INSTREAM WATER RIGHTS
(1) These rules provide the framework for the Department to apply to the Water Resources Department for instream water rights for pollution abatement. Instream water rights protect streamflows for public uses, as defined in OAR 340-056-0100, including pollution abatement. The rules set the policy, definitions, procedures, and methodologies by which the Department will prioritize waterbodies for water rights application, determine the streamflow needed to protect water quality, and apply to WRD for instream water rights to protect those flow levels.
(2) The Environmental Quality Commission (EQC) has adopted numeric and narrative standards and policies to protect the beneficial uses of state waters (OAR Chapter 340, Division 41 specifies the beneficial uses and the standards and policies). The amount of pollutants discharged to a receiving stream, the activity occurring adjacent to or within the stream, and the amount of streamflow present, determine whether a stream will achieve the water quality standards. The following rules identify the process whereby the Department will apply for instream water rights for streamflows needed to assimilate loads and/or impacts of adjacent or instream activities in order to protect and maintain water quality standards.
(1) It is the policy of the Environmental Quality Commission:
(a) To implement a water quality program goal to prevent, abate and control waste discharges to the waters of the state to ensure that water quality standards are maintained and beneficial uses are protected;
(b) To apply for instream water rights for pollution abatement where such action provides a public benefit as defined in OAR 340-056-0100, subject to available resources, and subject to the priorities and criteria set forth in these rules;
(c) To maintain streamflows in water quality limited receiving streams to assimilate the identified total maximum daily pollution load;
(d) To protect streamflows as needed in Outstanding Resource Waters and High Quality Waters to ensure that water quality standards are maintained and beneficial uses are protected.
(2) It is further noted by the Commission that:
(a) The above policies do not replace, exempt or diminish any existing policy, rule, standard or guideline of the Commission, or any permit condition, load allocation or wasteload allocation. This policy does not replace the policy of the Commission to give preference to no-discharge alternatives for new or expanding facilities (see 340-041-0026(4)). Nor does it replace the policy of the Commission to require highest and best practicable treatment and control of wastes, activities and flows (see OAR 340-041 "Water Quality Standards Not to be Exceeded");
(b) The establishment of an instream water right does not guarantee the presence of flow in the stream. All flow-based permit conditions, wasteload allocations, and all rules of the Commission shall be managed and enforced based on the actual streamflow, not on the amount of flow specified in an instream water right certificate.
(1) "Assimilative Capacity" means the ability of a receiving water to accept a quantity of a water quality constituent and still meet water quality standards. See also "Loading Capacity" below.
(2) "Biennial Water Quality Status Assessment Report" is the biennial report prepared by the DEQ to meet the requirements of Section 305(b) of the federal Water Quality Act.
(3) "EQC" or "Commission" means the Oregon State Environmental Quality Commission.
(4) "Director" means the Director of the Department of Environmental Quality.
(5) "DEQ" or "Department" means the Oregon State Department of Environmental Quality.
(6) "Instream Water Right" means a water right held in trust by the Water Resources Department for the benefit of the people of the state of Oregon to maintain water in stream for public use. An instream water right does not require a diversion or any other means of physical control over the water. (See ORS 537.332(2).)
(7) "Loading Capacity (LC)" means the greatest amount of loading that a water can receive without violating water quality standards. (See OAR 340-041-0006(18))
(8) "Load Allocation (LA)" means the portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution or to natural background sources. Load allocations are best estimates of the loading which may range from reasonably accurate estimates to gross allotments, depending on the availability of data and appropriate techniques for predicting loading. Wherever possible, natural and nonpoint source loads should be distinguished. (See OAR 340-041-0006(19).)
(9) "ODFW" means the Oregon Department of Fish and Wildlife.
(10) "Outstanding Resource Water" means those waters designated by the Environmental Quality Commission where existing high quality waters constitute an outstanding state or national resource based on their extraordinary water quality or ecological values, or where special water quality protection is needed to maintain critical habitat areas. (See OAR 340-041-0006(42).)
(11) "Parks" or "Parks Department" means the Oregon Department of Parks and Recreation.
(12) "Pollution" means such contamination or other alteration of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, silt, or odor of the waters, or such radioactive or other substance into any waters of the state which either by itself or in connection with any other substance present, will or can reasonably be expected to create a public nuisance or render such waters harmful, detrimental, or injurious to public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses or to livestock, wildlife, fish or other aquatic life, or the habitat thereof. (See OAR 340-041-0006(9).)
