of 1891, pages 52 to 60, Oregon Laws 1891, finds it necessary to construct its ditch, canal, flume, distributing ditches, or feeders across the improved or occupied lands of another, it shall select the shortest and most direct route practicable, having reference to cost of construction upon which the ditch, canal, flume, distributing ditches, or feeders can be constructed with uniform or nearly uniform grade.



541.030 Ditches and canals across state lands; grant of right of way. The right of way, to the extent specified in the Act of 1891, pages 52 to 60, Oregon Laws 1891, for the ditches, canals, flumes, distributing ditches, and feeders of any corporation appropriating water under the provisions of the Act of 1891, across all lands belonging to the State of Oregon and not under contract of sale, is granted.



541.040 Headgate; mode of construction. Every corporation having constructed a ditch, canal or flume under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, shall erect and keep in good repair a headgate at the head of its ditch, canal or flume, which, together with the necessary embankments, shall be of sufficient height and strength to control the water at all ordinary stages. The framework of the headgate shall be of timber not less than four inches square, and the bottom, sides and gate shall be of plank not less than two inches in thickness.



541.050 Leakage or overflow; liability; exception. Every corporation having constructed a ditch, canal, flume or reservoir under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, shall be liable for all damages done to the persons or property of others, arising from leakage or overflow of water therefrom growing out of want of strength in the banks or walls, or negligence or want of care in the management of the ditch, canal, flume or reservoir. However, damage resulting from extraordinary and unforeseen action of the elements, or attributable in whole or in part to the wrongful interference of another with the ditch, canal, flume or reservoir, which may not be known to the corporation for such length of time as would enable it by the exercise of reasonable efforts to remedy the same, shall not be recovered against the corporation.



541.055 District liability for seepage and leakage from water or flood control works; limitation on commencement of action. (1) Any person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 that owns, operates or maintains any irrigation, drainage, water supply, water control or flood control works shall be liable for damage caused by seepage and leakage from such works only to the extent that such damage is directly and proximately caused by the negligence of the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 and not otherwise. Damage resulting from extraordinary and unforeseen action of the elements, or attributable in whole or in part to the wrongful interference of another person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 with the irrigation, drainage, water supply, water control or flood control works, which may not be known to the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 for such length of time as would enable the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554 by the exercise of reasonable efforts to remedy the same, shall not be recovered against the person or irrigation, drainage, water improvement or water control district organized pursuant to ORS chapter 545, 547, 552, 553 or 554.

(2) An action or suit under subsection (1) of this section must be commenced within two years from the date when the damage is first discovered or in the exercise of reasonable care should have been discovered. However, in no event shall any such action or suit be commenced more than four years from the date the damage actually occurred. [1979 c.882 §1]



541.060 Waste of water; flooding premises; unnecessary diversion. Every corporation having constructed a ditch, canal or flume under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, shall carefully keep and maintain the embankments and walls thereof, and of any reservoir constructed to be used in conjunction therewith, so as to prevent the water from wasting and from flooding or damaging the premises of others. The corporation shall not divert at any time any water for which it has no actual use or demand.



541.070 Ditches, canals and flumes as real estate. All ditches, canals and flumes permanently affixed to the soil, constructed under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, are declared to be real estate, and the same or any interest therein shall be transferred by deed only, duly witnessed and acknowledged. The vendee of the same, or any interest therein, at any stage shall succeed to all the rights of the vendor, and shall be subject to the same liabilities during ownership.



541.080 Suits involving water rights; parties; decree as to priorities. In any suit commenced for the protection of rights to water acquired under the provisions of the Act of 1891, pages 52 to 60, Oregon Laws 1891, the plaintiff may make any or all persons who have diverted water from the same stream or source parties to the suit, and the court may in one decree determine the relative priorities and rights of all parties to the suit. Any person claiming a right on the stream or source, not made a party to the suit, may become such on application to the court, when it is made to appear that the person is interested in the result, and may have the right of the person determined. The court may at any stage, on its own motion, require any persons having or claiming rights to water on the stream or source, to be brought in and made parties, when it appears that a complete determination of the issue involved cannot be made without their presence.



APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER UNDER 1899 ACT



541.110 Use of water to develop mineral resources and furnish power. The use of the water of the lakes and running streams of Oregon for the purpose of developing the mineral resources of the state and to furnish electric power for all purposes, is declared to be a public and beneficial use and a public necessity. Subject to the provisions of the Water Rights Act (as defined in ORS 537.010), the right to divert unappropriated waters of any such lakes or streams for such public and beneficial use is granted.



541.120 Ditches and canals through lands; two or more prohibited; use of existing ditch by others than owner; joint liability. No tract or parcel of improved or occupied land in this state shall, without the written consent of the owner, be subjected to the burden of two or more ditches, canals, flumes or pipelines constructed under the Act of 1899, pages 172 to 180, Oregon Laws 1899, for the purpose of conveying water through the property, when the same object can be feasibly and practically attained by uniting and conveying all the water necessary to be conveyed through such property in one ditch, canal, flume or pipeline. Any person having constructed a ditch, canal, flume or pipeline for the purpose provided in the Act of 1899 shall allow any other person to enlarge such ditch, canal, flume or pipeline, so as not to interfere with the operations of the person owning the same, and to use such ditch, canal, flume or pipeline in common with the person owning the same, upon payment to such person of a reasonable proportion of the cost of constructing and maintaining the ditch, canal, flume or pipeline. Such persons shall be jointly liable to any person damaged.



541.130 Right of way for ditches across state lands granted. The right of way to the extent specified in the Act of 1899, pages 172 to 180, Oregon Laws 1899, for the ditches, canals, flumes, pipelines, distributing ditches, and feeders of any person appropriating water under the provisions of that Act, across any and all lands belonging to the State of Oregon and not under contract of sale, is granted.



541.210 [Repealed by 1953 c.328 §2]



APPROPRIATION OF WATER BY THE UNITED STATES



541.220 Survey of stream system; delivery of data to Attorney General; suits for determination of water rights. In any stream system where construction is contemplated by the United States under the Act of Congress approved June 17, 1902, 32 Stat. 388 to 390, and known as the Reclamation Act, the Water Resources Commission shall make a hydrographic survey of the stream system, and shall deliver an abstract thereof together with an abstract of all data necessary for the determination of all rights for the use of the waters of such system, to the Attorney General. The Attorney General, together with the district attorneys of the districts affected by the stream system shall, at the request of the Secretary of the Interior, enter suit on behalf of the State of Oregon, in the name of the state, for the determination of all rights for the use of the water, and shall diligently prosecute the same to a final adjudication. [Amended by 1985 c.673 §101]



541.230 State lands within irrigated area; restrictions on sale; conveyance of lands needed by United States. No lands belonging to the state, within the areas to be irrigated from work constructed or controlled by the United States or its authorized agents, shall be sold except in conformity with the classification of farm units by the United States. The title of such land shall not pass from the state until the applicant therefor has fully complied with the provisions of the laws of the United States and the regulations thereunder concerning the acquisition of the right to use water from such works, and shall produce the evidence thereof duly issued. After the withdrawal of lands by the United States for any irrigation project, no application for the purchase of state lands within the limits of such withdrawal shall be accepted, except under the conditions prescribed in this section. Any state lands needed by the United States for irrigation works may, in the discretion of the Department of State Lands, be conveyed to it without charge. [Amended by 1967 c.79 §1]



541.240 Right of way for ditches and canals; reservation in conveyances. There is granted over all the unimproved lands now or hereafter belonging to the state the necessary right of way for ditches, canals, and reservoir sites for irrigation purposes constructed by authority of the United States or otherwise. All conveyances of state land made after May 18, 1905, shall contain a reservation of such right of way and reservoir sites.



541.250 Cession to United States not rescinded. Nothing in ORS 541.220 to 541.240 shall be construed as rescinding the cession by the state to the United States of lands, as provided in chapter 5, Oregon Laws 1905.



SUITS FOR DETERMINATION OF WATER RIGHTS UNDER 1905 ACT



541.310 Suits for determination of rights; parties; survey of stream; disbursements. In any suit wherein the state is a party, for determination of a right to the use of the waters of any stream system, all who claim the right to use the waters shall be made parties. When any such suit has been filed the court shall call upon the Water Resources Commission to make or furnish a complete hydrographic survey of the stream system as provided in ORS 541.220, in order to obtain all data necessary to the determination of the rights involved. The disbursements made in litigating the rights involved in the suit shall be taxed by the court as in other equity suits. [Amended by 1985 c.673 §102]



541.320 Decrees adjudicating rights; filing; statement as to matters adjudicated. Upon the adjudication of the rights to the use of the water of a stream system, a certified copy of the decree shall be prepared by the clerk of the court, without charge, and filed in the Water Resources Department. The decree shall declare, as to the water right adjudged to each party, whether riparian or by appropriation, the extent, the priority, amount, purpose, place of use, and, as to water used for irrigation, the specific tracts of land to which it shall be appurtenant, together with such other conditions as may be necessary to define the right and its priority. [Amended by 1985 c.673 §103]



DISTRICT WATER RIGHTS MAPPING



541.325 Definitions for ORS 541.327 to 541.333. As used in ORS 541.327 to 541.333:

(1) “District” means any district or corporation organized under ORS chapter 545, 547, 552, 553 or 554 or any corporation, cooperative, company or other association formed before 1917 for the purpose of distributing water for irrigation purposes.

(2) “Owned” or “controlled” means ownership in fee, purchase on a land sale contract, option to purchase or lease.

(3) “User” means an owner of land with an appurtenant water right that is subject to assessment by a district and that would be altered by the petition and map filed under ORS 541.329. [1989 c.1000 §1; 1993 c.818 §1]



Note: 541.325 to 541.333 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 541 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.



541.327 Failure or refusal of district to act; joint applications; eligible participants. (1) If a district fails or refuses to act under ORS 541.329 and 541.331, the owner of land with an appurtenant water right within a district and subject to assessment by the district may transfer the use or place of use of the water right on or before July 1, 1994, pursuant to ORS 541.333. An owner transferring the use or place of use under this subsection shall comply with ORS 536.050.

(2) If the owners of land within a quarter quarter of a section in a district agree as to the use and place of use of all water rights in the quarter quarter of the section subject to assessment by the district, the owners may jointly submit an application, without the fees required under ORS 536.050, to the Water Resources Department to conform the department’s records to the present usage within the quarter quarter of a section. The application must be filed in accordance with ORS 541.333 on or before July 1, 1994.

(3) The district or users within a district authorized to participate in the process described under ORS 541.325 to 541.333 shall be limited to those districts or users who have notified the department on or before July 1, 1993, of their intention to submit a petition.

(4) Notwithstanding subsection (3) of this section, the Walla Walla River Irrigation District, or its successor district formed under ORS chapter 545 and created after July 1, 1994, may participate in the process described under ORS 541.325 to 541.333 if the district notifies the department on or before June 30, 2004. [1989 c.1000 §2; 1991 c.957 §12; 1993 c.818 §2; 1995 c.554 §5; 2003 c.691 §1]



Note: See note under 541.325.



541.329 Petition for approval of district map; contents; notice to users; corrections. (1) Pursuant to the requirements of subsection (2) of this section, a district may petition the Water Resources Commission for approval and acceptance of a district map indicating the location and use of the water rights within the district or any part thereof. The petition and map shall be in a form satisfactory to the commission and shall be certified by the district rather than a certified water right examiner. For a district that notifies the Water Resources Department under ORS 541.327 (4), the map must be submitted in an electronic format meeting the standards set by the department. The petition and map may not expand a water right of the district or its users beyond the total right of record of the district. If the district has met the requirements of ORS 541.325 to 541.331 and after the opportunity for hearing under ORS 541.331, the commission shall instruct the director to issue a new certificate to the district listing the requested locations and uses and retaining the original priority date. If the commission denies the petition, the commission shall hold a hearing on the denial. Notice and conduct of the hearing shall be under the provisions of ORS chapter 183 pertaining to contested cases. The hearing shall be conducted in the area where the right is located unless the parties and the persons who file the protest under this section stipulate otherwise.