(13) "Public Benefit" means a benefit that accrues to the public at large rather than to a person, a small group of persons or to a private enterprise. (See ORS 537.332.)
(14) "Public Uses" include, but are not limited to:
(b) Conservation, maintenance and enhancement of aquatic and fish life, wildlife, fish and wildlife habitat and any other ecological values;
(c) Pollution abatement; or
(d) Navigation. (See ORS 537.332(4).)
(15) "Receiving Stream" or "Receiving Water" means a water of the state into which wastes are discharged.
(16) "Reserve Capacity" means that portion of a receiving stream's loading capacity which has not been allocated. The reserve capacity includes the loading capacity which has been set aside as a margin of safety.
(17) "Total Maximum Daily Load (TMDL)" means the sum of the individual WLAs (for point sources), LAs (for nonpoint sources), background sources and reserve capacity. TMDLs are based on the loading capacity, or assimilative capacity of the receiving water. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. (See OAR 340-041-0006(21).)
(18) "Water Quality Limited" means one of the following categories:
(a) A receiving stream which does not meet instream water quality standards during the year or defined season even after the implementation of standard technology;
(b) A receiving stream which achieves and is expected to continue to achieve instream water quality standards but utilizes higher than standard technology to protect beneficial uses;
(c) A receiving stream for which there is insufficient information to determine if water quality standards are being met with higher than standard treatment technology, or where through professional judgment the receiving stream would not be expected to meet water quality standards during the entire year or defined season without higher than standard technology. (See OAR 340-041-0006(30).)
(19) "Waste" means sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, other substances which will or may cause pollution or tend to cause pollution of any water of the state. (See OAR 340-041-0006(13).)
(20) "Waste Load Allocation (WLA)" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water-quality based effluent limitation. (See OAR 340-041-0006(20).)
(21) "Water Quality Standards" means provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses. Water quality standards are to protect the public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act. (See 40 CFR 130.2(c).)
(22) "WRD" means Water Resources Department.
[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the office of the agency.]
Selection of Receiving Waters for Instream Water Rights Application
(1) The Department will consider waters of the state for instream water rights application in the following priority order, but reserves the right to apply for an instream water right on a waterbody in any category before another:
(a) Water Quality Limited waters as defined in OAR 340-056-0100(18)(a), and identified as 303d1 water quality limited waters in Appendix A of the Biennial Water Quality Assessment (305b) Report;
(b) Outstanding Resource Waters;
(c) All other waters.
(2) Waterbodies that have a pending or certificated instream water right which is estimated by the Department to be of sufficient quantity to serve pollution abatement purposes, may be relegated to a lower priority so that the Department may focus its efforts first on stream segments with no flow protection.
(3) The Department will use the following criteria to determine whether to apply for an instream water right. These criteria apply to all waters except Outstanding Resource Waters:
(a) An instream water right would protect or maintain water quality for beneficial uses and, therefore, provide a public benefit; and
(b) Low flows contribute to or exacerbate existing or expected water quality problems.
(4) The Department will use the following criteria to determine whether to apply for an instream water right for an Outstanding Resource Water:
(a) An instream water right would protect the water quality values established for the Outstanding Resource Water by the Commission under OAR 340-041-0026(1)(a)(D) and, therefore, provide a public benefit; and
(b) Reduced flows would contribute to or exacerbate potential degradation of those waters.
[ED. NOTE: The Appendix referenced in this rule is not printed in the OAR Compilation. Copies are available from the agency.]
Instream Water Rights Evaluation and Application Procedures
(1) The Department has established an instream water rights program that includes priorities and procedures for developing instream water rights applications, and methodologies to determine the amount of flow required to protect and maintain water quality.
(2) The Department will evaluate the need to establish instream water rights on a receiving stream by examining the relevant information available for the stream segment, and determining whether the stream segment meets the criteria listed in OAR 340-056-0200(3) or (4).
(3) For those stream segments that meet the priorities and criteria set forth in this rule, the Department will determine the flow level needed using an appropriate methodology identified in OAR 340-056-0400, and apply for an instream water right.
(4) In order to apply for an instream water right, the Department will submit an application to WRD which includes the information specified in OAR 690-077-0020, rules of the WRD.