(2) The petition required under subsection (1) of this section shall be submitted on or before July 1, 1994, or before June 30, 2010, for a district notifying the department under ORS 541.327 (4), and shall include:

(a) The name of the district and the certificate number of each water right contained in the petition.

(b) The names of all users within the district whose lands are included in the petition.

(c) A general description of the district boundaries.

(d) A general description of the users’ land and all water rights per each parcel affected by the petition and the map. If the water right is on a tract of land of five acres or less, a notation of the acres of water right on the assessor’s tax map shall be sufficient for identification of the place of use and the extent of use.

(e) A description of the use which is proposed to be made of the water on each parcel.

(f) An affirmation by the petitioner that the map and petition are accurate to the best of the petitioner’s knowledge.

(3) A petition submitted under this section shall contain no more acres of land than the least of the following:

(a) The number of acres assessed by the district as of July 1, 1989;

(b) The number of acres assessed by the district as of July 1, 1993; or

(c) If a district notifies the department under ORS 541.327 (4), the number of acres assessed by the district as of December 31, 2003.

(4) Before submitting a petition under subsection (2) of this section, the district shall send a notice to the user of every parcel whose right of record is to be altered, as evidenced by the district’s records. This notice shall be sent to the last-known address for the user with a return receipt requested. The notice shall include the number of acre-feet of water or its equivalent, for which the user is being assessed, a general description or tax lot of the land to which the water is assigned, a description of the use and a request for confirmation that the information in the notice is correct. Thirty days after the notice is mailed, the district shall prepare a petition and map as described in subsections (1) and (2) of this section. Payment for water by the user or the user’s predecessor for a period of five years before the petition shall create a rebuttable presumption that the number of acres billed and paid by the user or the user’s predecessor is equal to the user’s water right.

(5) Within 30 days after the commission issues a proposed order regarding the petition, the district shall send notice to the users of the district whose right of record is to be altered by the proposed order. This notice shall be sent to the last-known address of the user with a return receipt requested. The notice shall include the number of acres of land, or its equivalent, for which the user is being assessed, a general description or tax lot number of the land to which the water is assigned and a description of the use. In addition to the notice of the proposed order that the district sends to the users, the district shall publish at the same time notice in a newspaper having general circulation in the area in which the water rights are located for a period of at least three weeks. Not less than one publication in each week shall be made. The notice shall state:

(a) The number of acres of water right that each parcel shall receive and the associated priority dates;

(b) That the proposed map and order are available for inspection at the office of the district during normal business hours for a period of 60 days from the date of first publication;

(c) That not less than 60 days after the date of first publication, the commission shall approve the petition and map and issue a final order unless a protest is filed or the petition does not meet the requirements of subsections (1) and (2) of this section; and

(d) That the user has the right to protest the proposed order and map as described in ORS 541.331.

(6) If the commission returns a petition or map to a district for correction, the commission may prescribe a deadline for the petitioner to provide additional information or correct the petition or map. If the petitioner fails to meet the deadline prescribed by the commission, the commission may deny the petition. [1989 c.1000 §3; 1991 c.957 §13; 1993 c.818 §3; 2003 c.691 §2]



Note: See note under 541.325.



541.331 Protest against approval of petition; hearing; issuance of water right certificate; land subject to inclusion. (1) Any user may file with the Water Resources Department, within 60 days after the date of first publication, under ORS 541.329, a protest against a proposed order approving the petition. Whenever a timely protest is filed or in the opinion of the Water Resources Director a hearing is necessary to determine whether the district has met the requirements of ORS 541.325 to 541.333 or the proposed changes described in the proposed order would result in injury to existing water rights, the department shall hold a hearing on the matter. The hearing shall be conducted according to the provisions of ORS chapter 183 applicable to contested cases. The hearing shall be held in the area where the rights are located unless the parties and the persons who filed the protest under this section stipulate otherwise.

(2) If after examination or hearing, the department finds that the district has met the requirements of ORS 541.325 to 541.331 and that the changes described in the proposed order would not result in injury to existing water rights, the department shall issue a final order approving the petition and map as described in the proposed order. If a water right certificate for the water right has been issued previously, the department shall cancel the previous certificate and issue a new certificate that conforms to the final order and map and retains the original priority date.

(3) A certificate issued under this section shall have the evidentiary effect provided for in ORS 537.270 except when the right to appropriate water described in the certificate is abandoned after the certificate is amended or issued.

(4) The department may approve for inclusion in a new certificate under ORS 541.329 and this section only land which, on July 1, 1993, or, if a district notifies the department under ORS 541.327 (4), on December 31, 2003, is:

(a) Land within the legal boundaries of the district as those boundaries were originally described or as they may have been changed by legally prescribed inclusion or exclusion proceedings.

(b) Land for which inclusion in the district has been requested previously as prescribed by law.

(c) Land on which a previously perfected water right has been applied beneficially and for which the user has been charged or assessed by the district in at least one of the last five years and for which the user is currently being charged or assessed. [1989 c.1000 §4; 1993 c.818 §4; 1995 c.554 §7; 1999 c.590 §1; 2003 c.691 §3]



Note: See note under 541.325.



541.333 Application for change of place of use, point of diversion or use; contents; form of map. (1) Whenever the owner of a water right for irrigation, domestic use, stock water storage or other use, for any reason desires to change the place of use, the point of diversion or the use made of the water under ORS 541.327, an application shall be filed with the Water Resources Department.

(2) The application required under subsection (1) of this section shall include:

(a) The name of the owner;

(b) The previous use of the water;

(c) A description of the premises upon which the water is used;

(d) A description of the premises upon which it is proposed to use the water;

(e) The use which is proposed to be made of the water;

(f) The reasons for making the proposed change;

(g) If the application is made under ORS 541.327 (1), evidence that the water has been used within the past five years upon lands owned or controlled by the owner of the water right;

(h) In the event the application is made pursuant to ORS 541.327 (2), evidence that the water has been used within the past five years in the quarter quarter of a section; and

(i) The approval of the district in which the water right is located.

(3) The description of the premises or mapping required under ORS 541.329 (2) shall not require a map prepared by a certified water right examiner, but shall be in a form satisfactory to the Water Resources Commission. If the water right is on a tract of land of five acres or less, the assessor’s tax map with a notation of the acres of water right shall be sufficient for identification of the tract and place of use.

(4) A certificate issued under this section has the evidentiary effect provided for in ORS 537.270 except when the right to appropriate water described in the certificate is abandoned after the certificate is amended or issued. [1989 c.1000 §5; 1995 c.554 §8]



Note: See note under 541.325.



541.345 [Formerly 536.600; repealed by 1999 c.1026 §29]



541.347 [1993 c.601 §1; repealed by 1999 c.1026 §3 (541.353 enacted in lieu of 541.347)]



541.350 [1987 c.734 §1; 1995 c.187 §1; repealed by 1999 c.1026 §1 (541.351 enacted in lieu of 541.350)]



WATERSHED MANAGEMENT AND ENHANCEMENT



(Generally)



541.351 Definitions for ORS 541.351 to 541.415. As used in ORS 541.351 to 541.415:

(1) “Adaptive management” means applying management or practices over time and across the landscape to achieve site specific resource goals using an integrated and science based approach that results in changes over time in response to feedback or monitoring.

(2) “Associated uplands” includes those lands of a watershed that are critical to the functioning and protection of a riparian area.

(3) “Board” means the Oregon Watershed Enhancement Board created under ORS 541.360.