(5) The Department will notify local govern-ments and the public of the intent to file an instream water right application before it is submitted to WRD and will provide an opportunity for public comment not to exceed 30 days. The Department will consider only comment and information pertinent to the water quality flow determination analysis at this time, and not comment pertaining to the permitting authority of WRD. WRD provides notice of all applications and accepts public comment for their broader review and permitting function following submittal of the water right application. Notification of the intent to file an application and the opportunity for public comment will be provided to the local newspaper, to local governments, and to parties who have requested notification from the Department.
(6) The Department will submit the draft application to ODFW and Parks for review and comment prior to submission to WRD.
(7) ODFW and Parks may incorporate other public uses into a Department application and jointly apply with the Department for instream water rights in accordance with OAR 690-077-0020.
(8) Upon notice that ODFW or Parks is requesting an instream water right, the Department may jointly apply for an instream water right with the other agency(ies) for the amount of flow needed for pollution abatement, provided the criteria listed in OAR 340-056-0200(3) and (4) are met.
(9) The Department will prepare a policy analysis of the draft application and provide this analysis to the Commission for comment prior to submitting the application to WRD.
(10) The final application shall be signed by the Director or the Director's designated representative and submitted to the WRD.
Periodic Review of Instream Water Rights
(1) Instream water rights held in trust by the Water Resources Department for the purpose of pollution abatement shall be reviewed by DEQ as follows:
(a) For stream segments subject to a Total Maximum Daily Load, instream water rights shall be reviewed within one year of the date the load and waste load allocations are achieved, and at least once in every five year period thereafter;
(b) When a discharge permit is cancelled or denied, or permit limits are substantially reduced, instream flow needs will be reevaluated;
(c) In basins with active nonpoint source control programs, instream flow needs will be reevaluated at least once in every ten year period;
(d) All other instream water right for water quality will be reviewed once in every ten-year period.
(2) If the review of an instream water right by the Department finds that the instream flow need has declined and is expected to remain at the reduced level, the Department will notify WRD. The Department may assist WRD in proceedings to cancel, transfer or modify the instream right.
(3) If the review of an instream water right finds that the pollution abatement use is greater than provided for in the existing instream right, the Department may apply for a water right for the additional instream flows according to the criteria and procedures set forth in this rule.
Flow Determination Methodology
(1) The Department will determine the instream flow need for pollution abatement based on stream specific analysis, using the methodology described below for which there is adequate data, and which, in the Department's judgement, is most appropriate and reliable.
(2) The flow determination methodologies described below are based on existing users, including facilities with discharge permits and existing land uses that generate nonpoint runoff or otherwise impact the water quality of the stream.
(3) Available and relevant data on streamflow, water quality and pollution loading will be compiled to determine the appropriate methodology and water quality parameters to be used in making the instream flow need determination.
(4) The methodologies the Department will use to determine the instream flow need for pollution abatement include, but are not limited to, the following:
(a) Streamflow -- Water Quality Correlation Analysis: Available data is analyzed to determine whether a correlation exists between observed water quality and instream flows. The streamflow condition at which water quality problems are minimized is identified. This analysis accounts for point source, nonpoint source, and background loads affecting the stream segment at the time the water quality data were collected;
(b) Load Assimilation Analysis: Information on pollution loads is used to estimate or predict the flows needed to assimilate the loads in the stream. Dilution rule requirements or simplified water quality models, based on available data, are used to determine the flows needed to assimilate the permitted effluent discharges (point sources) and estimated nonpoint source loads to the stream. If the permitted discharges do not meet the minimum design criteria for treatment and control of wastes specified in the basin rules (OAR 340-041) at the time of the instream water right application, the Department may estimate the instream flow need that will occur when the facility upgrades to the minimum design criteria and base the water right application on that flow level;
(c) Water Quality Modeling: Special intensive stream investigations, such as those conducted in basins receiving Total Maximum Daily Loads (TMDLs) provide detailed data on instream water quality, point and nonpoint source loads, and streamflows. When this data is available, it will be used to model the relationship between streamflow and water quality, and estimate the instream flows needed to assimilate permitted effluent discharges, estimated nonpoint source loads, or other factors affecting water quality, such as temperature. In TMDL basins, dischargers likely have to meet more stringent discharge limits than basin design criteria require. These facilities may have permit limits for additional parameters than are included in a typical permit;
(d) Non-Degradation Flows Method: This methodology applies only to Outstanding Resource Waters subject to the non-degradation standard. For these waterbodies, the Department will strive to maintain existing water quality and, therefore, existing streamflows. Any reduction in streamflow could potentially contribute to a degradation of water quality. A simple method to achieve this objective is to apply for an instream water right for the median monthly streamflow or lake levels by month.