(4) “Capital expenditures” means direct expenses related to:

(a) Personal property of a nonexpendable nature including items that are not consumed in the normal course of operations, can normally be used more than once, have a useful life of more than two years and are for use in the enforcement of fish and wildlife and habitat protection laws and regulations; or

(b) Projects that restore, enhance or protect fish and wildlife habitat, watershed functions, native salmonid populations or water quality, including but not limited to:

(A) Expenses of assessment, research, design or other technical requirements for the implementation of a project;

(B) The acquisition of determinate interests, including fee and less than fee interests, in land or water in order to protect watershed resources, including appraisal costs and other costs directly related to such acquisitions;

(C) Development, construction or implementation of a project to restore, enhance or protect water quality, a watershed, fish or wildlife, or riparian or other habitat;

(D) Technical support directly related to the implementation of a project; and

(E) Monitoring or evaluation activities necessary to determine the actual effectiveness of a project.

(5) “Independent Multidisciplinary Science Team” means the scientific team of recognized experts in fisheries, artificial propagation, stream ecology, forestry, range, watershed and agricultural management created under ORS 541.409.

(6) “Native” means indigenous to Oregon and not introduced.

(7) “Oregon Plan” means the guidance statement and framework described in ORS 541.405.

(8) “Protect” or “protection” means to minimize or mitigate adverse effects on salmonid and habitat to the maximum extent practicable given the anticipated duration, geographic scope and primary purpose of proposed activities.

(9) “Restore” or “restoration” means to take actions likely to achieve sustainable population levels of native fish or wildlife and their habitats.

(10) “Riparian area” means a zone of transition from an aquatic ecosystem to a terrestrial ecosystem, dependent upon surface or subsurface water, that reveals through the zone’s existing or potential soil-vegetation complex the influence of such surface or subsurface water. A riparian area may be located adjacent to a lake, reservoir, estuary, pothole, spring, bog, wet meadow, muskeg or ephemeral, intermittent or perennial stream.

(11) “Soil and water conservation district” means a political subdivision of the state as described in ORS 568.550.

(12) “Stewardship” means the careful and responsible management of the environment.

(13) “Tribe” means a federally recognized Indian tribe in Oregon.

(14) “Watershed” means the entire land area drained by a stream or system of connected streams such that all stream flow originating in the area is discharged through a single outlet.

(15) “Watershed council” means a voluntary local organization, designated by a local government group convened by a county governing body, to address the goal of sustaining natural resource and watershed protection, restoration and enhancement within a watershed. [1999 c.1026 §2 (enacted in lieu of 541.350)]



541.353 Legislative findings; principles of Oregon Plan; policy. (1) The Legislative Assembly finds that:

(a) The long-term protection of the water resources of this state, including sustainable watershed functions, is an essential component of Oregon’s environmental and economic stability and growth;

(b) Each watershed in Oregon is unique, requiring different management techniques and programs;

(c) Management techniques and programs for the protection and enhancement of watersheds can be most effective and efficient when voluntarily initiated at the local level;

(d) Cooperative partnerships between affected private individuals, interested citizens, tribes and representatives of local, state and federal agencies may improve opportunities to achieve the protection, enhancement and restoration of the state’s watersheds; and

(e) The establishment of such cooperative partnerships should be encouraged by local individuals, local organizations and representatives of state agencies.

(2) The Legislative Assembly declares that the Oregon Plan for integrating regulatory efforts while fostering incentives and voluntary action for environmental stewardship should be founded upon the following principles:

(a) Promoting collaboration and partnerships among local, state, regional, tribal and federal governments and private individuals and organizations;

(b) Establishing clear, technically defensible, practicable and achievable recovery and restoration objectives;

(c) Assessing the conditions in each watershed to determine the quality of the existing environment, to identify the causes for declines in habitat, fish and wildlife populations and water quality, and to assist with the development of locally integrated action plans for watersheds that will achieve agreed-upon protection and restoration objectives;

(d) Coordinating implementation of integrated watershed action plans;

(e) Monitoring and ensuring implementation of the integrated watershed action plans using adaptive management to make appropriate changes in action plans and goals as needed; and

(f) Establishing funding priorities across basins based on the value of programs and projects for watershed and habitat recovery.

(3) It is the policy of the State of Oregon that:

(a) Voluntary programs initiated at the local level to protect and enhance the quality and stability of watersheds are a high priority of the state and should be encouraged;

(b) State agencies are encouraged to respond cooperatively to local watershed protection and enhancement efforts and coordinate their respective activities with other state agencies and affected local, regional, tribal and federal governments and private landowners to the greatest degree practicable; and

(c) State agencies responding to local watershed protection and enhancement efforts are encouraged to foster local watershed planning, protection and enhancement efforts before initiating respective action within a watershed. [1999 c.1026 §4 (enacted in lieu of 541.347)]



541.355 [1987 c.734 §2; 1995 c.187 §2; 1999 c.1026 §20; repealed by 2001 c.841 §5]



541.360 Oregon Watershed Enhancement Board; officers; qualifications. (1) The Oregon Watershed Enhancement Board is created. The board shall consist of 17 members as set forth in subsection (2) of this section. The chairperson shall have such powers and duties as are provided by the rules of the board.

(2)(a) The 11 voting members of the board shall be knowledgeable about natural resource issues, represent all geographic regions of this state and include at least one representative of a tribe. The board shall consist of the following:

(A) Each of the following boards or commissions shall designate one member of their board or commission to serve on the Oregon Watershed Enhancement Board:

(i) The Environmental Quality Commission;

(ii) The State Fish and Wildlife Commission;

(iii) The State Board of Forestry;

(iv) The State Board of Agriculture; and

(v) The Water Resources Commission; and

(B) Six public members appointed by the Governor and confirmed by the Senate in accordance with ORS 171.562 and 171.565. Each public member shall serve for a term of four years. A member shall be eligible for reappointment, but no member shall serve more than two consecutive terms.

(b) In addition to the voting members, the director of the agricultural extension service of Oregon State University, or the director’s designee, shall serve as a nonvoting member of the board and shall participate as needed in the activities of the board.

(c) In addition to the voting and nonvoting members designated in paragraphs (a) and (b) of this subsection, representatives of the following federal agencies shall be invited to serve as additional nonvoting members of the board:

(A) A representative of the United States Forest Service.

(B) A representative of the United States Bureau of Land Management.

(C) A representative of the Natural Resources Conservation Service of the United States Department of Agriculture.

(D) A representative of the United States Environmental Protection Agency.

(E) A representative of the National Marine Fisheries Service of the United States Department of Commerce.

(3) The voting members of the board shall select a chairperson from among the voting members of the board.

(4) At least eight voting members of the board must be present to take action to award grant funds under ORS 541.370. If three or more voting members object to an award of grant funds, the board shall reject the proposal and direct the applicant to revise the proposal to comply with the requirements of ORS 541.397, 541.399 and 451.401 and resubmit the proposal. [1987 c.734 §3; 1995 c.187 §3; 1999 c.1026 §8]



541.362 Executive director of Oregon Watershed Enhancement Board; appointment. (1) Subject to confirmation by the Senate in the manner provided in ORS 171.562 and 171.565, the Governor shall appoint an executive director of the Oregon Watershed Enhancement Board. The executive director shall be an individual qualified by training and experience and shall serve for a term of four years, at the pleasure of the Governor.

(2) The executive director shall receive a salary as provided by law or, if not so provided, as prescribed by the Governor.

(3) In addition to salary, but subject to any applicable law regulating travel and other expenses of state officers and employees, the executive director shall be reimbursed for actual and necessary travel and other expenses incurred by the executive director in the performance of official duties.

(4) Subject to any applicable provisions of the State Personnel Relations Law, the executive director shall appoint all subordinate officers and employees of the board, prescribe their duties and fix their compensation. [1999 c.1026 §9]



541.363 Authority of executive director to enter into interagency agreements. In addition to any other authority granted to the executive director of the Oregon Watershed Enhancement Board, the executive director, on behalf of the board, may enter into interagency agreements necessary to carry out the duties and responsibilities of the board. [1999 c.1026 §10]



541.365 Board to conduct watershed enhancement program; integration of geographic information. (1) The Oregon Watershed Enhancement Board shall conduct a watershed enhancement program to benefit all users of the waters of this state. The board shall conduct the program in a manner that:

(a) Provides the greatest possible opportunity for volunteer participation to achieve the goals of the program; and

(b) Coordinates the information, data and data retrieval needs of the natural resource agencies of the state with the State Service Center for Geographic Information Systems.

(2) In order to effectuate the program described in this section, the board shall establish protocols, policies and procedures necessary to integrate and organize geographic information and make it available to persons and entities involved in implementation of the Oregon Plan.

(3) In working with the State Service Center for Geographic Information Systems, the board shall ensure that:

(a) Information received by the center is formatted in a manner that results in an integrated geographic information system that meets the needs of all local, state, regional, tribal and federal entities involved in implementation of the Oregon Plan; and

(b) The data are available to local, state and federal agencies and to any person implementing activities under the Oregon Plan.

(4) The program developed under this section shall include development and implementation, in coordination with the natural resource agencies of the state, of a statewide monitoring program for activities conducted under the Oregon Plan. [1987 c.734 §5; 2001 c.841 §3a; 2001 c.842 §1]



541.368 Board to facilitate implementation of grant programs. In cooperation with other state, interstate and federal agencies, tribes, local governments, watershed councils, soil and water conservation districts, not-for-profit organizations and volunteer groups, the Oregon Watershed Enhancement Board shall facilitate the implementation of the grant programs established under ORS 541.351 to 541.415. [1999 c.1026 §6]



541.370 Duties of board; advisory committees. (1) In carrying out the watershed enhancement program, the Oregon Watershed Enhancement Board shall:

(a) Coordinate the board’s funding of enhancement projects with the activities of the Natural Resources Division staff and other agencies, especially those agencies working together through a system of coordinated resource management planning.

(b) Use the expertise of the appropriate state agency according to the type of enhancement project.

(c) Provide educational and informational materials to promote public awareness and involvement in the watershed enhancement program.

(d) Coordinate and provide for or arrange for assistance in the activities of persons, agencies or political subdivisions developing local watershed enhancement projects funded by the board.

(e) Grant funds for the support of watershed councils in assessing watershed conditions, developing action plans, implementing projects and monitoring results and for the implementation of watershed enhancement projects from such moneys as may be available to the board therefor.

(f) Develop and maintain a centralized repository for information about the effects of watershed enhancement and education projects.

(g) Give priority to proposed watershed enhancement projects receiving funding or assistance from other sources.

(h) Identify gaps in research or available information about watershed health and enhancement.

(i) Cooperate with appropriate federal entities to identify the needs and interests of the State of Oregon so that federal plans and project schedules relating to watershed enhancement incorporate the state’s intent to the fullest extent practicable.

(j) Encourage the use of nonstructural methods to enhance the riparian areas and associated uplands of Oregon’s watersheds.

(k) Determine criteria for utilizing the private sector, both not-for-profit and for-profit organizations, to provide landowners with technical assistance to help develop and implement conservation easements and resource improvement projects.

(2) In accordance with ORS 541.351 to 541.415, the Oregon Watershed Enhancement Board shall administer a watershed improvement grant program using funds from the Watershed Improvement Grant Fund established under ORS 541.397, from the Restoration and Protection Subaccount established under ORS 541.377 and from the Flexible Incentives Account established under ORS 541.381.

(3) To aid and advise the board in the performance of the functions of the board, the board may establish such advisory and technical committees as the board considers necessary. These committees may be continuing or temporary. The board shall determine the representation, membership, terms and organization of the committees and shall appoint their members. The chairperson is ex officio a member of each committee. [1987 c.734 §6; 1995 c.187 §4; 1997 c.8 §8; 1999 c.59 §174; 1999 c.1026 §11; 2001 c.708 §15] (continued)